[Cites 14, Cited by 0]
Bombay High Court
Ashwin Bharat Khater vs Urvashi Bharat Khater on 14 January, 2026
2026:BHC-OS:1021
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VISHAL IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUBHASH
PAREKAR TESTAMENTARY AND INTESTATE JURISDICTION
Digitally signed
by VISHAL
SUBHASH
PAREKAR
Date: 2026.01.14
INTERIM APPLICATION (L) NO.37621 OF 2024
16:11:26 +0530
IN
TESTAMENTARY SUIT NO.143 OF 2018
IN
TESTAMENTARY PETITION NO.222 OF 2017
Ashwin Bharat Khater
Aged 47 Yrs.
R/o. Avi-n-Ash Bunglow No.1, Plot No. U-7,
...Applicant/
Gulmohar Cross Road No. 4, JVPD Scheme,
Vile Parle (w), Mumbai 49. Plaintiff
Versus
Urvashi Bharat Khater
Aged 72 Yrs. ...Respondent/
R/o. Avi-n-Ash Bunglow No.1, Plot No. U-7,
Defendant
Gulmohar Cross Road No. 4, JVPD Scheme,
Vile Parle (w), Mumbai 49.
------------
Mr. Rohan Cama a/w. Ms. Shaheda Madraswala, Ms. Rajiv Mehta i/b. M/s.
Vashi & Vashi, for the Applicant/Plaintiff.
Mr. Nausher Kohli a/w. Mr. Ashok Dhanuka, Mr. Hitesh Gupta, Mr. Nikhil
Sonar, Mr. Jehan Fauzdar, Ms. Anushka Bhosale, Ms. Sumati Gupta i/b. M/s.
W Three Legal LLP, for Respondent/Defendant.
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : DECEMBER 5, 2025
PRONOUNCED ON : JANUARY 14, 2026
--------------
JUDGMENT :
1. By the present Application, the original Petitioner in the
Testamentary Petition seeks dismissal of Caveat No. 248 of 2018 filed
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by the Respondent, who is the mother of the Applicant. The Applicant is
propounding the Will dated 18th November, 2016 of the Applicant's late
father Bharat Vasudev Khater.
PLEADINGS:
2. The Application pleads that the Respondent has accepted the Will
and acted in consonance thereof. Under Clause 8 of the Will of the
deceased, the Respondent had been given life interest in the properties
and the Respondent accepted the benefits under the Will and acted in
consonance thereof by executing two Leave and License Agreements
with Aditya Birla Nuvo Ltd and Tea4 Health Private Limited in respect of
the properties. At the time of execution of license agreement with
Aditya Birla Nuvo Ltd on 20th January, 2017, the Respondent had minor
share in the property, which was thereafter gifted to the Applicant by
gift deed dated 17th May, 2017 and in the property licensed to
Tea4Health Private Limited, the Respondent had no ownership rights. In
so far as the gift deeds are concerned, the Respondent has now
challenged the gift deeds by filing complaint with senior citizens
tribunal which matter travelled up to Supreme Court and the parties are
directed to maintain status-quo.
3. The Respondent has acknowledged the Will in the Board
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Resolution dated 13th July, 2017 recording transmission of deceased's
share in Laxsons (India) Private Limited to the Applicant, and, in the
Memorandum of Understanding dated 29 th May, 2018. The resolution as
well as removal of the Respondent as Director of the Company was
challenged by the Respondent before National Company Law Tribunal
by filing Company Petition No 1017 of 2020, which came to be dismissed
on 12th March, 2024.
4. It is further pleaded that Respondent had filed her consent
affidavit dated 17th January, 2017 in the testamentary petition, which
was admitted in the proceedings before NCLT and Hon'ble Supreme
Court and has thereafter sought to dispute the affidavit as forged and
fabricated. The Caveat has been filed on 6 th September, 2018 after delay
of five months, which is beyond the prescribed period of fourteen days,
without any application for condonation of delay.
5. The reply Affidavit pleads that in the proceedings initiated under
the Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(Senior Citizens Act), this Court has come to a finding that the Applicant
enjoyed fiduciary relationship with the Respondent and her deceased
husband and by exercising coercion and undue influence obtained
various instruments and the gift deeds came to be set aside by this
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Court which issue is pending adjudication before the Hon'ble Apex
Court. There are suspicious circumstances surrounding the preparation,
execution and registration of the Will of the deceased, which requires
evidence to be led. The Applicant used to obtain blanket signatures
from the Respondent under coercion, pressure, undue influence
without disclosing the nature of document. The Respondent was
surprised to see her undated consent affidavit in the records of this
Court in the testamentary petition, which she does not recollect signing.
