Delhi High Court
Natasha Kohli vs Mon Mohan Kohli And Others on 24 February, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th February, 2020
+ CS(OS) 1321/2006 & IAs No.19312/2014 (u/O XXXII R-
9,11&15 CPC), 19790/2014 (u/O XXXIX R-1&2 CPC),
12980/2015 (for stay of order dated 26 February, 2014),
21637/2015 & 5779/2016 (both of D-3 u/S 151 CPC),
12242/2016 (for directions), 11115/2017 (for stay of trial
before LC), 11116/2017 (for exemption), 12295/2017,
13868/2018 & 13870/2018 (both of D-1 u/S 151 CPC),
14000/2018 (u/S 151 CPC) & 9500/2019 (of D-1 u/S 151
CPC)
NATASHA KOHLI ..... Plaintiff
Through: Mr. Amit Sibal, Sr. Adv. with
Ms. Nandita Rao, Adv.
Versus
MON MOHAN KOHLI AND ORS ..... Defendants
Through: Mr. Ankur Mahindro and Mr.
Shresth Choudhary, Advs. for
D-1.
Mr. Anil Airi, Sr. Adv. with
Mr. Ravi Chandna and Ms.
Sukanya Lal, Advs. for D-3.
Mr. Vipul Ganda, Ms. Aastha
Trivedi and Ms. Chandreyee
Maitra, Advs. for Court
Observer.
AND
+ CS(OS) 1435/2006 & IAs No.23496/2015 (u/S 151 CPC),
2640/2016 (u/O XI R-12&14 CPC), 575/2017 (u/O XXXII R-
9&15 CPC), 7908/2017 (for interim relief), 10431/2017 (for
restoration of sales & A/c Deptt.), 10487/2017 & 10488/2017
(both u/O I R-10(2) CPC), 12298/2017 (u/S 151 CPC),
2357/2018 (u/O VII R-11 r/w S-430 of Companies Act, 2013)
& 12265/2018 (u/S 151 CPC) & CCP(O) No.23/2017 & IAs
No.6954/2019 (seeking appointment of guardian) &
6955/2019 (for exemption)
CS(OS) Nos.1321/2006, 1435/2006, 1137/2014 & 2161/2015 Page 1 of 46
RISHAB KOHLI ..... Plaintiff
Through: Mr. Sanjeev Mahajan, Adv.
Versus
MON MOHAN KOHLI ..... Defendant
Through: Mr. Ankur Mahindro and Mr.
Shresth Choudhary, Advs. for
D-1.
Mr. Anil Airi, Sr. Adv. with
Mr. Ravi Chandna and Ms.
Sukanya Lal, Advs. for D-3.
Mr. Vipul Ganda, Ms. Aastha
Trivedi and Ms. Chandreyee
Maitra, Advs. for Court
Observer.
AND
+ IA No.15431/2015 (of Plaintiff No.1 for modification of
order dated 25th April, 2014) and IA No.19453/2015 (of
Plaintiff No.1 for modification of order dated 21 st August,
2015) in CS(OS) 1137/2014
RISHAB KOHLI & ANR ..... Plaintiffs
Through: Mr. Sanjeev Mahajan, Adv. for
P-1.
Mr. Amit Sibal, Sr. Adv. with
Ms. Nandita Rao, Adv.
Versus
THE PRINTERS HOUSE PVT LTD &ORS .... Defendants
Through: Mr. Ankur Mahindro and Mr.
Shresth Choudhary, Advs. for
D-1.
Mr. Anil Airi, Sr. Adv. with
Mr. Ravi Chandna and Ms.
Sukanya Lal, Advs. for D-3.
Mr. Vipul Ganda, Ms. Aastha
Trivedi and Ms. Chandreyee
CS(OS) Nos.1321/2006, 1435/2006, 1137/2014 & 2161/2015 Page 2 of 46
Maitra, Advs. for Court
Observer.
AND
+ CS(OS) 2161/2015 & IAs No.14825/2015 (u/O XXXIX R-
1,4&15 CPC), 14826/2015 (u/O XXXIX R-1&2 CPC),
21559/2015 (u/O VII R-11 CPC), 23494/2015 (u/S 151 CPC),
23495/2015 (for exemption), 23519/2015 (u/S 10 CPC) &
13264/2017 (for appointment of Court Observer)
KUMKUM TALWAR AND ORS ..... Plaintiffs
Through: Mr. Ankur Mahindro and Mr.
Shresth Choudhary, Advs.
Versus
NATASHA KOHLI AND ANR ..... Defendants
Through: Mr. Amit Sibal, Sr. Adv. with
Ms. Nandita Rao, Adv. for D-1.
Mr. Sanjeev Mahajan, Adv. for
D-2.
Mr. Anil Airi, Sr. Adv. with
Mr. Ravi Chandna and Ms.
Sukanya Lal, Advs. for D-3.
Mr. Vipul Ganda, Ms. Aastha
Trivedi and Ms. Chandreyee
Maitra, Advs. for Court
Observer..
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
CS(OS) No.1321/2006, as per the amended memo of parties
dated 16th January, 2017 is filed by Natasha Kohli (Natasha) against
(a) Mon Mohan Kohli (MMK), (b) M/s Jey Kay Pvt. Ltd. (JKPL), and,
(c) Joginder Nath Kohli (Joginder) [since deceased through his legal
heirs Veena Kohli and Arjun Kohli], for (i) permanent injunction
restraining MMK from interfering with peaceful possession and
enjoyment of Natasha of property no.15A, Amrita Shergill Marg, New
Delhi comprising of land ad-measuring 2227 sq. mtrs. and from
creating third party interest therein; (ii) permanent injunction
restraining the defendants, from changing the shareholding of JKPL
by increasing the authorized share capital of JKPL and from issuing
additional or subscribing un-issued 800 shares from authorized share
capital of 2000, of JKPL; and, (iii) mandatory injunction directing the
defendants to transfer 300 shares of JKPL from MMK to Natasha.
2. CS(OS) No.1321/2006 came up first before this Court on 19th
June, 2006 when, while issuing summons thereof, vide ex partead-
interim order, the defendants were restrained from dispossessing
Natasha from property no.15A, Amrita Shergill Marg, New Delhi and
the parties directed to maintain status quo qua the title and occupancy
of the property.Vide subsequent order dated 21 st April, 2010, the
applications for interim relief were disposed of directing, that (i)
Natasha continues living in the guest annexeof the property and not
interfere in the main building where MMK and Rishab Kohli (Rishab),
sonof Natasha and MMK,were living except that Natasha could go to
Rishab‟sbed room and stay with him as per the wishes of Rishaband
Rishab could also go to the guest annexe and stay with Natasha as and
when he liked; (ii) Natasha does not interfere in the possession of
MMK of the main building; (iii) MMK, JKPL and Joginder shall not
sell and part with possession of property no.15A, Amrita Shergill
Marg, New Delhi; (iv) the defendants to not create any obstruction in
the passage leading to the guest annexe or other obstruction which
results in hindrance in use of guest annexe by Natasha; and, (v)
Natasha also does not create any hindrance in use of main building by
MMK.
3. FAO(OS) Nos.303-06/2010 preferred against the said order
were disposed of vide judgment dated 24th September, 2010 by
directing Natasha to confine herself to the room styled as the study
and use of the small Powder Room or toilet in front of the study and
contiguous to Rishab‟s bed room and to not enter the master and
mezzanine bed rooms; Natasha was also permitted use of the guest
annexe / outhouse; it was clarified that except for the master bedroom,
Natasha shall be entitled to use the remaining part of the main house
i.e. the Kitchen, Dining Room, Sitting Room and Drawing Room.
4. Special Leave Petition (Civil) Nos. 34533-34536/2010 preferred
against the judgment dated 24th September, 2010 were dismissed on
2nd March, 2012.
5. On the pleadings of the parties, following issues were framed in
CS(OS) No.1321/2006 on 10th September, 2012:
"(i) Whether the plaintiff has any rights whatsoever in the suit
property? OPP
(ii) Whether the plaintiff has been in possession, actual or
constructive, of the suit property since 1994? OPP
(iii) Whether the suit has not been valued properly for the
purposes of Court fees and jurisdiction? OPD
(iv) Whether the present suit to the extent it seeks transfer of
sharesof the defendant No.2 Company in favour of the
plaintiff is barred by limitation? OPD
(v) Whether the plaintiff is entitled for the reliefs prayed for?
