1 TS-16 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Testamentary Suit No.16 of 1994 IN Testamentary Petition No.394 of 1990 Harshad Kantilal Patel .. .. Plaintiff v/s. Nitish K. Patel .. .. Defendant Dr.Birendra Saraf with Mr.Mehul Shah and Mr.A.G. Shah for Petitioner-Plaintiff. Ms.Rajani Iyer, Sr.Advocate with Mr.Yashodhan Divekar with Ms.P.N. Shah i/by Divekar & Co. for Defendant-Caveator. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 30th August, 2010 P.C. : 1.The Petition has been filed for grant of Letters of Administration of the estate of the deceased husband of the original Petitioner No.1/Plaintiff No.1 and the deceased father of the original Petitioner No. 2/Plaintiff No.2. The original Petitioner No.1 having expired, the grant is prayed for in favour of the present Petitioner/Plaintiff. 2.The deceased father of the Petitioner expired leaving 2 TS-16 behind him one widow and 10 children. All the siblings of the present Petitioner have consented for issue of the Letters of Administration in favour of the Petitioner except the Caveator who is shown at item No. 10 in the list of the relatives of the deceased. 3.The Caveator is the brother of the Petitioner. The Caveat is filed on the ground that a Will of the deceased was produced but was thereafter not shown and acted upon and that the entire estate is not sought to be administered. Upon the pleadings between the parties contained in the Petition for grant of Letters of Administration and the Caveat of the Caveator, Justice Daga framed the following issues on 11.2.2008:- ISSUES (1)Whether the Plaintiff-Petitioner is entitled to the grant of Letters of Administration of the estate of the deceased Kantilal Patel, who died intestate on 18th January, 1985. (2)Whether the Defendant-Caveator proves the alleged Will of the deceased propounded by him by producing the Probate thereof. (3) Whether the Defendant-Caveator proves that the deceased owned by any specific property over and above that appearing in the Schedule I, Exh. A to the above petition. 3 TS-16 (4)If the answer to the above Question No.3 is in the positive, then whether this Hon ble Court as the Testamentary Court can go into Questions of title to the property of the deceased. (5)What relief and order ? 4. The Caveator has not filed any Petition for grant of probate upon the Will or even a copy of the Will or upon his oral evidence of the execution of the Will as required under Sections 237 and 238 of the Indian Succession Act. Counsel on his behalf has fairly conceded that the Petitioner has not sought to prove or has been able to prove the Will and consequently, that ground is given up. 5.The other ground, which remains in the Caveat, is that the Schedule annexed to the Petition does not disclose the correct estate left behind by the deceased at the time of his death. It is now an admitted and conceded position that there are two immovable properties of the deceased. One of them is tenanted and would have to be transferred to certain Co-operative Society which would be formed. The other property is Kantilal Mansion where some of the heirs of the deceased reside. 6.Ms.Iyer on behalf of the Caveator stated that that is the main estate of the deceased in the administration 4 TS-16 of which the Caveator desires to partake. 7.Ms.Iyer concedes that issue Nos.(2), (3) and (4) do not come for consideration. The only issue, which remains to be considered being issue No.(1) aforesaid, is whether the Petitioner-Plaintiff is entitled to be granted the Letters of Administration of the estate of his deceased father. 8. Issue No.(1) :The Petitioner has led oral evidence. He has been extensively cross-examined. The Caveator has not led any evidence. He desires to adminster the estate along with the Petitioner or to be informed of each act of the administrator in administration of the estate of his deceased father. 9.Ms.Iyer argued that upon the grant of the Letters of Administration to the Petitioner, the Petitioner may mortgage, lease or otherwise transfer that property without the consent of the Caveator or without bringing to his knowledge the facts relevant for such transfer. 10.Mr.Iyer also drew my attention to the provisions contained in Section 307 of the Indian Succession Act, 1925 (the Act), the relevant portion of which runs thus:- 5 TS-16 307. Power of executor or administrator to dispose of property.- (1) Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit. (2) If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by sub-section (1) shall be subject to the following restrictions and conditions, namely:- (i) The power of an executor to dispose of immovable so vested in him is subject to any restriction which may be imposed in this behalf by the Will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order. (ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,- (a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 211, or (b) lease any such property for a term exceeding five years. (iii)A disposal of property by any executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person 6 TS-16 interested in the property. (3) ...... (4) ...... (Underling supplied) Consequently, the administrator shall have to administer the estate of the deceased and exercise the powers of such administrator under Chapter VI of the Indian Succession Act which includes the power of the administrator to dispose of the property which forms the estate of the deceased only after obtaining the permission of the Court in that behalf. 8.Ms.Iyer further drew my attention to Section 317 under Chapter VII of the Act which deals with duties of an administrator. Section 317 of the Indian Succession Act runs thus:- 317. Inventory and account.- (1)An executor shall, within six months from the grant of probate or letters of administration, or within such further time as the Court which granted the probate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner, within one year from the 7 TS-16 grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of. (Underlying supplied) Hence the Petitioner, upon being granted the Letters of Administration, would inter alia have to account for the estate as mentioned in Section 317 of the Act also. 9.It is seen that these sections themselves are an inbuilt measure to protect the apprehension of the Caveator against the acts of the administrator. Ms.Iyer concedes that this measure would protect the Caveator. 10.Besides the entire evidence led by the parties (which is contained in the Petitioner having led evidence and being cross-examined by the Caveator only) does not show how the Petitioner cannot be granted the Letters of Administration. The Caveator has not examined himself to make out any case. 11.The Letters of Administration, therefore, would have to be granted to the Petitioner-Plaintiff subject of course, to his powers and duties under Chapters VI and VII of the Indian Succession Act to be enjoyed and performed by him respectively. Hence issue No.(1) is 8 TS-16 answered in the affirmative. 11.Hence, the following order:- ORDER (i)The Letters of Administration of the estate of the deceased Kantilal Patel is granted to the Petitioner- Plaintiff, who is the son of Kantilal Patel, who died intestate on 18.1.1985. (ii)Office shall issue the Letters of Administration. (SMT.ROSHAN DALVI, J.)