6. The plea of the Applicant in the proceedings under the Senior
Citizens Act is that that the parties were acting as per the family
understanding and the Will of the deceased. In these proceedings, the
Applicant is propounding the Will in order to usurp the entire estate of
the deceased. As per the family settlement, the share of the deceased
and Respondent was considered as one share and the Respondent has
pre-existing right. The family settlement was only to separate the elder
son Avinash from the family. The MOU dated 29 th May, 2018 was a
settlement only between the Applicant and his brother Avinash and
does not in any manner result in acceptance of the purported Will.
7. The Respondent and deceased husband were joint owners of the
licensed properties and right from inception were receiving and
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enjoying rental income for their own benefit and therefore the question
of acting under the purported Will does not arise remotely. The
compensation fees received from the licensed properties were utilised
as per instructions of the Applicant. On execution of the document of
family settlement, the Bharat Khater HUF came to be dissolved and
therefore the Applicant was never appointed as Karta of Bharat Khater
HUF.
8. It is pleaded that the Applicant is in wrongful possession of the
properties and as per the judgment of the Senior Citizen Tribunal, the
title deeds were required to be given to Respondent but have not yet
been given. The Applicant has usurped all rental income generated
from the estate of deceased and the properties of the Respondent and
the deceased are either mortgaged or licensed by the Applicant. The
challenge to the board resolution failed for the reason that the claim of
the Applicant over the shares of the deceased husband in Laxsons
(India) Private Limited will be decided in appropriate proceedings.
SUBMISSIONS :-
9. Mr. Cama, learned counsel for the Applicant submits that
accepting benefits under the Will constitutes an election to take under
the Will drawing support from Section 187 and Section 188 of Indian
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Succession Act, 1925. He would submit that there are 4 documents
which shows acceptance of the Will by the Respondent. He submits that
the execution of the Leave and License Agreement in the year 2017 by
the Respondent is on the basis of ownership of the immovable
properties of the deceased, which when read with clause (8) of the Will
of the deceased would show that the Respondent has taken the benefit
of life interest under the Will failing which the license agreements
were required to be signed by all the legal heirs of the deceased. He
submits that the Respondent had received compensation for the
premises, which were licensed by her exclusively, of about 4.5 Crores.
He would further point out that the resolution passed by the Board of
Directors of Laxsons (India) Private Limited at a meeting held on 13 th
July, 2017 which was signed by the Applicant and the Respondent as
Directors of the Laxsons (India) Private Limited makes a reference to
the certified copy of the Will of the deceased Bharat Khater pursuant to
which the shares came to be transferred in the name of the Applicant.
He submits that the said resolution was thereafter challenged by the
Respondent before NCLT alleging fraud and transmission of the shares.
He has taken this Court through the order of NCLT dated 12 th March,
2024 wherein NCLT has held that the Respondent was not only fully
aware of the transfer but also played active part in the transfer exercise.
Mr. Cama, learned counsel for the Plaintiff would submit that the NCLT
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has come to a specific finding that no evidence has been brought on
record to suggest that the Respondent's signature on the transfer deed
and endorsement on the share certificate in favour of the Applicant was
taken fraudulently.
10. He would further submit that MOU was executed between the
Applicant, Respondent and Avinash Khater on 29 th May, 2018 where it
was specifically stated that the deceased has expired leaving behind the
Will and Testament dated 18th November, 2016 appointing the Applicant
as the sole executor. He would submit that in so far as the MOU is
concerned, the explanation given is that the MOU is only a settlement
between two sons and does not result in acceptance of purported Will,
which is unacceptable as the Respondent is one of the executants of the
MOU.
11. He would further point out that in affidavit in reply there is no
denial to the execution of leave and license agreements and there is no
explanation as to the capacity in which the Respondent had executed
the leave and license agreements. He submits that in so far as the board
resolution is concerned the explanation given is that the challenge to
the transfer of shares was dismissed by NCLT only on the ground that
the claim will be decided in appropriate proceedings. He submits that
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perusal of NCLT order would indicate that NCLT did not find any fraud in
the transfer and transmission of shares.
