Allowed

Rachana S. Shah and 2 Ors. v. Janak B. Shah and 5 Ors.

Bombay HC9 Apr 2013NMS/2427/2012

Case brief

AI extract

What is this about?

In a notice of motion by daughters of a deceased testatrix against a grandson, the court appointed a receiver for the disputed flat and directed the grandson to vacate within two weeks, finding his claim of lawful possession unsupported by evidence.

What did the court decide?

Appointment of receiver; direction to Defendant No.3 to handover possession; sealing of flat; injunction against sale/transfer by Defendant No.1 and 3.

Rachana S. Shah and 2 Ors. Vs Janak B. Shah and 5… — Succession and Inheritance | Bombay HC (2013)

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NMS.2427/12-S.2477/12

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mnm

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPELLATE JURISDICTION

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NOTICE OF MOTION NO. 2427 OF 2012 IN

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SUIT NO. 2477 OF 2012

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Mrs. Rachana Shirish Shah ...Applicant/Orig.Pltf.No.1

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In the matter between:

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Mrs. Rachana Shirish Shah & Ors. Vs.

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Janak Bapulal Shah & Ors.

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...Plaintiffs

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...Defendants

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Mr. Sanjay Jain a/w. Mr. Karl Tamboly i/b. Ashok Purohit & Co., for Plaintiffs

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Ms. Kainaz Irani i/b. Zahair & Co., for Defendant Nos. 4 & 6 Mr. Abhijeet Desai i/b. Mr. P.P. Kulkarni for Defenant Nos. 2(a) & 2(c)

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CORAM : MRS. ROSHAN DALVI, J. Date of Reserving the Order : 1^st April, 2013 Date of Pronouncing the Order: 9^th April, 2013

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ORDER :

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The plaintiffs are three daughters of the deceased Sushilaben Bapubhai Shah who left behind a registered will dated 31^st December, 2009. Defendant No.1 and the predecessor-in-title of defendant Nos. 2(a), 2(b) and 2(c) are her sons. These are the

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only heirs of the deceased. Defendant No.3 is the son of defendant No.1. He is the main contesting defendant. He is in possession of the flat of the deceased being flat No.55 on the 14^th floor of Matru Mandir Co-op. Hsg. Society, Opp: Bhatia Hospital, Tardeo Road, Mumbai-400 007. He claims to have been residing with the deceased during her “last months” to look after her. He is stated to have forcibly entered into the suit flat upon her death by the plaintiffs. Defendant Nos. 4, 5 and 6 are the husbands of plaintiff Nos. 1, 2 and 3 respectively. They are the executors under the will of the deceased.

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The plaintiffs and the predecessor of defendant Nos. 2(a), 2(b) and 2(c) accept the will of the deceased. They accept to act according to its terms. The defendant No.1 has not expressly disputed the will of the deceased. He, being the father of defendant No.3, has been represented by defendant No.3 who has contested the plaintiffs' claim.

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The main estate of the deceased is the above flat. Defendant No.3 has his own flat being flat No.76 on the 19^th floor of the same building which he is stated to have let out after he entered in the flat of the deceased and has refused to vacate despite the requests of defendant Nos. 4, 5 and 6 to administer the estate of the deceased as per the terms of her will.

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The other estate of the deceased is contained in certain

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movable properties including savings account, fixed deposits and movables in certain lockers with which there is not much dispute.

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Yet other properties of the deceased is one plot of land in Patan, Gujarat with which also there is no dispute in this suit.

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There are certain jewelleries of the deceased which are bequeathed to the two daughters-in-law being the mother of defendant Nos. 2(a), 2(b) and 2(c) and the mother of defendant No.3. That part of the estate has been duly administered as per the aforesaid will of the deceased; both the daughters-in-law are stated to have been distributed and have taken the jewelleries as per the terms of the will.

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The will of the deceased with regard to the above flat No.55 would be required to be considered to see the administration of the estate prayed for in the suit.

