Case Note & Summary
Testamentary Suit No.14 of 2004 arose from Testamentary Petition No.80 of 2004 filed for probate of the Will of deceased Bipin Gupta. The suit was pending before the Bombay High Court, O.O.C.J. The original petitioner was Vasant Sardal, one of the executors named in the Will. After his removal, court officers were appointed as administrators; at the time of the present judgment, Shonali K. Dighe, an officer of the court, was the plaintiff/administrator. Defendants were Ashita Tham and Monica Uberoi, sisters of the deceased, and Pooja Bedi, niece (daughter of pre-deceased sister Protima Bedi). The deceased Bipin Gupta was the son of Laxmichand Gupta and Reba Gupta. The family were tenants of Flat No.2, Firdaus Building, Marine Drive, where Laxmichand carried on business of Norman's Guest House. After Laxmichand died in 1969, his wife and children continued as tenants. Reba Gupta died leaving a Will dated 25.01.1994, and probate proceedings were initiated by Henry Tham, husband of Defendant No.1, which were opposed by deceased Bipin Gupta. On 20.06.2003, while undergoing treatment for renal failure and hip fracture at Bombay Hospital, Bipin Gupta executed the Will that is the subject matter of this suit. The Will named Vasant Sardal and Behram Ardeshir as executors, and was attested by Santosh Raje and Anil Sardal. The Will bequeathed the entire estate to charity excluding family members and indirectly to the executors. Bipin Gupta died on 04.09.2003. Executors took the body for cremation without informing family. Neighbours informed the defendants. Defendants filed RAD Suit No.2326 of 2003 in Small Causes Court to declare themselves monthly tenants of Flat No.2, and Administration Suit No.4060 of 2003 in Bombay High Court. Behram Ardeshir renounced executorship on 28.10.2003. Copy of Will was provided to police on 11.09.2003 after persuasion. On 08.12.2003, Vasant Sardal filed the present testamentary petition for probate. Defendant sisters filed caveats. In 2004, Notice of Motion for Court Receiver was filed. Consent Terms were entered on 01.07.2004 and 22.11.2005 agreeing to surrender tenancy and share proceeds equally. The suit was disposed on 22.02.2006 recording consent terms, and administration suit disposed on 24.04.2006. However consent terms not acted upon. In 2009, landlord filed eviction suit. Behram Ardeshir was reinstated as executor on 30.07.2009, but review was sought. Orders followed. On 03.05.2018, Vasant Sardal was removed as executor, Behram Ardeshir stated he did not wish to continue, and Ketan Trivedi appointed administrator. Same day consent terms set aside, caveats revived, petition converted to suit. Later administrators replaced. Witness action commenced; PW-1 Santosh Raje filed affidavit and was cross-examined; DW-1 completed evidence; court commissioner report filed. Administrator filed reports regarding repairs and directions but the available text ends mid-sentence in paragraph 3.8, so the final analysis and decision are not available.
Headnote
A) Succession Law - Probate of Will - Court Appointed Administrator to Prosecute Probate After Executor Removal - Not mentioned - Deceased executed will on 20.06.2003 during hospitalization; original executor Vasant Sardal was removed on 03.05.2018 after it was noted that his acts were directed by his son, an attesting witness; a court officer was appointed as administrator and later replaced by successive court officers; plaintiff before court is the current administrator. Held that removal of executor and appointment of administrator was necessary to ensure proper representation of estate (Paras 1, 3.2, 3.4). B) Civil Procedure - Testamentary Proceedings - Revival of Caveats and Conversion of Petition to Suit - Not mentioned - Consent terms dated 22.11.2005 were set aside on 03.05.2018 as contrary to the deceased's wishes; defendants' caveats were revived and testamentary petition converted into testamentary suit for letters of administration. Held that consent terms conflicting with testamentary intent cannot be implemented and caveats could be revived (Paras 3.3, 3.4). C) Civil Procedure - Consent Terms - Enforceability of Consent Terms Contrary to Testator's Wishes - Not mentioned - Parties had entered consent terms to surrender tenancy of Flat No.2, Firdaus Building and share proceeds equally, which conflicted with the Will's charitable bequest; Court dismissed motion for implementation on 09.03.2011 as contrary to deceased's wishes and later set aside consent terms. Held that consent terms that defeat the testator's expressed intentions are invalid and unenforceable (Paras 3.2, 3.3). D) Evidence - Witness Action - Examination of Attesting Witness - Not mentioned - Attesting witness Dr. Santosh Raje (PW-1) filed affidavit of evidence and was cross-examined; DW-1 completed evidence; Court Commissioner filed report regarding witness action. Held that witness action was concluded to prove due execution of Will (Paras 3.5, 3.7).
Issue of Consideration
Whether the Will dated 20.06.2003 executed by deceased Bipin Gupta is valid and entitled to probate; whether the executors acted in accordance with the deceased's wishes; whether consent terms entered into between parties were valid and enforceable given conflict with the Will; whether the Administrator appointed by the Court is the proper party to prosecute the probate claim.
Final Decision
Not mentioned in the available portion of the judgment
Law Points
- Testamentary proceedings must be prosecuted by a fit and proper person
- consent terms conflicting with the testator's last will cannot be enforced
- an executor may be removed for misconduct and a court officer appointed as administrator to protect the estate
- caveats filed by kin can be revived when consent terms are set aside
- the propounder of a will must prove due execution and attestation through witness action.