12. He would further submit that the Respondent had filed the
consent affidavit in the testamentary petition and thereafter changed
stand to say that the consent affidavit was not signed. He submits that
in the proceedings before NCLT and Hon'ble Apex Court, the
Respondent has admitted signing the consent affidavit. He would
further submit that the Will of the Respondent is a mirror image of the
Will of the deceased and was executed on the same date with the same
witnesses, which shows that the Respondent was aware of the
execution of the Will by the deceased.
13. He submits that under the Memorandum of Understanding,
Avinash accepted the genuineness of the Will of the deceased and
agreed not to challenge the Will and accordingly filed his Consent
Affidavit in testamentary proceedings. He submits that having done so,
Avinash is now trying to contest the Will through the Respondent and
substantiates the contention by pointing out various correspondence
between Avinash and erstwhile Advocates of the Respondent.
14. He submits that the present Caveat has been filed after gap of
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five months beyond the prescribed period of 14 days without any
application seeking condonation of delay, which itself is sufficient to
dismiss the Caveat. In support he relied upon the following decisions:-
(1) Nanak S. Ghatalia vs. Swati Satishchandra Ghatalia1
(2) Mirzban Darabshaw Surti vs. Cedric Vaz and Anr.2
(3) Lyla Darius Jehangir vs. Bakhtawar Lentin and Ors.3
(4) Swati S. Ghatalia vs. Nanak S. Ghatalia4.
15. Per contra, Mr. Kohli learned counsel for the Respondent submits
that the application seeking dismissal of the Caveat has been filed after
a lapse of 6 years. He submits that considering the grounds of
opposition in the Caveat, the same are triable issues warranting trial. He
submits that the Respondent is the wife of the deceased and has a
caveatable interest in the estate of the deceased husband. He submits
that in any transaction between the parties involving fiduciary
relationship, the burden of proving the absence of fraud, undue
influence and misrepresentation is upon the person in dominant
position and the onus is upon the Applicant to prove the existence and
validity of the Will during the course of trial. He would further submit
that there are suspicious circumstances surrounding the preparation,
execution and registration of the Will which are set out in the reply
which warrants consideration in trial.
1 2021 SCC OnLine Bom 9777.
2 2015(2) Mh.L.J. 184.
3 2007 (1) Mh.L.J. 545.
4 Bombay High Court, CHS No. 133/2014, Dt. 24/06/2015.
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16. He would further point out that in the Testamentary Petition, the
consent affidavit of the year 2018 is an undated, unsigned affidavit and
there is other consent affidavit of the year 2017 containing the
Respondent's signature but is undated. He would further submit that
under the deed of family settlement dated 9 th January, 2015, all
properties were considered as jointly owned properties, and the
Respondent along with deceased husband was to receive one share of
the entire estate. He submits that the Applicant seeks to enforce the
family settlement and on the other hand seeks to usurp the entire
estate of the deceased under the impugned Will. He would further
submit that throughout the senior citizen proceedings, the stand
adopted was that the parties are acting under the family settlement,
however after a period of 6 years, the stand has been changed to state
that the family members were acting under the alleged Will.
17. He would further submit that the deceased and the Respondent
were the joint owners of Bharat Bhuvan and certain units owned by the
Bharat Khater, HUF and therefore there is no question of Respondent
acting under clause (8) of the Will. He submits that the Respondent in
her capacity as co-owner of Bharat Bhuvan was receiving rental income
even prior to the impugned Will. After execution of the leave and
license agreement as co-owner, all monies were being routed by the
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Applicant to his companies for personal gain. He would further submit in
so far as board resolution dated 13 th July, 2017 is concerned, the issue
of transmission of share of the deceased was kept pending for
adjudication and there was no adjudication before this Court and no
trial took place before NCLT which left the issue to be decided by this
Court. He would further submit that as far as MOU dated 29 th May, 2018
is concerned, after the demise of the deceased, the Respondent went
into depression and the Applicant has taken undue advantage of her
mental state. He would further submit that the settlement was
between the two sons and cannot constitute an acceptance of the Will
by the Respondent.
