Nani Byram Javeri vs Jehangir A. Wadia And 7 Ors
2022 Latest Caselaw 1650 Bom

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

                       ORIGINATING SUMMONS NO.14 OF 2019

Nani Byram Javeri                                  ]      .. Plaintiff
         Vs.
1. Jehangir A.C. Wadia                             ]
2. Pesi A.C. Wadia (Since Deceased)                ]
   Through LR.:                                ]
   2[A]. Laila Wadia                           ]
3. Marina N. Jhaveri                           ]
4. Rhoda M. Patel                              ]
5. Shirin Dastur                               ]
6. Shirin Nani Javeri                          ]
7. Firdaus Khambata                            ]
8. The Charity Commissioner, Mumbai            ]    .. Defendants
                              ALONG WITH
                  INTERIM APPLICATION NO.1763 OF 2020

Jehangir A.C. Wadia                                ]      .. Applicant


Dr. Virendra Tulzapurkar, Sr. Advocate, with Mr. Kunal Dwarkadas,
Mr. Ranjit Shetty, Ms. Priyanka Shetty and Mr. Arjun Amin, i/by Argus
Partners, for the Plaintiff.
Mr. Dinyar Madon, Sr. Advocate, with Mr. Chaitanya Chavan, Mr. Levi
Rubens, Ms. Rashmi Salian and Ms. Krishna Patel, i/by L.R. & Associates, for
Defendant No.1.
Mr. Nikhil Sakhardande, Sr. Advocate, with Mr. Prahlad Paranjape,
Ms. Shubhra Swami and Ms. Druti Datar, for Defendant Nos.2 to 5.
Ms. Ankita Singhania, with Ms. Krusha Maheshwari, i/by ANB Legal, for
Defendant Nos.6 and 7.
Mr. Kedar Dighe, AGP, for Defendant No.8.




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ORGS-14-2019-Order dt. 17-2-2022.doc
Dixit
                                        CORAM               : A. K. MENON, J.
                                       RESERVED ON         : 2ND DECEMBER, 2021.
                                       PRONOUNCED ON : 17TH FEBRUARY 2022.

JUDGMENT :

1. By this Originating Summons, under Rule 238 of the Bombay High

Court (Original Side) Rules, 1980, the plaintiff seeks determination of the

following questions :-

(a) Whether the securities/monies held in Trust for Mary Wadia under Clause 16 of Amba Wadia's Will devolved absolutely on to Rutty Wadia, upon Mary Wadia's demise ?

(b) Whether the securities/monies held in Trust for Mary Wadia under Clause 16 of Amba Wadia's Will formed part of the estate of Rutty Wadia and on the demise of Rutty Wadia to be distributed as per her probated Will ?

2. The plaintiff is said to be surviving executor of the last Will and

testament of one Rutty Cursetji Pestonji Wadia dated 25 th June 2002. The

plaintiff is also said to be a trustee of P.A. Hormarjee Charites along with

defendant nos.6 and 7. Defendant nos.1 to 5 are the persons who may get a

share in the estate of one Amba Wadia - mother of Rutty Wadia. Defendant

no.6 is the wife of the plaintiff and also sued in her capacity as trustee of the

P.A. Hormarjee Charites ("the Trust"). Defendant no.7 is also a trustee.

Defendant no.8 is the Charity Commissioner impleaded as a formal party.

3. What the plaint essentially seeks is interpretation of Clause 16 of the

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit Will dated 25th February 1943 made by Amba Wadia. That Will was

supplemented by Codicil dated 13 th August 1944. Amba's Will was probated

on 22nd October 1946. Rutty's Will dated 25 th June 2002 was probated on 4 th

July 2018. According to the plaintiff, clause 16 of Amba's Will is required to

be interpreted while dealing with the questions raised in this Originating

Summons.

4. THE PARTIES :

(a) Late Amba Wadia had four children viz. (i) Ardeshir

Cursetji Wadia, (ii) Mary Wadia, (iii) Rutty Wadia and,

(iv) Chandan Mistry. Of these children, Mary and Rutty

were unmarried and died without leaving any issues.

(b) Ardeshir Wadia had five children, namely, defendant

nos.1 to 5 viz. (i) Jehangir, (ii) Pesi, (iii) Marina, (iv)

Rhoda and, (v) Shirin.

(c) Chandan Mistry had two children viz. (i) Rusi Ratanji

Mistry and (ii) Shirin Nani Javeri (Defendant No.6). It is

not in dispute that Rusi Mistry was not a beneficiary

under Amba's Will. Russy is therefore not a party. Shirin

Zaveri is a beneficiary under the Will.

