1 MPT-104-105-106-107 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Miscellaneous Petition No.104 of 2010 IN Probate Petition No.575 of 1985 Renu Chandra Mehta @ Sushila Menghraj Gehi. .. .. Petitioner v/s. 1. Anil Menghraj Gehi & ors. .. Respondents WITH Miscellaneous Petition No.105 of 2010 IN Probate Petition No.575 of 1985 Moti Menghraj Gehi. .. .. Petitioner v/s. 1.Anil Menghraj Gehi & ors. .. Respondents WITH Miscellaneous Petition No.106 of 2010 IN Probate Petition No.575 of 1985 Suresh Menghraj Gehi. .. .. Petitioner v/s. 2 MPT-104-105-106-107 1.Anil Menghraj Gehi & ors. .. Respondents WITH Miscellaneous Petition No.107 of 2010 IN Probate Petition No.575 of 1985 Charanjeet Singh Chanderpal @ Chander Kumar Gehi & ors. .. Petitioners v/s. Asha Menghraj Gehi & ors. .. Respondents Mr.Charanjeet Singh Chandrapal, Petitioner-in-person. Mr.Gaurav Joshi with Mr.S.J. Khara for Respondents. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 20th October, 2010 P.C. : 1.The Petitioner, who is appearing in person, has essentially challenged an amendment to the schedule to Testamentary Petition No.571 of 1985 being allowed by the Prothonotary and Senior Master of this Court. The amendment has added one property to the list of properties of the testator. 2.The Petitioner contends that the property was not of 3 MPT-104-105-106-107 the testator but of his father and the property was claimed to be of the testator on the premise that he was the residuary legatee under the Will of his father. That Will has not been probated and no Letters of Administration with the Will annexed of that Will have been granted. The Petitioner, therefore, has challenged the title of the testator in the said property. The Testamentary Court cannot decide the title. That has to be decided in a Civil Suit. 3.The amendment is granted upon an order of fresh service of the citation. The service of the citation is sought to be made under an Affidavit of one Anil Gehi, annexing certain Powers of Attorney, including that of the father of the Petitioner. The Power of Attorney is stated to have been executed pursuant to certain Consent Terms filed by the Petitioner in which the father of the Petitioner gave up certain rights to the said property. The grant of the probate upon the filing of the Consent Terms has been challenged and an order rejecting the challenge has been passed by this Court. An Appeal therefrom is pending. 4.The Power of Attorney is shown to be consequent upon the Consent Terms. The Petitioner challenges the Power of Attorney of his father on the ground that it is forged. The Petitioner has produced a photo copy of 4 MPT-104-105-106-107 another Power of Attorney showing an original endorsement of receipt of that Power of Attorney by the said Anil Gehi. The receipt is dated 23rd June 1993. The Power of Attorney is executed on a stamp paper of 22nd June 1993. The Power of Attorney produced by Anil Gehi to show a fresh service of the citation is on a stamp paper of 25th June 1993. The Power of Attorney produced by the Petitioner runs in 4 pages. The Power of Attorney produced by Anil Gehi runs in 6 pages. There is some interpolation in the date of the Power of Attorney produced by Anil Gehi. 5.The Petitioner has sought to challenge the amendment to the schedule of the Petition on the ground that the fresh citation was not served also. Prima facie, I have been shown two Powers of Attorney. The Petitioner has also filed a Civil Suit. The title of the testator can be considered in the Civil Suit only. The amendment to the Petitions by adding one property of which the title of the testator is challenged can be considered upon service of the citation afresh upon all the heirs of the testator. There is indeed some anomaly in the two Powers of Attorney shown by the Petitioner. 6.It is contended on behalf of the Respondents that the application lacks bona fides and is made after much delay. The property mentioned in the amendment to the 5 MPT-104-105-106-107 schedule of the Petitions is now sought to be developed. Since the suit is filed, the rights of the Petitioner can be best agitated therein. Pending the agitation of the right, the Respondents would be entitled to deal with the property also except if restrained by the Civil Court. However, in view of the aforesaid two Powers of Attorney shown to Court, it would be improper if the Respondents seek to develop the property and obtain orders of various Authorities merely upon the amendment to the Testamentary Petition. 7.Further, the challenge of the Petitioner to the grant itself is pending in Appeal. Under these circumstances, the Respondents shall not act upon the amendment to the Petitions showing the disputed property as the property of the testator for a period of four weeks from today. The Petitioner may apply for any further reliefs only from the Civil Court. 8.The Petitions are disposed of accordingly. (SMT.ROSHAN DALVI, J.)