1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION MISCELLANEOUS PETITION NO. 20 OF 1999 IN TESTAMENTARY PETITION NO.245 OF 1995 Mr. P.V.Chavan. ..Petitioner. Vs. Sushma V.Chavan and ors. ..Respondents. Mr.S.D.Mogre for the petitioner. None for the Respondent. CORAM : R.S. MOHITE, J. DATE : 18th June, 2010 P.C. :- 1 This is a petition filed by the original respondent in original Petition No.245/1995 for amendment to the Letters of Administration issued on 17.4.1996 (wrongly mentioned as 16.3.1995) in the prayer clause of the Misc. Petition by deleting the individual properties of the applicant. According to Advocate for the applicant, the properties mentioned in item Nos. 25 and 26 in the Letters of Administration as granted are the applicants individual properties. Petition further seeks to cancel the appointment of the original petitioner made by consent by order dated 8.11.1995 passed in Notice of Motion subject to their rendering full accounts up to date within three months. The last prayer in the Misc. Petition is for restraining the original petitioner from interfering with the administration 2 of the estate of the deceased carried out by the applicant from the date of the orders onwards. 2 The facts of the case are as under. Original petition being Petition No.245/1995 was filed by one Sushama V. Chavan who was widow of the deceased Vijaysingh Chavan . Her married daughter Sujata Rajendra Kamire was the joint petitioner and the petitioners sought grant of letters of administration in respect of the property and credits of the deceased. 3 Schedule 1 of the petition as filed did not contain any immovable property and only referred to certain shares and debentures in the nature of movable properties. It was the case of the original petitioners that the Letters of administration was required in respect of such movable property as some of the concerned companies were insisting upon producing a Letters of Administration. In this petition, the present petitioners entered caveat and filed Notice of Motion No.2386/1995 with a prayer that grant may not be issued as a family settlement was not disclosed. When the notice of motion and petition came up for hearing before the court, parties accepted that there was a family settlement and 3 therefore. caveat was dismissed for non prosecution and the petition was directed to be processed by the department for the issue of letters of administration. It is the case of the petitioner that after this order was passed they were expecting that the letters of administration would be issued in respect of the property as per Schedule I of the petition but it appears that after passing of this order, without any notice to the applicant, the Schedule of the property was amended and two immovable properties were introduced in Schedule I. Ultimately when Letters of administration were issued on 17.4.1996 these two movable properties were included in the letters of administration. When the present applicant learnt about this , he filed the present Misc. petition and therein he took a notice of motion No.3143/1999 which came up before this court on 17.11.1994. This court ( S.S.Nijjar,J.) after hearing both the sides concluded that the original petitioner could not have travelled beyond the letters of administration which have been granted in the original petition No.245/1995. If there was any bonafide claim which vested in the deceased, it was open to the respondents to move the appropriate court for modification of the letters of administration. Notice of motion was therefore, made absolute. The prayers granted by (S.S. Nijjar, J.) were as 4 follows. (a) Pending the final hearing and disposal of the Misc. petition herein, this Hon’ble Court be pleased to direct the deletion of the item No.25 of the Letters of Administration granted and issued by this Hon’ble Court in original petition No.245/1995 (Mansi Milind Sawant and ors..Petitioners) as the same being the patriarchal dwelling house of the petitioner therein. (b) Pending the final hearing and disposal of the Misc. Petition herein, this Hob’ble Court be pleased to direct the deletion of the item No.26 of the Letters of Administration granted and issued by this Hon’ble Court in Original Petition No.245 of 1995 (Mansi Milind Sawant and ors.. Petitioners), as the same being the personal property of the petitioner herein. 4 It appears that acting upon the order passed by the Single Judge in Notice of Motion No.3143/1999, the petitioners carried out an amendment and dropped two items i.e. two movable properties from the first Schedule . This amendment was carried on 22.11.1999. The original petitioners were directed to produce the probate before the registry for issuing Letters of administration for making 5 necessary amendment . The Original petitioner however, carried the matter in appeal and that appeal being Appeal No. 53/2000 was disposed off by the Division Bench by its order 29.7.2004 by clarifying that the claim of the present applicant that said properties were his personal property was only a prima facie finding. It is however, clear that the order passed by the (S.S.Nijjar,J) on 17.4.1996 was not set aside. Be that as it may , in my view, the procedure followed by the original petitioner in getting schedule amended, after obtaining the consent of the present applicant, without notice to him was impermissible . The consent as recorded in the order of this court on 8.11.1995 was granted on the understanding that Schedule I pertained to the shares and debentures. It may be mentioned that the affidavit in reply filed by the defendants 1 and 3, the stand taken by them is that they were advised that it was open for them to make an amendment in the petition without any notice to the applicant. In the circumstances, in my view, based upon the record of this court, petition needs to be allowed and letters of administration issued on 17.4.1996 needs to be modified by deleting two immovable properties mentioned in Item Nos. 25 and 26. The respondents in this application however, remained absent and none represents them. In the circumstances, it is directed that their administration of property will stand curtailed in respect of 6 Item Nos.25 and 26, subject to their right to file appropriate proceeding for including these articles under the letters of administration earlier granted to them. It is however, made clear that the present applicant has not proved that item Nos. 25 and 26 are his personal property . If there is any dispute in respect of these properties such dispute will have to be resolved by resorting the appropriate proceeding in accordance with law. Misc. Petition is disposed off accordingly. A copy of this order be forwarded by RPAD on the address of the respondent and letter forwarding the order direct the respondents to bring back the original Letters of Administration to carry out the necessary amendment. Petition is disposed off. (R.S. MOHITE, J.)