IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.21 OF 2009 IN MISC PETITION NO.5 OF 2009 IN TESTAMENTARY PETITION NO.126 OF 2008 WITH MISC PETITION NO.5 OF 2009 Chandrakant P. Doshi & Ors. ..Petitioners Vs. Prashant Vinod Sanghvi & Ors. ..Respondents Ms. J.M.Sidwa with Ms. Shroff i/b M/s. K.V.Chheda & Co. for the Petitioners Mr. Sunil Patel i/b M/s. Sunil & Co. for the Respondent No.1 CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 21st AUGUST, 2009 P.C. : 1. Miscellaneous Petition No.5 of 2009 has been instituted in order to seek the removal of the First Respondent as an Executor of the last Will and Testament of Khushalchand Keshavji Sanghvi, who died on 19th January 2007. The deceased executed a Will on 28th December 2006. The Petition seeking removal of the executor has been filed by three Petitioners. Petitioner No.1 is the son-in-law of the deceased. Petitioner Nos.2 and 3 and Respondent No.2 are sons of the deceased. The First Respondent is the grandson of the deceased. The Third Respondent is the nephew of the deceased. Under the Will, the three Petitioners together with Respondent Nos.1, 2 & 3 have been named as Executors. Respondent No.4 is the National Bank for Agricultural and Rural Development (NABARD), Respondent No.5 is the State Bank of India; Respondent Nos.6 and 7 are the Postal Authorities; and Respondent No.8 is the Chairman of a Co- operative Society, where the residential flat in which, the deceased has interest, is situated. 2. After the testator died, a meeting of the executors was held on 03rd March, 2007, and it was decided amongst them that, Petitioner No.1, Chandrakant and Respondent No.3, Suryakant, shall principally look after the work required in connection with the Will and where a major decision was necessary, a meeting of all the executors would be convened. The First Respondent filed Probate Petition No.126 of 2008, for seeking a probate of the last Will and Testament of the Testator dated 28th December, 2006. The Petition is pending. 3. In support of the Petition for Revocation, it has been submitted on behalf of the Petitioners that, the First Respondent realised several amounts invested by the deceased, which have been invested in a separate account held by the First Respondent, in ICICI Bank. The account in question is a savings account bearing No.037701509256. Among the amounts which have been withdrawn by the First Respondent, are the monies of the deceased held in a PPF account with the State Bank of India, in a Senior Citizens’ Scheme in the Post Office at Gowalia Tank and in a Monthly Income Scheme with the Post Office at Azad Nagar. In addition, it has been submitted that the deceased held a 50% undivided share in respect of a residential flat, namely, Flat No.301, Kailash, 3rd floor, Andheri Krishna Kaveri Co-operative Housing Society, Andheri (W), Mumbai. The flat has been transferred to the name of the First Respondent . 4. Besides the petition for revocation, the Petitioners have taken out a Notice of Motion seeking interim reliefs. In reply to the Notice of Motion, the First Respondent has filed an Affidavit dated 03rd April 2009, in which he has made a disclosure of the amounts realised from the estate of the deceased. These amounts are; (1) Rs.3 lacs received from the Azad Nagar Post office under the monthly income scheme; (2) Rs.3,02,976/- in a term deposit in State Bank of India, (3) Rs.19,42,775.66 received from the PPF account ; (4) Bank interest deposited on 1st September 2007, 1st March, 2008, 1st September 2008 and 1st March 2009; (5) Interest received on the NABARD Bonds. The Petitioner has explained the withdrawals from the account, namely an amount of Rs.75,000/- withdrawn for the payment of the Court Fee for the Probate Petition and payments towards the car insurance of the Motor vehicle belonging to the deceased and towards the bill of the Chartered Accountant. 5. During the course of the hearing of the Petition, Counsel appearing on behalf of the First Respondent has drawn the attention of the court to paragraph 27 of the reply, in which , it has been stated that Flat 301 at Kailash, was purchased in the name of the deceased, the First Respondent and the wife and HUF of First Respondent jointly. It has been stated that the deceased had nominated First Respondent, for his share, which has been bequeathed to First Respondent. Under the Will the First Respondent has stated that he has no intention to create any third party rights or to transfer or part with the possession of the flat. The Undertaking in those terms is accepted. 6. During the course of the hearing, Counsel appearing on behalf of the First Respondent has made the following statement on the instructions of the First Respondent who is present in court. (1)The First Respondent undertakes to this court that, any amounts whatsoever, realised from the estate of the deceased shall be deposited by the First Respondent in the savings bank account opened with ICICI Bank and the First Respondent shall not appropriate any of the aforesaid amounts for his personal purposes; (2)Petitioner No.1, Chandrakant, shall on the application of the First Respondent be introduced as joint account holder together with the First Respondent in the Savings Bank Account held with ICICI Bank, (3)Within a period of two weeks from today the First Respondent shall furnish to the Petitioners a full account of the estate of the deceased; of monies realised from the estate and the disbursal and/or drawals therefrom; (4)The First Respondent shall not alienate or create third party rights in respect of the residential flat at 301, Kailash; (5)In the event that, any of the Petitioners desire to join the First Respondent as Petitioners to the Probate Petition, the First Respondent shall immediately take steps for obtaining necessary orders for impleadment. 7. The statement in the aforesaid terms is recorded and accepted. The Advocate appearing on behalf of the Petitioners has, upon taking instructions from her clients, informed the court that, they are agreeable to the assurances of First Respondent in the aforesaid terms being recorded and accepted. In that view of the matter, no further directions are sought either in the Petition for removal or in the Notice of Motion for interim reliefs. Both the Petition and the Notice of Motion for interim relief shall accordingly stand disposed of by consent since no other point has been pressed on either side. (Dr. D.Y.Chandrachud, J)