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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.I. CHAGLA, J.
Chetan Dalal - Applicant /Ori. Defendant No.5.
In the matter Between
Bharat Kantilal Dalal - Plaintiff
Versus
Surendra Kantilal Dalal And Ors. - Defendants
NOTICE OF MOTION NO.954 OF 2019, SUIT NO.807 OF 2018
Decided On : 08-01-2026
The provided legal document does not directly address or provide guidance on the partition of property belonging to Christians upon the intestate death of a father. The judgment concerns the maintainability of a civil suit seeking administration of a deceased Hindu's estate (including alternative relief for intestate succession) despite pending probate proceedings involving conflicting wills in the Testamentary Court. (!) (!) (!) (!) (!) (!) (!)
It notes in passing that for Christians (and Mohammedans), Section 213 of the Indian Succession Act, 1925—which mandates probate for establishing rights under a will—does not apply, so probate of a will is not required. (!) (!) However, no details are given regarding intestate succession rules, shares among heirs, or procedures for partition of property in such scenarios under the Indian Succession Act or otherwise. (!)
Civil courts retain jurisdiction over estate administration and protection independent of probate proceedings, with concurrent proceedings permissible pending probate outcomes. (!) (!) (!) Alternative pleas (e.g., administration per a will or intestacy) are allowable if factually consistent. (!) (!) A plaint disclosing a cause of action cannot be rejected under Order VII Rule 11 CPC without considering averments in their entirety. (!)
| Table of Content |
|---|
| 1. introduction of the parties and the suit. (Para 1 , 2 , 3) |
| 2. presumption of executorship and necessary parties. (Para 4 , 5 , 6 , 7 , 8 , 9) |
| 3. bar against simultaneous claims based on contradictory wills. (Para 10 , 11 , 12 , 13 , 14) |
| 4. executor's rights tied to probate. (Para 15 , 16 , 17 , 18) |
| 5. limitation and standing as executor. (Para 19 , 20 , 21 , 22) |
| 6. relief under the indian succession act clarified. (Para 23 , 24 , 25 , 26 , 27 , 28) |
| 7. distinctions of provided case law. (Para 29 , 30 , 31 , 32) |
| 8. reiteration of validity of claims under separate suits. (Para 33 , 34 , 35 , 36 , 37) |
| 9. court's acceptance of independent civil remedies. (Para 38 , 39 , 40 , 41 , 42) |
| 10. clarification on sufficiency of executor's representation. (Para 43 , 44 , 45 , 46 , 47 , 48) |
| 11. condition of clear cause of action in the plaint. (Para 49 , 50 , 51 , 52 , 53 , 54 , 55) |
| 12. court’s determination of dual jurisdiction. (Para 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69) |
| 13. court rejects the notice of motion. (Para 76 , 77 , 78 , 79 , 80) |
ORDER :
R.I. CHAGLA J.
1. By this Notice of Motion the Applicant / Original Defendant No. 5 has sought for rejection of the Plaint under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure (CPC), 1908. The Applicant has also sought an alternate prayer viz. that till the final disposal of the proceedings for probate of the Will dated 21st May, 2012 read with Codicil dated 11th September, 2015 and 8th December, 2016 being Testamentary Petition No. 812 of 2017 pending before the Testamentary / Probate Court, this Court stay the above Suit and proceedings arising thereunder including the present Notice of Motion Lodging No. 2606 of 2017.
2. The Applicant has stated that the Plaintiff has filed the Captioned Suit inter-alia seeking administration of the Estate of the deceased in terms of the Will dated 24th September, 1994 (“Will of 1994”) which he claims to be the last Will and Testament of the deceased and under which he and Defendant No. 1 are claimed to have been appointed as the Executors of the Estate of the deceased. It is further stated that the Plaintiff has disclosed in the above Suit that the Applicant has propounded a Will dated 21st May, 2012 along with Codicil dated 11th September, 2015 and 8th December, 2016 as the last Will and Testament of the deceased, under which the Defendant No. 6 herein and the Applicant / Original Defendant No. 5 have been appointed as the Executors and further that a Testamentary Petition for grant of probate of the said Will of 2012 has already been filed by the Applicant before the Probate / Testamentary Court.
3. The Applicant has stated that in the present Suit, the Plaintiff has inter alia sought for administration of the Estate of the deceased and in the alternative has prayed that in the event the said Will of 1994 is held to be not valid, then the Estate of the deceased be administered as per inter-state succession. It is claimed that the Plaintiff along with 22 others are equal beneficiaries of the Estate of the deceased as per inter-state succession.
4. Mr. Haresh Jagtiani, learned Senior Counsel appearing for the Applicant has submitted that once a Plaintiff propounds a Will and files for probate he must necessarily administer the Estate as an Executor especially since he has not relinquished his executorship. This necessity implies that the Plaintiff / Executor cannot delegate his role to this Court by seeking a declaration to administer the Estate of the deceased. He has submitted that the delegation, if at all, to this Court is possible only if the Plaintiff who is also a beneficiary / legatee under the said Will of 1994 which he propounds categorically makes out a case of him being incompetent as an Executor or having given up his execution. He has submitted that such is not the cause of action in the present Suit. Accordingly, the Plaintiffs’ right to administer the Estate in accordance with the said Will o
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