Case Note & Summary
The matter arose from a testamentary petition filed by the younger daughter of the deceased Kamlakar Dattopant Abhyankar seeking probate of his last will and testament. The applicant before the court was the elder daughter, who was the original caveatrix in the testamentary proceedings. The dispute centered on the administration and distribution of the estate, particularly one immovable flat at Mumbai Central, after the movable assets had been divided equally between the two sisters. The petition was filed on 06.04.2022, accompanied by a notarized consent affidavit dated 09.03.2022 from the elder daughter, giving no-objection for grant of probate and waiving service of citation. Approximately ten months later, on 18.01.2023, she filed a caveat opposing the grant, disowning her own consent affidavit. On 20.06.2023, the court observed that the caveat would not be maintainable unless it pointed out absolute perversity or fraud, noting there was only one immovable property to be sold and apportioned. The matter was then fixed for 04.07.2023. On that date, after hearing both advocates, the court recorded that both parties, being the only legal heirs, agreed to claim the legacy in equal proportion (50% each). Consequently, the court granted leave to the original petitioner to amend the petition and convert it into 'Letters of Administration along with Will annexed', dispensing with re-verification. The movable assets had already been apportioned equally; only the immovable flat remained. The elder daughter subsequently filed an interim application on 28.08.2023 seeking modification of the order by adding the words 'by making a joint application' at the end of paragraph 2 of the order. She pleaded trust deficit because the original petitioner was not communicating and she feared non-disclosure of sale proceeds of the flat. Her counsel argued that due to the petitioner's unjust conduct during distribution of gold, the applicant was against any order in favour of the petitioner as sole executor. The original petitioner's counsel opposed, offering an undertaking to conduct the sale transparently with full written disclosures, pointing out that the applicant could bring her own buyer, and that appointment of a court receiver would lower the sale price. The court found no error apparent on record in the order dated 04.07.2023. It emphasized that the applicant had filed a consent affidavit and had agreed before the court to equal apportionment. The modification sought was impermissible in law. The court noted that both parties were ad idem that the flat had to be sold, but the trust deficit did not warrant modification. The addition of the words was not required because the consent had already been recorded and there was no ambiguity that could be exploited. Accordingly, the interim application was dismissed.
Headnote
A) Civil Procedure - Modification of Consent Order - Consent order cannot be modified unless there is fraud or error apparent on record - No specific Act cited in judgment - Applicant sought addition of words 'by making a joint application' to consent order dated 04.07.2023; court found no error apparent on record and held modification impermissible, especially after prior consent affidavit and recorded agreement to equal apportionment - Held that interim application dismissed (Paras 10-12). B) Testamentary Law - Consent and Caveat - A caveat filed after consent affidavit is not maintainable absent absolute perversity or fraud - No specific Act cited in judgment - Court had earlier observed that consent given at outset leading to grant of probate made caveat not maintainable unless perversity or fraud pointed out, and subsequent attempt to challenge will signature was too late; consent agreement on 04.07.2023 remained binding - Held trust deficit not ground to set aside consent (Paras 3.4, 10). C) Succession - Equal Apportionment Among Legal Heirs - When parties agree to equal share, court can record consent and direct Letters of Administration with Will annexed - No specific Act cited in judgment - Two daughters as only legal heirs agreed to 50% each for immovable flat; court directed amendment of petition and issuance of Letters of Administration; later request to include joint application was rejected as no ambiguity existed and consent already recorded - Held no modification required (Paras 3.6, 10-11).
Issue of Consideration
Whether the court can modify its consent order dated 04.07.2023 by adding 'by making a joint application' when there is no error apparent on record and the applicant had previously consented to equal apportionment; whether alleged trust deficit and fear of non-disclosure by the original petitioner warrant modification of the consent order.
Final Decision
Interim Application dismissed. Court held no error apparent on record in order dated 04.07.2023; modification impermissible; consent recorded; no ambiguity; addition of words not required.
Law Points
- Consent order can be modified only on ground of fraud or error apparent on record
- Prior consent affidavit and subsequent agreement to apportion estate equally bar later modification
- Mere trust deficit or apprehension of non-cooperation insufficient to modify consent order
- Court cannot add words to order when consent recorded and no ambiguity exists
- Letters of Administration with Will annexed can be granted based on parties' consent
