Rama Aziz Parpia and others vs Balkrishna K. Mehta and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 148

IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna, J.
Rama Aziz Parpia and others ... Plaintiffs.
Versus
Balkrishna K. Mehta and others... Defendants.
Originating Summons No. 576 of 1989 in Suit No. 1554 of 1989, decided on 3-8-1992.
Advocates appeared :
S.E. Dastur with Mrs. Zia Mody i/by Maneksha Sethna, for the plaintiffs in support.
S.J. Thakkar i/by Mulla Mulla Craigie Blunt Caroe, for defendants 1 and 2 to show cause.

Headnote:Sections 104 and 109-Bombay High Court (Original side) Rules, 1980, Rules 238 and 249-Will-One of properties left by testator locked in litigation resulting in postponement in giving effect to his wishes-Powers of Court.
       Held Court empowered to give appropriate directions to executors even while one of properties left by testator is tied up in litigation so that remaining properties were administered by legatees.
       Sections 104 and 119-Bombay High Court (Original side) Rules, 1980-Rules 238 and 249-Will-Originating summon taken out by some of legatees under Will of deceased for certain directions to executors of estate of deceased Purpose of originating summons-Nature of jurisdiction of Court.
       It is not a process for declaration of rights of parties nor is it a lis-It is a means for getting over unexpected, uncontemplated difficulties which crop up during administration of the estate by executors or trustees.
       An originating summons is a means for getting over unexpected, uncontemplated difficulties, which crop up during the administration of the estate by Executors or trustees. Finding the difficulty insuperable, the parties approach the Court for indicating the most just and equitable manner of administering the estate, in the circumstances, consistent with the wishes of the testator or settler, as the case may be. An originating summons is not a process for declaration of the rights of the parties, nor is it a lis, as popularly understood. A perusal of the form of the plaint prescribed also makes it clear that, though in taking out the originating summons, the interested is required to file a plaint, there is no prayer required to be made in the plaint, and it would be sufficient, if the questions, for which the Courts answers are sought, are indicated therein.
       The Court, while exercising power in deciding an originating summons. is not determining a lis. It is not adjudicating the rights and liabilities of parties. Particularly, when the parties are the legatees and executors both of whom, by definition, must be interested in true execution of the terms of the Will, it is not possible to contemplate an originating summons as a process of resolution conflict of interest or adjudication of rights and liabilities. To put it figuratively, this is a special jurisdiction created to pour oil over troubled waters or to grease the creaking joints. This is the true nature of the jurisdiction, and as long as the estate can be administered in a particular manner, neither contrary to the terms of the Will nor to any law applicable, the Court has jurisdiction to give directions to the executors to administer the estate in such manner. This is the true purpose of an originating summons.

JUDGMENT - B.N. SRIKRISHNA, J.:---This originating summons has been taken out by some of the legatees under the Will of the deceased Dr. Vithaldas Ladhabhai Parmar (hereinafter referred to as "the deceased") for certain directions to the executors of the estate of the deceased.

2. The plaintiffs are the married daughters of the deceased. The first two defendants are the executors of the Will of the deceased. The third defendant is the daughter-in-law of the deceased, being the widow of late Jamnadas Parmar, a son of the deceased. Defendant No. 4 is another son of the deceased.

3. The deceased, Dr. Parmar, was practising as a Surgeon in Bombay and had a large practice. He had his consultation rooms at Laud Mansion, Charni Road, which were taken on tenancy from the owner of the said building. Out of the large income earned by him, with prudent investments, he acquired several properties during his lifetime. The deceased executed a Will dated 9th May, 1974, making provisions for certain pecuniary legacies and for disposal of the residue after payment of the pecuniary legacies. A codicil was also executed on 17th February, 1975, under which, certain specific bequests were made to servants, totalling in all Rs. 19,000/-. The deceased died on 30th October, 1976. The executors of the deceased's Will filed a petition for probate on 8th of February, 1988. Defendant No. 4 had filed a caveat therein. Citations were served on the plaintiffs and the husband of defendant No. 3, who is also a son of the deceased.

4. On 19th November, 1982, this Court granted probate of Will and the executors became entitled to take charge of the estate and execute the Will.

5. In order to appreciate the controversy arising in the present originating summons, it would be necessary to consider some of the relevant clauses of the Will of the deceased, dated 9th May, 1974. Nothing turns on the Codicil dated 17th February, 1975. Clauses 5, 6, 7, 8, 9, 10 and 11 of the Will, which are relevant, read as under :-

"5. My Executors should collect all the amounts and dispose off my immoveable properties and utilize the amounts so realised as per my wish as expressed below.

6. The expenses incurred in collecting amounts as well as in disposing off my properties etc. and for getting Estate Duty Certificate and the probate of this Will and all incidental expenses including travelling expenses etc. etc. shall be incurred from my properties.

7. After getting the probate etc. my Executors are directed to give Rupees Ten Thousand to each i.e. to my two sons to four daughters and to my daughter-in-law Chanda, to my sister Samaratben and my nephew Mohan.

8. From the balance remaining after giving amounts as shown in para Seven above a sum equivalent of 3/4 (three-fourth) of the said balance should be set apart and out of this amount Half the sum should be kept as permanent Fund and should be invested in F.D. Receipts or Government Securities and the yearly interest accruing therefrom should be utilised for the purposes as shown below.

(A) To help the Students of any Caste or Creed by giving them Scholarships, Loans, Freeships, Books etc.

(B) Help poor people by giving them grain food, medicine clothes etc.

9. The remaining Half the amount as shown in para Eight above should be utilised for the following purposes viz : Donations at Hospitals, for Medicine, Fruits, Furniture, or Wards, Special Beds etc., as deemed proper by my Executors, Donations to Dispensaries Convalescent Home, Nursing Houses, Orphanages or to Institutions for promotion of any Public Charitable objects as deemed proper by my Executors.

10. From the balance remaining thereafter i.e. after setting amounts apart as said in para Eight and Nine and Executors are directed to set apart a sum of Rupees Seventy Five Thousand and utilise the same in three parts viz : Rupees Twenty Five Thousand in memory of my father Ladha

Click Here to Read the rest of this document