Bombay High Court
Atul Purshottam Borkar vs Kumudini Ravindra Amrute Deceased Thr. ... on 2 April, 2025
2025:BHC-AS:15213
FA-128-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
TALLE
SHUBHAM
ASHOKRAO
Digitally signed by
FIRST APPEAL NO. 128 OF 2025.
TALLE SHUBHAM
ASHOKRAO
Date: 2025.04.02
20:32:53 +0530
1. Atul Purshottam Borkar ]
an adult of Mumbai, Indian Inhabitant, ]
residing at 31/A, Kurla Kamgar Nagar, S.G. ]
Barve Marg, Kurla (East), Mumbai 400 024. ] ...Appellant
] (Org. Plaintiff)
VS.
1. Mrs. Kumudini Ravindra Amrute, ]
of Mumbai, Indian Inhabitant, residing at ]
31/A, Kurla Kamgar Nagar S. G. Barve Marg, ]
Kurla (East), Mumbai 400 024. ]
1(a). Kiran Ravindra Amrute, ]
of Mumbai, Indian Inhabitant, residing at ]
31/A, Kurla Kamgar Nagar S. G. Barve Marg, ]
Kurla (East), Mumbai 400 024. ]
2. Mrs. Latika Sanjay Redkar ]
of Mumbai, Indian Inhabitant, residing at ]
28/D, Kurla Kamgar Nagar S. G. Barve Marg, ]
Kurla (East), Mumbai 400 024. ]
3. Ashutosh Purushottam Borkar, ]
of Mumbai, Indian Inhabitant, residing at ]
181/10, Samarth Nagar, Kandiwali, Mumbai ]
400 101. (Deceased) ]
3a. Smt. Aparna Ashutosh Borkar ]
3b. Ms. Charulata Ashutosh Borkar ]
Both adults of Mumbai, Indian Inhabitants, ]
residing at B001, Gokul Nagari 1 (A&B) CHS ] ...Respondents.
Ltd., 90 Feet Road, Thakur Complex, Kandivali ] (Org.
East, Mumbai 101. ] Defendants)
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Mr. Rajesh Kachare, Mr. Ajit Tamhane, Mr. Amit Potnis, Mr. Sandeep Suryavanshi
i/b Tamhane and Co. for the Appellant.
Mr. Rupesh Sohoni for the Respondent.
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Coram : Sharmila U. Deshmukh, J.
Reserved on: March 20, 2025.
Pronounced on : April 2, 2025.
JUDGMENT :
1. The First Appeal is at the instance of the Original Plaintiff
being dissatisfied with the Judgment and order dated 30 th August,
2024, passed by the City Civil Court, Greater Mumbai, dismissing Suit
No. 3355 of 2009. Suit No. 3355 of 2009 was initially instituted before
the High Court being Suit No. 863 of 2009 and due to enhancement of
pecuniary jurisdiction was transferred to the City Civil Court and re-
numbered as Suit No. 3355 of 2009. For sake of convenience parties are
referred to by their status before the Trial Court.
PLEADINGS:
2. S.C Suit No 3355 of 2009 has been instituted seeking
administration of estate and for partition and possession of 1/4th
share of suit property of one Purshottam Shantappa Borkar claimed to
have died intestate in Mumbai qua the suit property described in
Exhibit-A as under:-
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" Ex- "A"
Description of the suit property
1. Sixty Three shares bearing Nos. 2014 to 2033, 5501
to 5514, 5892 to 5901, 8980 to 8988, 12614, 13984
to 13987 and 14929 to 14933 of the Kurla Kamgar
Co. Operative Housing Society Limited, S. G. Barve
Road, Kurla (East), Mumbai - 400 024, and of the face
value of Rs. 50/- each.
2. Plot of land bearing No. 31/A admeasuring about
1250 sq. ft. with the Tenement No. 31/A having built-
up area of about 700 sqr. ft. standing thereon out of
the property of the Kurla Kamgar Co-Operative
Housing Society Limited at Kamgar Nagar, S. G. Barve
Road, Kurla (East) , Mumbai - 400 024."
