1 nmt.48.10-ts.28.2009-tp.1112.08.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 48 OF 2010 IN TESTAMENTARY SUIT NO. 28 OF 2009 IN TESTAMENTARY PETITION NO.1112 OF 2008 Sunil Kewalkrishan Chopra ...Plaintiff Vs. Manoj Srikrishan Kapur ...Defendant Mr. Tejas Vora a/w. Mr. D.R. Mishra for Plaintiff Mr. Vatsal Shah i/b. Bilawala & Co., for Defendant CORAM : SMT. ROSHAN DALVI, J. DATED : 14TH JUNE, 2011 P.C. : 1. The Petition is filed for probate of the last Will and Testament of the deceased Krishan Kapur who died on 22nd November 2007. The Will is dated 18th September 2001. The Petitioner is his son-in-law. The Caveator is his son. The Will has essentially bequeathed 40% of the estate to the daughter of the deceased who is the wife of the Petitioner and 30% each to the two grand-daughters who are the daughters of the Caveator. The Petition has not been probated in view of the Caveat filed by the Caveator. Pending the Petition the Caveator has applied for the removal of the Executor and appointment of the Administrator. He has not filed a separate Petition. He has also not filed an administration suit upon payment of ad velorum Court fee. He has nevertheless made various disputes with regard to the administration by the Petitioner. 2 nmt.48.10-ts.28.2009-tp.1112.08.sxw 2. Of course the Petitioner cannot administer the estate of the deceased pending the grant of probate. The Petitioner has taken steps in administration. Consequently, orders and directions have been passed for protection of the estate and also in essence for taking certain accounts. 3. The Petitioner’s wife has liquidated certain mutual funds. The Petitioner claims that the mutual funds which were sold are reinvested. However they are reinvested not in the name of the deceased, but in the name of the wife of the Petitioner who is the daughter of the deceased. 4. The Petitioner has disclosed certain further bank accounts. These bank accounts further disclose yet other investments. The Petitioner would have to explain how the estate has been maintained and not depleted. The Petitioner would have to show how each of these investments has continued. 5. For the verification of such accounts the Petitioner has produced certain statements of bank accounts. The Respondent has been given copies thereof. Upon verifying entries the estate of the deceased would have to be ascertained. 6. The Petitioner has not filed income tax returns of the estate despite directions of the Court. The returns would have to be filed also. 7. For all the above purposes a professional Chartered Accountant would have to be appointed. Initially the Accountant would verify 3 nmt.48.10-ts.28.2009-tp.1112.08.sxw each of the entries in the bank accounts of the deceased and the investments made by the deceased as also further investments made by the Petitioner and/or his wife before the grant of probate. 8. The Accountant would have to ascertain whether all the investments of the deceased lie invested or reinvested in the name of the estate and if not, to see how such investments could be brought back into the estate. The Accountant would also have to file returns. 9. By consent of the Counsel on behalf of both the parties M/s. Jitendra Sanghvi and Company are appointed Chartered Accountants to verify the estate and file the returns as required. 10.The Defendant/Caveator shall initially pay the fees of the Chartered Accountant as fixed by the Chartered Accountant. Upon and after the verification of the accounts is complete the Chartered Accountant shall file a report with regard to each of the investments of the deceased. If it is seen that the Petitioner has mismanaged the estate, the Defendant/Caveator shall be reimbursed the fees paid by him as acknowledged and receipted by the Chartered Accountant either from the estate or by the Plaintiff at the hearing of the suit. 11.The parties shall appear before the Chartered Accountant initially on 15th July 2011 at 5 p.m and thereafter as directed by the Chartered Accountant. 12.The Chartered Accountant shall be entitled to get the actual verification done by his Assistant or Associate. 4 nmt.48.10-ts.28.2009-tp.1112.08.sxw 13.For the purpose of verification parties or their Chartered Accountant shall be entitled to be present and to explain the entries or seek clarifications. 14.The Chartered Accountant either himself or through his Assistant or Associate shall complete the aforesaid work expeditiously. 15.In view of the aforesaid order the Counsel for Defendant/Caveator states that he does not press the prayer for removal of the Plaintiff/Petitioner as Executor. 16.Notice of Motion is disposed off accordingly. 17.It may be mentioned that there have been a number of dates of hearing of this Notice of Motion when, from time to time directions have been sought and passed for specific movable assets. It was, therefore, deemed proper to dispose of this application by making a reference of this dispute to a professional Chartered Accountant. Both Counsel agreed to the appointment of a practicing Chartered Accountant who would be conversant with such work. Since they could not name a Chartered Accountant, the Court named the firm of Chartered Accountants known to Court so that the entire dispute could be resolved and accounts taken. In view thereof, it would not be appropriate for this Court to take up this matter in future. 18.Hence the Suit and Petition shall be removed from the board of this Court. (SMT. ROSHAN DALVI, J.)