SHIRIN BAMAN FARAMARZI OF BOMBAY ZOROASTRIAN IRANIAN INHABITANT Vs. ZUBIN BOMAN FARAMARZI OF BOMBAY UBDUAB INHABITANT

JUDGEMENT

(1.) By this chamber summons petitioner/plaintiff seeks amendment of the petition, as per schedule appended to the chamber summons and seeks permission to convert the petition for probate into petition for letters of administration with the Will annexed dated 24th January, 2002.

(2.) Petitioner is widow of late Boman Dinyar Faramarzi who died on 29th August, 2007. According to the petitioner, the said deceased had executed his last will and testament dated 22nd January, 2002. The said deceased had appointed Mr. Diniar Darab Mehta and Mr. Himanshu Kode, Advocate as executors of the said will. It is the case of the petitioner that since executors appointed by the said deceased did not take any steps to file any probate petition and in view of the fact that the earlier advocate on record appearing for the petitioner inadvertently filed petition for probate of the last will and testament of the said deceased in this court, inspite of filing petition for letters of administration with the Will annexed, petitioner by her advocates' letter dated 4th August, 2011 addressed to the Executors of the said Will placed on record that since petitioner through her son on several occasions both orally and in writing had requested the executors to carry out their duties as executors of the Will but as they failed to do so, petitioner was constrained to file petition for probate of the Will herself. By the said letter petitioner called upon the executors to perform their duties as executors of the said Will, agree to act as petitioners/applicants in the petition/suit and to take steps to obtain probate of the last Will and testament of the said deceased. Petitioner through her advocate sent reminder to the executors by letter dated 5th September, 2011. There was no reply from Himanshu Kode, Advocate one of the executors of the said Will. Mr.Diniar Mehta, the other executor, however, by his letter dated 9th September, 2011 informed petitioner's advocate that he was not in a position to confirm execution of the Will of the said deceased on the basis of the photocopy of the said Will which was annexed to the petition and only upon inspection of the original Will, he would be able to confirm the execution of the said Will of the said deceased. He requested the petitioner's advocate to provide inspection of the original Will executed by the said deceased and to furnish him a coloured photo copy thereof to enable him to convey his decision with regard to the execution of the Will. In the said letter, it was however, contended that since the petitioner had already initiated proceedings for obtaining probate of the Will, the question of the said executor renouncing the executorship of the said will did not arise. In response to the said letter, petitioner through her advocate's letter dated 28th September, 2011, clarified that the petitioner did not ask the executor to renounce the executorship of the Will but had sought to know whether the said executor wish to act as executor. It was also clarified that if the said executor seeks to take inspection of the original Will of the said deceased, he was free to do so in the office of the Prothonotary & Senior Maser of this court.

(3.) It is the case of the petitioner that since there was no further response from either of the executors, petitioner filed an application on 23rd April, 2012 before the Prothonotory & Senior Master for permission to allow the petitioner to convert the petition for probate into petition for letters of administration with Will dated 22nd January, 2012 annexed thereto by making necessary changes in the petition. It was also stated in the said application that caveat and affidavit dated 25th June, 2010 filed by the respondent through caveator be treated as caveat in the proceedings in petition for letters of administration. By letter dated 29th June, 2012 the learned Additional Prothonotary allowed the said application dated 23rd April, 2012 filed by the petitioner.