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The will is in English language executed on stamp paper dated 17^th November 2009 issued on 31^st December, 2009 in the name of the deceased herself. It is running into 4 pages all of which are signed by the deceased. The will is registered with the Sub-Registrar of Assurances, Mumbai. The will is executed by the deceased by putting her signature as also her thumb impression against her photograph. It is also dated by the deceased. Her signature is in English; the date is in Gujarati language. The will is

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attested by two witnesses, one of whom is a Doctor who has signed the will and put the date alongside his signature and rubber stamp. The said Doctor has also given a separate certificate as to her physical and mental health. It is attested by another witness who is the neighbour. That witness has also signed and put the date along with the particulars of his address and telephone number. The will is shown to be executed in the office of a Solicitor. It is registered. The registration shows the signatures, photographs and thumb impression of the executant of the will and the two attesting witnesses.

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Under this will the 5 heirs shown to be her relatives are enumerated. There is a declaration by the deceased that she has filed a nomination for her flat in favour of plaintiff No.3. The nomination is only for the sake of convenience. The nomination shows 100% share nominated to plaintiff No.3. However the flat has been bequeathed to all her 5 children who are her heirs equally. Since there is a declaration despite 100% nomination, the plaintiff No.3 will be entitled to 20% of the flat.

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There is a further declaration that the deceased was staying alone in her flat and her 3 daughters and 2 sons were staying separately. She bequeathed the flat to all her 5 children equally. She gave a right of preemption to all the branches to purchase the entire flat with the consent of the other 4 heirs. She expressed her desire that the flat should be sold within 6 months of her demise

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and the proceeds be distributed equally between her 5 children if none of the beneficiaries was willing to purchase the flat.

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The only other direction in the will is the discretion to the 3 executors to pay a reasonable amount out of the estate as and by way of donation “to any good organisation”, the only bequest which appears to have been completely forgotten by all the parties to the suit, the noble desire of the deceased notwithstanding.

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Such is the most natural, reasonable bequest made by the deceased on par with her intestacy.

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The deceased expired on 18^th October, 2011 within 2 years of the execution of the will.

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It is the plaintiffs' case that on 18^th November 2011 the will was opened from a sealed envelope in the presence of all the heirs of the deceased. It is their case that all were asked whether they know of any later will of the deceased. Defendant No.1 who was then present requested for one month time for taking legal opinion for probating the will. After one month the executor started to administer the estate of the deceased as per the will.

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However well before one month of time requested by defendant No.1, he wrote a letter to defendant No.4 and all the other members of the family stating that he was addressing the

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letter to him as his brother-in-law and not as the executor of the will. He made a grievance of certain strange relations and recalled the earlier days with him and his help. The letter carrying an emotional appeal remains at that.

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On 21^st December, 2011 two of the executors defendant Nos. 4 and 5 informed the Society about the death of the deceased and the will of the deceased with regard to the flat of the deceased. They requested the Society not to process any request for the transfer of the flat of the deceased.

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The executors also informed the bank with regard to the movable estate of the deceased and requested for freezing the bank account of the deceased.

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On 4^th January, 2012 defendant No.1 wrote yet another letter to defendant No.4 and others only lamenting about certain relationship.

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The executors filed the probate petition on 3^rd February, 2012.

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On 5^th March, 2012 defendant No.4 replied the letters of defendant No.1 dated 9^th December, 2011 and 4^th January, 2012. He put on record that the will of the deceased was read on 20^th November, 2011 and thereafter defendant No.1 sought time of 30 days. Thereafter due to his ill-health he sought time to reply of

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another 10 days. He put on record that defendant No.1 must state what he wanted to state about the will so that there would be no tension between the family members. He requested the defendant No.1 to give his reply between 20^th and 25^th March, 2012 failing which he would take action.

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The probate petition thereafter having been served, defendant No.1 filed his Caveat on 17^th August, 2012 through his son defendant No.3 as his Constituted Attorney.

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This chronology is as innocuous with regard to the correspondence as it is important with regard to the total lack of any case of defendant Nos. 1 and 3 with regard to the will of the deceased.

