Bombay High CourtShernaz Faroukh Lawyer vs 3. Manek Dara Sukhadwalla on 24 December, 2013Author:R.D.DhanukaBench:R.D.Dhanuka.. 1 ..                                NMT-138-12


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY.




                                                                                
                                  ORDINARY  ORIGINAL CIVIL JURISDICTION  
     




                                                        
                                     NOTICE OF MOTION NO.138 OF 2012 
                                                        IN 
                                     TESTAMENTARY SUIT NO.29 OF 2012
       




                                                       
                            
    1.  Shernaz Faroukh Lawyer, 
         Age: 60 years, Parsee Zorastrian, 
         Indian Inhabitant of Pune, residing 




                                            
         at Silver Dale Survey No.61/2B1, 
         Mumdhwa Road, Pune 411 036 
                              
         being one of the executrices 
         named under the Will of the 
         deceased Purvez Burjor Dalal.
                             
    2.  Villy Pirojsha Avasia (also 
         known as, Villie Pirojsha Avasia)
         Age : 80 years, Parsee Zorastrian, 
         Indian Inhabitant of Mumbai, 
          


         residing at B/19, Keval Mahal, 64, 
         Marine Drive, Mumbai 400 020 
       



         being one of the executrices
         named under the Will of the 
         deceased Purvez Burjor Dalal.                 ...   Plaintiffs/Ori. Petitioners. 





                V/s.
    3.  Manek Dara Sukhadwalla 
         Parsee Zorastrian, Indian 
         Inhabitant, residing at 6/8 Rustom
         Baug, Victoria Road, Byculla, 





         Mumbai 400 027. 

    4. Shiavax Hoshie Dolikuka, of 
        Thane, Indian Inhabitant, residing
        at Shantiniketan CHS, 1st Floor, 
        Flat No.102, Achole Road, Next to 
        Achole Talao, Nallasopara (East), 

    Asmita                                                                                  1/61




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       Thane.                                            ... Defendants/Ori. Caveators.  




                                                                                      
                                                              
    Mr Iqbal Chagla, Senior Advocate a/w Mr F.E. D'vitre, Senior Advocate a/w 
    Mr D.D. Madan, Senior Advocate a/w N. A. Agarwal, a/w P.A. Kabadi & Ms. 
    A. R. Borkar i/b M/s Doijode & Associates for Petitioners/plaintiffs. 




                                                             
    Ms Fereshthe Sethna a/w Ram Kakkar,  a/w Chirag Dave a/w Aagam Doshi 
    i/b M/s Dutt Menon Dunmorr Seth for Caveators/Defendants.  


                          CORAM :  R.D.DHANUKA  J.




                                                
     
                         CLOSED FOR ORDERS ON :    NOVEMBER 21, 2013.  
                                  
                         PRONOUNCED ON        :    DECEMBER 24, 2013. 

    JUDGMENT :Learned counsel appearing for parties concluded their arguments 
    on 08/07/2013.  Matter was closed for orders.  This matter was mentioned by 
    the learned counsel on 20/08/2013 and informed that in SLP (Civil) 20165 of 
          


    2013, which was filed by defendant No.1, both the parties had indicated that 
       



    they were making an effort to settle the dispute amicably and the said petition 
    was adjourned.     Learned counsel requested the Court not to pronounce the 
    Judgment in the above matter in view of the talks of settlement between the 





    parties.   Matter was accordingly adjourned to 16/11/2013 for directions.  On 
    21/11/2013,   learned   counsel   appearing   for   parties   mentioned   the   matter 
    again   and   informed   that   settlement   was   not   possible   and   that   the   Special 





    Leave   Petition   filed   by   defendant   No.1   is   dismissed.   The   learned   counsel 
    requested to pronounce the Judgment in the above matter.  On 21/11/2013, 
    matter was accordingly closed for pronouncement of Judgment.2.           By this Notice of Motion, plaintiffs seek appointment of a fit andAsmita                                                                                        2/61::: Downloaded on - 06/01/2014 04:09:59 :::.. 3 ..                                 NMT-138-12


    proper   person   as   an   administrator/officer   of   the   estate/property   of   the 




                                                                                     
    deceased Mr.Purvez Burjor Dalal alias Purvez Burjorji Dalal alias Purvez Dalal 




                                                             
    alias P.B.Dalal, a Parsee Zoroastrian, Bachelor undersection 247of the Indian 
    Succession Act, 1925 and also seeks injunction against the first defendant, his 
    employees, servants and agents in respect of the properties of the estate of the 




                                                            
    said deceased.  The plaintiffs also seeks disclosure on oath the moveable and 
    immoveable   assets   of   the   said   deceased   and   an   order   against   the   first 
    defendant to render true and full inventory and accounts of his dealings with 




                                               
    the assets and properties of the deceased and the profits, if any therefrom.Some of the relevant facts which emerges from the pleadings and documents 
    filed by both parties and which are necessary for the purpose of deciding this 
                             
    Notice of Motion are as under :-3.          Plaintiffs   as   well   as   defendant   No.1   have   filed   two   separate 
        

    testamentary petitions for seeking probate of the alleged Will and testament 
    of  the  deceased Mr.Purvez  Burjor Dalal  (for short  'the   said deceased')   and 
     



    both those petitions are pending.4.          Sometimes   in   the   year   1955,   plaintiff   no.2   was   married   to   the 
    brother of the deceased viz. Mr Jamshed Burjor Dalal who pre-deceased the 
    said deceased.  On 15th October, 1959, a decree for annulment of the marriage 
    between the plaintiff no.2 and the said Mr Jamshed Burjor Dalal came to be 





    passed.   It is the case of the plaintiffs that the relations of the plaintiff no.2 
    however with Mr Jamshed Burjor Dalal and the said deceased were cordial. 
    On 14th August, 2010, Mr Jamshed Burjor Dalal expired.   It is the case of the 
    plaintiffs that on 22nd November, 2010, the said deceased executed a Will and 
    Testament   thereby   appointing   plaintiff   nos.   1   and   2   as   executrices   andAsmita                                                                                       3/61::: Downloaded on - 06/01/2014 04:09:59 :::.. 4 ..                                 NMT-138-12


    Mr.Jimmy Pirojsha  Avasia  as  the  executor.     The said    Mr    Jimmy  Pirojsha 




                                                                                      
    Avasia however renounced his right as executor for probate and execution of 




                                                              
    the said Will dated 22nd November, 2010.5.           It is the case of the plaintiffs that one domestic servant by name 




                                                             
    'Shaku' who had been in the service of the said deceased and Mr Jamshed 
    Burjor Dalal for over 20 years expired in the month of April 2011.  defendant 
    No.1   engaged   the   domestic   help   Sushila   Sagar   Nirbhavne   to   reside   at   the 




                                                
    residence of the deceased.  It is the case of the plaintiffs that defendant No.1 
                               
    in collusion with one Mr Doodhmal and Pandey started exercising complete 
    dominion   over   the   deceased   and   control   over   the   properties   of   the   said 
                              
    deceased.   According to the plaintiffs during last few months of his life, the 
    said deceased was suffering from  both physical  and mental infirmities  and 
    was not of a sound and disposing mind.6.           On   23rd  August, 2011,  according to the  plaintiffs one  Dr   L. S. 
     



    Balani   who   was   stated   to   be   the   family   physician   of   the   said   deceased, 
    examined the said deceased and certified at the foot of a purported Will dated 





    23rd August, 2011 that the deceased was not in a fit condition to sign the said 
    purported   Will   with   proper   understanding.       On   8 th  September,   2011 
    defendant No.1 has alleged to have fraudulently set up another Will of the 
    said deceased.   On 7th  December, 2011 the said deceased expired who was 





    aged about 75 years at the time of his death.                     On   23rd         December, 
    2011, plaintiffs through their advocate addressed a letter to defendant No.1 
    and Mr Doodhmal and Pandey inter alia informing that the plaintiffs were 
    executrices and trustees under the Will dated 22 nd November, 2010 and called 
    upon them to handover to the plaintiffs as executrices on the estate of the saidAsmita                                                                                        4/61::: Downloaded on - 06/01/2014 04:09:59 :::.. 5 ..                                 NMT-138-12


    deceased, all papers, documents, records and other property of the deceased 




                                                                                        
    that might be in their possession or control and for the keys to the doors and 




                                                                
    locks and other information available with them regarding the affairs, assets 
    and properties of the deceased.7.           By  letter   dated   29th  December,   2011,   B.  Amin   &   Co.,   advocates 
    informed the plaintiffs that they were representing defendant No.1 and one 
    Mr   Pandey only and called upon the plaintiffs to abstain from representing 




                                                  
    and/or   holding   themselves   out   as   executors   or   trustees   to   administer   the 
                                
    estate   of   the   said   deceased  before  all/any   government   authorities,  forums, 
    banks etc. and alleged that the plaintiffs do not have any rights regarding any 
                               
    matter pertaining to the estate of the said deceased.   Vide letter dated 11 th 
    January, 2012 plaintiffs through their advocates called upon defendant No.1 
    and Mr Pandey to state their purported capacity, authority or connection if 
        

    any, with regard to the estate of the said deceased and alleged that defendant 
    No.1, Mr Doodhmal and Pandey had effectively prevented the deceased from 
     



    meeting   persons   and   effectively   kept   him   and   his   properties   under   their 
    control.   The plaintiffs called upon defendant No.1 and Pandey to forthwith 





    disclose and forward all documents and papers in their possession relating to 
    the   estate   of   the   deceased,   assets   such   as   jewellery,   gold,   cash   that   were 
    mainly kept by the deceased at his residence, and to provide full true and 
    complete details of all actions on the part of defendant No.1 and Pandey with  





    regard to the estate of the deceased.8.           Vide letter dated 23rd  January, 2012 defendant No.1 and Pandey 
    through their advocates questioned the genuineness of the plaintiffs' claim of 
    existence of Will dated 22 nd November, 2011 propounded by the plaintiffs andAsmita                                                                                          5/61::: Downloaded on - 06/01/2014 04:09:59 :::.. 6 ..                                  NMT-138-12


    alleged that defendant No.1 was in charge and possession of the estate of the 




                                                                                        
    said deceased to the  knowledge  of the  plaintiffs and their  apprehension of 




                                                                
    unlawful possession of the flats at Modern flats was ill-founded.9.           On 23rd  December, 2011, defendant No.1 filed a Probate Petition 




                                                               
    (5 of 2012) inter alia praying for last Will and Testament dated 8 th September, 
    2011 in this court.     It is the case of the plaintiffs that   defendant No.1 and 
    Mr.Pandey had taken possession of the flat No. 17/18 of Modern flats.   It is 




                                                 
    the case of the plaintiffs that defendant No.1 suppressed the existence of the 
                                
    alleged Will dated 8th  September, 2011 and of the filing of Probate Petition 
    No. 5 of 2012 on 23rd December, 2011.  On 3rd February, 2012, plaintiffs filed 
                               
    Testamentary Petition No. 341 of 2012 inter alia praying for probate of the 
    alleged Will and testament dated 22 nd November, 2012 in this court.10.          On 7th February, 2012, the plaintiffs advocate received a letter from 
    M/s Tata Power Limited, occupant of the part of the building 'Love Dale' at 
     



    Peddar   Road   owned   by   the   deceased   informing   that   the   advocates   for 
    defendant   No.1   had   addressed   a   letter   dated   2 nd  January,   2012   to   them 





    stating that the defendant No.1 was the executor under an alleged Will dated 
    8th September, 2011 and therefore the earlier Will dated 22 nd November, 2010 
    should be ignored.   Tata Power Limited however clarified that their clients 
    were ready and willing to pay the license fees to the rightful owner/executor 





    and/or deposit the license fee amount in court if so directed by the court.  It is  
    the case of the plaintiffs that plaintiffs came to know about the alleged Will 
    dated 8th September, 2011 propounded by the first defendant for the first time 
    only   from   the   letter   sent   by   the   advocates   of   Tata   Power   Limited.     The 
    plaintiffs   thereafter   conducted   the   search   of   the   website   of   this   court   andAsmita                                                                                          6/61::: Downloaded on - 06/01/2014 04:09:59 :::.. 7 ..                                  NMT-138-12


    learnt that defendant No.1 had filed a probate petition (5 of 2012) in this 




                                                                                          
    court.11.           On   9th  February,   2012,   Asiatic   Textiles   Ltd.   alleged   that   it   is   a 
    statutory tenant of part of the building 'Love Dale' at Peddar Road.12.           On   17th  February,   2012,   plaintiffs   through   their   advocates 
    addressed a letter to the advocates for defendant No.1 and Mr.Pandey and 




                                                   
    called upon them to forward copy of the alleged Will dated 8 th  September, 
                                
    2011 and papers and proceedings in Probate Petition No. 5 of 2012 forthwith 
    and also to provide details of the dealings with the estate of the deceased and 
                               
    to   desist   from   unlawfully   dealing   therewith.         On   17 th  February,   2012, 
    plaintiffs   filed   caveat   in   the   probate   petition   NO.   5   of   2012   filed   by   the 
    defendant No.1 and applied for certified copy of the said petition and alleged 
        

    Will propounded by defendant No.1.  On 24 th February, 2012, plaintiffs filed 
    affidavit in support of the caveat in probate petition no. 5 of 2012 objecting to 
     



    the grant of probate of the alleged Will propounded by defendant No.1. 
    On 24th  February, 2012 defendant No.1 forwarded a caveat filed by him in 





    testamentary petition bearing No. 341 of 2012 filed by the plaintiffs in this 
    court.13.           On  25th  February,  2012  defendant  No.1  and  Mr.Pandey  through 





    their advocates addressed a letter to the advocates of the plaintiffs alleging 
    that defendant No.1 had a caveatable interest in the plaintiffs' petition and 
    requested for a copy of the probate petition filed by the plaintiffs.     On 1 st 
    March, 2012 defendant No.1 and Mr.Pandey forwarded a copy of the affidavit 
    in support of the caveat of defendant No.1 filed in the probate petition filedAsmita                                                                                            7/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 8 ..                                  NMT-138-12


    by the plaintiffs containing various allegations in the said affidavit in support.It is alleged by the defendant No.1 that the conveyance was executed between 




                                                                 
    the said deceased and one Sun Vision Arcade with regard to the property at 
    Vile Parle.14.          On 12th  March, 2012, the plaintiffs received a copy of the alleged 
    Will dated 8th September, 2011 and Probate Petition No. 5 of 2012 from the 
    office of this Court pursuant to the praecipe dated 17 th  February, 2012.   On 




                                                  
    14th March, 2012, plaintiffs received a letter from HSBC Bank inter alia stating 
                                
    that as a precautionary measure in accordance with the deceased depositors 
    policy  followed  by the  bank, they  had  blocked  the  deceased's  accounts  for 
                               
    security   purpose   upon   receipt   of   plaintiffs'   advocates'   notice   dated   22 nd 
    December, 2011.  On 19th March, 2012 defendant No.1 and Pandey through 
    their advocates addressed a letter to the advocates of the plaintiffs and made 
        

    various allegations.15.          On 22nd March, 2012, plaintiffs received a letter from Tata Power 
    Ltd.   through   their   advocates   stating   that   in   view   of   the   rival   claims,   they 





    would deposit the leave and licence amount with their advocates firm every 
    month.         On   22nd  March,   2012,   the   plaintiffs   received   a   letter   from   the 
    advocates   for   M/s.   Modern   Flats   confirming   that   defendant   No.1   was 
    frequently seen at flat in which the deceased resided.  Vide letter dated 25 th 





    April, 2012, plaintiffs' advocates replied to the letter dated 19 th March, 2012 
    and denied the allegations made therein.16.          On 2nd May, 2012, the plaintiffs through their advocates addressed 
    a letter sending a reminder to Al-Karim Manzil Co-operative Housing SocietyAsmita                                                                                           8/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 9 ..                                  NMT-138-12


    Ltd. requesting for copies of certain documents and information as to whether 




                                                                                          
    anybody had made any claim over flat nos. 8 and 22 in the said flats in Al-Karim Manzil Building belonging to the said deceased.17.           On 3rd May, 2012, the plaintiffs filed this Notice of Motion (138 of 




                                                                
    2012). defendant No.1 filed Misc. Petition (L) NO. 915 of 2012 for dismissal 
    of caveat alleging that plaintiffs had no caveatable interest which was filed on 
    17th  February, 2012.   defendant No.1 also filed a Notice of Motion (152 of 




                                                   
    2012) inter alia praying for dismissal of the suit filed by the plaintiffs alleging 
                                
    failure to disclose the cause of action.18.           On 21st June, 2012, learned Single Judge of this Court passed ad-
    interim order in this Notice of Motion granting injunction in terms of prayers(b) and (C) except bracketed portion and directed the first defendant to file 
        

    the disclosure affidavit in two weeks.   defendant No.1 through his counsel 
    made a statement that flat in A1 Karim Manzil had already been disposed off 
     



    in the lifetime of the said deceased.19.           It is the case of the plaintiffs that on 26 th June, 2012 and 27th June, 
    2012 plaintiffs took search of the original alleged Will dated 8 th  September, 
    2011 propounded by defendant No.1 and it was revealed that the said alleged 
    Will was not a genuine document but one that was got up and fabricated by 





    defendant   No.1.     It   is   the   case   of   the   plaintiffs   that   on   2 nd  July,   2012, 
    defendant No.1 filed a false police complaint against the plaintiffs and Jimmy 
    Avasia in an attempt to intimidate them, for allegedly obtaining the signatures 
    of the deceased and preparing the false Will.Asmita                                                                                            9/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 10 ..                                 NMT-138-1220.          By an order dated 4th July, 2012, the Division Bench confirmed the 




                                                                                        
    ad-interim order passed by the learned Single Judge of this Court with minor 




                                                                
    modifications   to  the   extent   that   affidavit  of   disclosure  be  filed  in   a sealed 
    envelope   and depending on the order the learned Testamentary Judge that 
    may be has been passed on the notice of motion, learned Single Judge would 




                                                               
    give appropriate directions whether the sealed envelope should be opened or 
    not.         On   12th  July,   2012,   the   defendant   No.1   tendered   affidavit   of 
    disclosure   in   court   in   a   sealed   envelope   pursuant   to   order   passed   by   this 




                                                 
    Court.21.
                                