(d) Amba Wadia, upon her demise on 2nd February 1946,

was survived by her husband Cursetji Pestonji Wadia

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit and four children named above. All heirs of Amba

Wadia, namely, her husband - Cursetji and four

children, have since expired.

SUBMISSIONS OF COUNSEL

5. Dr. Tulzapurkar, learned Senior Advocate appearing on behalf of the

plaintiff, has taken me through the provisions of the Will of Amba Wadia; in

particular clause 16. He submits that on a fair reading of clause 16, upon the

demise of Mary, the correct interpretation of clause 16 will result in all

monies and securities vesting absolutely in Rutty, which properties would

have to be administered according to Rutty's Will. Mary, it was submitted, had

executed a Will dated 25 th June 2002. She expired on 11 th November 2002

without having any children or "remoter issue".

6. My attention has been drawn to the relevant clauses of the Will of

Mary being clauses 5 and 6, which provide that after payment of her funeral

expenses and all debts, she had bequeathed rest of the property to her sister

Rutty. Furthermore, the rest of the Will was intended to come into effect only

in the event of Rutty predeceasing Mary. As a matter of fact, Mary died before

Rutty. According to Dr. Tulzapurkar, since Mary had no children or remoter

issue, Rutty was constituted as sole beneficiary for the entire estate of Mary by

virtue of clause 5 of Mary's Will, which came to be probated on 27 th June

2018. Rutty expired on 21st December 2002, unmarried; thus, without

children and without any remoter issue.

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit

7. My attention was invited to clauses 5, 6 and 7(e) of Rutty's Will, which

provides that after paying of all debts, her property would be bequeathed to

her sister Mary. Just as in Mary's Will, Rutty's Will also provides that the rest

of the Will would come into effect only if her sister Mary predeceased her.

Vide clause 7(e), Rutty's Will provided that residue of all properties stand

bequeathed to Rutty's niece - defendant no.6-the said Shirin and in the event

of Shirin predecease Rutty, to her child and to the trustees of the Trust.

According to Dr. Tulzapurkar, upon Mary having predeceased Rutty, clause

7(e) would come into operation and as such, Rutty's residual estate would

stand bequeathed to defendant no.6-Shirin and to the said trustees.

8. Dr. Tulzapurkar submitted that the plaintiff, as an executor of the Wills

of Mary and Rutty, had filed petitions for probate along with the co-executor,

after which defendant no.1-Jehangir, son of Ardeshir, filed Caveats objecting

to grant of probate to the Mary's Will and Rutty's Will. Later, the Caveats

came to be withdrawn upon parties arriving at a mutually acceptable

arrangement. Defendant no.1-Jehangir also filed an affidavit unconditionally

withdrawing the Caveat. Original defendant no.2-Pesi also withdrew the

Caveat. Pesi expired on 7 th August 2020, as a result of which defendant

no.2(A), a resident of Italy, has now been joined in this Originating Summons.

A suit came to be filed in this court being Suit No.879 of 2008 relating to

immovable property called "The Mount". While the suit was later settled out

of court, the plaintiff has filed an affidavit dated 1 st April 2008 in Notice of

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit Motion No.1081 of 2008 in the said suit. In that affidavit, it is stated that as

per the legal advice received, because Mary predeceased Rutty, the sums

payable to Mary's share devolve upon Rutty and after her lifetime, upon sons

and daughters of Ardeshir Wadia. According to Dr. Tulzapurkar, this was

stated on affidavit on the basis of an understanding and legal advice received

by the plaintiff at the material time. Defendant no.6 was also one of the

executors of late Mary's Will. She has filed an affidavit in the same Notice of

Motion. She also claims that this affidavit was based on her understanding

and legal advice then given to her.

9. As a result of settlement, Suit No.879 of 2008, along with the Notice of

Motion No.1081 of 2008, came to be withdrawn by defendant no.1. Dr.

