The Previous Order Which Is Correct In Law Can Not Be Modified By The Interim Application : Bombay HC
TITLE : Mangaka Sarosh Bana v Renuka alias Rekha Satish Narwankar
CORAM : Hon’ble Justice Milind N Jadhav
DATE : 3rd January 2024
CITATION : Testamentary Petition No. 1996 Of 2022
FACTS
This Interim Application is filed by the Applicant – Original Respondent / Caveatrix for seeking modification of the order dated 04.07.2023 passed by the court. Petitioner, married younger daughter of deceased late Kamlakar Dattopant Abhyankar for seeking probate of last Will and Testament of the deceased. The Applicant Caveatrix is the married elder daughter of the deceased. Testamentary Petition 1996 of 2022 was filed on 06.04.2022. Petitioner is the sole executor in the Will. Along with the Petition notarized consent Affidavit dated 09.03.2022 was filed by the Applicant / Caveatrix giving her No- objection and free and full consent for grant of probate of the Will of the deceased in favour of the Petitioner justifying surety for legacy to be dispensed with and waiving service of citation upon her.
However subsequently after 10 months, on 18.01.2023 the Applicant / Caveatrix filed Caveat No. 89 of 2023 to oppose grant of probate in favour of original Petitioner by contending that she was not aware about the Testamentary Proceedings as also disowning her own consent affidavit which was executed and notarized by her. Assets of the deceased comprised of four movable properties and one immovable property. Learned Advocates informed the Court on 04.07.2023 that all movable assets were apportioned and distributed equally between the two legal heirs i.e. daughters of the deceased. They informed the Court that now the only property remains is the immovable flat belonging to the deceased situated at Mumbai Central. after taking instructions from the Caveatrix, learned Advocate agreed for apportionment / distribution of the said flat in equal proportion. Court passed the order in directing issuance and grant of Letters of Administration along with Will.
The present Interim Application is now filed on 28.08.2023 seeking a modification to the effect that if the parties had agreed to claim the legacy in equal proportion i.e. 50% each.
LAWS INVOLVED
- Section 2(h) of Inidan Succession Act, 1925 :
(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.Section 3(5) of The Maharashtra Recognition Of Trade Unions And Prevention Of Unfair Labour Practices Act, 1971.
- Section 96 of Code Of Civil Procedure, 1908.: This allows an aggrieved party to appeal a decree passed by a court exercising its original jurisdiction to a higher authority designated for this purpose.
ISSUES
Whether the court needs to alter the older order of the court under section 96 of Code of Civil Procedure; Whether the modification can be granted by the interim application under Section 151 of the Civil Procedure Code of 1908.
JUDGEMENT
By analyzing the witnesses in the proceedings, it was observed that the present Application has been filed by the Applicant / Caveatrix since there is reluctance to communicate and respond by the original Petitioner who is the younger sister of the Applicant Caveatrix. Considering the order passed on 04.07.2023 and the consent recorded there is no error in the judgement passed by the court in the previous order. The said order can’t be corrected in the manner as it is impermissible in law to do so. Once the consent affidavit has been filed by the Applicant / Caveatrix and she having agreed before the Court to apportion the estate of the deceased and distribute the same to the extent of 50% each, modification sought for by the present Interim Application cannot be granted.
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Written by- Sanjana Ravichandran