                 On 25th  July, 2012, this court in the Notice of Motion No. 152 of 
                               
    2012 filed by the first defendant and Misc. Petition (L) No. 915 of 2012 held 
    that   the   plaintiffs   had   a   caveatable   interest   and   dismissed   the   said   Misc. 
    Petition as well as Notice of Motion filed by the first defendant.22.          Mr Chagla, learned senior counsel submits that the said deceased 
     



    was owner of the  flat i.e. flat No.8 in Al-Karim Manzil  Building,  Crawford 
    Market, Mumbai 400 001.   It is submitted that defendant No.1 handed over 





    possession of the said flat to one Mr Vaseem Kapadia on 21/12/2011.  In the 
    testamentary   suit   (25/12)   filed   by   the   first   defendant   which   was   filed   on 
    23/12/2012 at item No.3 of Exhibit-C,  defendant No.1 had disclosed the said 
    flat   on   oath   therein   to   be   "Self   occupied   and   no   income   fetched".     On 





    21/06/2012 this Court had passed an ad interim order of injunction against 
    the defendants which was also in respect of the said flat.  It is submitted that  
    it is thus clear that the alleged handing over of possession of flat No.8 to Mr 
    Vaseem Kapadia was in willful and deliberate defiance of the ad interim order 
    passed by this Court on 21/06/2012 by backdating the documents.Asmita                                                                                         10/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 11 ..                                 NMT-138-1223.          My attention  is invited to Statement and FIR dated 10/09/2011 




                                                               
    which is annexed to the compilation of documents filed by defendant No.1  in 
    which deceased had made a complaint against three alleged trespassers of the 
    said flat No.8 and had stated that he had seen the Deed of Transfer in which 




                                                              
    signature of his late brother was there and his signature was false.   It was 
    mentioned in the said Deed that the said flat had been alleged to have been 
    purchased for Rs.85,00,000/- but the actual   market price of the room was 




                                                 
    more than a crore of rupees and thus his brother would not have sold the said 
                               
    flat to those alleged trespassers for such a low price and his brother would 
    have consulted the said deceased before dealing with the said flat.24.          Mr   Chagla,   learned   senior   counsel   submits   that   though   on 
    29/11/2011   according  to   defendant   No.1,  the   said  deceased  had   allegedly 
        

    agreed to sell the said flat for Rs.75,00,000/-, defendant No.1 did not produce 
    any agreement in support of such false allegation.   In the disclosure affidavit 
     



    dated 12/07/2012, it is alleged that the purchaser had allegedly handed over 
    three post dated cheques to the  deceased,  dated  29/11/2011, 07/12/2011 





    and 14/12/2012 for Rs.25,00,000/- each respectively.  It is submitted that the 
    bank statement of the said deceased which is produced on record however 
    shows credit of cheque on 29/11/2011 in the sum of Rs.25,00,000/- in the 
    account of the said deceased with HSBC bank on Value date 30/11/2011.  On 





    07/12/2011,   the   said   deceased   expired.     It   is   submitted   that   the   story   of 
    defendant No.1 in the disclosure affidavit that in view of the demise of the 
    said deceased,  the  balance  two  post dated  cheques of Rs.25,00,000/-  each 
    could not be deposited, is on the face of it is false and is without any basis 
    because account of the said deceased with the HSBC bank was frozen onlyAsmita                                                                                        11/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 12 ..                                 NMT-138-12


    after 22/12/2011.25.          Mr   Chagla   learned   senior   counsel   invited   my   attention   to   the 
    alleged   letter   dated   21/12/2011   from   defendant   No.1   to   the   purported 
    purchaser   after   14   days   of   the   death   of   the   said   deceased   confirming 




                                                              
    surrender by defendant No.1 of all his "occupancy rights" of the said flat No.8 
    in favour of the said purported purchaser Mr Vassem Kapadia and granting 
    him liberty to deal with the said premises in any manner the said purported 




                                                 
    purchaser likes.   It is submitted that since the alleged two cheques towards 
                               
    alleged consideration were not deposited in the bank account or issuance of 
    such cheques itself not proved or not even produced by the first defendant 
                              
    and  in  view of  the  fact that  two  fresh cheques were alleged to have been 
    issued only on  14/03/2012  and 20/03/2012  in the  sum of Rs.20,00,000/- 
    and Rs.30,00,000/- respectively, defendant No.1 could not have entered into 
        

    such   alleged   letter   of   possession   on   21/12/2011.     It   is   submitted   that   on 
    23/12/2011, the first defendant filed testamentary petition in this Court that 
     



    is   just   two   days   after   the   issuance   of   alleged   possession   letter   wherein 
    defendant No.1 has stated on oath before this Court that the said flat was "Self occupied and no income fetched" .   It is submitted that defendant No.1 
    has   alleged   that   on   14/03/2012   and   20/03/2012,   the   alleged   two   fresh 
    cheques issued by the purported purchaser in the sum of Rs.20,00,000/- and 
    Rs.30,00,000/- respectively in the name of " Estate of Mr Purvez Burjor Dalal"were   allegedly   credited   in   account   opened   by   defendant   No.1   with   Kotak 
    Mahindra  Bank.   The  first defendant  has not produced any copies of  such 
    alleged   cheques   or   bank   statement   of   the   said   account   till   the   date   of 
    arguments.Asmita                                                                                        12/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 13 ..                                 NMT-138-1226.          It is submitted by learned senior counsel that only in affidavit in 




                                                                                       
    reply dated 24/04/2013 filed in contempt petition filed by the plaintiffs, first 




                                                               
    defendant disclosed the alleged articles of agreement executed by defendant 
    No.1 in favour of the alleged purchaser confirming the sale in his favour in 
    respect of the said flat No.8.  It is submitted that admittedly on 26/03/2012, 




                                                              
    both the parties were already in Court and have already filed probate petition 
    separately for obtaining probate of the Will propounded by both the parties. 
    The plaintiff had already filed a caveat in the probate petition filed by the first 




                                                 
    defendant on 17/02/2012.  Plaintiff had already filed probate petition in this 
                               
    Court   on   03/02/2012   in   which   defendant   No.1   had   filed   a   caveat   on 
    24/02/2012.       Learned senior counsel submits that the first defendant was 
                              
    not legally entitled to deal with the estate after filing of the caveat by the 
    plaintiffs in the probate petition filed by the first defendant.  Defendant No.1 
    was required to have applied to this Court for leave to execute the alleged 
        

    Articles   of   Agreement   or   would   at   least   have   informed   this   Court   of   his 
    intention to do so or of his having allegedly done so.  The said alleged Articles 
     



    of Agreement dated 26/03/2012 has been admittedly not registered.27.          Mr   Chagla   learned   senior   counsel   submits   that   on   the   date   of 
    hearing on 21/06/2012, learned counsel appearing for defendant No.1 made 
    a   statement   on   instructions   that   the   flat   in   Al-Karim   Manzil   building   had 
    already been disposed off during the lifetime of the said deceased.   This court 





    had   passed   an   ad   interim   order   of   injunction   on   21/06/2012   in   terms   of 
    prayer clauses (b) and (c ) except the bracketed portion.  Defendant No.1 was 
    directed   to   file   disclosure   affidavit   in   two   weeks.     Defendant   No.1   falsely 
    denied   having   made   any   such   statement   as   recorded   by   this   Court   on 
    21/06/2012.  It is submitted that though pursuant to the order passed by thisAsmita                                                                                        13/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 14 ..                                  NMT-138-12


    Court   on   14/08/2012   directing   defendant   No.1   to   furnish   copy   of   the 




                                                                                         
    disclosure   affidavit   to   the   plaintiff   which   was   affirmed   on   12/07/2012, 




                                                                 
    defendant No.1 deliberately suppressed and did not annex a single document 
    in support of what was stated by him in the said disclosure affidavit in respect 
    of flat No.8.   Though there was a reference made for the first time to the 




                                                                
    alleged agreement dated 26/03/2012, there was no reference with regard to 
    any alleged possession letter or allegedly handing over of possession to Mr 
    Vaseem Kapadia by the first defendant.       It is submitted that only a cryptic  




                                                  
    averment was made at the end of the para (iii) that possession of flat No.8 
                                
    was with Mr Vassem Kapadia.   Learned senior counsel submits that though 
    defendant No.1 filed a compilation of document on 17/08/2012, defendant 
                               
    No.1   deliberately   suppressed   copy   of   the   alleged   agreement   dated 
    26/03/2012, copy of alleged possession letter dated 21/11/2011, copies of 
    the   two   post   dated   cheques   dated   07/12/2011   and   14/12/2011.     It   is 
        

    submitted that the first defendant has not produced any alleged agreement 
    between the said deceased and Mr Vaseem Kapadia in respect of alleged sale 
     



    of flat No.8, copies of the alleged two fresh cheques dated 14/03/2012 and 
    19/-3/2012, bank statement of the alleged account in Kotak Mahindra Bank 





    or proof in support of deposit of the two fresh cheques therein.28.          Learned senior counsel submits that the  fact that  this  Court has 
    issued notice to defendant No.1 in the contempt petition (4 of 2012) filed by 





    the   plaintiffs,   prima   facie,   shows   that   this   Court   was   satisfied   with   the 
    correctness of the averments made by the plaintiffs  alleging contempt against 
    the first defendant.    Defendant No.1 served copy of reply dated 24/04/2013 
    in   contempt   petition   with   the   exhibits   to   the   plaintiffs   for   the   first   time 
    disclosing   inter   alia,   the   alleged   possession   letter   dated   21/12/2011   andAsmita                                                                                          14/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 15 ..                                 NMT-138-12


    alleged agreement dated 26/03/2012.   It is submitted that defendant No.1 




                                                                                        
    thus has suppressed various true and correct facts and has fabricated some of 




                                                                
    the documents to show the alleged transaction between the said deceased and 
    the said Mr Vaseem Kapadia and/or between defendant No.1 and the said Mr 
    Vaseem Kapadia and the possession was alleged to have been handed over to 




                                                               
    him by the first defendant.29.          Mr   Chagla,   learned   senior   counsel   then   submits   that   defendant 




                                                 
    No.1   has   suppressed   and   deliberately   concealed   various   movable   and 
                                
    immovable assets forming part of the estate of the said deceased in affidavit of 
    disclosure   dated   12/07/2012   and   has   failed   to   render   true   and   correct 
                               
    accounts. Defendant No.1 has made various statements which are false to the 
    knowledge of defendant No.1.30.          Learned senior counsel submits that in the FIR dated 16/07/2012 
    annexed to contempt petition filed against the plaintiffs and Mr Jimmy Avasia 
     



    which was filed after the passing of the ad interim order by this Court on 
    21/06/2012,   the   first   defendant   has   admitted   that   the   properties   of   the 





    deceased   included   lands   at   Nashik   and   Bachav   and   shops   and   hotels   at 
    Andheri and Vile Parle.   The papers with regard to one "Bharat Bone Mills" at 
    Bachav   in   Gujarat   were   annexed   by   defendant   Nos.3   and   4   in   their   reply 
    dated 12/12/2012 in Misc. Petition (L) No.916 of 2012.  It is submitted that 





    defendant No.1 has failed to render a true and full inventory and account of 
    his   dealings   with   such   assets   and   properties   of   the   said   deceased   and   the 
    profits earned therefrom as directed to disclose by an order passed by this 
    Court.     Mr Chagla, learned senior counsel submits that defendant No.1 has 
    provided limited alleged particulars of only some of the bank accounts of theAsmita                                                                                         15/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 16 ..                                 NMT-138-12


    said deceased in the said disclosure affidavit and Mutual Funds as of varied 




                                                                                       
    dates as far back as of November 2011 that is of all being dates prior the 




                                                               
    death of the deceased and did not disclose deliberately the particulars of the 
    bank accounts and mutual funds as on the date of filing of disclosure affidavit 
    of his dealings and profits if any therefrom.  Defendant No.1 did not provide  




                                                              
    details of numerous bank accounts of the said deceased and no   statements 
    of mutual funds supporting the documents.  Defendant No.1 did not disclose 
    the particulars, details, balance standing in the account opened by defendant 




                                                 
    No.1 in the name of "Estate of Mr Purvez Burjor Dalal".  It is submitted that 
                               
    defendant No.1 has deliberately omitted the Items 10 and 13 of the list of 
    shares disclosed by defendant no.1 in his schedule to probate petition (5 of 
                              
    2012) without any explanation.   Defendant No.1 did not annex any Demat 
    account statements, supporting documents with regard to the shares in the 
    disclosure affidavit.  No particulars whatsoever of any dividends, interest, or 
        

    bonus or shares or other accretions to the bank account/mutual funds/shares 
    or any debits to the bank account or sales of mutual funds or shares on and 
     



    after   November   2011   have   been   furnished.         It   is   submitted   that   in   the 
    alleged Will dated 08/09/2011 propounded by the first defendant and the 





    statement of the deceased dated 10/09/2011, it was stated that the deceased 
    had investments in Government Sector.  Those documents were suppressed by 
    the first defendant.31.          It is submitted that defendant No.1 did not provide any inventory 
    with   regard   to   any   movable   assets   lying   at   any   of   the   other   immovable 
    properties  though has purported to provide an inventory as of 15/03/2012 of 
    the   movable   assets   with   regard   to   the   flat   where   the   said   deceased   was 
    residing in Modern flats.      Defendant No.1 has not provided the particularsAsmita                                                                                        16/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 17 ..                                 NMT-138-12


    whatsoever with regard to what was contained in cupboard Nos.10, 13, 14 




                                                                                       
    and 15 though recorded  in disclosure affidavit in paragraph 3v.32.          Mr Chagla, learned senior  counsel submits  that  Suit  No.2763  of 
    2008 has been filed in this Court with regard to the property at Vile Parle 




                                                             
    known as "Dalal House" and the said suit is pending.  Suit No.3903 of 1990 
    was filed in this Court with regard to residential flat No.9-A Modern Flats at 
    Colaba which is withdrawn  on 08/02/2012.  Suit No.137 of 2010 is filed in 




                                                
    relation to flat No.17/18 Modern Flats in this Court which is transferred to 
                               
    City Civil Court.   All these suits relate to the properties of the said deceased.33.          Mr   Chagla,   learned   senior   counsel   submits   that   in   respect   of 
    tenanted properties,   rents/licence fees will have to be recovered from the 
    occupants and have to be invested, nature of the rights of occupation of those 
        

    occupants will have to be ascertained.   Plot of land with building known as 
    "Love  Dale" at Peddar  Road,  Mumbai is allegedly  occupied  by Tata Power 
     



    Ltd., Asiatic Textiles Ltd., and one Mr Shinde.   M/s Asiatic Textiles Ltd. has 
    alleged to be statutory tenant.   M/s Tata Power Ltd.   has offered to deposit 





    Leave and License amount with their advocate every month in view of the 
    rival claims which amount will have to be invested with a view to safeguard 
    and interest accrues thereon.  It  is submitted that defendant No.1 himself has 
    disclosed   in   affidavit   that   there   is   another   tenant   Mr   Shinde   occupying   2 





    garages in the said Love Dale building.  It is submitted that taxes in respect of 
    various assets forming part of the estate of the said deceased will have to be 
    paid, maintenance will have to be undertaken/paid etc.34.          Mr Chagla, learned senior counsel invited my attention to variousAsmita                                                                                        17/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 18 ..                                 NMT-138-12


    orders passed by this Court in this proceedings as well as in the proceedings 




                                                                                      
    filed   by   defendant   No.1.   It   is   submitted   that   the   proceedings   filed   by 




                                                              
    defendant No.1 for dismissal of caveat filed by plaintiff has been dismissed by 
    the learned single Judge and appeal arising therefrom is also dismissed by the 
    division   bench.     When   the   parties   had   concluded   their   arguments   in   this 




                                                             
    proceedings,   Special     Leave   Petition   filed   by   defendant   No.1   was   pending 
    impugning the order passed by the division bench dismissing the appeal filed 
    by   defendant   No.1.     The   parties   have   now   informed   that   the   said   Special 




                                                
    Leave Petition filed by the first defendant has been rejected by the Supreme 
    Court.35. 
                               
