Perin Ardeshir Dalal vs Roshan Erach Minbattiwala And ...
2002 Latest Caselaw 190 Bom

JUDGMENT

Pratibha Upasani, J.

1. These two Notices of Motions which are taken out by the plaintiff and now transposed defendant No. 5, who had initially filed the suit as a next friend of the plaintiff respectively, can be disposed of by this common order.

2. This is a case where two former employees of the deceased Hoshang Dalal, who was the brother of the present plaintiff Perin A. Dalal, are arraigned against each other for the noble(?) interest of protecting the estate of the plaintiff who is at the moment, because of her age and physical and psychological condition, is beyond understanding what the whole matter is about. But a few facts to understand the controversy which can be briefly narrated are as follows:

The plaintiff Perin Dalal is the sister of one Hoshang Dalal (deceased). She is the sole heir of the deceased in accordance with the laws of succession governing parsi males dying intestate. Defendant No. 1 Roshan Minbattiwala was the secretary of the said deceased Hoshang Dalal for about last 35 years or so. The plaintiff Perin Dalal is an 82 year old lady, who met with two accidents which resulted in further deterioration of her health. She was hospitalised in Parsi General Hospital for treatment. For the last three to four years, her mental condition has immensely deteriorated and she has been diagnosed by the well known Psychiatrist Dr. Machiswala, that she is not capable of understanding the state of affairs. Plaintiff is a widow having no issue and her deceased brother Hoshang Dalal also had no issue. His wife had pre-deceased him. Plaintiff was having her own flat being Flat No. 4, 11, Monte Co-operative Housing Society Limited, situate at 12, Gibbs Road, Malabar Hill, Bombay. But during her illness, she was brought by her deceased brother to his residence at "Brighton" in or about January, 1998.

3. Hoshang Dalal died intestate, leaving behind him valuable moveable and immoveable properties including a residential flat being flat No. 6-A in the building known as Brighton belonging to Brighton Co-operative Housing Society Limited. The deceased Hoshang Dalal during his lifetime, had executed a nomination in favour of the plaintiff and defendant No. 1 (employee of the deceased Hoshang Dalal ) by name Roshan Minbattiwala, in respect of the said flat at Brighton.

4. The suit is filed by one Nariman Darabshaw Khan, as the next friend of the plaintiff for administration of the estate of the plaintiff Perin Dalal. Mr. Nariman Khan is now transposed as defendant No. 5 by order dated 7th April, 1999 passed by Mr. A. P. Shah, J. Plaintiff now being represented by Mr. Ajitlal Pranlal Yagnik, as the next friend, who was the former Prothonotary and Senior Master of this Court, in place and stead of Mr. Nariman Khan. According to Mr. Nariman Khan, certain events and conduct on the part of defendant No. 1 created apprehension in his mind about the intentions of defendant No. 1, which necessitated to the filing of the present suit. Apparently, he had apprehension that defendant No. 1 was out to grab the estate of deceased Hoshang Dalal. The incidents which led to this apprehension, are narrated by him in the plaint. One such incident is that on or about 1st May, 1998, defendant No. 1 approached defendant No. 2 society (Brighton Society), and informed the society that deceased Hoshang Dalal had died intestate and sought transfer of this flat in her name on the basis of nomination, which was executed in favour of the plaintiff Perin Dalal and defendant No. 1 herself. Later, she obtained and filed with defendant No. 2 an alleged letter of relinquishment which she had procured from the plaintiff relinquishing the plaintiff's share in the said flat. Thereafter, well-wishers and relatives of plaintiff Perin Dalal addressed a letter to the defendant No. 2 society intimating the society not to entertain any requests for transfer/sale of the said flat No. 6A belonging to the deceased Hoshang Dalal. Another incident cited by Nariman Khan, who has filed the suit initially as next friend of the plaintiff, is of 27th May, 1998, where defendant No. 1 Roshan Minbattiwala approached the defendant No. 2 Society on the strength of a Will in her favour purporting to bequeath the flat to defendant No. 1 and informed the society that she did not recollect about the said will initially as she was in mourning. Another incident cited by Nariman Khan is that in or about June, 1998, defendant No. 1 started disposing of some of the securities belonging to the said deceased Hoshang Dalal. Thereafter, on 18th December, 1998, Probate Petition No. 1161 of 1998 was filed by defendant No. 1 for grant of probate in respect of the alleged last Will and testament of the deceased dated 9th March, 1999. The plaintiff filed Caveat in Testamentary Petition No. 1161 of 1998 through her next friend Nariman Khan on 17th March, 1999. Thereafter on 19th March, 1999, the present suit for administration of the estate of the deceased has been filed by the plaintiff through her next friend Nariman Khan for the protection of the said estate in the interregnum. The other prayers made by the plaintiff in this suit are that defendant No. 1 be ordered and decreed to disclose on oath, the estate, assets, properties and effects forming comprising or belonging to the estate of the said deceased Hoshang Dalal, including fixed deposits, bank accounts, shares, debentures, units and other securities standing in the name of the defendant No. 1, whether appearing jointly with defendant No. 1 or otherwise, and that, defendant No. 1 be ordered and decreed to render a true, correct and faithful account in respect of the estate properties assets and effects of the said deceased including all her dealings and transactions relating thereto. It is also prayed that on accounts being taken, in the event of this Court coming to the conclusion that defendant No. 1 is liable to the estate of the said deceased. such amount be ascertained and defendant No. 1 be ordered and decreed to make payment of such sum to the estate of the deceased together with interest thereon at 24% per annum. Declaration is also sought that the said letter of relinquishment and the other writings got executed or alleged to have been executed by the plaintiff in respect of her right, title or interest in the estate of the late Hoshang Dalal in favour of the defendant No. 1 or her immediate family members are null and void and of no legal effect whatsoever. There are other several reliefs, which are also sought. Prayer for appointment of Receiver also is made, pending the hearing and final disposal of the suit.

