Smt. Usha Shrikant Rege vs Gauri Gajanan Rege
2022 Latest Caselaw 10337 Bom

                                                      4-OSAPP-581-2014-IN-TS-46-1993+.DOC

IRESH       Digitally signed by IRESH
            SIDDHARAM MASHAL
SIDDHARAM   Date: 2022.10.10 11:25:33
MASHAL      +0530




    Iresh


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION
                                        APPEAL NO. 581 OF 2014
                                                    IN
                     TESTAMENTARY SUIT NO. 46 OF 1993
    Usha Shrikant Rege                                                      ...Appellant
         Versus
    Apurva Gajanan Rege                                                  ...Respondents

                              WITH
               NOTICE OF MOTION NO. 1152 OF 2016
                               IN
                       APPEAL NO. 581 OF 2014
                              WITH
               NOTICE OF MOTION NO. 1899 OF 2015
                               IN
                       APPEAL NO. 581 OF 2014
                              WITH
               NOTICE OF MOTION NO. 1152 OF 2016
                               IN
                       APPEAL NO. 581 OF 2014
    Usha Shrikant Rege                           ...Appellant
          Versus
    Gauri Gajanan Rege                        ...Respondent


    Ms Jesal Shah, i/b Jyoti Shah for the Appellant.
    Ms Amrita Saldanha, for the Respondent.


                                         CORAM       G.S. Patel &
                                                     Gauri Godse, JJ.

                                         DATED:      7th October 2022




                                              7th October 2022
                                     4-OSAPP-581-2014-IN-TS-46-1993+.DOC




PC:-

1. Disputes between the Appellant and the Respondent are settled. Consent terms have been drawn. These have been signed by the appellant and by the legal guardian appointed of the respondent as also by the advocates for the parties. The consent terms are taken on record and marked 'X-1' for identification with today's date.

2. Before proceeding to make an order on the consent terms, some background must be noted and set out. In this order, in the interest of both the sides we will also be issuing, by consent, further directions. Both sides have agreed that no reasons are necessary for these directions.

3. Testamentary Petition No. 2 of 1993 was filed by one Shrikant Mangesh Rege, one of the children of the deceased Mangesh Pandurang Rege. Shrikant sought Letters of Administration with Will Annexed, claiming that Mangesh had left a Will dated 1st October 1971. Mangesh had seven heirs. Shrikant was one of them. Another was Gajanan Rege, Shrikant's brother. The only caveat to be filed in that Petition was by Gajanan's wife/widow, Gauri. On that caveat being filed, the petition was thus renumbered as suit and proceeded to trial as such. By the impugned Order and Judgment dated 15th September 2014, the suit was dismissed. In the meantime, both Shrikant, the original petitioner/plaintiff, and Gauri, the original caveator/defendant, passed away. The Appellant is Shrikant's widow and sole legal heir, Usha. Shrikant and Usha had

7th October 2022 4-OSAPP-581-2014-IN-TS-46-1993+.DOC

no children. In any case, Usha separately obtained Probate of Shrikant's own Will.

4. Gauri had a daughter named Apurva. She was brought on record as the Respondent. Apurva has a serious medical condition. She suffers from Down's Syndrome. She is cared for by Gauri's sister's daughter, Shubhada Abhay Parasnis, appointed as Apurva's Guardian by a certificate dated 23rd September 2021 issued by the National Trust for the Welfare of Persons with Autism Cerebral Palsy, Mental Retardation and Multiple Disabilities of the Ministry of Social Justice and Empowerment of the Government of India. That certificate was taken on record by a Division Bench of this Court on 28th September 2021.

5. By the present consent terms, it is agreed that the opposition to Mangesh's Will stands withdrawn. Both parties have agreed that the impugned Order and Judgment of 15th September 2014 be set aside by consent without an examination on merits. They have also agreed that the Letters of Administration with Will Annexed to Mangesh's Will dated 1st October 1971 be granted to Usha, the Appellant before us.

