1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 33 OF 1993 IN TESTAMENTARY PETITION NO.127 OF 1992 P. N. Garg . ..Plaintiffs. Vs. G. N. Agarwal ...Defendant. Mr. Gaurav Agarwal, for the Plaintiff. Mr. L. K. Bulchandani i/b Kamal & Co. for the defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 9th February, 2010. P.C.- 1. In a petition for probate of the last will and testament of Nathmal Jankilal Agrawal @ N. J. Agrawal, all the concerned parties/defendants and their legal heirs have filed affidavit stating their no objection to grant of probate to the plaintiff. The following are the legal heirs who have filed affidavits. i) Mrs. Manju Gopal Agarwal, Defendant No.1A, ii) Mr. Harshvardhan Gopal Agarwal, defendant No.lB. Iii) Joint consent affidavit of Mrs. Geetika Sharad Goyal, defendant no.1C and Mrs. Shiwani D Kataruka, Defendant No.1D. iv) Mrs. Kamala Chandraprakash Gupta, Defendant No.1E. v)Mrs. Pushpa Sharad Harlalka, defendant No.1F. 2 vi)Mrs. Sushila Gopal Agrawal defendant nO1G. 2. All the above affidavits are part of the record. 3. The basic events of the background of the matter are as under: Dates Events 25.2.1991 Last will and Testament of Nathmal Jankilal Agrawal alias N. J. Agrawal, the Testator executed in Mumbai bequeathing his various movable and immovable properties to the several beneficiaries set out in the will. Shri. P.L. Garg appointed as an executor and Shri. Hanumandas J. Agrawal appointed as Co-executor under clause 2 of the Will. 28.2.1991 Shri N.J. Agrawal, the Testator expired inMumbai leaving behind him his on viz., Mr. Gopal N. Agrawal and his three daughters viz., Mrts. Kamala C Gupta, Mrs. Sushila G. Agrawal and Mrs. Pushpa S. Harlalka as his only surviving legal heirs and representatives. 18.02.1992 Petition No.127 of l992 filed for Probate of the last will and Testament of Late Shri N.J. Agrawal before this Hon’ble Court byMr. P.l. Garg, the executor applied under the Will. 05/07/93 The above petition was contested by Mr. Gopal N. Agrawal, the original defendant by filing his Caveat and the petition was converted into the above Suit No. 33 of 1993. 05/02/94 Notice of MotionNo.270 of l994 taken out by Defendant in above Suit for appointment of Court Receiver and for directions to the Executor and all claiming under the Will to file in this Court Statement of Accounts of the realizations and Disbursements made in respect of the properties of the deceased testator. 3 16.06.1994 Notice of Motion partly allowed and Plaintiffs directed to furnish details of properties. 17.04.2009. Pending the hearing and final disposal of the above Suit, the original plaintiff and executor ie Shri P.L. Garg expired. 11.06.2009. Pending the hearing and final disposal of the above suit, the original defendant ie Shri. Gopal N. Agrawal died intestate in Mumbai leaving behind his wife ie Mrs. Manju G. Agrawal,his son ie Mr. Harshvardhan G. Agrawal and two daughters viz Mrs. Geetika S. Goyaland Mrs. Shiwani D. Kataruka as his only surviving legal heirs and representatives. 25/06.2009 Release Deed executed by Mrs. Geetika S. Goyal and Mrs. Shiwani D. Kataruka, relinquishing and releasing all their joint rights, title and interest inherited by them in the estate of their deceased father, Late Shri Gopal N. Agrawal including the benefits that they would be entitled to as the legal heirs of their deceased father ie Late Shri Gopal N. Agrawal, the original Defendant in the above suit in favour of Mr. Harshvardhan G. Agrawal and Mrs. Manju Agrawal. 25.08.2009 Order of this Hon’ble Court directing the original defendant’s beneficiary to take out appropriate application in view of clause 1 and 2 of the Will of the deceased testator. 