Dismissed

Vijay Kumar Gupta. v. 1. Naresh Kumar Gupta

Bombay HC22 Jul 2013APP/217/2013

Case brief

AI extract

What is this about?

On an appeal challenging the dismissal of a motion for appointment of an administrator pendente lite, the Division Bench held that there was no change of circumstances to agitate the issue again. Accepting undertakings from the respondent regarding fund bifurcation and maintenance charges, the Court declined to exercise jurisdiction under Section 247 of the Indian Succession Act and disposed of th

What did the court decide?

Appointment of administrator under Section 247 of the Indian Succession Act declined; undertakings by respondents accepted.

Vijay Kumar Gupta. Vs 1. Naresh Kumar Gupta — Succession and Inheritance | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 217 OF 2013 IN NOTICE OF MOTION NO. 13 OF 2013 IN TESTAMENTARY SUIT NO. 72 OF 2005

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Vijay Kumar Gupta versus

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Naresh Kumar Trilokchand Agarwal (Gupta) & Anr.

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..Appellant

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..Respondents

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Mr.Rohan Cama with Mr.Anjal Amin i/b. M/s.B. Amin & Co for the Appellant. Mr.Farhan Dubhash i/b. M/s.Desai & Diwanji for the Respondents.

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CORAM : DR.D.Y.CHANDRACHUD, AND S.C. GUPTE, JJ.

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22 JULY 2013.

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P.C. :

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The Appeal arises from an order of a learned Single Judge dated 5 March 2013 on a Motion which the Appellant had taken out in a Testamentary Suit which is pending between the parties.

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2 The Appellant and the First Respondent are brothers. Their father, Trilokchand, died on 18 April 2005. The Appellant has set up a later will dated 21 October 2004 while the First Respondent has propounded an earlier will dated 5 May 1998. The Appellant and the First Respondent have instituted separate proceedings for probate which have become contested proceedings, each having filed the caveat. Since the Appellant propounds the later will, the suit which has been filed by the Appellant has been directed to be tried first. If probate is granted in the suit filed by the Appellant, the suit filed by the

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Respondent will not survive. Documents have been marked in evidence in the suit filed by the Appellant.

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3 A Motion was taken out in 2013 for the appointment of an administrator pendente lite under Section 247 of the Succession Act. The Motion was dismissed by the learned Single Judge by the impugned order dated 5 March 2013.

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4 At the hearing of the Appeal, the learned Counsel appearing on behalf of the Appellant seeks the appointment of an administrator, while challenging the order of the learned Single Judge, on the basis of three circumstances:

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(i) It has been alleged that after the death of the father, the First Respondent had opened a bank account into which monies which should form a part of the estate of the deceased are being deposited and appropriated by the First Respondent;

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(ii) During the lifetime of the father, premises at Thane were obtained on lease from MIDC. It is alleged that a third party has been inducted into the premises and notice for recovery of dues and for reentry has been issued by MIDC;

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(iii) In respect of a residential flat situated in Prabhat building, the First Respondent is alleged to have failed to make payments to the cooperative society.

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5 Before we consider the circumstances which have been set out in the submissions before the Court, it would be necessary to note that the litigation between the parties has a chequered history and there were several rounds of proceedings at the interlocutory stage. On 12 August 2005, at the interim stage, in a Motion taken out by the Appellant, a learned Single Judge had recorded the statements of the Respondents that the status quo would be maintained and no third party rights would be created in respect of the properties in possession of the Respondents. Subsequently on 29 August 2006, the Motion was dismissed by a Single Judge as not being maintainable, placing reliance on the judgment of a Single Judge in Rupali Mehta vs. Smt.Tina Narindersain Mehta¹ . In appeal, a Division Bench of this Court by an order dated 9 October 2006 permitted the Respondent to apply for the appointment of an Administrator for the estate of the deceased under Section 247 of the Succession Act with a clarification that such an application shall be disposed of uninfluenced by the judgment of the learned Single Judge in Rupali Mehta's case.

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6 Following the liberty which was granted by the Division Bench, another Notice of Motion was taken out. On 19 January 2007, an order was passed by the Single Judge by consent of the parties directing the First Respondent to maintain the status quo on the flat in Prabhat building. As regards the MIDC property at Thane on which a factory building is situated, an Administrator was appointed only for the purposes of making an inventory, leaving it open to the parties thereafter to take out an appropriate application. The First Respondent was also directed not to create any third party interests in respect of the factory building and machinery subject to his claim that some part

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1 AIR 2007 Bombay 62

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of the machinery was owned by him.

