Allowed

Chandravadan T.Desai and Anr. v. Arun Nandlal Bhatt and 6 Ors.

Bombay HC18 Apr 2016MTA/1/2016

Case brief

AI extract

What is this about?

Applicants sought removal of the sole surviving Executor for non-compliance with consent terms and for legally untenable conduct involving allegations against the appointing Will. The Court ordered removal and permitted sale of the property under consent terms.

What did the court decide?

Order removing the Petitioner as Executor; permitting Applicants to sell the property and distribute proceeds under consent terms; appointing Respondents 5 and 7 as successors.

Chandravadan T.Desai and Anr. Vs Arun Nandlal… — Succession and Inheritance | Bombay HC (2016)

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISCELLANEOUS APPLICATION NO. 1 OF 2016

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IN

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TESTAMENTARY SUIT NO. 40 OF 1992

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IN

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TESTAMENTARY PETITION NO. 53 OF 1992

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Arun Nandlal Bhatt & Others…Applicants
And
Chandravadan T. Desai & Another…Plaintiffs
Versus
Arun Nandlal Bhatt and 6 others…Defendants

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Mr. Cyrus Ardeshir, i/b Mr. Bharat Punekar, for the Applicants.
Mr. Navin Vimadalal, i/b M/s. Vimadalal & Co., in support of legal
heirs of original Respondent No. 2.

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CORAM: G.S. PATEL, J DATED: 18th April 2016

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PC:-

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1.I have heard Mr. Ardeshir for the Applicants. The relief that
Mr. Ardeshi is perhaps extreme. It is certainly unusual. However,
having regard to the circumstances, I believe the application should
be allowed. The Applicants seek the removal of the original Probate
Petitioner, a person of 92 years of age, presently living in Bangalore,
as an Executor. The circumstances are indeed peculiar.

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2.One Rasilaben Gokli, also known as Rasila Nandlal Bhatt,
had four sons Rajanikant, Arun, Ashok and Chandrakant. She also
had a daughter. The daughter passed away in 1972. Arun and
Chandrakant have subsequently passed away as well. Rasilaben was,
in her lifetime, entitled to some leasehold rights to a plot of land at
Juhu Scheme bearing CTS No. 283 of Village Vile Parle,
admeasuring 663.03 sq. mtrs. The term of the lease was 998 years.

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3.On 16th January 1991 Rasilaben made a Will. She appointed
her brother Mr. Hemant Desai and one Chandravadan Desai, the
original Petitioners, as her Executors. As regards the property at
Juhu, she bequeathed this to only two of her four sons, viz., Ashok
and Chandrakant (both of whom have since died).

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4. Rasilaben herself died on 31st May 1991 at the age of 67.

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5.On 26th December 1991, the Executors of her will, viz.,
Chandravadan Desai and Hemant Desai filed this Testamentary
Petition No. 53 of 1992 seeking probate to her Will. Of necessity,
the Probate Petition mentions that the Will of which probate was
sought was the one dated 16th January 1991. The probate Petition
was opposed by Arun and Rajanikant, the two sons who had been
excluded from the bequest of the Juhu property. Incidentally, I may
note that Rajanikant himself has recently passed away and a
separate Petition for probate to his Will is even now pending.

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6.Upon Caveats being filed by Arun and Rajanikant, the
probate Petition was converted in Testamentary Suit No. 40 of
1992. In the meantime, on 19th June 1992 Arun filed Suit No. 1809

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of 1992 in this Court seeking administration of the Rasilaben’s
estate.

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7.While these Suits were pending, Chandrakant passed away
on 23rd August 2007. Ashok died on 26th June 2009. Both died
intestate. These were the two legatees of the Juhu property.

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8.On 5th July 2013 one of the co-executors and one of the
original Petitioners, Hemant Desai, also passed away. This left only
Chandravadan Desai as the sole surviving Executor and Petitioner.

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9.The original Probate Petition was filed in 1991. On 24th
March 2013, some 23 years after the petition was originally filed, a
settlement was finally arrived at putting an end to the entire
litigation. Consent Terms were filed. It was agreed that Arun,
Rajanikant and the son of Rasilaben’s predeceased daughter should
receive a certain percentage of the net sale proceeds of the Juhu
property. In the Administration Suit, the probate Petitioner
Chandravadan Desai was Defendant No. 13.