Tulzapurkar then submitted that the plaintiff had, meanwhile, engaged

services of M/s. Warmond Trustees and Executors Pvt. Ltd. to seek assistance

in distribution of assets under the Wills of Mary and Rutty. The said

Warmond Trustees apparently advised the plaintiff that the statements made

in the affidavit of the plaintiff in the notice of motion on interpretation of

clause 16 of the Amba's Will appear to be incorrect and that upon proper

interpretation of clause 16, the properties would devolve upon Rutty

absolutely since Rutty was alive at the time of demise of Mary. According to

the advice received by the plaintiff, the properties would devolve in

accordance with the Rutty's Will, which in clause 7(e) had bequeathed her

estate in two equal proportions to defendant no.6-Shirin and the trustees of

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit the Trust. Dr. Tulzapurkar contends that the plaintiff had, on the basis of this

fresh advice, sought opinions from law firms. On interpretation of clause 16,

the plaintiff now finds that there is a conflict in the plaintiff's understanding

and that of Warmond Trustees. The plaintiff claims to have been advised that

his earlier view that Mary's share would devolve on defendant nos.1 to 5 was

incorrect and that the estate would devolve on Rutty absolutely. In view of

this, the plaintiff seeks an interpretation from this court on the meaning and

effect of clause 16 of Amba's Will. The plaintiff is interested in this since apart

from his being a trustee of the Trust, the defendant no.6 - his wife would also

be a beneficiary. Such interpretation could also affect defendant nos.1 to 7

and hence Dr. Tulzapurkar submits that upon legal advice, the plaintiff

believes that defendant no.6-Shirin and the trustees would have to be held to

be the beneficiaries. He therefore submits that clause 16 will enure for the

benefit of Rutty, to be distributed in accordance with her Will, which has been

duly probated.

10. Dr. Tulzapurkar has canvassed the plaintiff's interpretation of the

provisions of the Will and in support, he has relied upon the decision in

Sudesh Kumar Vs. Moolchand1. He has also invited my attention to the order

dated 4th September 2017 passed in Suit No.1932 of 2008, whereby Consent

Minutes of Order dated 11 th August 2017 was made an order of the court and

the suit has been disposed in terms of the consent minutes. My attention is

also invited to the Deed of Conveyance dated 4 th September 2017 between the

1 AIR 1969 Rajasthan 22

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit plaintiff and co-executor Firoze Hormusji Bamboat and one Yezdi Bhagwagar

as trustees and some other defendants, namely, Pesi, Russi and Shirin and one

Sanjay Infraspace Pvt. Ltd. disposing the suit.

11. Mr. Madon appearing on behalf of defendant no.1 opposed the

application. He submits that the application is frivolous and without any

merit. He has relied upon the written statement filed on behalf of defendant

no.1 dated 6th August 2019, in which the defendant no.1 has denied all

contentions in the plaint. Mr. Madon submits that the plaintiff has not only

come to court with unclean hands, but with dishonest intention inasmuch as

he has consistently refused to divulge details of Mary's share set apart by

operation of clause 16 of Amba's Will dated 25 th February 1943. The 1st

defendant is claiming to be one of the sole beneficiaries of clause 16. Mr.

Madon submits that he is entitled to all information about the estate and share

of about Rs.2 lakhs involved. He submits that the plaintiff has rejected several

demands made by defendant no.1 to disclose the information. He relies upon

his Advocate's letters regarding the share from the plaintiff dated 11 th June

2019, 20th June 2019 and 15th July 2019 and demanding information, but the

plaintiff has vide replies dated 1st July 2019 and 18th July 2019 declined to

provide information claiming it to be irrelevant for the purposes of the

present suit.

12. Mr. Madon submitted that the present originating summons is not

maintainable; firstly, because the plaintiff has not filed proceedings as an

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit executor or an administrator of the estate of deceased Amba, nor as a trustee

appointed under the Will of Amba or as a person claiming to be interested in

the originating summons as creditor or legatee or beneficiary of the estate of

the deceased or of the Trust created by Amba Wadia. According to Mr.

Madon, the plaintiff has no locus to file the present proceedings. He has

submitted that the true facts, which have not been set out, are as under.

13. According to Mr. Madon, defendant nos.1 to 6 are descendants of

Amba, who was married to Cursetji. Amba had created a certain Trust and

appointed trustees, but the plaintiff has refused to divulge the names of the

present trustees allegedly for want of knowledge. Mr. Madon states that the

defendants deny that the plaintiff is a trustee. He has also taken me through

the contents of clause 16 and submits that the testatrix Amba intended to

create a Trust in a sum of Rs.2 lakhs in favour of Mary and has set apart the

amount or securities for an approximate market value of Rs.2 lakhs out of her

estate during the lifetime of testatrix's husband - Cursetji. The income from

this Trust fund was to be divided equally between Mary and Rutty. After

Cursetji died, Mary would be entitled to the income and after her death, the

funds were to be held in trust by Amba's trustees or Mary's children or

remoter issue. In the event Mary left behind no children or issue or remoter

issue, the funds would be held for Rutty for her lifetime and after her demise,

for her children or remoter issue, if any. Since Rutty had expired without

issues, the funds were held in trust for children of Ardeshir i.e. the present

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit defendant no.1s' father. Defendant no.3 had apparently no right to the funds

since there was a specific prohibition in Amba's Codicil dated 13 th August

1944. Hence, other heirs of Ardeshir, to the exclusion of defendant no.3-

Marina, were entitled to the Trust funds. Cursetji expired in 1950. Ardeshir

expired in 1984, leaving behind defendant no.2-Pesi and three daughters viz.