3. The Plaintiff and the Defendants are siblings. The plaint
pleads that the deceased was the exclusive owner of immovable and
movable properties including the suit property. The deceased
Purshottam Borkar expired on or before 2 nd June, 1993. The Defendant
No 1 was married and was permitted by deceased to reside in the suit
property alongwith her family as the Defendant No 1's husband had
deserted her. The suit premises consists of seven rooms out of which
four rooms are in use and occupation of Plaintiff and three room are in
occupation of Defendant No 1. After the death of their father, the
Defendant No. 1 had filed Petition No. 553 of 1998 for obtaining
probate in respect of purported Will dated 10 th May, 1991 alleged to
have been executed by the deceased. Citations came to be issued
which was duly served upon the Plaintiff and the Defendants however
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the Plaintiff aws assured by Defendant No. 1 that he need not take any
steps take as the Defendant No. 1 will take all necessary steps to
protect the interest of all. The Plaintiff was further assured that he
need not worry about the residential premises since the same was in
occupation of the Plaintiff along with his family members. Relying on
the assurances the Plaintiff and the other defendants did not take any
steps and probate was granted on 7th November, 2000 in respect of the
purported last will and testament of the deceased. After obtaining
probate, the Defendant No 1 called upon the Plaintiff to vacate the
suit premises upon which the Plaintiff approached Defendant No 3,
who assured him that he will take necessary steps and that he had
sought legal advice. Relying upon the assurances of the Defendant No
3, the Plaintiff did not take any steps. In April-2006 the Plaintiff was
served with summons of S.C. Suit No. 1803 of 2006 filed by the
Defendant No. 1 seeking mandatory injunction against the Plaintiffs to
remove themselves from the suit premises.
4. In view of the subsequent development, search was taken
of the papers of Probate Petition No. 553 of 1998. It is contended that
the Defendant No.1 never declared to the Plaintiff that there was Will
in favour of the Defendant No. 1 and the Plaintiff had accepted the
papers duly served upon him which were not known at that time to be
citations in probate proceedings. The Plaintiff filed Petition for
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revocation of the probate which came to be disposed of by order dated
17th December, 2008. It was pleaded that the Will makes it clear that
the deceased had died intestate in respect of the suit property i.e.
Tenement No. 31-A as the deceased has neither dealt with the said
property nor there is residual clause in the Will qua the said property
and therefore the said property is not covered under the Will dated
10th May, 1991. The suit came to be filed seeking declaration that the
probate dated 7th November, 2000 granted by this Court is not
enforceable against the suit properties and that the Plaintiff is entitled
to 1/ 4th share in the estate properties left behind by the deceased and
for prohibitory injunction against the Defendant.
5. The suit came to be resisted by the Defendant No. 1
denying that the deceased had died intestate in respect of the suit
property or the others siblings had any right title and interest in the
suit property. It was contended that the Will dated 10 th May, 1991
contained a residuary clause in paragraph 6 wherein the deceased had
bequeathed to the Defendant No. 1 all his remaining estate immovable
as also movable absolutely and exclusively and in view thereof no
portion of the deceased estate remained to be administered.
EVIDENCE:
6. The Plaintiff examined himself and deposed as to the
contents of the plaint. He produced the copy of the order dated 18 th
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August, 2009 passed in Notice of Motion No. 1343 of 2009 in the suit,
photocopy of the probate dated 7th November, 2000 photocopy of
Judgment dated 29th November, 2012 passed in L. E. Suit No. 310 of
2008 dismissing the suit filed by the Plaintiff for a direction to the
Defendants to remove themselves from the suit premises and certified
copy of Judgment dated 9th October, 2015 passed by the Appellate
Bench of the Small Causes Court, dismissing the Appeal filed by the
Defendant No. 1. In cross-examination he has admitted that the
Defendant Nos. 2 and 3 had never initiated any proceedings against
Defendant No. 1 in respect of the suit property because they knew that
after their fathers death Defendant No. 1 would be owner of the suit
property as per the Will of the father.
7. DW-1, who is the grandson of the deceased, deposed as to
the contents of the written statement. He produced original probate
dated 7th November, 2000, authenticated copy of order dated 17 th
December, 2008 passed by the High Court, certified copy of order
dated 25th March, 2011 passed by the Co-operative Court in Dispute
filed by the Defendant No. 1 whereby the Society was directed to
transmit the shares of the deceased in name of the Defendant No. 1,
original share certificate issued by the Society in favour of the
Defendant No. 1 and the property tax bills in respect of the suit
premises issued in name of the Defendant No. 1.