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10.The Consent Terms contemplated that he, in his capacity as
an Executor under Rasilaben’s Will, would sell the property within
six months from the date of the Consent Terms and distribute the
sale proceeds amongst the Applicants. On 24th March 2014, these
Consent Terms were taken on record. The probate Petition (then a
contested Suit) and the Administration Suit were both disposed of.

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11.Under the Consent Terms, the present Petitioner/Executor
would have had to sell that property at Juhu by September 2014.

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Those six months came and went. The property was never actually
put to sale.

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12.On 10th December 2014, Chandravadan Desai, the
Petitioner, wrote to the Applicants confirming that he would
administer the estate in accordance with Rasilaben’s Will of 16th
January 1991, as modified by the Consent Terms to which I have
just referred, and further that he would make a distribution of the
net sale proceeds in accordance with these Consent Terms. At best,
this would have operated to extend the time for completion of sale
and distribution of the sale proceeds. A copy of this letter is at page
54 to the Petition.

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13.On 27th July 2015 probate of Rasilaben’s Will came to be
actually issued. That probate contained, as it necessarily had to do,
an undertaking from the Petitioner to administer the estate of the
deceased and to make a full and true inventory of the property and
credits of the deceased.

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14.Several months elapsed and yet the Petitioner made no
attempt to sell the property. In the meantime, given the location
and size of the property offers were received. To arrange the
modalities of the assignment, a meeting was fixed at Mumbai. The
Petitioner was then in Mumbai. He did not attend the meeting. He
left Mumbai for Bangalore but did not indicate when he would
return. Between September and October 2015, the Applicants tried
to contact the Petitioner. They could not. On 10th October 2015,
Applicant Nos. 4, 5 and 7 (all heirs of one or the other of the
original Caveators) personally travelled to Bangalore to meet the

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Petitioner and to find out when he would return to Mumbai to
complete the transaction. Left with no choice on 7th November
2015, the Applicants executed a Term Sheet in favour of the offeror.
It is clear that they did not want the existing offer to lapse. That
very day, they sent a copy of the Term Sheet to the Petitioner
requesting him to come to Mumbai to conclude the transaction.

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15.Between early November 2015 and early December 2015, the
Petitioner remained illusive. He did not respond to various
attempts of communications. A second letter was sent to him on
2nd December 2015. There was yet no reply.

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16.Mr. Ardeshir points out that Exhibits “AA” and “BB” to the
present Petition at pages 115-119 are extraordinary documents.
Exhibit “AA” is a handwritten letter from the Petitioner. It was
apparently sent to the Applicants or some of them. Exhibit “BB” is
a typed copy. For all practical purposes, the two exhibits are one.
What is stated in this document is indeed shocking. In this, for the
first time the Petitioner, an Executor, assails Rasilaben’s Will of
16th January 1991. He says that it is a forgery by Chandrakant,
Neelima, and even the co-executor Hemant Desai, among others.
He says that there is another Will dated 24th October 1986, and
that this is the genuine Will. He also says that nothing further
should be done and all lockers should remain as they are and says,
completely contrary to the Consent Terms, and which he separately
confirmed he would adhere to, that none of the Applicants should
get any shares from Rasilaben’s estate.

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17.It is on this basis and for this reason that the Applicants seek
the Petitioners’ removal. That, however, is the alternative prayer. In
fairness, the first prayer is for a direction to the Petitioner to abide
by the Consent Terms and to execute the necessary documents of
sale of the Juhu property.

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18.Mr. Ardeshir’s clients have attempted to give notice of the
present application to the Petitioner. All that is received in return is
a letter or email from one Mr. Harish V.R., Advocate in Bangalore
demanding that the Petitioner be sent a return air ticket, that
accommodation be arranged for him preferably near Radio Club and
that the matter be kept in the second week of June 2016.

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19.This was pointed out to me on the last occasion when Mr.
Ardeshir moved for reliefs. I then directed that notice be given
afresh. This is noted in my order of 5th April 2016. A notice was
given. Pursuant to that, the Plaintiffs’ Advocates have received an
email from Mr. Harish V.R., repeating the same demand.