defendant nos.3 to 5 and Jehangir-defendant no.1. Amba's daughter Chandan

Mistry expired in 1999, leaving behind Shirin-defendant no.6 and Russi

Mistry, who, as stated earlier, has not included. Mary expired on 11 th

November 2002, unmarried and without issues, but left behind her Will

dated 25th June 2002. Rutty died on 21 st December 2002, unmarried and

without issues, but left behind Will of 25 th June 2002.

14. According to Mr. Madon, the plaintiff is now seeking to resile from the

earlier admission, which has been acted upon, and is now seeking to draw

additional gains by filing the present suit and misinterpreting clause 16. He

submits that the interpretation is incorrect and based on conjectures and

surmises. According to Mr. Madon, merely because the plaintiff has now

sought and obtained a different opinion, the court need not entertain the

present Originating Summons. There is no cause of action that the plaintiff

has disclosed to file the present proceedings. The Trust was for the benefit of

Mary and her children. The property known as "The Mount" was bequeathed

to Rutty. Clause 16 was clear, inasmuch as if Rutty and Mary died without

leaving behind children or remoter issue, the trustees would held the funds

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit for the benefit of sons and daughters of Ardeshir, by which the son(s) would

get double the share of each daughter. This interpretation has been accepted

by the plaintiff and defendant no.6-Shirin in several legal proceedings and

under legal advice. He submitted that even Rutty's Will makes it clear that she

did not treat the funds as being specifically bequeathed to her. It was always

considered as Trust property, to be divided between the children of Ardeshir.

Mary's Will would also make it clear that the funds were not intended to be

dealt with in the manner that the plaintiff now seeks to interpret. Mary and

Rutty were to receive income during their lifetime and nothing beyond. Thus,

it is evident from the Wills of Mary and Rutty that they never considered the

Trust to be their personal property. Mary and Rutty could have passed on

benefit to their own children or remoter issue; however this did not arise

since neither of them had or left behind children or remoter issue. Therefore,

Rutty had no right to deal with the funds under clause 16 in Amba's Will in

the absence of children or remoter issue and it would therefore devolve on the

children of Ardeshir.

15. Mr. Madon submitted that this amounts to approbation and

reprobation after having benefited from an earlier interpretation and that is

impermissible. He submitted that after 16 years since the earlier proceedings

were settled and the parties had agreed to act accordingly, now the plaintiff

seeks to resile from that position for the benefit of his wife - defendant no.6.

According to Mr. Madon, quite apart from merits, the suit is also barred by

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit the law of limitation. The Will existed to the knowledge of the plaintiff since

2003 and hence the suit filed in the year 2019 is barred. Mr. Madon further

submitted that the judgment of the Rajasthan High Court in Sudesh Kumar

(Supra) is of no relevance, because the plaintiff in that case is a beneficiary.

Furthermore, on a more basic aspect, Mr. Madon submitted that this court

would have interpreted clause 16 only if this was a final proceeding but it is

not.

16. Mr. Madon has also invited my attention to Exhibit-F in the present

plaint, which is a copy of Testamentary Suit No.48 of 2003 in Testamentary

Petition No.380 of 2003, and submitted that the plaintiff-Nani herein was the

2nd petitioner in that testamentary petition. In paragraph 8 of that petition, the

petitioners had relied upon Schedule-III, to be the property held by the

deceased as trustee for another not as a beneficiary or with general power to

confer a beneficial interest. With reference to the schedule of assets annexed

to the plaint herein, Mr. Madon invited my attention to the fact that it makes

no reference to mother's Trust, as otherwise the plaintiff could have moved

for a decree on admission. The Caveats were filed and withdrawn.

17. Mr. Madon invited the court to adopt Armchair Rule that on Mary's

death, it was the life interest for Rutty and if Rutty did not leave behind

children or remoter issues, the estate of late Amba Wadia would devolve on

others. The plaintiff's interpretation now expects the court to add words to the

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit Will since the clause does not say that Rutty should have predeceased Mary.

