Full Judgment Text
2015:BHC-OS:4427
TS-2-1986-MHATRE-V-PARELKAR-F.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 2 OF 1986
IN
TESTAMENTARY PETITION NO. 824 OF 1981
Manohar Shamrao Parelkar
(since deceased; original sole Petitioner)
1. Sarojini Ratnakar Bhatte
(since deceased)
1(a) Smt. Rujuta Pradeep Mhatre , of Bombay,
Hindu, Indian Inhabitant, presently
residing at 75, Sita Sadan, Ground Floor,
Shivaji Park, Keluskar Road, Dadar,
Mumbai – 400 028
married daughter of the predeceased
daughter of the deceased
1(b) Smt. Neeta Shartkumar Madgulkar , of
Bombay, Hindu Inhabitant of Pune and
having her address at 75, Sita Sadan,
Ground Floor, Shivaji Park, Keluskar Road,
Dadar, Mumbai – 400 028
married daughter of the predeceased
daughter of the deceased
1(c) Miss Preeta Ratnakar Bhatte ,
of Bombay, Hindu Inhabitant, residing at
75, Sita Sadan, Ground Floor, Shivaji Park,
Keluskar Road, Dadar, Mumbai – 400 028
married daughter of the predeceased
daughter of the deceased
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2 Smt. Sandhya Yeshwant Parelkar ,
of Bombay, Hindu Inhabitant, widow of the
predeceased son of the deceased;
since deceased
2(a) Smt. Neelam Vinay Parelkar, of
Mumbai, Hindu Inhabitant, residing at 75,
Sita Sadan, Ground Floor, Shivaji Park,
Keluskar Road, Dadar, Mumbai – 400 028
3 Smt. Shalini Manohar Parelkar , of
Bombay, Hindu Inhabitant, widow of the
predeceased son of the deceased
4 Vinay Manohar Parelkar
(since deceased)
4(a) Pranil Vinay Parelkar , of Mumbai, Hindu
Inhabitant, residing at 75, Sita Sadan,
Ground Floor, Shivaji Park, Keluskar Road,
Dadar, Mumbai – 400 028
4(b) Avanti Vinay Parelkar, of Mumbai,
Hindu Inhabitant, residing at 75, Sita
Sadan, Ground Floor, Shivaji Park,
Keluskar Road, Dadar, Mumbai – 400 028
5 Smt. Padmaja Deepak Goregaonkar ,
of Bombay, Hindu Inhabitant, married
daughter of the predeceased son of the
deceased, residing at Smruti Dawood Baug
Lane, Opp. Municipal School of Varsova
Road, Andheri (West), Mumbai 400 058 ...Plaintiffs
Versus
Harihar Shankarrao Parelkar
(since deceased)
1 Smt. Smita Harihar Parelkar ,
2 Paritosh Harihar Parelkar ,
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3 Smt. Mandira Mangesh Dalvi ,
all Hindu Inhabitants, of Bombay, residing
at 75, Sita Sadan, Ground Floor, Shivaji
Park, Keluskar Road, Dadar, Mumbai – 400
028 ...Defendants
APPEARANCES
FOR THE PLAINTIFFS
Mr. H.C. Mehta , i/b M/s. Mehta & Co.,
FOR THE DEFENDANTS Mr. Sanjay Jain , i/b Johair & Co.,
CORAM : G.S.Patel, J.
JUDGEMENT RESERVED : 28th October 2014
JUDGEMENT PRONOUNCED : 30th March 2015
JUDGMENT :
This is a petition for Letters of Administration to the estate,
1.
property and credits of one Shankarrao H. Parelkar
(“ Shankarrao ”), who died on 8th November 1979. Shankarrao was
survived by his widow Sitabai; his sons Manohar, Yeshwant and
Harihar; and a daughter, Sarojini Bhatte. Shankarrao died intestate;
none have propounded any Will or testamentary writing. His estate
would, therefore, devolve as on intestacy, with a 1/5th or 20% share
in his estate going to his widow and four children respectively. This
is not disputed.
At the time of his death, Shankarrao was a 50% partner in a
2.
firm known as M/s Parelkar & Dallas. This was a firm of architects
of some considerable repute and standing among architects and in
the construction industry in Mumbai. It had considerable business,
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revenue and goodwill. The firm continues today, though, as we shall
see, in considerably changed circumstances. The firm was first
established on 19th October 1948 and has been in practice since
then. Vinay Manohar Parelkar, Shankarrao’s grandson (Mahonar’s
son) claims that he entered into partnership with the other 50%
partner Mr. Dallas with effect from the date of Shankarrao’s death.