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20.Leaving aside for the moment all other allegations, there are
only two documents immediate relevance. The first is the
document at page 54, the Petitioner’s own letter of 10th December
2015 agreeing to abide by the Will dated 16th January 2991 and to
administer the estate in accordance with that Will as modified by
the Consent Terms. The second is the document at Exhibit “AA”
with its translation at Exhibit “BB” to which I have just referred. I
am wholly unable to understand how the Petitioner can possibly
contest this application or what he can possibly have to say. His
bounden duty in law as an Executor was to obtain a probate to the

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Will. It was not for him to allege that the very Will that appoints
him as Executor is a forgery. He had no locus or standing to say
anything of the kind. He could have renounced executorship, and
that is all. It seems to me clear that even on any principle analogous
to devastavit, well-established under the Succession Act, the actions
of this Executor are likely to result in considerable loss to the estate
and to those entitled to a share in it.

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21.I see no reason whatsoever to indulge this Petitioner if these
are the sort of communications he persists in sending. I thought
that it would be evident to the Petitioner as also to his Advocate
that what I said in my order of 5th April 2016 was not in any sense a
request or an invitation to the Petitioner. He was required to make
arrangements to either remain present or be represented in Court
today. He has done neither.

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22.Ordinarily, our Courts do make some allowance for the age of
a litigant and ordinarily I would have granted some leniency to the
Petitioner. But I believe that I have already done that in my order
dated 5th April 2016. What I am not prepared to do is to allow this
estate to be put to loss and to let a valuable offer be withdrawn
because of this inexplicable and legally wholly untenable conduct of
the Petitioner. It strains incredulity that an Executor acting as a
probate Petitioner should imagine himself to have any standing at
all to challenge and dispute the very Will that appoints him an
Executor. I do not imagine the month of the year is going to make
the slightest difference. I do not see what the Petitioner can say in
June 2016 that he cannot in April 2016. I fail to understand how the
Petitioner can resile from his position solemnly taken. I cannot

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overlook the fact that he is the Petitioner; he has put his signature
to this Petition. In this Petition he propounds the Will of 16th
January 1991. Accompanying the Petition is an executor’s oath. He
has confirmed in his writing at page 54 to administer the estate in
accordance with the Will, and he has in that very document,
confirmed that he will act according to the Consent Terms. He is
not a legatee. He is not a beneficiary. He is not an heir. He has no
standing in law to dispute or challenge the Will. Even if one of the
heirs had brought a Petition for Letters of Administration With Will
Annexed, this probate petitioner could never have contested it.

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23.In this view of the matter, I believe that more than sufficient
case has been made out for the grant of final relief on this
Miscellaneous Application. I am not inclined to grant prayer clause
(a), which is a direction to the Petitioner to execute the necessary
documents. I have absolutely no confidence that the Petitioner will
comply with these directions.

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24.This is a fit case for the removal of the Petitioner.

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25.Accordingly, the Miscellaneous Application is made absolute
in terms of prayer clause (b), which reads as follows:

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“(b) In the alternative, if this Hon’ble Court finds that the prayer as sought for in prayer clause (a) cannot or ought not to be granted, that this Hon’ble Court be pleased to pass an Order removing the Petitioner as the Executor of the Will dated 16th January 1991 and permit the Applicants to sell the said property and distribute the proceeds

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thereof in accordance with the consent terms dated 24th March 2014 and appoint Respondent No. 5 and 7, or such other person as this Hon’ble Court may deem fit and proper to administer the remaining estate as successor to the Petitioner as the Executor / Administrator of the Will dated 16th January 1991;”

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26.This order necessarily means that the Petition and the
ensuing grant will need to be amended to reflect Respondents Nos.
5 and 7 as Petitioners; and to show the Petition as one for Letters of
Administration with Will annexed. Leave to amend granted. The
necessary amendments, including to the grant, are to be carried out
on or before 29th April 2016.

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27.All concerned to act on an authenticated copy of this order.

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(G. S. PATEL, J.)

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Chandravadan T.Desai and Anr. v. Arun Nandlal Bhatt and 6 Ors.

Case brief

What is this about?

What did the court decide?

Chandravadan T.Desai and Anr. v. Arun Nandlal Bhatt and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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