CHANDRAKANT J SHAH Vs. LALITCHANDRA J JUTHANI

JUDGEMENT

(1.) THE petitioner/plaintiff has taken out the above Chamber Summons. The Plaintiff seeks an order dismissing the Caveat dated 13.1.2004 filed by the Caveator one Kanak Ramniklal Shah. The plaintiff has also prayed that he may be granted probate as per an order dated 27.2.2003.

(2.) THE above petition was filed for probate of a Will dated 11.2.1988 made by one Pranjivan Jasraj Gandhi (herein after referred to as "the Deceased") who expired on 27.1.1989. By the said Will the deceased in effect revoked an earlier Will dated 16th October, 1984 and a Codicil thereto dated 15.6.1986 which were registered on 24.2.1986 and 7.1.1988 respectively. The deceased bequeathed to the plaintiff inter alia, an immovable property occupied by tenants at Chembur, Mumbai, Room No.7 in a building at Mumbai, cash in the bank account of the deceased, furniture and jewellery. The residuary clause is also in favour of the plaintiff. Thus the plaintiff is the sole beneficiary under the said Will. However, the plaintiff was directed to manage the property out of the money received from the said immovable property.

(3.) BY an order dated 27.2.2003 J.A.Patil, J.(as he then was) inter-alia, recorded that the order dated 17.2.2003 (wrongly recorded 13.2.2003) had not been complied with by defendant nos.1a and 1b as they had not filed any affidavit adopting the contentions of the deceased Caveators. The learned judge therefore presumed that the legal heirs did not propose to press the caveats and that they had no objection to the probate being granted to the petitioner. By the said order the learned Judge therefore reconverted the suit into a petition and ordered that it be treated as an uncontested petition. At the hearing none of the defendants had appeared.