He claims to have been inducted into this partnership, but does not
show that he paid any consideration for this either to Shankarrao’s
estate or to Mr. Dallas.
3. On 20th October 1981, Manohar, Shankarrao’s eldest son,
filed the present Petition No. 825 of 1981 for Letters of
Administration to Shankarrao’s estate, property and credits. The
petition includes a schedule of assets. Of the very many assets
listed, there are also certain immovable properties, one of which is a
land with building known as Sita Sadan at Plot No. 75, Keluskar
Road, Shivaji Park, Dadar. There are other immovable properties
too and there is also his interest in the partnership firm of Parelkar
and Dallas. The petition, however, as originally brought showed
Shankarrao’s interest in this firm as being of the value of only Rs.
1
3167.10.
4. Following the filing of this Petition many of the lineal
descendants of Shankarrao and their own heirs passed away. The
petition has been amended several times to reflect these changes.
For convenience a family tree showing the relations between the
parties is appended to this judgment.
1
Item 7 of the schedule of the estates to the Petition.
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5. On 14th December 1981, Shankarrao’s second son Yeshwant
passed away. He was survived by his widow, Sandhya; the couple
had no children.
6. Even at this time, the petition for Letters of Administration,
though pending, had not been contested.
7. Sometime in 1984, Harihar, Shankarrao’s younger son, filed
Suit No. 8009 of 1984 in the Bombay City Civil Court at Bombay
seeking reliefs in relation to the firm of M/s. Parelkar & Dallas in his
capacity as one of Shankarrao’s heirs. To this suit, Manohar’s son
Vinay (Harihar’s nephew) was joined as Defendant No. 2(b).
Shankarrao’s other heirs were also party Defendants, as was Mr.
Dallas, the remaining 50% partner in the firm. Subsequently, Vinay’s
wife, Neelam, was also joined as Defendant No. 6 to this partnership
suit. Many of the heirs joined to this suit supported Vinay.
8. On 21st December 1985, Harihar (Shankarrao’s third son and
the Plaintiff in the Bombay City Civil Court partnership action) filed
a Caveat and an Affidavit in Support in the present petition for
Letters of Administration. The petition was then renumbered as
Suit No. 2 of 1986.
9. About two years later, on 10th November 1987, Harihar
executed a Release Deed in respect of one of the properties included
in Shankarrao’s estate. Harihar reserved his rights in other
properties and the remaining estate of Shankarrao and then agreed,
in that Release Deed, one to which I will turn presently, to withdraw
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his Caveat. Harihar later claimed that he did not in fact ever
withdraw that Caveat since the commitments made to him were not
fulfilled. In any case, the fact remains that Manohar, the Plaintiff in
the testamentary action, made no application for discharge of the
Caveat on the basis of this Release Deed or for enforcement of
Harihar’s obligations under it.
10. On 20th April 1988, Shankarrao’s widow, Sitabai, passed
away. She was survived by her two sons Manohar and Harihar, her
daughter Sarojini and her second son, Yeshwant’s, widow, Sandhya.
11. On 27th June 1989, Neelam Parelkar, Vinay’s wife and the
daughter-in-law of Manohar, Shankarrao’s elder son, claimed that
she had been inducted as partner of M/s. Parelkar & Dallas. She
also claimed that Mr. Dallas had retired. She, too, did not claim to
have paid any consideration whatsoever into Shankarrao’s estate.
12. On 10th January 1992, Manohar, Shankarrao’s elder son,
passed away. He was survived by his wife, Shalini, son Vinay and his
daughter Padmaja Goregaonkar. Shalini, Vinay and Padmaja were
later added as party Plaintiffs to the present action.
13. After Manohar passed away, Harihar, who had filed a Caveat
and was the original Defendant in the suit filed Chamber Summons
No. 608 of 1992 seeking that he be transposed as a Plaintiff. This
application was opposed by the other heirs who filed a counter
Chamber Summons No. 736 of 1992. The affidavit in support of that
second Chamber Summons was affirmed by Vinay, Manohar’s son.
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On 11th September 1992, Chamber Summons No. 736 of 1992 was
allowed. The Court held that the other heirs (i.e., the Applicants in
the Chamber Summons) had a higher and superior right in
Shankarrao’s estate as compared with Harihar, the original
Defendant. Thus, those heirs were joined as party Plaintiffs and
Harihar continued as a Defendant. The plaint was amended thus:
Shankarrao’s only daughter Sarojini Bhatte was joined as Petitioner
No.1; Yashwant’s widow (Shankarrao’s daughter-in-law, the widow
of his second son) was joined as Petitioner No. 2; Shalini,
Manohar’s widow was joined as Petitioner No. 3; Vinay, Manohar’s
son was joined as Petitioner No. 4; and Padmaja Goregaonkar,
Manohar and Shalini’s daughter was joined as Petitioner No. 5.