18. He would further submit that the Interim Application speaks of
the Respondent having minor share in the ownership of the licensed
property and it is specifically pleaded in paragraph 31 of the reply
affidavit that the Respondent and the deceased husband are joint
owners of the licensed properties and therefore the question of acting
under the purported Will does not arise. He would further submit that in
the recital to the deed of the family settlement dated 9 th January, 2015
it is specifically stated that the properties are co-owned and enjoyed by
all the four parties/members of the Khater family prior to the execution
to the deed of family settlement. He submits that in the Arbitration
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Petition in respect of Bharat Bhuvan property, the Applicant had
urgently applied for permission to give the premises on leave and
license basis in and the order records that both the parties i.e. Petitioner
therein Fullerton India Credit Company Limited and the deceased both
had claimed ownership in the said premises and it was directed that the
proposed leave and license agreement shall be executed by Applicant
and Respondent herein jointly. He submits that the Respondent is
claiming co-ownership in the property which has been recognized in
various proceedings. In support of, he relied upon the following
decisions:-
(1) Daya Subhash Tiwari vs. Kashinath Lalta Tiwari and Ors. 5
(2) Laxman vs. Basavanni and Anr.6
(3) Yash Vardhan Mall vs. Tejash Doshi7
(4) Krishna Mohan Kul and Anr. vs. Pratima Maity and Ors.8
19. In rejoinder Mr. Cama would submit that the issue as regards the
fiduciary capacity is contrary to the burden which is cast in testamentary
matters. He would further submit that even on co-ownership, the
Respondent's case is of one share jointly along with the deceased and
even if the Respondent is the co-owner, in event the deceased died
intestate, the sons would be entitled to a share in the share of the
deceased, whereas leave and license agreements have been executed
5 2013 (6) Mh.L.J. 535.
6 ILR 2019 KAR 2035.
7 (2018) 11 SCC 792.
8 (2004) 9 SCC 468.
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by the Respondent claiming to be the absolute owner of the property
which was as per the Will of the deceased. He submits that that where
the title of testator is contested, the Caveat is liable to be dismissed.
REASONS AND ANALYSIS :-
20. The issue arising for consideration is whether the Caveat is
required to be dismissed at the threshold paving the way for grant of
probate of the Will of the deceased Bharat Vasudev Khater.
21. The testamentary petition was filed by the Applicant to which the
consent affidavits of the elder son Avinash and the Respondent were
annexed. The consent affidavit of the Respondent filed with the
testamentary petition is a notarized document dated 17 th January, 2017
and bears the signature of the Respondent. In the affidavit in support of
caveat, the stand taken by the Respondent in the context of the consent
Affidavit is (a) No such consent Affidavit has been signed by her (b) At
the time of taking inspection for filing caveat, the consent affidavit on
record was undated. (c) during the subsequent inspection, there were
drastic alterations in the consent affidavit as the date, the words
"identify by me", the endorsement of Adv Poonam Gandharva were
added to the consent affidavit and (d) the consent affidavit was not
filed alongwith the petition as the original index did not mention the
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consent affidavit which was inserted subsequently at Sr no 3A of the
index. In the Affidavit filed before NCLT, the stand of the Respondent is
that the Applicant gave her the consent affidavit and threatened her to
sign which she signed under undue influence and coercion. In the
proceedings arising out of Senior Citizens Act, before the Hon'ble Apex
Court, the Respondent has stated on affidavit that the Applicant though
manipulation compelled the Respondent to submit her consent affidavit
in support of the probate petition.
22. There is specific admission in the affidavits filed by the
Respondent before NCLT and the Hon'ble Apex Court of the consent
affidavit being signed albeit under coercion. In the present proceedings
the Respondent seeks to disown the consent affidavit contending that
the affidavit has not been signed by her,which is contrary to her own
pleadings before NCLT and Hon'ble Apex Court. The Respondent cannot
be heard to say that she became aware of the consent affidavit only
when she took inspection of the testamentary proceedings in the year
2018 and that it has not been signed by her. The pleadings show that
before the NCLT and Hon'ble Apex Court, the Respondent has admitted
signing the consent Affidavit and the appropriate course would have
been to adopt proceedings for withdrawal of her consent affidavit,
which application would have been tested on its own merits. Instead the
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Respondent has sought to deny the execution of the consent affidavit
itself. In view of the varying stands adopted by Respondent in different
proceedings, it is difficult to accept that the consent affidavit was not
signed by the Respondent or that the Respondent was coerced into
signing the consent Affidavit. The relevance of the consent affidavit in
the present issue is the context of acceptance by the Respondent of the
execution of the Will of the deceased. It is pertinent to note that the
elder son Avinash has also signed the consent affidavit accepting the
genuineness of the Will of the deceased.
