The court held a bequest of FSI benefits in a Will void for uncertainty as FSI is attached to the flat and no separate pre-determined right exists. The defendant's renunciation of executorship was noted.
View of clause 4 and 6 of the Will rejected; originating summons disposed of.
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19-ORGS1252-17.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINATING SUMMONS NO. 1252 OF 2017
…Plaintiff
Sudhir Kulkarni…Plaintiff
Versus
Jayashree Sattigeri…Defendant
Mr Nikhil Mengde, with Robin Nazareth, for the Plaintiff.
Mr BG Saraf, for the Defendant.
CORAM:G.S. PATEL, J
DATED:9th April 2019
PC:-
1.The Originating Summons is by one of the two children of the
deceased Pandit Ramchandra Kulkarni. The Plaintiff and the
Defendant are the deceased’s children. The Defendant is the
Plaintiff’s sister.
2.The Originating Summons seeks an interpretation of two
clauses of the deceased’s Will dated 26th February 1998.
Specifically, in Clause 4 the deceased left to the Plaintiff his
ownership right, title and interest in Flat No. 4 of the Suman
Cooperative Housing Society Limited at Suman Nagar, VN Purav
Marg, Chembur, Mumbai 400 071. There is no dispute about this.
Clause 6 then gave the Defendant, Jayashree, what the deceased
described as “his right” to the proportionate balance FSI in the land
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19-ORGS1252-17.DOC
of the society and to which he claimed to be entitled as one of the
society’s members, and also the FSI benefits in the event of a
redevelopment or reconstruction of the building.
3.The question raised in the Originating Summons is whether
this bequest in clause 6 is valid or enforceable or, in other words,
whether it is void for uncertainty.
4.I would imagine the Plaintiff is correct because this is a
bequest of something that does not exist, and may never exist.
There is no computation of any additional FSI. There is no
declaration of any individual member having a right, let alone an
alienable right, in that FSI. Certainly there is no method by which
that FSI can be de-linked from the flat in the manner in which the
Will seeks to do. Reading the two clauses conjointly would mean
that a member could retain his flat but sell conceivably to an
outsider or third party the FSI, something that would result in a
complete absurdity for the society would then have a member in
occupation and an outsider holding the FSI. That can never be.
5.In any case, the building belongs to the Society, and it is the
Society that is entitled to the whole of the FSI. It may distribute this
in the manner set out by its rules, or as society members agree.
There is no pre-determined right in any member to any FSI at all. If
there is a sharing of the FSI, then the share of every member goes
with the flat. Any additional FSI entitlement is attached to the flat.
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6.Membership of the society is the right to occupy, use, possess
and enjoy the benefits of an allotted flat and this is well settled in
law. In this context, a FSI entitlement is perhaps conceptually
distinguishable from, say a parking space or a covered garage. Such
an identified separate space could possibly be separated from the
use, occupation and ownership of the flat. In a given case a society’s
rules may permit a member to sell a garage to another member of
the society but it is inconceivable that a member could continue to
hold a flat but sell or dispose of the FSI to another party, even if that
other party is another member.
7. The Originating Summons is thus answered accordingly.
8.The Defendant is present in Court. At this stage, she
instructs Mr Saraf on her behalf to state that she has no interest in
continuing to act as an executor of the estate. She desires that her
renunciation be noted by the Court. Ordinarily this would involve
service on her a special citation to appear before the Court to
express her intentions. This is, of course, a formality but it is
required when the executor is not otherwise coming forward. The
Defendant is the executor and she is present in Court, albeit in
another proceeding, viz., this Originating Summons. It is she who
makes this request and I see no conceivable reason to deny it. I,
therefore, note her renunciation, one that she could have expressed
by simply writing a letter to the Plaintiff, the other benefcary. i
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9.It will thus be open to the Plaintiff to apply for Letters of
Administration with Will annexed. Mr Saraf, on instructions, also
states that the Defendant has no challenge to the Will.
10.The Originating Summons is disposed of in these terms.
There will be no order as to costs.
(G. S. PATEL, J)
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9th April 2019
2 issues framed by the court
Whether the bequest of FSI benefits in the deceased's Will is valid or void for uncertainty.
Whether a society member can alienate FSI rights separate from the flat.
Atul Sudhir Kulkarni
Jayashree Sattigeri
G.S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court