Mr. Madon submitted that accepting the plaintiff's interpretation would mean

that the court is required to add words. Mr. Madon further submitted that the

plaintiff is now estopped since there is no challenge to the prior proceeding.

The plaintiff had no challenge to the prior proceedings when out of court

settlement was arrived at and all parties were then ad idem till the plaintiff

now demonstrated greed. Mr. Madon therefore submitted that words cannot

now be added to the Will and whenever the testatrix wished to use the word

"predeceased", she did and the Will does not say that Rutty should have

predeceased Mary. It is therefore submitted that the Originating Summons be

rejected and the plaintiff is required to file a suit. Mr. Madon has also relied

upon the decisions of the Supreme Court in Chaudhari Narpat Singh and Ors.

Vs. Rani Chandra Kunwar, along with connected matter 2, and Nagubai

Ammal & Ors. Vs. B. Shama Rao & Ors.3 on the aspect of "onus probandi".

18. Defendant nos.2 to 5 represented by Mr. Sakhardande support

defendant no.1's submissions. He therefore adopted the submissions of Mr.

Madon to the extent relevant in respect of defendant nos.2 to 5. That leaves

defendant no.6-wife of the plaintiff and defendant no.7-trustee of Hormarjee

Charites Trust, who were represented by Ms. Singhania. Ms. Singhania

supported the submissions of the plaintiff. She submitted that defendant nos.6

and 7 have filed independent written statements setting out factual aspects of

2 1906 SCC OnLine PC 26 3 1956 SCR 451

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit execution of Wills of Mary and Rutty and the probates granted. Defendant

no.6 has supported the plaintiff and has sought a decision on the originating

summons interpreting clause 16 of the Will of Amba. Not surprisingly, save

and except for paragraph 2 of the written statement of defendant no.7, is a

reproduction of defendant no.6's written statement.

19. Ms. Singhania has relied upon a decision of the Full Bench of this court

in the case of Gadigeppa Bhimappa Meti Vs. Balangowda Bhimangowda 4 in

support of her contention that no person can, by application of law of

estoppel or by any rule of procedure, acquire or have assigned to him a status

or legal capacity which the substantive law denies to him. She relied upon the

observations of the court [Per Beaumont, C.J.] that it makes no difference

whether the misrepresentation on which the estoppel is sought to be founded

is made fraudulently or innocently. Under Indian Law, the problem is

different from that under English Law. The court was dealing with the aspect

of minority and the capacity to contract and reconcile under Section 11 of the

Indian Contract Act and how under Indian Law of Contract, contract by a

minor is void, whereas under English Law, it is voidable. She has also relied

upon the observations of this court [Per Lodha, J.] in Sudesh Kumar (Supra).

20. Defendant nos.2 to 4 have caused a written statement dated 1 st August

2019 to be filed, in which they have denied the contentions in the plaint and

4 1931 The Bombay Law Reporter [Vol.XXXIIL] 1313

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit reiterated that there is no ambiguity in construing clause 16 of Amba Wadia's

Will inasmuch as upon demise of Mary and Rutty, without leaving children

or remoter issues, the Trust property would devolve upon the children of

Ardeshir. Reference is made to the petitioners' averments in Testamentary

Petition Nos.379 of 2003 and 380 of 2003, in which the plaintiff admitted

that Mary owned personal property only to the extent of Rs.95.46 lakhs and

declared the remaining properties of the deceased to be Trust properties.

Relying on the admission on behalf of the plaintiff, it is contended there is no

case made out for this court to reconsider the effect of probate granted to the

Wills of Mary and Rutty. There is no manner of doubt that the property held

in Trust must go to defendant nos.1 to 5 and that is an aspect which is final

and binding. The interest of defendant no.6, who is the wife of the plaintiff,

was noticed by the court and she also have full knowledge of the admission of

the plaintiff. Having secured probate and all the advantages in favour of

defendant no.6, the plaintiff is acting in a self-serving manner to secure

further benefits for his wife. Plaintiff is taking advantage of the demise of a

co-executor Feroze Bamboat. This contention in the plaint is therefore denied.

Defendant no.5 has also filed a written statement reiterating that there is no

ambiguity in construing clause 16. In fact, the contents of the written

statement of defendant no.5 appear almost identical to that of defendant nos.2

to 4.