OPP
(vi) To what other relief, if any, is the plaintiff entitled?"
6. IA No.672/2014 under Order XXXII Rules 4 and 5 of the CPC
was filed by Kumkum Talwar (Kumkum) and Vinay Mahajan
(Vinay), sisters of MMK, pleading that MMK was not keeping good
health and was not able to defend CS(OS) No.1321/2006 before the
Court and seeking to be appointed as guardian of MMK. The said
application was allowed vide order dated 26th February, 2014,
appointing Kumkum and Vinay as guardian ad litem of MMK.
7. Else, suffice it is to record that applications have been filed
from time to time and CS(OS) No.1321/2006 has been languishing at
that stage, with part evidence only of Natasha being recorded therein.
8. CS(OS) No.1435/2006 has been filed by Rishab against his
father MMK for partition, of (i) property no.15A, Amrita Shergill
Marg, New Delhi; (ii) Printers House Pvt. Ltd. (PHPL); and, (iii) eight
acres of land in District Tehri Garwal, village Singtali Patti, Dogee,
Tehsil and Pargana Narendrapur, Uttaranchal, equally between Rishab
and MMK.
9. It is the case of Rishab in CS(OS) No.1435/2006, that (i) he was
born on 11th May, 1997 and at the time of institution of the suit was
still a minor and acting through his mother Natasha; (ii) MMK and
Natasha were married on 14th November, 1994; (iii) MMK is the head
of Hindu Undivided Family (HUF) comprising of MMK and Rishab;
(iv) the parties belong to an established business family, patriarch
whereof was Late Sh. Krishan Dass Kohli; Krishan Dass Kohli had
three children, Ms. Vijay Kohli, who died a spinster, MMK and
Joginder; (v) the said family was carrying on business of
manufacturing and trading of printing machines through the vehicle of
PHPL, JKPL, Sun Flower Enterprises and M/s Kohli Graphics
Systems; (vi) there were two other HUFs, viz. Joginder Nath Kohli
HUF and Mon Mohan Joginder Nath Kohli HUF; (vii) in terms of
Memorandum of Family Settlement dated 16th October, 1995, all
disputes amongst the members of the family were amicably settled and
a decree in terms whereof was passed in suit No.824/1993 of this
Court, then pending amongst the family members; (viii) as per the said
Memorandum of Family Settlement dated 16th October, 1995, the
control and management of PHPL, demarcated half share designated
as 15A of property no.15, Amrita Shergill Marg, New Delhi, and eight
acres of land in DistrictTehri Garwal, village Singtali Patti, Dogee,
Tehsil and Pargana Narendrapur, Uttaranchal fell to the share of
MMK; (ix) the relationship between MMK and Natasha, being the
parents of Rishab, had soured, with CS(OS) No.1321/2006 aforesaid
having been filed by Natasha; (x) the entire expenses of Rishab was
being borne by Natasha from her independent business in the name
and style of Travancore Management Resources Pvt. Ltd. of
manufacture and sale of wooden furniture, and MMK had been
controlling the income from the ancestral properties aforesaid, without
giving any share to Rishab; (xi) PHPL had authorized share capital of
Rs.50 lacs divided into 50,000 equity shares of Rs.100/- each; the
issued and paid up share capital was Rs.21 lacs divided into 21,000
equity shares of Rs.100/- each; MMK was holding 20,839 shares i.e.
99.23% of the total shareholding of PHPL; (xii) MMK was
negotiating for the sale of shares of PHPL and of property no.15A,
Amrita Shergill Marg, New Delhi; and, (xiii) Rishab also had a share
in the shareholding of PHPL and in property no.15A, Amrita Shergill
Marg, New Delhiand in land aforesaid.
10. CS(OS) No.1435/2006 came up first before this Court on 19th
July, 2006 when the counsel for MMK also appeared on seeing the
matter in the cause list. For long thereafter, attempts were made for
amicable settlement, however to no avail. Ultimately, IA No.673/2014
under Order XXXII Rules 4 and 5 CPC was filed by Kumkum and
Vinay in CS(OS) No.1435/2006 also, for appointment as guardian ad-
litemof MMK and it was allowed vide order dated 21st March, 2014.
11. It may be stated that MMK contested CS(OS) No.1435/2006,
inter alia pleading that (i) while only members of the Kohli family
had shares in PHPL, JKPL, Sun Flower Enterprise and M/s Kohli
Graphics Systems, the respective shares were distinct and independent
and from self-acquired income held by individual members separately;
(ii) only 160 shares of PHPL belong to the HUF of which MMK was
the Karta and the remaining shares held by him were in his individual
capacity; (iii) MMK had been meeting the expenses of Rishab; (iv)
PHPL, JKPL, Sun Flower Enterprises and M/s Kohli Graphics
Systems were not part of any HUF and MMK had paid consideration
for acquisition of shares in these entities and hence the rights and
interests in these entities were personal self-acquired properties of
MMK; (v) the land at Uttaranchal was the sole and exclusive property
of MMK who had purchased the same from his own means; rather the
adjoining land had been purchased by Natasha; (vi) there was no
partition of HUFs in the Memorandum of Family Settlement dated
16th October, 1995; the said Memorandum of Family Settlement was
executed only to ensure that MMK and Joginder obtain full control
over separate business so as to enable them to individually conduct
their respective business without involvement of the other; and, (vii)
that the suit had been filed at the behest of Natasha.
12. Before proceeding with further narrative of CS(OS)
No.1435/2006, it is expedient to at this stage take up CS(OS)
No.1137/2014.
13. CS(OS) No.1137/2014 was filed by Rishab and Natasha,
against (a) PHPL, (b) MMK, (c) M.M. Kohli (HUF), (d) Arvind
Chadha holding 0.0048% of shareholding of PHPL and being a
Director of PHPL; (e) Vimal Chandra Hoon,also being a Director
without any shareholding of PHPL; and, (f)Manoj Khanna, being the
Controller Corporate Affairs of PHPL, for permanent injunction to
restrain them from holding the Annual General Meeting (AGM) of the
PHPL.
14. It was the plea of Rishab and Natasha in the said suit, that (i) on
29th July, 2013, MMK was admitted to Sir Ganga Ram Hospital in a
critical condition and diagnosed as suffering from Intracranial Left
Internal Carotid Artery Aneurysm with Sub Arachnoids Hemorrhage;
(ii) vide order dated 11th March, 2014 in FAO(OS) No.74/2014
arising, from other litigation between the parties, a Commissioner was
appointed to visit MMK on 11th March, 2014 and give finding on the
condition of MMK; (iii) the Commissioner reported that MMK was
highly disoriented, not being completely aware of his surroundings
and the people around him, his speech was heavily impaired and the
doctors informed that he was monosyllabic; (iv) Rishab had vital
interest in the proper management of the PHPL and it was not clear
who was attending to the affairs of the PHPL; (v) Rishab and Natasha
were being deprived of knowledge of affairs of PHPL; and, (vi) AGM
of PHPL was proposed to be held to defeat the applications with
respect thereto filed in other pending litigations.
15. CS(OS) No.1137/2014 came up first before this Court on 23rd
April, 2014 when it was ordered to be listed along with CS(OS)
No.1435/2006 aforesaid. The counsels were heard on 24 th April, 2014
and common order passed in CS(OS) No.1435/2006 and CS(OS)
No.1137/2006 and certain suggestions made. Vide common consent
order dated 25th April, 2014 in CS(OS) No. 1435/2006 and CS(OS)
No.1137/2006, it was agreed and ordered that (i) the PHPL shall
within ten days of demand by Natasha give inspection to Natasha of
all records of PHPL to which she was entitled to as shareholder
thereof; (ii) the PHPL, without specific order of the Court, shall not
issue new capital or affect any change in shareholding or affect any
change in the Board of Directors (save for re-appointment of the
Directors who were eligible therefor) or sell, transfer or encumber in
any manner any immovable property or make any borrowing (except
for the purpose of business and from banks and financial institutions
from which it already had arrangement in this respect)or affect any
change in the Memorandum / Articles; and, (iii) the PHPL shall serve
notice on Natasha, in CS(OS) No.1137/2014, of any AGM /
Extraordinary General Meeting, in accordance with law.Though
CS(OS) No.1137/2014 was disposed of in terms of common consent
order dated 25th April, 2014, but IA No.15431/2015 of Rishab for
modification of the order dated 25th April, 2014 is pending and the
said application in the said suit is being taken up along with other
pending litigations.
