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Andhra Pradesh High Court
Judges : D.S.R.VERMA, G.ROHINI
D.Venkayya Chowdary - Appellant
Versus
Paruchisti R.Katrak - Respondent
Decided On : 01-01-06
Indian Succession Act, 1925 – Section 63, 213, 276, 278 and 301 – Grant letters of administration - Grant costs - Advocate of respondent intimated petitioner that her deceased mother had executed a will during her lifetime and same had been in his custody and she was asked to go to office of Advocate – Apartments at about when petitioner her husband and her relatives visited the office of the said advocate, will was opened read over and a xerox copy of will was furnished to petitioner original will was not shown to them petitioner was also informed that respondent was appointed as executor under will and he would discharge the obligations under will – Apart from being an Executor respondent was reported to be a beneficiary under will – Under said will respondent was reportedly given house sunshine along with furniture and other fixtures with life interest and to give same to charity later – Petitioner was also given meagre benefits under form of shares but no details of such shares were furnished – Some notices were exchanged between petitioner and respondent with regard to details of estate petitioner asked respondent to take probate of will as will also provided for same – Held, Any prudent person intends to give away the property by way of a will, he or she would normally think of his or her immediate person and case of creating interest of a trust that discretion would be exercised by himself or herself as case may be instead of leaving it to some other person to exercise stance on the part of testatrix is an added circumstance to already expressed doubtful circumstance though not by itself a doubtful circumstance – It virtually amounts to alienating all rights to respondent – Concerned taking into consideration the overall facts and circumstances, particularly the evidence on record, both oral and documentary, we are of opinion that who is referred to as respondent present common judgment, are liable to be dismissed and impugned common order and decrees, whereby the court below filed by daughter of testatrix seeking to grant letters of administration in respect of estate of deceased and filed by respondent seeking to grant probate of Ex. A-1 will alleged to have been executed by deceased appointing respondent as executor are liable to be confirmed and hence we have no option except to allow filed before this Court by the daughter of deceased seeking to remove name of respondent – Application is allowed.
( 1 ) HEARD both sides.
( 2 ) C. M. A. NO. 2770 of 1999 and C. M. A. No. 2771 of 1999 are directed against the common order and decrees, dt. 30-7-1999, in O. P. No. 134 of 1996 and O. P. No. 140 of 1996, respectively passed by the I Additional chief Judge, City Civil Court, Secunderabad.
( 3 ) O. P. No. 11 of 1999 is filed before this court by the petitioner in O. P. No. 134 of 1996 against the appellant in C. M. A. Nos. 2770 of 1999 and 2771 of 1999.
( 4 ) THE respondent in O. P. No. 134 of 1996 and the petitioner in O. P. No. 140 of 1996 is the appellant herein, the petitioner in O. P. No. 134 of 1996 and respondent No. 1 in O. P. No. 140 of 1996 is the respondent herein, while the petitioner and respondent in O. P. No. 11 of 1999 are the respondent and appellant, respectively, in the said Civil miscellaneous Appeals.
( 5 ) O. P. No. 134 of 1996 was filed under section 278 of the Indian Succession Act, 1925 (for brevity "the Act"), O. P. No. 140 of 1996 was filed under Sections 213 and 276 of the Act while O. P. No. 11 of 1999 is filed under Section 301 of the Act.
( 6 ) FOR the sake of convenience, in this common judgment, the petitioner in O. P. No. 134 of 1996 and the petitioner in O. P. No. 140 of 1996 will be referred to as "the petitioner" and "the respondent", respectively.
( 7 ) WE may usefully notice the prayers made in O. P. Nos. 134 of 1996 and 140 of 1996 filed before the Court below, as well as the prayer made in O. P. No. 11 of 1999 filed before this Court, which run thus: o. P. No. 134 of 1996:" (i) to grant letters of administration to petitioner in respect of the estate of the deceased, Mrs. Mani Ardeshir hormasji; (ii) to grant costs of the petition; and (iii) to grant such other relief or reliefs as this Hon ble Court deems fit and proper under the circumstances of the case. "o. P. No. 140 of 1996:"petitioner, therefore, prays that this hon ble Court may be pleased to grant probate of the "will" dated 23-3-1995 executed by the Testatrix to the petitioner herein as he is the named Executor in the "will" and pass such other and further order or orders as this Hon ble Court deems fit and proper in the circumstances of the case. o. P. No. 11 of 1999: (a) removing the respondent whose name is mentioned as Executor under the fabricated "will" dated 23-3-95; (b) appoint the petitioner as the administrator of the estate of Late mrs. Mani A. Hormasji; (c) pass any other order or orders as this Hon ble Court deems fit and proper in the circumstances of the case, and (d) allow the costs. "
( 8 ) THE averments, in brief, in O. P. No. 134 of 1996 are that the petitioner is the only child of her stepfather, late Ardeshir Hormasji, who died on 6-6-1985 leaving his widow by name Mrs. Mani A. Hormasji, i. e. , her mother, and herself. Her parents were living in a house known as sun Shine bearing Door no. 1-10-44/1, Begumpet, Hyderabad. Her stepfather executed a will , dated 10-4-1985, bequeathing the said house in favour of her mother. She has two sons by name Kerman r. Katrak and Kershasp R. Katrak. Her mother owned several Shares and Debentures, NSS certificates, Public Provident Fund amount, fixed Deposits in Savings Bank Accounts, bank Lockers etc. , in addition to money- lending business and that she earned lot of money by making investment in reputed companies by way of shares.
( 9 ) THE respondent was known to her mother as a physician as well as a friend and he used to frequently visit her mother and managed to gain her confidence.
( 10 ) ON 8-2-1996, her mother, uncle by name N. J. Dadabhai, his son Khushru N. Mistry and the respondent were going towards puttaparthl via Kurnool in a Car bearing no. AP-9h-3157 belonging to her mother. When the car reached Dondapalli village near Kurnool, at 10-30 a. m. , the driver of the car lost control and dashed the Car against a tree. In that accident, her mother died and the inmates of the car sustained serious injuries except the respondent. On that da
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