Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1574 OF 2009
[Arising out of SLP (C) No.17162 of 2006]
Parmanand Patel (Dead) by LR. & Anr. ..…Appellants
Versus
Sudha A. Chowgule & Ors. ..…Respondents
W I T H
CIVIL APPEAL NO. 1575 OF 2009
[Arising out of SLP (C) No.17396 of 2006]
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
C.A. NO. 11574 of 2009 @ S.L.P. (C) No.17162 of 2006
2. Parmanand Patel, since deceased, was a very wealthy person. He
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floated several companies including the 5 respondent Company herein
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known as M/s. Tulsidas V. Patel Pvt. Ltd. Appellant Indu P. Patel is his
widow. He also left behind his daughters, viz., Sudha A. Chowgule and
Jaya P. Patel, respondent nos.1 and 2 respectively. The company has its
assets consisting of shares in different companies as also immovable
properties. It owns two multi-storeyed buildings known as “Kanchanjunga”
and “D-Tower Building” situated at Peddar Road, Mumbai. It also owns a
bungalow known as “Bella Vista” situated at the same road.
According to the plaintiffs (appellants herein), the approximate value
of the assets held by the company would be about Rs.367 crores. However,
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according to the 1 defendant (respondent no.1 herein), the value of the
properties owned by the company and its subsidiaries would be about
Rs.1120 crores.
Parmanand Patel held 85% shares in the said company. The
remaining 15% shares were held by Indu Patel, Sudha and Jaya in equal
proportion.
Indisputably, Parmanand Patel had been suffering from various
diseases including some neurological ones. For his treatment, he used to
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frequently visit United States of America accompanied by his wife and
daughter Sudha.
One Dr. Hemant Patel, a resident of Mombasa, Kenya is the brother
of appellant no.2. One Shirish Patel, who is a chartered accountant is the
nephew of Parmanand Patel.
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Indisputably, on 23 January 2005 late Parmanand Patel executed a
Will. He also signed letters which are in the nature of gift and/or
arrangements in regard to some of his properties. It is also not in dispute
that he had gifted two flats in favour of the first appellant apart from making
a mediclaim policy for her.
3. Although the Will is undated, it is accepted that the same was also
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executed on 23 January 2005, i.e., on the same date when the documents
were executed. By reason of the said Will, he is said to have bequeathed
50% of his property to Sudha and 50% to Jaya. In a letter addressed to the
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1 respondent, viz., Sudha, he is purported to have recorded that the he had
given all his shares to her. By reason of one of the letters addressed to the
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1 respondent, he is purported to have given all of his shares to her with a
direction that she should retain 46% to herself and give 39% to Jaya. The
said gift is said to have been made on certain conditions. A similar letter
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was also addressed to the 2 appellant herein. It is, however, not in dispute
that appellant no.2 did not agree to the aforementioned arrangement. The
said Will was attested by one Dr. Zarir F. Udwadia and one Sh. R.A. Shah,
Advocate.
4. Indisputably, when the aforementioned purported Will was executed
and the letters were written, Jaya was in the United States of America.
Shirish Patel was also in United States. As appellant no.2 admittedly did
not agree to the said purported mode and manner of disposition of
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properties by her husband, another document was prepared on 23 January
2005 itself, which reads as under :
“ TO WHOMSOEVER IT MAY CONCERN
All the documents which I have signed
today shall be reviewed by my nephew Mr. Shirish
Patel (C.A.). His suggestion will be incorporated
in these documents. My (Mrs. Indu Patel) 5%
interest in the Tulsidas V. Patel will be given
equally to my daughter Sudha and Jaya upon my
demise.
Sd/- Sd/-
P.T. Patel I.P. Patel
Mumbai
Dated 23.1.2005
Sd/-
Solicitor.”
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The said document was signed not only by Parmanand Patel and Indu Patel
but also by Shri R.A. Shah, the Solicitor.