16. At this stage, it is also apposite to take up CS(OS)
No.2161/2015.
17. CS(OS) No.2161/2015 has been filed by Kumkum, Vinay and
MMK, against Natasha and Rishab, seeking, (a) appointment as
guardian of person and property of MMK; and, (b) perpetual
injunction restraining Natasha and Rishab from obstructing Kumkum
and Vinay from acting as guardian of MMK and from running the
affairs of the PHPL.
18. CS(OS) No.2161/2015 came up first before this Court on 27th
July, 2015 when Natasha and Rishab appeared on caveat.
19. Vide common consent order dated 21st August, 2015 in all the
four suits i.e. CS(OS) No.1321/2006, CS(OS) No.1435/2006, CS(OS)
No.1137/2014 and CS(OS) No.2161/2015, (i) a retired Judge of this
Court was appointed as the Observer, to oversee the functioning of the
PHPL and certain specific directions qua the functioning of PHPL
issued; (ii) a Medical Board comprising of three doctors, under
auspices of All India Institute of Medical Sciences (AIIMS) ordered to
be constituted, to review the medical condition of MMK and to
recommend the future course of treatment in India or abroad; (iii) the
entire expenses of medical treatment of MMK ordered to be borne by
the PHPL; and, (iv) all the parties restrained from communicating with
any employee of PHPL or the police and which communication was
likely to go against the interest of smooth running of PHPL
20. Common order dated 21st April, 2016 in all the four suits,
records that Mr. V.C. Hoonand Mr. Arvind Chadha had resigned from
the Board of Directors of PHPL.
21. The suits continued to languish, with one application after
another being filed therein. However for the purpose of the present
judgment, need to detail the said proceedings is not felt.
22. The retired Judge of this Court appointed as Observer of the
PHPL, resigned on 11th March, 2016 and another retired Judge of this
Court was appointed in his stead; however he also resigned on 15 th
September, 2017. Vide order dated 26th September, 2017 yet another
retired Judge of this Court was appointed who however expressed
inability. Finally, vide order dated 5th December, 2017 yet another
retired Judge of this Court was appointed as Observer of PHPL and
continues to so act.
23. Now, I revert back to CS(OS) No.1435/2006, in continuation of
para 11 above.
24. Vide order dated 10th September, 2012, the following issues
were framed in CS(OS) No.1435/2006:
"(i) Whether Ms. Natasha Kohli is the next friend and guardian
of the plaintiff and is entitled to file the present suit on
behalf of the plaintiff? OPP
(ii) Whether the suit properties have been acquired by the
defendantpursuant to partition of the HUF vide Family
Settlement dated 16thOctober, 1995 and are consequently,
co-parcenary/ancestral/HUF propertiesand whether the
plaintiff has a share in the said properties? If so, to what
extent? OPP
(iii) Whether the suit properties are the self-acquired properties
of the defendant? OPD
(iv) Whether the suit as filed is not maintainable? OPD
(v) Whether the suit has not been properly valued for the
purposes of Court fees and jurisdiction? OPD
(vi) Whether the plaintiff is entitled to a preliminary decree
and/orfinal decree of partition dividing the properties (i)
15A, Amrita Shergill Marg, New Delhi (ii) Printers House
Ltd., 10, ScindiaHouse,Connaught Place, New Delhi, (iii)
Eight acres of land in District TehriGarwal, Village Singtali
Patti, Dogee, Tehsil and Pargana
Narendrapur,Uttaranchal? If so, to what share would the
plaintiff and the defendantbe entitled? OPP
(vii) Relief."
25. Vide common order dated 17th January, 2017 in all the four
suits, finding, that the entire emphasis of the parties and the counsels
had been and continued to be on applications, with further proceedings
in the suits being neglected, attempt was made to understand as to how
the suits could be expedited and on hearing the counsels, it transpired
that the subject matter of all the suits were, (i) property no.15A,
Amrita Shergill Marg, New Delhi; (ii) ownership of shareholdings of
PHPL, and, (iii) mutual funds in the name of MMK. It was further
recorded, that undivided property then bearing no.15, Amrita Shergill
Marg, New Delhi, was owned by JKPL, issued share capital whereof
then, was 1200 shares and of which 600 shares were held by Joginder
and 600 shares were held by MMK. All the counsels consented to
consolidation of the suits and framing of consolidated issues and the
suits adjourned therefor.
26. However, the process of adjournments and filing of one
application after another continued and the proposal of framing
consolidated issues did not fructify.
27. On 26th November, 2018, it was informed that disputes subject
matter of all the suits had been referred to mediation which was
pending. However on 13th March, 2019, it was informed that
mediation had failed.
28. It was the contention of senior counsel for Natasha on 13th
March, 2019, that (i) though there were / are disputes between MMK
and Natasha, but in view of subsequent developments, Natasha,
without prejudice to her rights and contentions,is willing to give up
her claims; (ii) Rishab, being the son of MMK and Natasha, has
attained majority and was then 22 years old; (iii) MMK, in a sound
mental state, on 13th September, 2006 had executed a Will and which
is not disputed by any of the parties; (iv) under the said Will, MMK
has bequeathed his entire estate in favour of Rishab, except certain
bequests; (v) Natasha, for the sake of settlement,is willing to give up
the rights claimed by her as well as the rights claimed by her on behalf
of her son Rishab and to also abide by the Will aforesaid of MMK;
(vi) Natasha, as wife of MMK, had been residing in portion of
property no.15A, Amrita Shergill Marg, New Delhi and her
possession of the said portion of the property had been protected under
orders of this Court and is only desirous to continue residing in the
said portion of the property for her lifetime; (vii) Rishab also has no
objection to Natasha continuing to reside in the said portion of the
property; and, (viii) applications of Natasha and Rishab, for removal
of Kumkum and Vinay as guardian ad litem of MMK are pending
consideration.
29. On 13th March, 2019, the counsel for MMK, in response to the
contentions aforesaid of the senior counsel for Natasha stated, that (i)
the dispute as to who should be the guardian of person and of the
properties of MMK, still remains for adjudication; (ii) Natasha was
not a fit person to be entrusted with such guardianship of MMK as
there were / are disputes between Natasha and MMK; (iii) even
Rishab had instituted a suit, claiming adversely to the rights of MMK
in property no.15A, Amrita Shergill Marg, New Delhi and thus was
also not a proper person to be appointed as the guardian of person and
properties of MMK till his demise or till his health continued as it has
been since July, 2013; (iv) though vide the Will dated 13th September,
2006 MMK bequeathed his estate for the benefit of Rishab, but in
three trustees until Rishab reached his 30 th birthday; (v) Rishab, for
this reason also was not a fit person to be appointed as guardian of
person and properties of MMK inasmuch as he would not get the
estate even on demise of MMK, till attaining 30 years of age; and, (vi)
that Arvind Chadha and Vimal Chandra Hoon, who were the erstwhile
Directors of PHPL and were also named as trustees under the
undisputed Will of MMK, had shown unwillingness to act as trustees.
30. On 13th March, 2019, the counsel for Rishab also stated that if
settlement were to be reached and Will were to be accepted, Rishab
would not press CS(OS) No.1435/2006 filed on the basis of existence
of HUF.
31. In the order dated 13th March, 2019 it was observed that in view
of the statements on behalf of Natasha and Rishab, the only question
to be considered in all the proceedings thus was, who should be the
guardian of person and properties of MMK if the suits are disposed of
and what orders if any could be passed when MMK was still alive,
with respect to the working of Will of MMK and all the suits
adjourned for hearing on the said aspect only but making it clear that
none of the parties would be entitled to renege from what was
recorded in the order dated 13th March, 2019 or as an afterthought
contend that there were any other controversies for adjudication.
32. In pursuance to the order dated 13th March, 2019, counsels were
heard on 13th May, 2019, 16th May, 2019, 17th May, 2019, 9th August,
2019 and 13th September, 2019 and orders reserved.
33. Before recording the contentions of the counsels, it is deemed
apposite to set out hereinbelow the portions, relevant for the present
purpose, of the undisputed Will dated 13th September, 2006 of MMK:
"2. I married Natasha Chatha, known as Natasha Kohli.