                 Learned  senior   counsel   submits   that   since   both   the  parties   have 
                              
    filed   probate   petitions   in   this   Court   propounding   two   separate   Wills   and 
    Testaments of the said deceased and the proceedings are pending, both the 
    parties   have   filed   caveats   in   testamentary   petition   filed   by   either   party, 
        

    defendant No.1 thus cannot be allowed to deal with and/or transfer any part 
    of the estate of the said deceased.   Value of the estate of the said deceased is 
     



    more than 100 crores and considering the fraudulent conduct on the part of 
    the first defendant who has not taken any steps to protect the estate of the 





    deceased but has made an attempt to create third party right   in respect of 
    such estate by antedating the documents, it is a fit case for appointment of 
    administrator.36.          Mr   Chagla,   learned   senior   counsel   also   invited   my   attention   to 
    various documents including the copy of Will and Testament propounded by 
    both the parties and also affidavits filed by the alleged attesting witness in 
    both   the   matters   and   the   alleged   doctor's   certificate   and   made   extensive 
    argument that defendant No.1 had fabricated the Will propounded by the firstAsmita                                                                                       18/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 19 ..                                          NMT-138-12


    defendant   and     also   made   submissions   that   the   Will   propounded   by   the 




                                                                                                      
    plaintiff was genuine and validly executed documents.       I am not narrating 




                                                                           
    those   submissions   which   are   made   by   Mr   Chagla   alleging   fraud   and 
    fabrication on the part of the first defendant in respect of the Will propounded 
    by the first defendant, in view of the fact that scope of inquiry in this notice of 




                                                                          
    motion is limited and those allegations would be   subject to adjudication at 
    the time of trial.37.          Mr Chagla learned senior counsel placed reliance on the Judgment 
                                   
    of   this   Court   in   case   ofPandurang   Shamrao   Laud   and   others   Vs.  
    Dwarkadas Kallindas and othersreported in A.I. R. 1933 Bombay 342 and 
                                  
    submits that since both the parties have filed proceedings for probate of two 
    separate alleged Wills and are pending in this Court, defendant No.1 cannot 
    be allowed to act as executor and particularly when the Wills propounded by 
        

    both the parties are challenged on various grounds, this court has to appoint 
    an administrator pendente lite.    Relevant paragraphs of the said Judgment 
     



    which are relied upon by both the parties read thus :" 1.    This is a notice of motion taken out by the defendants for the appointment  
                 of the Court Receiver as the administrator pendente lite and receiver of all the  
                 moveable and Immovable properties belonging to the estate left at the death of  
                 Pultibai,   widow   of   Runchhoddas   Tribhowandas   Mody,   and   of   the   claims   and  
                 documents   referred   to   in   prayer   (1)   of   the   notice   of   motion,   and   also   for   an  
                 injunction against the plaintiffs in terms of prayer (2) thereof. Putlibai died in  





                 Bombay on April 25, 1932, leaving a will dated August 30, 1931, of which the  
                 plaintiffs are the executors. Plaintiffs have filed their petition for probate of the  
                 said will. Putlibai died childless, and the defendants would be some of her heirs as  
                 on an intestacy, and are also the reversionary heirs of her deceased husband. They  
                 filed a caveat and have made an affidavit in support thereof with the result that  
                 the petition has been turned into a testamentary suit. Defendants allege that the  
                 will was obtained by the plaintiffs by means of a fraudulent conspiracy between  
                 themselves and by the exercise of undue influence, coercion and importunity on the  
                 testatrix, and that, therefore, it is void and of no effect. Under the will plaintiff No.Asmita                                                                                                        19/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 20 ..                                          NMT-138-12


                4, who is the son of plaintiff No. 3, gets a specific bequest of ten lakhs of rupees  




                                                                                                      
                together with the house of the deceased situate at Ridge Road, Bombay, and a  
                bungalow at Mahabaleshwar and also ornaments and jewellery which have been  
                estimated somewhere between two and five lakhs of rupees. There is a bequest of a  




                                                                           
                large  amount to charity,  and the residue is also given for  charitable purposes.  
                Defendants allege that the bequest to charity is illusory, for there will not be much  
                left after paying off the legacies and defraying all the costs of administration. The  
                plaintiffs deny that the bequest is illusory as alleged. Defendants allege that in the  
                latter half of July 1931 the testatrix was taken to Nasik by plaintiffs Nos. 2 and 4,  




                                                                          
                and" plaintiff No. 1 and his wife came there later, that she was in bad health, that  
                she was kept in duress, and on her return she was made to execute a will on July  
                29 which was replaced by the will now propounded. Plaintiffs on their side deny  
                each and every one of these allegations, and they contend that the testatrix was a  
                free   agent,   knew   what   she   was   about,   and   that   she   was   also   anxious   that  




                                                        
                defendants should have no benefit under the dispositions contained in her will. All  
                these allegations and counter-allegations will have to be gone into at the hearing  
                                  
                of the suit, and I do not wish at this stage to say anything one way or the other  
                which may prejudice the plaintiffs or the defendants in respect of their contentions  
                at the hearing. All that I can say at present is, judging by the number of affidavits  
                put in and their length and the number of statements therein contained, that it  
                                 
                will take some appreciable time before the suit is heard and finally disposed of.2.           Defendants have made their present application underSection  247of the 
                Indian Succession Act which is the same asSection 70of the old Court of Probate  
        

                Act of 1857 in England, 20 & 21 Vic. c. 77.Section 70applied only to personal  
                estate.Section 71of that Act gave the Court of Probate power to appoint a receiver  
                even of the real estate of the deceased pending the suit, so far as the validity or  
     



                otherwise of the will might affect the real estate. Both these sections are now, with  
                regard   to   deaths,   occurring   after   the   year   1925,   repealed   by   Section   of   the  
                Supreme Court of Judicature (Consolidation) Act of 1925, 15 & 16 Geo. V. c. 49,  
                andSection  247of   the   Indian   Succession   Act   corresponds   to   Section   of   the  





                Judicature Act of 1925.Section  247provides that pending a suit touching the  
                validity of the will of a deceased person the Court may appoint an administrator of  
                his estate, and such administrator shall have all the rights and powers of a general  
                administrator   other   than   the   right   of   distributing   such   estate,   and   every   such  
                administrator shall be subject to the immediate control of the Court and shall act  
                under its direction. In other words, the position of an administrator pendente lite  





                is   similar   to   that   of   a   receiver,   with   this   distinction   that   the   administrator  
                pendente   lite   represents   the   estate   of   the   deceased   for   all   purposes   except  
                distribution.   Before   granting   administration   pendente   lite   the   Court   has   to   be  
                satisfied   in  the  first   place   that  there   is  a   bona   fide   suit   pending,   touching   the  
                validity of the will of the deceased. In England proceedings on a caveat do not  
                constitute an action, but here we are governed by Rule 632 of the High Court  
                Rules which provides that upon the affidavit in support of the caveat being filed,  
                the petitioner for probate shall be called upon by notice to take out a summons,  
                and the proceedings shall be turned into a suit in which the petitioner shall be theAsmita                                                                                                        20/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 21 ..                                          NMT-138-12


                plaintiff and the caveator shall be the defendant. The caveat having been filed in  




                                                                                                     
                this case and also an affidavit in support thereof, there can be no doubt that there  
                is a lis pendens in this Court. Secondly, the Court, before exercising its jurisdiction  
                to grant administration pendente lite, has also to be satisfied whether there is a  




                                                                          
                necessity for such a grant. In Rendall v. Rendall it was held by the Vice Chancellor  
                that   where   no   probate   or   administration   had   been   granted,   a   receiver   was  
                appointed as a matter of course pending a bona fide litigation in the Ecclessiastial  
                Courts to determine the right to probate or administration unless a special case for  
                not doing so had been made out. In Bellew v. Bellew s. c. 4 Sw. & Tr. 58 Sir J.P.  




                                                                         
                Wilde   intimated   that  he   would   not   in  future   follow   the   established   practice   of  
                requiring a case of necessity before making a grant of administration pendente  
                lite, but  would make it whenever  the Chancery Court  would  have appointed  a  
                receiver, and that he would in future appoint an administrator pendente lite where  
                a bona fide suit was pending irrespective of the property of the deceased being in  




                                                        
                any particular danger. We are, however, governed bySection  247of the Indian  
                Succession Act, and the appointment is purely discretionary, as the word "may" in  
                                  
                the section clearly indicates, but that discretion has to be exercised judicially and  
                not arbitrarily. In my opinion the Court has to be satisfied as to the necessity of  
                such an administration and as to the fitness of the proposed administration, and it  
                must also be satisfied that it is just and proper under the circumstances of the case  
                                 
                to   appoint   an   administrator   before   subjecting   the   estate   to   the   cost   of   such  
                administration.The   Court   has,   apart   from   theIndian   Succession   Act,   general  
                jurisdiction to appoint a receiver in any case in which it may appear just and  
                convenient to do so. Such an appointment cannot be claimed as of right merely  
                because the proceedings are contested, but whenever there is a bona fide dispute  
          


                and a case of necessity has been made out, the Court in its discretion generally  
                makes   the   grant,   Counsel   for   the   plaintiffs   relied   on   a   Calcutta   decision   inJogendra Lal Chowdhury v. Atindra Lal Chowdhury Inthat case the District Judge  
                appointed an administrator pendente lite, but his order was set aside by the High  
                Court of Calcutta. According to the facts of that case the caveator, who was the  
                grandson of the testator, had raised no objection in the probate proceedings to the  
                appointment of the appellant who was the son of the testator as an executor, nor  





                did he raise any objection to the son acting in his capacity as executor, nor did he  
                for more than one year between the death of the testator and the application for  
                probate take any objection to the estate of the deceased remaining in the hands of  
                the   executor,   nor   did   he   object   for   four   months   even   after   the   application   for  
                probate   had  been made.   Various  charges   were  made  against  the   executor.  The  
                District Judge dealt with all of them, and held that none of them was proved.Nevertheless,   the   District   Judge   made   an   order   appointing   an   administrator  
                pendente lite on the ground that the accounts of the estate did not seem to him to  
                have been properly kept by the executor, which ground was not even taken by the  
                caveator. Each case must depend upon its own facts, and upon the facts of that  
                case   the   Appeal   Court   came   to   the   conclusion   that   no   necessity   for   the  
                appointment of an administrator pendente lite had been made out.3.       UnderSection  211of   the   Indian   Succession   Act   an   executor   is   the   legal  
                representative of the deceased for all purposes, and all the property of the deceasedAsmita                                                                                                       21/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 22 ..                                          NMT-138-12


                vests in him even before probate is granted. The probate of a will is operative only  




                                                                                                       
                as   the  authenticated   evidence   of  the   executor's   title   and   not   as  the   foundation  
                thereof, for he derives his title from the will itself, and the property of the deceased  
                vests in him from the moment the testator dies. UnderSection  213, however, no 




                                                                           
                right as executor can be established in any Court of justice without inter alia a  
                grant of probate, and underSection  214no Court can pass a decree against an  
                heir of a deceased person for payment of his debt to any person who does not hold  
                either probate or letters of administration or a succession certificate. It follows,  
                therefore, that an executor before he proves the will may do almost all acts which  




                                                                          
                are incidental to his office except those relating to suits in connection with the  
                Estate; and when he has filed his petition for probate and the petition is turned  
                into a suit as in this case, and while that suit is pending, there is no one legally  
                entitled to receive or hold the assets or give valid discharges. As was pointed out in  
                Watkins v. Brent there is no doubt that if the representation to the estate is in  




                                                         
                contest,   and   no   person   has   been   constituted   executor,   the   Court   interferes   not  
                because of the contest,, but because there is no proper person entitled to receive the  
                                  
                assets. In this case the representation to the estate of the deceased Putlibai is in  
                contest, and without saying anything with regard to the merits of the allegations  
                and counter-allegations made in the suit, there can be no doubt that a bona fide  
                litigation is pending between the parties.4.       The   question   which   then   arises   is   whether   the   necessity   for   a   grant   of  
                administration   pendente   lite   has   been   made   out,   and   if   it   is,   who   should   be  
                appointed administrator pendente lite ? It appears that within a week after the  
                death of the deceased, plaintiffs themselves filed a petition in this Court stating  
          

                that   it   was   necessary   for   the   preservation   of   the   estate   that   letters   of  
                administration may be granted to them underSection 253limited to the collection  
                and preservation of the estate and the giving of discharges for debts and claims  
       



                due   to   the   estate,   but   the   petition   was   dropped.   Plaintiff's   say   in   one   of   the  
                affidavits that the reason for dropping the petition was that the application was  
                thought unnecessary as there was no real difficulty in recovering the debts and  
                outstandings, and that as a matter of fact that had been done. Defendants on the  





                other hand allege that the reason was that they objected and wanted letters of  
                administration to be granted to the Court Receiver instead of to the plaintiffs, to  
                which the plaintiffs objected. This allegation made by the defendants in para. 28 of  
                their affidavit in support has not been specifically denied. The gross value of the  
                estate, according to the schedule to the petition for probate, is about thirty two  
                lakhs   of   rupees,   and   deducting   the   amounts   and   liabilities   payable   under   the  





                consent decree in suit No. 1869 of 1930 which was filed by defendant No. 2 in  
                respect of the estate of Ranchhoddas Tribhowandas Mody, the deceased husband of  
                the testatrix, the estate is valued at about rupees twenty-three lakhs. The estate  
                mainly   consists   of   Government   Securities   the   value   of   which   with   interest   is  
                estimated at rupees two lakhs, of shares of various companies which together with  
                dividends are valued at about rupees two and a half lakhs, Immovable properties  
                worth about rupees four lakhs, and a large number of claims under mortgages,  
                four of which were taken in the name of Ranchhoddas Mody and about thirteen in  
                the joint names of Ranchhoddas Mody and his wife the testatrix. In respect of theAsmita                                                                                                         22/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 23 ..                                          NMT-138-12


                mortgages   standing   in   these   joint   names   about   eleven   suits   were   filed   by   the  




                                                                                                      
                Receiver appointed in that suit, and in place of the Court Receiver who filed them  
                the   name   of   the   testatrix   was   subsequently   substituted,   and   the   testatrix   and  
                plaintiff   No.   3   were   appointed   joint   receivers   without   security   and   without  




                                                                           
                remuneration. Amongst these mortgages are mortgages executed by plaintiff No. 1.  
                It appears that he had equitably mortgaged his properties at Queen's Road and  
                Haines Road to Ranchhoddas Mody for KB. 2,11,980 and Rs. 71,815 respectively  
                with interest. The due date having expired, the time for payment was extended.  
                Thereafter, plaintiff No. 1 took reconveyances of the property from the testatrix  




                                                                          
                about the end of December 1931 when the mortgage debt with interest stood at  
                over three lakhs of rupees, and on the same day plaintiff No. 1 executed fresh  
                equitable mortgages for the said amounts in favour of the testatrix. It was alleged,  
                when the notice of motion was argued, that interest on those mortgages for seven  
                months   had   been   in   arrears,   but   I   have   now   been   informed   that   since   the  




