A clause in a Will does not constitute a binding arbitration agreement if it lacks mutual consent of the parties involved.

JUDGMENT :

1] The present Application seek appointment of Sole Arbitrator in terms of a clause contained in the last Will and testament of Mr.Maganlal Savani, and the Applicant, being a surviving heir of Maganlal, allege that since the disputes have arisen with another surviving heir, the Respondent, an Arbitrator nominated in the Will, may be appointed for resolving them.

2] Heard Dr. Abhinav Chandrachud alongwith Juhi Valia for the Applicant and Mr.Mayur Khandeparkar alongwith Ativ Patel for the Respondent.

The brief facts which could be gleaned from the Application as well as the Reply filed by the Respondent can be encapsulated in the following Paragraphs.

3] The Applicant and the Respondent are two surviving heirs of late Maganlal, who died on 25.05.2017, leaving behind his last Will and Testament dated 02.07.2016.

Under the Will, the Applicant was appointed as the Sole Executor and trustee of the estate. In the capacity as a Sole Executor of the Will, the Applicant applied for grant of Probate to the High Court of Bombay and the Respondent affirmed the Affidavit, agreeing to the grant of Probate, as a consequence of which , the High Court was pleased to grant Probate on 26.03.2018.

4] Pursuant to this, the Applicant and the Respondent entered into three Agreements recording the understanding arrived amongst themselves and these documents are in form of (A) Deed of Family Understanding dated 02.12.2017; (B) Deed of Gift dated 02.12.2017;

and (C) Declaration-cum-Possession receipt dated 02.12.2017.

The above documents are aimed at settlement/administering part of the estate of their deceased father.

It is the contention of the Applicant, that his deceased father held a joint locker alongwith the Respondent, with the Bank of India and prior to the execution of the three documents, the Respondent had executed a letter on printed form of the Bank, instructing the custodian of the said deposit vault of the Bank to cancel her name as joint lessee of the said locker. However, around 2019, the Applicant caught hold of the said letter, and it was revealed to him that after the death of the deceased, the Respoondent had accessed the bank locker and had removed the jewellery, which incidentally form part of the estate of the deceased.

It is the specific contention of the Applicant that, by virtue of the residual clause in the Will, the jewellery was bequeathed to him and therefore, opening and accessing the locker without his knowledge was an act of impropriety and misappropriation on part of his sister.

The Applicant also allege that he gained the information that certain amounts, which were due to the deceased, in his capacity as beneficiary of the family trust, were also misappropriated by the Respondent.

5] In the wake of aforesaid grievance, the Applicant made an attempt to amicably resolve the issue, by sitting across the table, but to his utter dismay, the Respondent though promised for amicable settlement, after consulting her husband, failed to revert and rather, is alleged to have admitted that she held the property belonging to the deceased to which the Applicant was entitled, but she would have to consider how to repay the same in view of the investment having been made by her, which would require its liquidation for the purpose of effecting the payments.

Since no workable solution was forthcoming, the Applicant addressed letter to the Respondent, intimating her that certain amounts which were due to the deceased in his capacity of the beneficiary of the family trust were misappropriated by her and she also intimated about her malafide act of removing jewellery from the locker which was part of the estate of the deceased, to which the Applicant was entitled under the residual clause of the Will.

Though the Respondent replied the said letter, but she failed to furnish any details as sought by the Applicant and this constrained the Applicant to invoke arbitration in terms of Clause 19 of the Will by addressing a notice dated 21.12.2020