Bombay High Court
Ramesh Vishnu Chitins vs Dr. Ramesh Dattatray Poddar on 13 July, 2022
Bench: G.S. Patel, Abhay Ahuja
902-APP-696-2011-IN-TS-101-2000+.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
APPEAL NO. 696 OF 2011
IN
TESTAMENTARY SUIT NO. 101 OF 2000
IN
TESTAMENTARY PETITION NO. 895 OF 2000
WITH
NOTICE OF MOTION NO. 3142 OF 2011
IN
APPEAL NO. 696 OF 2011
Shekhar Rameh Chitnis & Ors ...Appellants
Versus
Dr Ramesh Dattatray Poddar ...Respondent
Mr Ruchir Tolat, i/b M/s. LC Tolat & Co, for the Appellants.
Mr Ajit Tamhane, with Ashish Ghadge, i/b Tamhane & Co, for the
Respondent.
CORAM G.S. Patel &
Abhay Ahuja, JJ.
DATED: 13th July 2022
PC:-
1. The First Appeal is against a final order and judgment dated
15th December 2020 in Testamentary Suit No. 101 of 2000 in
Testamentary Petition No. 895 of 2000. The impugned order
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incorrectly records that the Testamentary Petition is in the
Administration Suit. In fact, there was a separate Administration
Suit No. 1662 of 1994. By the impugned order this suit was
dismissed.
2. The facts are somewhat peculiar. In our view, in light of
subsequent circumstances it will not be necessary to assess the First
Appeal as we have might otherwise have been required to do, that is
to say a full reappreciation and re-examination on facts and law. The
reason is that the Trial Court materially misdirected itself on a
fundamental issue, and secondly, the appellant has given
instructions to his advocate and these instructions change the entire
complexion of the matter.
3. One Dr Ramesh Dattatray Poddar ("Dr Poddar") was the
Plaintiff in the Testamentary Suit and the Petitioner in the
Testamentary Petition. He sought probate of a Will dated 12th June
1992 of one Laxmibai Vishnu Chitnis ("Laxmibai"). She died on
11th July 1992.
4. Now Dr Poddar was not the executor named in Laxmibai's
Will. Laxmibai's Will made a bequest of her entire estate in favour
of one of her son, Kishor Vishnu Chitnis ("Kishore"). Kishor in
turn made a Will on 21st October 1994. In this, he appointed Dr
Poddar as an executor. Kishore died on 20th September 1998.
Kishor was the executor named in Laxmibai's Will apart from being
a sole legatee. He had sought probate of Laxmibai's Will but that
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probate petition came to be dismissed for default and was never
restored.
5. Dr Poddar obtained probate to Kishor's Will on 18th
September 2000. On the strength of that probate he sought to
obtain probate to Laxmibai's Will. This was clearly unsustainable.
Probate can only be obtained by a named executor. Dr Poddar was
not a named executor in Laxmibai's Will.
6. Faced with this, Dr Poddar sought to convert his Petition to
one for Letters of Administration with Will annexed. This also he
could not do because he was not a beneficiary or a legatee under
Laxmibai's Will. Apparently, he was advised to do this on the basis
that he represented Kishor's estate, which vested in him as the
executor of Kishor's Will. He had no standing to seek probate to
Laxmibai's Will. He was bound to administer Kishor's estate as it
stood, and if there was anything not realized to Kishor's estate from
Laxmibai's estate and under her Will, it was only Kishor's legatees
(the beneficiaries of his Will) who could seek Letters of
Administration with Laxmibai's Will Annexed.
7. This aspect of the matter was never considered and the
learned Single Judge proceeded to grant Dr Poddar Letters of
Administration with Will Annexed to Laxmibai's Will.
8. Faced with this, before us in appeal, Mr Tamhane has
obtained written instructions from Dr Poddar. He is clear that
whatever he did was for the benefit of the legatees under the two
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Wills. Dr Poddar himself has no personal interest in either estate.
He has now filed an Affidavit dated 12th July 2022 specifically
declaiming interest in either estate and, in a signed and affirmed
writing, renounced executorship of the Kishor's Will and estate.
9. An executor can renounce executorship at any time. There
was no doubt that the probate was obtained to Kishore's Will. But
that estate now cannot be administered by the executor who has
renounced executorship. We do not say anything further in this
regard.
10. There is also an Affidavit of Sarika Sachin Shilotri
("Sarika"). She is one of the legal heirs and the legatees under
Kishore's Will, which was probated.
11. Obviously, we will need to protect the rights of Kishore's
legatees as also the heirs of Kishor and Laxmibai.
12. As a result, the Appeal succeeds. The impugned order is
quashed and set aside. The grant of Letters of Administration with
Will annexed to Dr Poddar of Laxmibai's Will is set aside. The
Appellants'/original Defendants' Administration Suit No. 1662 of
1994 will necessarily stand restored to file.
13. We specifically grant liberty to Sarika and all other heirs,
legatees or beneficiaries of Kishor's estate as also Laxmibai's estate
to take appropriate steps in accordance with law.
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14. The Appeal is disposed of in these terms with no order as to
costs.
15. In view of this, the pending Notice of Motion does not
survive and it is disposed of as infructuous.
16. If there are any interim order in the administration Suit, the
Plaintiff must apply to the Testamentary Court for a restoration of
earlier relief or for further relief (or both).
(Abhay Ahuja, J) (G. S. Patel, J)
13th July 2022