                                                        
                argument   commenced   plaintiff'   No.   1   has   paid   up   all   the   arrears   of   interest.  
                Interest is also due by other mortgagors. Rents have also to be recovered, and the  
                                  
                testatrix and plaintiff No. 3 having been appointed joint receivers, plaintiff No. 3  
                in the absence of a fresh order appointing him sole receiver is not in law entitled to  
                recover the rents which, according to the affidavits, amount to about Rs. 6,000 per  
                month.   It   is   also   alleged   that   dividends   have   not   been   recovered.   It   is   further  
                                 
                alleged that books of account are in the plaintiffs' possession. It was also contended  
                that if suits were filed by the executors no decrees could be passed pending the  
                grant of probate. There is no dispute that various suits are pending, and that suits  
                may have to be filed and interest and rents and dividends recovered, and there is  
                also a large residue in favour of charity. The estate is of considerable value and  
          


                extent, and for the safeguarding and preservation of it proper arrangements ought,  
                in my opinion, to be made, especially when very wide discretionary powers have  
       



                been given to the executors under a will which is challenged by parties who are  
                interested in the estate.5.           The   next   question   is   what   arrangement   should   be   made.   The   general  
                principle   is   that   the   Court   does   not   as   a   rule   appoint   a   receiver   as   against  





                executors whenever they have obtained probate, unless there is gross misconduct or  
                mismanagement and waste on their part.  If they are  rightly in possession and  
                there is no dispute as to their title they will not be replaced by the Court Receiver  
                except on very strong grounds. Their appointment itself shows that the testator  
                had   confidence   in   them,   and   the   Court   gives   effect   to   the   expression   of   the  
                confidence reposed in parties by one who knew them best. It has also been held  





                that the Court refuses to appoint an administrator pendente lite where there is a  
                person named in the will as executor whose appointment is not questioned and  
                who can discharge the functions of an administrator: see Mortimer v. Paull. In this  
                case, however, the appointment of the executors is questioned, and their title is in  
                dispute   because   the   will   itself   is   challenged   on   various   grounds.   Under   the  
                circumstances there should be, in my opinion, a grant of administration pendente  
                lite.6.         The   last   question  is,  who  should   be   the   administrator   or   administrators  
                pendente lite ? I have to be satisfied as to the fitness of such an administrator orAsmita                                                                                                        23/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 24 ..                                             NMT-138-12


                such administrators. Plaintiff No. 1 is a solicitor of this Court and has prepared  




                                                                                                            
                the will, and if he was the sole executor, the Court would appoint a receiver of the  
                estate  as was  done  in  Hamilton v.  Girdleston  There  are,  however,  co-executors  
                along with plaintiff' No. 1, But nevertheless plaintiff No. 1 is a debtor to the estate  




                                                                              
                of the deceased. He claims a large sum of costs against the estate, and says in his  
                affidavit that he informed the testatrix that he would claim his professional costs  
                even if he acted as executor which he would be entitled to. It has, however, been  
                held   by   the   Privy   Council   in   Bai   Gungabai   v.  Bhugwandas   Valji  
                MANU/PR/0018/1905  that the insertion of a clause that the solicitor executor  




                                                                             
                should   charge   for   his   professional   work   hardly   raises   any   suspicion   about   the  
                genuineness of the will. In view, however, of the position in which plaintiff No. 1  
                stands to the estate, his interests are to a large extent in conflict with his duties.  
                Plaintiff No. 2, it is alleged, was a share-broker and an estate broker, and though  
                at present he is in affluent circumstances, the allegation against him is that he is a  




                                                           
                friend of the other plaintiffs and has helped them in getting the testatrix to execute  
                the will. This of course is an allegation which will have to be substantiated at the  
                                   
                time of the hearing. Plaintiff No. 4 is a young man of about twenty to twenty-five  
                years and is the son of plaintiff No. 3 and lives with his father, and plaintiff' No. 4  
                gets a legacy of between twelve to fifteen lakhs of rupees under the will. It is a well  
                known   principle   that   when   executors   propounding   a   will   take   a   large   and  
                                  
                appreciable benefit thereunder, the Court treats the will with suspicion of more or  
                less   weight   according   to   the   facts   of   each   case,   and   the   onus   lies   on   such   an  
                executor to prove to the satisfaction of the Court that the testator understood what  
                he did and that it was his will, and no probate can issue unless the conscience of  
                the   Court   is   satisfied   that   the   person   propounding   the   will   has   led   sufficient  
        


                evidence which on a close and careful examination entirely removes that suspicion.This has been laid down in a series of cases such as Barry v. Butlin Vellasawmy  
     



                Servai   v.   Sivaraman  Servai   :  Rangavva   v.   Sheskappa   andMallappa   v.  Tipava  
                MANU/MH/0105/1930: AIR 1930 Bom 539 .The same principle has also beenlaid down inthe case cited to me in Bai Gungabai v. Bhugwandas Valji. I have  
                carefully considered whether the plaintiffs  or any one or two or more of them  
                should be appointed administrator or administrators pendente lite, and there is  





                also   the   offer   made   to   me   through   their   counsel   that   they   are   willing   to   give  
                security. It is, however, a general principle, though not an absolute rule of law, not  
                to put a litigating party in position by granting administration pending the suit  
                unless by consent of all parties, and, in my opinion, this is not a case in which I  
                should make an appointment out of the plaintiffs. In saying this I wish to make it  
                clear that the Court is making no imputation whatsoever against the plaintiffs or  





                any of them. An instance was cited to me in which the late Mr. Justice Russell in T.  
                & I.J. 8 of  1903 appointed one of the executors of a disputed will along with  
                another administrators pendente lite, but, as I have said before, each case must  
                stand on its own facts and circumstances, and the facts and circumstances in that  
                case   are   not   before   me.   It   is,   in   my   opinion,   in   the   interests   of   all   parties   to  
                appoint   an  impartial  person  as  an  administrator   pendente   lite,   and   the  Court  
                Receiver   is   an   officer   of   the   Court   who   is   independent   of   and   is   bound   to   be  
                indifferent between the contesting  parties.  Moreover,  underSection  247all theAsmita                                                                                                               24/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 25 ..                                          NMT-138-12


                powers that he exercises are subject to the immediate control of the Court and he  




                                                                                                     
                acts under its direction.7.    Under the circumstances I will make an order in terms of prayers (1) and (2)  




                                                                          
                of the notice of motion. Costs of all parties to come out of the estate of the deceased  
                Putlibai, those of the executors as between attorney and client.8.     It is agreed between the parties that plaintiffs Nos. 3 and 4 should remain  
                undisturbed   in   occupation   of   the   Ridge   Road   house   and   the   contents   thereof  
                including   the   motor   car   subject   to  the   rights   and   contentions   of   the   parties.   I  




                                                                         
                further   direct  the   receiver   not   to take  possession  of  the  family idol  or   idols   at  
                present until the further orders of the Court.9.    Receiver to act on the Prothonotary's certificate."38. 
                                  
                Mr Chagla, learned senior counsel placed reliance on the Judgment 
    of Travoncore-Cochin in case of  Thayammal v. Sivaraman reported in A.I.  
                                 
    R.   1953   TRA-CO.   228  in   support   of   his   submission   that   since   there   is 
    bonafide dispute as to the right to the present possession of the property in 
    the hands of defendant No.1, it has to be taken that a case of necessity has 
          

    been made out for the exercise of the Court's discretion   for appointment of 
    administrator.    Relevant paragraphs 2, 4, 5 and 6 of the said Judgment read 
       



    thus :(2)   The plaintiff's case is that her husband had executed four Wills in all, one  
                 superseding another; while, according to defendant No.1,   Dever had executed  





                 only three Wills.   The three Wills, the execution of which is not in dispute, are  
                 those which were executed and got registered on 03/07/1945, 09/06/1947 and  
                 07/06/1951.  The disputed Will is the one stated to have been executed by Dever  
                 on 30/07/1951, just a few weeks prior to his death.  It was not registered during  
                 his lifetime.  A few days after Dever's death, the plaintiff produced this Will before  
                 the Sub-Registrar of Periakulam and applied to have it registered.  Notice of that  





                 application   was   givent   o   the   present   defendants   1   and   2   and   the   other   near  
                 relation of the deceased testator.   Defendant 1 alone appeared in pursuance of  
                 such notice and contested the genuineness of the Will.  He impeached it as a false  
                 and fabricated document.The Sub-Registrar conducted an elaborate enquiry into the question of the  
                 genuineness   of   the   Will   and   examined   several   witnesses,   inclusive   of   the   four  
                 attestors to the disputed document.  After considering the evidence thus recorded  
                 at  the  enquiry  in  the  light  of  the  outstanding   circumstances  and  probabilitiesAsmita                                                                                                       25/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 26 ..                                         NMT-138-12


                which  were  urged  before  him,  he  came  to the  conclusion  that it is  a genuine  




                                                                                                   
                document and is the last Will executed by Dever in supersession of all previous  
                Wills and accordingly passed an order directing the registration of the document.  
                Exhibit   B   is   copy   of   the   order   passed   by   the   Sub-Registrar   on   08/01/1952.Exhibit A is copy of the Will registered as per that order.(4)         In the nature of the dispute between the contesting parties, the main  
                question  for   decision  in  the   suit   is   whether   the   original   of  Ex.A   is   a   genuine  




                                                                       
                document representing the last Will and tetament of deceased Dever executed by  
                him in supersession of his previous Wills. That question can be properly decided  
                only   after   the   parties   have   adduced   all   their   evidence   and   after   the   due  
                consideration of all such evidence in the light of all the attendant circumstances  
                and probabilities.  No doubt in dealing with the application for the appointment  




                                                       
                of a receiver for the suit properties, the Court has to consider the 'bona fides' of  
                the claim put forward by the plaintiff and also the question whether there are  
                                
                circumstances made out to justify the appointment of a receiver.   At the same  
                time, the Court has to be very guarded in committing itself one way or the other  
                on the main and the crucial question involved in the suit.  Any commitment likely  
                to leave impression of the main issue having been prejudged should be avoided.We are laying particular stress on this aspect of the matter, because we find  
                from the lower Court's order that it has already come to a definite conclusion that  
                the original of Ex.A is a gorged and fabricated document.  The lower Court is seen  
                to   have   entered   into   a   full   discussion   of   the   several   circumstances   urged   in  
          

                support of as well as against the genuineness of the document and has chosen to  
                accept the circumstances urged against its genuineness and to reject those urged  
                in support of its genuineness.   When the whole evidence has been recorded the  
       



                lower Court has to approach the question with an open mind and without in any  
                way  being influenced  by the   impressions   already formed  when it  had  not  the  
                benefit of such evidence before it.(5)      On behalf of the parties these circumstances have again been urged in this  
                Court also. By way of illustration we may mention a few of the circumstances  
                strenuously   urged   on   behalf   of   defendant-respondent   1   in   support   of   his  
                contention that the Will propounded by the plaintiff is a forged document.  The  
                original of Ex.A is seen to be written on a single sheet of paper and it is in the  





                handwriting of one Kamachi Naidu who was the clerk of P.T. Dever.  At the foot  
                of the document the address of the testator is put down as "Advocate, B.A., B.L."  
                The   letters   "B.A.,   B.L."   seem   to   have   been   put   down   in   the   place   where   the  
                expression "for plaintiff" had been written.  The suggestion is that a blank paper  
                signed by P. T. Dever as Advocate for plaintiff and left with the clerk, might have  
                been made use of for fabricating the Will, after procuring the services of the clerk  
                who was only  a low paid employee.Then again it is stated that the space between the lines in the body of the Will  
                would show that an attempt was made to compress the whole matter and bring itAsmita                                                                                                     26/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 27 ..                                           NMT-138-12


                within the space available above the signature.   It is then pointed out that in  




                                                                                                       
                punctuation and spelling there are very many mistakes in the document and on  
                the basis of such mistakes it is argued that if the document was prepared as per a  
                draft given by Dever himself and if the copy had been perused by him as alleged  




                                                                           
                by   the   plaintiff,   Dever   would   not   have   put   his   signature   to  such   a   document  
                containing wrong expressions and several mistakes in punctuations and spelling.  
                On the strength of a series of letters Exs. 8 to 17 written by deceased Dever both  
                before and after the date of the disputed document, it is argued that he could  
                write a steady hand and that, therefore, it is unlikely that he would have utilised  




                                                                          
                the   services   of   his   clerk   to   prepare   the   Will   in   such   a   shabby   manner   as   is  
                evidenced by the Will in question.Another argument advanced is that if he really wanted to execute a Will like  
                that, he would have prepared it in his own handwriting and would have got it  




                                                        
                registered on the same date as was done in the case of the three prior Wills.  The  
                explanation  offered  by the  scribe  of the  document  in  respect  of  some  of those  
                apparent infirmities is said to be unsatisfactory and unacceptable.  Even though  
                                 
                the copy of the deposition given by him before the Sub-Registrar was produced in  
                the present enquiry, it has to be remembered that he has not been examined in  
                this case.   It may also be stated that every one of the circumstances urged on  
                                
                behalf of defendant 1 is met by the explanations offered on behalf of the plaintiff.  
                In   addition   to   such   explanations,   other   grounds   are   urged   on   behalf   of   the  
                plaintiff  to show that the will in question was really executed by Dever.It is pointed out that when P. T. Dever was seriously ill, the plaintiff who was  
                for sometime living away from him, went over to him and after ascertaining the  
          

                nature of his illness as well as the nature of the disposition of his properties as per  
                the Will dated 07/06/1951 under which the junior widow was specially treated  
       



                by   conferring   on   her   an   absolute   estate   in   respect   of   34   acres   of   the   plaint  
                properties, the plaintiff begged of him to treat his two wives equally and that it  
                was such an appeal that induced him to execute the disputed document as his last  
                will.   In answer to defendant 1's allegations that the Will was fabricated at the  
                instance   of   Vativel,   brother   of   the   plaintiff,   it   is   pointed   out   that   he   derives  





                absolutely no benefit under the disputed Will.  Then again it is pointed out that  
                under this document the reversionary right in respect of all the estate of P. T.  
                Dever is vested solely in defendant 1 and that only a life estate is given to the two  
                widows.Over and above these and other circumstances relied on by the plaintiff, the  





                direct evidence regarding the execution of the document, which was given before  
                the Sub-Registrar, is also relied on as proving the genuineness of the Will.  We do  
                not  think  that  it  will  be  proper  and  safe  to enter  into a  discussion as  to the  
                acceptability or otherwise of the circumstances relied on by the plaintiff or those  
                relied on by defendant 1.  Any such discussion at this stage is likely to prejudice  
                the trial and decision of the suit.  These circumstances may have a bearing on the  
                ultimate decision regarding the genuineness or otherwise of the Will.  The direct  
                evidence that has to be adduced in the case will have a greater bearing on that  
                question.   Such being the case we refrain from expressing any opinion on theAsmita                                                                                                         27/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 28 ..                                           NMT-138-12


                merits of the circumstances urged on behalf of both sides.(6)     For the purpose of the present appeal we confine our attention to certain  




                                                                         
                other undisputed facts and circumstances.   There has already been an enquiry  
                followed by a decision on the question of the genuineness of the original of Ex.A.  
                Defendant 1 was also a party to such enquiry.   The order Ex.B shows that the  
                enquiry was   thorough one.   Even though the decision arrived at by the Sub-
                Registrar as a result of such enquiry is not binding on the Court, that decision has  




                                                                        
                to   be   given   its   due   weight   unless   and   until   the   Court   arrives   at   a   different  
                conclusion   after   an   independent   enquiry   of   its   own.     The   order   of   the   Sub-
                Registrar cannot now be tally ignored.  It is seen from the order Ex.B that a lady  
                Doctor who was attending on deceased Dever for some time even subsequent to  
                the   date   of   the   disputed   document,   when  he   was   staying   at   Periakulam,   was  




                                                       
                examined as a witness before the Sub-Registrar and that she has deposed that  
                Dever   had   mentioned   to   her   that   he   had   executed   a   fourth   will   as   his   last  

     
                testament.Such a statement is alleged tohave been made by Dever to his own brother  
                Vativel  also.    This  Vativel  too is  seen to  have   been examined  before  the   Sub-Registrar.  No doubt the evidence of these witnesses has not been recorded  in the  
                present suit.  All the ame Ex.B shows that they had stated before the Sub-registrar  
                that   Dever   had   admitted   that   he   had   executed   a   fourth   Will.     Another  
                outstanding feature of the disputed Will as well as the undisputed Wills is that the  
                legatees in all these four documents are the same persons viz, the testator's two  
          

                wives and his nephew defendant 1.  The important change noticed in the disputed  
                will as compared with  the Will dated 07/06/1951 is that the absolute  estate  
                conferred on the junior widow in  respect of 34 acres of cardamon land was taken  
       



                away and she too was given a life estate over the entire estate of Dever just as is  
                conferred   on   the   senior   widow,   the   plaintiff.     Similarly   the   absolute   estate  
                conferred on the nephew has been made subject to the life estate in favour of these  
                two widows.The question as to who should immediately succeed to the estate left by  
                Dever depends on the question whether the original of Ex. A is really the last Will  
                and testament of Dever.   Until that matter is decided one way or the other, no  
                one of the legatees can assert a right to the present possession of the properties.  It  
                was defendant 1 who first went to Court for a declaration that the Will is not  
                genuine and that it does not affect his right under the preceding Will.  That suit  





                (O.S. No.5 of 1952 on the file of the Madura Sub-Court) is still pending.   The  
                plaintiff   in   turn   has   filed   the   present   suit   for   a   declaration   that   the   will  
                propounded by her is genuine.       The question has yet to be investigated and  
                decided.  It may also be mentioned that it was just on the eve of the production of  
                the disputed document for registration that defendant 1's father rushed to take  
                possession of the properties.Even though defendant 1 would contend that the junior widow through her  
                brother surrendered to him possession of the plaint properties except to the extentAsmita                                                                                                       28/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 29 ..                                          NMT-138-12


                of 20 acres, it is significant to note that defendant 2 in her objection petition does  




                                                                                                      
                not concede that fact, but maintains that she is still in possession of the 34 acres  
                of land set apart to her under the Will dated 07/06/1951.  she has not chosen to  
                question the genuineness of the will propounded by the plaintiff, but has only  




                                                                          
                stated that she is not aware of the execution of such a document.  Even when the  
                enquiry was going on before the Sub-Registrar, defendant 2 did not choose to  
                contest the plaintiff's claim to have the Will registered as a genuine documents.Under these circumstances the possession claimed by defendant 1 cannot be  




                                                                         
                said   to   be   lawful   possession,   unless   and   until   it   is   established   that   the   Will  
                propounded by the plaintiff is not genuine and the rights of the parties are as  
                provided   in   the   earlier   will   dated   07/06/1951   and   that   he   has   obtained  
                possession of the properties as a matter of right and in a peaceful manner.  These  
                facts and circumstances are sufficient to attract the provisions contained inS.  