Certain developments took place thereafter. A meeting of the
company was held wherein Indu Patel was shown to have been present,
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However, from perusal of a letter dated 01 September 2005, it now
transpires that Indu Patel was given leave of absence on that date. In the
said meeting various decisions were taken, namely, transfer of shares,
appointment of Chairman, custody of the minute book, adoption of the
company etc. It was claimed by Sudha by reason of resolution adopted in
the said meeting, became the Chairman of the company.
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5. Yet again, a Board meeting of the Company was called on 25
January 2005 which was attended only by Sudha and Parmanand Patel.
Appointment of Shiraj Salelkar, an Advocate being an Assistant to Mr. R.A.
Shah and Ms. Usha Moraes as Directors in the Board of the company was
informed to the Board and a resolution was adopted appointing them as
Additional Director of the company. Yet again, a meeting of the Board was
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held on 06 March 2005 wherein Sudha and Parmanand Patel were present.
In the said meeting, resignation of Ms. Usha Moraes was accepted and in
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his place Arjun A. Chowgule, son of Sudha, was appointed as Additional
Director of the company. A resolution was also adopted with regard to the
operation of the bank account in terms whereof Sudha was permitted to
operate the bank account singly and others were permitted to operate only
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with her. Another purported meeting was held on 21 April 2005 wherein
Sudha, Parmanand Patel and Arjun Chowgule were present. In the said
meeting, on the alleged ground that Jaya Patel remained absent from the
Board meetings which had taken place for a period of 3 months from
January 2005 to March 2005, applying the provisions of Section 283(1)(g)
of the Companies Act, it was resolved that she would be deemed to have
vacated the office of Director of the company with immediate effect.
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6. 2 appellant herein alleging that her husband Parmanand Patel was
unable to manage the affairs of the company and his properties, filed a suit
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on his behalf in the original side of the Bombay High Court on or about 12
September 2005 praying, inter alia , for the following reliefs :
“(a) that it be declared that the document
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purporting to be the Will dated 23 January 2005
of Plaintiff No.1, being Exhibit “G” hereto, the
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two letters dated 23 January 2005, being Exhibits
“J” and “K” hereto and the purported gift / transfer
of shares of Defendant No.5 by Plaintiff No.1 in
favour of Defendant No.1 as recorded therein are
null, void and of no effect in law;
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(b) that Defendant No.1 be ordered and decreed to
deliver up the said document purporting to be the
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Will dated 23 January 2005 of Plaintiff No.1,
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being Exhibit “G” hereto, the two letters dated 23
January 2005, being Exhibits “J” and “K” hereto
for cancellation and the same be cancelled by and
under the orders and decree of this Hon’ble Court;
(c) that the purported transfer of 85% shares held
by Plaintiff No.1 in Tulsidas V. Patel Pvt. Ltd.,
Defendant No.5 in favour of Defendant No.1 be
set aside and cancelled and Defendant No.1 be
ordered and decreed, if necessary, to transfer the
said shares to the Plaintiff No.1;
(d) that Defendant No.5 be ordered and directed to
record Plaintiff No.1 as the holder of the 85%
shares in the records of Defendant No.5 and for
that purpose to do all acts, deeds and things and
make proper entries in its records as may be
necessary;
(e) that it be declared that the appointments of
Defendant No.3 and 4 as directors on the Board of
Directors of Tulsidas V. Patel Pvt. Ltd..,
Defendant No.5 are not valid;
(f) that alternately, Defendant No.3 and 4 be
removed as directors from the Board of Directors
of Defendant No.5;
(g) that the appointment of Defendant No.1 as the
Chairperson of the Board of Directors of
Defendant No.5 be set aside;
(h) that Defendant No.1 be directed to return the
records, registers, minutes books and books of
accounts of the Defendant No.5 company to its
registered office;”
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Several prayers for grant of interim relief were also prayed for.