After her marriage to me in the year 1994 from which
union I have a son, Rishab Kohli, aged 9 years, who is
living with me at my aforesaid residence.
3. The relationship between me and Natasha started
going sour more than two years ago for no reason that I
or none of my mutual friends could fathom. She withdrew
herself from my company, from my bedroom and started
sleeping in the guest room of my house. I am "at present
faced with several legal proceedings filed by her to
extract money and usurp my assets. Her actions have
caused me and also Rishab deep mental anguish and
pain. Since the time of our marriage I had supported her
in every way as any husband would....in meeting her
every wish and desire. When she wanted to expand her
business in the new premises, I provided funds and
support as a result of which she now has an independent
factory which she owns in NOIDA from which she
receives a considerable amount of income.
4. In the recent past she has started severely poisoning
Rishab‟s mind and restraining him from seeing me. She
now even sleeps with his in his room and is generally
trying to drive a wedge between him and me. A complete
breakdown in our relationship took place when she filed
a series of legal proceedings without any provocation,
and without cause and without any warning or discussion
and obtained an ex parte restraining order. In meeting
her every wish and providing her every conceivable
luxury, I know that I did not heed the advice of my elders
and my well-wishers and this inevitably lead to a reverse
effect - her wanting more and more. It is now clear to me
that she wants nothing but my wealth and my assets. After
careful consideration of the above and other
circumstances which I have mulled over for several weeks
and after discussions with my friends, I have decided to
make this will.
5. I hereby declare and direct that no part of my estate
or any benefit therefrom will go to Natasha. I inserted
Natasha‟s name as my nominee in my life insurance
policies and in order places such as bank accounts,
mutual funds, etc. I hereby declare that notwithstanding
the said nominations, Natasha will not inherit or receive
any of the said assets or any other wherever found.
6. As stated above, Natasha has been carrying on a
proprietary business of furniture making under the name
and style of M/s. FILO Interior Decorators (P) Ltd.
(among others) from B-25, Sector 57, NOIDA, UP from
which she receives an income which is more than
adequate for her. Before she married me she lived
together as a wife of one Mr. Prakash Mehta in London
although she claimed to me that she was never married.
However, I explicitly disinherit Natasha from all my
estate and direct her to return to the estate all that she
owes me.
7. Natasha has filed the proceedings against me
claiming parts of my house and parts of my business,
although she has not filed proceedings for divorce
perhaps with a view to continue to remain „ my wife‟, in
name with whatever advantage or benefit that she can
derive from it. I am advised to file proceedings of my own
which I might eventually do. I direct that Natasha is not
entitled to and will not be entitled to live in my house at
15 Amrita Shergill Marg. She has been opposed to my
renting the house. Small family as we are, we do not need
such a large accommodation and I do prefer to rent this
out and I informed that it can easily fetch a rent of Rs.8
lakhs per month. By Natasha continuing to forcibly
occupy a portion of the house, it will be impossible to rent
it out. I‟ve therefore, direct that should she still continue
to occupy the house after my demise, she would be liable
to pay to my estate Rs.4 lakhs per month or such higher
market rent as may be prevalent at that time and I direct
my trustees to recover the same from her and to fix rent
for time to time.
8. As stated above, I have one son, Rishab Kohli, now
aged 9 years and no other direct descendant. I declare
that all my assets, wherever found will be held for the
benefit of my son by the following three trustees until
Rishab reaches his 30th (Thirtieth) birthday, whereupon
these will be transferred to my son Rishab Kohli and until
then will be used by the trustees in the manner stated in
para 9 and elsewhere in this will.
a. Mr. Arvind Chaddha, son of Shri R K Chadha, aged
50 years resident of Summerleas No.19, Gadaipur Bandh
Road, New Delhi;
b. Mr. Vimal Chandra Hoon, son of Shri N C Hoon,
aged 69 years resident of W-175, Greater Kailsh-II, New
Delhi;
c. Mr. Virendar Nath Koura, Son of Dr. D N Kaura,
aged 66 years, Resident of 7, NavjeevanVihar, New Delhi
(hereinafter referred to as "Trustees")
9. The trustees will use the trust funds in such manner
in their discretion as they think fit for education, upkeep,
upbringing, marriage and all expenses that they in their
wisdom think appropriate to incur for Rishab. As far as
possible they will use only the interest or earnings.
However, I place no restrictions on them and my trustees
will have the power to use the capital asset and income as
they think appropriate. The trustees will have the power
to invest the funds in appropriate assets securities
including land and building and will do everything that I
or any prudent person would have done for the protection
of the estate.
10. The quorum for the trust will be two. In the event that
any of the trustees is not able to act by reason of his non-
availability, death or incapacity, the remaining trustees
will choose another trustee immediately, so that at all
times, there are three trustees. In the event of a trustee
wishing to resign, he will join the other trustees in
naming his successor trustee. All decisions shall be taken
and approved by a majority of trustees.
11. For removal of any doubt, I declare that my property
No.15, Amrita Shergill Marg, New Delhi is not an HUF
property. It has never been declared as HUF property
and one part of the property is owned by me and the other
part by my brother, Mr. J.N. Kohli. Our father lived with
us before the property was divided. The property was
bought from my personal funds and it‟s never had the
character of HUF property as the history and tax records
will show.
12. I intend to form a trust during my lifetime. If I do so,
then the trustees may at their discretion collect together
my assets under the same trust. If not, they might form a
trust called „Rishab Kohli Benefits Trust‟ or in any other
manner and open suitable bank account or name.
13. I direct that in no circumstances that Natasha inherit
any part of my estate either directly or through Rishab‟s
inheritance. In other words, I put a restriction on any
part of my estate inherited by Rishab being inherited
inturn or at any point of time by Natasha or her getting
benefit out of it. Same as above, Rishab will be absolutely
entitled during his lifetime to use the property in any
manner that he likes once he gets the control of it upon
reaching his 30th birthday as above. I clarify that he will
have the right to disposal and conversion of the property
and the only restriction that I am placing in the event of
his dying intestate is that the property should not be
inherited by Natasha.
14. I given and bequeath to each of my sisters, Mrs.
KamlaSethi, Mrs. Vinay Mahajan and Mrs. Kumkum
Talwar a sum of Rs.10,00,00,000/- (Rupees Ten Crores
Only) each out of my estate. Should any of my said sisters
predecease me, then the sum payable to her will be
divided equally amongst her surviving children.
15. I should like to make clear that I have serious
disputes and differences with my brother J.N. Kohli and
he has spared no effort to traumatize me and my family.
He is well settled and well provided for by our father. I
do not wish to make any bequest in his favour or in
favour of his wife or son. It is my sincere desire that after
my death he will leave my family in peace.
16. I appoint Mr. Vimal Chandra Hoon as the executor of
this will and failing him Mr. Arvind Chadha. The
executor will gather together all my assets wherever
found, pay all liabilities if any, and will hand over the
balance estate to the body of the trustees referred to
above.
17. The executor and trustees can at their discretion,
appoint such professionals as lawyers, chartered
accountants etc. as may be necessary and will pay them
out of the trust fund. They will also be entitled to debit to
my estate any reasonable fee or expenses that they may
incur in discharge of their duties."
34. The senior counsel for Natasha and Rishab informed that
besides the aforesaid litigations, the following other litigations /
proceedings are pending between the parties:
(i) Petition filed by MMK seeking nullity of his marriage
with Natasha on the ground that Natasha was already
married to one Mr. Kai Boccagna at the time of her
marriage with MMK.
(ii) Criminal complaint filed by MMK against Natasha of the
offence of bigamy.
(iii) Criminal complaint filed by MMK against Natasha of the
offence of trespass.
(iv) Petition filed by Natasha against the order of the Family
Court on her application under Section 24 of the Hindu
Marriage Act, 1955, denying her maintenance.
(v) Criminal complaint filed by Natasha against the PHPL
and others with respect to illegal transfer of shares from
various charitable trusts to MMK.
(vi) Special Leave Petition (SLP) preferred by Natasha
against the order dated 28th March, 2014 in Execution
Petition No.30/2007.
(vii) Proceeding under the Mental Health Act, 1987 instituted
by Rishab, seeking appointment of a guardian of person
and property of MMK.