                                                        
                247, Indian Succession Act.  That sections lays down that :"     pending   any   suit   touching   the   validity   of   the   Will   of   a   deceased  
                                 
                             person or for obtaining ..... the Court may appoint an administrator of  
                             the estate of such deceased person, who shall have all the rights and  
                             powers of a general administrator, other than the right of distributing  
                             such   estate,   and   every   such   administrator   shall   be   subject   to   the  
                                
                             immediate control of the Court and shall act under its direction"The position of such an administrator is similar to that of a receiver appointed  
                by the Court.  The section does not make it obligatory that in every suit touching  
                the   validity   of   the   Will   of   the   deceased   person   the   Court   should   appoint   an  
        

                administrator or receiver to manage the estate of the deceased person pending  
                final decision of the question of genuineness of the Will.  But the section gives a  
                wide discretion to the Court in that matter.  This discretion has to be exercised in  
     



                a judicial manner after a due consideration of the facts relating to the particular  
                case.   Where the Court is satisfied that neither of the contesting parties can be  
                said to be in lawful and undisputed possession of the property, it has to be taken  
                that a case of necessity has been made out for the exercise of the Court's discretion  





                in favour of the appointment of a receiver or administrator.This is the view taken in --- 'Pandurang v. Dwarkadas', AIR 1933 Bom 342  
                (A)   whereinS.   247,   Succession   Act   came   up   for   consideration.     Form   the  
                circumstances of the present case as already adverted to, it can be seen that the  
                above-mentioned conditions are amply satisfied so as to justify the appointment  
                of a receiver.  There is a 'bona fide' dispute as to the genuineness of the Will dated  





                30/07/1951 and until that matter is settled neither the party can be said to have  
                established a right to the present possession of the properties.   The possession  
                claimed by defendant 1 is challenged as wrongful.  The mere fact that one party  
                has hastened to assert his claim for possession of the properties will not by itself  
                be a reason to uphold such possession and give him an undue advantage over the  
                opposite party, pending decision on the question of the right to the possession of  
                the properties.  On a consideration of all the facts and circumstances of the case,  
                we are satisfied that it is just and proper to keep the properties under the direct  
                control of the Court pending final decision of the question  as to the genuinenessAsmita                                                                                                        29/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 30 ..                                             NMT-138-12


                  of the Will dated 30/07/1951 and that the necessity for the appointment of a  




                                                                                                             
                  receiver has been made out."39.            Mr   Chagla,   learned   senior   counsel   placed   reliance   on   the 
    Judgment of Supreme Court in case ofRani Purnima Debi & Anr. vs. Kumar  




                                                                              
    Khagendra Narayan Deb & Anr. Reportedin AIR 1962 Supreme Court 567 
    in   support   of   his   submission   that   though   the   alleged   Will   propounded   by 
    defendant  No.1  is registered   Will,  that  by  itself  would  not  be  sufficient  to 




                                                            
    dispel all suspicion regarding it where suspicion exists, without submitting the 
                                    
    evidence of registration to a close examination.   It is submitted that alleged 
    execution   of   the   Will   and   attestation   of   the   Will   propounded   by   the   first 
                                   
    defendant   itself   is   surrounded   by   suspicious   circumstances   and   thus 
    administrator has to be appointed on that ground alone and defendant No.1 
    who claimed to be administrator of such Will cannot be allowed to deal with 
          


    the estate of the said deceased.  Reliance is placed on paragraph 23 and 24 of 
       



    the said Judgment which read thus :" 23.     There is no doubt that if a will has been registered, that is a circumstance  
                 which may, having regard to the circumstances, prove its genuineness. But the  





                 mere   fact   that   a   will   is   registered   will   not   by   itself   be   sufficient   to   dispel   all  
                 suspicion regarding it where suspicion exists, without submitting the evidence of  
                 registration to a close examination. If the evidence as to registration on a close  
                 examination reveals that the registration was made in such a manner that it was  
                 brought   home   to   the   testator   that   the   document   of   which   he   was   admitting  
                 execution   was   a   will   disposing   of   his   property   and   thereafter   he   admitted   its  





                 execution and signed it is token thereof, the registration will dispel the doubt as to  
                 the genuineness of the will. But if the evidence as to registration shows that it was  
                 done in a perfunctory manner, that the officer registering the will did not read it  
                 over   to  the   testator   or   did   not   bring   home   to   him   that   he   was   admitting   the  
                 execution of a will or did not satisfy himself in some other way (as, for example,  
                 by seeing the testator reading the will) that the testator knew that it was a will the  
                 execution of which he was admitting, the fact that the will was registered would  
                 not be of much value. It is not unknown that registration may taken place withoutAsmita                                                                                                                30/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 31 ..                                         NMT-138-12


                the executant really knowing what he was registering. Law reports are full of cases  




                                                                                                    
                in which registered wills have not been acted upon (see, for example, Vellasaway  
                Sarvai v. L. Sivaraman Servai (),Surendra Nath Lahiri v. Jnanendra Nath Lahiri  
                MANU/WB/0025/1932:AIR1932Cal574 and Girji Datt Singh v.  Gangotri Datt  




                                                                         
                Singh)   MANU/SC/0092/1955  :   AIR1955SC346   .   Therefore,   the   mere   fact   of  
                registration may not by itself be enough to dispel all suspicion that may attach to  
                the   execution   and   attestation   of   a   will;   though   the   fact   that   there   has   been  
                registration   would   be   an   important   circumstance   in   favour   of   the   will   being  
                genuine if the evidence as to registration establishes that the testator admitted the  




                                                                        
                execution of the will after knowing that it was a will the execution of which he was  
                admitting.24.   The question therefore is whether in the circumstances of the present case the  
                evidence as to registration discloses that the testator knew that he was admitting  




                                                        
                the execution of a will when he is said to have put down his signature at the  
                bottom of the will in the presence of Arabali. We have scrutinized that evidence  
                carefully   and   we   must  say  that   the   evidence   falls   short   of  satisfying   us   in  the  
                                  
                circumstances of this case that the testator knew that the document the execution  
                of which he was admitting before Arabali and at the bottom of which he signed  
                was his will. Therefore we are left with the bald fact of registration which in our  
                                 
                opinion is insufficient  in the circumstances  of this case  to dispel the  suspicious  
                circumstances which we have enumerated above. We are therefore not satisfied  
                about the due execution and attestation of this will by the testator and hold that  
                the   propounder   has   been   unable   to   dispel   the   suspicious   circumstances   which  
                surround the execution and attestation of this will. In the circumstances, no letters  
          

                of administration in favour of the respondent can be granted on the basis of it."40.         Mr Chagla placed reliance on the Judgment of Calcutta High Court 
    in case of Brindaban Chandra Shaha v. Sureswar Shaha Paramanick & Ors.Reported in 1909 (X) Calcutta L. J. 263 in support of his submission that since 
    there  are number of suits  pending  in  different Court relating  to  properties 
    forming part of the estate of the deceased and the estate is of considerable 





    value   and   extent,   appointment   of   administrator   is   warranted   for   the 
    preservation of such properties and the necessity for appointment of arbitrator 
    is made out.  Relevant paragraph of the said Judgment reads thus :"    Appeal from order No.82 of 1909  is directed against the order of refusal of the  
                District Judge to appoint an administrator pendente lite.  His refusal is based on  
                the ground that there was no pending proceeding before him, and that the widowAsmita                                                                                                      31/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 32 ..                                            NMT-138-12


                 was quite competent to manage the estate.  It is manifest however that the effect of  




                                                                                                         
                 the revocation of the probate was to revive the original proceeding for the grant of  
                 probate and it would be quite competent therefore to the Court to make an order  
                 undersection 34of the Probate and Administration Act.  As was observed in the  




                                                                             
                 case of Bellew v. Bellew (1965) 4 Sw. & Tr. 58, the Court of probate would grant  
                 administration pendente lite in all cases where the necessity for the grant is made  
                 out;  and   this   is   so   because   while   the   suit   is   pending,   there   is   not   one   legally  
                 entitled to receive or to hold the assets or to give discharges.  In the case before us,  
                 it is not disputed that various suits are pending indifferent Courts and the estate is  




                                                                            
                 of   considerable   value   and   extent,   for   the   preservation   of   which   proper  
                 arrangement ought to be made.   We therefore set aside the order of the District  
                 Judge and appoint the widow to be administratrix pendente lite, on condition that  
                 she furnishes a bond for Rs.20,000 and that her father, the present appellant, do  
                 stand surety in the sum of Rs.10,000.   Upon failure to carry out this order the  




                                                          
                 applicant for revocation will be at liberty to apply for further orders.  This appeal  
                 is therefore decreed, but there will be no separate order for costs."41.          Mr Chagla, learned senior counsel submits that even in the alleged 
    Will   propounded   by   defendant   No.1,   the   testator   has   permitted   the   first 
    defendant  to  sell  the  properties   of  the  estate  only after   obtaining   probate, 
        

    whereas the first defendant has sold flat No.8 without obtaining probate and 
     



    has been inter-meddling  with the  estate  of the  said deceased.    Mr Chagla, 
    learned   senior   counsel   took   me   to   various   affidavits   and   the   alleged   Will 
    propounded by the first defendant and would submit that the alleged Will is 





    on the face of it fabricated and is false.    Affidavit of Mr Dastoor is also false 
    and inconsistent.  It is submitted that since the Will propounded by the first 
    defendant is surrounded by suspicious circumstances, plaintiffs have made out 
    a prima facie case for appointment of an administrator.42.          Ms   Sethna,   learned   counsel   appearing   on   behalf   of   the   first 
    defendant submits that for the purpose of appointing the administrator of the 
    estate of the deceased underSection 247of the Indian Succession Act 1925,Asmita                                                                                                            32/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 33 ..                                 NMT-138-12


    Court has to see as to whether there is bonafide litigation in respect of the 




                                                                                      
    title to represent the estate.   It is submitted that the deceased was 75 years 




                                                              
    old bachelor and was leaving with his brother who died on 14/08/2010.  The 
    said brother of the deceased was managing the properties of the said deceased 
    and was assisting him till the said brother expired though there were other 




                                                             
    relatives and legal heirs of of the said deceased.  It is submitted that the Will 
    and Testament executed by the  said deceased was registered and the later 
    Will in point of time.   The said Will was drafted by the family solicitor who 




                                                
    had also drafted the Will of brother of the said deceased.   Learned counsel 
                               
    submits that all the apprehensions of the deceased about the objectionable 
    acts of the plaintiffs were highlighted by the said deceased in his Will.   It is 
                              
    submitted that plaintiff No.2 was married to the brother of the said deceased 
    in the year 1955.  Her marriage was already annulled in 1959.  Plaintiff No.2 
    thereafter married to another person but plaintiffs have not disclosed these 
        

    facts in the Will propounded by the plaintiff.  Doctor who claims to be one of 
    the   attesting   witness   of   the   Will   propounded   by   the   plaintiffs   had   never 
     



    treated the said deceased.  The other alleged witness of the Will propounded 
    by the plaintiffs  is family friend of the plaintiffs.  It is submitted that since the 





    said deceased wanted help, defendant No.1 was working and helping the said 
    deceased since last two years prior to his death and was appointed to look 
    after the said deceased and to take him to Fire temple.  Defendant No.1 who 
    is   62   years   old   is   bachelor   and   was   getting   honorarium   from   the   said 





    deceased.     Learned   counsel   submits   that   plaintiffs   have   not   furnished   any 
    particulars of alleged fraud, undue influence, coercion or unsound mind in the 
    affidavit in support of notice  of motion  against defendant No.1.     Learned 
    counsel submits that the said deceased had filed FIR himself.  Learned counsel 
    made an attempt to explain the alleged discrepancy in the letter pad of DrAsmita                                                                                       33/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 34 ..                                  NMT-138-12


    Bhute who had issued certificate of fitness of the deceased.  Learned counsel 




                                                                                         
    submits that from the bank statement of the deceased produced on record of 




                                                                 
    this   proceedings   of   the   account   with   HSBC   Bank,   it   is   clear   that   the   said 
    deceased during his lifetime had received the sum of Rs.25,00,000/- from Mr 
    Vaseem   Kapadia     which   cheque   had   already   been   deposited   in   the   bank 




                                                                
    account of the deceased on 29/11/2011 i.e. during his lifetime.   It is thus 
    clear that the said deceased had agreed to sell the said flat No.8 to the said 
    Vaseem   Kapadia   during   his   lifetime   and   had   received   part   of   the 




                                                  
    consideration.  Defendant No.1 however could not find any writing between 
                                
    the said deceased and the said Mr Vaseem Kapadia in respect of such flat.43.          On 05/07/2011, Dr Balani had issued a certificate to the Manager 
    of HSBC Bank to depute someone to the residence of the said deceased as he 
    was not in a position to sign properly.  On 04/08/2011, the said deceased had 
          

    put   his  thumb  impression  on  the  application  to  the  bank for deleting  the 
    name of his brother Mr Jamshed.44.          Ms Sethna, learned counsel then submits that the deceased himself 





    had filed probate petition (130 of 2010) inter alia praying for probate of the 
    Will   and   Testament   of   his   brother   and   had   affirmed   and   verified   the 
    pleadings.  Probate of the Will & Testament of the brother is granted in favour 
    of the said deceased by this Court on 10/06/2011.  Learned counsel submits 





    that on comparison of the Will of the brother of the said deceased and the 
    Will   propounded   by   defendant   No.1,   it   is   clear   that   there   was   a   common 
    mistake about the word "ob-sequel" and both these Wills were drafted by the 
    same solicitor.  Learned counsel submits that the deceased himself had lodged 
    a complaint about the excess bill of the Municipal Corporation on 27/01/2011Asmita                                                                                          34/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 35 ..                                 NMT-138-12


    and   24/02/2011.     Learned   counsel   took   me   to   various   correspondence 




                                                                                       
    annexed to the pleadings in support of her submission that the said deceased 




                                                              
    was  active   in  life  and   he   himself   was   having   correspondence  with  various 
    authorities, was filing various complaints and filed pleadings in testamentary 
    petition in respect of his brother's Will, addressing letter to the society about 




                                                             
    trespassers on the property in Al-Karim Co. Op. Housing Society Ltd.45.          Ms Sethna, learned counsel for defendant No.1 submits that unless 




                                                
    there  is   pending   bonafide   litigation   and  there   is   necessity,   appointment  of 
                               
    administrator which power can be exercised in extreme circumstances, cannot 
    be exercised in this case.   Learned counsel submits that allegations of fraud 
                              
    made   by   the   plaintiffs   against   Mr   Doodhmal   and   Mr   Pandey   cannot   be 
    allowed to be made in this proceedings who is not a party.  Learned counsel 
    submits that  as per the  Will propounded by the  first defendant, the entire 
        

    property of the said deceased is bequeathed to the charities and defendant 
    No.1 is not a beneficiary in any manner whatsoever,     whereas in the Will 
     



    propounded   by   the   plaintiffs,   the   entire   property   of   the   said   deceased   is 
    alleged to have been bequeathed to plaintiff  No.2 which itself shows that the 