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The only will being the aforesaid registered will dated 31^st December 2009 in English language bequeathing the suit flat equally to her 5 children, it was required to be probated. The Caveat would show that defendant No.1, would not agree to the probate being granted. However, the correspondence would show no reason for not so agreeing. Nothing whatever about the execution of the will was mentioned by defendant No.3 in his aforesaid two letters dated 9^th December, 2011 and 4^th January, 2012. Indeed the aforesaid will would show no reason for any heir to take exception to the will, it being the most natural and equitable bequest equally to the 5 children of the flat and the

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residuary estate of the deceased and equally to the 2 daughters-inlaw all the jewelleries and ornaments of the deceased.

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In view of the aforesaid clean and clear bequest and the consequent case of the plaintiffs of the administration of the estate as per the terms of the most natural will of the deceased, the defence of defendant No.3 who is the only opponent to the administration must be viewed.

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Defendant No.3 is the grandson of the deceased. He was a neighbour of the deceased. He had a flat on another floor in the same building. The will of the deceased showed that she lived alone; all her children were married and lived separately with no mention of her grandson. Defendant No.3 has contended that he lived with the deceased to take care of the deceased. Since when he lived with the deceased has not been specified. Despite the Court's query and direction, no documentary evidence substantiating this fact is produced. Counsel on his behalf fairly conceded that no such document is available. Defendant No.3 is in possession of the suit flat. He has claimed to be in lawful possession as a gratuitous licencee of the deceased, he having lived with the deceased to take care of her as per his case, but without any substantiation of that case. The plaintiffs contend that he has forcibly entered into the flat of the deceased after the death of the deceased and in fact after the will was read and during the time defendant No.1 entered into correspondence requiring the

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executors to write letters to the Society and the banks on 21^st December, 2011 not to transfer the flat and to freeze the accounts. The plaintiffs accordingly claim that defendant No.3 is an intermeddler.

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Consequently the plaintiffs have filed this suit for administration of the estate of the deceased for payment and distribution of the 20% share to each of the heirs of the deceased for recovery of the possession of the flat of the deceased and for sale of the said flat for administering the estate of the deceased with other ancillary consequential reliefs.

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The defence of defendant No.3 which has been brought out for the first time in the affidavit in reply is rather wondrous. In paragraph 3(g) of his affidavit in reply he has claimed that there were several meetings between “the parties” with regard to the distribution of the estate of the deceased attended by all the heirs as well as himself. The first of the meetings was in November, 2012 on which date the will of the deceased dated 31^st December 2009 which is stated to be registered and in Gujarati language was produced by defendant No.4. He claims that under that will “all the immovable property” was bequeathed to the branches of the two sons of the deceased in lieu of certain business they had with the husband of the deceased. The jewellery and gold ornaments were bequeathed equally to the 2 daughters-in-law. Incidentally that part of the bequest has been acted upon by the mothers of

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defendant Nos. 2(a) and 2(b) and defendant No.3. He further claims that he was informed that under that will there was a nomination made by the deceased in favour of plaintiff No.1 in December 2009 to take care of the property and an affidavit to that effect was given by plaintiff No.1 accepting the terms of the nomination. He claims that nothing was given to the daughters because of huge amounts spent at the time of their marriages. He further claims that the plaintiffs informed “us” that the jewellery and gold ornaments would be given after everything was worked amongst the heirs of the deceased and that because he had taken care of his grandmother during “her last few months”, by being in the suit flat, the suit flat would remain under his care and custody. He claims that the said will in Gujarati language was in possession of the executors of the deceased, defendant Nos. 4 to 6.

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It is rightly contended by Mr. Jain on behalf of the plaintiffs that in the 2 letters of defendant No.1 there is not a word about the execution of any will in Gujarati language. The betrayal and lament of defendant No.1 would be wholly inconsistent with such a will. If such a will was shown in November, 2011 during the meeting in which defendant No.1 and his brother's branch received the flat in 2 equal shares, the Patan property in 2 equal shares, with their wives receiving the jewelleries in 2 equal shares and the daughters receiving nothing, there would be no cause for complaint, grievance, sadness, confusion or strain in relations. There would have been no cause also for defendant No.1 to take

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time to reply or for that matter to even write those letters. In those letters despite expressing grief at the strained relationship, defendant No.1 has not requested even a copy of the will. He has not relied upon a copy of the will or produced a copy. Defendant No.3 claims that after the will was read out nothing was done thereupon. If that was so defendant No.1 was expected to demand action, but both his letters elude that fact.