23. The deceased and the Respondent executed their respective Wills
which were registered on the same day with the same witnesses. In the
reply, the Respondent has not denied the execution of her Will, which
when perused is mirror image of the Will of the deceased. The bequests
in the Will of the deceased and that of Respondent are identical with
life interest being given to the spouse and the rest and residuary to the
Applicant by excluding Avinash. The Will of the deceased is not stated to
be forged or fabricated but opposed on the ground of being executed
under undue influence and coercion. The issues which would arise,
should the matter proceed to trial, is as regards the deceased's physical
and mental state and whether the Will was executed under undue
influence and coercion. I am not inclined to accept the submission of
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the burden of proof being cast upon the Applicant to prove the absence
of fraud, undue influence or coercion. The burden is upon the Applicant
to prove that the Will was duly and validly executed in accordance with
law, that the testator was of sound and disposing state of mind,
memory and understanding and to remove all suspicious circumstances
surrounding the execution of the Will. The burden to prove undue
influence and coercion is upon the Respondent. (See Surendra Pal &
Ors vs Saraswati Arora & Ors.9. The decision of Krishna Mohan Kul
alias Nani Charan Kul (supra) was rendered in context of contractual
relationship in different factual scenario and does not assist the
Respondent. In any event, the merits of the opposition is not an issue in
these proceedings. What this Court is tasked is to determine whether
the contentious proceedings should be terminated at the threshold and
the petition should proceed for grant.
24. The application is premised on the ground that the Respondent
having accepted the Will in several documents and having accepted the
bequest under the Will cannot challenge the Will under which the
bequest has been received. Under the Will propounded by the
Applicant, the Respondent is bequeathed life interest in the immovable
properties and is solely, exclusively and absolutely entitled to use and
enjoy the income/ profits including inter alia as licensor thereof and that
9 1974 AIR 1999.
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she will be entitled to give the same on leave and license basis with the
restriction on creating any other rights. In so far as the bequest to the
Applicant is concerned, the Applicant was bequeathed all the residuary
interest viz all right title and interest in all properties including shares,
debentures, securities, bonds, share in assets of partnership firms
/companies etc in which deceased was partner/member etc.
25. The deceased expired on 10 th December, 2016. The Respondent
has executed two leave and license agreements on 20 th January, 2017
and 7th December, 2017 of portions of building known as Bharat Bhuvan
as absolute owner thereof. The family settlement dated 9 th January,
2015 was executed by the deceased, Respondent, the Applicant and the
other son Avinash and speaks of the joint ownership of the properties at
Annexure "A" which includes the property of Bharat Bhuvan. Under the
family settlement, the deceased and the Respondent took one share,
the Applicant one share and Avinash one share. The family settlement
allots certain properties to Avinash and sets out that all other
moveable/immoveable properties shall be allotted to deceased, the
Respondent and Applicant and be shared amongst themselves. The
Bharat Bhuvan is not part of the property allotted to Avinash. The
execution of the family settlement is not disputed by the Respondent
and it is stated that the Respondent has pre-existing right in the entire
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estate. Considering the family settlement, the Applicant would be
entitled to a share in the properties and upon intestacy, the Applicant
would be entitled to a share in the share of the deceased in the
property of Bharat Bhuvan. The leave and license agreements have been
executed by the Respondent in her capacity as absolute owner thereof
and not as co-owner of the licensed premises. Under the Will of the
deceased, the Respondent was bequeathed life interest in the
immovable properties and to enjoy the income/profits of all the
immovable properties and give the same on leave and license basis. The
Respondent had executed gift deed dated 17 th May, 2017 in respect of
Bharat Bhuvan property in favour of the Applicant and at the time of
execution of leave and license agreement with Tea4Health Private
Limited on 7th December, 2017, the Respondent had already gifted her
share in the licensed premises.
26. It is in the year 2020, that the Respondent approached the Senior
Citizen's Tribunal seeking cancellation of the gift deed. The Respondent
was aware at the time of execution of the leave and license agreement
with M/s Tea4Health Pvt Ltd that she has already gifted her share to the
Applicant. The only way that the Respondent could execute the leave
and license agreement with M/s Tea4Health Pvt Ltd was by accepting
the benefits under Clause 8 of the Will of the deceased.