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8. In cross-examination, DW-1 has admitted that the suit
premises is about 900 sqr. ft. out of which he is in possession of two
rooms admeasuring 350 sqr. ft. and Plaintiff is residing in remaining
area. He has admitted that his mother had not divided the property
and Ankola, Karnataka equally between the siblings.
ISSUES:
9. The Trial Court framed and answered the following issues:-
Sr. Points Findings
No.
1. Whether Plaintiff proves that he is entitled In the negative.
to partition of the suit property ?
2. Whether Plaintiff proves that he is entitled In the negative.
for 1/ 4th share in the suit property ?
3. Whether Defendant No. 1 proves that the In the Affirmative.
Will is genuine, properly signed and
attested ?
4. Whether Plaintiff is entitled for the reliefs In the negative.
as sought ?
5. What Order and Decree ? As per final Order.
FINDINGS OF TRIAL COURT:
10. The Trial Court held that the order passed in the probate
Petition has attained finality and in present case there is no issue of
title of testator and the issue of interpretation of Will cannot be re-
opened. After observing thus, the Trial Court considered the deceased
had died intestate in respect of the suit property. It opined that the
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Will specifically disclosed that there are only two immovable
properties and there is nothing on record to show that the testator has
any other immovable properties which are not mentioned in the Will
and thus the remaining property is the suit property which is
bequeathed to Defendant No. 1. It held that the burden was upon the
Plaintiff to prove that the remaining property does not mean the suit
property however the Plaintiff has not led any evidence to show that
the remaining property does not mean the suit property or the
testator was having any other immovable property excluding property
mentioned in the Will. It opined that it was possible for the Plaintiff to
give extraneous evidence to prove this aspect which he has failed to do
and dismissed the suit.
SUBMISSIONS:
11. Mr. Kachare, learned Counsel appearing for the Appellant
would submit that it was only because of assurances given by the
Defendant No. 1 that the Plaintiff did not contest the grant of probate.
He would draw the attention of this Court to the provisions of Section
89 of the Indian Succession Act, 1925 and would submit that if the Will
or bequest is not expressive of any definite intention, the same is void
for uncertainty. Taking this Court through the Will, he submits that the
Will speaks of the suit property, immovable property at Ankola,
Karnataka and certain other properties and there is specific bequest in
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respect of Ankola property and there is no specific bequest of the suit
property. He submits that the suit property does not fall within the
residuary clause governed by Section 103 of the Indian Succession Ac
as the Testator was perfectly capable to disposing of the suit property
by specific bequest. He submits that as the bequest about the suit
property is uncertain, the same is void under Section 89 of the Indian
Succession Act and would be governed by law of intestacy. In support
he relies upon the following Judgment:-
Balasaheb Dattoba Pawar Decd. Thru LR vs. Lalasaheb Dattoba
Pawar (passed by this Court in Civil Writ Petition No. 3788 of 2019
dated. 13th January, 2022).
Gurswarup Joshi vs. Beena Sharma & Ors.1
12. Per contra, Mr. Rupesh Sohoni, learned Counsel appearing
for the Respondents-legal heirs of original Defendant No 1 submits
that in the cross-examination, PW-1 has specifically admitted that
Defendant Nos. 2 and 3 had never initiated the proceedings as
everyone was aware that after the death of the father the Defendant
No. 1 owner of the suit property. He would further pointed out the
findings of the Trial Court that no evidence has been led by the
Plaintiff to show that the testator was having other immovable
property excluding the properties mentioned in the Will. He submits
1 (2006) 5 Supreme Court Cases 119
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that the suit premises is self acquired property of the deceased and he
had full rights to bequeath the same. He submits that there is no
objection to the title of the testator and the probate having been
granted the Will cannot be challenged before the Trial Court. He would
further submit that the Society has already transmitted all the share
certificate in favour of the Defendant No. 1 and maintenance is being
paid by the Defendant No. 1 as well as the property taxes. He would
further submit that it is not the Plaintiff's case that the testator had
more than two properties and admittedly Ankola, Karnataka property
is ancestral property and therefore the bequest of the suit property
would fall within the remaining estate which has been bequeathed to
the Defendant No. 1. He would further submit that under the
provisions of Section 142 of the Succession Act where testator
bequeath to any person specified part of his property which is
distinguished from the other part of the property the legacy is said to
be specific. He submits that in the present case, the Ankola, Karnataka
property has been specifically bequeathed and therefore the
remaining estate would include the suit property which has been
bequeathed to Defendant No. 1.
