1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 50 OF 2008 IN TESTAMENTARY PETITION NO. 808 OF 2007 Naresh Hariram Choithani ...Petitioner Vs. Anand Aildas Choithani ...Applicant Ms.Shilpa Kapil for Petitioner Mr. S.S. Lanke for Applicant CORAM: SMT.ROSHAN DALVI, J. DATED: 24TH JUNE, 2008 P.C. 1. Letters of Administration has been issued in respect of the property of one Hariram Aildas Choithani on 6th February, 2008 to the Petitioner in the above Petition who is the son of the deceased. 2. The applicant has applied for revocation of the Letters for Administration. The deceased expired on 26th June, 2000. The applicant claims interest in the 1/2 portion of the Room No.1, Plot No.32, Pawai Chowk, Mulund Colony, 2 Mulund (West), Mumbai-400 082. It was one of the properties for which the Letters of Administration has been granted. 3. The Applicant is the brother of the deceased. The Petitioner is the son of the deceased. There is a dispute with regard to the said room between the uncle and nephew. 4. It is the case of the Applicant, that the deceased was issued a Sanad on 8th August, 1984 in respect of the aforesaid room. The property Register Cards have shown the name of the deceased alone in respect of the said property. The Applicant claims to have been residing with the deceased brother as a member of joint family consisting of 2 brothers, their parents, 3 unmarried sisters and the wife of the deceased. 5. The Applicant claims to have contributed 50% of the cost of the purchase of the block, as he was working in the B M C as Assistant Assessor and Collector. The cost is stated to have been paid by both of them. There is no substantiating evidence in that behalf. That the Deed of Conveyance was in the name of deceased has been admitted. 3 6. It is shown by the Petitioner that the amounts required to be paid have all been paid by the deceased alone, as mentioned in his letter dated 17th October, 1966 addressed to the office of the Regional Settlement Commissioner. 7. It is the case of the Applicant that because there were quarrels in the family of the 2 brothers, the deceased requested the Applicant to occupy the Western side of the block and accordingly gave him 50% of his share. It is his case that he along with his family members started residing on the “Western side 1/2 of the original portion” attached to Room No.2 of Block No.32 while “Eastern side portion of the said Block No.32 of Room No.1” was retained by his deceased brother. 8. It is the case of the Petitioner, that the Applicant never was a member of the family of the deceased and that in the application form for allotment of the said premises, the deceased had shown the names of his mother and three sisters only as members of the family as required at that time. 9. The Applicant claims that his brother executed an 4 affidavit dated 28th December, 1985 transferring the 1/2 portion of the property being 103 sq. yds out of 206 sq. yds mentioned in the Conveyance Deed/Sanad, issued by the Government of Maharashtra in his name, to the Applicant. The affidavit is shown to be executed on a stamp paper dated 9th December, 1985 produced in the name of the Applicant himself. It is shown to be executed in the Court of Metropolitan Magistrate. Strangely the Applicant has got the said affidavit registered with the Sub-Registrar of Assurances on 10th May, 2005 under a declaration dated 31st May, 2005 unilaterally made by the Applicant, 5 years after the death of the deceased brother which is in fact produced by the Petitioner as Exhibit-J to his affidavit in reply. The Applicant claims that the affidavit is a registered document and hence, admissible in evidence and has claimed 1/2 portion of the Room No.1 on the premise that it is registered. It may be mentioned that the entire concept of registration is misunderstood by the Applicant and completely misconceived. Registration is a procedure to be adopted by the executant of the document to show that he admits execution, in the office of the Registrar, so that document becomes admissible in evidence. Registration is not a mere formality to be undertaken by any party relying upon an unregistered document to obtain a stamp of the Registrar's 5 office for relying upon the document which is compulsorily registerable under Section 17 of the Registration Act, but is not registered by the executant to claim the privilege of registration. 10. The Applicant claims the creation and declaration of his interest, as well as the transfer, and assignment of the title in the immovable property being Room No.2 described as mentioned in the affidavit, stated to have been executed by his brother on 28th December, 1985, which remained unregistered during his life time until his death. 11. It is contended on behalf of the Petitioner that the affidavit is sham, bogus, fabricated anti-dated and forged by the Applicant. 12. Consequently the mere registration of the affidavit stated to be executed by the Applicant's brother, by the Applicant after the death of his brother cannot take the case of the Applicant any further. 13. The case of the Applicant that 1/2 the portion of the room belongs to him as was transferred to him under the affidavit filed by his brother, registered by the Applicant 6 cannot be accepted. Hence, his case that, that part of the property did not belong to his brother, for which Letters of Administration could be granted by this Court, is rejected. The Letters of Administration have been correctly granted. They cannot be revoked. 14. The Applicant's case is seen to be false. The application is dismissed with costs fixed at Rs.3000/-. 15. Notice of Motion is disposed of accordingly. (SMT. ROSHAN DALVI, J.)