NEELA VILAS SHINDE Vs. SUSHSILARANI PATEL & ORS

JUDGEMENT

(1.) The Applicant in this Chamber Summons is only pressing prayer clause (b) thereof i.e. seeking to be impleaded in the suit as also in all the pending interim applications made in the suit are originally filed, inter alia, against Mrs. Sushilarani Patel. In fact on 24th July, 2014 Mrs. Sushilarani Patel passed away. During her life time, the late Mrs. Sushilarani Patel had executed a Will dated 20th September, 2010 appointing the Applicant as an Executrix. It is the applicant's claim that in view of the above Will she is entitled to represent the estate of the late Mrs. Sushilarani Patel as an executrix, even before the grant of probate which is pending in this Court being Testamentary Suit No. 84 of 2015.

(2.) The suit as filed by the Plaintiffs is for the administration of the estate of her deceased father the late Mr. Suryakant Baburao Patel, who was the son of the Late Mrs. Sushilarani Patel. It is an undisputed position between the parties that one of the properties in issue in the administration suit filed is, inter alia, with regard to the property known as Girnar Property. The Applicant claiming to be the executrix of the Will dated 20th September, 2010 by which she has been directed as an executrix of the Will to take care of all the pending litigations in respect of the Girnar property.

(3.) Mr.Kukreja, learned counsel appearing on behalf of the Applicant, in support of the Chamber Summons, invites my attention to the decision of this Court in Ramniklal Amritlal Shah v. Bhupendra Impex Pvt. Ltd. and others, 2001 AIR(Bom) 224, wherein the Division Bench of this Court as held that the bar under section 213 of the Succession Act, 1925 is against passing of a decree without obtaining a probate certificate. However, Mr. Kukreja states that the probate proceedings in respect of the Will dated 20th September, 2010 of Late Mrs. Sushilarani Patel is pending in this Court and is now converted in a Testamentary Suit No. 84 of 2015. However, the said Section would not bar an executor in his capacity as an executor to protect the estate. It is only that the final decree would not be passed in the absence of a probate certificate in favour of the Executor. On the basis of the above decision, it is submitted that the Applicant should be added as a party Defendant to the present suit.