14. On 8th November 1992, Harihar filed an additional affidavit
in support of the Caveat. The Plaintiffs’ case was conducted till this
time by Vinay, Manohar’s son, Plaintiff No. 4.
15. On 6th August 2001, Harihar’s partnership suit was decreed.
At that time, Harihar had a 25% share in Shankarrao’s estate. Vinay
and his wife Neelam were ordered to pay Harihar 25% of
Shankarrao’s 50% share in the profits of the firm from the date of
Shankarrao’s death (8th November 1979) till payment. This
judgment and decree was carried in Appeal by Vinay in First Appeal
No. 94 of 2003. This is pending and there appears to be no stay of
the decree. It has not been satisfied either.
16. On 22nd August 2003, Sarojini Bhatte, Shankarrao and
Sitabai’s only daughter, passed away. She was survived by her three
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daughters, Rujuta Mhatre, Neeta Madgulkar and Preeta Bhatte, who
are now joined as Plaintiffs Nos. 1(a) to 1(c).
17. On 28th July 2002 Harihar Parelkar passed away. His heirs
are Defendants Nos. 1 to 3, his wife, son and daughter respectively.
18. On 8th February 2008, Shalini, the original Plaintiff No.3
(Manohar Parelkar’s widow) passed away. She was survived by
Plaintiffs Nos. 4 and 5 viz. Vinay Parelkar and Padmaja
Goregaonkar.
19. On 11th December 2010, the 2nd Petitioner Sandhya, viz., the
widow of Shankarrao’s second son Yeshwant, passed away. She left
no heirs. However Neelam Parelkar, Petitioner No. 2 (a), the wife of
Petitioner No. 4 Vinay, claimed to be an Executor of an alleged Will
said to be have been left by Sandhya. Neelam is thus on record also
as the Executor of that Will. It does not appear that any Application
for Probate of that Will was ever made.
20. Sometime in 2010, Vinay Parelkar filed Suit No. 2807 of 2010
in the Bombay City Civil Court at Bombay, in respect of a room on
the second floor of “Sita Sadan”. Vinay alleged that these premises
had been gifted to him by Sandhya Parelkar, the deceased original
Plaintiff No. 2 and the widow of Shankarrao’s second son Yeshwant.
Vinay sought a restraint against the Defendants from entering upon
this property. The City Civil Court granted interim relief. The
matter was carried in appeal in A.O. No. 230 of 2011. Vinay also
filed a Cross Appeal No. 94 of 2011. On 30th August 2011, the
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Defendants’ Appeal was allowed and Vinay’s Appeal was rejected.
The impugned interim order of the City Civil Court was set aside
and the Notice of Motion filed by Vinay was dismissed.
21. It seems that the present suit was in the meantime dismissed
for default but came to be restored shortly thereafter. Vinay filed an
evidence Affidavit in these proceedings. However he passed away
on 21st October 2011 before his cross examination could commence.
He was survived by his widow, Neelam, Petitioner No.2(a); his son
Pranil, Petitioner No. 4(a) and his daughter, Avanti, Petitioner
No.4(b).
22. In February 2012 Neelam, Petitioner No.2(a), filed her
Affidavit in lieu of Examination-in-Chief. The Defendants sought to
have portions of this evidence Affidavit struck off as being hearsay.
That application was by way of Chamber Summons No. 47 of 2012,
and this came to be disposed of on 15th April 2012 with an
observation that at that stage it was not possible to say what portion
of Neelam’s Affidavit was hearsay and what portion to her personal
knowledge. A Commissioner was directed to record evidence. The
cross-examination of the Plaintiff’s only witness, Neelam, Plaintiff
No.2 (a) was ultimately conducted in Court on 17th June 2014 (R.D.
Dhanuka, J) and 25th June 2014 (S.J. Kathawalla, J). The
Defendants led no oral evidence. They did however tender certain
documents in evidence being in the nature of orders of the Court
and proceedings in and arising from proceedings in the City Civil
Court.
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23. On 25th November 2008, issues had been framed (R.Y.
Ganoo, J). These are set out below with my findings against each.
Sr No Issue Finding
No
1. Do the Plaintiffs prove that
they are entitled to administer
the estate of the deceased?
No
2. Do the Defendants prove that
the letters or administration
should be granted jointly to
the Plaintiffs and the
Defendants?