21. Defendant no.6 has expectedly supported the plaintiff and seeks

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit interpretation of clause 16. Defendant no.7 likewise, an existing trustee, also

supports the case of the plaintiff. Both the defendant nos.6 and 7 seek leave to

file additional written statement. I may mention that the matter has since been

argued at length, no such leave was sought and I had no occasion to consider

anything beyond the submissions at the bar and contemplated in the

pleadings.

22. In the case of Gadigeppa B. Meti (Supra), the Full Bench of this court

has held that rule of estoppel cannot preclude the court itself from taking

cognizance of the true facts inasmuch as if the court is convinced that an

interpretation was incorrect or required to be reconsidered, it cannot be

prevented from doing so by operation of the principle of estoppel. Ms.

Singhania has laid emphasis on this aspect by also contending that this view

finds reiteration in the judgment of Sudesh Kumar (Supra).

23. Mr. Madon has however countered this contention by stating that this

judgment will not be of any assistance since the parties had acted upon the

earlier understanding and after due deliberation and during pendency of the

litigation and once having arrived at a decision and having obtained orders of

the court and acted upon, including by the sale of the property known as "The

Mount", and appropriation of large sum of money by defendant no.6, this is

purely an afterthought. I am inclined to agree. In my view, it is necessary to

consider at the outset whether interference called for by entertaining this

originating summons.

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit CONCLUSION

24. In the course of submission, it is revealed that in February, 2008, the

defendant no.1 had filed Suit No.879 of 2008 inter alia pleading that under

clause 16, a sum of Rs.2 lakhs was invested for the benefit of daughters of

Amba, namely, Mary, Rutty and their children, if any. Defendant no.1 filed a

Notice of Motion, to which I have already made reference above. The plaintiff

was impleaded as trustee and reiterated the stand of defendant no.6-his wife.

In February 2016, defendant nos.3 and 5 filed yet another suit being

Administration Suit No.290 of 2016 against defendant no.1 and others

claiming as daughters of Ardeshir, to be entitled to have 1/7 th of the fund. In

that suit, defendant no.6, the wife of the plaintiff herein, had filed an affidavit

stating that she and Russi had no interest in the Trust fund of Rs.2 lakhs

invested per clause 16 of the Will and that the same would devolve upon

eligible children of Ardeshir. Even plaintiff is said to have filed a joint affidavit

with co-trustees dated 30 th April 2016, agreeing and acknowledging that the

share in the fund would be divided by clause 16 and would be divided

amongst the eligible children of Ardeshir. It is on this basis that defendant

no.1 filed an affidavit dated 1st September 2017 and withdrew Caveat filed by

him in both probate petitions and in respect of Wills of Mary and Rutty.

Defendant no.1 reiterated his rights to the Trust fund and withdrawal of the

Caveat was conditional upon reiteration of his claim to the Trust fund. The

plaintiff had benefited from his interpretation of the Will and in particular

clause 16 and after having accepted the said interpretation, now seeks to

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit interpret it differently to gain arid to the detriment of the defendants

concerned.

25. Perusal of the plaint in Suit No.879 of 2008 reveals that it was filed by

defendant no.1-Jehangir against trustees of Amba's Will, including plaintiff

and defendant no.6 as also the other beneficiaries. The plaintiff in the said suit

is defendant no.1 in the present suit. The prayers in the said suit inter alia

sought (i) to remove defendant nos.1 to 3 from trusteeship, including the

Trust constituted under clauses 10 and 16 of the Will of late Amba, and to

appoint a fit and proper person/s to act as trustees with a consequent

direction to defendant nos.1 to 3, which includes the present plaintiff-Nani

Javeri; (ii) to handover trust papers and other related documents to the new

trustees and for necessary consequential orders for vesting of assets in new

Trust.

26. In paragraph 4 of the plaint in Suit No.879 of 2008, plaintiff-Jehangir

(defendant no.1 in the present Originating Summons) had contended that the

sum of Rs.2 lakhs has vested absolutely within the plaintiff and defendant

nos.6, 8 and 9 being the children of Ardeshir (Pesi Wadia, Rhoda Patel and

Shirin Dastur). The plaintiff's letter dated 3 rd April 2003, which was annexed

to the plaint in Suit No.879 of 2008, was also relied upon. In the letter dated

8th April 2003, which the defendant no.2-Nani addressed to the plaintiff-

Jehangir, the plaintiff admits that late Amba Wadia had set aside Rs.2 lakhs in

Trust for Mary and upon Mary's death, the Trust fund was to be divided

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit amongst sons and daughters of Ardeshir - the son of Amba, namely,

defendant no.1-Jehangir and his brothers and sisters, absolutely. He

disclaimed trusteeship and stated that he is not aware of the surviving

trustees. He was a surviving trustee only in respect of the Trust created under

clause 10 of the Will of Amba, namely, the Trust created in respect of the

bungalow "The Mount". Hence, he claimed he could not furnish any details of

the corpus of the Trust fund under clause 16.