5. In the Notice of Motion No. 880 of 1999, similar interim reliefs are sought.

At the interim stage, during the hearing of the Notice of Motion No. 880 of 1999, certain important orders came to be passed by this Court. Firstly, it was pointed out to the Court that Mr. Nariman Khan who had filed the suit as next friend of the plaintiff Perin Dalal himself had interest, which can be called adverse to the interest of the plaintiff. For this purpose, para 4 of the affidavit dated 16th March, 1999, which is annexed to the plaint, was highlighted. Paragraph 4 of the said affidavit, which is on page No. 43 of the plaint reads as under :

"Over the years, the plaintiff had developed a strong attachment towards me and was deeply appreciative of my assistance. Consequently, when the plaintiff executed her Will in or about 1991/92, she had bequeathed to me 1/3 of her residuary estate and one-third share in her shareholding in 11, Monte Co-operative Housing Society Ltd. and in flat No. 4 in the building known as 11, Monte situate at 12, Gibbs Road, Malabar Hill, Mumbai held by her on "ownership basis" by virtue of the said shareholding and the other two-thirds thereof was bequeathed to her brother, Hoshang Dalal. The said Will has been duly registered with the Sub-Registrar of Assurances at Bombay".

This affidavit is sworn by Mr. Nariman Khan at the time of filing of the plaint as next friend of the plaintiff Perin Dalal.

Prior to that, on March 26, 1999, this court directed that the plaintiff Perin Dalal be examined by Dr. Machiswala and make a report on or about 31st March, 1999. Accordingly, plaintiff was examined by Dr. Machiswala. The report was submitted and the plaintiff was declared to be not of sound disposition as she was suffering from mental disability.

6. As mentioned above, when para 4 of the affidavit of Mr. Nariman Khan annexed to the plaint, was pointed out to the Court, during the course of arguments of Notice of Motion No. 880 of 1999, this Court, by its order dated 7th April, 1999, transposed Mr. Nariman Khan, the next friend of the plaintiff who had filed the suit initially, as defendant No. 5. Thus, by virtue of this order dated 7th April, 1999, Mr. Nariman Khan was removed as next friend of the plaintiff and was transposed as defendant No. 5. This Court appointed Mr. A. P. Yagnik, the former Prothonotary an Senior Master, High Court, Bombay, as the next friend of the plaintiff in place of Mr. Nariman Khan in respect of the present suit.

7. As far as the averments and allegations of the plaintiff in this suit are concerned, they were also taken care of by this order of 7th April, 1999 for the purpose of protecting the estate of an old, aged, and physically and mentally ailing lady. It will be desirable to produce the said order, which is as follows :---

"Heard Advocates for the parties.

Defendant No. 1 will maintain status quo with regard to the estate of the deceased including flat situate at 6-A, "Brighton", Napean Sea Road, Mumbai 400 036 as well as immoveable property situate at Dalal Street, Broach in State of Gujarat bearing Nos. D/672, D/677 & D/682 and the bank accounts viz.; Account No. 5102 with Bank of Baroda (Bhulabhai Desai Road Branch) and Account No. 5049 with Union Bank of India, (Napean Sea Road Branch), save and except for payment of society charges, for maintenance, repairs, etc. to "Brighton Co-operative Housing Society Ltd." in regard to flat No. 6-A as per society bills, telephone and electricity charges.

