Mangala Sarosh Bana v. Renuka alias Rekha Satish Narwankar

5. In that view of the matter and after hearing the parties, Court expressed its suggestion as noted in paragraph No. 2 of the order dated 04.07.2023.

6. It is pertinent to note that thereafter, only after taking instructions from the Caveatrix, learned Advocate agreed for apportionment / distribution of the said flat in equal proportion. In view of the agreement between the parties expressed to the Court, this 4 of 8 Court passed the order in paragraph No.4 directing issuance and grant of Letters of Administration along with Will annexed and further consequential directions as stated in the order.

7. The present Interim Application is now filed on 28.08.2023 seeking a modification to the effect that if the parties had agreed to claim the legacy in equal proportion i.e. 50% each, this Court ought to have directed the parties to make a joint application to the Registry. By the present Application, the Applicant / Caveatrix seeks addition of the words ‘by making a joint application’ at the end of paragraph No. 2.

8. The ground on which the present Application is filed for modification is contained in paragraph No. 3 of the Application. Mr. Haritwal would contend that in view of the unjust and unfair conduct on the part of the original Petitioner during distribution of the liquid asset i.e. gold belonging to the deceased, when the order dated 04.07.2023 was passed, the Applicant / Caveatrix was therefore against passing of any order in favour of the Petitioner being the sole executor of the property of the deceased. However, this specific ground as pleaded was not exhibited or informed to the Court on 04.07.2023. On the contrary, the Applicant Caveatrix had categorically given instructions and agreed to the distribution equally in accordance with law. At the time of arguments, it is submitted by Mr. Haritwal that the 5 of 8 original Petitioner (younger sister) is not on talking terms with the Applicant / Caveatrix (elder sister) and does not respond to her massages / advances nor does reply to any information sought for by the Applicant / Caveatrix regarding sale of the flat. Hence the Applicant / Caveatrix has now lost faith in the original Petitioner and it is apprehended by her that the original Petitioner may sell the property / flat without complete disclosure of the actual amount / value (cash) received from such sale to the Applicant / Caveatrix and thus may cause detriment to the Applicant. In short, now trust deficit is pleaded. This is what is argued before me today. He would fairly submit that this is the sole reason for filing the Interim Application and nothing more.

9. PER CONTRA, Mr. Narula would submit that assuming grant of Letters of Administration in favour of the original Petitioner, the Petitioner undertakes to carry out the procedure for sale of the immovable property / flat transparently with all disclosures to the Respondent and if the Respondent has any apprehension whatsoever, the Respondent can be free to get a buyer or a higher offer who can match the sale price of the buyer brought by the Petitioner or if so required take independent steps to sell the said immovable property / flat for which a buyer can be brought by her in which case the Petitioner will co-operate in all respect. After all, the flat needs to be 6 of 8 sold and proceeds are to be apportioned equally. He would submit that though Respondent is harping on appointment of the Court Receiver to sell the flat / immovable property and then apportion the sale proceeds to the extent of 50% each, such submission on the part of the Applicant / Caveatrix is to the detriment of both the parties. He would submit that appointment of the Court Receiver will undoubtedly fetch a much lower price and shall cause financial loss to both the parties. All that he would submit is that no prejudice whatsoever will be caused as every step that the Petitioner would take for sale of the immovable property / flat shall be disclosed in writing to the Applicant / Caveatrix and the Petitioner is ready and willing to give such an undertaking if the Respondent expresses apprehension.

10. I have considered the submissions of both the learned Advocates and perused the pleadings. Both parties are ad idem that the flat has to be sold. After hearing the learned Advocates, I can only say that the present Application has been filed by the Applicant / Caveatrix since there is reluctance to communicate and respond by the original Petitioner who is the younger sister of the Applicant Caveatrix. Considering the order passed on 04.07.2023 and the consent recorded therein, I find that there is no error apparent on record made by this Court in paragraph Nos. 2 and 3 of the said order as pointed out by the Applicant. The said order cannot be corrected in the manner and 7 of 8 fashion as sought for by the Applicant / Caveatrix as it is impermissible in law to do so. Once the consent affidavit has been filed by the Applicant / Caveatrix and she having agreed before the Court to apportion the estate of the deceased and distribute the same to the extent of 50% each, modification sought for by the present Interim Application cannot be granted as sought for by the Applicant / Caveatrix. Suggestion of the Applicant / Caveatrix in paragraph No.10 as such cannot be considered and cannot be allowed as there is no ambiguity whatsoever in the interpretation of the said order which can be exploited by the original Petitioner.

11. In view of the above, the additions of the words “by making joint application.” at the end of paragraph No.2 is not at all required in view of the consent of the Applicant / Caveatrix having been recorded by this Court in the order dated 04.07.2023.

12. Resultantly, Interim Application is dismissed. Amberkar [ MILIND N. JADHAV, J. ] 8 of 8 MOHAN AMBERKAR