Smt. Usha Shrikant Rege vs Gauri Gajanan Rege
2021 Latest Caselaw 12038 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                        NOTICE OF MOTION NO. 1899 OF 2015
                                      IN
                             APPEAL NO. 581 OF 2014
Smt. Usha Shrikant Rege                             ...   Applicant/Appellant
          Versus
Gauri Gajanan Rege                                  ...   Respondent
                                          .........
Ms. Mamta Sadh alongwith Ms. Jesal Shah instructed by Daru Shah and Co. for the
Applicant/Appellant.
Ms. Amrita Saldanha for the Respondent.
                                     .........
                              CORAM :      S.J. KATHAWALLA AND
                                           MILIND N. JADHAV, JJ.

                              DATED :      AUGUST 28, 2021.
                                           (In Chambers)

P.C. :-

1. One Mr. Shrikant Rege (Shrikant) had filed the Testamentary Petition No.2 of

1993 seeking letters of administration with Will annexed of his deceased father Mr.

Mangesh Pandurang Rege (Mangesh). Pending the Petition, the said Shrikant passed

away and his wife Mrs. Usha Rege (Usha) was brought on record.

2. The six heirs of Mangesh had filed their respective Consent Affidavits and the

other heirs of Mangesh had filed two Caveats and therefore, Testamentary Petition

was converted into Testamentary Suit and numbered as Testamentary Suit No.46 of

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1993. During pendency of the Petition, one Caveat was withdrawn and only one

Caveat filed by Mrs. Gauri Gajanan Rege ( Gauri) who was arrayed as party Defendant

to the said Testamentary Suit No.46 of 1993 stood. It will not be out of place to

mention here that Usha was originally married to Mr. Gajanan Rege and they

subsequently divorced. Out of this marriage, they have two issues, son - Ashutosh

Rege and daughter - Anuradha Mitra nee Rege. Thereafter, Usha married the original

Petitioner - Mr. Shrikant Rege and there are no issues from this marriage. The

Defendant/Respondent - Gauri married Gajanan Rege and there is one daughter

Apurva from this marriage who is the present Respondent.

3. By the Judgment dated 15th September, 2014, the Testamentary Suit was

dismissed by the Learned Single Judge of this Court. By the present Appeal, the said

Judgment is impugned by Usha - Appellant. In the meantime, Gauri has passed away

leaving behind her a special child by the name Apurva, the Respondent. During the

lifetime of Gauri, on 25th July, 2011 she was named as an alternate guardian of Apurva

under Section 14 of the National Trust Act, 1999. The said Certificate dated 25 th July,

2011 is produced before us, the later portion of which reads as under :

"NOTE- All earlier Certificates of Appointment of Guardianship, if any, au tomatically stand superseded and cancelled with the issue of this Certificate. The alternate guardian shall be Smt. Shubhada Abhay Parasnis (M/sister of Apurva) Sd/-

Gauri Rege"

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4. Our attention is drawn to Regulation 11 of the National Trust Regulations,

2001, which reads as under :

"11. Who may apply for guardianship - (1) Both the parents may jointly, or, in the event of the absence of one due to death, divorce, legal separation, desertion or conviction, may singly apply for guardianship of their or as the case may be his ward beyond the age of 18 years.

(2) In the event of death, desertion, conviction of both the parents, the siblings (including half and step siblings) jointly or singly (reason of single application to be explained separately) may apply for guardianship of a disabled member of the family. (3) In the event of non-application of sub-regulation (1) and (2) above, a relative may make an application for guardianship.

(4) In the event of non-application of sub-regulation (1), (2) and (3), any registered organization may make an application for guardianship. (5) The Local Level Committee may direct a registered organization to make an application for guardianship in case of a destitute or abandoned person."

5. As can be seen from Clause (2) of Rule 11 of the National Trust Regulations,

2001, in the event of death, desertion, conviction of both the parents, the siblings

(including half and step siblings) jointly or singly (reason of single application to be

explained separately) may apply for guardianship of a disabled member of the family

and in the event of non-application of sub-regulation (1) and (2) above, a relative may

make an application for guardianship. The half siblings of Apurva being Ashutosh

Rege and Anuradha Mitra nee Rege have already informed the Court that since Gauri

had herself agreed that alternate guardian of Apurva will be Shubhada Parasnis, they

have no objection to appointment of Shubhada Parasnis as guardian of Apurva. They

want Shubhada Parasnis to be continued as a guardian of Apurva. Though this Court

by an Order dated 13th August, 2021 had called upon the relatives to appear before this

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Court and that they have been served with the copy of the said order, none appear

before this Court. In any event since the mother of Apurva had herself chosen

Shubhada Parasnis as an alternate guardian for Apurva and since Apurva herself was

present before us in our Chamber and informed us that except Shubhada Parasnis no

one has taken care of her and she wants to be with Shubhada Parasnis, we are of the

view that the wishes of the deceased Gauri as well as Apurva should be accepted by

the Court as well as the appointing authorities. We are informed that the Local Leval

Committee and the Collector, Mumbai Suburban District has called the concerned

parties on 30th August, 2021. Since the appointment of alternate guardian will have to

be formalized, we request the Collector to forthwith consider the matter and appoint

an alternate guardian viz. Shubhada Parasnis, since any delay in appointing the

alternate guardian will prejudice the interest of Apurva. A copy of this order shall be

produced before the Local Leval Committee and the Collector, Mumbai Suburban

District on 30th August, 2021. A copy of this order shall also be forwarded to the

relatives. Stand over to 3rd September, 2021 at 10.30 a.m. in Chambers.

                              ( MILIND N. JADHAV, J. )                              ( S.J. KATHAWALLA, J. )

           Digitally signed
           by KANCHAN
KANCHAN    PRASHANT
PRASHANT   DHURI
DHURI      Date:
           2021.08.28
           13:50:32 +0530




                              Kanchan P Dhuri