Shernaz Daraius Irani vs Parvez Khodayar Raisi And 7 Ors
2021 Latest Caselaw 16855 Bom

                                                          22.IA.1974.21 in S.47.21.doc



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION

                    INTERIM APPLICATION NO. 1974 OF 2021
                                      IN
                             SUIT NO. 47 OF 2021


Shernaz Daraius Irani                 ...    Applicant/Orig. Plaintiff

           Versus

Parvez Khodayar Raisi & Ors.          ...    Defendants



Mr. Satyan N. Vaishnav a/w Nupur Mukherjee i/b M/s. N.N. Vaishnawa &
Co. for the Applicant/Orig. Plaintiff.
Mr. Sumeet Bansod i/b L J Law for Defendant No.1.
Ms. Saloni Kharidia i/b Mr. Shubro Dey for Defendant No.4.
Ms. Prerna Shankar and Ms. Anshul Singh i/b M/s. Bharucha & Partners
for Defendant Nos.7 and 8.
Mr. Dipesh U. Siroya for the Applicant in IA (L)/7784/2021.


                                 CORAM :    R.I. CHAGLA, J.
                                 DATED :   4th DECEMBER, 2021.
ORDER :

1 Heard the learned Counsel for the Applicant in Interim

Application No.1974 of 2021. The learned Counsel for the Applicant has

referred to judgments of this Court as well as Supreme Court, compilation

of which has been tendered and which is taken on record and marked 'X'

for identification. He has submitted that under Section 211 of the Indian

Waghmare 1/3

22.IA.1974.21 in S.47.21.doc

Succession Act, the executor appointed under the Will has a right to apply

for interim relief, and does not have to wait for the probate of the Will to

be granted. He is the legal representation of the deceased under Section

2 Sub-section 11 of the Code of Civil Procedure. In that capacity he is

entitled to make such application for interim relief.

2 It is further clear from Section 211 of the Indian Succession

Act which deals with vesting of property that vesting does not take place

as a result of probate. On the executor accepting his office, the property

vest in him and the executor derives his title from the Will and becomes

the legal representative of the deceased even without obtaining probate.

The grant of probate does not give title to the executor. It just makes his

title certain. This has been expressly held in the decision of the Supreme

Court in FGP Limited vs. Saleh Hooseini Doctor and another 1.

3 Considering that the Applicant is only claiming his share of

37.5% of the amounts which have been deposited by Defendant Nos.5 to

8 under the conducting agreement I'm inclined to grant such relief.

However, since Defendant No.1 seeks to file an affidavit-in-reply to the

Interim Application, the matter be placed on 10.12.2021, part heard, high

on board.

1      (2009) 10 SCC 223.

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                                                                                 22.IA.1974.21 in S.47.21.doc



                      4           Defendant No.1 shall file the affidavit-in-reply to the Interim

Application prior thereto i.e. on or before 08.12.2021.

5 Interim Application (L) No.7784 of 2021 filed by the

Applicant for impleadment in the present Interim Application shall also be

placed on 10.12.2021.

6 The learned Counsel for the Applicant in Interim Application

No.1974 of 2021 is granted leave to file affidavit-in-reply in Interim

Application (L) No.7784 of 2021 in the Registry on or before 07.12.2021.

                      7           Matter is stood over to 10.12.2021.


         Digitally
         signed by
         WAISHALI
WAISHALI SUSHIL
SUSHIL   WAGHMARE
WAGHMARE Date:
         2021.12.06
         05:14:08
                                                                        (R.I. CHAGLA, J.)
         +0530




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