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2010 Supreme(Bom) 1742
High Court of Judicature at Bombay
THE HONOURABLE MRS. JUSTICE ROSHAN DALVI
Ferani Hotels Pvt. Ltd.
Versus
Nusli Neville Wadia
Miscellaneous Petition No.70 of 2010
Decided on : 15-12-2010
For the Petitioner:Dr.A .M. Singhvi, Sr. Advocate with T.N. Subramanian, Sr. Advocate, Ashok Gupta, Zubin Behramkamdin, Vivek Vashi Sushma Nagraj, Ms. Anusha Jegadeesh & Ameesh Patnair for i/by M/s. Bharucha & Partners, Advocates. For the Respondent:F.S. Nariman, Sr. Advocate with N.H. Seervai, Sr. Advocate, V.R. Dhond, Rohan Kelkar, S.V. Doijode, P.A. Kabadi & Ms.F.J. Thakkar i/by M/s. Doijode Associates, Advocates.
Headnote:Succession Act, 1925 - Section 63-Execution of Will-Term "cease to act"-Not defined-expression "cease to act for any reason" in Will of testator to be read alongside expressions "pre-deceased one" and "failed to qualify".-The expression "cease to act for any reason" in the Will of the testator should, therefore, be read alongside the expressions "pre-deceased me" and "failed to qualify". These are the three eventualities specified in Clause VIII of the Will in which event the nomination of the successor is made.
Succession Act, 1925 - Section 63-Will-Interpretation of-The Will must be read as a whole-Every part of Will given effect to-No part of Will can be rendered otiose upon its construction.-The Will, as any other document, is required to be read as whole and every part given effect to. No part can be rendered otiose upon its construction. The judgment relied upon by the petitioner in the case of Bhura v. Kashi Ram, (1994) 2 SCC 111 makes this position clear.
Succession Act, 1925 - Section 241-Order under-Come to an end for limited grant granted thereunder if probate obtained by absent executrix-If probate not obtained by absent executrix, grant would not come to an end.-The order of the Court under Section 241 of the IS Act would come to an end for the limited grant granted thereunder when probate would be obtained by the absent executrix. If the probate is not obtained by the absent executrix, the grant would not come to an end.
Civil Procedure Code, 1908 - Order XXIII, Rule 3-Compromise -Right to avoid-Right of stranger-Compromise voidable-Can be avoided by party himself or herself-A stranger to compromise has no right to avoid compromise.-No counsel would have authority to enter into compromise on collateral matters in the absence of express authority and a compromise would be set aside in circumstances which would invalidate the agreements between the parties. That provision has been specifically made under Order XXIII, Rule 3 of the CPC. Hence, if the compromise can be avoided on the ground that it would be voidable, the party himself or herself may avoid it. There is noting to show or suggest that the stranger to the compromise could avoid the compromise.
1. This Petition was filed for revocation and annulment of the order dated 20th November 2003 authorising and permitting the Respondent to continue to act as Administrator of the estate of one Eduljee Framroze Dinshaw passed in Miscellaneous Petition No.41 of 2003, to remove the Respondent from the office of Administrator of the estate of the deceased and to appoint a fit and proper person, including the Petitioner as such Administrator, for disclosure of the estate of the deceased and accounts.
2. The deceased died in New York, United States of America (U.S.A.) on 14th March 1970 leaving behind his last Will and Testament dated 4th February 1970 (the Will). Under Clause IV of the Will, the deceased (the testator) bequeathed a life interest in the net income of his properties in India to his sister one Mrs.Bachoobai Woronzow Dashkow (Bachoobai) and upon her death to two charitable institutions in the U.S. the Salvation Army and the American Society for the Prevention of Cruelty to Animals (U.S. Charities). Clause IV reads thus:
“In the event that at the time of my death I shall own outright and free from any trust any real or personal property physically located in the Republic of India, then and in such event, I give, devise and bequeath the same to my Trustees, hereinafter named, IN TRUST NEVERTHELESS, to hold, invest and re-invest the same and to collect and receive the rents, interest, issues and income therefrom and to pay the net income thereof at such times as my said Trustees may consider appropriate, but not less frequently than quarter annually to, or apply the same for the benefit of my sister, BACHOO WORONZOW, for life if she survives me and upon the death of my said sister, BACHOO WORONZOW or upon my death if she shall predecease me, I give, devise and bequeath the then principal of said trust fund together with any accrued income thereon, in equal shares to THE SALVATION ARMY, New York, New York and THE AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, New York, New York for their general uses and purposes.”
Under Clause V of the Will, he granted the residue of his estate to his sister Bachoobai. Clause V reads thus:
“I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal to my sister, BACHOO WORONZOW, if she survives me or, if she shall predecease me, in equal shares, to THE SALVATION ARMY, New York and THE AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, New York, New York, for their general uses and purposes.”
Bachoobai had not predeceased the deceased. Hence she would take the remainder of the estate of the deceased after the U.S. Charities were bequeathed the principal of the Trust fund and the accrued interest in the real and personal properties of the deceased, including properties in India.
3. Under Clause VIII of the Will, he appointed Bachoobai as the executrix of his Will and certain other as successor executor in the event that she predeceased him, failed to qualify or ceased to act for any reason. He authorised them to designate another individual to act on their behalf if they could not act in a foreign jurisdiction. The relevant part of Clause VIII of the Will runs thus:-
“I nominate, constitute and appoint my sister, BACHOO WORONZOW, to be Executrix of this my Will and in the event that she shall predecease me, fail to qualify or cease to act for any reason, I nominate, constitute and appoint as successor such then partner of Coudert Brothers as shall be designated by any three then partners. Should any executor be unable for whatever reason to exercise her or his functions in a jurisdiction outside the United States of America, I hereby authorize her or him by written instrument, duly acknowledged, to designate an individual or a bank to act on her or his behalf in respect to property located in such foreign jurisdiction. I nominate, constitute and appoint ALEXIS C. COUDERT and JEHANGIR B. DUBASH to be the trustees under th