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It is argued on behalf of defendant No.3 that defendant No.3 has tried his best to obtain a copy of the will. That was because the will was registered. It is stated on his behalf by his Counsel that he is sought to make inquiries with the Sub-Registrar of Assurances in Mumbai as well as in Patan. The English will is shown to be dated 31^st December, 2009. The Gujarati will is also stated to be dated 31^st December, 2009. It is rightly argued by Mr. Jain that the deceased could not have registered two wills with two different Registration offices, at two different places one in English and one in Gujarati containing two diametrically different bequests on a single day.

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Defendant No.3 has claimed to have another meeting in December, 2011 attended by all the heirs and defendant No.3. Defendant No.3 requested distribution of the estate as per that will. He claims to have been shown the English will of the deceased dated 31^st December, 2009 which has been sought to be probated by defendant Nos. 4 to 6. He claims to have been informed that

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despite such a will, the suit flat was to be divided amongst all the heirs, the nomination of which was made in favour of plaintiff No.3. He claims that the copy of the will and the nomination and the affidavit was refused to be given. He claims to be blackmailed that the jewellery would be distributed between the wives of the sons of the deceased only if defendant No.3 and the mother of defendant Nos. 2(a), 2(b) agreed to accept the English will dated 31^st December, 2009.

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The oral case of defendant No.3 of the execution of the Gujarati will is wholly uncorroborated by any evidence whatsoever. Despite the correspondence since 2011 upon the betrayal felt by defendant No.1, defendant Nos. 1 & 3 have not succeeded in producing a copy of the will obtained from the Registrar's office in Mumbai or Patan. Their case of any such will of the deceased deserves to be wholly rejected upon the wholly inconsistent behaviour of defendant No.1 and the silence of defendant No.3 despite a will under which their branch would be 50% owner of almost the entire estate of the deceased.

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The case of defendant No.3 of the imaginary Gujarati will, hitherto not having seen the light of the day, must be appreciated alongside the actual English will, copy of which is produced by plaintiffs and which has been sought to be probated by defendant Nos. 4 to 6 alongside the nomination of the deceased and the affidavit of the nominee of the deceased. It would be material to

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consider the two documents side by side.

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Sr. No.	English Will	Gujarati Will
1	Dated 31 stDecember, 2009	Dated 31 stDecember 2009.
2	Registered in Mumbai	Registered in Mumbai or Patan.
3	The flat of the deceased and the residuary estate bequeathed equally to all the 5 children. The flat was to be sold and the right to preemption was given to all the heirs. If that was not exercised for 6 months, flat was to be sold to an outsider and sale proceeds distributed equally amongst the heirs.	The flat of the deceased bequeathed only to the branches of the two sons in lieu of certain business relationship with the husband of the deceased. The daughters of the deceased disinherited totally in view of the marriage expenses.
4	Jewellery of the deceased bequeathed to two daughters-in-law .	Jewellery of the deceased bequeathedto two daughters- in-law .
5	Nomination of the deceased in favour of plaintiff No.3.	Nomination of the deceased inf favour of plaintiff No.1
6	Affidavit of plaintiff No.3 in terms of the will.	Affidavit of plaintiff No.1 in terms of the will.

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7	Residuary estate	being the
	immovable bequeathed to children equally.	property all the	–
8	Bequest to the ch discretion of the e	arity at the xecutors.	–

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The after-effects of the will may be further considered similarly:

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1	The deceased has indeed executed a nomination. The nomination is undated. The signature of the deceased has been identified by her Bankers later on 8 thJanuary, 2010 and the nomination has been accepted by the Society on 28 th January, 2010 pursuant to the meeting of the managing committee held on 22 nd January, 2010.	No nomination in favour of plaintiff No.1 is shown.
2	Affidavit of plaintiff No.3 accepting the nomination and the terms of the will for the flat to be equally divided amongst the 5 legal heirs despite 100% nomination in her favour is executed on 11 thJanuary, 2010 and is notarised on 6 thApril 2010.	No affidavit of plaintiff No.1 is shown.

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3 –	Alleged agreement between the heirs. That since defendant No.3 lived during “her last few months” with
	the deceased the flat would
	remain in his care and
	custody is alleged by defendant No.3.

