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IN THE HIGH COURT OF BOMBAY
(T. I.J.)
S.S. Nijjar, J.
Darjus Jehangir..... Petitioner.
Versus
Lyla Minoo Ghasvalla others..... Respondents.
Misc. Petition No. 50 of 1999 in Petition No. 598 of 1990 and Notice of Motion No. 2566 of 1999 in Petition No. 598 of 1990 and Administrator’s Report dated 8-3-1999 of Mr. Justice M.L. Dudhat (Retd.), decided on 22-12-1999.
Advocates appeared :
C.S. Kapadia with Ms. Lata Bachani i/b I.R. Joshi Co., for the applicant.
Pravin Diwan with Ms. Sidhwa i/b Geeta Menon, for respondent No. 2.
A.Y. Bookwala with V.J. Shah i/b Chetan Mehta, for respondent No. 1.
M.P. Rao i/b L.C. Tolat Co., for respondent No. 3 in the Notice of Motion.
J.B. Chinoy with J. Jain i/b Lalit Jain, for respondent No. 3 in Misc. Petition No. 50 of 1999.
(Indian) Succession Act, 1925
Sections 74, 75, 82 & 88-Guardians and Wards Act, 1890, Sec. 29 - Testamentary proceedings-Miscellaneous petition-Condition-Bequeath to minor on her attaining age of 21 years-Money given under will to purchase property in joint names of minor and her mother for benefit of minor-Leasing the property for 99 years for a meagre sum of money is not in the interest of minor-Mothers conduct is not in harmony with Will - Father and mother are joint custodian of minor-Decisions on minors interest jointly to be taken-Mother has no right to dispose off the property - Petition by father of protecting minors interest-Will already probated -Contention not sustainable-Ad-interim order to continue during the pendency of the petition.-Under Section 29 of the Guardians and Wards Act, 1890, the guardian has the power to create leasehold interest in the property of the minor for a term nor exceeding 5 years. Taking the allegations made in the petition at face value, prima facie, it cannot be held that the petition does ot disclose a cause of action. Therefore, at this stage it would not be possible to hold that the petition is not maintainable. In any event the petition raises substantial questions of law and, therefore, it cannot be dismissed at this stage.
Sections 74, 75, 83 and 88, Chapter VI-Construction of Will - Duly of Court-To ascertain intention of testator while instrument was created.
2.The facts as emerging from the pleadings of the parties may be noticed in order to crystalise the various controversies raised by the parties.
3.Late Mrs. Piloo Ghaswala (hereinafter referred to as "the deceased") who was the maternal grand mother of minor Zenia and the mother of Mrs. Lyla Darius Jehangir, hereinafter referred to as "respondent No. 1", died leaving her last Will Testament dated 21st April, 1989. Mr. Justice B. Lentin, Mrs. Roshan Chopra and Mr. Mohan Jaykar were appointed as Executors in the Will. They have obtained probate of the Will in T. I.J. Petition No. 598 of 1990 by order of this Court dated 28th October, 1994. Darius Jehangir, hereinafter referred to as "the applicant", was married to respondent No. 1. The marriage was dissolved by a decree of divorce granted on 12th July, 1989. The custody of Zenia was given to respondent No. 1. On 7th October, 1989 the testator died. Decree dated 12th July, 1989 was modified on 12th December, 1990 in terms of the Consent Terms. Two relevant Clauses of the Consent Terms were as under :
"1. Ordered that the order dated 12th July, 1989, according custody of the minor, Zenia, to the respondent be varied and the custody of the minor, Zenia, be and is hereby accorded to the petitioner and respondent jointly.
2. Ordered that all the major decisions with regard to the minor, Zenia, be taken by the petitioner and respondent jointly and in the event of there being any disagreement between the parties hereto, through orders of this Hon'ble Court."
For the decision of this controversy, Clauses 6, 7, 8, 9, 10, 11, 13, 14 and 40 of the Will are relevant and are reproduced hereunder:
"6. I have two daughters viz. Mrs. Lyla Darius Jehangir and Miss Anita Ghaswala. (I have called my daughter Anita Ghaswala by her maiden name as she has already filed a petition for divorce in respect of her marriage to Mr. Dalla Toddywalla). My elder daughter Mrs. Lyla Darius Jehangir is an extravagant and irresponsible girl and is subject to fits of depression and it is for this reason that I direct my trustees by this my will under the trust created hereunder to hold all properties bequeathed and devised by me to her for the benefit of her daughter Zenia and the said property bequeathed to Lyla shall be held upon trust for the benefit of her daughter Zenia and upon Zenia completing the age of 21 years, my trustees shall hand over all such property to Zenia absolutely. (emphasis supplied)
7. As stated above in view of my daughter Lyla being an extravagant and irresponsible girl and being subject to fits of depression in the matter of sale and dispose off the flat on the 2nd floor of Gazdar House at 45, Warden Road, Bombay 400 026, as mentioned in Clause 15 herein, the decision of my trustees shall be binding on her and the bequest to her shall therefore be subject to the decision of my trustees.
8. I have shares in the following companies belonging to me but standing in the joint names of my daughter Lyla and myself, I direct my trustees that the said shares shall be held upon trust for the benefit of my grand daughter Zenia to be given to her on her attaining the age of 21 years as stated hereinabove.
Larsen and Toubro3091
Larsen and Toubro (Debentures) 66
Associated Cement 11
South India Viscose 45
Cochin Malabar 840
9. I have shares in the following companies belonging to me but standing in the joint names of myself, my daughter Lyla and Mr. Darius Jehangir. I direct my trustees that the said shares shall be held upon trust for the benefit of my grand-daughter Zenia to be given to her on her attaining the
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