Dismissed

Dr. Behram Meherwanji Sethna v. 1. Silloo Dara Zaiwalla

Bombay HC30 Aug 2016MPT/99/2010

Case brief

AI extract

What is this about?

The High Court dismissed a petition seeking removal of respondents as executors of a will under Section 301 of the Indian Succession Act, 1925, holding that the petitioner had previously raised identical allegations without success in the single judge's report and appellate order, rendering the present plea barred.

What did the court decide?

Petition dismissed with costs; no order in respect of removal of respondents as executors.

Dr. Behram Meherwanji Sethna Vs 1. Silloo Dara… — Succession and Inheritance | Bombay HC (2016)

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
3-MPT99-10.DOC

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISCELLANEOUS PETITION NO. 99 OF 2010

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IN

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TESTAMENTARY PETITION NO. 657 OF 2010

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Dr. Behram Meherwanji Sethna…Petitioner
Versus
Silloo Dara Zaiwalla & Another…Respondents

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Mr. V.Y. Sanglikar, for the Petitioner.
Ms. Vidya Nair, i/b M/s. Mulla & Mulla, for the Respondents.

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CORAM: G.S. PATEL, J DATED: 30th August 2016

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PC:-

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1. Heard.

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2.The Petitioner is the younger brother of the Respondent No.
1 and the brother-in-law of the Respondent No. 2. In this Petition,
he seeks removal of the Respondents under Section 301 of the
Indian Succession Act, 1925. The Respondents are executors of the
Will dated 1st August 1973 and Codicil dated 19th April 1979 left by
the mother of the Petitioner and the 1st Respondent, Jalam
Meherwanji Sethna. Probate was obtained to these two

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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testamentary writings on 29th September 1984. All three parties
jointly sought probate. There is no dispute about this.

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3.According to the Petitioner, the Respondents have totally
failed to administer the property and the estate. He says that their
conduct has been consistently blameworthy and borders on the
nefarious. The Respondents’ conduct was indeed so egregious,
according to the Petitioner, that he was compelled to file
Miscellaneous Petition No. 27 of 2004 for directions from the
Court. It seems that by an order dated 10th March 2005 of a learned
Single Judge in that Miscellaneous Petition, the Prothonotary &
Senior Master was directed to examine the inventory and accounts
filed by the Respondents. A copy of that very detailed report is
annexed.1

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4.It is not in dispute that this report was placed before a learned
Single Judge of this Court on 6th July 2006 (Hon’ble Mr. Justice
D.K. Deshmukh, J.)2 The learned Single Judge considered the
Commissioner’s Report and found that the Respondents had
submitted accounts and inventory substantially till December 2003
when that Miscellaneous Petition was filed. He also found that the
Commissioner was satisfied with the inventory. The Petition was
disposed on that basis.

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5.Dissatisfied, the Petitioner appealed; unsuccesfully. The
Division Bench on 27th November 2006 dismissed that Appeal. It
inter alia found that there was no application before them nor any
1. Petition, Ex “A2”, pp. 46–64.

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2 . Affidavit in Reply, Exhibit “2”, pp. 219–222.

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prayer for removal of the Respondents as executors and Section 301
of the Indian Succession Act, 1925 could not be applied. Paragraph 7
of the Appellate Order reads thus:

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“7.The Counsel for the Appellant submitted that not
only the accounts were not submitted by the executors
in time and nothing was done for about 17 years, but
also the accounts and inventory submitted by the
executors do not reflect the correct affairs. He invited
our attention to Sections 263, 301, 302 and 317 of the
Indian Succession Act, 1925 and submitted that the
learned Single Judge seriously erred in not taking
appropriate action against the executors and in
disposing of the petition.”

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6.I emphasize this because this is substantially the complaint
that is made before me today. In fact, this seems to be the entirety of
the complaint that is made before me today. The Petitioner still
maintains that he has received “nothing”. He says that certain office
premises are being used by the 2nd Respondent exclusively as his
chambers, and, further, that no amount in dividend has been paid to
him. In this connection, it is worth noting the contents of
paragraphs 12 to 17 of the Petition. Here, we see repeated allegations
that the accounts are bogus and that the inventory is false.