(viii) Writ petition filed by Rishab on behalf of MMK, with
respect to income tax notice received on account of
Kumkum, Vinay and the Chartered Accountant not
attending to the tax affairs of MMK and by interim order
wherein the income tax notice has been stayed and an
amicus appointed to file the income tax returns of MMK.
(ix) Criminal complaint filed by Kumkum against Natasha.
(x) Criminal complaint filed by Kumkum against Rishab.
(xi) Appeal filed by heirs of Joginder in collusion with
Kumum and Vinay, to transfer the shares of JKPL, in
violation of the decree which ensures that neither
Joginder nor MMK could usurp the property.
35. The senior counsel for Natasha and Rishab contended that (a) in
view of MMK now being mentally oblivious, his marriage has no
personal consequences especially since the Will dated 13th September,
2006 aforesaid of MMK is admitted and under which Natasha does
not inherit any part of the estate of MMK; (b) Natasha,for the sake of
putting an end to litigation, is willing to withdraw the petition filed by
her challenging the order of the Family Court on an application under
Section 24 of the Hindu Marriage Act as well as the criminal
complaints and SLP aforesaid filed by her; (c) similarly, for the sake
of putting an end to the litigation and provision being made with
respect to person and properties of MMK, Rishab is also willing to
withdraw the proceedings initiated by him under the Mental Health
Act; (d) the writ petition aforesaid would conclude once the income
tax returns are filed and the impugned income tax notice is withdrawn;
(e) Kumkum and Vinay, for fighting the present litigations as well as
other litigations mentioned above, are spending good monies of
MMK, resulting in wastage; (f) the filing of criminal complaints filed
by Kumkum against Natasha and Rishab show the hatered of
Kumkum and Vinay towards Natasha and Rishab, in disregard of the
wishes of MMK; and, (g) the issue involved in the appeal preferred by
the heirs of Joginder can be settled in those proceedings.
36. The senior counsel for Natasha and Rishab otherwise contended
that, (a) under the Memorandum of Family Settlement dated 16th
October, 1995 between Krishan Dass Kohli (being the father of MMK
and Joginder) and Vijay Kohli (being the sister of MMK and Joginder)
of the first part, MMK and Natasha of the second part and Joginder,
his wife and son of the third part, 600 shares representing 50% of the
issued and subscribed share capital of JKPL were in the name of
MMK and the other 600 shares representing the balance 50% of the
share capital of JKPL were in the control of Joginder; the 600 shares
held by MMK in JKPL were simultaneously transferred to Monat
Developers Pvt. Ltd., in which MMK and Natasha are the only
shareholders; (b) the aforesaid Memorandum of Family Settlement
dated 16th October, 1995 was incorporated in the decree in Suit
No.857/1993, then pending between the parties to the Memorandum
of Family Settlement; (c) under the aforesaid Memorandum of Family
Settlement dated 16thOctober, 1995, MMK and Natasha have joint
rights in property no.15A, Amrita Shergill Marg, New Delhi; (d)
Natasha, to finish off the litigations, is willing to give her said rights in
the property in favour of Rishab, subject to having a right of residence
in the property in her lifetime; (e) the order dated 24th September,
2010 in FAO(OS) No.303-306/2010 aforesaid (arising from order
dated 21st April, 2010 in CS(OS) No.1321/2006) observes that prima
facie Natasha is a part owner of property no.15A, Amrita Shergill
Marg, New Delhi which is also her matrimonial home; (f) Kumkum
and Vinay claim to have employed 18 persons to take care of MMK
and out of the monies of MMK, a sum of Rs.2 lacs per month is being
expended towards their salary; (g) the same shows that it is not
Kumkum and Vinay who are taking care of MMK but have merely
employed staff at a huge expense and none of which is a nursing staff
as is the need of MMK; (h) the staff employed by Kumkum and Vinay
in their own households is being shown as having been employed for
the care of MMK; (i) Vinay, who is living in Gurgaon, claims Rs.1
lacs per month for visiting MMK from time to time; the same shows
that Kumkum and Vinay do not have any love and affection for MMK
and are not the right persons to be his guardian; (j) a sum of Rs.80 lacs
per annum again, out of the coffers of MMK, is being expended at the
behest of Kumkum and Vinay towards fee paid to the lawyers; (k)
MMK has always lived next to Lodhi Garden and there is no reason
why he should not continue living there along with his son Rishab; (l)
on the contrary, Kumkum and Rishab have taken away MMK from
property no.15A, Amrita Shergill Marg, New Delhi; it is also not as if
they are making him reside in their own house; third floor of another
house has been hired, where MMK lives alone; (m) it is expedient that
MMK, instead of living alone, lives with his own son Rishab; (n)
Kumkum and Vinay, in the past, have requested for being permitted to
live in property no.15A, Amrita Shergill Marg, New Delhi to look
after MMK but which request was rejected; (o) the photographs of the
house where MMK is presently living and site plan of property
no.15A, Amrita Shergill Marg, New Delhi are shown to contend that
MMK can comfortably live in his own house under the care of his son
Rishab; (p) though 600 shares of MMK in JKPL under the
Memorandum of Family Settlement dated 16th October, 1995 were to
be transferred to Monat Developers Pvt. Ltd. but were not transferred;
(q) Natasha is willing to give an undertaking that upon MMK being
shifted to property no.15A, Amrita Shergill Marg, New Delhi to reside
with Rishab, she will not access MMK or interfere in his living in the
said house; (r) Kumkum and Vinay can be permitted access from time
to time in property no.15A, Amrita Shergill Marg, New Delhi, to
satisfy themselves of the well being of MMK and also to take him to
family functions; (s) a provision can be made from the home care
facility of Apollo Hospital or Max Hospital, to take care of medical
and health needs of MMK; (t) Dr. Hazooria, General Physician of
MMK and his family can continue to attend MMK in property
no.15A, Amrita Shergill Marg, New Delhi; (u) Rishab is 22 years of
age and has graduated in Business Management and can look after the
affairs of the PHPL, which over the years, from a hugely successful
profit making company is incurring losses; (v) Rishab is the only
person most interested in the financial health of the PHPL, being the
ultimate beneficiary thereof; and, (w) at present there are no Directors
of the PHPL.
