1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION MISC.PETITION NO.16 OF 2008 IN TESTAMENTARY SUIT NO.34 OF 2004 IN TESTAMENTARY PETITION NO.663 OF 2000 Atul Tukaram Hule .. Petitioner Versus Sulekha Satish Chavan .. Caveatrix Ms.K.C.Nichani i/b. Ms.A.R.Kamath for plaintiff/ petitioner Mr.A.B.Shrikhande for petitioner in MPT 16 of 2008 Mrs.Sulekha Satish Chavan Caveatrix in person CORAM : S.C.DHARMADHIKARI, J. DATE : 27th February 2009. P.C. . This is a Miscellaneous petition by a Charitable Trust, in the above Testamentary Petition. It is filed for removal of the first respondent as an Executor. The Misc.Petition is by the Principal Beneficiary, a Public Charitable Trust. 2 2. It is stated that Hanumant Sadashiv Rane (deceased) expired at Mumbai on 2nd March 2000. He left behind his Will and Testament dated 9th May 1996. 3. One Atul Tukaram Hule (respondent No.1) and Anant Tukaram Hule are the Executors appointed under the last will. 4. First respondent applied for probate by Probate Petition No.663 of 2000. He stated that Anant Hule the other executor renounced his right to apply. The probate petition is pending. Second respondent is a Caveatrix appearing in person. She is married daughter of the deceased. Respondent Nos. 3 to 5 are the widow, son and second married daughter of the deceased. Beneficiaries state in the petition that the petitioner Trust/ beneficiary gets 75% of the self-acquired property of the deceased under 3 clause 7 of the last will. The petitioners are also beneficiaries under clause 12. 5. It is stated that the beneficiary has been requesting the petitioner to obtain a probate of the will of the deceased since 2002. There were meetings held in 2002-03 and 2004. The grievance of the Caveatrix is also referred to in paras 8 and 9 of the affidavit. 6. It is stated in para 10 that a copy of the petition was received with a forwarding letter dated 26th August 2004. The petitioner is also informed that respondent No.2 has filed a Caveat dated 27th August 2004 and an affidavit in support of the caveat affirmed on 2nd September 2004. It is then stated by the beneficiary that the caveat of the second respondent discloses that there are certain assets of the deceased which are not disclosed by respondent No.1 in the petition and that is adversely affecting the 4 interest of petitioners. These allegations are made in para 12 to 14 of this petition. The principal contention is that the probate petition is filed in the month of July 2000 and the process required for grant of probate has not been completed till date. It is in such circumstances and alleging delay on the part of the petitioners in distributing the assets that the beneficiary prays that the respondent No.1 be removed as the executor and this Court should allow the beneficiary petitioner to proceed and obtain Letters of Administration with will annexed. 7. This Misc. petition was filed on 18th February 2008. On this petition being served the first respondent, executor, Atul who is today 65 years of age has filed an affidavit in reply. After setting out as to how the deceased was known to Hule family, it is stated that the deceased died of Parkinson desease at the age of 5 72 years. During his life time he had requested his nephew to stay with him and to look after him. The nephew was not called upon to pay any compensation to the deceased during his life time. Nephew has continued to stay after the death of the deceased. He has not been paying any compensation. The deceased expired in the year 2000 and it is stated in para 7 of the affidavit in reply affirmed on 9th January 2009 as under:- "7. I say that since, the death of deceased Hanumant Rane, I have out of my own pocket paid the maintenance charges, repair charges as well as non-occupation charges, in respect of the said flat, which is till date approximately of Rs.1,79,000/-. I say that as an Executor, I am ready and willing to complete my obligation as an Executor. I am ready and willing to complete my 6 obligation as an Executor after obtaining the probate from this Hon’ble Court. I say that Sulekha Chavan at one stage had also tried to enter the premises and take possession of the said flat with respect to which a complaint was registered with Nehru Nagar Police Station. I further say that even during the life time of the deceased Hanumant Rane, who was the father of the caveatrix, the said daughter never took any care of him in fact soon after his death the wife and children of late Hanumant Rane entered into the flat and took away all the documents including the original will and thus, made my task difficult deliberately and intentionally so that to hamper me in my obligation under the will, which also resulted in my inability to mention some of the items of the deceased in the schedule to the petition for grant of 7 probate. The same was done in my absence since, at that relevant time I was out of station". 