Kambli 1 App85.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ... APPEAL NO.85 OF 2008 IN MISC.PETITION NO.27 OF 2005 IN PETITION NO.63 OF 2005 ... Cyrus B. Irani & ors. ...Appellants v/s. Kavas K. Nariman ...Respondent ... Mr.P.K.Dhakephalkar, Sr.Advocate with Mr.Roop M. Vasudeo for the Appellants. Mr.J.E.Reis with Mr.Zubin Behram Kamdin i/b Wadia Gandhy & Co. for Respondent. ... CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ DATED: 9th March, 2011 P.C.: 1. By this appeal, the Appellants challenge the order dated 13th December, 2007 passed by the learned single Judge of this court in Misc.Petition No.27 of 2005. Kambli 2 App85.08 2. The facts that are relevant for deciding thispetition are, that one Jahangir Bomanji Boman Behram had made a Will dated 28-3-1919 and Codicil dated 14-1-1944. there were four executors named in the Will. He died on 29-12-1949. Four executors named in the Will filed a Probate Petition and obtained probate of the Will on 14th August, 1950. It appears that all the executors named in the Will expired and therefore one lady by name Banoo filed a petition, which was Petition No.410 of 1994 for Probate De-Bonis-Non, which would have entitled her to administer the property left behind by the deceased testator, which had remained unadministered by the executors. While that petition was pending consideration before the court, the Petitioner Banoo expired on 2-1-2000. It appears that, thereafter, the Testamentory Petition No.63 of 2005 was filed by one K.K.Nariman again for Probate De- Bonis-Non in December, 2004, and Probate De-Bonis-Non came to be granted in his favour on 3rd March, 2005 in Testamentary Petition No.63 of 2005. 3. It appears that during the pendency of the Kambli 3 App85.08 Testamentary Petition filed by Banoo for Probate De-Bonis- Non, Banoo was dealing with the property and she created a Trust of that property. The present Appellants, who are trustees of that Trust, filed Misc.Petition No.27 of 2005 for revocation of the Probate De-Bonis-Non grated in favour of Nariman. That petition was opposed by Nariman and that petition came to be disposed of by the learned single Judge of this Court by order dated 13th December, 2007. The learned single Judge refused to revoke the probate granted in favour of Nariman, because the learned single Judge found that in terms of the provisions of Section 263 of the Indian Succession Act there was no reason to revoke that probate. 4. The main contention of the parties before the learned single Judge was, creation of Trust by Banoo without any probate being granted in her favour was invalid and therefore the property in relation to which the Trust is created continues to be unadministered and therefore, the appointment of Nariman as executor extends to the administration of that property. Whereas, the case of the Kambli 4 App85.08 Trustees was that the creation of Trust by Banoo was valid and therefore as the property is already administered, the appointment of Nariman does not extend to that property. 5. The learned single Judge from the order, it appears , declined to decide that question because according to the learned single Judge that question was already raised in the proceedings that were filed by the tenant Dr.Sequera, who was one of the tenants occupying the property in relation to which the trust was created. We have been informed that those proceedings are presently pending in Supreme Court. In our opinion, the question whether the appointment of Nariman as executor entitles him to administer the property in relation to which trust has been created could have been decided by the learned single Judge, but the learned single Judge declined to decide that question in view of the fact that the same question was pending consideration before another forum. In our opinion, the view taken by the learned single Judge cannot be faulted. Had the question not been pending before another forum, the learned single Judge would have Kambli 5 App85.08 been justified in deciding that question. Therefore, we do not propose to interfere with the order passed by the learned single Judge, save and except to clarify that in case in the proceedings which are already pending or in any proceedings that may be instituted by Nariman, it is held that Banoo had no authority to create the Trust, then appointment of Nariman as executor by order dated 3rd March, 2005 will extend to the property in relation to which the Trust has been created. If on the other hand it is held that creation of Trust by Banoo was valid, it will mean that the property was validly administer by Banoo before Nariman was appointed as executor and therefore appointment of Nariman as executor by order dated 3rd March, 2005 will not extend to that property. 6. Appeal disposed of. (D.K.DESHMUKH, J.) (ANOOP V. MOHTA, J.)