2024:BHC-OS:1412 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION INTERIM APPLICATION (LODGING) NO. 20977 OF 2023 IN TESTAMENTARY SUIT NO. 5 OF 2005 IN TESTAMENTARY PETITION NO. 226 OF 2004 Ruby Cyril D’souza & Ors. ...Applicants IN THE MATTER BETWEEN :

Cecilia Reynold D’souza & Ors. ...Plaintiffs/Petitioners SHRIKANT Versus SHRINIVAS MALANI Ruby Cyril D’souza & Ors. ...Defendants Digitally signed b Sy H S RH INR II VK AA SNT ***

MALANI Date: 2024.01.24  Mr. Raj Patel a/w Mr. Vinayak Phadake, for Plaintiffs/Petitioners.

14:47:29 +0530  Mr. Rajendra Pai, Senior Counsel a/w Mr. Nitin Gangal, Ms. Namita Mestry, Mr. Ashok Kadam, P. Shukla and Ms. Prapti Karkera, for Defendants.

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CORAM : MANISH PITALE, J.

DATE : 24^th JANUARY, 2024 ORDER:

1. The instant application is filed on behalf of the defendants for adding an additional issue in this suit, which is pending at the stage of final hearing. An interesting question has arisen with regard to jurisdiction of the Testamentary Court considering a prayer for grant of Letters of Administration with Will annexed in the context of sections 67 and 255 of the Indian Succession Act, 1925 (hereinafter referred to as the Succession Act).

2. This proceeding was initially filed as a petition for grant of Letters of Administration with Will annexed. The original petitioner, being the sole beneficiary of the subject Will dated 16th April, 1994, executed by his father, filed the aforesaid petition. The four sisters of the petitioner, being the daughters of the deceased, filed caveats and opposed the prayer made in the petition, as a consequence of which, the petition stood converted into the instant suit.

3. By an order dated 30^th March, 2015, this Court framed six issues for determination, which pertained to various aspects of the validity of the said Will. During the pendency of the proceedings, the petitioner / plaintiff died and his legal representatives i.e. the present plaintiffs were brought on record. Similarly legal representatives of the defendant, who died during the pendency of the suit, were also brought on record.

4. Evidence was recorded and as on today the suit is pending for final hearing before this Court.

5. At this stage, the present application has been filed on behalf of the defendants, praying for framing of an additional issue. The proposed additional issue is stated in paragraph no. 5 of the application, but during the course of arguments, the learned senior counsel appearing for the defendants submitted a draft issue in place of the proposed issue at paragraph no. 5 of the application. With the consent of the learned counsel appearing for the plaintiffs, the draft issue tendered on behalf of the defendants during the course of arguments has been considered as the proposed additional issue on behalf of the defendants.

6. The proposed additional issue on behalf of the defendants reads as follows :

“Whether Letters of Administration with Will dated 16^th April, 1994 annexed thereto can be granted to the Petitioners as the grant pursuant to the bequest made by the said Will is void under the latter part of Section 67 of the Indian Succession Act, 1925 constituting an exception to such grant under Section 255 of the said Act?

7. The fact on the basis of which the aforesaid issue is proposed on behalf of the defendants, is that the sole beneficiary under the Will is the son of the deceased i.e. the original petitioner and the husband of plaintiff No. 1 herein. The attesting witness to the said Will is the plaintiff No.1 i.e. Daughter-in-Law of the deceased. According to the defendants, the Daughter-in-Law of the deceased having attested the Will would not mean that it is insufficiently attested, but under Section 67 of the Succession Act, the bequest under the said Will in favour of the husband of plaintiff No.1 is rendered void. On this basis, according to the defendants, Section 255 of the Succession Act comes into operation, indicating that Letters of