Case Note & Summary
The appeal arose from an order dated 30 August 2011 of a learned Single Judge of the Bombay High Court in a testamentary matter. The background involves the estate of Kesarbai Ramdas, who died on 26 March 1995, having executed a will on 2 September 1972 and three codicils. The second and third respondents, named as executors, applied for probate only of the will on 1 February 2000. The first appellant, a daughter of the deceased, took out an originating summons on 11 August 2006 seeking probate of the will and the first two codicils and a declaration that the third codicil was invalid. On 16 June 2007, probate was granted in respect of the will and the first two codicils. On 16 October 2008, the first appellant and another filed a petition for removal of the second and third respondents as executors on the ground that they failed to administer the estate. The petition came up before the learned Single Judge, who passed the impugned order after considering a report by the Additional Registrar. The order noted that the parties were disputing over many orders sought by the Administrator, that evidence would have to be recorded for distribution of items, and that the second and third respondents were permitted to file an evidence affidavit. The appellants challenged this order by way of appeal. A preliminary objection was raised by the second and third respondents that the order did not constitute a 'judgment' under Clause 15 of the Letters Patent and hence the appeal was not maintainable. The Division Bench, after hearing the parties, upheld the preliminary objection. The court held that the impugned order merely directed recording of evidence and permitted filing of an affidavit; it did not decide any substantive rights of the parties. Therefore, it was not a 'judgment' within the meaning of Clause 15 of the Letters Patent, and the appeal was dismissed as not maintainable. The court did not express any opinion on the merits of the case.
Headnote
A) Civil Procedure - Appeal - Maintainability - Judgment under Clause 15 Letters Patent - Impugned order directing recording of evidence and permitting filing of affidavit does not decide substantive rights of parties - Held that such an order is not a 'judgment' and appeal is not maintainable (Paras 1-2, 5-6). B) Testamentary Law - Probate - Will and Codicils - Executors applied for probate only of will, not codicils - Appellant sought probate of will and first two codicils and declaration that third codicil was invalid - Probate granted in respect of will and first two codicils on 16 June 2007 (Paras 3-4). C) Testamentary Law - Removal of Executors - Petition filed for removal of executors on ground of failure to administer estate - Matter pending before Single Judge - Order for evidence recording does not finally determine rights - Held that appeal against such order is not maintainable (Paras 4-6).
Issue of Consideration
Whether the order dated 30 August 2011 of the learned Single Judge constitutes a 'judgment' within the meaning of Clause 15 of the Letters Patent, so as to be appealable.
Final Decision
The appeal is dismissed as not maintainable. The preliminary objection is upheld. The impugned order does not constitute a 'judgment' under Clause 15 of the Letters Patent. No order as to costs.
Law Points
- Appeal maintainability
- Judgment under Letters Patent
- Testamentary jurisdiction
- Probate and codicils
- Removal of executors