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27. Even accepting that under the family settlement, the Respondent
and the deceased were entitled to independent share, the Respondent
could not claim absolute ownership of the licensed premises, which
benefit could be claimed by the Respondent only under the Will. Absent
the bequest, the Respondent would have a share alongwith the
Applicant, who gets a share under the family settlement and also under
intestacy upon death of the deceased and there could be no grant of
license as sole owner thereof. The license agreement in that case was
required to be executed by the Applicant and Respondent jointly.
28. By virtue of Clause 8 of the Will, the Respondent was granted a
right to take all benefits from the immovable properties and to give the
same on leave and license basis. The Respondent's act of giving the
immovable properties on leave and license basis as sole owner thereof
constitutes an act in consonance with the terms of the Will. Though it is
stated that right from inception, the Respondent and deceased were
receiving and enjoying rental incomes and therefore the question of
acting under the purported Will does not arise, there is no material
produced on record to substantiate the contention of the immovable
properties being licensed during lifetime of the deceased and that the
leave and license agreements executed after death of the deceased was
a continuation of the said arrangement.
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29. At this stage, it would be appropriate to make a reference to
Section 187 and Section 188 of the Succession Act, 1925 which reads as
under:
Section 187: When acceptance of benefit given by Will constitutes
election to take under Will. Acceptance of a benefit given by a Will
constitutes an election by the legatee to take under the Will, if he
had knowledge of his right to elect and of those circumstances
which would influence the judgment of a reasonable man in making
an election, or if he waives inquiry into the circumstances.
Section 188: Circumstances in which knowledge or waiver is
presumed or inferred.
(1) Such knowledge or waiver of inquiry shall, in the absence of
evidence to the contrary, be presumed if the legatee has enjoyed for
two years the benefits provided for him by the Will without doing
any act to express dissent.
(2) Such knowledge or waiver of inquiry may be inferred from any
act of the legatee which renders it impossible to place the persons
interested in the subject-matter of the bequest in the same condition
as if such act had not been done.
30. In Mirzban vs Cedric Vaz (supra), the Co-ordinate Bench of this
Court held in paragraph 15, 16 and 17 as under:
15. It is, I think, a well-settled principle that a person who accepts a
benefit under an instrument must accept it in its entirety. He cannot
accept the benefit and repudiate its other provisions. This is a very
old principle, enunciated by Lord Cairns L.C., in Codrington v
Codrington1 thus:
"Where a deed or will professes to make a general disposition
of property for the benefit of a person named in it, such person
cannot accept a benefit under the instrument without at the
same time confirming to all its provisions, and renouncing every
right inconsistent with them."
16. His acceptance of the benefit is a renunciation of every right
inconsistent with the provisions of that instrument. This is a rule
based on the well-known principle of approbation and reprobation.
No one may affirm and disaffirm the same transaction, i.e. affirming
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it to the extent of the benefit received and disavowing it to the
extent that it prejudices. In a very large number of decisions it has
been held that a person cannot take under and against the same
instrument. In Ramakottayya v. Viraraghavayya3 Coutts Trotter, CJ
observed that the principle is often put in another form: a person
cannot approbate and reprobate the same transaction. As the
Supreme Court held in Beepathumma, the principle is:
"That he who accepts a benefit under a deed or will or other
instrument must adopt the whole contents of that instrument,
must conform to all its provisions and renounce all rights that are
inconsistent with it.
17. Faced with legacies and bequests, the Defendants have a choice.
They may elect to receive those legacies and bequests, in which case
they cannot assail the document under which they do so. In other
words, on their acceptance of those legacies, they make an election
and renounce all rights inconsistent with those legacies. On the other
hand, it is, and was, always open to them to renounce the legacies
and continue their challenge to the Will. But what no Defendant can
do is to simultaneously accept a legacy that only accrues as such and
challenge the testamentary instrument by which he or she receives it.
The only exception to this is where the amount or item received
would come to the recipient even on intestacy, or is less than what
he or she might receive if the challenge to the will succeeds. It is only
in that situation that no question of an election would arise. Where,
however, the recipient takes a specific legacy and that legacy or
bequest is not one that would follow on intestacy, the recipient
cannot, having accepted the legacy, impugn or impeach the
document under which it is made.