Mrs. Thrity Vakil and Mr. Percy Vakil are appointed as caretakers for the purpose of looking after and maintenance of the plaintiff and will continue the present arrangement of two maids (one day and one night) and one full time day nurse for the plaintiff. Mr. Nariman Khan and Mrs. Roshan Minbattiwala will also be permitted to assist the said caretakers in looking after and maintaining the plaintiff to the best of their ability.

Mr. A. P. Yagnik, former Prothonotary & Senior Master, High Court, Bombay is appointed as the next friend of the plaintiff in place of Mr. Nariman Khan in respect of the present suit.

On the request made by this court, Mr. Humranwala has agreed to continue his appearance on behalf of the plaintiff. Mr. Divetri stated that his client has no objection if Mr. Humranwala continues to act as Advocate for the plaintiff.

All the expenses for the maintenance of the plaintiff including the medical expenses shall be paid from out of the estate of deceased from Account No. 5049 with Union Bank of India to be disbursed by Mr. Yagnik.

The amount lying in Bank Account of the deceased namely Account No. 5102 with Bank of Baroda and Account No. 5049 with Union Bank of India except an amount of Rs. 3,00,000/- from out of Account No. 5049 to be kept separately for the purpose of maintenance of the plaintiff shall be invested in fixed deposit in the respective Banks initially for a period of one year and to be renewed from time to time with the permission of this Court.

Mr. Nariman Khan, next friend of the plaintiff is transposed as defendant.

Mr. Yagnik shall pay of Rs. 6,500/- to Dr. Y.A. Machiswala towards his fees.

Mr. Yagnik to act on an ordinary copy of this order duly authenticated by the associate of this Court."

8. Thereafter, on 5th May, 1999, after hearing both the sides, once again, this Court (Coram : Mr. A.P. Shah, J.) modified the order dated 7th April, 1999 by consent of the parties. The relevant portion reads ad follows :

"1. That a sum of Rs. 10,00,000/- out of the Bank Account No. 5049 with Union Bank of India, Napean Sea Road Branch, Mumbai to be transferred to a separate Savings Banks Account to be opened in the name of Mr. A. P. Yagnik as next friend of the plaintiff, which account shall be operated by Mr. A. P. Yagnik, exclusively.

2. Defendant No. 1 shall issue a cheque for Rs. 10,00,000/- out of Account No. 5049 with Union Bank of India in the name of Mr. A. P. Yagnik within one week from the date hereof.

3. All payments relating to the flat at Brighton, including electricity charges, telephone charges, society outgoings, salaries to nurses and maids and all expenses on the personal maintenance of the plaintiff, including medical expenses and fees of Dr. Machiswala shall be paid out of the Account referred to in paragraph 1 above by Mr. A. P. Yagnik with effect from 1st April, 1999.

4. The balance amount (after payment of the said amount of Rs. 10,00,000) lying in Account No. 5049 with Union Bank of India and the entire amount lying in Account No. 5102 with Bank of Baroda (Bhulabhai Desai Road Branch, Mumbai) as of 26th March, 1999 shall be invested in fixed deposits with the respective bank for a period of one year to be renewed from time to time. The fixed deposit shall be taken in the name of "ESTATE OF HOSHANG DALAL - TRUSTEE A. P. YAGNIK". Neither Mr. A. P. Yagnik nor defendant No. 1 shall operate the above two Accounts or liquidate the fixed deposits without permission of this Court.

5. Mr. A.P. Yagnik's remuneration as next friend is fixed at Rs. 5000/- per month and shall be paid out of the account referred in paragraph 1 above.

6. The legal fees and expenses of the Advocates/Counsel for the plaintiff to be disbursed out of the Account referred to in paragraph 1 above.

7. Defendant No. 1 not to act on the strength of the power of Attorney or Letter of Relinquishment or other writings executed by the plaintiff in favour of defendant No. 1.

8. Formal application of amendment of pleadings for transposing next friend as per Order dated 7-4-1999 dispensed with. Amendments to be carried out within four weeks.

9. The order dated 7th April, 1999 shall stand modified to the extent set out hereinabove.

10. The Union Bank of India and Bank of Baroda to act on an ordinary copy of this order, duly authenticated by the Associate of this Court."

