Ratnakar Gajanan Dolas vs Vijaykumar Dattatraya Rawoot
2023 Latest Caselaw 1794 Bom

                                                     Ratnakar G Dolas v Vijaykumar D Rawoot
                                                                906-osappl-40312-2022-J.doc




                   Ashwini




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION
                                    APPEAL (L) NO. 40312 OF 2022
                                                    IN
                               GUARDIANSHIP PETITION NO. 8 OF 2021
                        (MISCELLANEOUS TESTAMENTARY PETITION NO.111 OF 2021)



                         Ratnakar Gajanan Dolas,
                         Age:77 Years, Occupation: Retired,
                         Hindu, Indian Inhabitant of Thane,
                         residing at Flat No.202, Guru Angan,
                         Katrak Road, Badlapur (East),
                         Thane 421 503.                                  ...Appellant

                             ~ versus ~

                         Vijaykumar Dattatraya
ASHWINI
                         Rawoot,
HULGOJI
GAJAKOSH                 Age:51 Years, Occupation: Service,
Digitally signed
                         Hindu, Indian Inhabitant of Dombivli,
                         residing at 203, 2nd floor, Building
by ASHWINI
HULGOJI
GAJAKOSH


                         No.1, Subhash Road, Opp Sankeshwar
Date: 2023.02.23
10:50:16 +0530



                         Palm, Dombivali (West) 421 202,
                         husband of late Alka Vijaykumar
                         Rawoot.                                      ...Respondent


                   A PPEARANCES
                   for the appellant              Mr Ramesh Ramamurthy, with
                                                       Saikumar Ramamurthy, Kavita
                                                       Anchan, Seema Sorte &
                                                       Akhilesh Deshmukh.



                                                 Page 1 of 9
                                             22nd February 2023
                                       Ratnakar G Dolas v Vijaykumar D Rawoot
                                                 906-osappl-40312-2022-J.doc




for respondent no.                 Mr Prashant Pandey, with Ashok
                                        Dhanuka, A Memon, Dinesh
                                        Jadhwani & Ashish Jain,i/b
                                        W3Legal LLP.



                                   CORAM : G.S.Patel &
                                           Neela Gokhale, JJ.

DATED : 22nd February 2023

ORAL JUDGMENT (Per GS Patel J):-

1. The Appeal is without substance. It is directed against an order dated 9th December 2022. The learned Single Judge dismissed what came before him as a Guardianship Petition. This was accompanied by number of Interim Applications.

2. Mr Ramamurthy for the Appellant states that he never intended to file a Guardianship Petition but was driven to this. Those circumstances are not relevant for our purposes.

3. The dispute is between one Vijaykumar Rawoot ("Vijaykumar") and his father-in-law Ratnakar Gajanan Dolas ("Ratnakar"). Vijaykumar's wife, Alka died intestate on 24th April 2021. She fell victim to Covid. She was an employee of this Court and worked last as an Assistant Section Officer in the Decree Department on our Appellate Side. Paragraph 15 of the Appeal from pages 7 to 9 lists her estate. At least one item, Sr. No. 1, is her half share in an immovable property. The remaining one half is said to belong to her husband, Vijaykumar. The total of the estate including

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

the immovable property is roughly Rs.1.57 crores. The immovable property itself is valued at Rs.20 lakhs. The movables include amounts in National Saving Certificates but there are also significant amounts due under Covid-19 insurance and an ex-gratia, subject to approval by the Government for Covid-19. These are in the amount of Rs.50 lakhs each. Presumably they are yet to be realised. At present, they are only shown as entitlements.

4. The matter arises because Vijaykumar and Alka had a son Varad. He is 14 years old today and for reasons that are not immediately material to us, he seems to be with the Appellant, his maternal grandfather, Ratnakar. About this, his father has many complaints to make including that he has been denied custody and access for a long period of time, driving the father to make various applications in various Courts. Those are not matters before us and we can make no order in that regard. There are independent proceedings, and they will have to be contested on merits.

5. The learned Single Judge saw the Petition before him as being a claim by the maternal grandfather Ratnakar for appointment as a guardian of the minor, Varad. After a careful and elaborate examination of the factual conspectus including how the originally Testamentary Petition came to be converted into a Guardianship Petition, and an appreciation of the applicable Rules and Forms, the learned Single Judge turned his attention to Section 13 of the Hindu Minority and Guardianship Act 1956 read with Section 7 of the Guardians and Wards Act 1890. One of the contentions of course taken was that Vijaykumar being the father and natural guardian and

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

being alive, there would be no question in his lifetime of appointing anyone else as a guardian so long as Vijaykumar was not declared unfit whether for medical reasons or otherwise.

6. The learned Single Judge's findings begin from paragraph 25 at page 41. The learned Single Judge first dealt with the question of jurisdiction and then proceeded to the merits of the matter. Paragraph 26 tells us that the attention of the Court was focused, and rightly so, on the welfare of the minor. The learned Single Judge considered Section 4 and Section 6 of the Hindu Minority and Guardianship Act. He then considered Section 13 of that Act along with Section 7 of the Guardians and Wards Act. Some allegations were sought to be made by Ratnakar that Vijaykumar, the minor's father, was abusive. This occupied the learned Single Judge's attention from paragraph 29 onwards. The learned Single Judge found that there was insufficient material to substantiate the contention canvassed by Ratnakar before the Court. In paragraph 32 the learned Single Judge said he had refused to go into the allegations and counter allegations about the treatment alleged to have been meted out to the minor by his own father.