37. The senior counsel for Kumkum and Vinay in their personal
capacity as well as guardian ad litem, contended/referred (i) to
Suchita Srivastava Vs. Chandigarh Administration (2009) 9 SCC 1
and Jai Prakash Goel Vs. State AIR 2005 Del 83 to contend that
"substituted judgment test" is to be applied for taking any decision for
MMK and which requires this Court to step into the shoes of the
person who is considered to be mentally incapable and attempt to
make a decision which the said person would have made if had been
competent to doso; (ii) that the same principles have to be applied
while exercising guardianship jurisdiction; (iii) that per Section 2(l) of
the Mental Health Act, 1987, the same does not apply to mental
retardation; (iv) attention was drawn to Sections 2(1)(s) and 126(2)(f)
of Mental Healthcare Act, 2017; (v) that Rishab cannot be the
guardian of MMK because MMK, when capable of making decision,
had challenged the order of payment of maintenance for Rishab and
also because Rishab has filed police complaints against MMK and
asked for enhancement of maintenance; (vi) that vide order dated 26 th
February, 2014 in CS(OS) No.1321/2006 the undersigned has allowed
the application of Kumkum and Vinay for being appointed as guardian
ad litem of MMK reasoning that Natasha having interest adverse to
MMK and being inimical towards MMK could not be appointed as
guardian of MMK and the same holds good today also; (vii) that the
sympathies of Rishab are towards his mother Natasha and not towards
his father MMK and Natasha is inimical towards MMK and thus
Rishab is also disentitled from being the guardian of MMK; (viii) that
the criminal complaints filed by Rishabhimself against MMK also
show that the interest of Rishab is also adverse to MMK; (ix) that the
going away of Rishab to foreign lands to study also shows that he has
no love for MMK; (x) that Rishab even refused to meet MMK;
attention in this regard is drawn to the e-mails dated 20th January,
2012 and 25th January, 2012; (xi) that Rishab in fact has been playing
in the hands of Natasha, as evident from his complaint dated 14th
March, 2009 to the police;attention is drawn to the application for
interim relief filed by Rishab through Natasha in CS(OS)
No.1435/2006 where grievance was made of the maintenance ordered
to be paid by MMK for Rishab being not paid and it was pleaded that
since Rishab was studying abroad, it was impossible for him to
constantly monitor or ascertain the condition of MMK; (xii) that it is
wrongly being contended that Vinay is asking for Rs.1 lac per month
to visit MMK; attention is drawn to the common consent order dated
21st August, 2015 in all the proceedings aforesaid where it was agreed
that an amount of Rs.2 crores per annum be defrayed for meeting the
expenses of MMK including expenses towards upkeep, medical care,
legal expenses, rental etc. from the monies of PHPL; the sum of Rs.1
lac per month was for buying the day-to-day needs of MMK; (xiii)
that expenses of MMK having been borne by the PHPL, a company of
MMK himself, Natasha and Rishab have no locus to make a grievance
with respect thereto; (xiv) attention was drawn to the report dated 18 th
October, 2015 of the retired Judge of this Court appointed as Observer
as aforesaid, to the effect that there were rival camps amongst the
higher staff of the PHPL with lack of cooperation and to two
photographs of MMK with Kumkum and Vinay and their family
members to contend that he had started responding and was on the
mend and expressed happiness in his surrounding; (xv) attention was
invited to the report dated 29th August, 2016 of the retired Judge of
this Court appointed as Observer aforesaid with respect to the visit to
MMK at A-4/3, Vasant Vihar, New Delhi on 27th August, 2006 to
know about his health and conditions of living and reporting that
MMK was looked after by his two sisters and servants provided by the
company and that the flat which he was exclusively occupying was a
four bed room top floor flat with a lift and found to be well maintained
and furnished and quite clean and that MMK was neither able to talk
nor in a position to respond even by gesture and needed constant care
which was being provided by the servants under guidance of sisters of
MMK who occasionally visit him; (xvi) that MMK suffered a stroke
in July, 2013 and cannot be made to live in an inimical house; (xvii)
that recovery of MMK is possible only in familiar surrounding and if
displaced from the property where he has been living for last five and
a half years, is likely to deteriorate; (xviii) that both, Kumkum and
Vinay are financially well off in their matrimonial homes and have no
greed for the wealth of their brother MMK and belong to respectable
families; (xix) that Kumkum and Vinay have been submitting regular
account of expenses being incurred by them for taking care of MMK;
(xx) that the legal fees of Rs.80 lacs was in one year only and in other
years, the legal expenses have been in the range of Rs.25 to Rs.30 lcas
per year; (xxi) that there are a lot of unpaid lawyers bills also; (xxii)
that no complaint of defalcation in the accounts regularly submitted by
Kumkum and Vinay has ever been made; (xxiii) that similarly no
complaint of any deficiency in medical / health facility for MMK has
ever been made by Natasha or Rishab or any other person; (xxiv) that
the care of MMK cannot be handed over to a new team, as is
suggested; (xxv) reliance is placed on Meenu Seth Vs. Binu Seth AIR
2018 Del 54, holding that under Section 54(3) of the Mental Health
Act, 1987 only a suitable person could be appointed as Manager of
property and the appellant therein was not a suitable person because
had filed divorce proceedings alleging acts of cruelty against the
subject person and because there was one other civil litigation initiated
by the appellant therein against the subject person therein and which
showed that the endevaour was to take control of the properties; (xxvi)
that proceedings filed by MMK for declaring his marriage with
Natasha to be a nullity, if decided against the Natasha, Natasha will
not be left with any claim under the Memorandum of Family
Settlement dated 16th October, 1995; (xxvii) attention is drawn to the
extract of Board Meeting of the PHPL on 6th August, 2015 to contend
that Rishab had attempted to override the orders of the Court;attention
is also invited to the letter dated 10th August, 2015 of the PHPL to
ICICI Bank Ltd. signed by Rishab as Director, to contend that Rishab
was misrepresenting himself to be the Director; (xxviii) attention is
invited to the certificate dated 9th December, 2013 of SGRH with
respect to MMK, opining that "such patient recovers much faster in
familiar surrounding like their own home"; (xxix) that it is therefore
incumbent that the present state should continue and be not disturbed;
(xxx) that as per the admitted Will of MMK, Natasha has no right to
reside in propertyno.15A, Amrita Shergill Marg, New Delhi; (xxxi)
Natasha cannot take benefit of residing in the property without
performing her obligations as wife; (xxxii) that the admitted Will of
MMK in any case has not taken effect; (xxxiii) that the Will rather
shows that MMK had no trust in Rishab till he attained the age of 30
years; and, (xxxiv) that Kumkum and Vinay, as sisters of MMK, are
only interested in his well being and not interested in his business.
38. The senior counsel for Natasha and Rishab, in rejoinder
contended that (a) though Kumkum is living in a 800 sq. yds. house in
Vasant Vihar but did not keep MMK in her own house and rather took
the top floor of another house on rent, where MMK is housed and is
being looked after by servants and not by his sisters; (b) compilation
of documents was handed over to show that about Rs.80 lacs per year
is being spent by Kumkum and Vinay in litigation; Rs.25 lacs was
spent in three months alone of the year 2018; (c) as compared
therewith, the medical expenses of MMK are only Rs.5 lacs, showing
the unproportionate amount being drayed in litigation; (d) though
MMK is living on one floor only but excessive charges are being
claimed towards electricity thereof; (e) Natasha has rights in property
no.15A, Amrita Shergill Marg, New Delhi under the Memorandum of
Family Settlement dated 16th October, 1995,irrespective of being the
wife of MMK; (f) the Mental Healthcare Act, 2017 which has repealed
the Mental Health Act, 1987, in Section 2(1)(s) thereof has an
exhaustive definition of mental illness and has removed the concept of
guardian of property; (g) Suchita Srivastava supra related to decision
with regard to termination of pregnancy of a mentally retarded person
and has no application; (h) even otherwise, the views of MMK till he
suffered brain stroke on 29th July, 2013, are reflected in his undisputed
Will which provides for his entire estate going to Rishab without any
portion of his property or company going to Kumkum or Vinay except
for an amount of Rs.10 crores each; this was despite the fact that
MMK was in litigation with his wife Natasha at the time of making of
the Will; (i) the order dated 6th February, 2013 in CM(M)
No.1019/2010 filed by MMK seeking modification of the order of
Rishab‟s maintenance also records that during the hearing, MMK had
shown willingness to bear all legitimate expenses of Rishab including
his school fee, tuition fee, training camps and any other expenses; (j) it
is only Kumkum and Vinay who oppose this maintenance and with
respect to which opposition, it was observed in the order dated 9 th
May, 2006 in CS(OS) No.1321/2006 and CS(OS) No.1453/2006 that
it could not be said that MMK had intent of disowning his own son or
denying him support or depriving him of his wealth upon the son
turning major and the stand taken by Kumkum and Vinay as guardian
of MMK was not reasonable; (k) all litigations instituted by Rishab
against MMK were instituted by Natasha during his minority; (l)
Kumkum and Vinay have been litigating using MMK‟s money, to
prevent Rishab from having a say in the PHPL; (m) Rishab, on
attaining majority has withdrawn one of the suits filed on his behalf
during his minority; (n) Kumkum and Vinay have been wanting
lumpsum amounts instead of actual expenses incurred and have even
asked for a new car although two cars of PHPL have been provided
for MMK; (o) Kumkum and Vinay have also not been safeguarding
the income tax affairs of MMK and for which steps have been taken
by Rishab; (p) of the four bed rooms stated to be in the flat in
occupation of MMK, three are occupied by servants and are
unfurnished; (q) the medical records of SGRH also show that MMK
was got discharged on relatives risk under the signatures of the
servant; (r) exorbitant rent of Rs.2 lacs per month is being paid for the
second floor flat in occupation of MMK, when similar flats are
available at a rent of Rs.70,000/- per month; (s) though the Observer
appointed by this Court has reported that MMK is being taken care of
by two servants only, Kumkum and Vinay are charging Rs.2 lacs per
month towards salary of 17 servants; (t) the salary of the two drivers
provided to MMK is being borne by the PHPL; (u) the rent of the flat
in occupation of MMK is being paid to the son of Kumkum; (v) the
sum of Rs.2 crores per annum was agreed bona fide but is found to
have been not applied for the benefit of MMK; (w) Natasha and
Rishab have already filed applications in this regard; (x) Rishab
proposes that MMK be put incharge of a senior doctor of a reputed
hospital and be looked after by specialized home care nurses and
attendants including two male attendants and a twenty four hours
nurse from any reputed hospital with the concerned doctor regularly
checking on the health of MMK;(y) with respect to the PHPL, it is
proposed that Rishab be inducted as Director therein and head hunting
company be hired to search for other professional Directors to be
appointed thereof and such Director may be selected in consultation
with a senior counsel of this Court; (z) on the one hand Rishab is
presently not doing anything and on the other hand the PHPL is
suffering losses; (aa) the losses suffered by PHPL also show that the
present arrangement is not working; (bb) what is suggested will ensure
that the huge expenses being incurred from the coffers of MMK are
stopped; (cc) shifting of MMK to propertyno.15A, Amrita Shergill
Marg, New Delhi will also ensure that outflow towards rent is
stopped; (dd) CCTVs can be installed to record all movements in and
around MMK, with footage thereof being accessible to Kumkum and
Vinay to satisfy them of his well being; (ee) even if the marriage of
Natasha with MMK were to be declared a nullity, the same would
have no effect on the Will of MMK in favour of Rishab; (ff) this
Court, under Order XXXII Rules 9 and 10 of the CPC, exercises
parens patriae jurisdiction; and, (gg) reliance was placed on
Marggarate Maria Pulparampil Nee Feldman Vs. Dr. Chacko
PulparampilAIR 1970 Ker 1 (FB).
