Case Note & Summary
The case arises from a probate petition concerning the Will of Nitinkumar Madhavji Rangwala dated 28th June 2004. The Will appointed four executors, including the respondent Jigna Jay Kantawala and the appellants Reena Sanjay Minz and Siraj Mohammed Yusuf. Initially, the probate petition was filed by the appellants, but the respondent's name was deleted. After an order dated 21st June 2012, notice was issued to the respondent, who responded but her reply was deemed not in proper form, leading to a direction for her to appear in court. On 26th November 2012, she appeared and accepted executorship, and the court directed the appellants to join her as co-petitioner. However, the appellants did not comply. On 3rd December 2012, the respondent was present but had not verified the petition. Subsequently, on 3rd April 2013, the court passed an order without including the respondent. The respondent then filed a Notice of Motion (No. 64 of 2014) to recall that order, along with an application to condone delay. The learned Single Judge condoned the delay and recalled the order, directing that the respondent's name be shown as a joint executor. The appellants appealed against this order. The Division Bench held that the Single Judge's order was correct, as the earlier direction to include the respondent had not been complied with, and the delay was properly condoned. The appeal was dismissed, and the respondent was to be added as a joint executor.
Headnote
A) Civil Procedure - Condonation of Delay - Recall of Order - The court considered whether delay in filing a notice of motion should be condoned and whether an order can be recalled to include a joint executor - Held that the Single Judge correctly exercised discretion to condone delay and recall order to give effect to earlier direction that respondent be added as co-petitioner (Paras 1-8).
Issue of Consideration
Whether the learned Single Judge was justified in condoning the delay and recalling the order dated 3rd April, 2013 to include the respondent as a joint executor of the Will.
Final Decision
Appeal dismissed. Order of Single Judge dated 9th June 2015 condoning delay and recalling order dated 3rd April 2013 is upheld. Respondent to be added as joint executor of the Will dated 28th June 2004.
Law Points
- Condonation of delay
- Recall of order
- Joint executors
- Probate proceedings
- Testamentary jurisdiction
Case Details
2015 LawText (BOM) (11) 19
APPEAL (LODGING) NO. 486 OF 2015 IN NOTICE OF MOTION NO. 64 OF 2014 IN TESTAMENTARY SUIT NO. 15 OF 2007 IN TESTAMENTARY PETITION NO. 888 OF 2006
V. M. Kanade, Dr. Shalini Phansalkar-Joshi
Mr. Bhavesh Parmar I/b Mr. Vijay Prakash Yadav for the Appellants/Applicants, Mr. Vivek Kantawala with Mr. Amey Patil I/b M/s. Vivek Kantawala & Co. for the Respondent
Reena Sanjay Minz and Siraj Mohammed Yusuf
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Nature of Litigation
Appeal against order of Single Judge condoning delay and recalling order to include respondent as joint executor in probate proceedings.
Remedy Sought
Appellants sought to set aside the order dated 9th June 2015 recalling the order dated 3rd April 2013 and directing inclusion of respondent as joint executor.
Filing Reason
Appellants aggrieved by Single Judge's order condoning delay and recalling earlier order to include respondent as joint executor.
Previous Decisions
Order dated 3rd April 2013 passed without including respondent; Notice of Motion No. 64 of 2014 filed by respondent to recall that order; Single Judge allowed the motion on 9th June 2015.
Issues
Whether the learned Single Judge was justified in condoning the delay in filing the Notice of Motion.
Whether the learned Single Judge was justified in recalling the order dated 3rd April 2013 to include the respondent as a joint executor.
Submissions/Arguments
Appellants argued that the respondent had renounced executorship by not filing proper reply and that delay in filing Notice of Motion was not properly explained.
Respondent argued that she had accepted executorship in court on 26th November 2012 and that the appellants failed to add her as co-petitioner despite court direction.
Ratio Decidendi
The Single Judge correctly exercised discretion to condone delay and recall the order to give effect to the earlier direction that the respondent be added as co-petitioner, as the appellants had failed to comply with that direction.
Judgment Excerpts
The appellants are aggrieved by an order passed by the learned Single Judge dated 9th June, 2015.
By the said order, the learned Single Judge was pleased to recall order dated 3rd April, 2013 after condoning the delay caused in filing the Notice of Motion by the respondent and directed that the name of the respondent may also be shown as a joint executor of the Will dated 28th June, 2004.
Procedural History
Probate petition filed by appellants including respondent's name; respondent's name deleted; notice issued to respondent; respondent appeared on 26th November 2012 and accepted executorship; court directed appellants to add her as co-petitioner; appellants did not comply; order dated 3rd April 2013 passed without including respondent; respondent filed Notice of Motion No. 64 of 2014 to recall order with delay condonation application; Single Judge allowed motion on 9th June 2015; appellants filed present appeal.
Acts & Sections
- Indian Succession Act, 1925:
