Jamshed Dastur And 2 Ors vs Guloo Perviz Dastur
2021 Latest Caselaw 15745 Bom

                                                            IAL4483-21INSL4477-21.DOC

                                                                               Santosh
                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION


                                INTERIM APPLICATION (L) NO. 4483 OF 2021
                                                    IN
                                        SUIT (L) NO. 4477 OF 2021

                      Jamshed Dastur & ors.                          ...Applicants/
                                                                      Ori. Plaintiffs
                      In the matter between
                      Jamshed Dastur & ors.                             ...Plaintiffs
                                           Versus
SANTOSH               Guloo Perviz Dastur                              ...Defendant
SUBHASH
KULKARNI
Digitally signed by
SANTOSH SUBHASH
                      Mr. Malcolm P. Siganporia, a/w Ms. Bharati H. Narichania,
KULKARNI
Date: 2021.11.15          Mr. Vinayak H. Narichania, i/b Vibha Juris Consult Co.,
17:21:57 +0530
                          for the Applicants/Plaintiffs.
                      Mr. Sharan Jagtiani, Senior Advocate, a/w Mr. Sumeet
                          Nankani, Mr. I. J. Nankani, Huzefa Khokhawalla, Deepa
                          Shetty, i/b Nankani Associates, for the Defendant.

                                                    CORAM: N. J. JAMADAR, J.

RESERVED ON: 8th OCTOBER, 2021 PRONOUNCED ON: 15th NOVEMBER, 2021 ORDER:-

1. The plaintiffs, who have instituted the suit to administer

the estate of Perviz Dastur ("the deceased") on the basis of

intestacy, have preferred this application for interim reliefs

seeking disclosure of assets of the deceased, dealings and/or

attempts to deal with any part or portion of the estate of the

deceased, appointment of a Receiver in respect of the estate of

the deceased and restraining the defendant from dealing with,

disposing off, transferring, alienating, encumbering or parting

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with possession of or creating any third party rights or interest

in the estate left behind by the deceased including movable

properties.

2. The material averments in the plaint, necessary for the

determination of the instant application, can be summarized as

under:

(a) Plaintiff no.1 Mr. Jamshed and plaintiff no.2 Mr.

Khushroo are the elder and younger brothers of Parviz Dastur.

Plaintiff no.3 Mrs. Roshan is the daughter and sole surviving

legal representative of late Mrs. Veera Modi, the elder sister of

late Mr. Perviz Dastur. The defendant is the widow of the

deceased.

(b) Late Mr. Perviz passed away on 4th March, 2020. The

deceased had great affection and fondness for his siblings,

nieces and nephews. He travelled to USA almost every year over

four decades to meet the brothers, nephews and nieces. The

deceased was diagnosed with terminal pancreatic cancer in the

year 2018. By an e-mail dated 21st March, 2019 addressed to

plaintiff no.1, the deceased has stated that he and the defendant

were in the process of drawing up their respective Wills

providing that after his demise, his estate goes to the defendant

and after the defendant's demise the portion of deceased's estate

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which she inherited from the deceased would devolve upon the

deceased's five nieces and nephews in equal proportion. In the

month of January-2020, plaintiff no.1, plaintiff no.3 and Mr.

Kersas Dastur and Mr. Hormazd Dastur, nephews of the

deceased, visited Mumbai to meet the then ailing Mr. Perviz. At

that time, the deceased and defendant reiterated and informed

plaintiff no.1 about the execution of the Wills on the aforesaid

lines in the month of March, 2019. After the demise of Perviz,

plaintiff no.1 addressed a communication by e-mail to the

deceased's nieces and nephews apprising them of the last Will of

the deceased. On 4th August, 2020, Ms. Reina Dastur, one of

the nieces of the deceased addressed a letter by e-mail to the

defendant requesting certified/scanned copy of the Will of the

deceased. In the reply dated 22nd August, 2020, the defendant

claimed that the deceased had not executed any Will and she

was the sole beneficiary of the estate of the deceased.

(c) In the meanwhile, the plaintiffs learned that the

defendant was in the process of negotiation with the prospective

purchasers for sale of an immovable property of the deceased

situated at Tekali, Alibaug. In response to a public notice

published by M/s. Khaitan & Co., Advocates on behalf of the

prospective purchasers, plaintiff no.1 gave reply. In a further

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communication dated 12th September, 2020, it was sought to be

alleged by M/s. Khaitan & Co. that the defendant propounded a

Will allegedly executed on 9th November, 2012, wherein the

defendant was named the sole beneficiary and executor.

(d) In view of this claim of the defendant about the

execution of the Will dated 9 th November, 2012, which was never

propounded till September, 2020, and attempts to alienate the

estate of the deceased to the prejudice of the rights of the

plaintiffs, the plaintiffs were constrained to institute the suit for

a declaration that they are entitled to 50% share in the estate of

the late Perviz, administration of the said estate on the basis of

intestacy and partition thereof and the allied reliefs.

(e) Since the defendant endeavoured to usurp the entire

estate of the deceased and alienate the immovable property and

liquidate the movable assets, the plaintiffs filed interim

application seeking reliefs to protect the estate of the deceased

and their interest therein.

(f) The defendant resisted the application by filing the

affidavit-in-reply. The averments in the application adverse to

the interest of the defendant were denied. The basis of the suit

that the deceased died intestate was stated to be misplaced.

Even this claim is contradicted by the assertion that the

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deceased had executed an alleged Will in the year 2019. In that

view of the matter, the substratum of the suit for administration

gets dismantled. Moreover, the plaintiffs are guilty of

suppression of facts and fabrication of the record to suit their

case. On this count alone, the plaintiffs are not entitled to

equitable reliefs.

(g) The defendant contends that the deceased had

executed his last Will and Testament on 9th November, 2012, at

Alibaug, in the presence of two witnesses including Smt. Nanda

Deshmukh, an Advocate, residing and practicing in Alibaug.

Under the said Will the deceased bequeathed all his property to

the defendant as an absolute owner. The defendant was in the

process of filing an appropriate proceeding for obtaining probate

of the said last Will and Testament. Plaintiff no.1, according to

the defendant, was fully aware of the said fact. Conversely, the

defendant contends, the deceased never executed any Will, as

alleged, in the year 2019. The suit is stated to have been

instituted with an oblique motive to put hindrances in the sale

of the properties bequeathed to the defendant by the deceased.

(h) An affidavit-in-rejoinder was filed on behalf of the

plaintiffs, followed by an affidavit-in-surrejoinder. The defendant

has also banked upon an affidavit filed by Smt. Nanda

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Deshmukh affirming therein that on 9 th November, 2012, the

deceased had executed the Will at Alibaug and left the same in

her custody. After the demise of the deceased, she had handed

over the Will to the defendant in the month of June, 2020.

3. It would be contextually relevant to note that by an order

dated 8th September, 2021, the defendant was restrained from

disposing of any of the assets till a proper disclosure of the

assets was made. On 27th September, 2021, after recording the

grievance of the plaintiffs that the affidavit of disclosure is

inaccurate and insufficient, this Court granted time to the

defendant to file an additional affidavit and the interim order

was continued till 5th October, 2021. The additional affidavit of

disclosure was filed on 30th September, 2021, to which copies of

the record of rights in respect of the immovable assets of the

deceased were annexed.

4. In the backdrop of the aforesaid facts and pleadings, I

have heard Mr. Siganporia, the learned Counsel for the plaintiffs

and Mr. Jagtiani, the learned Senior Counsel for the defendant.

With the assistance of the learned Counsels for the parties, I

have perused the material on record including the averments in

the plaint, application for interim relief and counter thereto.

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5. Mr. Siganporia, the learned Counsel for the plaintiffs,

would urge that in the context of the controversy, especially the

fact that the alleged Will dated 9th November, 2012, was not at

all propounded till September, 2020 and despite a categorical

averment in the affidavit-in-reply that the defendant was in the

process of filing a probate proceeding, no such proceeding has

till date been filed, would justify the grant of interim relief lest

the estate, for the administration of which the instant suit has

been instituted, would be wasted and alienated.

6. In view of indisputable relationship between the parties,

the plaintiffs are entitled to 50% share in the estate of the

deceased in accordance with the provisions contained in Section

54(a) and (d) of the Indian Succession Act, 1925 ("the Indian

Succession Act"). The claim of the defendant that the deceased

had executed a Will in the year 2012, is a creature of an

afterthought so as to defeat the legitimate claim of the plaintiffs.

On the one hand, the defendant has not instituted any

testamentary petition on the basis of the alleged Will dated 9th

November, 2012. On the other hand, the defendant has been

dealing with the assets of the deceased with impurity to the

grave prejudice of the rights of the plaintiffs. Therefore, it is

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imperative to restrain the defendant from dealing with the estate

of the deceased, submitted Mr. Siganporia.

7. A two-fold submission was canvassed by Mr. Siganporia in

support of the aforesaid prayer. First, in the e-mail dated 21 st

March, 2019, addressed by the late Mr. Perviz to plaintiff no.1,

the factum of which has not been denied, it was categorically

informed by the deceased that he and the defendant were in the

process of making their Wills. The tenor of the Wills to be

executed was spelled out in the said communication to the effect

that after his demise everything comes to the defendant and

after her demise that portion which she inherited from the

deceased goes to his five nephews and nieces in equal

proportion. Secondly, in the e-mail dated 22 nd August, 2020,

addressed by the defendant to Ms. Reina, a niece of the

deceased, it was specifically admitted that the defendant and

the deceased were in the process of revising their Wills.

However, the execution of the Will in the year 2012, was not at

all adverted to therein. Thus, the alleged Will of the year 2012,

on the strength of which the defendant claims to be the sole

beneficiary of the estate of the deceased, is a creature of

afterthought.

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8. Mr. Siganporia invited the attention of the court to the

intrinsic evidence of the Will dated 9th November, 2012, to

bolster up the submission that, on the one hand, the said Will

dos not indicate its place of execution and, on the other hand, it

is fraught with a number of suspicious circumstances. In this

view of the matter, at this juncture, according to Mr. Siganporia,

even if the case of the defendant is taken at par, the bar under

Section 213 of the Indian Succession Act comes into play and

the defendant cannot be permitted to establish her right to the

estate of the deceased on the strength of such Will without first

having obtained probate thereof.

9. To lend support to the aforesaid submission, Mr.

Siganporia placed reliance on a judgment of the Supreme Court

in the case of Binapani Kar Chowdhury vs. Sri Satyabrata Basu

and another.1 Reliance was also placed on the judgment of the

Supreme Court in the case of H. Venkatachala Iyengar vs. B. N.

Thimmajamma and others,2 wherein the suspicious

circumstances with which a Will may be surrounded were

enumerated and the approach of the Court in assessing the

evidence in proof of will was delineated.

1(2006) 10 Supreme Court Cases 442.

2AIR 1959 SC 443.

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10. Per contra, Mr. Jagtiani, the learned Senior Counsel for

the defendant, stoutly submitted that the very premise of the

suit is flawed. The plaintiffs have initially based their case on

intestacy. However, the substratum of the plaintiffs claim is the

alleged Will executed by the defendant in the year 2019, whereby

the deceased had proposed to bequeath the estate to his

nephews and nieces in equal proportion. This irreconcilable

stand of the plaintiff works out the retribution of their claim.

Secondly, the material on record indicates that plaintiff no.1 was

fully aware of the execution of the Will of 2012 by the deceased

in favour of the defendant. When the said fact became explicit,

an endeavour was made to wriggle out of the situation by

asserting that it was the defendant, who had informed plaintiff

no.1 about such Will of 2012. In any event, in the face of these

inconsistent stands suit for administration based on intestacy of

the deceased is wholly misconceived, urged Mr. Jagtiani.

11. The submission on behalf of the plaintiffs that the

defendant has not instituted proceedings for probate of Will of

2012, despite a specific stand having been taken to that effect in

the affidavit-in-reply, was sought to be met by Mr. Jagtiani by

canvassing a proposition that it is not legally obligatory for the

defendant to obtain the probate as the property is not situated

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within the local limits of the ordinary original civil jurisdiction

of the High Court. A conjoint reading of Section 57 and Section

213 of the Indian Succession Act would indicate that the

probate is not necessary to establish the rights under the Will of

2012 as it was executed beyond the ordinary original civil

jurisdiction of this Court and in respect of the property which is

also situated beyond the limits of the original jurisdiction of this

Court. In any event, according to Mr. Jagtiani, the fact that the

defendant had shared the marital bond with the deceased for

almost 50 years cannot be lost sight of. Even if the case of the

plaintiffs is taken at par, then also no intent to disinherit the

defendant can be inferred from any of the communications,

which the deceased had, or have been attributed to the

deceased. Thus, neither any prima facie case is made out by

the plaintiffs for grant of the interim reliefs nor the balance of

convenience tilts in favour of the plaintiffs. On the contrary, the

defendant would suffer irreparable loss if the defendant is

deprived of the legitimate right of ownership over the properties

left behind by the deceased.

12. I have given anxious consideration to the rival

submissions canvassed across the bar. To start with, there is

not much controversy over the relationship between the parties.

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The controversy revolves around the aspect as to whether the

deceased died intestate. In view of the provisions contained in

Section 54 (a) and (d) of the Indian Succession Act, the plaintiffs

would be entitled to inherit the property of the deceased in case

of intestacy only. The question that wrenches to the fore is;

whether the defendant's claim of testamentary disposition of the

deceased by Will of 2012 is prima facie sustainable?

13. Is there any legal impediment to claim a right on the basis

of the Will of 2012? Section 213 of the Indian Succession Act

reads as under:

"213. Right as executor or legatee when established.-- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. [(2) This section shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply--

(i) in the case of Wills by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits."

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14. Sub-section (2) of Section 213 provides that the interdict

contained in Sub-section (2) shall apply in case of Wills made by

any Parsi where such Wills are made within the local limits of

the ordinary original civil jurisdiction of the High Courts at

Calcutta, Madras and Bombay, and where such Wills are made

outside those limits, in so far as they relate to immovable

property situated within those limits. For the applicability of

the bar under Section (1) of Section 213, in case of a Will made

by a Parsi, one of the two conditions needs to be satisfied.

Either the Will should have been made within the local limits of

the ordinary original civil jurisdiction of the Court at Calcutta,

Madras and Bombay. Or, where the Will is made outside of

those limits, they relate to immovable property situated within

those limits.

15. In the case at hand, the defendant has asserted that the

Will of 2012 was made at Alibaug. The immovable properties,

which have been disclosed by the defendant, are situated

outside the limits of the ordinary original civil jurisdiction of the

Court. None of the conditions stipulated for the applicability of

the bar under Section 213 (1) of the Indian Succession Act

seems to have been made out, if the case of the defendant is to

be believed.

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16. To lend support to the claim that the Will was executed at

Alibaug, the defendant had banked upon affidavit of Smt. Nanda

Deshmukh, an Advocate. In the said affidavit, Advocate Nanda

Deshmukh has affirmed that on 9 th November, 2012, the

deceased executed the Will, which was attested by her and Mrs.

Zarine Patel, the sister-in-law of the deceased, at F-4, Sneha

Apartment, Alibaug, District Raigad, and after execution the

deceased left the Will with her for being kept in her safe custody.

She claimed to have handed over the Will of the deceased in the

month of June, 2020 to the defendant, after the death of the

deceased. At this juncture, the controversy is required to be

resolved on the basis of the affidavits. Indisputably, the

deceased had properties at Alibaug. There is no justifiable

reason to discard the claim of Advocate Nanda Deshmukh that

the Will of 2012 was so executed at Alibaug.

17. Mr. Siganporia, the learned Counsel for the plaintiffs,

made an endeavour to assail the said claim of the defendant on

the ground that in the communication which were exchanged

between the parties, the defendant had been set up the Will of

2012. On the contrary, the defendant admitted that plaintiff

no.1 had addressed an e-mail to the nephews and nieces of the

deceased setting out the e-mail received from the deceased on

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21st March, 2019. Moreover, the Will was propounded in the

reply to the objection to the public notice, lodged by plaintiff

no.1, for the first time on 12th September, 2000.

18. Mr. Jagtiani, the learned Senior Counsel, attempted to join

the issue by canvassing a submission that the defendant, who

is a 70 year old lady, could not be expected to give response to

the communication as a legally trained professional would do.

None-the-less, the defendant had indicated that the deceased

had executed a prior Will.

19. At this juncture, it may be apposite to extract the contents

of the e-mail dated 21st March, 2019, addressed by the deceased

to plaintiff no.1:

"Thanks. This is only between you & me. At present I am in the process of making our wills. Which basically says that after my demise everything goes to Guloo & after her demise that portion which she inherited from me goes to my 5 nephews & nieces in equal proportion.

In the unlikely event of her demise precedes my then I inherit first every thing & on my demise her portion goes to her side of the family & my to my nephews & nieces as above.

As I said this is only between you & me.

Love to all.

Paloo.

20. After the aforesaid communication was brought to the

notice of nephews and nieces of the deceased by plaintiff no.1,

by e-mail dated 16th July, 2020, Ms. Reina, one of the nieces,

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addressed a communication to the defendant on 4 th August,

2020, by e-mail, which inter alia reads as under;

"I'm writing today to follow up on my Dad's e-mail dated July 16 and titled PALOO UNCLE'S WILL which you were copied on, and on behalf of, and the full knowledge and agreement of the 5 Dastur/Modi nephews and nieces. We are all very thankful to him for having named us as eventual heirs of his estate. He always showered love and affection on us, making the long journey to USA almost every year over the past 50 years to spend time with us. It is hard to believe that he is no longer with us. We are left with a lot of fond memories and a few too many corny jokes, mostly about French Toast.

At some time in the near future, after the Pandemic subsides and circumstances so permit, each of the five of us should be furnished a certified hard copy of Paloo Uncle's will along with full details of his estate, as well as details of where and with whom it is registered. In the meantime, we would really appreciate receiving via e-mail, a scanned copy of the will, for our records."

21. The response of the defendant is to be found in the

communication dated 22nd August, 2020, which reads as under:

"Dear Reina, Thank you for your concern and it feels good to hear things are fine at your end.

Referring to Paloo's will and Jimmy's e-mail of the 16th July it is quite correct that we were thinking of revising our wills and providing for all our nieces and nephews as a parting gift. However, with the passage of time, we reconsidered and decided that since all our nieces and nephews are well settled in life, we need to give part of our wealth to those less fortunate and earmark a certain part of our estate to charities and partly to our relatives as a token of our love and affection.

As you all are aware that Paloo predeceased me, I am the sole beneficiary of his estate bearing in mind Paloo's wishes, I will make my will accordingly I have decided not to act in haste regarding his requests."

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22. A proper construction of the aforesaid communication,

prima facie, lends support to the submission of Mr. Jagtiani.

