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HIGH COURT OF JUDICATURE AT BOMBAY
ROSHAN DALVI, J.
Rachana Shirish Shah & Others
Versus
Janak Bapulal Shah & Others
NOTICE OF MOTION NO. 2427 OF 2012 IN SUIT NO. 2477 OF 2012
Decided on : 09-04-2013
Where defendant, intermeddled administration of Will, produced by plaintiffs bequeathing estate of deceased equally to all her children therefore case made out for appointment of Court Receiver an d ordering injunction against alienation of suit property. - The oral case of defendant No. 3 of the execution of the Gujarati will is wholly uncorroborated by any evidence whatsoever. Despite the correspondence since 2011 upon the betrayal felt by defendant No. 1, defendant Nos. 1 and 3 have not succeeded in producing a copy of the will obtained from the Registrar’s office in Mumbai or Patan. Their case of any such will of the deceased deserves to be wholly rejected upon the wholly inconsistent behaviour of defendant No. 1 and the silence of defendant No. 3 despite a will under which their branch would be 50% owner of almost the entire estate of the deceased.
The case of defendant No. 3 of the imaginary Gujarati Will, hitherto not having seen the light of the day, must be appreciated alongside the actual English will, copy of which is produced by plaintiffs and which has been sought to be probated by defendant Nos. 4 to 6 alongside the nomination of the deceased and the affidavit of the nominee of the deceased. It would be material to consider the two documents side by side.
The visualisation of the Gujarati Will, therefore, remains at that. It is not corroborated by the nomination or the affidavit stated to have been made.
The nomination has been made by the deceased prior to or along with the will. It is, therefore, recited in the will. The date on the nomination is not put by the deceased. The date on the nomination is in a completely different handwriting. It is in the handwriting of one Singh who has signed verifying the signature of the deceased as an account holder. That is the verification of the signature of the deceased as required by the Society. The contention that the will may be bad and not a genuine document because the nomination is of a later date is wholly misconceived. The affidavit is indeed filed later by plaintiff No. 3. That is in terms of the will. That shows the good taste in which she accepted the will and the bequest to all the heirs equally as per the desire of the deceased.
In view of these facts the defence of defendant No. 3 that he was allowed to live in the suit flat is wholly improbable and is required to be rejected. Consequently defendant No. 3 cannot be allowed to live in the suit flat when all the heirs of the deceased accept the will except his own father who is represented by defendant No. 3 himself. Defendant No. 3 is seen to have wrongfully and unlawfully entered upon the suit flat and claims to hold on to the suit flat. He is an intermeddler. Defendant No. 3 is, seen to have caused loss to the estate of the deceased by his unlawful trespass.
Pending the notice of motion an attempt at selling the suit flat for the highest price was made. Defendant No. 3 has refuted the offer of sale as per the desire of the deceased.
A probate petition has been filed to probate the English will of the deceased. A caveat has been filed thereto. The validity of the execution of the will would be decided in the testamentary suit between the parties. No other Gujarati will is produced. None can be probated. No right of defendant No. 3 to the suit flat in any manner is seen. He is not even an heir. Defendant No. 1 has challenged the probate represented by defendant No. 3. He has also only an equal share in the suit flat. Defendant No. 3, who claims to be in possession as alleged to be allowed by the heirs as having been with the deceased during her last months is not entitled to any part of the suit flat. Defendant No. 3 has only sought to delay and thus defeat the bequest made by the deceased and the distribution of her estate between the plaintiffs, his father and the heirs of the other brother, defendant Nos. 2(a) to 2(c) though his wife and the other brother’s wife have received the bequests made to them acting under the same Will.
A case of appointment of Receiver and the grant of injunction against alienation of the suit property is made out.
1. The plaintiffs are three daughters of the deceased Sushilaben Bapubhai Shah who left behind a registered will dated 31st December, 2009. Defendant No.1 and the predecessor-in-title of defendant Nos. 2(a), 2(b) and 2(c) are her sons. These are the only heirs of the deceased. Defendant No.3 is the son of defendant No.1. He is the main contesting defendant. He is in possession of the flat of the deceased being flat No.55 on the 14th floor of Matru Mandir Co-op. Hsg. Society, Opp: Bhatia Hospital, Tardeo Road, Mumbai-400 007. He claims to have been residing with the deceased during her “last months” to look after her. He is stated to have forcibly entered into the suit flat upon her death by the plaintiffs. Defendant Nos. 4, 5 and 6 are the husbands of plaintiff Nos. 1, 2 and 3 respectively. They are the executors under the will of the deceased.
2. The plaintiffs and the predecessor of defendant Nos. 2(a), 2(b) and 2(c) accept the will of the deceased. They accept to act according to its terms. The defendant No.1 has not expressly disputed the will of the deceased. He, being the father of defendant No.3, has been represented by defendant No.3 who has contested the plaintiffs' claim.
3. The main estate of the deceased is the above flat. Defendant No.3 has his own flat being flat No.76 on the 19th floor of the same building which he is stated to have let out after he entered in the flat of the deceased and has refused to vacate despite the requests of defendant Nos. 4, 5 and 6 to administer the estate of the deceased as per the terms of her will.
4. The other estate of the deceased is contained in certain movable properties including savings account, fixed deposits and movables in certain lockers with which there is not much dispute.
5. Yet other properties of the deceased is one plot of land in Patan, Gujarat with which also there is no dispute in this suit.
6. There are certain jewelleries of the deceased which are bequeathed to the two daughters-in-law being the mother of defendant Nos. 2(a), 2(b) and 2(c) and the mother of defendant No.3. That part of the estate has been duly administered as per the aforesaid will of the deceased; both the daughters-in-law are stated to have been distributed and have taken the jewelleries as per the terms of the will.
7. The will of the deceased with regard to the above flat No.55 would be required to be considered to see the administration of the estate prayed for in the suit.
8. The will is in English language executed on stamp paper dated 17th November 2009 issued on 31st December, 2009 in the name of the deceased herself. It is running into 4 pages all of which are signed by the deceased. The will is registered with the Sub-Registrar of Assurances, Mumbai. The will is executed by the deceased by putting her signature as also her thumb impression against her photograph. It is also dated by the deceased. Her signature is in English; the date is in Gujarati language. The will is attested by two witnesses, one of whom is a Doctor who has signed the will and put the date alongside his signature and rubber stamp. The said Doctor has also given a separate certificate as to her physical and mental health. It is attested by another witness who is the neighbour. That witness has also signed and put the date along with the particulars of his address and telephone number. The will is shown to be executed in the office of a Solicitor. It is registered. The registration shows the signatures, photographs and thumb impression of the executant of the will and the two attesting witnesses.
9. Under this will the 5 heirs shown to be her relatives are enumerated. There is a declaration by the deceased that she has filed a nomination for her flat in favour of plaintiff No.3. The nomination is only for the sake of convenience. The nomination shows 100% share nominated to plaintiff No.3. However the flat has been bequeathed to all her 5 children who are her heirs equally. Since there is a declarat
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