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“12.The Petitioner states that as per the last will and
testament dated 1st August 1973 and codicil dated 19th
April 1979 of which probate was granted on 29th
September 1984, the following items of moveable
property were required to be distributed to the
beneficiaries as per the will:

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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(a)Amount lying in the Current Account with
Bank of India, M.G. Road, Branch;

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(b)Amount lying in the Current Account with
Union Bank of India, Dalal Street Branch;

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(c)Compulsory Deposit (Income Tax Payers
Scheme 1974 with Reserve Bank of India);

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(d)Amounts kept in two separate Fixed
Deposits in Bank of India Wodehouse Road
Branch together with the interest accrued
thereon since the year 1981;

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(e)Amount kept in Fixed Deposit with Godrej
Soaps Limited together with interest since 1981;

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(f)Amounts kept in Fixed Deposit with Tata
Engineering and locomotive Company Limited
together with interest since 1981;

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(g)Amounts kept in Fixed Deposit with Tata
Iron and Steel Copany Limited together with
interest since 1981;

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(h)Amounts kept in Post Office in National
Savings Certificate together with interest since
1981;

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(i)11% Debentures of Mahindra & Mahindra
Limited together with interest since 1981;

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(j)Sale proceeds of Unit Trust of India
together with interest since 1981;

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(k) Dividends from various shares since 1981;

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(l) Shares of Burma Mines Limited;

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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(m) Income Tax Refunds; and

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(n) Office furniture.

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13.The Petitioner states the amounts, interests and
dividends pertaining to items (c) to (m) above, the
Respondent No. 1 has dishonestly deposited them in an
account opened by her in the Bank of Baroda, Cuffe
Parade Branch in the joint name of her husband, the
Respondent No. 2 herein. The Petitioner was not paid
his share bequeathed to the Petitioner under the Will.

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14.The Petitioner had written letters, sent notices to
the Respondents calling on them to pay the Petitioner
his due share and administer the estate. The
Respondent Nos. as executors of the will and codicil
were in fact duty bound to pay the Petitioner his share.
In spite of repeated notices, copies of which are hereto
annexed and marked Ex. “B, B1, B2, B3, B4, B5 & B5,
B6, B7, B8” the Respondents have failed and neglected
to pay the Petitioner his due share as per the will and
codicil. The Petitioner states that it is necessary to
point out that M/s. P.C. Hansotia & Co. were the Joint
Accountants for the Petitioner’s deceased mother, the
Respondent No. 1 and the Petitioner and M/s. Gunderia
& Co. are the Petitioner’s Accountants.

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15.The Petitioner states that in respect of
immovable property which is part of the estate viz.
“Sethna bldg”, the Petitioner has ½ share. Even this
building is managed by the Respondents. The
Respondent No. 1 did not give any accounts for this
building till the Petitioner filed Miscellaneous Petition
No. 27 of 2004. Rent is collected in cash or bearer
cheque and not being deposited in Union Bank of
India’s Dalal Street Branch, as required. Tenancy
transfers and underhand dealings are rampant for this

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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property as well. Respondent No. 1 maintains the said
A/c with Union Bank in her single name and has refused
to convert it into or joint A/c.

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16.In respect of the immoveable property consisting
of an office admeasuring about 905 sq. ft. (carpet area)
in “Bansilal Mansion” Homi Modi Street, Fort, Mumbai,
the Petitioner has ¾ share in the tenancy rights and the
Respondent No. 1 has only 1/4th share. A substantial
area of 700 sq. ft. was let out to Alkati Manufacturers’
Association on a leave and license basis in 1963 during
father’s lifetime. After evicting the said licensee in 1982
the Respondents have deprived the Petitioner his
income and are even occupying the entire premises to
the total exclusion of the Petitioner, in direct conflict
with their duties as Executors & Trustees of the will and
codicil. Letters dated 30th April 1981 and 24th February
1982 written by Alkali Manufacturers’ Association of
India (Ex. “C” & “C1”hereto) are eloquent. The
Respondent No. 1 insisted that the licence fee should
be paid in her name alone and refused to accept the
licence fee in joint names. In the letter dated 26th June
2003 the Respondent No. 2 has admitted paying rent
and electricity bills in breach of his duty as the
executor & trustee of the Will & Codicil. He is in fact
using the premises as his office.