7. A learned Single Judge of the High Court passed an interim order on
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16 September 2005 relevant portion whereof reads as under :
“…. However, I have considered the aforesaid
contention in the light of the allegation made in
the plaint and large number of material produced
pertaining to mental and physical health of
plaintiff no.1. I have also taken into consideration
the fact that the right claimed by defendant no.1 in
respect of the said 85% share in the defendant no.5
company is based on a gift deed. In my opinion
till the hearing and final disposal of the motion
said shares are required to be frozen and kept
intact till the dispute is decided either way at the
hearing of the motion. It is not possible to permit
defendant no.1 at this stage to act as if there is a
valid gift in her favour of the said 85% share in the
defendant no.5 company merely on the ground that
there are certain documents produced which are
supposed to have been executed by plaintiffs
during the contemporaneous period during the
time the said gift deed is supposed to have been
executed. Motion undoubtedly requires a deeper
consideration.
2. Till the hearing and final disposal of the
motion, none of the parties to the present suit shall
exercise any right whatsoever in respect of the
said 85% shares which are the subject matter of
the gift deed in favour of defendant no.1 in
defendant no.5 company.
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3. In the light of the rival claims about the
mental health of the plaintiffs, I direct constitution
of panel of Doctors drawn from J.J. Hospital,
Bombay Hospital and Lilavati Hospital dealing
with psychiatrist and neurological department who
will examine the said plaintiff and make report
directly to the court. Plaintiff no.2 shall pay the
necessary cost, charges and expenses in respect
thereof. Prothonotary and Senior Master, High
Court, Mumbai is directed to intimate the
respective Hospital to nominate one doctor from
each of the said Hospitals for the purpose of
aforesaid test of the plaintiff no.1. The report of
such panel will be furnished within 4 weeks from
today.
4. Union Bank of India is directed to continue
the arrangement of joint operation of the bank
account between defendant no.1 and 2. In so far
as assets of the company is concerned, plaintiff
no.2 and defendant no.2 shall maintain the said
assets of the company as it is and will not sell or
dispose of the assets or create any third party
rights except in ordinary course of business.
Plaintiff no.2 and defendant no.2 shall keep inform
defendant no.1 about the business decisions if any,
taken by them. Motion made returnable in usual
course.”
8. An intra court appeal was preferred thereagainst by Sudha.
9. Keeping in view the directions issued by the learned Single Judge in
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paragraph 3 of the order dated 16 September 2005, the learned Judges of
the Division Bench interacted with Parmanand Patel (since deceased) in
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their chambers and found him totally incoherent and confused. In the
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aforementioned situation, by an order dated 11 October 2005, directed as
under :
“3. After hearing both parties, we direct
constitution of a panel of Doctors from K.E.M.
Hospital, Bombay Hospital and Lilavati Hospital
from their respective departments of Psychiatry
and Neurology. That is to say from each hospital
one doctor each from the aforesaid department
shall examine respondent No.1 from Psychiatric
and Neurological point of view, with regard to
alleged mental disorder of respondent No.1. We
request the panel of Doctors to expeditiously give
their report to this Court.
4. Learned counsel for both appellant and
respondents state that they will render all
assistance to the panel and bear the expenses of
Doctors’ fees. Needless to state that the aforesaid
panel of Doctors while examining respondent
No.1 will not be influenced in any manner by our
prima facie view as a lay persons. Place the matter
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on board on 27 October 2005.”
10. Indisputably, pursuant thereto or in furtherance thereof, Parmanand
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Patel was examined by a panel of six doctors. They examined him on 07
December 2005. So far as his neurological examination is concerned, the
doctors awarded 24 points (wrongly stated to be 23) out of 30 indicating a
minimal Cognitive Deficit of functioning. He was also examined in regard
to his mental state. It was concluded:
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“Conclusion:
It is the unanimous feeling of the six members of
this panel that Mr. Patel is suffering from definite
deficit, in his cognitive functions and also his
working memory, which lead to an impairment in
all aspects of independent functioning.
The Memory Deficits are significant, in both
domains of registration and recall of new
memories as well as in the retrieval of his past
memories, specifically pertaining to his personal
memories of his Family and Property holdings and
his business ventures.
