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BOMBAY HIGH COURT
R.D. DHANUKA, J.
Archana Arun Palav -Petitioner
Versus
Jennifer Michael and others - Respondents.
Misc. Petition No. 27 of 2013 in Testamentary Petition No. 900 of 2011
Decided On : August 26, 2013
Revocation of Letters of Administration - Property Dispute - Maharashtra Co-operative Societies Act, 1960, Indian Succession Act, 1925, Hindu Succession Act - The court held that the petitioner's claim to the flat was based on an agreement executed in breach of a status quo order. The court also noted that the title dispute could not be decided by the authorities under the Maharashtra Co-operative Societies Act. The court emphasized that the testamentary court could not decide the title of the petitioner and that non-disclosure of the rival claim in the testamentary petition would not amount to concealment under section 263(b) of the Indian Succession Act. The court also clarified that the Division Bench's observations in a previous writ petition were not binding on the petitioner as they were not a party to the writ petition. The court further ruled that the marriage of the deceased with respondent No. 2 was registered under the Special Marriage Act, and thus the provisions of the Hindu Succession Act would not apply to the succession of the property of the deceased.
Fact of the Case:
The petitioner sought revocation of the grant of Letters of Administration issued to the 1st respondent, claiming title to a flat based on an agreement executed in breach of a status quo order. The petitioner also alleged that the 1st respondent concealed the petitioner's claim from the court.
Finding of the Court:
The court found that the petitioner's claim to the flat was based on an agreement executed in breach of a status quo order and that the title dispute could not be decided by the authorities under the Maharashtra Co-operative Societies Act. The court also ruled that the testamentary court could not decide the title of the petitioner and that non-disclosure of the rival claim in the testamentary petition would not amount to concealment under section 263(b) of the Indian Succession Act. The court clarified that the Division Bench's observations in a previous writ petition were not binding on the petitioner as they were not a party to the writ petition. The court further ruled that the marriage of the deceased with respondent No. 2 was registered under the Special Marriage Act, and thus the provisions of the Hindu Succession Act would not apply to the succession of the property of the deceased.
Issues: The issues included the revocation of the grant of Letters of Administration, the petitioner's claim to the flat, the concealment of the petitioner's claim by the 1st respondent, and the applicability of the Hindu Succession Act to the succession of the property of the deceased.
Ratio Decidendi: The court held that the testamentary court could not decide the title of the petitioner and that non-disclosure of the rival claim in the testamentary petition would not amount to concealment under section 263(b) of the Indian Succession Act. The court also clarified that the Division Bench's observations in a previous writ petition were not binding on the petitioner as they were not a party to the writ petition. The court further ruled that the marriage of the deceased with respondent No. 2 was registered under the Special Marriage Act, and thus the provisions of the Hindu Succession Act would not apply to the succession of the property of the deceased.
Final Decision: The petition for revocation of the grant issued by the court was dismissed.
1. By this petition, the petitioner seeks revocation of grant of Letters of Administration issued to the 1st respondent by this Court on 12th March, 2012 in Testamentary Petition No. 900 of 2011. Some of the relevant facts for the purpose of deciding this petition are as under:—
2. Petitioner is the sister of the deceased Kiran kumar Gorjibhai Bhatia (hereinafter referred to as the said deceased). Respondent No. 2 is widow of the said deceased. Respondent Nos. 1 and 3 are daughters of the said deceased. There was matrimonial dispute between the 2nd respondent and the said deceased filed before the Family Court at Bandra, Mumbai. In the said matrimonial proceedings, respondent No. 2 had applied for interim injunction in respect of the flat situated at E/8, 3rd Floor, New Trishul Co-operative Housing Society Ltd., Bhawani Nagar, Marol Maroshi Road, Andheri (East), Mumbai 400 059 which was a matrimonial home of the 2ndrespondent. By an order dated 1st April, 2003, Family Court passed order of status quo. It is the case of the petitioner that by an agreement for sale dated 8th April, 2003, the said deceased sold the said flat in favour of the petitioner. It is the case of the petitioner that the petitioner was not aware of the said ad interim order of status quo granted by the Family Court. On the basis of the said agreement for sale dated 8th April, 2003, the petitioner applied for transfer of share certificate and for membership of the society. On 21st April, 2003, the society informed the petitioner about the status quo order passed by the Family Court. It is not in dispute that the society refused to transfer the flat and to grant membership in favour of the petitioner. Being aggrieved by the said order, the petitioner filed appeal before the Deputy Registrar, Co-operative Societies, K-East, Mumbai under section 23(2) of the Maharashtra Co-operative Societies Act, 1960. By an order dated 24th July, 2008, the Deputy Registrar dismissed the said appeal on the ground that there was title dispute in respect of the said flat which could not be decided by the Deputy Registrar under section 23(2) of the Maharashtra Co-operative Societies Act, 1960. The petitioner filed Revision Application (44 of 2009) before the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai under section 154 of the said Act. The Divisional Joint Registrar by an order dated 5th September, 2012 dismissed the said revision application. The Divisional Joint Registrar held that the title dispute could not be gone into by the authority appointed under the provisions of Maharashtra Co-operative Societies Act. Being aggrieved by the said order, the petitioner filed a writ petition in this Court (74 of 2013). By an order dated 30th April, 2013, Ranjit More, J. dismissed the said writ petition. It is held by this Court that the petitioner was claiming title to the said flat on the basis of sale deed which was executed in breach of status quo order. This Court also took cognizance of the fact that Letters of Administration has been granted by this Court in favour of the respondent No. 1 herein. This Court held that the Registrar was not expected to decide the title issue between the parties and the parties must approach the Court of competent jurisdiction and get the dispute decided. Learned counsel appearing on behalf of the petitioner submits that Special Leave Petition filed by the petitioner against the said order dated 30th April, 2013 passed by this Court is dismissed.
3. Learned counsel appearing for the petitioner states that the said deceased who transferred the said flat in favour of the petitioner expired on 13th April, 2007 and therefore matrimonial proceedings filed by respondent No. 2 before Family Court against the said deceased stood abated. It is the case of the petitioner that since respondent No. 2 took forcible possession of the said flat, petitioner filed complaint before the Court of Metropolitan Magistrate. Process was
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