1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber summons No.1 of 2008 IN Miscellaneous Petition No.47 of 1998 IN Petition No.603 of 1996 IN Will No.201 of 1996 Smt.Businayani Sreenivasiah Lakshmidevamma alias Lakshmidevamma. ... Petitioner V/s. Smt.Ragini Narayan ... Respondent And Shri B.M.Sreenivasiah Smt.Lakshmidevamma Charities Trust & ors. ... Applicants/ Proposed Petitioners Mr.B.G. Bagwe i/by Mr.A.S. Karwande for Applicants Mr.Suneet Moholkar with Mr.Santosh Singh i/by Pillai & Co. for Respondent. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 5th September, 2008 P.C. : 1.This Chamber Summons is taken out by the Applicants, who are the trustees of one Shri B.M. Sreenivasaiah Smt. Lakshmidevamma Charity Trust, to be appointed legal representatives of Smt.Lakshmidevamma, the original Petitioner, who expired pending Petition No.603 of 1996. 2 2.In this case, the testator one B.S. Narayan, son of B.M. Sreenivasaiah, expired on 23.8.1995 leaving his last Will and Testament dated 23.12.1982. His father had expired on 15.9.1953, leaving behind two wives one Lakshmamma and Lakshmidevamma. Lakshmidevamma was the step mother, who had brought up the testator. 3.The testator bequeathed one of his properties mentioned in the Schedule to the Will situate in Bangalore for creation of a Trust. That is the only property bequeathed under the aforesaid Will. His step mother was educated and hence, he bequeathed that property to her for creating a Trust for educational and charitable purpose. She filed the Petition for Letters of Administration. The Letters of Administration were granted to her on 27.4.1998. Pursuant thereto, she got the Charitable Trust in the aforesaid name registered on 1.7.1998 under Registration No.E 1911, Thane. Consequently, the said property vested in the Trust from the date of the registration of the Trust. 4.The Respondent claimed to be the widow of the testator. She filed a revocation Petition on 30.6.1998. 3 5.Pending the revocation Petition, the Applicants as the trustees of the aforesaid Trust applied to the Mumbai Municipal Corporation (MMC) to transfer the land set out in the Schedule to the Will as having been bequeathed to the Trust in favour of the Trust. 6.Pending the Petition, the Petitioner expired on 2.3.1999. The Trust represented by the trustees came to be made a party to the Petition on 10.1.2000. 7.The Letters of Administration came to be revoked on 27.9.2001. Consequently, Testamentary Petition No.603 of 1996 revived and would have to be disposed of on merits. The Respondent has already filed the Caveat. Her Affidavit- in-support of the Caveat would be considered in the Testamentary Suit that will have to be prosecuted. 8.It is contended by the Respondent that upon the death of the Petitioner-Lakshmidevamma, the Petition stood abated and the trustees of the Trust cannot be brought on record of the Petition. It is further contended on behalf of the trustees that the Respondent's case can be considered in the Petition upon her Caveat being filed on merits but that the trustees to whom the property had vested upon the registration of the 4 Trust have an interest earlier represented by the Petitioner herself to obtain the Letters of Administration with the Will annexed. 9.It is contended on behalf of the trustees that they have stepped into the shoes of the Petitioner upon the registration of the Trust. It is further contended on their behalf that they have been in lawful possession of the property since the registration of the Trust and that all the documents in support of the property are with the Trust. They have also shown that the Trust had received Demand Notices for payment of dues of the MMC. In a Notice of Motion taken out by the Petitioner, the Respondent had not objected for payment of the taxes and dues to the MMC by the Trust. 10.Similarly the Trust has filed certain RAD Suits against the tenants in possession of the property being Suit Nos.500 to 503 of 2005. They have taken care to protect the Trust property. 11.The Petitioner survived the testator but died before the estate was fully administered and after the estate was partly administered by registration of the aforesaid Trust. Consequently, the Trust through the trustees as her legal 5 representative would have the same rights to administration with the Will annexed as she had. 12.The Petitioner is the sole legatee in respect of the property disposed of under the aforesaid Will. There is no other bequest made under the aforesaid Will though the penultimate clause in the Will shows that the Will shall not affect the other properties of the testator. The case of the Trust is almost on par with the case of residuary legatee under Section 233 of the Indian Succession Act in which a residuary legatee surviving the testator but dying before the estate was fully administered can have the estate represented through his representative for administration with the Will annexed as such residuary legatee. Consequently, the Trust through its trustees would be entitled to prosecute Petition No.603 of 1996. The Trust represented by the trustees must be impleaded as the Petitioner in the place and stead of the original Petitioner- Lakshmidevamma, since deceased. Consequently, the Chamber Summons is made absolute in terms of prayers (a), (b) and-(c). The trustees shall carry out the amendments to Petition No.603 of 1996 showing them on behalf of the Trust as the Petitioners therein and showing the Respondent herein as the Respondent therein. 6 13.The Chamber Summons is disposed of accordingly. [SMT.ROSHAN DALVI, J.]