    Will propounded by the plaintiffs is false and fabricated.   It is submitted that 
    Dr Golwalla is alleged to be one of the attesting witness had never treated the 
    said   deceased.    Learned  counsel   submits   that   defendant   No.1   is   willing  to 
    hand over entire estate to the three trusts and if necessary with the assistance 





    of   the  plaintiffs  so  as to  protect  the  estate  of  the  said  deceased.    Learned 
    counsel submits that since the plaintiffs are not the heirs and next of kin of 
    the said deceased and have played active roll in propounding the Will, there is 
    serious cloud of suspicion over the Will propounded by the plaintiffs.  There is 
    thus, no bonafide litigation which is one of the mandatory requirement for theAsmita                                                                                        35/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 36 ..                                  NMT-138-12


    purpose   of   appointing   an   administrator   underSection   247of   the   Indian 




                                                                                           
    Succession Act, 1925 and thus no relief for appointment of administrator can 




                                                                   
    be granted by this court.46.           Learned   counsel   submits   that   defendant   No.1   has   already   filed 




                                                                  
    probate   petition.     There   is   no   question   of   any   suppression   on   his   part   as 
    alleged   by   the   plaintiffs.     It   is   submitted   that   the   deceased   himself   had 
    highlighted in the Will propounded by defendant No.1,   the conduct of Dr 




                                                    
    Balani.  Learned counsel submits that Mr D.P. Dastoor who had attested the 
                                 
    Will propounded by the first defendant is family priest of the said deceased 
    and has filed affidavit in this proceedings confirming that he had attested the 
                                
    Will of the said deceased.47.           In   so   far   disclosure   of   the   estate   by   the   first   defendant   is 
        

    concerned, it is submitted that in the schedule to the petition filed by the first 
    defendant, he has fairly disclosed all the estate which was to the knowledge of 
     



    the first defendant in the probate petition.   M/s Tata Power Co. Ltd. who is 
    claiming to be tenant is willing to deposit the rent with their advocate every 





    month.  M/s Asiatic Textiles is also claiming to be a tenant.  Defendant No.1  
    will file proceedings against the tenants and/or occupants.   It is submitted 
    that in so far as account of the said deceased with HSBC Bank is concerned, 
    the said account has been already blocked on the request of the plaintiffs and 





    no   one   can   operate   the   said   account.     In   so   far   as   Vile   Parle   property   is 
    concerned,   it   is   submitted   that   the   entire   property   is   tenanted.     The 
    rent/income from the said property is Rs.300/- per month.   Defendant No.1 
    will file proceedings with permission of this Court against those occupants.Asmita                                                                                            36/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 37 ..                                  NMT-138-1248.           In   so   far   as   flat   No.8   and   22   in   Al-Karim   Manzil   is   concerned, 




                                                                                          
    learned counsel submits that defendant No.1  had handed over possession of 




                                                                 
    flat   No.8   to   the   purchaser   of   the   said   flat   after   the   demise   of   the   said 
    deceased, in view of the transaction already having been concluded between 
    the   said   deceased   during   his   lifetime   and   the   said   Mr   Vaseem   Kapadia.Learned   counsel   submits   that   in   so   far   as   remaining   two   cheques   of 
    Rs.20,00,000/-   and   Rs.30,00,000/-   respectively   are   concerned,   the   said 
    cheques have been already deposited by the first defendant in a separate bank 




                                                   
    account   opened   and   thus   estate   of   the   said   deceased   is   protected.     It   is 
                                
    submitted   that   since   there   was   no   order   of   injunction   from   executing   any 
    writing   on   26/03/2012,   defendant   No.1   has   entered   into   Articles   of 
                               
    Agreement with the said Mr Vaseem Kapadia.  Stamp duty has been already 
    paid   on   the   said   agreement.     The   said   agreement   however   could   not   be 
    registered.    Learned  counsel submits  that  underSection  211of  the Indian 
        

    Succession Act, properties of the estate of the said deceased vest in defendant 
    No.1 who was appointed as executor by the said deceased.  Learned counsel 
     



    submits   that   in   view   of   the   said   flat   No.8   having   been   tress-passed   upon 
    during the lifetime of the said deceased, there was a distress sale in respect of 





    the said flat and the consideration agreed was at Rs.75,00,000/-.  Possession 
    of the flat was handed over to said Mr Vaseem Kapadia on paper.  Mr Vaseem 
    Kapadia   had   obtained   possession   from   third   party   in   possession   who   had 
    trespassed  the  said flat.  The property was under litigation.  It is submitted 





    that the estate of the said deceased is not exposed to any risk by the acts of 
    the first defendant who was appointed as an executor.49.           Ms   Sethna   learned   counsel   appearing   for   defendant   No.1   then 
    Submits that there was no statutory requirement to approach the Court forAsmita                                                                                           37/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 38 ..                                 NMT-138-12


    protecting the properties of the estate of the deceased which defendant No.1 




                                                                                        
    has alleged to  do so.   Even  in  the   plaint  filed by the   deceased during  his 




                                                                
    lifetime, possession in respect of the said flat No.8 was admitted and suit for 
    injunction from dispossessing the deceased was filed.    It is submitted that the 
    articles of agreement was drafted by the advocate of the purchaser which was 




                                                               
    signed   by   defendant   No.1   with   a   view   of   protect   the   estate   of   the   said 
    deceased.50.          In   so   far   as   Manmad   property   is   concerned,   learned   counsel 
                                
    submits that the said property was disclosed in the Will of the brother of the 
    said deceased and was disclosed in the schedule of the testamentary petition 
                               
    filed by the said deceased.  In so far as property situated at Bachav Gujarat is 
    concerned, it is submitted that the said properties were not even disclosed by 
    the said deceased in the testamentary petition for obtaining probate of his 
        

    brother.  It is stated that what properties were disclosed in the schedule of the 
    property in the testamentary petition filed by the said deceased for obtaining 
     



    probate of the Will and Testament of his brother were disclosed in the probate 
    petition filed by the first defendant.       The first defendant did not have any 





    documents regarding Bachav properties and could not search any document 
    in spite of diligent inquiry.  The said properties were neither included by Mr 
    Jamshed, the brother of the said deceased in his Will nor by the deceased 
    himself   in   his   Will   and   Testament   and   thus   it   would   not   amount   of   any 





    suppression   on   the   part   of   the   first   defendant   by   not   disclosing   the   said 
    properties   in   the   schedule   of   the   estate   of   the   said   deceased   in   the 
    testamentary petition filed by the first defendant.   Learned counsel submits 
    that   if   the   plaintiffs   were   aware   of   any   other   properties   which   are   not 
    disclosed   by   the   first   defendant,   plaintiff   also   could   have   disclosed   suchAsmita                                                                                         38/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 39 ..                                  NMT-138-12


    properties   by   making   appropriate   amendment   in   the   testamentary   petition 




                                                                                          
    filed by the plaintiff which plaintiffs have failed to do so.   Plaintiffs did not 




                                                                  
    make   any   application   for   amendment   of   schedule   annexed   to   the 
    testamentary petition filed by the plaintiffs so as to include Bachav properties. 
    It is submitted that defendant No.1 was not aware of the properties of the 




                                                                 
    deceased alleged to have been situated at Manmad or Bachav.51.          In   so   far   as   shops   and   hotel   at   Dalal   House   is   concerned,   it   is 




                                                   
    submitted that the said properties were not disclosed by the brother of the 
                                
    said deceased even in his Will or in the schedule to the testamentary petition 
    filed by the deceased for obtaining probate of his brother's Will.  Allegations 
                               
    made by the plaintiffs alleging non disclosure of these properties is based on 
    the FIR filed by defendant No.1 and no cognizance thereof can be taken.    It 
    is submitted that statement made by defendant No.1 before the police that he 
        

    knew the properties of the said deceased and was keeping accounts of the 
    properties cannot be read in isolation.52.          It   is   submitted   that   M/s   Sun   Vision   Arcade   had   fraudulently 





    transferred Rs.1.45 crores from the account of the said deceased which was 
    returned.     It   is   submitted   that   plaintiff   could   have   applied   for   their 
    impleadment   in   the   suit   bearing   No.2763   of   2008   filed   by   a   third   party 
    against   Mr   Jamshed   Dalal   and   the   said   deceased.     Defendant   No.1   was 





    impleaded in the  said suit on application  of defendant No.1,   by an order 
    passed by this Court.   Plaintiffs also could have taken steps to ensure that 
    plaintiff  was impleaded as party defendant in the said suit.  Defendant No.1 
    has taken steps for impleadment in that suit which shows that defendant No.1 
    had taken care of the estate and represents the estate of the said deceased.Asmita                                                                                           39/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 40 ..                                   NMT-138-1253.           In so far as pendency of the suit is concerned, Ms Sethna submits 




                                                                     
    that   as   far   as   Suit   No.3903   of   1990   is   concerned,   the   said   suit   has   been 
    withdrawn on 08/02/2012.  In so far as Suit No.137 of 2010 is concerned, the 
    said suit has been transferred to Bombay City Civil Court.  Defendant No.1 has 




                                                                    
    been impleaded as defendant in the said suit.54.             In   so   far   as   flat   No.22   in   Al-Karim   society   is   concerned,     it   is 




                                                     
    submitted   that   the   party   claiming   to   be   a   tenant   in   respect   of   that   flat   is 
                                  
    claiming tenancy for more than 20 years i.e.  even during the lifetime of the 
    said deceased.  Possession in respect of the said flat is with that tenant.     In 
                                 
    so far as shares of DCM Ltd., is concerned, it is submitted that the same were 
    not disclosed in the affidavit of disclosure since there was no record available 
    with the first defendant in respect of such shares.  These details are disclosed 
        

    in affidavit on reverifying the details.  In so far as D-MAT account statement is 
    concerned, it is submitted that under Original Side Rules of this Court, D-MAT 
     



    account   statement   is   not   required   to   be   disclosed.         Defendant   No.1   is 
    however   willing   to   submit   relevant   D-MAT   account   statement   if   required.There   is   no   variation   in   shares.     In   so   far   as   flat   9-A   in   Modern   Flats   is 
    concerned, it is submitted that by an ad interim order passed by this Court, 
    defendant   No.1   is   not   restrained   from   access/dealing   with     that   flat. 
    Defendant No.1 as an executor is entitled to represent the said estate of the 





    said deceased.  Defendant No.1 is not restrained from receiving any income or 
    dividend or deposits in respect of the estate of the said deceased.  Whatever 
    dividend   or   income   is   received   is   deposited   by   the   first   defendant   in   the 
    separate bank account opened by the first defendant after the demise of the 
    said deceased.  In so far saving account and Fixed Deposits with HSBC Bank isAsmita                                                                                              40/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 41 ..                                 NMT-138-12


    concerned, it is submitted that all such accounts are freezed on the application 




                                                                                       
    of the plaintiff,  by HSBC Bank.  Even Mutual Fund standing in the name of 




                                                              
    the deceased with HSBC bank are also freezed.  Defendant No.1 is not able to  
    find any record regarding government sector investments standing if any, in 
    the name of the said deceased.  In so far as movable assets/inventory alleged 




                                                             
    in page 14 of the  written  arguments of the  plaintiff  is concerned, no such 
    items are found.  If any such articles are lying in the locker of the HSBC bank,  
    defendant No.1 is not aware of the same.    It is submitted that it is not the 




                                                
    case   of   the   plaintiff   that   defendant   No.1   has   operated   any   bank   locker.Inventory of the articles lying in the cup-board and locker has to be done by a 
    valuer   to   be   appointed   by   this   Court.     Learned   counsel   submits   that   the 
                              
    plaintiff has not furnished any details of the assets which are alleged to have 
    been dealt with by the  first defendant in affidavit in support or any other 
    pleadings and in support of their plea for appointment of administrator of the 
           

    estate of the said deceased and such plea is based on mere apprehension.55.          In   so   far   as   allegation   about   suppression/non   disclosure   of   the 
    names of all the next of kin of the said deceased is concerned, it is submitted 





    that   the   names   of   so   called   kins   disclosed   by   the   plaintiff,     in   their 
    testamentary petition incorrect.Ms     Sethna,   learned   counsel   tendered   compilation   of   various 





    Judgments of Supreme Court and this Court which deals with the issues such 
    as     duties   of   an   executor,     about   suspicious   surrounding   circumstances   in 
    execution   of   Will   and   Testament,   undue   influence,   presumption   regarding 
    registered Will and  jurisdiction of this Court to pass orders relating to estate. 
    Learned counsel submits that there is no provision for interim order in IndianAsmita                                                                                        41/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 42 ..                                  NMT-138-12


    Succession   Act   and   a   testamentary   matter   regarding   properties   of   the 




                                                                                          
    deceased and placed reliance on the Judgment of this Court reported in AIR  




                                                                  
    2007 Bombay 62.   Learned counsel also placed reliance on the Judgment of 
    Division   Bench   of   this   Court   reported   in  2011   (4)   ALL   Mah.   L.R.   189  in 
    which division bench of this Court has referred to Judgment of learned single 




                                                                 
    Judge   reported   in   AIR   2007   Bombay   62   on   the   powers   of   this   Court   for 
    appointment of administrator and/or receiver in a  testamentary suit.57.           Learned counsel placed reliance on the Judgment of Calcutta High 




                                                   
    Court reported in (2007) ILR 2 Cal 151 on the issue that discretion of Court 
                                 
    to appoint administrator has to be exercised judicially.  Reliance is placed on 
    the Judgment of this Court reported in 2012 (4) ALL M.L. 718 in support of 
                                
    submission that exercise of powers underSection 247can be only for good 
    and   valid   reasons.     It   is   submitted   that   no   such   case   is   made   out   by   the 
    plaintiff for appointment of administrator.  Learned counsel submits that since 
        

    administrator cannot be appointed in this proceedings, even injunction cannot 
    be granted.58.           Ms   Sethna,   learned   counsel   made   an   attempt   to   distinguish   the 





    Judgment of this Court reported in 1933 Bombay 242 which is relied upon by 
    Mr Chagla, learned senior counsel appearing for the plaintiff. It is submitted 
    that in any event, there is no bonafide suit pending and thus this Court cannot 
    appoint any administrator in this proceedings.  Learned counsel submits that 





    since plaintiffs have not disputed the handwriting on Will, they cannot dispute 
    the registration of such Will.  Since plaintiffs have not made out any case in 
    support of allegations of fraud, coercion and undue influence, administrator 
    cannot be appointed by this Court.   It is submitted that plaintiffs have notAsmita                                                                                           42/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 43 ..                                  NMT-138-12


    made   out   any   case   that   any   unfair   advantage   is   obtained   by   the   first 




                                                                                          
    defendant.     It   is   submitted   that   in   any   event   before   appointment   of 




                                                                  
    administrator, Court has to record findings of fact on misappropriation or that 
    the executor is incapable of handling the estate of the   deceased.   Learned 
    counsel   submits   that   on   the   other   hand   there   are   various   suspicious 




                                                                 
    circumstances in so far as the Will propounded by the plaintiff is concerned. 
    Plaintiffs have not disclosed about the draftsman of the alleged Will.  Plaintiff 
    No.2 who is beneficiary under the said alleged Will has participated in making 




                                                   
    of Will and is which is alleged to have been executed at her residence.    It is 
                                 
    submitted   that   the   Will   produced   by   the   plaintiffs   is   produced     from   the 
    custody of plaintiff  No.2.   Learned counsel submits that alleged bequest in 
                                
    favour of plaintiff No.2 who was divorced by the brother of the said deceased 
    55 years ago is on the face of it unnatural.   The deceased himself  in his Will 
    had stated that blank papers were given to plaintiff No.2 which are misused 
        

    by plaintiff No.2.   It is submitted that handwriting expert appointed by the 
    State Government has opined forgery in the Will propounded by the plaintiff.This Court can call for copy of such report from the state government for its 
    perusal.     It   is   submitted   that   no   particulars   are   given   by   the   plaintiffs   in 





    support of allegations of fraud.59.           Mr   Chagla,   learned   senior   counsel   in   rejoinder   submits   that 
    defendant No.1 has challenged all the orders passed by this Court from time 





    to time,   Irrespective of merits, refused to disclose documents and estate of 
    the said deceased, filed various  false affidavits and has committed breach of 
    an ad interim order passed by this Court.   It is submitted that the conduct of 
    the first defendant itself discloses that defendant No.1 is not opposing this 
    proceedings for the cause of charity but for his personal gain.   It is submittedAsmita                                                                                           43/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 44 ..                                 NMT-138-12


    that plaintiffs were not even disclosed about filing of testamentary petition by 




                                                                                      
    the first defendant which came to the knowledge of the plaintiffs from third 




                                                              
    party.   Defendant No.1 had suppressed the alleged Will propounded by him 
    from the plaintiff.   It is submitted that defendant No.1 has relied upon two 
    alleged doctor's certificates which itself indicate that both the certificates are 