13. The following points would arise for determination.
(i) Whether the deceased Purshottam Borkar has died intestate qua
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the suit property?
(ii) Whether under the Will dated 10 th May, 1991, the suit property falls
in residuary clause and has been bequeathed to the Defendant No 1?
(iii) Whether the Trial Court had the jurisdiction to adjudicate the issue
of intestacy of the deceased qua the suit property once Probate has
been obtained by the Defendant No 1?
As to point No. (i) to (iii):
14. All the issues can be considered together as the discussion
would be common for answering the issues. There is no dispute that
the Defendant No 1 had obtained Probate of the Will of deceased and
the application for revocation came to be dismissed as the Court found
that the dispute was not about the probate but rights, title and
interest of the parties in the immovable properties in question. It is
well settled proposition that the testamentary proceedings are only
concerned with the aspect of genuineness and authenticity of the Will.
The testamentary Court does not have the jurisdiction to determine
the issue of intestacy succession which only Civil Court can do. All that
the testamentary Court does is establish the factum of execution of
Will. The suit which was filed by the Plaintiff sought administration of
the estate on the ground that the deceased had died intestate qua the
suit property and the Plaintiff being one of the heir was entitled to
1/4th share of the suit property. The plaint did not question the
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authenticity or genuineness of the Will, which was already decided by
the testamentary Court. All that was sought was administration of
estate of deceased qua the suit property and determination of right of
Plaintiff in intestacy succession. The Civil Court therefore had the
jurisdiction to adjudicate the issue raised in the suit.
15. The Plaintiff is seeking share in the suit property by way of
intestacy succession as according to him, there was no testamentary
disposition of the suit property. The Will is a short document and is re-
produced as under:
"LAST WILL AND TESTAMENT"
1) I, PURUSHOTTAM SHANTAPPA BORKAR aged about
79 years of Bomba, Hindu Inhabitant, residing at 31/A,
Kurla Kamgar Nagar, S. G. Barve Road, Kurla (East),
Bombay-400 024, do hereby cancel and revoke all the
previous Wills and other testamentary writings hereto-
fore made by me and do hereby declare this to be my
last Will and testament.
2) I hereby appoint my elder daughter, Mrs. KUMUDINI
R. AMRUTE, to be the sole executrix of this Will.
3) I am a member of the Kurla Kamgar Co-operative
housing Society Ltd., Kurla ( East), Bombay- 400 024,
and as such I am the holder of certain shares of the
said society and also the owner of the Tenement No.
31/A in the property of the said Society at Kurla
Kamgar Nagar, S.G. Barve Road, Kurla (East), Bombay
- 400 024. I also have half share in certain immovable
property at Ankola, North Kanara District. I also have
certain other property.
4) I am residing in the said Tenement No. 31/A. My
elder daughter Mrs. Kumudini R. Amrute and her
family are residing with me in the said Tenement as
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members of my family. My younger son, Atul P. Borkar,
and his family are also residing with me in the said
Tenement as members of my family. For the sake of
convenience, my name is included in the Ration Card of
my younger son, Atul. Till recently, the names of my
elder daughter, Mrs. Kumudini R. Amrute, and of her
family members, were also shown in the Ration Card
of my younger son, Atul. Recently, my said elder
daughter has secured a separate Ration Card for
herself and her family members at the address of the
said Tenement.
5) I have two sons, Ashutosh and Atul, and two
daughters, Mrs. Kumudini R. Amrute, and Mrs. Latika S.
Redkar. I give my property at Aukola to all my children
in equal shares. My elder son, Ashutosh, has separated
from my family long back and is doing fine. Hence, I
exclude him from my remaining estate. I have already
given to my younger daughter, Mrs. Latika S. Redkar,
whatever I wished to give her, and hence, I hereby
exclude her from my remaining estate. Though my
younger son, Atul, is residing with me, he does not look
after me and he has been ill-treating me, as also my
elder daughter. I have no desire to give him any portion
of my estate and hence, I hereby exclude him from my
remaining estate.