3. What Order? Letters of
Administrati
on granted
to the
Defendants
24. Issues Nos. 1 and 2 are only ones for determination. They are
both conveniently dealt with together. I have heard Mr. Mehta,
learned Counsel for the Plaintiff and Mr. Jain, learned Counsel for
the Defendant and, with their assistance, have considered the
documents and evidence on record as also the pleadings of the
parties.
25. Before I consider the rival submissions, it must be noted that
Shankarrao was first survived by five heirs including his widow.
Today, there are only three contesting branches of Shankarrao’s
family. The reason is that during the pendency of this litigation,
Sitabai, Shankarrao’s widow, too passed away as did Yeshwant
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(Shankarrao and Sitabai’s second son) and Yeshwant’s widow
Sandhya. Yeshwant and Sandhya had no heirs. The consequence is
that there are only three contesting branches. The Plaintiffs are two
of these three branches, viz., those of Manohar, Shankarrao’s elder
son; and Sarojini Bhatte, Shankarrao’s daughter. Within each of
those branches, the surviving heirs are Plaintiffs. The action is
opposed by the third surviving branch, that of Harihar
(Shankarrao’s third son) and his heirs. The consequence is that on
intestacy, and this cannot be disputed, Shankarrao’s estate is now
divisible between these three branches. The question before me is
who amongst these surviving lineal descendants is best suited to be
appointed an Administrator of Shankarrao’s estate. A subsidiary
question is also whether an appointment should be made of one or
more persons from the Plaintiffs and Defendants jointly. This is
Issue No. 2. I have heard both the learned Counsel on both these
issues.
26. In her cross-examination conducted on 17th June 2014
Neelam, PW.1, claimed that she had a 60% share in Shankarrao’s
2
estate. How she arrived at this is not precisely stated. She claimed
that Harihar’s branch was only entitled to 20% and that Manohar’s
branch was entitled to another 20% share. Mr. Mehta was unable to
explain how this 60% claim could have been arrived at. I believe that
Mr. Jain is correct in his submission that this computation of claim
by Neelam is entirely erroneous, and that the three contesting
branches would, no matter how one looks at it, be entitled to a
33.33% share each in Shankarrao’s estate.
2
Page 139 of the paper-book
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27. The reason for this suggests itself. When Shankkarrao passed
away he was survived by five heirs, each of whom therefore took a
20% share, right, title and interest in his estate. Shankarrao’s second
son Yeshwant, passed away on 14th December 1981. His heirs were
his widow Sandhya, original Defendant No. 2, and his mother
Sitabai. Yashwant’s 20% share in Shankarrao’s estate would thus,
have devolved on Sandhya and Sitabai equally, each of whom would
have thus received an additional 10% share in Shankarrao’s estate.
Sitabai passed away in 1988 and was survived by her two sons
Manohar and Harihar, her daughter Sarojini, and Sandhya, the
widow of her predeceased son. Sitabai’s 30% share (her original 20%
plus the 10% she inherited from Yeshwant, her predeceased son)
would have thus devolved in four shares on Manohar, Sandhya,
Harihar and Sarojini each of whom would have thus got an
additional 7.5% share in Shankarrao’s estate. Now Sandhya too
passed away in 2010. She and Yashwant had no children of their
own. In view of the provisions of Section 15 of the Hindu
Succession Act read with Sections 8, 9 and the Schedule to that Act,
Sandhya would have been survived by her husband’s heirs, as
specified in Section 15(1)(b). Now Yeshwant’s heirs at that time
would have been those in Class 2, Entry 4 of the Schedule to the
Act, i.e., the children of Manohar, Harihar and Sarojini. Thus,
Sandhya’s 17.5% share (her original 10% share inherited from
Yeshwant and the 7.5% share inherited from Sitabai) would have
devolved in three equal shares, i.e., 5.83% each, on Manohar’s
branch, Harihar’s branch and Sarojini’s branch. The consequence
would be that each of these three branches would have its original
20% share, plus the 7.5% share inherited from Sitabai and
additionally the 5.833% share inherited from Sandhya. Thus, each of
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these three branches would have taken exactly a 1/3rd share each in
Shankarrao’s estate. Consequently, Neelam’s statement in her
cross-examination that she has a 60% share in the estate of
Shankarrao is incorrect and without any basis.
28. Neelam’s claim seems to be based on the alleged Wills left
behind by Shankarrao’s widow Sitabai and Yeshwant’s widow
Sandhya. Neither of these Wills are admitted. Neither of these Wills
have been proved. A Petition for probate or Letters of
Administration with Will annexed to Sitabai’s Will apparently
abated. Mr. Jain is correct in his submission that a person appointed
to administer the estate of a person who died intestate must
necessarily do so in accordance with law. Such a person is appointed
in a fiduciary capacity. He or she cannot make a claim that is adverse
to the interests of the other heirs in accordance with law. Neelam’s
claim to 60% of Shankarrao’s estate is entirely without established or
proved basis. As we have seen, each of the three surviving branches
has a 33.33% share in that estate. It is not possible to accept the claim
by Mr. Mehta that this evidence by Neelam is one that must be
accepted. Merely asserting a larger interest is not proof of
entitlement to that share.