6. Apurva is to receive an aggregate amount of Rs.1.03 Crores in the manner set out in Clause 5 of the consent terms.

7. Mangesh's estate includes a leasehold plot of about 905 Sq. meters, new Survey No. 119 (part) CS No. 160/10, Plot No. 154, at the junction of Bhalchandra Road and Lady Jehangir Road, Hindu

7th October 2022 4-OSAPP-581-2014-IN-TS-46-1993+.DOC

Colony, Dadar, Matunga Estate, Mumbai. On this there are two structures or two wings of a building called "Laxmi Niwas" and "Datta Bhuvan", each of ground and three floors with independent staircases, and two garages. It is agreed that this is part of Mangesh's estate. Usha is to be the absolute owner of the property. Apurva through her guardian declares that she has no claim or demand in respect of this property.

8. In addition, Flat No.5 on the third floor of "Datta Bhuvan" is solely occupied by Usha. It admeasures about 1000 sq. ft. It goes along with the entire leasehold property and structures and is also the sole property of Usha. Apurva through her guardian says she has no claim on it.

9. These are the fundamentals of the consent terms. We believe these consent terms are in order and not contrary to law. We have satisfied ourselves that the consent terms have been drawn by the parties of their own volition. We may add that some of the negotiations were directly before us in court and we also made some suggestions about a possible solution to avoid a protracted litigation.

10. Our concern must be about Apurva's future needs and continued care. We are not questioning the guardianship. But the amount that Apurva receives must be credited to the account that is jointly in her name and her guardian Shubhada with the Saraswat Cooperative Bank, Goregaon-West Branch. We accept Shubhada's undertaking conveyed to us by her Advocate that these funds or the income from these funds will be used only for Apurva's care,

7th October 2022 4-OSAPP-581-2014-IN-TS-46-1993+.DOC

medical expenses, upkeep, maintenance, and daily requirements. We permit the investment of these funds by Shubhada in accordance with applicable regulations and norms, provided always that the permissible investments are in non speculative, non-volatile instruments. Under no circumstances is there to be investment in equity shares or purely equity based funds or instruments, even if otherwise permissible in the rules, norms, guidelines or restrictions that may be applicable to persons in Apurva's situation and condition. We accept this an undertaking to the court.

11. As regards the property in question, we permit Usha to present before the Sub-Registrar of Assurances a certified or authenticated copy of this order along with the consent terms which are to be uploaded as the second order in the matter.

12. The original signed consent terms are to be preserved permanently and are not to be sent for destruction with the papers in the normal course.

13. As to the Collector of Stamps, it will be open to Usha to place before that authority a copy of this order and of the consent terms.

14. We note that the immovable property including the flat comes to Usha by means of a testamentary bequest or a legacy and is not acquired for consideration. It will be assessed accordingly to the minimum possible stamp that is payable, if any, on such an application.

7th October 2022 4-OSAPP-581-2014-IN-TS-46-1993+.DOC

15. Some evidence was led before the Trial Court. The original Will of Mangesh Pandurang Rege is lodged with the Registry. Usha is at liberty to obtain a certified copy of that Will since the original cannot be released. For the purposes of transfer, she may also obtain a certified copy of the Will of her husband Shrikant and to which she has obtained Probate.

16. As regards the other original documents that were marked in evidence, parties are at liberty to take back the originals upon these being substituted with true copies authenticated as such by their respective Advocates. Parties are put to notice that if they do not do so within the next 12 months, the original documents may be taken up for destruction in the normal course.

17. In any case, and since this is the part of the ongoing process of digitization of this court, we will require the Central Project Administrator to have the entire original Trial Court record including all exhibits and all evidence scanned and digitized for record keeping purposes. A copy of the Appeal will also have to be similarly scanned and digitized. A copy of this order is to be sent to Mr Yashwant Goswami, CPC for his immediate attention.

18. The Saraswat Bank and all entities with which the investments may be made shall permit Shubhada to make amount periodic withdrawals, encashments or redemptions without a separate order of the Court.

19. The Appeal is disposed of in view of the consent terms.

7th October 2022 4-OSAPP-581-2014-IN-TS-46-1993+.DOC

20. All pending Notice of Motions are infructuous and are disposed of.

21. All previous interim orders and undertakings stand vacated. The Registry will proceed to issue the grant at the earliest possible date and in any case before 21st October 2022 without raising any further requisitions.

22. There is pending Chamber Summons No. 107 of 2017. It is not on board. It is filed by the son of one of the heirs of Mangesh who had consented to the grant of Letters of Administration with Will annexed. Only because that Chamber Summons is not on board, we will list separately the matter on 11th October 2022 on Supplementary board.

(Gauri Godse, J)                                     (G. S. Patel, J)





                            7th October 2022