The Cognitive Deficits also lead to improper
decisions and behaviors towards people, which
can cause problems with caregivers at this stage.
Thus he is incapable of taking executive decisions
regarding his routine living activities at home and
there is a definite impression of his inability to
function independently in a financial or other
business activity.
It is also obvious that as Mr. Patel is incapable of
living by himself in an unsupervised environment,
he will need to be monitored, supervised, and
assisted, even in his routine Activities of Daily
Living, at all times.”
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11. Parmanand Patel expired on 20 November 2006. An application for
amendment of the plaint was filed. Leave was granted to amend the plaint.
Jaya was also allowed to be transposed to the category of plaintiff from the
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category of defendant by an order dated 10 January 2008.
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12. The interim application came up for hearing before a Division Bench
of the High Court. By reason of the impugned judgment, it was directed:
“41. In the circumstances, to safeguard the interest
of all the parties, we pass the following interim
order which should meet the ends of justice :-
(1) The Receiver, High Court, Bombay is
appointed as Receiver for the assets of
Tulsidas V. Patel (Pvt.) Ltd. and Defendant
No.1 (Sudha) will act as an Agent of the
Receiver. No steps will be taken hereafter
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based on the documents of gift dated 23
January 2005. Actions taken so far will also
be subject to the result of the suit.
(2) The Receiver will appoint a Chartered
Accountant from his panel who will first get
an inventory of the properties of Tulsidas V.
Patel (Pvt.) Ltd. done in four weeks
hereafter. The foregoing clauses will
become operational only thereafter.
(3) Defendant No.1 (Sudha) will be permitted
to execute all necessary agreements on
behalf of the Company for the purposes of
safeguarding the assets thereof. She will
not encumber nor sell any of the assets of
the Company nor will she create any third
party rights in any manner though she will
be at liberty to give the properties/flats on
licence basis. The terms of the document of
licence and particularly the licence fee will
have to be approved by the above referred
Chartered Accountant.
(4) Defendant No.1 (Sudha) will be permitted
to operate the bank account of the Company
with Union Bank of India and the restriction
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to operate the same only along with Jaya
will stand vacated.
(5) Defendant No.1 (Sudha) will deposit all the
earnings of the Company in its account with
Union Bank of India and will also honour
the liabilities thereof.
(6) The Company will bear all the medical and
travel expenses of Plaintiff No.1
(Parmanand Patel) and Plaintiff No.2
(Induben) as and when required.
(7) From the income of the Company, after the
liabilities are met, 33% will be made over to
Jaya (Defendant No.2) and 5% to Plaintiff
No.2 (Induben). Sudha will be permitted to
retain 33% of the income for herself. The
remaining portion of the income will be
invested in fixed deposits with Union Bank
of India from time to time. The aforesaid
payments and investments will be made by
taking the accounts at the end of every 6
months. The accounts will be got approved
from the above Chartered Accountant.
(8) Defendant No.1 (Sudha) will render all
necessary information to the Receiver and
the Chartered Accountant and copies of
these accounts will be made over to
Defendant No.2 (Jaya) and Plaintiff No.2
(Induben).
(9) The payments, receipts and investments will
be without prejudice to the rights and
contentions of all the parties and subject to
the outcome of the suit.
(10) Plaintiff No.1 will continue to remain in
possession of the Bella Vista Bungalow till
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the hearing and final disposal of the suit.
Plaintiff No.2 (Induben), Defendant No.2
(Jaya) and her husband and daughters will
be permitted to stay with him under the
orders of Court.
(11) All the properties and assets of the
Company will continue to remain in the
name of the Company and all agreements
concerning them will continue to be entered
into only in the name of the Company.
(12) Defendant No.1 (Sudha) will deposit an
amount of Rs.50,000/- with the Receiver
from the Company’s account towards
charges and expenses of the Chartered
Accountant and the Receiver to begin with.
The costs and charges of the Receiver and
the Chartered Accountant will be borne
from the Company’s account from time to
time.”
