Case Note & Summary
The petitioners, Mukesh Ramanlal Gokal and Bharat Ramanlal Gokal, filed a petition under the Testamentary and Intestate Jurisdiction of the Bombay High Court seeking to set aside orders dated 4th August 2011 and 6th August 2011 passed by the Prothonotary and Senior Master. The orders permitted the respondent, Ashok Jagjivan Gokal, to amend the schedule of assets annexed to the probate granted on 13th December 2007. The deceased, Ramanlal Gokal, died on 22nd March 2007, leaving a will dated 25th January 2005 and a codicil dated 28th June 2006. The respondent, as one of the executors, filed Probate Petition No. 733 of 2007 for grant of probate. The original schedule of assets included an item describing the Mercantile House property with specific floor areas and a 50% share in a bank account. The respondent later amended the schedule to describe the property as 'Owner of Mercantile House situated at Magazine Street, Basement Ground plus six floors, Reay Road, Mumbai with its attendant assets and its right, title and interest in Mercantile House for the valuation of Rs.40,32,08,000/.' The petitioners filed consent affidavits and did not initially object. However, they later challenged the amendment, arguing that the Prothonotary had no power to allow such amendment and that it amounted to amending the probate itself. The court considered the provisions of the Indian Succession Act, 1925, particularly Section 317, and held that the schedule of assets is not part of the probate but a separate document. The Prothonotary has the power to allow amendments to the schedule, and such amendments do not require the consent of all parties. The court dismissed the petition, upholding the orders of the Prothonotary.
Headnote
A) Probate - Amendment of Schedule of Assets - Power of Prothonotary - Section 317 Indian Succession Act, 1925 - The Prothonotary and Senior Master has the power to allow amendment of the schedule of assets annexed to the probate, as the schedule is not part of the probate but a separate document. The court held that the amendment of the schedule does not amount to amendment of the probate, and the Prothonotary acted within his jurisdiction. (Paras 1-10) B) Probate - Consent of Parties - Amendment of Schedule - The consent of all parties is not required for amendment of the schedule of assets, as the schedule is merely a list of assets and does not affect the validity of the probate. The court held that the petitioners' consent was not necessary. (Paras 5-8)
Issue of Consideration
Whether the Prothonotary and Senior Master has the power to allow amendment of the schedule of assets annexed to the probate, and whether such amendment amounts to amendment of the probate itself.
Final Decision
The court dismissed the petition, upholding the orders of the Prothonotary and Senior Master dated 4th August 2011 and 6th August 2011.
Law Points
- Prothonotary has power to allow amendment of schedule of assets in probate proceedings
- Amendment of schedule of assets does not amount to amendment of probate
- Consent of all parties not required for amendment of schedule
- Section 317 Indian Succession Act
- 1925
