vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2712 OF 2009 WRIT PETITION NO.2712 OF 2009 WRIT PETITION NO.2712 OF 2009 Anaheeta Dinshaw Sadri & Anr. ... Petitioners V/s. The 5th Joint Civil Judge, Senior Division, Pune ... Respondent a/w WRIT PETITION NO.2713 OF 2009 WRIT PETITION NO.2713 OF 2009 WRIT PETITION NO.2713 OF 2009 Anaheeta Dinshaw Sadri & Anr. ... Petitioners V/s. The 5th Joint Civil Judge, Senior Division, Pune ... Respondent Mr.Z.Behramkamdin i/b M/s.Wadia Ghandhy & Co. for Petitioners None for Respondent CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: APRIL 23, 2009 APRIL 23, 2009 APRIL 23, 2009 ORAL ORDER: ORAL ORDER: ORAL ORDER: . Rule. Rule made returnable forthwith in both petitions. 2. These petitions can be disposed of by a common order since the question which arises is identical in both matters. The petitioners in both the petitions are the executors of the will of Keki Rustomji Mody and the will of Dolly Keki Mody who were Parsis. Keki Rustomji Mody and Dolly Keki Mody died on 30.9.2005 and 1.4.2005 respectively. Both the deceased have had left behind : 2 : their respective wills dated 27.3.2003, appointing the petitioners as executors. The Petitioners accepted their executorship and applied for a probate after the death of the Keki Mody and Dolly Mody by filing probate petition bearing Miscellaneous Civil Application Nos.754 of 2006 and 755 of 2006 respectively. These proceedings were filed before 5th Joint Civil Judge, Senior Division, Pune as the property in question was located in Pune. The learned Judge has granted probate to the petitioners, conditional upon each of them furnishes an indemnity bond of Rs.40 lakhs in respect of each of the wills. 2. The Petitioners are aggrieved by the order directing them to furnish indemnity bonds and have, therefore, filed the present petitions. 3. Mr.Behramkamdin, learned Counsel appearing for the Petitioner, submits that the 5th CJSD, Pune has erred in directing the petitioners to furnish the indemnity bonds as there is no provision of law under which such an order could have been passed. He points out the provisions of section 291 of the Indian Succession Act under which a direction for furnishing a bond can be passed while granting Letters of Administration or probate in respect of certain communities. That provision does not apply to wills : 3 : executed by Parsis. He further submits that a probate can be granted under Chapter 4 of the Indian Succession Act to persons of all communities. However, there is no provision in the Chapter under which the Parsis can be directed to furnish an indemnity bond. He further points out that time and again, this Court on its Original Side has granted probate in respect of wills executed by Parsis. However, no indemnity bond was called for in those cases. He, therefore, submits that the order of the 5th Civil Judge Senior Division, Pune must be set to the extent that the petitioners have been directed to furnish indemnity bonds. 4. A probate can be granted under Part IX of the Indian Succession Act. The practice to be adopted for granting probates is included in Chapter IV of this Part. Under section 264, the District Judge has been empowered to grant or revoke probates and letters of administration in cases within his district. A Petition for Probate is to be file din the manner stipulated u/s 276, 280 of the Act. 5. A bond can be directed to be furnished by the District Judge u/s 291. Section 291 reads as under: Administration - bond.-(1) Every person to whom any grant of letters of administration, other : 4 : than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties; engaging for a the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct. (2) When the deceased was a Hindu, Mohammadan, Buddhist, Sikh or Jaina or an exempted person - (a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate; (b) the District Judge may demand a like bond from any persons to whom probate is granted. 5. Thus under subsection (2), a bond may be directed to be furnished by the District Judge by a person who is granted a probate i.e. the executor of the will. However, this provision is applicable only when the deceased was a Hindu, Mohammedan, Buddhist, Sikh, Jain or an exempted person. The Legislature has not made any reference to Parsis in this subsection. Therefore, in my view, to direct the executors of a will of a Parsi to furnish an indemnity bond for granting probate would be without jurisdiction. 6. Writ Petitions are therefore allowed. The order impugned is modified to the extent that the petitioners shall be granted probate of the last will of Keki Rustomji Mody and Dolly Keki Mody without having to furnish an indemnity bond of Rs.40 lakhs each, alongwith a solvent surety in respect of both the wills. : 5 : 7. Rule made absolute accordingly in both Petitions.