Bombay High Court
MEHMOODA IQBAL LUKMANIversusMAMOON BADRUDDIN LUKMANI alias MAMOON BADRUDDIN LUKAMANI
- Decided
- Disposal
- DISPOSED OFF
- Bench
- MILIND N JADHAV
Holding
The court held that the petition may be withdrawn despite the caveat, and the will remains deposited with the court.
Summary
The petitioner, a legatee under a deceased's will, filed an application to unconditionally withdraw the testamentary petition after the will had been deposited with the court. The caveator opposed the withdrawal, arguing that it would leave the will in limbo, and relied on a prior decision (Testamentary Petition No. 563 of 2018). The judge found the earlier case factually distinct and rejected the caveator's argument. Consequently, the petition was allowed to be withdrawn, and the related suit and caveats were dismissed. The court also directed the refund of court fees and issued procedural instructions to the Collector of Stamps and the Pay and Accounts Department to expedite refunds.
Issues considered
- Whether a testamentary petition may be withdrawn when a will is deposited and a caveat has been filed
- Whether the withdrawal would prejudice the caveator's interests in the will
Subjects
- testamentary petition
- withdrawal of petition
- will deposition
- caveat
- court fee refund
- probate
Judgment
902. TP-2139-25.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION NO. 2139 OF 2025
Mehmooda Iqbal Lukmani .. Petitioner
Versus
Mamoon Badruddin Lukmani alias
Mamoon Badruddin Lukamani .. Respondent
WITH
TESTAMENTARY SUIT NO. 118 OF 2026
WITH
WILL NO. 842 OF 2025
WITH
CAVEAT NO. 149 OF 2026
WITH
CAVEAT (L) NO. 37126 OF 2025
....................
Ms. Roohita Javed Shaikh, Advocate for Petitioner
Ms. Prachi Kolambekar i/by M/s. Thodur Law Associates,
Advocates for Caveator
Ms. Smruti Kanade a/w Ms. Shreya Bhagnari i/by M/s. Negandhi
Shah & Himayatullah for Soledad Gramajo (handwriting not
readable), Legal Heir of Deceased
...................
CORAM : MILIND N. JADHAV, J.
DATE : APRIL 10, 2026
P. C.:
1. Heard learned Advocates appearing for the parties.
2. Application is made on praecipe by Petitioner for withdrawal of
Petition. Petitioner has sought leave to withdraw the Petition
unconditionally. The Will has been deposited in Court. It shall remain
in Court. In the Petition, Caveat was filed by Caveator.
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902. TP-2139-25.odt
3. Though learned Advocate for Caveator vehemently submits that
this Court should not allow withdrawal of Petition because if Petition
is withdrawn, it will leave Will hanging in the Air. Petitioner is one of
the legatee under the last Will and Testament of the deceased. Learned
Advocate for Caveator has placed before me a decision of this Court
dated 10th / 16th February 2021 passed in Testamentary Petition No.
563 of 2018 to contend the aforesaid position and opposed
withdrawal of Petition. After reading the said decision, I am of the
opinion that the facts in that case would not apply to the facts in the
present case before me at all whatsoever. In that view of the matter,
liberty which is sought to be argued by Advocate for Caveator stands
summarily rejected by this Court.
4. Since the Will is deposited with this Court, if any Application is
made for withdrawal of Will by filing notarized copy by Petitioner
and / or his Advocate, the same shall not be returned to the Petitioner
without hearing or giving notice to the Caveator.
5. Petition is allowed to be withdrawn and disposed. Suit as also
Caveats are also disposed.
6. Refund of Court fee as per Rules.
7. The Registry shall issue the refund certificate for Court fees
within a period of two weeks from today on the basis of a server copy
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902. TP-2139-25.odt
of this order. The refund certificate shall be submitted by Petitioner to
the Collector of Stamp Duty, First Floor, Old Customs House, Mumbai
which is the concerned office. Copy of this order shall also be served
on the Collector of Stamps, First Floor, Old Customs House, Mumbai.
8. I am informed by several parties who seek such refund that an
extraordinary long period of time is taken for refund of the Court fees
from the Collector’s Office and thereafter from the Pay and Accounts
Office. Collector of Stamps shall personally look into this and ensure
that the Plaintiff is refunded the Court fees on presentation of a server
copy of this order and the refund certificate / letter is issued within a
period of four weeks thereafter at the highest. Petitioner shall give all
other details to the Collector of Stamps and the aforesaid order shall
be complied with strictly.
9. I am informed that refund of Court fees is then actually issued
by the Pay and Accounts Department situated at Bandra. Copy of this
order shall also be placed before the Collector of Stamps, Mumbai City
and Collector of Stamps, Mumbai MSD and the In-charge of Pay and
Accounts Department, Bandra.
10. I am informed that after refund certificate is filed, Collector of
Stamps Office has to issue letter / some order to the Pay and Accounts
Department for generating the refund and the refund is thereafter
received from the Pay and Accounts Department of the State of
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902. TP-2139-25.odt
Maharashtra situated in Bandra. In-charge of the Pay and Accounts
situated at Bandra is therefore directed to ensure that whenever letter
regarding for refund of Court fees is received from the Office of the
Collector of Stamps, the same shall be complied with by its Office
within a period of four weeks from the date of receipt of such request
and there shall be no delay in this compliance and refund whatsoever.
11. This order is issued by Court because this Court in the present
roster has received several complaints that even after orders for refund
are issued by the Registry of this Court, inter alia, relating to refund of
Court fees the same takes an invariably long period of time to get the
refund of Court fees and sometimes more than a year.
12. Copy of this order shall be placed before the Registrar General
of this Court and he is directed to inform the aforementioned
Authorities to ensure that the concerned Government Officers shall
comply with the above directions and timeline in the interest of the
litigants as soon as the refund certificate is issued within the time
stipulated in this order.
13. Collector of Stamps, Mumbai City and Collector of Stamp, MSD
are also directed to take cognizance of this order and ensure that
compliance of timelines given in this order are duly complied with in
all cases of refund of Court fees which are granted by this Court.
Amberkar [ MILIND N. JADHAV, J. ]
Digitally signed
by RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.04.10
20:46:12 +0530
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