Final Order 1

Order Details: Chamber summons
Pdf Text: CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
1 Date : 14.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 578 OF 2019
IN
SUIT NO. 6320 OF 2007
IN
TRANSFERRED H.C. SUIT NO. 142 OF 2007
(CNR NO.MHCC01002826 2019 )
Elvira Fernandes & Ors. .. Plaintiffs
Versus
Bella Felix Fernandes & Anr. .. Defendants
Appearances :
Adv.Shruti Bhavsar for plaintiff present.
Adv.Eventa Gonsalves a/w Adv.Reyden Gonsalves for defendant
present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 14.08.2019
1. The plaintiffs filed instant Chamber Summons for permitting
them to delete the name of plaintiff no. 1 as she expired on
04.06.2008 and plaintiff no. 2 and 3 are her legal heirs. The
plaintiff further seek to delete the name of defendant no. 1 as she
expired on 11.02.2019 and further prayed for carrying out
necessary amendments as per schedule annexed with the Chamber
Summons.
2. It is contended by the plaintiff that plaintiff no. 1 during
pendancy of the suit died on 04.06.2008 and upon her demise, her
1/9th share of the suit property shall be devolved upon plaintiff
no. 2 and 3 being her son and in the legal heirs.
-- 1 of 7 --
CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
2 Date : 14.08.2019
3. It is further contended by the plaintiff that the defendant no.
1 expired on 11.02.2019 during pendancy of the suit. The plaintiff
no. 2 and 3 are the only legal heirs of the deceased defendant no.
1. Upon the demise of defendant no. 1, her 1/6th share shall be
devolved upon plaintiff no. 2 and 3 being her nephew and only
legal heirs. It is further claimed by the plaintiff no. 2 and 3 that
upon death of defendant no. 1 now, they are entitled for 100%
share in the suit property.
4. The Chamber Summons is opposed by the defendant no. 2
on the ground that the defendant no. 1 was the widow of paternal
uncle of plaintiff no. 2 and 3. The husband of defendant no. 1
namely Felix Fernandes predeceased the defendant no. 1. The
plaintiff no. 2 and 3 are the nephews of deceased husband of
defendant no. 1 and as per Indian Succession Act, 1925, nephews
can not be heirs of the defendant no. 1.
5. It is contended by the defendant no. 2 that the defendant no.
1 had executed Registered Will on 04.09.2003. The deceased
defendant no. 1 has appointed Shri. Verus Cordeiro as sole
Executor in the said Will. Therefore, the executor shall became
the legal representative for all purpose for defendant no. 1.
6. I have heard both the sides. Perused Chamber Summons
and reply, it appears from the reply that the defendant no. 2 has
no objection for deleting the name of the plaintiff no. 1 as she has
been expired during the pendancy of the trial. The only objection
-- 2 of 7 --
CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
3 Date : 14.08.2019
of the defendant no. 2 is in respect of inheritance of share of the
defendant no. 1 by the plaintiff no. 2 and 3.
7. It is specific contention of the defendant no. 2 that, the
defendant no. 1 has executed the Will whereby Verus Cardeiro is
appointed as Sole Executor. The advocate for the plaintiff
vehemently argued that the probate in respect of alleged Will is
not obtained and therefore, the executor could not be added as
legal representative of deceased defendant no. 1.
8. In my view, as Section 211 and 307 of Indian Succession Act,
the executor can be legal representative of the deceased even
during pendancy of the probate petition. As per section 211, upon
the death of the person, all his property devolved upon his legal
representative i.e. to say upon executor if the person has added in
the Will and appointed as executor or upon administrator if the
person has died intestate an executor or administrator is not
absolute owner of the property of the deceased, in the sense of
being beneficial owner thereof, the property vested in him only for
the purpose of representation. He hold the property in autre droit
viz. as the minister or dispenser of the property of the deceased.
An executor has the property only under trust to apply it for
payment of the testators debts and for such other purposes as he
ought to fulfil in the course of his office as an executor. In view of
the Judgment of Hon'ble Calcutta High Court, reported in AIR
1978 (559) in case of Bali Ram Dhote V/s. Bhupendra Nath
-- 3 of 7 --
CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
4 Date : 14.08.2019
Banerji and Ors., the executor derives his title from the Will,
immediately after testators death, as property vest in the executor.
In other words, “The law knows no interval between testators
death and the vesting of the property.” The Hon'ble Calcutta High
Court has observed that when a Will empowers the executor to sell
the property, the executor represents the estate even before he has
taken the probate. As such, the probate is not necessary to make
an executor entitled to such property, as he derives his title under
the Will. There is nothing in law to prevent the executor from
acting as an executor and exercise a power given to him without
obtaining probate. The probate mainly gives adequate protection
and nothing further.
9. The Hon'ble Bombay High Court in case of “Pravina Vikrant
Ghotge V/s. Vinayak Ramchandra Dindolkar and Ors. Reported in
(2015) 1, Maharashtra Journal Law 875” held that when an
executor of Will is surviving and he is available for taking care of a
Will and it contents, no other party, can be concerned with Will
and impleaded as party to the proceedings. Thus, in view of the
aforesaid ruling, in my view, the submission of the plaintiff upon
the death of the deceased defendant no. 1 they are entitled to
1/6th share of the defendant no. 1 in the suit property and thus,
they are entitled for 100% share can not accepted at this stage.
Even in view, of the execution of Registered Will by the deceased
defendant no. 1 and survival of sole executor namely Verus
Cordeiro, the name of the defendant no. 1 can not be deleted. The
-- 4 of 7 --
CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
5 Date : 14.08.2019
executor Verus Cordeiro of Will deceased defendant no. 1 shall
required to be substituted as a legal representative deceased
defendant no. 1.
10. As far as contention of the plaintiff no. 2 and 3, that they are
entitled for share of defendant no. 1, in my view, the plaintiff can
claim the aforesaid right, title and interest in the share of
defendant no. 1 which is subject to the proof and matter of trial.
Hence, in my view, the amendment in respect of claim of plaintiff
no. 2 and 3 can be allowed subject to the proof of the same by the
plaintiff. Thus, in my view of the above discussion, I passed
following order.
ORDER
1. Chamber Summons No. 578 of 2019 is hereby partly
allowed.
2. The plaintiff no. 2 and 3 is entitled to delete the name of
plaintiff no. 1.
3. The executor namely “Verus Cordeiro” be added as a legal
representative of the deceased defendant no. 1.
4. The plaintiff is allowed to amend prayer clause “a and b” as
mentioned in schedule of Chamber Summons which will be
subject to the trail and proof.
-- 5 of 7 --
CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
6 Date : 14.08.2019
5. The plaintiff to carry out necessary amendments accordingly
within a period of 14 days from the date of order.
6. Chamber Summons no. 578 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 14.08.2019 Greater Mumbai
Dictated on : 14.08.2019
Typed on : 14.08.2019
Draft Submitted on : 14.08.2019
Checked on : 14.08.2019
Signed on : 14.08.2019
-- 6 of 7 --
CS 578/19 in Suit No.6320/2007
Transferred HC Suit No. 142-2007
7 Date : 14.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
14/08/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
14/08/2019
JUDGMENT/ORDER signed by P.O.
on
14/08/2019
JUDGMENT/ORDER uploaded on 14/08/2019
-- 7 of 7 --