39. The counsel for Kumkum and Vinay, in his further arguments
contended that (i) there is no ground for removal of Kumkum and
Vinay as guardian of MMK inasmuch as there is no change and the
condition of MMK remains the same; (ii) Mental Healthcare Act,
2017 has no application per Section 126(2)(f) thereof; (iii) reliance is
placed onIndira Vs. K.P.V. Menon (2010) SCC OnLine Ker 4978
(DB) and Amit Toppo Vs. None (2011) SCC OnLine Ori 174; (iv)
Rishab has not offered to withdraw the partition suit; (v) similarly
Natasha has also not offered to withdraw the suits filed by her; (vi) it
is proposed that all litigations be ordered to be kept in abeyance and
living expenses of MMK be reduced from Rs.2 crores per annum to at
about Rs.50 lacs to Rs.60 lacs and MMK be allowed to continue as he
has been residing, as the said arrangement has worked well for him till
now; (vii) MMK is close to his sisters and the love and affection of the
sisters is working as therapy for him; (viii) Kumkum and Vinay won‟t
have access to property no.15A, Amrita Shergill Marg, New Delhi;
(ix) the interest of Natasha and Rishabare intertwined; (x) Kumkum
and Vinay do not feel secure at property no.15A, Amrita Shergill
Marg, New Delhi; (xi) there is a huge trust deficit; (xii) arrangement
be made for protection of the estate of MMK and the Observer
presently appointed to continue overseeing; (xiii) no full control of
MMK can be given to Rishab; (xiv) approximately Rs.12 lacs to 15
lacs is being expended by MMK per month and accounts thereof have
been filed from time to time and scrutinized; (xv) all litigations can be
put to a standstill; (xvi) Kumkum and Vinay continue to incur
expenses irrespective whether the monies as per common order are
released or not; and, (xvii) Rishab can be a Director of PHPL and the
other Director can be a neutral person.
40. The senior counsel for Joginder informed that an application has
been filed in CS(OS) No.1321/2006 for freehold conversion of
leasehold rights in the land underneath properties no.15 and 15A,
Amrita Shergill Marg, New Delhi.
41. As would be evident from above, at the end of a marathon
hearing, there is consensus qua putting the litigation to an end, with
the only difference being that the counsel for the Kumkum and Vinay
personally and as guardian ad litem of MMK suggesting that the
litigation be kept in abeyance rather than being ended.
42. In Shipping Corporation of India Ltd. Vs. Machado Brothers
(2004) 11 SCC 168, Guru Gobind Singh Indraprastha University Vs.
Dr. Smit Rajput 2015 SCC OnLine Del 9130 (DB), Pushpawati Vs.
Narain Prasad Gupta 2013 SCC OnLine Del 4750, Varinder Sahni
Vs. Pratap K. Kaula 2013 SCC OnLine Del 765 and State Bank of India
Vs. State Bank of India, Schedule Castes/Tribes Employees Welfare Association
2011 SCC OnLine Mad 313 (DB), it has been held that cause of action
with which a litigation is commenced, if is found to have ceased to
exist, the litigation should not be permitted to continue thereafter and
an immediate stop should be put thereto. It was held that it is the duty
of the Court to take such action as is necessary in the interest of justice,
which include disposing of infructuous litigation. It was further held
that continuation of a suit which has become infructuous by
disappearance of cause of action would amount to an abuse of the
process of the Court and interest of justice requires that such suit
should be disposed of.
43. Since July, 2013 when MMK suffered a stroke and owing
whereto according to all parties concerned he is unable to decide for
himself, in the last over six years there has been no improvement in
his condition and it is not the case of either of the parties that there is
likelihood in near future of any improvement. It is thus not deemed
necessary to keep the present as well as other litigations pending by
adjourning the same sine die or by keeping the same in abeyance. The
possibility of MMK in future reverting to his pre July, 2013 state and
desirous of continuing the litigations can be addressed by, while
disposing of the litigations, permitting the parties to revive some of
the litigations.
44. Else, it is felt that in view of the present mental state of mind of
MMK and as long as the same continues and in view of the offer of
Natasha and Rishab, the cause of action for the litigations have
disappeared.
45. It is accordingly ordered:
A. CS(OS) No.1321/2006 is dismissed as withdrawn with
liberty to Natasha to sue afresh if a fresh cause of action
arises.
B. CS(OS) No.1435/2006 is dismissed as withdrawn with
liberty to Rishab to sue afresh if cause of action arises.
C. There is no need for modification of the order dated 25th
April, 2014 disposing of CS(OS) No.1137/2014 and the
applications filed therefor are also disposed of.
D. CS(OS) No.2161/2015 is disposed of in terms of the
order hereinbelow, with liberty to the parties to from time
to time apply for modification of the order passed
hereinbelow and for further directions.
E. The proceedings initiated by MMK for declaration of
nullity of his marriage with Natasha be withdrawn by
Kumkum and Vinay with liberty to MMK to revive the
same in the event of his mental condition being restored
to pre July, 2013 state.
F. The criminal complaint of offences under Sections 494
and 495 of the Indian Penal Code, 1860 against Natasha
be withdrawn with liberty to MMK to file a fresh
complaint in future if cause of action accrues.
G. The criminal complaint filed by MMK against Natasha
and others of offence under Section 448 of the IPC, be
also withdrawn by Kumkum and Vinay.
H. Natasha to withdraw CM(M) No.1219/2010 preferred by
her against the order of dismissal of her application for
maintenance.
I. Natasha to withdraw criminal complaint filed by her with
respect to transfer of shares from various charitable trusts
to MMK.
J. Natasha to withdraw the SLP(Civil) No.23004/2014
preferred by her against the order dated 28th March, 2014
in Execution Petition No.30/2007.
K. Rishab to withdraw the case filed by him under the
Mental Health Act for appointment of guardian of MMK.
L. Rishab as guardian ad litemof MMK to pursue W.P.(C)
No.11907/2016.
M. Kumkum to withdraw the criminal complaint filed by her
against Natasha and her servants of the offence of
breaking of cameras and trespass into portions allocated
to MMK.
N. Kumkum to withdraw the proceedings initiated by her
against Rishab for forging of Board Resolution of the
PHPL.
O. Rishab to take decision in consultation with the Observer
appointed by this Court qua the stand in the appeal
pending before the National Company Law Tribunal
(NCLT), in the best interest of MMK and in the best
interest of rights in favour of MMK and / or MMK and
Natasha whatsoever it may be, in property no.15A,
Amrita Shergill Marg, New Delhi in terms of
Memorandum of Family Settlement dated 16th October,
1995.
P. IA No.21637/2015 filed by the heirs of Joginder in
CS(OS) No.1321/2006 for conversion of leasehold rights
in the land underneath property no.15 and 15A, Amrita
Shergill Marg, New Delhi into freehold is disposed of, by
directing Rishab to, with the consent in writing of the
Observer, take a decision in this respect in the best
interest of MMK and / or rights of MMK and / or of
MMK and Natasha in property no.15A, Amrita Shergill
Marg, New Delhi under the Memorandum of Family
Settlement dated 16th October, 1995. In the event of the
decision being for freehold conversion, Rishab is
authorised to sign/execute/present for registration, all
documents/deeds in this regard, on behalf of MMK
including on behalf of MMK as shareholder/director of
JKPL.