29. But this is not all. There are other aspects in respect of which
Neelam also makes a claim that is controverted. Mr. Jain submits
that her claim as made is adverse to that of the estate. She has
3
claimed in her cross-examination as also in her Affidavit in lieu of
Examination-in-Chief that she is a tenant of the first floor of Sita
3
Page 139
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Sadan. Her deposition in this respect is set out in paragraph 12 of
the evidence affidavit. In her cross-examination on 17th June 2014
4
Neelam says:
“Witness Volunteers: In so far as 1st
floor premises is concerned, I am claiming
to be tenant thereof independently.”
It is not in dispute that Shankarrao was the owner of these premises.
There is nothing to show how and when Neelam acquired an
“independent” tenancy in respect of these premises.
Further, Neelam has also claimed to be a tenant of the entire
30.
third floor of Sita Sadan and, along with her children Pranil and
Avanti, also claimed ownership of part of the second floor of Sita
Sadan. The averments in this respect are set out in paragraph 12 of
Neelam’s evidence affidavit. Neelam claims that she has been
residing since marriage with Vinay (original Plaintiff No. 1) in Sita
Sadan and that Shankarrao at some point in time, which remains
unspecified, created a tenancy of the third floor and part of the
terrace in favour of Neelam’s father-in-law, Manohar. Despite this,
she says that Manohar and other members of his family stayed on
the second floor. She then makes various statements about
marriages within the family and allegations against the Defendants.
Nothing, however, is brought on record to establish the tenancy that
Neelam claims was granted to Manohar. What is not in doubt again
is that the third floor premises were part of the estate of Shankarrao.
4
Paragraph 4 at page 139
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31. In cross-examination, Neelam was asked whether she had any
5
rent receipts in respect of the first floor and third floor. She
admitted that she has no such rent receipts; that these were never
executed in her favour by Shankarrao in his life time; that she had no
documents to support her claim of tenancy for the first floor; and
that her claim to a share in the partnership firm was not based on a
testamentary writing or any gift deed. Neelam was specifically asked
on the first date of her cross-examination to produce the relevant
6 7
rent receipts. On the next occasion, on 25th June 2014 she was
asked whether she could produce these rent receipts. She said she
could not.
32. As regards the second floor of Sita Sadan, Neelam claims
ownership of a part of this floor and says that her husband Vinay
(original Plaintiff No. 1) filed Suit No. 2807 of 2010 in respect of
these premises. I have already noted the events relating to the ad-
interim injunction in respect of these premises and the fact that the
4th Plaintiff’s motion was dismissed in Appeal, a fact that Neelam is
careful not to mention anywhere in her evidence affidavit.
33. Thus, in respect of various portions of valuable immovable
properties, Neelam, representing the other Plaintiffs, all of whom
have supported her, has made claims that are clearly adverse to the
interests of Shankarrao’s estate.
5
Paragraphs 5 and 7of the cross-examination at page 140.
6
Paragraph 7 at page 147.
7
Question 1, page 141.
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34. Neelam and her fellow Plaintiffs, including her husband
(Plaintiff No. 1, Vinay) have also laid claim to Shankarrao’s 50%
share in the partnership firm of M/s. Parelkar & Dallas. The value
of Shankarrao’s share in that firm has been shown as only Rs.
3,176/- in the schedule annexed to the Petition. This is clearly not
tenable. This claim has been rejected by the Bombay City Civil
Court in Suit No. 8009 of 1984, to which I have earlier referred, and
which was decreed in favour of Harihar, a decree that has as yet not
been satisfied nor stayed. This firm has huge goodwill and tenanted
premises. All of this is recorded in the decree of the Bombay City
Civil Court. Neelam and Vinay were decreed to pay profits year on
year from the date of Shankarrao’s death. These are even now
unpaid. In the Suit, Vinay and Neelam have even alleged that the
estate’s claim is barred by limitation. This clearly shows that the
claim made is adverse to the estate of the deceased.