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The visualisation of the Gujarati will, therefore, remains at that. It is not corroborated by the nomination or the affidavit stated to have been made.

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It is contended on behalf of defendant No.3 that the nomination though stated to have been made in the will is actually made a week thereafter. It is incorrect that the nomination is made after the will. The nomination has been made by the deceased prior to or along with the will. It is, therefore, recited in the will. The date on the nomination is not put by the deceased. The date on the nomination is in a completely different handwriting. It is in the handwriting of one Singh who has signed verifying the signature of the deceased as an account holder. That is the verification of the signature of the deceased as required by the Society. The contention that the will may be bad and not a genuine document because the nomination is of a later date is wholly misconceived. The affidavit is indeed filed later by plaintiff No.3. That is in terms of the will. That shows the good taste in which she accepted the will and the bequest to all the heirs equally as per the

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desire of the deceased.

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In view of these facts the defence of defendant No.3 that he was allowed to live in the suit flat is wholly improbable and is required to be rejected. Consequently defendant No.3 cannot be allowed to live in the suit flat when all the heirs of the deceased accept the will except his own father who is represented by defendant No.3 himself. Defendant No.3 is seen to have wrongfully and unlawfully entered upon the suit flat and claims to hold on to the suit flat. He is an intermeddler. Defendant No.3 is, seen to have caused loss to the estate of the deceased by his unlawful trespass.

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Pending the notice of motion an attempt at selling the suit flat for the highest price was made. Defendant No.3 has refuted the offer of sale as per the desire of the deceased.

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A probate petition has been filed to probate the English will of the deceased. A Caveat has been filed thereto. The validity of the execution of the will would be decided in the testamentary suit between the parties. No other Gujarati will is produced. None can be probated. No right of defendant No.3 to the suit flat in any manner is seen. He is not even an heir. Defendant No.1 has challenged the probate represented by defendant No.3. He has also only on equal share in the suit flat. Defendant No.3, who claims to be in possession as alleged to be allowed by the heirs as

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having been with the deceased during her last months is not entitled to any part of the suit flat. Defendant No.3 has only sought to delay and thus defeat the bequest made by the deceased and the distribution of her estate between the plaintiffs, his father and the heirs of the other brother, defendant Nos. 2(a) to 2(c) though his wife and the other brother's wife have received the bequests made to them acting under the same will.

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A case of appointment of Receiver and the grant of injunction against alienation of the suit property is made out.

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The only further aspect to consider whether the trespass of defendant No.3 who claims to have entered upon the suit property during “the last months” of the deceased, having another flat in the same building, and having or even claiming no right, title or interest in the suit property can be allowed to continue pending the suit. That would be the Court's imprimatur upon the malafide action of defendant No.3 who has failed to show the case put up by him at all and who is seen to have acted only to defeat and delay the plaintiffs' legitimate action. That, therefore, cannot be countenanced by the Court.

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41. Hence the following order:

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Court Receiver is appointed in respect of the suit flat No.55 on the 14^th floor of Matru Mandir Co-op. Hsg.

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Society, Opp: Bhatia Hospital, Tardeo Road, Mumbai400 007.

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Defendant No.3 shall handover vacant peaceful possession of the suit flat No.55 to the Court Receiver within 2 weeks from today.

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The Court Receiver shall obtain vacant possession from Defendant No.3, with police assistance, if required, after 2 weeks from today if peaceful possession is not handed over by defendant No.3 to the Court Receiver.

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The Court Receiver shall lock and seal the suit flat pending the suit.

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Defendant Nos. 1 and 3 shall not sell, transfer, alienate, encumber or create any third party rights in the suit flat pending the suit.

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Notice of Motion is disposed of accordingly.

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Defendant Nos. 1 and 3 shall file their written statement within 30 days as they have been represented in the suit and are deemed to have been served the Writ of Summons.

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(ROSHAN DALVI, J.)

Rachana S. Shah and 2 Ors. v. Janak B. Shah and 5 Ors.

Case brief

What is this about?

What did the court decide?

Rachana S. Shah and 2 Ors. v. Janak B. Shah and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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