31. The Co-ordinate Bench noted the interpretation of Section 187
and Section 188 of Succession Act by the Hon'ble Division Bench of this
Court in Lyla Darius Jehangir vs Bhkhtawar Lentin and Ors (supra)
following the Hon'ble Apex Court in C. Beepathuma and ors vs Velasari
Shankaranarayana Kadambolithaya10, that one who accepts a benefit
under a deed or Will or other instrument must adopt the whole
10 (1964) 5 SCR 836.
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contents of that instrument, must conform to all its provisions and
renounce all rights that are inconsistent with it. The principle is often
put in another form that a person cannot approbate and reprobate the
same transaction.
32. In case of Swati S Ghatalia In the matter between Nanak S.
Ghatalia vs Swati S Ghatalia (supra), the Co-ordinate Bench refused to
condone the delay in filing the caveat on the ground of her bonafide as
the applicant's case therein was that she is entitled to receiver her share
of bequests to her and at the same time maintain a challenge to the Will
under which those bequests came to her.
33. The settled position as deduced from the judicial
pronouncements is that law frowns upon permitting a party to accept
the bequests under the Will and at the same time to challenge the Will
by applying the principle of approbation and reprobation. Applying the
same principles, a party cannot be permitted to act in consonance with
the Will which constitutes an acceptance of the Will and thereafter
maintain a challenge to the very Will.
34. The Will of the deceased bequeaths the shares, debentures etc to
the Applicant. In furtherance of the bequest under the Will, the
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Applicant applied to Laxsons India Pvt Ltd in which the deceased was a
shareholder and the Applicant and the Respondent were Directors to
transfer of the shareholding of the deceased in favour of the Applicant
by virtue of the Will of the deceased. The company passed a resolution
which was signed by the Respondent as Director resolving to transmit
the share of the deceased in favour of the Applicant. The resolution
makes specific reference to the Will of the deceased dated 18 th
November, 2016. Subsequently, the shares were duly transferred in
favour of the Applicant and share certificate issued bearing the
endorsement of the Respondent.
35. The transmission of the shares and removal of the Respondent as
Director was challenged before the NCLT, Mumbai and came to be
dismissed. The NCLT has rendered a specific finding that the
Respondent herein was fully aware of the transfer and had played active
part in such transfer exercise and there is no evidence to show that her
signature on the transfer deed and endorsement on share certificate in
favour of Applicant herein was taken fraudulently. The NCLT, however,
made the claim of the Applicant to the shares of the deceased father
subject to the decision in the title suit pending before this Court. The
NCLT has kept the issue of authenticity of the Will under which the
Applicant claims a right to the shares subject to the decision in present
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proceedings. The findings of NCLT in respect of the Respondent's act of
transmission of shares assumes significance as it denotes that the
Respondent acted in consonance with the Will of the deceased while
transmitting the shares.
36. There is yet another document which shows acceptance of the
Will of the deceased, not only by the Respondent, but also by the elder
son Avinash. The Applicant, Respondent and the said Avinash executed a
Memorandum of Understanding dated 29th May, 2018 which is
subsequent to the filing of the testamentary petition by the Applicant.
The MOU was executed in view of further settlement between the
parties and makes a reference to the earlier family settlement of 9 th
January, 2015. Recital E of the MOU specifically refers to the Will of the
deceased dated 18th November, 2016. Clause (3) of the MOU reads as
under:
"(3) Avinash accepts the genuineness, authenticity and validity of the
said Last Will dated 18th November, 2016 of Late Mr. Bharat Khater and
undertakes that he shall not challenge the said Will of Late Mr. Bharat
Khater dated 18th November, 2016, in favour of Sole Executor - Ashwini
and consenting thereto and further that no Citation or other
proceedings are required to be served upon Avinash and further Avinash
undertakes not to file a Caveat in the said Testamentary Petition and
Avinash further undertakes to to otherwise sign all other requisite
Documents, required to give effect to the same. Avinash confirms that
Avinash shall not challenge the Will of Urvashi and Avinash shall also not
challenge the Wills of Ashwin and Ms. Ruchi Ashwin Khater and/or claim
any right, title or interest, share, claim, demand in the Estates of
Urvashi, Ashwin and Ms. Ruchi Ashwin Khater for any reason and under
any circumstances and/or any grounds, whatsoever."