35. The consequence of all of this is that there is absolutely
nothing to substantiate Neelam’s claim to tenancy of any premises,
ownership of any premises or to a larger share in Shankarrao’s
estate. She seems simply to have grabbed it for herself without any
justifiable legal basis. In her evidence affidavit Neelam makes much
of the Deed of Release dated 10th November 1987 between Harihar
8
and Manohar. Harihar did not deny having signed this or the
9
accompanying declaration. Later deeds of 28th March 1989
between Sandhya and Narayani Developers and between Ratnakar
10
and Narayani Developers are also not disputed. In his evidence
8
Exhibit A to Evidence Affidavit.
9
Exhibit D to Evidence Affidavit.
10
Executors of Sitabai's Will.
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affidavit, however, Harihar has said that the Deed of Release was
not acted on because the obligations to him were not fulfilled. But
let us ignore Harihar’s testimony for the moment. The Deed of
Release, Exhibit “A” is not unconditional. By this document,
Harihar relinquished his share in the Sita Sadan property in favour
of Manohar in consideration of payment of an amount of Rs. 4 lakhs
as compensation. In any event, no further action seems to have been
taken on the basis of this Deed of Relinquishment to convey any
larger share to Manohar’s branch or by that branch to assert its title
to the properties in question. In my view, this was necessary since
contested testamentary matters, it is well established, do not decide
questions of title.
36. Mr. Jain says that there is what he calls a “fail safe” in this
Release Deed. It is not absolute. Harihar reserved some of his rights.
The Release Deed is dated 10th November 1987. At that time, the
Petitioner in the present matter was Manohar. The consent granted
in the Release Deed was vis-à-vis Manohar alone. By that time,
Vinay had already sequestered to himself Shankarrao’s partnership
and Shankarrao’s share in that partnership. Some time after the
Release Deed, a declaration was executed and Manohar died
immediately after. It was only thereafter that Neelam and Vinay
were made Petitioners and made a claim to a larger share in
Shankarrao’s estate. Now, even assuming that Harihar had actually
relinquished his share, it would have been only vis-à-vis Manohar
and was also dependent on the performance by Manohar of all
obligations mentioned in the Release Deed. This would have to be
shown. It is not. It is difficult, therefore, to conclude that, on this
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basis, Neelam today has proved that she is entitled to a larger share
in Shankarrao’s estate.
37. It is also significant that Neelam has made no allegations of
any kind against the Defendants. Defendant No. 1 is the mother of
Defendants Nos. 2 and 3. Defendant No. 3 is a teacher and
Defendant No. 2 is a practising architect. In my view, Mr. Jain is not
in error in pointing out that Issue No. 2 can possibly be answered in
the affirmative by granting joint Letters of Administration to the
representatives of all three branches, each of which is entitled to a
one-third share, right and interest in Shankarrao’s estate. It cannot
be disputed that where there is more than one person entitled to the
11
grant, the Court enjoys discretion. Such a grant operates in rem and
recognises and confers a right to represent the estate and these
functions are in the nature of a trust; they carry the same
responsibilities. A Court’s discretion must thus be guided by
assessment of the claims made. Where it is found that the claims
made are adverse to the estate, either expressly or by necessary
implication, the claimant must be held to be disentitled to such a
12
grant.
38. An Administrator duly appointed has a duty to collect and
distribute the estate amongst the heirs of the deceased. This
distribution must necessarily be based not on rival claims, and
certainly not on claims only asserted but not proved, but in the
11
Section 218 of the Indian Succession Act.
12
Judgment dated 11th October 2013 in Miscellaneous Petition No. 66 of
2013, Mukesh Ramanlal Gokal & Anr. v Ashok Jagjivan Gokal & Ors .
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13
manner required by law. In that case, a Division Bench of the
Calcutta High Court held:
“Administration, in its proper sense,
consists in the legal proceedings
necessary to satisfy the claims of
creditors, next of kin, legatees, or
whatever other parties may have any claim
to the property of the deceased person;
until all such claims, whether of
creditors or heirs or legatees, are
satisfied administration is not complete.
Executors and administrators are the
functionaries appointed by law to
accomplish this purpose, and are invested
with the legal ownership of the property
of the testator until it is accomplished .
Stripped of extraneous elements and
considerations, this is the office of
administration and the scope of power of
executors and administrators is
commensurate therewith. Two principles
follow from this view, which are
inconsistent with the original Common Law
rule just referred to, namely, first, that
the conversion of property from the form
in which the deceased left it into some
other form, for example, changing it into
money by a sale, does not exhaust the
authority of the executor or administrator
over it in its changed form, but it still
remains to be administered; and secondly,
13
Baroda Prosad Banerji & Ors. v Gajendra Nath Banerji & Ors. , 1 Ind. Cas.
289.
