2024:BHC-OS:109 Amberkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J.

INTERIM APPLICATION (L) NO. 24580 OF 2023 IN INTERIM APPLICATION (L) NO. 6097 OF 2023 IN CAVEAT NO. 89 OF 2023 IN TESTAMENTARY PETITION NO. 1996 OF 2022 Renuka alias Rekha Satish Narwankar Applicant ..

(Org. Caveatrix)

In the Matter Between Kamlakar Dattopant Abhyankar .. Deceased Mangala Sarosh Bana .. Petitioner Versus Renuka alias Rekha Satish Narwankar .. Caveatrix ....................

Mr. Sanjay Haritwal a/w Mr. Uttam S. Rane i/by U.S. Rane for Applicant / Caveatrix Mr. Rajiv Narula a/w Miss. Trusha Shah i/by Mr. Tejesh Dande and Associates for Respondent / Org. Petitioner ...................

CORAM : MILIND N. JADHAV, J.

Reserved On : DECEMBER 18, 2023 Pronounced on : JANUARY 03, 2024 JUDGMENT :

1. Heard Mr. Haritwal, learned Advocate for Applicant / Caveatrix and Mr. Narula, learned Advocate for Respondent / Original Petitioner.

2. This Interim Application is filed by the Applicant – Original Respondent / Caveatrix for seeking modification of the order dated 04.07.2023 passed by this Court.

3. Certain brief facts are required to be narrated for adjudication of this Interim Application.

3.1. Testamentary Petition 1996 of 2022 was filed by one Ms. Mangala Sarosh Bana – Petitioner, married younger daughter of deceased late Kamlakar Dattopant Abhyankar for seeking probate of last Will and Testament of the deceased. The Applicant Caveatrix is the married elder daughter of the deceased. Testamentary Petition 1996 of 2022 was filed on 06.04.2022. Petitioner is the sole executor in the Will.

3.2. Along with the Petition notarized consent Affidavit dated 09.03.2022 was filed by the Applicant / Caveatrix giving her No- objection and free and full consent for grant of probate of the Will of the deceased in favour of the Petitioner justifying surety for legacy to be dispensed with and waiving service of citation upon her.

3.3. However subsequently after 10 months, on 18.01.2023 the Applicant / Caveatrix filed Caveat No. 89 of 2023 to oppose grant of probate in favour of original Petitioner by contending that she was not aware about the Testamentary Proceedings as also disowning her own consent affidavit which was executed and notarized by her.

3.4. When the Caveat and the Testamentary Petition was heard by this Court on 20.06.2023, including the Application for seeking dismissal of the caveat, this Court in paragraph Nos. 4 and 5 noted as under:-

“4. In that view of the matter, considering the consent given by the Respondent at the outset leading to grant of probate, the Caveat filed by the Respondent would not be maintainable unless and until it points out an absolute perversity or fraud. Nothing of that sort is brought on record. There is only one immovable property which is a flat situated at Mumbai Central which is required to be sold and apportioned between the parties.

5. Mr. Rane would submit that Caveator now desires to challenge the Will and signature part of the Will. At this stage it is too late in the day. Nevertheless Affidavit-in-Reply be filed to the Application.”

3.5. The case was thereafter fixed on 04.07.2023.

3.6. On 04.07.2023, learned Advocates for the Applicant and the Caveator were heard by this Court and after hearing them at length and deliberating on the issues, order was passed of which paragraph Nos. 2, 3 and 4 are relevant for the purpose of the present Application. They read thus:-

“2. After hearing their respective objections it has fallen from the Court that considering the fact that the Applicant and the Respondent are the only two legal heirs / sisters entitled to the legacy / estate of the deceased, it would be fruitful if both the parties claim the legacy in equal proportion / share (50% each).

3. Mr. Haritwal after taking instructions from his client has submitted that the Caveator / Respondent would be agreeable for the same. Mr. Narula after taking instructions from his client has also submitted the Applicant / Petitioner is also agreeab