R. M. S. KHANDEPARKAR, J.:- Heard.

Admit. The learned advocate waives service for the respondents. By consent, heard forthwith.

2. The appeal arises from an order dated 11th January, 2007 passed by the Learned Single Judge in Notice of Motion No.117 of 2006 in Suit No.35 of 1996 in Petition No.84 of 1993. By the impugned order, the Learned Single Judge has discharged the notice of motion while imposing costs of Rs.10,000/- on the appellant. By the impugned order, the Learned Single Judge has held that in the civil suit the plaintiffs have died and it is not in dispute that the original petition was filed by them for probate of the Will of the deceased in their capacity as the executors as named in the Will, the suit abates and therefore, obviously the notice of motion in the suit, which does not remain pending for interim orders, cannot be entertained.

3. The appellant herein had taken out the said notice of motion seeking various reliefs including the relief for appointment of an Official Administrator for administration and governance of the estate of Late B.R.B. Vakil. The said notice of motion was opposed on behalf of the respondents contending the same to be not maintainable on account of abatement of the suit while contending that the right to sue does not survive on account of death of all the executors of the Will.

4. On 23rd February, 1988, a Will came to be executed by B.R.B. Vakil and he expired on 9th October, 1989. Probate Petition No.84 of 1993 came to be filed by the Executors of the Will on 2nd March, 1993. During the pendency of the probate proceedings and by 17th October, 2005, all the five executors to the Will had expired. The appellant herein is one of the legal heirs of B.R.V. Vakil. It is her contention that the property was mismanaged and being wasted and therefore, it is necessary to appoint an Administrator consequent to the death of all the five Executors of the Will. On the other hand, it is the case of the respondents that the suit wherein the notice of motion was sought to be taken out itself had abated and therefore, the notice of motion in such a suit was not maintainable and therefore, no interference is called for in the impugned order.

5. The learned advocate appearing for the appellant, taking us through the provisions of Section 47 and Section 295 of the Indian Succession Act, 1925 and Order XXII, Rule 4-A of the Code of Civil Procedure and placing reliance in the decisions of the Gujarat High Court in Jadeja Pravinsinhji Anandsinhji Vs. Jadeja Mangalsinhji Shivsinhji & Ors., reported in AIR 1963 Gujarat 32 and Smt. Indira Vinayak Sawant & Ors. Vs. Mr. Vijayendra Umakant Shetye & Ors., reported in 2007(1) ALL MR 181, submitted that the contention of the respondents that the suit abates is totally devoid of substance, and in any case the Courts powers to issue an appropriate direction in the interest of protection of the estate of the deceased and for its proper distribution are not restricted, nor the provisions of the Indian Succession Act prohibit appropriate steps being directed to be taken in that regard and proper person being appointed as the Administrator in case of death of all the executors of the Will.

6. The learned advocate appearing for the respondents, placing reliance in the decision in the matter of Manekji Manchersha Javeri Vs. Phiroze Boman Javeri, reported in 1969 Vol.72 Bom.L.R. 21 as well as drawing attention to the various provisions of the Indian Succession Act as also Rules 374 and 375 of the High Court (Original Side) Rules, 1980, submitted that consequent to the death of all the Executors the suit has abated, the proceedings for issuance of probate have come to an end and the remedy, if any, available to the appellant could be by way of the proceeding for administration of the estate.

7. Undisputedly all the executors of the Will expired during the pendency of the proceedings instituted by them for grant of probate. Being so, what is the effect of death of all the executo

Click Here to Read the rest of this document