27. Furthermore, in Originating Summons No.171 of 2009, later

numbered as Suit No.1932 of 2008, filed by the present defendant no.1-

Jehangir, the prayers included the question for determination raised by the

defendant no.1 herein (plaintiff in the Originating Summons No.171 of

2009). Some of the questions raised were as follows :-

(a) Whether the "residue", as contemplated and dedicated to the "Settled Fund", by the deceased Amba Wadia under clause 19 of the said Will, is limited to the portion of the deceased Amba Wadia's estate (being the securities and investments expressly stipulated therein) remaining after disposing off / settling her other specified assets upon the other Trusts constituted under the clauses preceding clause 19, of the said Will ?

(b) Whether the Testator/Settlor (i.e. the deceased Amba Wadia) has directed/intended that the Trust constituted under clause 19 is to operate in perpetuity and upon the happening of an uncertain event like the failure of any Trust/s constituted under the preceding clauses (i.e. clauses preceding clause 19) of the said Will, the assets of such failed Trust/s are to be dedicated to the Settled Fund ?

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit

(c) Whether clause 19(c) of the said Will would prevail in the event of there being any inconsistency between 19(c) and the preceding clause 19(a) and/or 19(b) of the said Will ?

(d) Whether in view of the fact that the deceased Ms. Mary C.P.

Wadia and deceased Ms. Rutty C.P. Wadia have no children or remoter issue, the deceased Ms. Mary C.P. Wadia and deceased Ms. Rutty C.P. Wadia's shares (i.e. combined 2/3 rd share) in the Settled Fund, have as per clause 19(c) of the said Will, vested within the children of Ardeshir Cursetji Wadia (being the plaintiff and his eligible siblings) in the manner stated therein ?

28. All of these issues are seen to have been settled and the property known

as "The Mount" was transferred to them and defendant no.1 and others were

beneficiaries of the mother's Trust. The fact that the amount has been

appropriated by them has been admitted in paragraph 6.7 of the present

plaint, wherein the plaintiff-Nani admits that "The Mount" has since been

settled out of court. Not only that, according to Mr. Madon, the plaintiff and

defendant no.6 have even sold the property known as "The Mount" and

defendant no.6 had received a sum of Rs.67.5 crores, after having acted upon

the settlement. The plaintiff's attempt now is therefore after having taken the

benefit of the settlement. Interpretation of the Will having found acceptance

in the form of consent terms filed in Suit No.879 of 2008 would therefore

effectively binds the parties.

29. The plaintiff's interpretation now propounded is an attempt to

withdraw from the admissions made by the plaintiff and defendant no.6 in

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit the previous legal proceedings, the excuse being a different legal opinion that

they now find convenient. In an affidavit-in-support filed by defendant no.6

dated 30th April 2019 in Suit No.290 of 2016, defendant no.6 has admitted

the interpretation of clause 16 of the Amba's Will causing the Caveat to be

withdrawn and consequently leading to the grant of probate. Therefore, the

plaintiff and defendant no.6 have expressly consented to grant of probate and

in my view, this is irreversible.

30. In Sudesh Kumar (Supra), Dr. Tulzapurkar has placed reliance on

paragraph 6 of that judgment, in which the court had occasion to consider

the effect of a rent-note. The plaintiff has described the document as a rent-

note and has stated that there was a relationship of landlord and tenant

between the plaintiff and the defendant by virtue of reference to a rent-note.

The plaintiff could not resile from that position taken in the plaint and the

document must be considered to be a rent-note for the purposes of

considering stamp-duty. The court however has negated this contention.

While the plaint had described it as a rent-note, it is a matter of interpretation

of the document, which is purely a question of law and that there cannot be

estoppel in such matters. It is the contention of the learned Senior counsel that

the plaintiff is not estopped by virtue of the probate having been granted. Dr.

Tulzapurkar invited me to hold, as suggested in the illustration forming part

of paragraph 6 of Sudesh Kumar, that if a document is in fact a Will, but if it

has been wrongly described as a gift, it would not be correct to hold it to be a

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit gift merely on the ground of misdescription and the court will have to

consider it independent of admissions as to the correct nature of the

document. The plaintiff has therefore contended that it would not be

appropriate to go by the earlier view, but it is necessary to consider the

correct interpretation of clause 16 and there is no estoppel that operates

against such an exercise.