46. I next take up the arrangement for future living and care of
MMK. Having heard the counsels, I am of the view that:
(i) At present it is in the best interest of MMK to continue
living as he has been living for the past sometime and for
the said status to continue. I have however met Kumkum
and Rishab in Chamber and counseled them to
independently of animosity between Natasha on the one
hand and Kumkum and Vinay on the other hand, builda
relationship in the best interest of MMK. It is not in
dispute that Rishab is the son of brother of Kumkum and
Vinay and there is no reason why Rishab, now having
attained majority, should not make all possible attempts
to forge a relationship anew with his paternal aunts and
their families, forgetting the past acrimony between his
mother Natasha and his paternal aunts. A cordial
relationship between Rishab, Kumkum and Vinay will be
the best therapy and medicine for MMK and I sincerely
hope that all of them,claiming to be concerned of the well
being of MMK, forgetting the past will make attempts in
that direction.
(ii) Rishab shall have unlimited access to MMK and all
decision regarding best care of MMK shall be taken
jointly by Rishab, Kumkum and Vinay, without
squabbling about annas and paise.
(iii) As far as the living expenses of MMK are concerned, the
counsel for Kumkum and Vinay on his own has offered
reduction thereof from the present Rs.2 crores per annum
to Rs.1.40 crores or Rs.1.50 crores per annum, since the
litigation expenses are coming to an end. Rishab has
however raised several questions with respect to the said
expenses and which can broadly be categorized as (a)
excessive rent of Rs.2 lacs per month, (b) excessive
electricity charges, and, (c) excessive deployment of
servants.
(iv) Since MMK requires constant looking after, provision for
residence for his caretaker in the house occupied by him
cannot be ignored. Though MMK may occupy one room
only but it is necessary to have accommodation for at
least two caretakers along with him.
(v) In the accommodation of MMK, there should also be a
spare guest bed room for Rishab to spend time with
MMK if so desires. At the same time, there has to be
sufficient space for visitors to MMK. Therefrom, it
appears that the minimum accommodation required is of
two bed rooms with living room, either with a servant
quarter or of three bed rooms.
(vi) Because the present accommodation occupied by MMK
is owned by son of Kumkum, the reasonableness of the
rent being paid therefor becomes an issue. Similarly, it
appears that as many as 17 servants are not required by
MMK.
(vii) Since as of now there is no report of any deterioration in
the health or condition of MMK, there is no need to
change his caregivers.
(viii) Rishab to place before the Observer appointed by this
Court proposals for renting of accommodation as
aforesaid for MMK in the vicinity of the accommodation
presently in his occupation and the Observer on the basis
thereof is requested to assess whether the rent being paid
on behalf of MMK to the son of Kumkum is higher than
the prevailing rents and if so, either the rent being paid on
behalf of MMK be re-negotiated or MMK be shifted to
another suitable accommodation.
(ix) The Observer is also requested to, in presence of Rishab,
Kumkum and Vinay, understand the need for number of
servants/caregivers for MMK and salary thereof and fix
the appropriate number of servants/caregivers and their
salary. The said salary be disbursed directly by PHPL
through Rishab, to the servants/caregivers and Rishab is
made personally responsible for timely payment thereof.
(x) The task having been entrusted to an Observer of the
Court, the findings of the Observer in this regard shall
bind the parties and the liberty hereinafter granted to the
parties to apply to this Court shall not extend to such
matters.
(xi) The electricity bills for the accommodation in occupation
of MMK shall be submitted to PHPL and be paid directly
by PHPL, ensuring that there is no disconnection of
electric supply.
(xii) One car equivalent to Ford / Octavia Superb, in a good
running condition, shall continue to be provided by PHPL
for use of MMK along with a driver. If the vehicle has
any breakdown incapable of rectification in a day or two,
causing inconvenience to MMK, the said car shall be
replaced. Similarly, on the day when the driver so
assigned to MMK is on leave or otherwise not available,
alternate driver shall be provided.
(xiii) The rent as may be assessed by the Observer shall be re-
considered every three years and the requirement of
number of caregivers shall be re-considered annually by
the Observer, save when change of circumstances
requires immediate reconsideration thereof.
(xiv) All the expenses so determined by the Observer shall be
defrayed directly by the PHPL and Rishab is personally
bound down to ensure timely payment/release thereof, to
avoid any disruption in the care to MMK.
(xv) A sum of Rs.1,50,000/- per month be however disbursed
by the PHPL to Kumkum for kitchen and daily need
items for MMK. The said amount be increased annually
by 25% of last paid amount.
(xvi) In addition, the amount required to be spent for comfort
or any other requirements of MMK be discussed by
Rishab with Kumkum and be defrayed by PHPL and in
the event of their not arriving at a consensus, decision of
Observer shall bind the parties.
(xvii) In the scheme devised above, an attempt has been made
to achieve disbursement directly by PHPL through
Rishab, of all the regular expenses for
upkeep/comfort/living of MMK, to avoid suspicions on
part of Natasha and Rishab of, the entire money directed
to be paid under the earlier order being not utilized for
the purpose. Only the quantum of kitchen and daily need
items has been fixed and to be paid to Kumkum, who
today is living closest to where MMK is living. It is
expected that Rishab would not like to see his father
suffering in any way for lack of funds/money. Besides
causing misery to MMK and to those concerned about his
welfare, the same will also reflect adversely on Rishab as
son. It is expected that Rishab, more than Kumkum and
Vinay, will be keen to ensure that MMK continues to
enjoy the living standards as he has been enjoying in the
past, specially when he was himself carrying on business.
The Court has reposed faith in Rishab‟s goodness for his
father, who today is helpless, and hopes that Rishab will
not give occasion for the Court to in future, find, Rishab
having failed his father.
47. That brings me to the business of MMK:
(a) The counsel for the Kumkum and Vinay has fairly
consented to Rishab becoming a Director in the PHPL.
As far as the other Director/s of PHPL is concerned, Mr.
Arun Kathpalia, Senior Counsel has graciously consented
to,as nominee of the Court, assist in identifying the mode
of appointment and selection thereof, considering the
nature of business of PHPL and its requirement. Steps in
that regard be taken by Rishab with the consent in writing
of Mr. Arun Kathpalia, Senior Advocate.
(b) Mr. Arun Kathpalia, Senior Advocate is also requested to
from time to time, assess the need if any of change of
board membersof PHPL and if change in management is
deemed necessary to also advice Rishab qua the same and
Rishab to, with the consent of Mr. Arun Kathpalia, effect
such change.
(c) Rishab,along with other directors of PHPL, to conduct
the affairs of PHPL and manage the business of PHPL, in
the best interest of its shareholders and with liabilities as
guardian appointed by this Court of interest of MMK in
PHPL.
(d) The fixed deposits of PHPL / MMK to be continued and
renewed to yield the maximum returns, to be reinvested,
if not required to meet expenses of MMK in terms of
above and no monies be withdrawn therefrom for any
other purpose. The other restraints in force in these
proceedings with respect thereto, to continue.
(e) The monies in the mutual funds be reinvested again in the
best interest of MMK and to yield maximum returns and
Rishab is again made liable as guardian appointed by this
Court of MMK therefor. The restraints with respect
thereto under orders of the Court, to continue.
(f) All other decisions with respect to business and financial
affairs of PHPL be taken by Rishab with consent in
writing of Mr. Arun Kathpalia, Senior Advocate with
Rishab being liable therefor as Court appointed guardian
of MMK for the said purpose.
(g) Mr. Arun Kathpalia, Senior Advocate to fix his own
honorarium, depending on the contribution required and
payable to him out of monies of PHPL.
48. This Court has for the time being not appointed anyone as
guardian of person of MMK and continues to be parens patriae of
MMK and has only nominated Rishab to do the assigned tasks for
benefit of MMK, on behalf of the Court and Rishab shall thus remain
answerable to the Court. It is expected that Rishab, over a period of
time, shall prove worthy of being entrusted with guardianship of his
father.
49. All the suits/proceedings are disposed of in terms of above.
RAJIV SAHAI ENDLAW, J.
FEBRUARY24, 2020
„gsr‟..