9. Mr. Rishabh Shah for defendant No. 5, in his forceful submissions, argued that defendant No. 1 was a selfish women, was out to grab the estate of deceased Hoshang Dalal as well as that of the plaintiff, that she has obtained certain signatures of the plaintiff, when she was not in a fit mental condition, that certain transactions were made by defendant No. 1, which were to the detriment of the plaintiff, that Mr. Yagnik, who was appointed as next friend in place of Nariman Khan, was not taking any active steps in the matter, and therefore, defendant No. 1 be directed to disclose certain information as prayed for, with respect to the security shares, bank accounts, etc., and that, defendant No. 5 be re-transposed as the plaintiff's next friend, and that, Mr. Yagnik may be appointed as Receiver of the assets. In fact, the second Motion namely Notice of Motion No. 2117 of 2001 was taken out by defendant No. 5 Mr. Nariman Khan precisely for that purpose.

10. Mr. Devetre for defendant No. 1, on the other hand, countered the arguments of Mr. Rishabh Shah, submitting that no information is suppressed by defendant No. 1, and that all the assets have been disclosed, not only while filing affidavit - in- reply to the plaintiff's Notice of Motion No. 880 of 1999 but even earlier to that, in the Probate Petition No. 1161 of 1998 filed by defendant No. 1 Roshan Minbattiwala. Mr. Devetre took the Court through the averments made in the said testamentary petition, copy of which is produced before the Court, and also through the averments made in the affidavit-in- reply filed by defendant No. 1 to the Notice of Motion No. 880 of 1999.

11. Mr. Devetre for defendant No. 1, further argued that it was unfair on the part of the defendant No. 5 to make any unfounded allegation against defendant No. 1 and that, whatever steps have been taken by defendant No. 1 while dealing with the estate of Late Hoshang Dalal were as per the provisions of section 211 sub-clause (1), section 227 and 307 of the Indian Succession Act, 1925. He pointed out that defendant No. 1 was appointed as the Executor of the last Will of the deceased Hoshang Dalal and defendant No. 1 being the Executor, all the property of the deceased vested in her as such. Pointing out provisions of section 307 of the Indian Succession Act, 1925, Mr. Devetre further highlighted that defendant No.1 as the Executor of the Will, had power to dispose of the property of the deceased vested in her under section 211 in such manner as she might think fit. He further argued that probate petition is pending and ripe for hearing and once the probate is granted, that would establish the Will from the death of testator i.e. deceased Hoshang Dalal and would render valid all intermediate acts of the Executor. To substantiate these points, he also relied upon the judgment of the Calcutta High Court Bali Ram v. Bhupendra Nath, which in terms lays down that the executor derives his title from the Will and immediately after the testator's death, his property vests in the executor as the law knows no interval between the testator's death and the vesting of the property. He further higlighted the observations made by the Calcutta High Court, which are as follows:

"An executor by virtue of his office, that is in the character of executor, takes an estate in the property of the deceased and a legal character is vested in him. Where the Will also empowers the executor to sell the property, the executor represents the estate even before he has taken the probate. As such the probate is not necessary to make an executor entitled to the properties as his title is derived under the Will. There is nothing in the law to prevent the executor from acting as an executor and exercise a power given to him without obtaining probate. Probate mainly gives an adequate protection and nothing further."