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upon the death, removal or resignation of
the administrator before the
administration has been fully completed,
all the authority vested in him must pass
to an administrator de bonis non , so that
the purpose of the law demanding
administration may be accomplished. This
necessarily includes the power to call the
former administrator or his
representatives to account for any balance
of money, bonds, notes, etc, belonging to
the estate, which he had in possession at
the time of his removal or death, because
this is unadministered property and may be
lawfully administered only by the
successor in administration. It must with
the same necessity include the power to
call the predecessor to account and
respond in damages for any devastavit,
mismanagement or breach of duty, whereby
any property of the deceased was diverted
from a due course of administration,
because the wrongful acts of
administrator, not being within the scope
of his lawful authority, render him
liable, as for trespass and it is the duty
of the lawful representative of the estate
to recover whatever may be due to it. On
these principles, the inference is
irresistible that upon the death, removal
or resignation of an administrator or
executor, the successor may sue for and
recover against him, his sureties and
representatives, all property, of whatever
nature of the deceased in his hands, and
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demand an account of any property
converted or squandered, whether the debts
have been paid or not, so long as any duty
remains to be performed by an
administrator. ”
( Emphasis supplied )
Section 218 of the Indian Succession Act, 1925 must be read
39.
with Section 254. These two Sections read thus:
218: To whom administration may be
granted, where deceased is a Hindu,
Muhammadan, Buddhist, Sikh, Jaina or
exempted person.- (1) If the deceased has
died intestate and was a Hindu,
Muhammadan, Buddhist, Sikh or Jaina or an
exempted person, administration of his
estate may be granted to any person who
according to the rules for the
distribution of the estate applicable in
the case of such deceased, would be
entitled to the whole or any part of such
deceased’s estate.
(2) When several such persons apply for
such administration, it shall be in the
discretion of the Court to grant it to any
one or more of them.
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(3) When no such person applies, it may be
granted to a creditor of the deceased.
254. Appointment, as administrator, of
person other than one who, in ordinary
circumstances, would be entitled to
administration.- (1) When a person has
died intestate, or leaving a Will of which
there is no executor willing and competent
to act or where the executor is, at the
time of the death of such person, resident
out of the State, and it appears to the
Court to be necessary or conveninent to
appoint some person to administer the
estate or any part thereof, other than the
person who, in ordinary circumstances,
would be entitled to a grant of
administration, the Court may, in its
discretion, having regard to
consanguinity, amount of interest, the
safety of the estate and probability that
it will be properly administered, appoint
such person as it thinks fit to be
administrator.
(2) In every such case letters of
administration may be limited or not as
the Court thinks fit.
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40. It is clear from a conjoint reading of these two Sections that
no grant can be made in favour of a person who makes a claim
adverse to that of the estate. This was the view of a learned Single
Judge of the Calcutta High Court in Gopi Debi Memani v Chunilal
14
Kothari and I am in most respectful agreement with that view.
15
41. Further in Sivdas Mookerjee vs. Surendra Nath Chatterjee , a
learned Single Judge of the Calcutta High Court held:
6. It will be observed that one of the
elements to be taken into consideration is
consanguinity; judged by this test, a
claim by either of the sons of the
testator is entitled to preference over
that of the grandson by daughter. There
are, however, other elements which must be
taken into consideration, such as safety
of the estate and the probability that it
will be properly administered. The
principle which underlies this statutory
provision was formulated by Sir John
Nicholl in the case of Earl of Warwick v.
Greville (1809) 1 Phill. 123. “ The
selection rests with the discretion of the
Court. That discretion, however, is not to
be arbitratry or capriciuosly exercised,
14
AIR 1963 Cal. 205
15
AIR 1995 Cal. 178
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but it is a legal discretion governed by
principle and sanctioned by practice; in
exercising it, the Court is not to be
guided by the wishes or feelings of
parties, but is to look to the benefit of
the estate and to that of all the persons
interested in the distribution of the
property . The first duty of the Court then
is to place it in the hands of that person
who is likely best to convert it to the
advantage of those who have claims, either
in paying the creditors, or in making
distribution: the primary object; is the
interest of the property. ”
( Emphasis supplied )
42. On this reading of the matter, I do not think that it is at all
possible to hold in favour of the Plaintiffs. The first issue must,
therefore, be answered in the negative.
43. The question then is whether there should be a joint grant in
favour of the Plaintiffs and the Defendant. Mr. Jain relied on the
16
decision of Dinbai Behramji Gonda vs. Motibai Burjorji Chhor .
There, the Appellant and Respondent, two daughters, stood in equal
degree of kinship to the deceased and it was argued that the
Appellant was entitled to a joint grant. The Court held that it was
not bound to grant joint Letters of Administration and that the
16
AIR 1929 Bom. 397; 31 Bom L R 909 (Per Beaumont, C.J.)
