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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Sanjay Kishan Kaul and Pushpa Sathyanarayana, JJ.
Hussain A. Jodhpurwala - Appellant
Versus
Yusuf A. Jodhpurwala & Ors. - Respondents
Original Side Appeal No.117 of 2015
Decided On : 06.11.2015
Indian Succession Act, 1925 – Sections 278, 307 – Code of Civil Procedure, 1908 – Order XXV Rule 5 – Partnership Firms – Memorandum of Understanding and a Deed of Family Settlement was executed on 1.10.1997 at Bangalore amongst the family members, in terms whereof the estate of late Mrs. Batul Bai was distributed among her legal heirs. – Mr. Abbas Bhai, however, did not take any share in the property. – The settlement notes that in view of the indifferent health and advanced age of Mr. Abbas Bhai and his being not involved with the family business, the children would pay a sum of Rs.5,000/- each per month from the partnership firms towards his maintenance and expenses till his lifetime, more so as he was a partner in three firms, having 25% share in each of them. – It is, however, not necessary for the present proceedings to go into in detail in respect of this undisputed document; suffice to say that one of the properties remained undivided, being a land measuring 803 sq.ft. together with a commercial building comprised of four floors with open space situated at No.36, Venkata Maistry Street, Muthialpet, Mannady, George Town, Chennai-600 001, bearing O.S. No.481, R.S. No.5279, Collector Certificate No.4385, having tenants, which formed a part of the estate of late Mrs. Batul Bai. – Held, Court have no doubt that the impugned order cannot be sustained, which has been passed on a wrong premise that the appointment of Mr. Abbas Bhai to act as an Administrator with the consent of the other legal heirs amounted to conferring on him, the power to deal with the property as his own and that in the permission to settle the property in favour of 4th respondent sought from the court, there was no need to take the views of other legal heirs. – The result is that the impugned order must be set aside and consequently all actions taken in pursuance thereto. – Sole property left undistributed is part of the estate of Late Mrs. Batul Bai. – It is not for us to opine how that property has now to be distributed or dealt with, but court is only specifying the character of the property and proceedings have to be initiated in accordance with law for dividing the undivided part of the estate of Late Mrs. Batul Bai. – Plea has to be understood in the context of preserving third parties’ rights, to whom the assets may have been sold or dealt with by the Administrator. – In the present case, it is not as if there is any title derived for consideration. – The settlement is practically a gift and that too under a presumption as if the Administrator had some special rights as originally the property was purchased by him before it was settled on his wife, Late Mrs. Batul Bai. – This plea is only stated to be rejected, as once voluntarily the settlement was made by the Administrator in favour of his wife in 1969 and was dealt with as an estate of Late Mrs. Batul Bai till her death in 1987, even thereafter, it was to be dealt with like any other property of Late Mrs. Batul Bai, and the role of the Administrator conferred on Mr. Abbas Bhai was limited to that aspect. – Appeal Allowed
Late Mrs. Batul Bai passed away on 18.6.1987, leaving behind her husband Mr. Abbas Bhai (now deceased), the appellant herein, Respondent Nos.1 and 3 (sons) and Respondent No.2 (daughter) as her legal heirs. Since late Mrs. Batul Bai passed away intestate, O.P. No.516 of 1988 was filed by her husband Mr. Abbas Bhai for grant of Letters of Administration. In the said proceedings, consent affidavits were filed by the sons and the daughter, giving no objection for grant of Letters of Administration in favour of Mr. Abbas Bhai. The Letters of Administration were granted on 9.3.1989 in respect of the estate left behind by late Mrs. Batul Bai.
2. A Memorandum of Understanding and a Deed of Family Settlement was executed on 1.10.1997 at Bangalore amongst the family members, in terms whereof the estate of late Mrs. Batul Bai was distributed among her legal heirs. Mr. Abbas Bhai, however, did not take any share in the property. The settlement notes that in view of the indifferent health and advanced age of Mr. Abbas Bhai and his being not involved with the family business, the children would pay a sum of Rs.5,000/- each per month from the partnership firms towards his maintenance and expenses till his lifetime, more so as he was a partner in three firms, having 25% share in each of them. It is, however, not necessary for the present proceedings to go into in detail in respect of this undisputed document; suffice to say that one of the properties remained undivided, being a land measuring 803 sq.ft. together with a commercial building comprised of four floors with open space situated at No.36, Venkata Maistry Street, Muthialpet, Mannady, George Town, Chennai-600 001, bearing O.S. No.481, R.S. No.5279, Collector Certificate No.4385, having tenants, which formed a part of the estate of late Mrs. Batul Bai.
3. It is relevant to note at this stage that apparently, some differences did arise among the legal heirs even qua maintenance of Mr. Abbas Bhai and the role of the legal heirs came into question. It is the case of the fourth respondent (son of the third respondent), as also the third respondent, that they were the only ones looking after Mr. Abbas Bhai, while this position is disputed by the others, more specifically the appellant herein, who has filed on record a document signed by Mr. Abbas Bhai to the effect that the third respondent, his wife and the fourth respondent were torturing him and beating him since the past few days (document dated 15.5.2003) and thus, he had asked the appellant and the other legal heirs to make a complaint in respect thereof. If one may say, the insecurities of old age are often in this form taken advantage of by legal heirs one way or the other and that appears to be the cause for the allegations among the legal heirs.
4. The aforesaid issue is relevant in the context of Application No.4572 of 2008 being filed in O.P. No.516 of 1988 by Mr. Abbas Bhai seeking permission of the Court to settle the one remaining commercial property in favour of his grandson, the fourth respondent herein, and that was granted on 30.9.2008, albeit without notice to the other legal heirs. This was succeeded by a settlement deed executed by Mr. Abbas Bhai dated 3.10.2008, settling the property accordingly.
5. The aforesaid settlement deed, however, is to the effect that Mr. Abbas Bhai (settlor) had purchased the property and constructed the superstructure on the land out of his own earnings. This property was thereafter settled in favour of his wife late Mrs. Batul Bai by a registered settlement deed dated 30.4.1969 and as Mrs. Batul Bai had passed away on 18.6.1987, the settlor had approached the High Court to appoint him as Administrator of the estate of his wife, for which consent was granted by the other legal heirs of late Mrs. Batul Bai. The settlee is the grandson of the settlor and the settlor had great love and affection towards him, as he was looking after him and attending to his needs in his old age and fragile
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