12. I have heard Mr. Shah for defendant No. 5, so also, Mr. Devetre for defendant No. 1 on this point, and I find substance in the submissions of Mr. Devetre. What defendant No. 5 wants is that defendant No.1 should not deal with the property of the plaintiff/deceased Hoshang's property, that defendant No.1 should disclose all the assets, etc. however, if one peruses the orders passed by this Court previously at the ad-interim stage, namely orders dated 7th April, 1999 and 5th May, 1999, it will be revealed that whatever defendant No. 5 has prayed for, has already been provided for, and sufficient protection, nay, full-proof protection has been already granted as far as the plaintiff's property and her interest in her brother's property is concerned. Text of both these orders dated 7th April, 1999 and 5th May, 1999 is already reproduced above. The moment it was shown to the Court that Mr. Nariman Khan (previous next-in friend) had an interest in the property, which might be adverse to that of the plaintiff, he was removed as a next friend and was transposed as defendant No. 5. This by itself does not mean that any aspersions are cast on defendant No. 5. If he claims that he has got all the inner and inside information with respect to the plaintiff's property, since he was the trusted employee of the deceased Hoshang Dalal, he can always assist the present next-in friend Mr. Yagnik. When Mr. Nariman Khan filed the present suit as next-in friend of the plaintiff, apprehension was expressed by him and allegations were hurled against defendant No.1 about her indiscriminate dealings with the property and the estate of the deceased and prayers to stop these alleged misdeed were made. Even in this respect, the two orders dated 7th April, 1999 and 5th May, 1999 take care of those allegations against defendant No.1. As these orders will reveal, defendant No. 1 Roshan Minbattiwala has been restrained from acting in pursuance to the writings allegedly procured by defendant No. 1 from the plaintiff who is of unsound mind. These writings are the power of Attorney and the Deed of Relinquishment. Defendant No. 1 is ordered to maintain status quo with regard to the estate of the deceased including the flat situated at 6-A, "Brighton, Napean Sea Road, Mumbai-36, as well as other moveable properties, so also, Bank Accounts viz., Account No. 5102 with Bank of Baroda, Bhulabhai Desai Road Branch and Account No. 5049 with Union Bank of India, Nepean Sea Road Branch, save and except for payment of society charges, for maintenance, repairs, etc. to defendant No. 2 society in regard to flat No. 6-A, as per society bills, telephone and electricity charges. By the very same order dated 7th April, 1999 caretakers for the purpose of looking after and maintenance of the plaintiff were appointed. The arrangement of two maids (day and night) have been continued. Mr. Yagnik who has been appointed as next-in friend of the plaintiff, has been allowed to open a Bank Account and defendant No.1 has been directed to open an account and is also directed to provide for the maintenance of the plaintiff from the monies deposited in this Bank Account.

13. Thus, the above two orders sufficiently take care of the estate of the plaintiff and sufficiently clip the wings of defendant No. 1, at least during the pendency of the suit and the probate petition, till the time issues are conclusively decided either in favour or against her. The probate petition, I was told, is coming up for hearing within a short time.

14. As far as defendant No. 5's Notice of Motion for re-transposing him as next-friend of the plaintiff once again is concerned, in my opinion, this cannot be done. Transposing Mr. Nariman Khan as defendant No. 5 has been done after due consideration by this Court by its order dated 7th April, 1999 under Order 32, Rule 9 of the Code of Civil Procedure, 1908. It appears that appeal against this was in fact preferred by defendant No. 5 after his transposition, but after realising that the said order is not appealable, he withdrew the said appeal. As such, this Court will not review this order by re-transposing defendant No. 5 to the position of the next friend of the plaintiff. This is not permissible, nor is it desirable.

15. Mr. Jani, who is appearing for the newly appointed next-in-friend namely Mr. Yagnik stated that he had nothing to argue except that if the Court deems fit, Receiver could be appointed with respect to the property of the plaintiff. Mr. Jani denied that no active steps were taken by Mr. Yagnik as far as dealing with the estate of the plaintiff is concerned. He also pointed out the two orders passed by this Court on earlier occasions namely order dated 7th April, 1999 and 5th May, 1999, and submitted that these two order sufficiently throw a cloak of protection around the estate of the plaintiff and that of the deceased Hoshang Dalal, and that, since the probate petition is shortly coming up for hearing, nothing actually requires to be done by this Court at this stage.

16. Having heard all the Advocates at length and having gone through the averments and the allegations made by defendant No. 5 against defendant No. 1 and the previous orders passed by this Court at the ad-interim stage from time to time, in my opinion, nothing is required to be done. The prayer of defendants No. 5 to re-transpose him as next friend of the plaintiff once again, after his previous removal from the very same status, is not acceptable and the same is rejected. As far as the prayers in the earlier Motion namely Notice of Motion No. 880 of 1999 are concerned, as already observed, the estate is sufficiently protected and no further orders need be passed at this stage. All the Advocates agree that a further amount of Rs. 10,00,000/- be directed to be put in the Savings Bank Account No. 8554 with Union Bank of India for the expenses to be incurred on the plaintiff with which Mr. Yagnik is entrusted. In view of this, following order is passed :

Both the Notices of Motions are dismissed.

By consent of all the parties, a sum of Rs. 10,00,000/- out of Bank Account No. 5049 with Union Bank of India be transferred to Savings Bank Account No. 8554 with Union Bank of India, strictly for the purposes mentioned in the orders dated 7th April, 1999 and 5th May, 1999 passed by Mr. A. P. Shah, J.

Notice of Motion No. 880 of 1999 and Notice Motion No. 2117 of 2001 are both disposed of accordingly.

All concerned to act on the ordinary copy of this order, duly authenticated by the Court Associate.