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37. The execution of the MOU is not disputed by the Respondent and
the response is that the MOU is a settlement between the two sons.
Under the MOU, Avinash agrees not to file caveat in the said
testamentary petition which shows that at the time of execution of the
MOU, the testamentary petition was already filed which was to the
knowledge of all the executants of the document including the
Respondent. The Respondent has claimed in her Affidavit in support of
the caveat that the Applicant handed over a consent affidavit for her
signature in or about April, 2018 and did not furnish a copy of the
Petition and threatened her on multiple occasions. It defies reason that
despite this position, the Respondent executed the MOU on 29 th May,
2018 accepting the Will of the deceased. In compliance with his
undertaking under the MOU, Avinash has not opposed the grant of
probate and filed his consent affidavit. The MOU imposes an obligation
on Avinash to accept the genuineness of the Will and not to contest the
same. Can the Respondent who is the executant of the MOU impose an
obligation on Avinash not to question the authenticity and genuineness
of the Will dated 18th November, 2016 of the deceased and thereafter
turn around and challenge the same Will. The answer is in the negative.
The principle of approbation and reprobation prohibits the Respondent
from taking such a stand. The Respondent cannot be permitted to
challenge the Will having prevailed upon Avinash to accept the
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genuineness and authenticity of the Will. It is no answer to say that the
Will was a settlement between the two sons. The Respondent being one
of the executant of the document is presumed to be aware of the
contents of the document and is bound by the same. The Respondent by
prevailing upon Avinash not to challenge the Will impliedly demanded
the implementation of the Will of the deceased.
38. The execution of the leave and license agreements accepting the
benefits under the Will and executing the board resolution to transmit
the shares to Ashwin constitutes acts in furtherance of the wishes of the
deceased under the Will and amounts to acceptance of the Will. The
filing of consent affidavit is yet another act showing acceptance of the
Will. The question of the Respondent having caveatable interest does
not arise for consideration and the obstacle in the Respondent's way
was the acceptance of the Will in several documents and acting in
consonance with the Will, which the Respondent has not been able to
overcome. The material on record clearly shows acceptance of Will of
the deceased by the Respondent and having done so, the Respondent
cannot be permitted to approbate and reprobate.
39. In Daya Subhash Tiwari (supra) the question which arose for
consideration was whether the allegations made by the Caveator in the
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affidavit in support of Caveat alleging fabrication are general in nature
or are sufficient for not dismissing the Caveat at threshold. It is in these
facts that the Court considered the dispute raised by the Caveator as
regards the forgery of the documents to hold that these allegations
cannot be brushed aside. The facts therein are distinguishable as there
was no acceptance of the Will by the Caveator prior to the filing of the
caveat.
40. The decision in the case of Laxman vs. Basavanni (supra) holds
that once the proceedings become contentious, it is not open for the
Court to proceed in the matter in a summary way and allow the parties
to prove the Will in common form. The said decision deals with the
procedure laid down in Section 278 of the Indian Succession Act, 1925
governing the Petition for Letters of Administration, the citations which
are required to be issued and the procedure to be followed in
contentious cases under Section 295. In that case, the Court had failed
to follow the mandatory legal procedure which was held to have
vitiated the grant. The said decision is rendered in a different factual
scenario and does not assist the Respondent.
41. The decision of Yash Vardhan Mall (supra) dealt with the issue of
existence of a caveatable interest in the context of Rule 25 of the
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Calcutta High Court Rules. The Court held that the affidavit in support
of the Caveat demonstrated the caveatable interest and fulfilled the
requirement of the rule. The decision is clearly inapplicable to the
present case.
42. In light of the above discussion, the Interim Application is allowed
in terms of prayer clause (a) and (b). Caveat No 248 of 2018 stands
dismissed. Testamentary Petition No 222 of 2017 to proceed for grant.
(SHARMILA U. DESHMUKH, J.)
43. At this stage, request is made for stay of the judgment for the
period of eight weeks. The request is opposed by the learned counsel
appearing for the Applicant.
44. In my view, considering that the application is for dismissal of
Caveat which has been allowed by this Court, the judgment is stayed for
a period of eight weeks to enable the Respondent to challenge the
same.
(SHARMILA U. DESHMUKH, J.)