First and foremost, the communication dated 21 st March, 2019,

by the deceased to the plaintiffs, makes it unmistakably clear

that after the demise of the deceased everything was to devolve

upon the defendant. Far from disinheriting the defendant, the

said communication discloses the intent to crystallize the rights

of the defendant over the entire estate of the deceased. The

subsequent disposition based on the source from which the

property was inherited by the defendant was to operate post the

demise of the defendant. Till the lifetime of the defendant,

under the e-mail dated 21st March, 2019, the defendant was not

made the limited owner.

23. Secondly, the response of the defendant dated 20 th August,

2020, makes the position even more clear. The defendant

categorically asserted that it was quite correct that she and the

deceased were thinking of 'revising' their Wills and providing for

all their nieces and nephews as a parting gift. The defendant

has used the word revising, which ordinarily means the

revisiting something which already exists. The defendant

further asserted categorically that she was the sole beneficiary

of the estate of the deceased. It is true that in the said

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communication dated 22nd August, 2020, the defendant did not

set up the Will of 2012. None-the-less, the unambiguous

assertion that they were in the process of revising the Will

clearly indicates as to what was in the contemplation of the

defendant.

24. The situation which thus obtains is that even under

communication dated 21st March, 2019, which constitutes the

substratum of the claim of the plaintiffs, the defendant was to

inherit the entire estate of the deceased and the disposition in

favour of the nephews and nieces was to operate after the

demise of the defendant, and, at that point of time, the source

from which the properties were inherited would become

relevant. At the cost of repetition, it must be noted that there

was no intent to disinherit the defendant, even for a moment.

The claim set up by the defendant that the deceased had

executed the Will in the year 2012 is required to be appreciated

in the context of the almost 50 years marital bond between the

defendant and the deceased. There is no plausible reason to

discard the claim of the defendant, at this stage.

25. The submission on behalf of the plaintiffs that since the

defendant has not instituted a proceeding for probate, her claim

does not deserve countenance is required to be appreciated in

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the backdrop of the fact that the necessity of probate to

establish the right under the Will would depend upon the

statutory prescriptions. Even if the defendant claimed that she

would file a petition for probate, that does not imply that she

would be deprived of establishing the right under the Will, even

where law does not warrant that probate must be obtained.

Therefore, the fact that the defendant has yet not filed a probate

petition does not detract materially from her claim.

26. Mr. Siganporia endeavoured to impress upon the Court

that the disclosure of assets is not full and accurate. A

grievance was made that the specific area of the immovable

properties does not find mention in the extracts of the record of

rights placed on record by the defendant. I am not inclined to

accede to this submission. The defendant has placed on record

the copies of the record of right in respect of lands bearing Gat

Nos.260/21/A, 262, 261/1 and 61 situated at Tekale, Taluka

Alibaug, District Raigad and Gat No.28/1 situated at Kevale,

Taluka and District Raigad. The defendant had also disclosed

the alienation made by the deceased in paragraphs 4 and 5 of

the affidavit dated 22nd September, 2021. There is sufficient

disclosure as regards the movable assets as well.

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27. The conspectus of the aforesaid consideration is that, at

this juncture, the plaintiffs have not succeeded in establishing

that a prima facie case for grant of interim reliefs is made out.

In the totality of the circumstances, even if the case of the

plaintiffs, which is based on the communication made by the

deceased to plaintiff no.1, dated 21st March, 2019, is taken at

par, the balance of convenience tilts in favour of the defendant.

Since there is adequate disclosure of the assets of the deceased,

in the event the plaintiffs succeed in establishing their rights,

over the estate of the deceased, the Court would be in a position

to pass appropriate orders so as to ensure that the plaintiffs get

their share of the estate of the deceased. In any event, all the

dealings with the property of the deceased would be subject to

the outcome of the suit. Resultantly, the plaintiffs are not

entitled to interim relief at this stage.

28. Hence, the following order;

:Order:

      (i)    The application stands rejected.


      (ii)   Costs in cause.



                                            [N. J. JAMADAR, J.]