1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.2 OF 2009 IN MISC.PETITION NO.41 OF 2001 IN PROBATE PETITION NO.454 OF 1985 Ms.Nirupa Thacker .. Petitioner Versus Mrs.Khorshed Kersasp Aga .. Respondent Mrs.Bhavna Shah for petitioner Mr.Vishakha Vaswani i/b. V.V.Juris for respondent Mr.Subodh Joshi i/b. Mahendra Swar for intervenors (today absent). CORAM : S.C.DHARMADHIKARI, J. DATE : November 26, 2009. P.C.: 1] This review petition seeks review of my order dated 20th February 2009. The review is sought by the original respondents and for the reasons and grounds stated in the petition. 3] However, as was observed in the main order, even during the course of the review proceedings, parties met, discussed and negotiated for an overall settlement. Since the dispute was long pending, they 2 sought further time which was granted. 4] Ultimately, when the review petition was placed for admission, the petitioner and respondents tendered consent terms. 5] The review petitioner has specifically stated before me that if the consent terms are taken on record, then, the review petition will not be pressed. 6] Today, parties seek an order in terms of consent terms. 7] Having perused the order under review i.e. the original order and the consent terms, it is apparent that when the issue was pending before the Commissioner for Taking Accounts, he issued certain directions. Aggrieved by this, the original petition was filed. Some of the directions which were put in issue before me have been set out in my main order. After the main order was passed, the respondent sought to urge that there are certain errors apparent on the face of the record and, therefore, the review jurisdiction be exercised. 3 8] However, both sides state before me that some of the directions of the Commissioner for taking accounts have not been considered by this Court with their full implications and consequences and the parties desire that the directions to bring back the amounts as issued by him would be complied but with consequential modifications. If these modifications sought are granted, then, both petitioner and respondent have no grievance. 9] Further, my attention is invited to clauses 3 to 5 of the consent terms and it is stated that it is not as if the entire estate is appropriated by both sides and others would be deprived of the benefits thereof. They have taken due as per the relevant clauses of the will and have assured the Court that the estate would be distributed as per clauses 6 and 7 of this will and more particularly in the manner set out in the consent terms. 10] When these terms were placed before this Court on earlier occasions, Mr.Subhodh Joshi learned Counsel appeared and stated that one Amulya Vassa is also a beneficiary under the will with his brother Nirbhay Vassa. He sought time to file an affidavit and accordingly the affidavits have been filed. In the affidavit it is stated that Amulya and his 4 brother Nirbhay are the legal heirs of late Urmila Kantilal. The said Urmila Kantilal is also the beneficiary under the will of late Premaben and therefore, she is also entitled to a share in the Estate. Therefore, it was incumbent and necessary for the review petitioner and the respondents to have served the beneficiaries. My attention is also invited to a notice of motion No.81 of 2009 in Misc.Petition No.41 of 2001, by Mr.Joshi and he contends that on this motion, order was passed granting liberty to the applicant to initiate such proceedings as are permissible in law. However, there was no occasion for the said Vassas to apply and seek any orders as the order passed in the main matter of which review is sought fully protects their rights. By the review, precisely that is sought to be taken away and more particularly by the consent terms tendered. There is serious apprehension that these persons would be deprived of the benefits under the will. In such circumstances, Mr.Joshi prayed that the consent terms should not be taken on record. 11] Having found that the applicants (Vassas) have all the remedies available in law and could have till this date initiated proceedings and even now they are not precluded from doing so, I do not see any basis in the apprehension of Mr.Joshi. It need not be clarified that it is only the 5 parties to the original proceedings who are seeking review of the earlier order/ main order. The consent terms are drawn as between them. Any person who is not a party to the consent terms or the proceedings can never be said to have lost his remedies nor his rights can be taken away, merely because the consent terms are taken on record or an order is made in furtherance thereof. In these circumstances, both Mr.Amulya and Nirbhay who claim to be heirs of Urmila, who in turn is beneficiary under the subject will can adopt such proceedings as are persmissible in law, in case they feel aggrieved by the order made in furtherance of these consent terms. All contentions of Vassas and other parties to the proceedings under the will are kept open in that behalf. 12] Having satisfied myself that the very basis for which the main proceedings were initiated and even the review sought does not survive and parties having decided to give effect to the directions issued earlier, but in a modified form, I see no impediment in taking the consent terms on record. More particularly, because the consent terms have been signed by parties after prolonged negotiations and discussions. They have signed them willingly and without any pressure or force. They are executed and tendered basically to put an end to their long standing 6 disputes. In fact, both desire to give effect to the will and distribute the estate in accordance therewith. Their desire is not to deprive any beneficiary of his entitlement and benefit under the will. In such circumstances, the consent terms are taken on record and marked “X” for identification. There will be an order in terms of consent terms. Review petition is dismissed as withdrawn with no orders as to costs. However, the order passed today shall be subject to the proceedings that may be adopted by the said Vassas and all pleas and contentions therein shall remain unaffected by this order. The Court trying such proceedings must not be influenced by the terms or the observations contained in the order. (S.C.DHARMADHIKARI, J)