                                                             
    false   and   incorrect.     It   is   submitted   that   various   suspicious   circumstances 
    pointed out by the plaintiffs are not denied by the first defendant.Mr Chagla 
    reiterated that the alleged Will and Testament propounded by defendant No.1 




                                                
    is totally fabricated.   Even stand of Mr Dastoor, alleged attesting witness on 
                               
    the   Will   propounded   by   the   first   defendant   is   totally     inconsistent   and 
    contradictory   and   creates   suspicious   circumstances.     Placing   reliance   onSection   211and213of   the   Indian   Succession   Act,   learned   senior   counsel 
    submits that executor can represent the estate of the deceased but when there 
    is challenge to the Will or a caveat is filed, such alleged executor cannot be 
        

    allowed to represent the estate and to deal with the estate.   It is submitted 
    that Judgment of this Court in case ofRupali Mehta Vs. Narinder S. Mehtareported  in  AIR   2007  Bombay   62  is  not   applicable   to  Parsis  and  reliance 
    placed  on this Judgment is misplaced.  It is submitted that the said Judgment 





    was   dealing   with   a   case   of   appointment   of   Court   Receiver   and   not 
    administrator.     Mr   Chagla  distinguished  the  Judgments  relied   upon  by   Ms 
    Sethna.   Defendant No.1 has acted in collusion with Mr Vaseem Kapadia for 
    his personal gain.  The said deceased himself had alleged in the suit that the 





    trespassers were removed from flat No.8 and had applied for injunction from 
    dispossessing him from the said flat.   There was no question of there being 
    any distress sale.   There is no reference to the cheque alleged to have been 
    deposited in the account of the said deceased in any document or writing.Asmita                                                                                       44/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 45 ..                                 NMT-138-12


    Defendant No.1 has alleged to have handed over the possession to Mr Vaseem 




                                                                                       
    Kapadia within 14 days from the death of the deceased without any further 




                                                              
    consideration.   Allegation of alleged handing over possession was false and 
    inconsistent with the averments made in the  testamentary petition  filed by 
    defendant   No.1   himself   that   the   said   flat   No.8   was   self   occupied   and   no 




                                                             
    income was being received from the said flat.  Affidavit of disclosure filed by 
    defendant No.1 does not disclose that possession was handed over in respect 
    of flat No.8 or any agreement was entered into.  Though defendant no.1 had 




                                                
    made a statement before this Court on 21/06/2012 through his counsel in 
                               
    this regard,  even such statement is falsely disputed by the first defendant.60.          Mr Chagla, learned senior counsel invited  my attention  to letter 
    dated 27/09/1988 from the affidavit in reply to the contempt petition filed by 
    defendant   No.1   and   submits   that   the   said   alleged   document   is   not   rent   a 
        

    receipt.   In any event, no subsequent receipt is disclosed by defendant No.1 
    showing any rent alleged to have been recovered.    Mr Chagla, learned senior  
     



    counsel   submits   that   though   there   was   an   ad   interim   injunction   granted 
    against defendant No.1 not to act as an executor, defendant No.1 continued 





    to act as executor, opened the bank account in the name of the estate of the 
    said deceased,  recovered rent and dividend,  had  not disclosed  the  amount 
    recovered and spent.  It is submitted that though an appeal filed against the 
    ad interim order passed by this Court on 21/06/2012 is dismissed, defendant 





    No.1 has not complied with the order passed by this Court.  Contempt petition 
    filed by the  plaintiff  against the  first defendant for violation  of ad interim 
    order is pending.  Learned senior counsel submits that injunction order is not 
    adequate to safeguard the estate of the deceased and hence, appointment of 
    administrator is warranted in this case.Asmita                                                                                        45/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 46 ..                                  NMT-138-12




                                                                                         
    REASONS AND CONCLUSION61.          This court in case ofPandurang Shyamrao Laud(supra) has held 
    that all allegations pertaining to the execution of Will and counter-allegations 
    will have  to be gone  into  at the  hearing of  the  testamentary  suit  and any 




                                                                
    finding and/or observation of the Court at the stage of considering application 
    for appointment of Court Receiver or administrator by the parties in respect of 
    their   contentions     at   the   hearing.     It   is   held   that   before   granting 




                                                  
    administration pendente lite, the Court has to be satisfied in the first place 
                                
    that there is a bona fide suit pending touching the validity of the Will of the 
    deceased.    It  is  held  that  discretion  to  appoint  an  administrator  has  to  be 
                               
    exercised judicially and not arbitrarily.   Court has to be satisfied   as to the 
    necessity   of   such   an   administration   and   as   to   the   fitness   of   the   proposed 
    administration and where it is just and proper under the circumstances of the 
        

    case to appoint a administrator before subjecting the estate to the cost of such 
    administration.   Such an appointment cannot be claimed as a right merely 
     



    because   the   proceedings   are   contested,   but   whenever   there   is   bona   fide 
    dispute and a case of necessity has been made out, the Court in its discretion 





    generally makes the grant.62.          This court has held that if an executor before he proves the Will is 
    unable to do almost all acts which are incidental to his office except those 





    relating   to   suits   in   connection   with   the   estate   and   when   he   has   filed   his 
    petition for probate and the petition is turned into a suit   and when suit is  
    pending, there is no one legally entitled to receive or hold the assets or give 
    valid   discharges.       This   Court   has   held   in   the   said   Judgment   that   underSection   213of   the   Indian   Succession   Act,   no   right   as   executor   can   beAsmita                                                                                          46/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 47 ..                                  NMT-138-12


    established in any Court of  justice without inter alia a grant of probate.      In  




                                                                                           
    the said Judgment, this Court has considered a situation that representation of 




                                                                   
    the estate of the deceased was in contest and without saying anything with 
    regard to the merits of the allegations and counter-allegations made in the 
    suit, there was no doubt that a bona fide litigation is pending between the 




                                                                  
    parties.   The defendants had filed caveats and had made affidavit in support 
    thereof   with   a   result   the   petition   had   been   turned   into   testamentary   suit. 
    There   were   allegations   of   fraudulent   conspiracy   against   the   parties   and   of 




                                                    
    exercise of undue influence, coercion and that the Will was void and of no 
                                 
    effect.   This Court  considered  that  in  that  matter   where  the  estate  was of 
    considerable value.      Various suits were pending in respect of the estate of 
                                
    the deceased.  Various interests, rents, dividends were recovered and were to 
    be recovered.   This Court held that since the appointment of executor was 
    questioned   and   their   title   was   in   dispute   because   the   Will   itself   was 
        

    challenged on various grounds,  administration pendente lite was granted.63.           High Court of Travancore-Cochin in case of  Thayammal  (supra) 
     



    has held that in so far as allegation made by the parties whether Will was a 
    genuine document or not, such question can be properly decided only after 





    the parties have adduced all their evidence and after a due consideration of 
    all   such   evidence   in   the   light   of   all   the   attendant   circumstances   and 
    probabilities.    It is held that the possession of the executor cannot be said to  
    be   lawful   possession   unless   and   until   it   is   established   that   the   Will 





    propounded by the executor is not genuine and the rights of the parties are as 
    provided in the earlier Will and that he had obtained possession as a matter of 
    right   in   peaceful   manner.     It   is   held   that   when   the   Court   is   satisfied   that 
    neither of the contesting parties can be said to be in lawful and undisputed 
    possession of the property and that there is a 'bona fide' dispute as to the rightAsmita                                                                                            47/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 48 ..                                  NMT-138-12


    to the present possession of the property, it has to be taken that a case of 




                                                                                          
    necessity has been made out for the exercise of the Court's discretion in favour 




                                                                 
    of the appointment  of a receiver or administrator.    The Tranvancore-Cochin  
    High   Court   appointed   a   receiver   and   issued   various   directions   so   as   to 
    safeguard the estate of the deceased.64.           This Court in case ofSmt. Prachi Prakash Pandit & Ors. Vs. Sou.  
    Pushpa Sharad Ranade & Ors.,  in Appeal From Order No.854 and 903 of 




                                                   
    2004,    has   held   that   it   is   only   where   a   bonafide   dispute   and   the   case   of 
                                
    necessity is made out that the Court in its discretion could grant appointment 
    of receiver.    Unless the Court is of  the view that the property is being wasted 
                               
    or that the estate of the deceased is being depleted and  and this extreme step 
    is the only appropriate means to protect the property, administrator  would be 
    normally  not appointed.    In that matter the trial Court had observed that the 
        

    property was not being wasted or damaged and there was no danger to the 
    same   and   thus   there   was   no   need   to   appoint   the   Court   Receiver.Considering the facts of that case, this Court has held that no purpose would 
    be served by appointing Court Receiver and granted injunction in respect of 





    the property of the estate of the deceased.65.           The   question   that   arises   for   consideration   of   this   Court   in   this 
    notice of motion thus is whether the bonafide litigation is pending between 





    the parties relating to the estate of the said deceased,  right to represent the 
    estate   of   the   deceased   by   both   the   parties   propounding   different   Will   and 
    Testament of the deceased is in issue and whether a case is made out for grant 
    of administration pendente lite.Asmita                                                                                           48/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 49 ..                                 NMT-138-1266.           This Court in case ofPandurang Shamrao Laud(supra) has held 




                                                              
    that the authority of the executor who was alleged to have been appointed by 
    the   said   deceased   was   questioned   by   the   defendant   by   filing   caveat   and 
    affidavit in support.  It is held that there was a bona fide dispute between the  




                                                             
    parties.67.           Considering the facts of this case, it is not in dispute that both the 




                                                
    parties have propounded different Will of the said deceased and have filed 
                               
    testamentary   petitions   inter   alia   praying   for   probate   in   respect   of   the 
    respective Will propounded by both the parties.   Both the parties have filed 
                              
    caveats in the testamentary petitions filed by against each other.  Upon filing 
    of   such   caveat   and   affidavit   in   support   in   respective   petitions,   both   the 
    testamentary   petitions   have   been   turned   into  suits.     Both   the   parties   have 
          

    made serious allegations against each other regarding execution and validity 
    of the Will propounded by each other.    Defendant No.1 has challenged the  
       



    caveatable interest of the plaintiffs in the testamentary petition filed by the 
    first defendant.  By an interim order passed by this Court, it is held that the  





    plaintiffs have caveatable interest and has rejected the petition for dismissal of 
    caveat filed by the first defendant.       The said order passed by the learned 
    single Judge has been upheld not only by division bench but also by Supreme 
    Court.   The caveatable interest of the plaintiffs in the testamentary petition 





    filed by the first defendant is thus established and cannot be questioned by 
    the first defendant in this proceeding.   The right of the plaintiffs to contest 
    and challenge the Will propounded by the first defendant is recognized by this 
    Court.  It is not in dispute that defendant No.1 has also simultaneously filed a 
    caveat in testamentary petition filed by the plaintiffs for probate of the WillAsmita                                                                                        49/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 50 ..                                  NMT-138-12


    propounded   by   the   plaintiffs   and   even   the   said   petition   is   turned   into   a 




                                                                                          
    contested suit.     Since both the parties have propounded separate Will and 




                                                                 
    parallel proceedings filed by both the parties in respect of the estate of the 
    said   deceased   is   pending   in   this   Court,   I   am   of   the   view   that   a   bonafide 
    litigation is pending between the parties and the same cannot be disputed.68.           Though both the parties have addressed this Court at great length 
    in support of their submissions that the Wills propounded by either party is 




                                                   
    fraudulent   and   fabricated   and   is   vague   and   in   support   of   such   allegations 
                                
    invited my attention to several documents and pleadings forming part of the 
    record in this notice of motion and also testamentary petitions and contempt 
                               
    petition, in my view, this Court cannot go into such issues at this stage and 
    the same can be decided after recording evidence at the stage of trial.   I do 
    not propose to deal with any of these allegations and/or counter-allegations 
          

    made by either party regarding allegations of fraud, fabrication and forgery at 
    this   stage   which   would   prejudice   either   party   in   respect   of   their   rival 
       



    contentions at the time of hearing.69.           Next question that arise for consideration of this Court is whether 
    the plaintiffs have made out a case for appointment of administrator underSection   247of   the   Indian   Succession   Act   1925.     It   is   not   in   dispute   that 
    respondent No.1 claiming to be an executor of the Will propounded by him 





    and claims to be in possession of various properties forming part of the estate 
    of the deceased.   Defendant No.1 has claimed to be a caretaker of the said 
    deceased in the pleadings filed before this Court.     In the affidavits filed by  
    the plaintiffs and in written arguments, plaintiffs have highlighted some of the 
    instances which according to the plaintiffs disclose that the first defendant hasAsmita                                                                                           50/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 51 ..                                 NMT-138-12


    been   misappropriating,   mishandling   and   is   wasting   the   estate   of   the   said 




                                                                                       
    deceased for his personal gain, estate being depleted which allegations are 




                                                              
    seriously disputed by defendant No.1.  In the backdrop of the facts highlighted 
    aforesaid, I have to consider whether defendant No.1 has misappropriated the 
    estate,   wasted   any   part   of   the   estate   which   warrants   appointment   of   an 




                                                             
    administrator underSection 247of the Indian Succession Act, 1925.70.          It is not in dispute that the said deceased was owner of flat No.8 in 




                                                
    Al-Karim Building, Crafford Market, Mumbai-1.  It is also not in dispute that 
                               
    defendant No.1 could not produce any writing alleged to have been  entered 
    into between the said deceased   and Mr Vaseem Kapadia if any,   during his 
                              
    lifetime in respect of the said flat.   It is also not the case of defendant No.1  
    that during the life time of the said deceased, he had already sold that flat to 
    Mr Vaseem Kapadia or someone else.   In the testamentary petition filed by 
        

    defendant No.1 on 23/12/2012, the first defendant has disclosed on oath that 
    the   said   flat   appears   to   be   "self   occupied   and   no   income   fetched".     On 
     



    21/06/2012,   this   Court   has   passed   an   ad   interim   order   in   this   notice   of 
    motion against the first defendant which was also in respectof the said flat.71.          A perusal  of  the  statement and FIR dated  10/09/2011  indicates 
    that the said deceased had made a complaint against three alleged trespassers 
    in respect of the said flat No.8 and had stated that he had seen the deed of 





    transfer.   Signature of his late brother on the document was false.   It was 
    stated   that   the   said   flat   had   been   alleged   to   have   been   purchased   as 
    mentioned in the said deal for Rs.85 lacs by those three trespassers whereas 
    actual market price was more a crore of rupees and his brother would not 
    have sold the said flat to those trespassers for a such a low price.  On perusalAsmita                                                                                        51/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 52 ..                                 NMT-138-12


    of the disclosure affidavit dated 12/07/2012, it is revealed that it is the case 




                                                                                      
    of   defendant   No.1   that   purchaser   had   allegedly   issued   three   post   dated 




                                                              
    cheques to the deceased i.e. dated 29/11/2011, 07/12/2011 and 14/12/1012 
    for   Rs.   25   lacs   each   respectively.       Bank   account   of   the   said   deceased 
    produced on record however, indicates that the credit of cheque of Rs.25 lacs 




                                                             
    dated 29/11/2011 was given in the said account with HSBC bank on value 
    date 30/11/2011.   On 07/12/2011, the said deceased expired.   It is not in 
    dispute that account in the name of the said deceased with the HSBC bank 




                                                
    was freezed only after 22/12/2011.  In my view, if defendant No.1  already 
                               
    had   the   cheques   of   Rs.25   lacs   each   dated   07/12/2011   and   14/12/2011 
    respectively with him, he could have certainly deposited the said two cheques 
                              
    in the account of the said deceased with HSBC bank prior to the said account 
    having been freezed.   Defendant No.1 has not produced any such proof of 
    deposit of any such cheques or issuance of such cheques in this proceedings.Reliance   is   placed   by   the   first   defendant   on   the   alleged   letter   dated 
    21/12/2011 addressed by the first defendant to Mr Vaseem Kapadia after 14 
     



    days     of   the   death   of   the   said   deceased   and   confirming   surrender   by 
    defendant No.1 of his alleged occupancy rights of the said flat No.8 in favour 





    of the said alleged purchaser and granting him liberty to deal with the said 
    premises in any manner the said purported purchaser liked.  In my prima facie 
    view, the alleged writing dated 21/12/2012 is contrary to the statement made 
    by defendant No.1 in his testamentary petition filed on 23/12/2011 showing 





    the said flat as self occupied and fetching no income.    In my view, since no 
    agreement of sale or any such writing was admittedly entered into by the said 
    deceased during his lifetime or by the first defendant prior to 23/12/2011 and 
    since   the   alleged   balance   consideration   was   admittedly   not   received,   no 
    prudent person and particularly a person who claims to be an executor andAsmita                                                                                       52/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 53 ..                                  NMT-138-12


    trustee, would have handed over the possession of the valuable property to an 




                                                                                          
    outsider   and   that   also   with   liberty   to   deal   with   the   said   premises   in   any 




