KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.154 OF 2009 IN TESTAMENTARY PETITION NO.90 OF 2009 Smt.Nirmala Govind Patil .. Petitioner Vs. Smt.Urmila Sandeep Patil .. Respondent ---- Mr.Mayur Khandeparkar @ Ms.Sapna Raichure i/by T.N.Tripathi & Co. for the Petitioner. Ms.Heena Mody for the Respondent. ---- CORAM : R.S.MOHITE, J DATE : 6/8/2010 P. C.: 1 This is a Notice of Motion taken out by the original petitioner. The first prayer is to call for record from the police department pertaining to the benefits received by the widow of the deceased. The 2nd prayer is for dispensing of justification of surety of the widow as per rule 422 of the Bombay High Court (O.S) Rules. In so far as 1st prayer is concerned, it is seen that the petitioner has filed an additional affidavit in support of the Notice of Motion affirmed on 10.2.2010. In paragraph-2 of the said affidavit, certain amounts which have been withdrawn by the KJ 2 wife are mentioned. The amount paid to the wife by the Commissioner of Police is quantified at Rs.7,56,496/-. The wife is also receiving family pension of Rs.7000/- P.M. This aspect of the matter is admitted by the Advocate for the respondent after taking instructions from the respondent who is present in the Court. In the circumstances, prayer clause-(a) is not required to be granted. In so far as prayer clause-(b) is concerned, there is a serious dispute between the parties as to what was the estate of the deceased. The schedule to the main petition, only mentions certain monies which are in the nature of movable properties. The reply however, indicates that there was a tenancy standing in the name of the deceased who is husband of the respondent. A rent receipt dated 1.5.2008 standing in the name of the deceased/husband of the respondent is annexed to the reply. Another receipt dated 27.4.2004 which is a receipt standing in the name of the petitioner is also annexed to the reply. 2 In the rejoinder, the case of the petitioner is that the tenancy was actually of her husband and it was only as a matter of convenience that the rent receipts were being issued in the name of her son. KJ 3 3 It is the case of the respondent that when a succession certificate is applied for, it is the duty of the petitioner to disclose the estate of the deceased which stood in the name of the deceased at the time of his death. It is her case that main valuable of the deceased was not his retirement benefits but the tenanted premises which stood in his name on the date of his death. She is claiming the tenancy rights in respect of this property and has filed a declaratory suit in the Court of Small Causes, which is pending. 4 As regards declaratory Suit, Advocate for the petitioner brings to my notice that an injunction notice taken out by the respondent has been dismissed on the finding that there is no evidence to show that she was residing with her husband. This finding is prima facie in nature. In the circumstances, since there is a serious doubt as to what would amount to be the whole estate of the deceased within the meaning of rule 422 (c), I am not inclined to exercise discretion merely because some part of the post retirement benefits have been taken by the wife. Prayer clause-(b) is therefore, rejected. The bond which is required to be furnished will be in accordance with the rules. (R.S.MOHITE,J.) KJ 4