7. A reference was also made to an earlier order of a Division Bench on 19th January 2022 in another Appeal. Then in paragraph 35 the learned Single Judge held, again in our view correctly, that the question of custody was beyond the scope of the present Petition. It is argued before us on behalf of Vijaykumar that in a Guardianship Petition filed by the maternal grandfather the Court was bound to go into question of custody. There are many problems

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

with this submission. First of all, we do not see how a Respondent can seek a substantive right in an appeal filed by the other side. Vijaykumar himself has filed no appeal against this order or against this particular finding. He cannot assail it in Ratnakar's Appeal. We are, therefore, of the view that if Vijaykumar has a case to be made on custody, he is to make that independently and elsewhere. This is precisely what the learned Single Judge said when opining that Vijaykumar would be entitled to file and pursue appropriate proceedings for custody of the minor. Vijaykumar is also wrong in saying that in holding so the learned Single Judge failed to take into account the Division Bench order of 19th January 2022. On the contrary, paragraph 35 shows us clearly that the learned Single Judge made specific reference to the 19th January 2022 order noting that the Division Bench had said it was not going into the merits of the question regarding custody of the minor child.

8. Consequently, the learned Single Judge dismissed the Guardianship Petition.

9. Having heard Mr Ramamurthy for the Appellant, the maternal grandfather of the minor, Ratnakar, we are not persuaded that there is any merit in the Appeal. At the same time, we are more than somewhat concerned about the welfare of the minor and the protection of his interest. In particular, we are concerned about safeguarding, sequestering and protecting the minor's 50% share in his mother's estate. There is no dispute that Alka died intestate. Her heirs are only two, Vijaykumar, her husband, the widower, and their minor son, Varad. Vijaykumar's remonstrations that he will look

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

after the estate and care for the minor etc are not, given this contentious litigation history, sufficiently convincing. The Court is always in loco parentis. Its primary concern is the welfare of the minor. Nobody has proposed that estate be handed over to Ratnakar, the maternal grandfather. He has not even sought that. We most emphatically do not countenance of Alka's sister, Reshma, said also to be an employee of this Court, accessing these funds that are in, or liable to be included in, Alka's estate. Reshma has no role to play here. She too is apparently an employee of this Court. We note that she attempted to attend the hearing online, since our hybrid option is always available without prior permission. But her conduct online did not conform to our simple rules of keeping the video off unless actually appearing. Being an employee of this Court does not give Reshma any special privileges. If anything, it imposes on her additional responsibilities.

10. It is open to Vijaykumar to proceed with any testamentary action for representation to the estate provided that Varad is shown as the other heir of Alka's estate. We are not concerned about Varad's 50% share in immovable property. This will actually be a 25% share in the immovable property because Varad is entitled to half of Alka's one-half share in that property. That share cannot be alienated, being a minor's share in immovable property, without leave of the Court.

11. What is of concern is the movable property. This is by its nature malleable and fungible. It is difficult to control or supervise its dissipation and use. Until Varad attains majority, we do not want

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

his funds intermingled with the funds of either the father or the grandfather. Our concern is that until he attains majority, Varad's share in his mother's estate must be fully preserved. While Vijaykumar says he undertakes to safeguard his son's share, we have no means to ensure that. We do not want to put Varad's future and his entitlement to risk, nor subject him from early adulthood to protracted litigation. In all this, Varad is not just our primary, but our only concern.

12. The question may not directly arise in this proceeding and to that extent, learned Advocate for the Respondent is correct. But we believe that it would be within our inherent jurisdiction even in the Appeal to make an order in the interests of the minor.

13. The intra Court Appeal arises under the Letters Patent. There is sufficient authority within the Letters Patent to confer not only testamentary and intestate jurisdiction on this Court but inherent jurisdiction in regard to minors.

14. Mr Ramamurthy tells us that one of the Interim Applications was for deposit of the minor's 50% share in Court. That was taken as an Interim Application in the Guardianship Petition. With the dismissal of the Guardianship Petition by the learned Single Judge that Interim Application also came to be dismissed.

15. We do not think that the dismissal was in itself incorrect. It could not have been made in the Guardianship Petition because the Guardianship Petition itself was misconceived and was rightly

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

dismissed. We also do not say that the learned Single Judge was in error in not making provision for the minor. We are merely temporarily exercising our authority to safeguard that 50% interest until further orders of the Court in an appropriately brought proceeding. This protection of Varad's share in his deceased mother's estate puts the parties in a neutral position. It does not prejudice anyone. It causes Vijaykumar no prejudice, given that he himself is willing to sequester Varad's one-half share in Alka's estate. It is only a matter of ensuring how that sequestration is most optimally achieved.

16. Item 11 at page 8 of the tabulation is gold and jewellery of about Rs.6,13,225.00. It is said to be streedhan. We exclude that item and allow Vijaykumar to dispose it of. Since he is insistent on giving us undertakings, we accept his undertaking that 50% of the realisation will be kept aside for his son, Varad.

17. Consequently, while we dismiss the Appeal, we direct that 50% of the movable estate of the deceased Alka Vijaykumar Rawoot, and which is the share of her minor son, Varad will be held in this Court and will be invested appropriately. It will be subject to further orders of the Court in an appropriate proceeding. This will continue until there is an order of a Court or until Varad attains the age of 18, whichever is earlier. On attaining majority, it is open to Varad to make an independent application for the release of the funds in his name.

22nd February 2023 Ratnakar G Dolas v Vijaykumar D Rawoot 906-osappl-40312-2022-J.doc

18. With these observations and directions, the Appeal is dismissed. There will be no order as to costs.

19. None of the observations in this order will come in the way of any applications for custody or succession. All such proceedings will be decided on their own merits.

(Neela Gokhale, J)                                     (G. S. Patel, J)





                          22nd February 2023