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17.The Petitioner states that his grievances about
total non-execution of the will and codicil of his late
mother have not been looked into.The Respondents
submitted bogus accounts and inventory to which the
Petitioner objected. A copy of the Prothonotary’s
Report dated 23rd June 2005is produced at Exhibit
“A1” and the Petitioner’s Affidavit dated 23rd February
2005 pointing out discrepancies is hereto annexed and
marked Exhibit “D”respectively.”

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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7.I do not see how I can re-examine any of this. This is an issue
that is no longer res integra. It is closed by a decision of the learned
Single Judge. That would have been enough for my purposes,
because I can most certainly not sit in Appeal over that order nor
can the Petitioner force me to do this in the guise of bringing a
Petition now under Section 301 of the Indian Succession Act, 1925
for different reliefs though on the same footing. In any case, there is
no possibility of going down that road because the order of the
Division Bench has sealed the matter completely. There is also,
therefore, no question of reversing the findings of the Court
appointed Commissioner and which recorded in paragraph 18 of his
Report. In any case, I do not know what to make of this scatter-shot
listing of anything and everything: “office furniture”, for instance,
or the various other items that are, clearly, covered by the
Prothonotary & Senior Master’s report and the two orders on it.

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8.I turn now to what is stated in paragraph 20 of the Affidavit in
Rejoinder, which reads thus:

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“20.I submit that

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(i)Respondents have illegally appropriated to
themselves the commercial premises in Bansilal
Mansion, Fort, Mumbai which admeasures about
900 sq. ft in prime commercial area;

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(ii)the Affidavit-in-reply is silent on how the
Respondents can appropriate the said premises
to themselves;

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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(iii)for all these years I am deprived of my
income from Bansilal Mansion premises which by
a moderate estimate comes to over Rs. 20 lakhs;

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(iv)I am not given my share of dividends /
income from Fds, shares, debentures for over 30
years;

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(v)bank accounts are opened and operated
in the Respondents’ own names for the estate
without my involvement as executor and bank
a/c. with Union Bank of India is operated by the
Respondent No. 1 in her sole name;

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(vi)one tenancy was transferred in Sethna
Building and the transfer premium pocketed by
Respondent No. 1.

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The Affidavits filed earlier and the present Affidavit in
Reply does not even remotely deal with these aspects.”

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9.Again, this is completely vague. It speaks of the Petitioner
being deprived of all share in Bansilal Mansion (Paragraph 20 (i) to
20 (iv)) and having not received any dividend income for 30 years
(paragraph 20 (iv)). Paragraphs 20(v) and (vi) are in generalities.
This is not what the Commissioner’s Report says. This is not what
the previous Courts found. As regards the prayer in respect of
Bansilal Mansion, an identical prayer on identical averments was
made in Miscellaneous Petition No. 27 of 2004. The same
allegations were made there and these are to be found in paragraph 8
at page 157 of the Petition. Relief was not granted. As regards sub-
paragraphs (v) and (vi) of paragraph 20 of the Rejoinder, these are
too vague to admit of reliance for the purposes of Section 301 of the
Indian Succession Act, 1925.

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Dr Behram Meherwanji Sethna v Silloo Dara Zaiwalla & Anr.
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10.I am, at this stage, concerned not with the directions for the
administration of the estate as such. It is undoubtedly clear that the
Respondents must, of course, maintain accounts and administer the
estate till that process of administration is complete, if that has
already not been done. According to the Respondents, and this is
stated in terms in their Affidavit in Reply, the administration is
complete. I am not concerned with those disputes and those
premises at Bansilal Mansion. I have to examine whether there is a
ground made out in this Petition for the removal of executors for
misconduct.

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11.I find no such ground. On the contrary, it seems to me that it
is the Petitioner who insists on re-agitating the same issues over and
over again. I note in passing that Mr. Sanglikar sought an
adjournment on the ground that before another court a suggestion
was made for settlement. I refused that adjournment. That dispute
is altogether separate from this one.

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12.The Petition is dismissed, and it is dismissed with costs.

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(G. S. PATEL, J.)

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Dr. Behram Meherwanji Sethna v. 1. Silloo Dara Zaiwalla

Case brief

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What did the court decide?

Dr. Behram Meherwanji Sethna v. 1. Silloo Dara Zaiwalla

Case brief

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