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Court should in fact lean against any such joint grant. The view of
the Court was that it was never desirable to grant joint
administration to parties who are quarrelling and who, because of
their internal disputes, have managed to evade a distribution of the
estate. In Dinbai’s case, the estate had remained without
distribution for twenty years. In another decision of another learned
17
Single Judge of this Court in Re Yeshwantibai Eknath Vijayhkar it
was held that the rule is that as far as possible joint grants should not
be made and that this is a sound rule that has been acted upon by the
Courts for centuries even though a Court undoubtedly has
discretion in the matter. Rangnekar, J. held that a departure from
this rule would introduce laxity, and that might lead to dangerous
consequences. He went so far as to say that the Court at all times
prefers a sole administrator to a joint administrator, and it is only
when the circumstances are sufficiently strong that a joint grant
should be made.
44. I do not believe that there is any other way to view the present
matter. Neelam’s evidence in support of her claim is scanty at best.
She claims tenancies but has nothing to show them. She claims
possessory rights but has not succeeded in establishing those. She
claims to be entitled to Shankarrao’s share in his architectural
consultancy firm, but cannot establish the basis for this and, indeed,
has an outstanding decree against her in that very behalf. It is not in
any way possible to see Neelam or those who support her, i.e., the
remaining Plaintiffs, as suitable persons to whom Letters of
Administration should be granted. Does this mean that the Suit
17
47 Bom L R 770 (Per Beaumont C.J.)
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itself should be dismissed and the Defendants should be driven to
filing their own action and another wait of several decades for the
administration of the estate? The answer is self-evident and is in the
negative. The Court after all does have a discretion. The estate
cannot be left pending administration and distribution for several
decades to come.
45. In the result, Issues Nos. 1 and 2 must both be answered in
negative. The Plaintiffs are not entitled to the Letters of
Administration to the estate of Shankarrao Parelkar, either on their
own or jointly with the Defendants. The Plaintiffs cannot be
permitted any role in the administration of Shankarrao’s estate.
Letters of Administration must be granted jointly and severally to
Defendants Nos. 2 and 3 alone. They along with Defendant No. 1
are jointly and severally entitled to this grant. I have excluded
Defendant No. 1 in her own interest as she is of advanced years and
it is unlikely that she will be able to discharge this responsibility
effectively. There is no reason to burden her at her age with this
additional responsibility.
46. The suit is thus decreed in favour of Defendants Nos.2 and 3
to whom Letters of Administration are to be granted to the estate,
property and credits of Shankarrao Parelkar. The Suit is disposed of
in these terms with no order as to costs.
47. After Judgment is pronounced, Mr. Jain points out that the
schedule to the Petition does not necessarily reflect the correct
value of the estate, especially in regard to the value of Shankarrao’s
share in M/s Parelkar & Dallas. It is clarified that in the course of
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administration, Defendants No. 2 and 3 will be jointly and severally
entitled to apply for an amendment to that schedule to correctly
reflect the value of Shankarrao’s share in that firm. It must also be
noted that the share shown by the Plaintiffs in the Schedule is
contrary to the decree in Harihar’s partnership suit, and to which I
have referred earlier.
48. At the request of Mr. Mehta, the operation of this order is
stayed for a period of three weeks from today.
(G.S. PATEL, J.)
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Neelam Pareklar Shalini Pareklar
[Plaintiff No. 2(a)] (Died 20.04.1988)
(Died 08.02.2008)
Pranil Parelkar
Vinay Pareklar
(Died 21.10.2011)
(Died 10.01.1992)
(Original Petitioner)
Smita Pareklar
Avanti Parelkar
[Plaintiff No. 4(a)] [Plaintiff No. 4(b)]
(Plaintiff No. 5)
(died 11.12.2010)
(Died 14.12.1981)
Sandhya Parelkar
Rujuta Mhatre Padmaja Goregaonkar
Paritosh Parelkar
[Plaintiff No. 1(a)]
SHANKARRAO PARELKAR (Died 08.11.1979)
(Died 28.07.2002)
Neeta Madgulkar
Mondira Parelkar
(Defendant No. 1) (Defendant No. 2) (Defendant No. 3)
ANNEXURE: FAMILY TREE OF MR. SHANKARRAO PARELKAR (DECEASED)
(Daughter)
Preeta Bhatte
Sitabai Parelkar (Widow) Manohar Parelkar (Son) Yeshwant Parelkar (Son) Harihar Parelkar (Son) Sarojini Bhate
(Original Caveator) (Died 22.08.2003)
[Plaintiff No. 1(b)] [Plaintiff No. 1(c)]
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