6) I hereby bequeath all my remaining estate,
movable as also immovable, to my elder daughter, Mrs.
Kumudini R. Amrute, absolutely and exclusively. No
other person shall have any share whatsoever in my
said remaining estate. My said elder daughter has been
looking after me and taking good care of me, and I am
sure she will continue to do so for the rest of my wife.
IN WITNESS WHEREOF I have executed this
last will and testament at Bombay this 10 th day of May
1991.
sd/- P. S. Borkar.
(PURUSHOTTAM SHANTAPPA BORKAR)
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Signed by the abovenamed Testator as his last Will and
testament in our presence who at his request and in his presence
and in the presence of each other signed hereto as witnesses.
(1) I have examined the abovenamed Testator and found him to
be in good mental and physical health and of sound mind and
understanding.
Sd/- C. S. Vartak
Dr. Chandrakant S. Vartak, 11, Gulab
Baug, Dr. A. Soares Road, Chembur,
Bombay - 400 071.
sd/- K. V. Tembe.
Kishor V. Tembe, Advocate High Court,
417, D. K. Sandu Marg, Chembur,
Mumbai - 400 071."
16. The sum and substance of Plaintiff's case is that the
intention of Testator was to exclude the Plaintiff and other Defendants
except Defendant No 1 from remaining estate which did not include
the Ankola property and suit property and as there is no residuary
clause in the Will qua the suit property and no specific bequest, the suit
property will devolve by intestacy.
17. First let us ascertain the estate of the deceased. The estate
of the Testator is stated in Clause 3 which mentions certain immovable
property at Ankola, North Kanara District, the suit property and
"certain other property." Unlike the Ankola property and suit property,
there is no specific description of the other property mentioned in
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Clause 3. There are no details about its location or even whether it is
movable or immovable. Section 75 of Indian Succession Act, 1925,
permits an inquiry to be conducted for the purpose of determining as
to what property is denoted by any words used in a Will. The Will does
not give any indication of the other property referred to in Clause 1.
No evidence has been produced by the Plaintiff to prove that the
Testator owned any other property except the Ankola property and
suit property. Thus there is no material on the basis of which it can be
determined which property is referred to in Clause 1 of Will. The
Testator has made a general reference to certain other property and in
the absence of any evidence to determine which property was referred
to by the Testator, it must be held that apart from Ankola property and
suit property, there was no other property owned by the Testator.
18. Next issue to be considered is the bequests in the Will. As
far as Ankola property is concerned, in Clause 5, the Ankola property is
bequeathed to all the children in equal shares. The Will then states that
the Testator excludes his other children excluding the Defendant No 1
from his remaining estate. The Will uses the words "remaining estate"
after making specific bequest of Ankola property.
19. It is settled that in determining the real intention of the
Testator, the entire document has to be construed as a whole. The
wordings in the Will have to be given meaning in accordance with the
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desire of the Testator. In interpreting as to what the Testator meant by
the words "remaining estate", the entire Will has to be read as a whole.
When so read, it is evident that the Will first sets out the testator's
estate, which as discussed above can mean the Ankola property and
suit property. After specific bequest of Ankola property, there is only
the suit property remaining. The Testator by using the words
"remaining estate" meant the suit property. As the Testator was well
aware of the suit property and specifically described the suit property
in Clause 3, there is no reason why the Testator would leave the suit
property to devolve by intestacy. It is trite that Law favours
construction of the Will that will prevent partial intestacy. In present
case, there is no reason to treat the case as one of partial intestacy
considering that the Testator makes express mention of the suit
property as one of his assets.
20. The intention of the Testator was to bequeath his estate
except Ankola property to Defendant No 1. After the specific bequest
of Ankola property, the Will expresses the desire of the Testator to
exclude his elder son Ashutosh, younger daughter Latika and younger
son Atul-present Plaintiff from the remaining estate. The Testator has
expressly stated that the Plaintiff has been ill-treating him and the
Defendant No 1 and he has no desire to give him any portion of the
estate. After making his desire clear in Clause 5, he bequeaths the
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remaining estate movable as also immovable to the Defendant No 1
absolutely and exclusively. It is clear from Clause 6 that the bequest
contained therein is residuary bequest comprising of the remaining
estate belonging to the testator after specific bequest of Ankola
property, which is the suit property, with the Defendant No 1 being the
residuary legatee.
