Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 400 OF 2018
IN
SUIT NO. 2362 OF 2012
(CNR NO.MHCC01-002920-2018)
Shri P. Lakshman ... Applicant
In the matter between
Mrs. Rukmini Krishnamurthy …Plaintiff
V/s.
1.Mrs. Rashmi Sanjay & Anr. ...Defendants
Appearances:
Ld. advocate Kunal Vaishnav for plaintiff.
Ld. advocate Sakshi Agarwal for Defendant No.1.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 23/11//2021.
ORDER
This is a chamber summons taken out by the applicant for taking
on record of his name in place of name of deceased plaintiff by setting
abatement order. This chamber summons is resisted on behalf of
defendants by filing their say.
2. Heard both the learned counsels on behalf of both the sides at
length. Read the chamber summons and reply thereon. Perused the
record. The learned counsel on behalf of the applicant has submitted
that the original plaintiff Mrs. Rukmini Krishnamurthy is expired on
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11/08/2017. The deceased original plaintiff had been executed the Last
Will and Testament dated 15/06/2012. The present applicant is the
real brother of deceased plaintiff and executor of the Last Will and
Testament dated 15/06/2012. The applicant is residing at No.5, First
Cross, S.N.Pet.m Bellary Karnataka and he was not knowing about the
pending of the present suit. The applicant came to know about this
pending of the suit on 20/10/2017. The applicant is not intentionally
filed this late chamber summons. Therefore, the applicant is requested
that delay for 83 days may kindly be condoned for setting abatement
order and permitted him to carry out proposed amendment by
recording his name in the place of deceased original plaintiff Mrs.
Rukmini Krishnamurthy.
3. The learned counsel on behalf of the defendant no.1 has
submitted that the original plaintiff Mrs.Rukmini Krishnamurthy is
expired on 11/08/2017. The applicant has not explained delay for
condoning set aside abatement order. The applicant has suppressed all
the legal heirs of the deceased original plaintiff Mrs.Rukmini
Krishnamurthy. The applicant filed this chamber summons by claiming
that he is the legal representative of the deceased plaintiff to the alleged
Last Will and Testament executed by deceased original plaintiff has not
obtained any probate. Therefore, in view of Section 216 of the Indian
Succession Act, 1925, after any grant of probate or letters of
administration, no other than the person to whom the same may have
been granted shall have power to sue or prosecute any suit, or
otherwise act as representative of the deceased, throughout the State in
which the same may have been granted, until such probate or letters of
administration has or have been recalled or revoked. Admittedly, the
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applicant has not obtained any probate of alleged Last Will Testament
dated 15/06/2012. Therefore, the present chamber summons may
kindly be rejected.
4. The learned counsel on behalf of the plaintiff has argued that the
Last Will Testament dated 15/06/2012 executed by the deceased
original plaintiff is produced on record. The applicant is the real brother
of deceased original plaintiff and he is the executor of Last Will
Testament dated 15/06/2012. Therefore, in view of Section 211 of the
Indian Succession Act, 1925, the executor or administrator, as the case
may be, of a deceased person is his legal representative for all purposes,
and all the property of the deceased person vests in him as such. The
learned counsel on behalf of the applicant has submitted that the
applicant is being the executor of Last Will Testament dated
15/06/2012. Therefore, the applicant is entitled to sue on behalf of the
deceased plaintiff.
5. After hearing the arguments on behalf of both the sides and on
scrutiny of the documents and pleadings, it appears to me that in view
of Section 211 of the Indian Succession Act, 1925, the applicant is being
the executor of Last Will Testament dated 15/06/2012 of the deceased
original plaintiff and the applicant is the legal representative of the
original deceased plaintiff. Therefore, the applicant is entitled to sue on
behalf of the deceased plaintiff. Moreover, after careful perusal of the
affidavit of chamber summons filed by the applicant, it appears to me
that the original plaintiff is expired on 11/08/2017 and the applicant
came to know about this pending of the suit on 20/10/2017. Further,
on perusal of record, it appears to me that yet issues are not framed. In
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order to decide the dispute in between the parties is on merit, I inclined
to allow this chamber summons by imposing costs on the applicant.
Hence, I proceed to pass following order.
ORDER
1 Chamber summons No.400/2018 is hereby allowed as prayed for
subject to cost of Rs.2,000/-.
2. The applicant is hereby directed to deposit cost of Rs.2,000/- to
District Legal Services Authority, Mumbai on or before next date.
3 Chamber summons No.400/2018 is disposed off accordingly.
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :23/11/2021. Gr. Mumbai
Dictated on: 23/11/2021
Transcribed on:23 /11/2021
HHJ signed on: 23/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
23/11/2021 at 5.00 p.m.
NAME OF TYPIST
( Mrs. V. V. Malgaonkar)
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
23/11/2021
Judgment/order signed by P.O. on 23/11/2021
Judgment/order uploaded on 23/11/2021
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