Notice of Motion No. 81 of 2011 in Testamentary Suit No. 103 of 2010 in Testamentary Petition No. 84 of 2010. Case: Vimla L. Rajani, Maya Harichand Makhija Vs Asha Kanayalal Bajaj And Deutsche Bombay School Educational Institution. High Court of Bombay (India)
| Case Number | Notice of Motion No. 81 of 2011 in Testamentary Suit No. 103 of 2010 in Testamentary Petition No. 84 of 2010 |
| Counsel | For Appellant: Mr. SC Naidu i/b Indian Law Alliance and For Respondents: Mr. S.J. Shah with Mehul Shah for the defendant/caveator in support |
| Judges | D.G. Karnik, J. |
| Issue | Indian Succession Act, 1925 - Sections 224, 247, 248, 255, 257 |
| Citation | 2012 (4) AllMR 718, 2012 (2) MahLJ 683 |
| Judgement Date | November 22, 2011 |
| Court | High Court of Bombay (India) |
Order:
D.G. Karnik, J.
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This motion is taken out purportingly under section 247 of the Indian Succession Act 1925 (for short "the Succession Act") for appointment of an administrator pending decision of the suit.
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The plaintiff and the defendant are sisters being the daughters of Vimal L. Rajani. Vimal (hereinafter referred to as "the deceased") was the owner of the immovable properties consisting of a residential flat (bearing flat no. 904, 15A, Peddar Road) situate at Mumbai a residential flat in Bharat Apartments in Bangalore and a vacant plot of land at Bangalore. The deceased also owned certain movable properties with which we are not concerned at this stage. The deceased died on 2 March 2009 in Mumbai leaving behind her a writing alleged to be the last Will and testament dated 19 December 1994 whereby she bequeathed her flat at Mumbai to the plaintiff and her immovable properties at Bangalore to the defendant. By the said Will, the deceased appointed the plaintiff to be an executor of the flat at Mumbai and appointed the defendant to be the executor of the properties at Bangalore.
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The plaintiff filed testamentary petition no. 84 of 2010 for grant of probate to the Will of the deceased. The defendant filed a caveat and opposed the grant of probate alleging that the Will was forged and fabricated on account of the caveat the testamentary petition has been converted into and renumbered as the present suit. In the suit, the defendant has taken out the present motion for appointment of an administrator in respect of the flat at Mumbai pending decision of the suit and has also prayed for issuance of a direction to the plaintiff to deposit the rent/license fee received by her by giving the Mumbai flat on rent or leave and license.
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The motion is seriously opposed by the plaintiff interalia on the ground that the defendant had previously taken out another notice of motion (bearing notice of motion no. 167 of 2010) for identical reliefs, save and except that therein the prayer was for appointment of a court receiver instead of an administrator. The grounds for appointment of an administrator are the same as the grounds that were pleaded for appointment of a receiver in the earlier motion. The second motion for the very same relief in a slightly different form on the very same grounds is not maintainable. Secondly, the counsel submitted that appointment of an administrator would amount to revocation of an authority of an executor to administer the estate. Such revocation cannot be made lightly unless there were strong grounds for removing the executor and appointing an administrator in his place. In the present case, there were no grounds for revoking the authority of the plaintiff to act as an executor and to administer the part of the estate of the deceased i.e. the flat at Mumbai for which she was appointed as an executor under the will and no ground for appointment of an administrator was made out. He further submitted that the testamentary...
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