SHIRIN BAMAN FARAMARZI Vs. ZUBIN BOMAN FARAMARZI & SHAHIN BEHROOZ KERMANI
LAWS(BOM)-2017-3-71
HIGH COURT OF BOMBAY (AT: STATE)
Decided on March 10,2017

Shirin Baman Faramarzi Appellant
VERSUS
Zubin Boman Faramarzi And Shahin Behrooz Kermani Respondents

JUDGEMENT

K.R.Shriram, J. - (1.) One Baman Dinyar Faramarzi (deceased) died at Mumbai on 29th August 2007. At the time of death, the deceased had a fixed abode at 33, Khushnuma Apartments, Carmichal Road, 29-A M.L. Dahanukar Road, Mumbai 400 026. It is the case of the petitioner-the widow of the deceased that the deceased left a Writing in English which is his last Will and Testament. It is alleged in the petition that as the executors appointed by the deceased under the Will namely one Mr.Diniar Darab Mehta and Mr.Himanshu Vinod Kode failed to come forward and file a petition for Probate, the petitioner filed the petition for grant of letters of administration of the Will propounded by the Petitioner. As per the said Writing, the Plaintiff/Petitioner is the sole beneficiary.
(2.) The deceased and the Petitioner had three children, viz., (a) Farzin Baman Faramarzi (son); (b) Zubin Baman Faramarzi (son); and (c) Shahin Behrooz Kermani (daughter). Zubin Baman Faramarzi filed a caveat opposing the grant. Shahin Behrooz Kermani - the daughter, did not file a caveat but filed an affidavit dated 28th August 2008 supporting the caveator. Upon the caveat being filed, the petition was converted into a suit and numbered accordingly. The petition, as originally filed, was for grant of probate. Since the petitioner was not the executor and hence could not have filed the petition for probate, the petitioner took out a chamber summons to amend the petition in August 2012 for converting the probate petition into petition for grant of letters of administration. On 6th August 2013, order was passed by this Court granting leave to the Plaintiff to amend the chamber summons and implead the executors in the Will as parties to the chamber summons. The petitioner was directed to serve the papers and proceedings in the suit along with the chamber summons upon the executors. Hereinafter, the petitioner is referred to as Plaintiff and Caveator is referred to as Defendant.
(3.) Mr.Diniar Darab Mehta, one of the executor, filed an affidavit in reply dated 13th August 2013 to the Chamber Summons in which he stated that the contents of the Will propounded by the Plaintiff are entirely different from what had been made by the deceased at the time of its execution. Mr.Mehta also has averred that the propounded Will dated 21st January 2002, which is shown to be registered with the office of the Sub-Registrar of Assurances at Mumbai on 22nd January 2002, has not been witnessed by him at the time of registration though in the document it is mentioned that he was one of the witness not only at the time of execution of the Will but also at the time of registration. Mr.Mehta has stated that he did witness a Will but the Will propounded was not the Will that was attested by him because according to Mr.Mehta, the contents of the first three pages of the Will (the signatures are on the 4th page) are different from what had been made by the deceased at the time of its execution.;


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