13. Mr. Mukul Rohatgi and Mr. Anil Divan, learned senior counsel
appearing on behalf of the appellants, inter alia , would submit :
i. Sudha meticulously planned the entire strategy to take control
over the company in a systematic manner beginning from
December 2004 when a second ration card was applied for;
shares were said to have been lost and steps were taken even to
have another common seal, the company was proclaimed to be
the owner of the bungalow and Parmanand Patel became a
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licencee in the said premises for a maximum period of one year
and ultimately not only the purported Will was executed but
also letters of gifts were prepared and addressed to Sudha and
Jaya followed by various Board meetings, from a perusal
whereof it would appear that she could acquire complete
control over the company and, thus, the interim arrangement
must be interfered with.
ii. Keeping in view the fact that Sudha is a party to forgery of
documents, she should not have been appointed as an agent of
the receiver particularly when the Court had found out a prima
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facie case in favour of the 2 appellant.
iii. One of the basic legal principles, as propounded by this Court
in various decisions is that when a Will is unnatural surrounded
by suspicious circumstances and does not satisfy the
conscience of a Court, such a Will cannot be accepted.
iv. The High Court should not have shown any indulgence in
favour of Sudha. The reports of the doctors as also the
observations made by the Division Bench of the High Court in
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its order dated 16 September 2005 itself would suggest that
late Parmanand Patel was not mentally fit to take any decision
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by himself and thus no credence could have been given to the
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documents including the Will executed on 23 January 2005.
It was unnatural, the learned counsel argued that Parmanand
Patel would consult Shri R.A. Shah who had been appearing
against the company and in fact as lawyer for the companies
represented by Sudha and her husband.
14. Mr. Rohington Nariman and Mr. C.A. Sundaram, learned senior
counsel appearing for the respondents, on the other hand, would submit
i. The Will and the letters of giving having been attested by two
independent persons, viz., Dr. Hemant Patel and and R.A. Shah
and one of them being the brother of Indu Patel must be held to
have been executed by late Parmanand Patel by way of family
arrangement.
ii. Indu Patel having been provided with sufficient income as two
flats had been given to her as also a third flat in the joint name
of the appellants herein, the annual income whereof would be
about Rs.60 lacs per month, the decision of late Parmanand
Patel that his property should be divided half and half between
his two daughters cannot be said to be either illegal or unfair.
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Such a process, according to learned counsel, started in 2003 as
Sudha had been accompanying him for his treatment to other
parts of the country as also United States. The mental
condition of the testator having been found to be good by the
doctors, as would appear from the certificate issued by Dr.
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Peter Black of Brigham And Women’s Hospital, Boston on 21
January 2005 who examined him in October 2004 at Jaipur,
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certificate dated 28 January 2005 issued by Dr. M.M.
Bahadur, Cons Nephorologist at Jaslok Hospital, certificate
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dated 30 January 2005 issued by Prof. R. Gokal, Dept. of
Renal Medicine, Manchester Royal Infirmity and certificate
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dated 01 March 2005 issued by Dr. Ajay Singh, Harvard
Medical School, would clearly go to show that he had a good
mental faculty. In fact, he attended a meeting of George Noble
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Pvt. Ltd. along with his nephew Shirish Patel on 03 February
2005. It has also been brought to our notice that vide letter
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dated 13 April 2005 addressed to Subhash Patel, Parmanand
Patel refused the letter of resignation submitted by him which
would show that he was in complete control of the situation
and knew what he had been doing.
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iii. Brother of Indu Patel, viz., Dr. Hemant Patel, a practising
surgeon at Mombasa visited the family and only to him late
Parmanand Patel expressed his intention to divide the
assets/shareholding of the company equally between his two
daughters during his lifetime and to divide his other assets after
his death and for the said purpose he wanted such separation to
be done during his lifetime and in a tax efficient manner. It
was pursuant to the said desire, the aforementioned documents
were prepared. The factual scenario would furthermore be
apparent from a letter written to Indu Patel by her brother on
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29 January 2005.
iv. Surrender of tenancy in respect of the bungalow ‘Bella Vista’
was necessitated because all formalities were required to be
complied with and it was never the intention of the first
respondent to drive her parents out therefrom as would appear
from a statement made by he counsel before the Division
Bench.
v. The order of the Division Bench of the High Court having
safeguarded the interest of all concerned and having been
passed as the first respondent had been acting as Chairperson
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of the company for a long time, the impugned judgment should
not be interfered with particularly when she is required to
operate not only under the receiver but also in close
collaboration with a chartered accountant.
