1 CST 28.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE CIVIL JURISIDCTION CHAMBER SUMMONS NO. 28 OF 2O11 IN TESTAMENTARY SUIT NO. 74 OF 200 IN TESTAMENTARY PETITION NO. 687 OF 1999 Minoo Commissariat. ... Deceased. Avan Cyrus Mistry. ... Plaintiff. V/s. Burjar Sorabji Sidhwa & Anr. ... Defendants. And Cyrsus Naval Mistry. ... Applicant. And Mrs. Perviz Jamshed Alexander & Anr. ... Respondents. Mr. Nilesh Modi i/b. M/s. Rustomji & Ginwala for the Plaintiff. Mr. Girish Desai, Balasaheb Yewale i/b. M/s. Rajesh Shah & Co. for the Defendants. CORAM : R.Y. GANOO, J. DATED : 7th APRIL 2011. P.C. :- Affidavit in rejoinder is filed by the learned Counsel Mr. Modi on behalf of the Applicant. Same is taken on record. Affidavit of Mrs. Avan Cyrus Mistry indicating her desire to stop working as an Executrix is filed. Same is taken on record. 2. I have heard learned Counsels on both sides. Late Naju Minoo Commissariat is said to have executed a Will dated 29th 2 CST 28.11.sxw December 1995, Mrs. Avan Mistry and Mr. Cyrus Mistry i.e. the Applicant herein have been appointed as a Executors of the said Will. Accordingly, Mrs. Avan Mistry had filed Probate Petition No. 687 of 1999. For some personal reasons Mr. Avan Mistry does not wish to go ahead as a Executrix. In accordance with the provisions of Section 230 of the Indian Succession Act, 1925, Mrs. Mistry appeared in the Court on 24th March 2011 and made an oral declaration in the Court that she is not interested in prosecuting the Petition as an Executrix. Said statement was recorded. In addition to the said statement, an affidavit is filed today. This will go to show that Mrs. Mistry is not inclined to continue as an Executrix. In such a situation, there is no difficulty in relieving Mrs. Mistry to work as Executrix. 3. Learned Counsel Mr. Girish Desai appearing on behalf of Caveator No.2 and proposed Respondents submitted that Mrs. Mistry is required to file accounts as to in what manner he has dealt with the estate of the deceased. 4. Learned Counsel Mr. Mody on behalf of Mrs. Mistry upon instructions states that Mrs. Mistry shall give accounts in this Court on or before 30th June 2011. He further stated that a copy of the same will be submitted to the Advocate for the Caveator – Defendant No.2 and the present Respondent. The statement made by the learned Counsel Mr. Modi on behalf of Mrs. Mistry is accepted. 3 CST 28.11.sxw 5. The next question is whether Mr. Cyrus Mistry, the present Applicant should be permitted to substitute himself in the place of Mrs. Mistry. After having noticed that the present Applicant is also an Executor, there should be no difficulty in allowing Mr. Mistry to work as a Petitioner. 6. Learned Counsel Mr. Girish Desai submitted that the present Applicant who wants to come on record as the Petitioner-Plaintiff has not complied with necessary formalities viz. giving necessary undertaking. In reply to this statement, learned Counsel Mr. Modi states that within two weeks from today the present Applicant shall file in the office necessary undertaking/affidavit/oath as per the rules and that he shall give copy of the same to the Advocate for Defendant No.2 and the Respondent. 7. In my view, looking to the nature of the undertaking given by the learned Counsel for the Applicant and also noting the fact that the Applicant is an Executor, there should be no difficulty in appointing Mr. Cyrus Mistry in place of earlier Plaintiff. 8. It must be mentioned that learned Counsel Mr. Desai had submitted that the present Applicant has intermingled in the estate of the deceased and therefore, he is unfit to be appointed as a Petitioner/Plaintiff. In my view, at this juncture, one may not go in this aspect. If at all the Applicant is appointed as the Petitioner/Plaintiff, it will be open for 4 CST 28.11.sxw Defendant No.2 as well as the present Respondents to file appropriate proceedings stating therein detailed facts and averments for removal of the present Applicant from the status of the Plaintiff/Petitioner. Liberty to that extent is granted. Accordingly, I am inclined to allow the Chamber Summons so as to bring the Applicant on record as the Plaintiff. 9. Apart from the aforesaid two reliefs, one more relief is sought that is to say bringing present Respondents i.e. Mrs. Perviz Jamshed Alexander and Mrs. Diane K. Mody as the Defendants in their capacity as heirs of Defendant No.1 Mr. B.S. Sidhwa. 10. I have heard learned Counsels on both sides on this aspect. Looking to the affidavit on record, it would be proper to allow Mrs. Perviz Jamshed Alexander and Mrs. Diane K. Mody to come on record in place of Mr. B.S. Sidhwa so that these two persons can oppose the Will sought to be probated. 11. It appears that Mrs. Mistry or the present Applicant were not aware of the heirs of Mr. B.S. Sidhwa and it is only after the Plaintiff/Applicant came to know about the names of heirs of Mr. B.S. Sidhwa in the proceedings of some other Suit, the present Chamber Summons was taken out. The delay in taking out this application can be condoned. In fact, by allowing Mrs. Perviz Alexander and Mrs. Diane Mody to come on record they will have every opportunity to contest the Will 5 CST 28.11.sxw which was once upon a time contested by Mr. B.S. Sidhwa. 12. In view of the aforesaid discussion, following order is passed to dispose of the present Chamber Summons :- (i) The Chamber Summons is made absolute in terms of prayer clauses (a), (b) and (c). (ii) Mrs. Avan Mistry is relieved from the job as an Executrix. (iii) Mrs. Mistry is directed to file accounts as to the estate of the deceased from the date of death of the deceased till 31st March 2011. The accounts to be filed directly in the office on or before 30th June 2011. A copy of the same be supplied to the Advocate for Respondent No.2 and the present Respondents. (iv) Mr. Cyrus Mistry is permitted to come on record as a Petitioner/Plaintiff. He shall file necessary undertaking/affidavit/oath as may be required as the provisions of Indian Succession Act or the relevant applicable rules within a period of 2 weeks from today. The amendment in terms of schedule to this Chamber Summons be carried out on or before 30th April 2011. 6 CST 28.11.sxw (v) Mr. Mistry to serve a copy of the amended Petition upon Advocate for Defendant No.2 and present Respondents on or before 13th May 2011. (v) Liberty is granted to Defendant No.2 and/or present Respondents who are now being joined as Defendants to take out appropriate proceedings against Mr. Mistry for removing him from the status of the Plaintiff/Petitioner by filing appropriate proceedings. Said proceedings shall be attended to on merits thereof. (vi) The present Respondents who are ordered to be joined as Defendants in their capacity as heirs of original Defendant No.1 are permitted to file additional affidavit in support of the Caveat within six weeks from service of amended Petition on them. (vii) Suit now stands adjourned to 1st July 2011 for directions. (R.Y. GANOO, J.)