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7 On a third Motion, at the ad-interim stage, a Single Judge recorded the statement of the Respondents on 11 October 2007 that the premises had not been sublet and the Respondents were in possession. When the Motion came up for hearing before the Single Judge on 13 February 2008, the Court declined to appoint an Administrator but recorded the undertaking of the Respondents to pay the existing or future liabilities of the MIDC. This order of the Single Judge was carried in appeal. A Division Bench by an order dated 8 July 2008 dismissed the Appeal. The Division Bench was of the view that no case was made out for appointment of an Administrator and the earlier order which had been passed in the two Motions (Notice of Motion Nos. 119/2006 and 110/2007) sufficiently protected the Appellant. Thereafter, a contempt petition was taken out for breach of the orders of this Court and the specific contention of the Appellant was that the Respondents had illegally created third party rights in favour of one SVN Consultants in respect of the property at Thane in breach of the statements made before the Court and in violation of orders. The Single Judge dismissed the Motion on merits.

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8 The aforesaid narration of facts would indicate that the prayer for the appointment of an Administrator was specifically declined by the Single Judge on 13 February 2008. The order of the Single Judge was confirmed in appeal on 8 July 2008. Counsel appearing on behalf of the Appellant, however, states that he has obtained documents in response to information sought under the Right to Information Act from the Assistant Commissioner of Central Excise and Bharat Heavy Electricals Limited indicating that SVN Consultants are

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reporting their address as that at the MIDC property in Thane. This, in our view, would not amount to a change in circumstances but at the highest would constitute an effort by the Appellant to submit better particulars before the Court in support of his allegations that a third party had been inducted in the premises. Moreover, it is evident that a Motion was taken out before the Single Judge only in 2013 though the letter from the Assistant Commissioner of Central Excise is dated 21 October 2008. In the circumstances, particularly having due regard to the fact that a specific prayer for the appointment of an Administrator was made in and refused in earlier round of proceedings by the Single Judge and in appeal by the Division Bench, it is not open for this Court to allow the same issue to be agitated again particularly, in the absence of any change of circumstances.

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9 As regards the opening of the bank account, learned Counsel appearing on behalf of the Respondent has submitted that as a matter of fact, the First Respondent was carrying on business at the factory at Thane even during the lifetime of the father and the separate bank account has been opened in order to bifurcate the dealings in respect of the business prior to and after the death of the father. Moreover, Counsel appearing on behalf of the Respondent further states that in pursuance of the order which has been passed in the suit, the Respondents are required to file accounts in a sealed cover and which order has been complied with and will continue to be observed.

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10 However, during the course of hearing, it has been brought to the attention of the Court that monies which have been realised from SVN Consultants are now being deposited by the First Respondent in his personal bank account, though those monies were earlier being brought into the account

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of T.K. Steel & Allied Industries. Learned Counsel appearing on behalf of the Respondent undertakes, on instructions, that this practice shall be discontinued and all monies which are realised from the SVN Consultants shall continue to be deposited as before in the account of T.K. Steel & Allied Industries. Similarly, it has been stated that an amount of Rs.1,35,000/- which was deposited in the past in the personal account of the First Respondent on account of the realisations from SVN Consultants shall also be redeposited in the account of T.K. Steel & Allied Industries. We accept the undertaking.

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11 Finally, as regards the flat in Prabhat building, Counsel appearing on behalf of the Respondents has placed on the record an order of the Cooperative Court dated 30 April 2013, by which the Co-operative Court has held that the co-operative society was not entitled to demand repair charges. Counsel appearing on behalf of the Respondents, however, tenders an undertaking that the Respondents shall continue to pay the maintenance and other charges of the co-operative society and if there are any arrears, they shall also be paid up within a period of two months from today. The undertaking is accepted.

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12 For the aforesaid reasons, we do not find it either appropriate or proper to exercise the jurisdiction under Section 247 of the Indian Succession Act to appoint an Administrator. However, we record and accept the undertakings tendered by the Respondents.

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13 The Appeal is accordingly disposed of. There shall be no order as to costs.

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14 In view of the disposal of the Appeal, the Notice of Motion in the

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Appeal does not survive and is accordingly disposed of.

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(S.C. Gupte, J.)

Vijay Kumar Gupta. v. 1. Naresh Kumar Gupta

Case brief

What is this about?

What did the court decide?

Vijay Kumar Gupta. v. 1. Naresh Kumar Gupta

Case brief

What is this about?

What did the court decide?

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