21. According to Plaintiff, there are three properties - the
Ankola property, the suit property and certain other property and the
bequest qua the suit property is void for uncertainty as the Will does
not make specific bequest. As discussed above, there is no evidence
adduced to show that apart from Ankola property and suit property
there is any other property to constitute the estate of the deceased.
Under Section 82 of Indian Succession Act, the meaning of any clause is
to be collected from entire instrument and all its parts are to be
construed with reference to each other. Now the Will in Clause 1
mentions the Ankola property, the suit property and certain other
property. In Clause 2 , there is mention of the persons residing in the
suit property. In Clause 5, there is specific bequest of Ankola property
and specific exclusion of all children except Defendant No 1 from
remaining estate and in Clause 6 all remaining estate movable and
immovable is bequeathed exclusively to Defendant No 1. The various
clauses of the Will when read together do not contain any uncertainty
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or ambiguity as regards the bequests.
22. By the residuary Clause 6 of the Will, the Testator has
bequeathed all his remaining estate movable as also immovable to
Defendant No 1 to the clear exclusion of all others. By making specific
bequest of Ankola property, all remaining estate which will include the
suit property will fall in the residuary clause and the Defendant No 1
being the residuary legatee will be entitled to the same.
23. Though Mr. Kachare, would emphasize that the bequest is
void for uncertainty, the submission is premised on the ground that in
absence of specific bequest of suit property, the use of words
"remaining estate" would make the bequest uncertain and therefore
void by placing reliance on Section 89 of the Indian Succession Act. If
the provisions of Section 89 are perused, it provides for a Will or
bequest not expressive of any definite intention to be void for
uncertainty. In the present case as the Testator has bequeathed his
remaining estate, which includes the suit property, in favour of
Defendant No 1, there is no uncertainty. That apart, even if the
bequest in respect of the suit property is considered void, in view of
Section 103 of Indian Succession Act, the suit property would fall in the
residuary clause as void legacy and Defendant No 1 will be entitled to
the bequest of suit property unless some intention of testator is shown
which is inconsistent with its falling in residuary clause. The illustration
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under Section 103 of Indian Succession Act makes it clear that lapsed
legacy or void legacy falls in the residue.
24. It will also be pertinent to note Section 102 of the Indian
Succession Act which says that the residuary legatee will be
constituted by any words that shows an intention on the part of the
testator that the person designated shall take the surplus or residue of
his property. There is clear intention of the Testator to bequeath all
properties to the Defendant No 1 except Ankola property which is
equally distributed amongst all the children.
25. The Trial Court had rightly construed the stipulations in
the Will and has held that the Will makes specific reference to two
immovable properties of the testator and there is no evidence which
has been brought on record to show that the testator has any other
immovable properties which are not mentioned in the Will. Upon
considering the evidence on record the Trial Court has interpreted the
bequest of the remaining estate to include the suit property. The Trial
Court has further noted that it was possible for the Plaintiff to give
extraneous evidence to prove the ambiguity which the Plaintiff has
failed to prove.
26. The Trial Court has rightly interpreted the Will as what was
required to be considered is the intention of the testator to be
gathered upon the reading of the entire Will. The stipulations in the
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Will makes it evident that except the property at Ankola, Karnataka,
the Testator did not desire to give any part of his estate to his children
except Defendant No 1.
27. In light of the discussion above, it is held that the deceased
Purshottam Borkar did not die intestate qua the suit property and
under the Will, the suit property fell in the residuary clause and has
been bequeathed to the Defendant No 1. As the suit sought share in
the suit property in intestacy succession, the Civil Court had the
jurisdiction to entertain and try the suit.
28. Resultantly, the First Appeal fails and stands dismissed.
29. In view of the dismissal of First Appeal, nothing survives
for consideration in the pending Civil/Interim Applications and the
same stand disposed of.
[Sharmila U. Deshmukh, J.]
30. At this stage, a request is made for continuation of interim
relief which was operating in favour of the Appellant for a period of
eight weeks from today. The interim relief is operating since long and is
therefore extended for a further period of eight weeks from today.
[Sharmila U. Deshmukh, J.]
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