31.08.2009 Chamber Summons No.93 of 2009 filed in the above suit by the original defendant’s beneficiaries pursuant to the directions of this Hon’ble Court under its order dated 25.08.2009, for substituting the name of Late Shri P.L. Garg with Mr. Hanumandas J. Agrawal, the co- executor appointed under clause 2 of the Will and also for impleading the legal heirs and representatives of the deceased testator. 4 15.09.2009 15.09.2009 Chamber Summons No.93 of 2009 allowed in terms of prayer clause (a), (b) and (c) by this Hon’ble Court. The order of Hon’ble Court. 1. This Chamber Summons is taken out by the Applicant to delete the name of the original Petitioner-Plaintiff and substitute the name and to delete the name of the original defendant who expired therefore substitute the legal heirs of the Defendant. 2. Normally, after the death of executors, there is no question of bringing legal heirs on record. Here is a case where in the Will itself, a co- executor/joint/alternate executor was appointed under clause 2 of the Will dated 25.02.l99l of the deceased testator. The averments so made in para 2 and 3 and as there is no opposition and in the interest of justice, I am inclined to accept this avermnets. A will is a document which is need to be interpreted and respected as it stand. It is difficult to understand what was in the mind of deceased, now to interpret or enlarge the scope of the said Will. Therefore, having so recorded and as mentioned in the Will, in my view, there is no hurdle or any legal bar to consider the clause 2 of the Will to mean that the intention was there to appoint a co- executor/joint/alternate executor. If that is so, and considering the fa t that there are no other legal heirs than the proposed defendants, I am inclined to grant this Chamber Summons inthe interest of justice. 3. 5 3. Resultantly, the Chamber Summons is allowed in terms of prayer clauses (a), (b) and (c) with liberty. No order as to costs. October, 2009 The above suit was amended by substituting Shri Hanumandas J. Agrawal as the Plaintiff and impleading the legal heirs and representatives of the deceased testator and the original Defendant as Defendant Nos 1A to 1G in the above suit. 17.11.2009 Consent Affidavit filed by Defendant No.1B ie Mr. Harshvardhan G. Agrawal in the above Suit foregoing and waiving all his rights, claims and benefits in the above suit and under the Release Deed dated 25.06.2009 in favour of Defendant No.1A ie Mrs. Maju G. Agrawal. 17.11.2009 joint Consent Affidavit filed by Defendant Nos 1C and 1D ie Mrs. Geetika S Goyal and Mrs. Shiwani D. Kataruka in the above Suit foregoing and waiving all their rights, claims and benefits in the above suit in favour of Defendant No.1A ie Mrs. Manju G. Agrawal and Defendant No.1B ie Mr. Harshvardhan G. Agrawal. 17.11.2009 Consent Affidavit filed by Defendant No.1E ie Mrs. Kamala C. Gupta in the above suit foregoing and waiving all her rights, claims and benefits in the above suit infavour of Defendant No.1A ie Mrs Manju G. Agrawal. 17.11. 2009 Consent Affidavit filed by Defendant No.1F ie Mrs. Pushpa S.Harlalka in the above Suit foregoing and waiving all her rights, claims and benefits in the above suit in favour of Defendant No.1A ie Mrs.Manju G. Agrawal. 17.11.2009 Consent Affidavit filed by Defendant No.1G ie Mrs.Sushila G Agrawal in the above suit foregoing and waiving all her rights, claims and benefits in the above suit in favour of Defendant No.1A ie Mrs. Manju G. Agrawal. 02/02/10 Consent Affidavits filed by Defendants for grant of Probate in favour of the Plaintiffs. 6 4. In view of above and as there is no objection of any kind from any defendants and the concerned parties to the proceeding for grant of probate and as there are no other legal heirs of defendants and/or no third party/person will be affected parties, I am inclined to grant the petition as prayed 5. Resultantly the petition for probate as prayed 6. granted in accordance with law. The Office to proceed accordingly. No costs. 7. Certified copy expedited. ( ANOOP V. MOHTA, J.)