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2013 Supreme(Bom) 1201
High Court of Judicature at Bombay
R.D. DHANUKA, J.
Prakash P. Bambardekar
Versus
Avinash Vishvanath Ajgaonkar
Misc. Petition No. 67 of 2012 In Petition No. 210 of 2009
Decided on: 04-07-2013
For the Petitioner:Abhishek Bharti, i/b. M/s. M.P. Vashi & Associates, Advocates.
For the Respondent:Prashant Karande, Advocate.
Headnote:Succession Act, 1925 - Section 263 - Revocation of letter of administration.
Failure of petitioner to prove any interest in estate of deceased, disentitled him from claiming revocation of letter of administration granted to respondent, son of deceased staying in U.S.A. - In the present case petitioner claiming to be executor, attesting witness and beneficiary under the alleged Will. Petitioner has not taken any steps for 9 years for obtaining probate in respect of such alleged Will and not having explained gross delay of nine years in claiming any such right under said alleged Will. Averments made in affidavit in reply filed by respondent that deceased father of respondent would not have executed such alleged Will keeping his own son and other close relatives in dark and would not bequeath his valuable flat to outsider appears to be correct.
Deceased himself being well educated and practicing advocate at time of his death, would not have prepared such alleged Will in Marathi.
In support of his plea that respondent had obtained letter of administration by making false statement that deceased had not left any Will, petitioner strongly placed reliance upon General Power of Attorney alleged to have been executed by respondent in favour of petitioner.
Respondent in his reply affidavit alleged that his signature on blank paper was given to deceased father upon death of mother of respondent which blank paper has been misused by petitioner to fabricate General Power of Attorney and he had never executed any document in favour of petitioner before any advocate or notary. Though said affidavit was served upon petitioner long back, no rejoinder has been filed by petitioner controverting averments made there in.
Person who applies for revocation of grant of probate or letter of administration has to prove that he has interest in estate of deceased sufficient to entitle him to locus standi in Court. He has to prove that he is entitled to locus standi in Court. He has to prove that he is entitled to contest letter of administration and accordingly is entitled to apply for revocation of such grant.
If letter of administration has (been properly established that he was entitled to contest letter of administration has been properly granted by this Court, cannot be revoked. Petitioner has not established that he was entitled to contest letter of administration and is accordingly not entitled to apply for revocation of letter of administration. He also failed to prove that he had any interest in estate of deceased sufficient to entitle his to locus standi in Court.
Further petitioner himself not having taken any step to apply for probate of any such alleged Will though had made attempt to take advantage under said alleged Will, petitioner has not made out just cause for revocation of letter of administration already granted by this Court as far back. Respondent has already acted upon said letter of administration. Flat has been already transferred in name of respondent by society long back. Petition is liable to be dismissed.
By this petition filed under section 263 of the Indian Succession Act, 1925, petitioner seeks revocation of Letter of Administration issued by this Court to the respondent on 15th June, 2009 in Testamentary Petition No. 210 of 2009 and also seeks an order and direction against the respondent to handover possession of flat No. A/501 to the petitioner. Some of the relevant facts for the purpose of deciding this petition are as under:-
2. Respondent is son of the deceased Mr. Sadashiv Anant Ajgaonkar (hereinafter referred to as the said deceased) and Mrs. Sudha Sadashiv Ajgaonkar. Mrs. Sudha Sadashiv Ajgaonkar died on 23rd February, 2002. Mr. Sadashiv Anant Ajgaonkar died on 16th August, 2003. It is the case of the petitioner that since 1960, the respondent has been staying in U.S.A. and occasionally used to visit the said deceased Mr. Sadashiv and his wife i.e. only once in one or two years.
3. It is the case of the petitioner that the petitioner was introduced to the said deceased in or about 1987 by one Mr. P.G. Shroff and the petitioner became close to the said deceased and his wife. Petitioner used to help the said deceased and his wife as due to old age they were not in a position to get their work done. Petitioner used to look after the day to day affairs of the said deceased and his wife. It is the case of the petitioner that flat bearing No. 18 situated at Samanth Block, Cama Road, Andheri (West), Mumbai – 400 058 which was occupied by the said deceased, the developer M/s. R.N.A. Builders had proposed to develop the entire building and the said deceased accordingly had executed a Deed of Declaration on 21st January, 2002. It is the case of the petitioner that by the said Deed of Declaration, the said deceased transferred the ownership right in the new building to be allotted by the developer to the petitioner. It is alleged that similar declaration was also executed by wife of the deceased in favour of the petitioner. The said developer had filed eviction suit (926 of 2002) in Small Causes Court at Mumbai for eviction of the said deceased. Parties to the said suit filed consent terms whereby the said developer agreed to give a permanent alternate accommodation to the deceased i.e. flat No. A/501, admeasuring 628 sq.ft. carpet area.
4. On 8th February, 2005, petitioner claiming to be the executor and beneficiary of the Will of the said deceased executed a Deed of Confirmation in respect of the said flat bearing No.501 allotted by the said developer to the said deceased. Consent terms filed between the developer and the petitioner on 6th February, 2003 is alleged to have been signed by the petitioner on behalf of the deceased as constituted attorney of the said deceased. There is no other signatory to the said Deed of Confirmation dated 8th February, 2005 other than the petitioner.
5. Petitioner has placed reliance upon the receipts issued by U.S. Magnet Pvt. Ltd., developers in the name of the said deceased jointly with the petitioner for recovery of rent in respect of Room NO.18 for the period June 2004 to May 2005 and June 2005 to October 2005 dated 10th May, 2005 and 30th September, 2005 respectively.
6. Mr. Bharti, the learned counsel appearing on behalf of the petitioner also placed reliance on the General Power of Attorney alleged to have been executed by respondent in favour of the petitioner on 16th March, 2002. It is submitted that in the said General Power of Attorney executed by the respondent, it was recited that the said deceased had executed a Will dated 31st December, 2001 and was a tenant in respect of Block No.18 at Samanth Block, Cama Road, Andheri (West), Mumbai – 400 058 and had appointed petitioner as an executor of the said Will and the petitioner was since last 10 years had been looking after the father and mother of the respondent. Learned counsel invited my attention to the attestation of the alleged signature of the respondent before the Notary Public and identified by Mr. Jagdish L.Thakka