8. The second respondent Sulekha Chavan who is appearing in person has filed her affidavit and she has stated that the person, Vishnu Rane who is residing in the flat is not at all the nephew of the deceased but only known to him. The flat is occupied by Vishnu Rane and the electricity bill is issued in the name of Anita Rane, daughter of Vishnu Rane - the person occupying the said flat. This is a case where Vishnu Rane is trying to usurp the property of the deceased and no steps are being taken to protect the said property. Further, it is her allegation that in the probate petition, several properties and assets are omitted by the petitioner. The petitioner in the miscellaneous petition has filed a rejoinder affidavit and has repeated and reiterated the contents of the petition. Even 8 the petitioner trust has stated that the said Vishnu Rane is not at all a relation or nephew of the deceased but is occupying the property wrongfully. Further the beneficiary reiterates the contention that 75% of the estate/ share has to come to the petitioner Trust. In such circumstances, it is necessary and in the interest of justice that the estate is managed properly. Its administration is taken over by persons who could be trusted by the beneficiary. 9. When the miscellaneous petition was listed along with main matter for framing issues, I heard parties extensively. 10. Ms.Nichani appearing for executor Atul Hule has stated that when the second respondent married daughter of the deceased has pointed out that some assets and properties have been omitted from the probate petition, a chamber summons has been moved for amendment of the same, which has 9 been allowed. Thereafter, these assets and properties are included in the petition. Further, Ms.Nichani stated that the trust properties are being fully protected and created. She states that the beneficiary need not apprehend that it would be deprived of its due share in the estate of the deceased. Ultimately, the will would be the guiding document and the property and the estate would be administered according to the wishes of the testator/ deceased. There should not be any apprehension on that count. She states that if the objections to the grant of probate are withdrawn, the petitioner would take prompt steps and obtain a probate of the will as expeditiously as possible. 11. The second respondent who is appearing in person stated before me that it is her desire and anxiety that the beneficiary, who is the petitioner in the miscellaneous petition is a charitable trust. It is named as "Barrister Nath 10 Pai Sevangan". It is in Malvan, Dist.Sindhudurg. The deceased was well-wisher of this Trust. He desired that the Estate should go to this Trust. Even the second respondent has filed a caveat only with that intent and purpose. She does not dispute the will. She does not dispute that the property goes to the exclusion of the children, to this Trust. It is the self-acquired property of the deceased, which he has bequeathed and Respondent No.2 and other family members have no objection if it is given to the beneficiary in the manner indicated in the will. She is ready and willing to withdraw her caveat and the affidavit. In other words, she is ready and willing to give up her rights as a caveatrix and the affidavit in support filed by her. However, she prays that this Court must give directions to the petitioner to obtain a probate of the will and administer the estate in accordance with the wishes of the testator. The distribution and disbursement must take place as expeditiously as 11 possible. 12. In the light of the fact that the caveatrix gives up her objections and has withdrawn her caveat, so also the affidavit in support thereof, it is not necessary to frame Issues. The matter is no longer a contested matter. There will not be any impediment for the petitioner now to obtain a probate of the last will and testament of the deceased and the Registry to take steps and issue the same as expeditiously as it can. This matter should be given priority by the Registry. 13. As far as Miscellaneous petition is concerned, since the petitioner in the original petition is being given an opportunity to show his bonafides and obtain a probate, so also in the light of the changed circumstances noted above, it is not necessary to pass any orders, much less, removal of Atul Hule as an executor. 12 Needless to state that if the beneficiary has not been given the benefit in terms of the will, even after the probate has been obtained, then, it will be open for the Beneficiary Trust to adopt appropriate proceedings, including applying for removal of the Executor, at a subsequent stage. The Caveatrix also can approach the Court. If no steps are taken to obtain the probate or after the same is obtained, steps are not taken for distribution and disbursement of the the estate. All pleas are kept open. Miscellaneous Petition is disposed of with this liberty. 14. Registry is directed to give priority as above and after the petition is processed, should issue probate. Petitioner is directed to take expeditious steps for distribution and disbursement of the estate in accordance with the will. Petitioner is granted three months’ time from the date the probate is obtained by him to take necessary steps. 13 15. Needless to state that the steps that are required to be taken would include initiation of proceedings/ legal action for removal of the person who is wrongly occupying the property of deceased. (S.C.Dharmadhikari, J)