8.IA.2303.21 in TP.769.19.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION

INTERIM APPLICATION NO. 2303 OF 2021

IN

TESTAMENTARY PETITION NO. 769 OF 2019

Shanta Hariharan

…

Applicant

In the matter between

Venkatesh Ramakrishnan

…

Petitioner

Versus

Akshay Nagarajan

…

Respondent/Caveator

Mr. M.A. Shah for the Applicant.

Mr. Shardul Singh i/b Manoj Mane for the Respondent/Caveator.

CORAM : R.I. CHAGLA, J.

DATED : 11^th OCTOBER, 2021.

P.C. :

1

Heard the learned Counsel for the parties. By this Interim

Application, the Applicant is seeking the deletion of the name of the

Original Petitioner Venkatesh Ramakrishnan from the cause title of the

Testamentary Petition No.769 of 2019 and for addition of the name of the

Applicant as Petitioner/Plaintiff in the cause title. Further consequential

amendments have been sought in the Testamentary Petition No.769 of

2019 as per the schedule annexed to the Interim Application.

Waghmare

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2

The learned Counsel appearing for the Applicant has stated

that the deceased Mr. Nagarajan Ramakrishnan had expired on

23.07.2017. The Original Petitioner had filed the above Testamentary

Petition for grant of probate with respect to the said Will in this Court on

08.02.2019. The Testamentary Petition has been filed by the Original

Petitioner in the capacity of Executor of the aforesaid Will.

3

It is stated by the Applicant that the Testamentary Petition

was on board before the learned Company Registrar/Testamentary

Registrar on 26.03.2019 for directions. On that date by order dated

26.03.2019 the Company Registrar/Testamentary Registrar issued citation

returnable within two weeks from the date of the said order and also

issued notice to the Collector. Further directions were issued as per the

Bombay High Court Original Side Rules. It is stated by the Applicant that

the Original Petitioner expired on 10.04.2021.

4

The death certificate evidencing the date of death as

19.04.2021 was issued on 10.04.2021 and has been annexed at Exhibit-F

to the Application. It is stated by the learned Counsel appearing for the

Applicant that upon the expiring of the Original Petitioner, the Applicant

has preferred this Interim Application. He refers to the paragraph 1 of the

Will dated 09.07.2017 which had been filed by the deceased Petitioner for

Waghmare

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grant of probate with respect to the Will dated 09.07.2017 executed by

the deceased Mr. R. Nagaraj. In paragraph 1 of the said Will which is

annexed at Exhibit-B to the Testamentary Petition it has been stated as

under :

“13. The Applicant states that Para. 1 of the above Will

dated 9^th July 2017 is as follows :-

“1. I hereby appoint my brother R. Venkatesh Executor

of this my Will. I have full faith and trust that my

Executor will distribute my properties in accordance with

the wishes expressed by me in this Will. In the event my

brother R. Venkatesh is unavailable and/or unwilling to

act as Executor, then the role of the Executor will be

performed by my sister Shanta Hariharan.”

5

He has submitted that it is clear form this clause in the said

Will that in the event of the deceased brother Mr. R. Venkatesh being

unavailable and/or unwilling to act as Executor, then the role of the

Executor will be performed by the sister of the deceased Shanta

Hariharan. He has submitted that in view of the demise of the Original

Petitioner Mr. R. Venkatesh, as per the said clause, the role of the Executor

is to be performed by the Applicant. He has accordingly submitted that

the Application be allowed for deletion of the name of the Original

Petitioner Mr. Venkatesh Ramakrishnan from the cause title of the

Waghmare

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Testamentary Petition and the name of Applicant be substituted as well as

consequential amendments in terms of the schedule annexed to the

Interim Application.

6

Having considered the submissions, it appears that