Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 1583

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE AND A.K. MENON, JJ.
Manek Dara Sukhadwalla - Appellant
Vs.
Shernaz Faroukh Lawyer, - Respondents.
APPEAL (L) No.7 OF 2014 IN NOTICE OF MOTION NO.138 OF 2012 IN TESTIMENTARY SUIT NO.29 OF 2012 IN PROBATE PETITION NO.341 OF 2012
Decided on: 8TH AUGUST, 2014

Advocate Appeared
Ms. Fereshte Sethna with Ram Kakkar and Adhiraj Malhotra Advocates i/b. Duttmenon Dumorrsett for the appellant.
Mr. D.J.Khambata Advocate General with Mr. F.E.DeVitre and Mr. D.D.Madon, Senior Advocates with Parag Kabadi and Ms. Geetanjali Joshi i/b. Doijode Associates for respondent Nos.1 & 2.

The probate court has jurisdiction to appoint an administrator pendente lite in a testamentary suit under section 269 of the Indian Succession Act, 1925, where the deceased was a Parsi and there was a bonafide dispute regarding the validity of the two Wills propounded by the parties, and the estate was in medio and at risk of loss or damage due to the conduct of the appellant.

Headnote:
The Court held that the probate court has jurisdiction to appoint an administrator pendente lite in a testamentary suit under section 269 of the Indian Succession Act, 1925, where the deceased was a Parsi and there was a bonafide dispute regarding the validity of the two Wills propounded by the parties, and the estate was in medio and at risk of loss or damage due to the conduct of the appellant.
Fact of the Case:

The deceased, Purvez Burjor Dalal, died in 2011 leaving behind two Wills, one executed in 2010 and the other in 2011. The respondents, who were step-daughter and step-son of the deceased's brother, propounded the 2010 Will, while the appellant, a retired person who looked after the deceased in the last 14 months of his life, propounded the 2011 Will. Both parties filed testamentary petitions for probate of their respective Wills, and the appellant also filed a police complaint against the respondents alleging forgery of the 2010 Will.
Finding of the Court:

The Court found that there was a bonafide dispute regarding the validity of the two Wills, as the circumstances surrounding the execution of both Wills were questionable. The Court also found that the estate was in medio and at risk of loss or damage due to the conduct of the appellant, who had transferred the Al-Karim property in violation of an injunction and had not disclosed certain properties in the Schedule to the testamentary petition. The Court held that the appointment of an administrator pendente lite was necessary to protect the estate and that the probate court had jurisdiction to make such an appointment under section 269 of the Indian Succession Act, 1925.
Issues: 1. Whether the probate court had jurisdiction to appoint an administrator pendente lite under section 269 of the Indian Succession Act, 1925, where the deceased was a Parsi and there was a bonafide dispute regarding the validity of the two Wills propounded by the parties? 2. Whether the learned Single Judge had correctly applied the tests of (i) existence of bonafide litigation, (ii) suspicious circumstances surrounding the execution of the Will, (iii) the conduct of the parties, (iv) necessity of appointing an administrator, (v) scope and ambit of sections 247 and 269 and arrived at a correct finding in accordance with law.
Ratio Decidendi: The Court held that the probate court has jurisdiction to appoint an administrator pendente lite in a testamentary suit under section 269 of the Indian Succession Act, 1925, where the deceased was a Parsi and there was a bonafide dispute regarding the validity of the two Wills propounded by the parties, and the estate was in medio and at risk of loss or damage due to the conduct of the appellant.
Final Decision: The appeal was dismissed and the interim direction dated 7th January 2014 was vacated.

JUDGMENT

(PER A.K. MENON, J.)

1. Admit. By consent appeal taken up for hearing and final disposal.

2. Counsel for parties concluded arguments on 6th May 2014 after which at the request of both parties time was granted upto 9th June 2014 to enable them to file written submissions. Written submissions were accordingly filed by both sides. The respondents have sought to rely upon two judgments in their written submissions which they have clarified were not cited during oral arguments. Since the appellants have not had the benefit of addressing the Court on these two judgments we are not taking them into consideration. More so because they are not crucial to any of the matters in issue before us. Before we deal with the merits it is appropriate that a factual background be provided.

FACTUAL BACKGROUND

3. The Dramatis personae in the present appeal are persons claiming to be executors and heirs of the late Purvez Burjor Dalal, Indian, Parsi who died in Mumbai on or about 7th December 2011. A brief background of how this appeal comes about is now set out. In the year 1955, respondent No.2 was married to one Jamshed Burjor Dalal, the brother of the deceased Purvez. On 15th October, 1959 their marriage was annulled despite which the relationship between the two was believed to be cordial. Jamshed expired on 14th August, 2010. He pre-deceased his brother Purvez. It is the case of the respondents that on 22nd November, 2010 the deceased Purvez (“the deceased”) executed a Will appointing the respondents and one Mr. Jimmy Pirojsha Avasia, as executors. Jimmy Pirojsha Avasia has since renounced his right to act as executor. The respondents further contend that after expiry of the said Jamshed, during lifetime of the deceased, one Burjor Doodhmal began visiting the deceased and began interfering in the affairs of the deceased and introduced two persons one Jamshed Pandey and the appellant to the deceased.

4. At the time, the deceased had a trusted domestic servant one 'Shaku' who expired in April, 2011 after which the appellant is believed to have engaged one domestic help Sushila to reside along with the deceased. The appellant along with the said Doodhmal and Pandey started exercising complete dominion over the deceased and the properties of deceased who was suffering from age related infirmities. Apparently, the appellant started staying with the deceased and under the guise of assisting the deceased and along with Doodhmal and Pandey, the appellant began controlling the property and credits of the deceased.

5. After the demise of Purvez Dalal, the respondents commenced steps in relation collecting the assets of the deceased and wrote to various shareholders of the respondent's rights to represent and administer the estate. On 23rd December, 2011 the Advocates for respondent no. 1 and 2 addressed a letter to the appellant and the said Doodhmal and Pandey informing them that respondents 1 and 2 were the executors of the deceased’s Will dated 22nd November, 2010 ('the 2010 Will') and called upon them to hand over the estate of the deceased and documents in their possession and custody.

6. On 29th December, 2011 the appellants Advocates informed the respondents that they were representing only the appellant and one Mr.Pandey and called upon the respondents to abstain from holding themselves as executors or trustees entitled to administer the estate of the deceased. The respondents then called upon the appellant and said Pandey to disclose their purported capacity and authority relating to the properties of the deceased and to hand over the documents and papers in their possession with regard to the estate of the deceased and to provide complete details of all actions on the part of the appellant and the said Pandey regarding the estate of the deceased.

7. The appellant claimed that the deceased executed a Will dated 28th September, 2011 (“the 2011 will”) which came to be registered on 28th September, 2011 with the Sub-Registrar of Assurances, Mu

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