31. At the hearing of the originating summons, the court is required to

consider whether it is necessary to determine the questions raised without

administration of an estate of the Trust, but the court is not bound to

determine such a question if the court is of the opinion that it ought not to be

determined by the originating summons. The Judge is vested with discretion

to decide whether or not the subject matter of the Originating Summons can

be properly disposed. If the court finds that it cannot be properly disposed by

way of originating summons, the summons may be dismissed referring parties

to a suit in the alternative. One aspect that requires to be considered is

whether a period of limitation would apply in the instant case and if so,

whether the application is barred.

32. In Charu K. Mehta Vs. Lilavati Kirtilal Mehta Medical Trust & Ors. 5, a

Division Bench of this court held that Section 80 of the Bombay Public Trusts

Act, 1950 would apply and the originating summons would be barred by the

5 2013(1) Bom.C.R. 23

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit law of limitation. In the instant case, the parties have already adopted legal

proceedings as they were advised and have acted upon the same. The purpose

of issuing originating summons has also been dealt with in Charu K. Mehta

(Supra) and the emphasis is on the fact that the issues raised in the originating

summons can be determined without administration of the trust in the matter

of rights or interest of the person claiming to be a beneficiary or

ascertainment of any class of beneficiaries or in the matter of directing

executors to do or abstain from doing any particular act. The Division Bench

had occasion to consider Rules 238 to 260 of the Bombay High Court

(Original Side) Rules, 1980 and observed that the procedure envisaged under

the rules was intended to resolve questions of construction of deeds and

documents and it would not involve the complicated enquiries into disputed

questions of facts. This is an aspect, in my view, that has already been gone

into by the parties. Testamentary petitions were filed inviting Caveats to be

filed and post filing of Caveats, suits were registered and these suits have been

settled on the basis of understanding between the parties. The plaintiff now

seeks a second bite at cherry and belatedly as it is, as and by way of an

afterthought. Parties to the lis have, under legal advice, adopted proceedings,

settled those proceedings, appropriated properties and enjoyed the benefits

thereof.

33. Rule 238, read with Rule 245, entitles the plaintiff to apply by way of

originating summons. However, this application is also belated by reason of

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit the fact that the parties have already proceeded to institute proceedings

converted to adversarial ones to consensually dispose then having arrived at a

settlement, which, in my view, is not reversible. Once that is done, I am of the

view that no case is made out for interference or exercise of my jurisdiction.

Rule 246 clearly envisages the discretion vesting in this court and the court is

not bound to determine any questions raised in the originating summons.

34. Quite apart from being barred by the limitation, as aforesaid, the

various pleadings, to which Mr. Madon has made reference, clearly reveal the

fact that the plaintiff had adopted a course of action so did the other parties,

which now cannot be reversed. Having benefited from the same, I am of the

view that the plaintiff cannot seek a determination by way of this originating

summons. Merely because another view is possible, as sought to be suggested

by the plaintiff upon being advised by a different set of professionals, does not

entitle the plaintiff to reopen what is otherwise a binding conclusion, which

assumes the character of admissions on both sides. Rule 255 of the Bombay

High Court (Original Side) Rules, 1980 provides that if the Judge considers

that the matters in respect of which relief is sought cannot conveniently and

property be disposed of on an Originating Summons, he may refuse to pass

any order on the summons, may dismiss the same and refer the parties to a

suit in the ordinary course. The defendants have contended that this is a fit

case for rejection. I am in agreement.

ORGS-14-2019-Order dt. 17-2-2022.doc Dixit

35. In light of the view that I have taken, I am not required to answer the

questions, which should have been raised at the appropriate time prior to the

suits having been disposed and within a period of three years from the issue

being raised. The plaintiff would therefore be required to file a suit within the

period stipulated in law.

36. In the result, the Originating Summons does not call for any

interpretation and hence I pass the following order :-

                                   (i)       Originating Summons is dismissed.

                                   (ii)      No costs.

                                   (iii)     In view of dismissal of the Originating Summons,

Interim Application No.1763 of 2020 does not survive

and the same stands disposed as infructuous.

(A.K. MENON, J.)

Digitally signed

SNEHA ORGS-14-2019-Order dt. 17-2-2022.doc by SNEHA ABHAY DIXIT ABHAY Date:

Dixit 2022.02.17 DIXIT 16:52:37 +0530