                                                                  
    manner the said purported purchaser like.72.           It is the case of defendant No.1 himself that the said Mr Vaseem 




                                                                 
    Kapadia had issued two fresh cheques dated 14/03/2012 and 20/03/2012 in 
    the   sum   of   Rs.20   lacs   and   Rs.30   lacs   respectively   and   thus   there   was   no 
    question of handing over possession of the flat to the alleged purchaser on 




                                                   
    21/12/2011.   Learned counsel for the first defendant tried to justify the said 
                                 
    writing dated 21/12/2011 by contending that the possession of the flat was 
    already with trespasser and the said Mr Vaseem Kapadia  was permitted to 
                                
    obtain possession from such trespassers directly.    I am afraid I cannot accept 
    such explanation which is neither pleaded nor it is possible to accept when the 
    said deceased during his lifetime had filed a suit claiming to be in possession 
        

    of   the   said   flat   and   had   applied   for   injunction   against   the   third   party   in 
    respect of the said flat from dispossessing the said deceased in respect thereof.In   my   view,   the   submission   of   the   learned   counsel   appearing   for   the   first 
    defendant is totally inconsistent and is contrary to the alleged writing dated 





    21/12/2011.73.           On perusal of the record, it is revealed that defendant No.1 has 
    disclosed the alleged writing dated 26/03/2012  for the first time in affidavits 





    in reply dated 24/04/2013 in contempt petition filed by the plaintiffs.   The 
    said alleged writing is not registered.  It is not in dispute that admittedly on 
    26/03/2012,   both   the   parties   were   already   in   Court   and   have   filed   their 
    respective probate petition for obtaining probate propounded by both of them. 
    Plaintiffs   have   already   filed   a   caveat   in   the   probate   petition   filed   by   firstAsmita                                                                                           53/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 54 ..                                  NMT-138-12


    defendant on 17/02/2012.  Defendant No.1 had filed caveat on 24/02/2012 




                                                                                         
    in   the   probate   petition   filed   by   the   plaintiffs.     There   was   thus   no   urgent 




                                                                 
    necessity   to   enter   into   any   such   alleged   writing   in   favour   of   the   alleged 
    purchaser on 26/03/2012 during pendency of this proceeding.  In my view, in 
    ordinary course, defendant No.1 ought to have applied for permission to enter 




                                                                
    into any such alleged agreement with third party or to deal with the valuable 
    property of the deceased which was forming part of the estate and when both 
    the parties had disputed  the  authenticity of the  Will propounded   by each 




                                                  
    other and interim injunction was already sought by the plaintiffs against the 
                                
    first defendant from creating any third party rights and/or dealing with the 
    property.  In my view, since the authority of the plaintiffs was challenged by 
                               
    the first defendant and vice  versa, none of the  parties could deal with the 
    property of the estate claiming to be executors or otherwise without obtaining 
    prior permission of the Court.  In my view, first defendant has acted illegally 
        

    by   allegedly   handing   over   possession   of   the   said   flat   to   third   party   and 
    entering into any such writing dated 26/03/2012.  Such an act on the part of 
     



    the first defendant is not with a view to protect the interest of the estate as  
    claimed by the first defendant but is for his personal gain.     Defendant No.1 





    has disclosed the said alleged possession letter dated 21/12/2011 and alleged 
    agreement dated 26/03/2012 only in affidavit in reply dated 24/04/2013 in 
    contempt petition filed by the plaintiffs.  In my view, the first defendant has 
    suppressed true and correct facts before this Court.  A party who claims to be 





    executor cannot be allowed to inter-meddle with the estate of the deceased.74.          Perusal   of   the   record   also   indicates   that   though   in   the   police 
    complaint filed by the first defendant, he has made a reference to one Bharat 
    Bone Mills at Bachav in Gujarat and property at Manmad, no disclosure isAsmita                                                                                          54/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 55 ..                                  NMT-138-12


    made by the first defendant in the schedule to the testamentary petition filed 




                                                                                           
    by him in respect of Bachav property.   Defendant No.1 has also not disclosed  




                                                                   
    the   particulars   of   the   bank   accounts   and   mutual   fund   as   on   the   date   of 
    disclosure affidavit if any thereof.  The current position or balance standing in 
    account opened by the first defendant in the name of Purvez Burjor Dalal is 




                                                                  
    also suppressed.   Various shares which were disclosed by the first defendant 
    in his schedule to probate petition were not disclosed with explanation.     He  
    has not annexed any D-MAT account statement, supporting documents with 




                                                    
    regard to the shares in the disclosure affidavit.   The recovery of dividends, 
                                 
    interest   or   bonus     shares   or   other   accretions   to   the   bank   account/mutual 
    funds/shares or any debits to the bank account or sales of mutual funds or 
                                
    shares on and after November 2011 have been suppressed.     Defendant No.1  
    also has not disclosed any investments of the said deceased in government 
    sector.75.           Perusal of the record indicates that the first defendant has also not 
     



    furnished any inventory in respect of the movable assets lying in cup-boards 
    or other immovable properties of the said deceased.  It is not in dispute that in 





    respect of Vile Parle property of the said deceased known as "Dalal House", 
    Suit No.2763 of 2008 is pending in this Court.  Suit in respect of residential 
    flat at Colaba has been withdrawn on 08/03/2012.  Suit No.137 of 2010 filed 
    in respect of flat No.17/18 Modern Flats in this Court is transferred to City 





    Civil   Court.         All   these   suits   were   relating   to   the   properties   of   the   said 
    deceased.  Some of the properties of the said deceased are allegedly tenanted. 
    Defendant No.1 is allegedly recovering rent from the occupants.  Plot of land 
    known as "Love Dale" at Peddar Road is allegedly occupied by Tata Powers 
    Ltd., Asiatic Textiles Ltd. and one Mr Shinde.   M/s Asiatic Textiles Ltd., hasAsmita                                                                                            55/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 56 ..                                 NMT-138-12


    claimed to be statutory tenant,  M/s Tata Powers Ltd., has agreed to deposit 




                                                                                        
    Leave and License amount with their advocate in view of the dispute.    Even 




                                                                
    according to defendant No.1,  Mr Shinde is occupying two garages  is claiming 
    to be tenant.       Defendant No.1 has not placed material on record to as to 
    what steps are taken to dispute the alleged rights claimed by the occupants or 




                                                               
    as to how the  said properties are being maintained  by the  first defendant. 
    Defendant No.1 has also not given any account about the recovery of rent or 
    license fee from the occupants.76. 
                                
                 I am not inclined to accept the  submission  made by Ms Sethna, 
    learned   counsel   appearing   for   defendant   No.1   that   defendant   No.1   be 
                               
    permitted to take appropriate steps to file appropriate proceedings against the 
    occupants as a executor.   In so far as bank account of the said deceased with 
    HSBC bank is concerned, the said account has already blocked in view of the 
        

    letter addressed by the plaintiffs through their advocate.77.          In my view, even in respect of those tenanted properties which are 
    forming  part  of  the  estate,  steps  for  recovery  of  possession  and/or  rent  in 





    respect   thereof   will   have   to   be   taken.     For   taking   such   steps,   appropriate 
    proceedings may be required to be filed.    Whatever alleged writing is entered 
    into by the first  defendant in favour of Mr Vaseem Kapadia or in respect of 
    allegedly handing over possession of flat No.8, appropriate proceedings may 





    be required to be filed to protect the estate of the said deceased.    I am not 
    inclined to accept the submission of learned counsel appearing for the first 
    defendant  that  the   consideration  of  RS.75   lacs  in  respect of   flat  No.8  was 
    proper, it being a distress sale.    The said deceased himself had claimed the 
    property to be in his possession during his lifetime and thus there was noAsmita                                                                                         56/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 57 ..                                 NMT-138-12


    question of there being any distress sale.78.          In so far as property situated at Bachav, Gujarat is concerned, I am 
    not inclined to accept the submission of learned counsel for defendant No.1 
    that since  the  said property was not disclosed by the  said deceased in the 




                                                               
    testamentary   petition   for   obtaining   probate   of   his   brother,   defendant   No.1 
    could not have disclosed such property in the schedule of the property in the 
    testamentary petition filed by him.   Defendant No.1 himself has disclosed the 




                                                  
    property at Bachav as well as Manmad properties of the deceased in his police 
                                
    complaint/statement.  Defendant No.1 claimed to be having possession of the 
    properties   of   the   said   deceased   and   was   maintaining   accounts,   defendant 
                               
    No.1 thus could not have suppressed those properties in the schedule to the 
    testamentary   petition   filed   by   him.         Perusal   of   the   record   indicates   that 
    various   statements   of   D-MAT   accounts   were   not   furnished   by   the   first 
        

    defendant.  At the same time inventory and valuation of the articles lying in 
    the cup-boards and locker of the said deceased will have to be made and to be 
     



    valued by a valuer to be appointed by this Court to ascertain all the properties 
    forming part of the estate.79.          On perusal of the record,  it is clear that in spite of the ad interim 
    order   passed   by   this   Court   directing   defendant   No.1   to   disclose   all   the 
    properties of the deceased, defendant No.1 did not comply with the said order 





    and filed an appeal.     The order passed by the learned single Judge of this 
    Court directing defendant to give all the details and to file disclosure affidavit 
    was also vehemently opposed by the first defendant.  Defendant No.1 has also 
    disputed the caveatable interest of the plaintiffs by filing proceedings.   This 
    Court   dismissed   the   interlocutory   proceedings   filed   by   the   first   defendant.Asmita                                                                                         57/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 58 ..                                 NMT-138-12


    Appeal filed by the first defendant impugning such orders passed by this Court 




                                                                                        
    are also dismissed.     SLP filed by the first defendant challenging the orders 




                                                                
    passed by this Court accepting the caveatable interest is also dismissed.80.          On perusal of record, it is clear that several applications are filed 




                                                               
    by first defendant on one or the other grounds and was not successful.  In my  
    prima   facie   view,   a   person   who   claimed   to   be   an   executor   of   a   Will   and 
    alleges   that   he   is   not   even   concerned   or   has   no   interest   of   any   nature 




                                                  
    whatsoever in the estate of the said deceased in view of the said deceased 
                                
    having  bequeathed   all   such  properties   to  charities   except  few  having   been 
    given   to   the   servants,   would   not   file   such   type   of   proceedings   one   after 
                               
    another   raising   all   sorts   of   untenable   objections   under   guise   of   protecting 
    interest   of   the   estate.     Defendant   No.1   claimed   to   be   a   caretaker   getting 
    honorarium from the said deceased during his lifetime.  However, considering 
        

    the number of proceedings filed by first defendant, I am of the prima facie 
    view that no person who claimed to be a caretaker with no income from the 
     



    estate would file such proceedings and would oppose each and every relief 
    claimed by the plaintiffs on one or the other ground with or without merits 





    and without having any interest in the properties directly or indirectly.81.          Since the properties forming part of the estate of the said deceased 
    which are of substantial value and in view of the pending proceedings and 
    considering such attitude and acts of the first defendant which is prejudicial to 





    the   interest   of   estate   in   my   view,   case   is   made   out   for   appointment   of 
    administrator underSection 247of the Indian Succession Act 1925.  None of 
    the parties who are parties to these proceedings and have put up their rival 
    claims against the estate of the said deceased can be permitted to deal with 
    the property.Asmita                                                                                         58/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 59 ..                                  NMT-138-1282.In   so   far   as   Judgment   of   this   Court   in   case   ofRupali   Mehta(supra)   relied   upon   by   Ms   Sethna,   learned   counsel   appearing   for   the   first 
    defendant is concerned, the said Judgment as well as Judgment of Division 
    Bench of this Court in case ofRamchandra Hande Vs. Vithalrao Hande,  in 




                                                                
    my   view,   is   not   applicable   to   the   facts   of   this   case,   since   the   provisions 
    considered   by   this   Court   in   those   judgments   are   not   applicable   to   parsis. 
    Reliance thus placed by the learned counsel for the first defendant on the said 




                                                   
    Judgment is totally misplaced.  In so far as other Judgments referred to by Ms 
                                
    Sethna   are   concerned,   those   Judgments   deal   with   the   issue   of   caveatable 
    interest,   surrounding   suspicious   circumstances   in   execution   of   alleged   Will 
                               
    which issues are not decided by this Court in this order  nor can be decided in 
    this notice of motion and will have to be decided at the time of trial and thus 
    it is not necessary for this Court to deal with those judgments at this stage.I, therefore pass the following order :i)            Mr Cyrus Ardeshir, Advocate is appointed as Administrator of this 
     



                  Court to administer the estate of the deceased Mr Purvez Burjor 
                  Dalal @ Purvez Burjorji Dalal.ii)           the plaintiffs as well as defendant No.1 are directed to hand over 
                  possession of the properties of the said deceased in their possession 
                  if   any   including   movables,   all   the   documents   in   respect   of   the 
                  estate of the deceased,   details of the bank accounts of the said 





                  deceased,   all   the   properties   disclosed   in   the   schedule   to   their 
                  respective testamentary petitions within four weeks from today to 
                  the learned administrator.iii)          Learned administrator shall open a bank account in the name of "Asmita                                                                                           59/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 60 ..                                 NMT-138-12


                Administrator- Estate of Mr Purvez Burjor Dalal"  and can operate 




                                                                                     
                the said account for the purpose of administrating the estate of the 




                                                             
                deceased.iv)         Learned   administrator   is   directed   to   appoint   a   valuer   for   the 
                purpose   of   ascertaining   the   valuation   of   the   movable   and 




                                                            
                immovable   properties   standing   in   the   name   of   the   deceased   as 
                disclosed in the schedule to the testamentary petition filed by both 
                the   parties.     The   administrator   shall   recover   the   rent   from   the 




                                               
                occupants,   recover   the   dividends,   interest   etc.   on   the   shares, 
                              
                debentures, fixed deposits etc., and to deposit the same in the bank 
                account   directed   to   be   opened   as   aforesaid.       The   learned 
                             
                administrator is free to avail of secretarial assistance.v)          Learned   administrator   shall   write   to   all   the   companies   and 
                financial instructions in which shares, securities and bonds of the 
        

                deceased   are   invested   to   deposit   those   investments   with   the 
                learned administrator to be deposited in the aforesaid account.vi)         Learned   administrator   shall   also   ascertain   current   status   of   the 
                pending proceeding in respect of the said estate filed in this Court 





                or in any other Court from the plaintiffs and the first defendant 
                and to apply for impleadment  so as to represent the estate in those 
                proceedings by engaging advocates.vii)        Learned   administrator   is   also   directed   to   file   appropriate 





                proceedings for recovery of properties forming part of the estate of 
                the   said   deceased   and   to   engage   advocates   and   is   permitted   to 
                incur expenses in that regard from the estate of the said deceased.vii)        Learned  administrator   is  directed  to   submit  report  to  this  Court 
                within  three  months from the  date, the  plaintiffs and defendantAsmita                                                                                      60/61::: Downloaded on - 06/01/2014 04:10:00 :::.. 61 ..                                 NMT-138-12


                No.1 handing over charge of the estate of the properties of the said 




                                                                                     
                deceased in their respective possession if any, and subsequently at 




                                                             
                the interval of not more than every six months.ix)         Learned administrator is at liberty to recover expenses and charges 
                incurred for administrating the estate of the said deceased from the 




                                                            
                bank accounts of the estate and also fees as may be approved by 
                this Court periodically.x)          Learned administrator is directed to take all steps so as to discover 




                                               
                all the properties forming part of the estate of the said deceased 
                             
                and   seeks   necessary   information   from   both   the   parties   in   that 
                regard.xi)         Learned administrator is at liberty to seek appropriate directions 
                from this Court if and when any need so arises.xii)        Notice   of   motion   is   disposed   of   in   aforesaid   terms.   Notice   of 
        

                motion   is   also   made   absolute     in   terms   of   prayer   clause   (b).Plaintiffs are also directed not to create any third party rights in 
     



                respect of any of the properties disclosed in the  schedule to the 
                testamentary petition  filed by the  plaintiffs as well as defendant 





                No.1.xiii)       No order as to costs.  
                                                                          ( R.D.DHANUKA, J.)Learned counsel for the respondents seek stay of operation of the 





    order of appointment of administrator for a period of one week from today. 
    Since I have directed both the parties to handover possession of the assets of 
    the deceased in their respective possession within a period of four weeks from 
    today, stay of the order is not warranted.  Application for stay is rejected.( R.D.DHANUKA, J.)Asmita                                                                                      61/61::: Downloaded on - 06/01/2014 04:10:00 :::