15. Although, the learned counsel for the parties have addressed us at
great length and in fact we have been taken through the minutest details of
the relevant and important documents filed and relied on by the parties, we
are of the opinion that it would not be prudent on our part to discuss the
same in great details.
A receiver, having regard to the provisions contained in O.40 R.1 of
the Code of Civil Procedure, is appointed only when it is found to be just
and convenient to do so.
Appointment of a receiver pending suit is a matter which is within the
discretionary jurisdiction of the Court. Ordinarily the Court would not
appoint a receiver save and except on a prima facie finding that the plaintiff
has an excellent chance of success in the suit. It is also for the plaintiff not
only to show a case of adverse and conflict claims of property but also
emergency, danger or loss demanding immediate action. Element of danger
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is an important consideration. Ordinarily, a receiver would not be appointed
unless a case has been made out which may deprive the defendant of a de
facto possession. For the said purpose, conduct of the parties would also be
relevant.
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16. 1 respondent did not question that part of the order of the Division
Bench whereby an Official Receiver of the High Court has been appointed
as receiver in respect of the suit properties. We would, therefore, proceed
on the premise that a strong prima facie case has been found in favour of the
appellants.
Parties hereto have brought out medical reports in respect of late
Parmanent Patel which give us different pictures about his mental condition
at the relevant time. It is no doubt true that the relevant date for
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determining the mental faculty of late Parmanand Patel would be 23
January 2005, but for arriving at the said conclusion his mental condition,
both prior thereto and later, would be relevant. Prima facie , appellant no.2
was compelled to file a suit in order to protect the interest of her husband.
Suit was entertained and interim order was passed. The Division Bench, in
order to satisfy itself, called late Patel in their chamber. He was found to be
totally confused and incoherent. It is in the aforementioned situation, a
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panel of doctors was constituted for examining him. We have noticed the
report of the said panel of doctors.
17. The property in suit is worth more than Rs.1000 crores. There are
several companies. Respondent no.5-company herein own huge properties.
There are two multi-storeyed buildings which are occupied by a large
number of tenants. Each of the heirs and legal representatives of late
Parmanand Patel, in the event he is found to have died intestate, would have
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1/3 share. Appellant no.2 does not claim exclusive interest in respect of
the flats purported to have been gifted in her favour by her late husband. A
statement has also been made on her behalf of the first respondent herein
that she would have no objection to share the entire property half and half
between herself and appellant no.2.
18. We may also place on record that several attempts have been made
for reconciliation between the parties. At the instance of the learned senior
counsel appearing on behalf of the parties, the dispute was referred to a
learned mediator. Parties, however, for reasons best known to them and
despite the fact that for all intent and purport the dispute hinges on a narrow
pedestal, have not been able to settle their disputes.
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It, therefore, appears that there is a lot of controversy between the
parties. There is also a lot of bad blood.
19. The High Court in its impugned judgment proceeded on the premise
that prima facie late Parmanand Patel had a desire to settle the properties in
favour of his two daughters in equal shares. He made a meticulous plan
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therefor which would be tax efficient. To the aforementioned extent, 1
respondent’s case appears to have been supported by Dr. Hemant Patel,
brother of Indu Patel herself. But, with respect, what was not taken into
consideration by the Division Bench of the High Court was that admittedly
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two sets of papers were prepared – one on the basis that the 2 appellant
would surrender her 5% share in the company. Late Parmanand Patel even
signed the first set of papers. She, however, refused to part with her share
in the company. It was then the second set of documents were executed
which not only included the undated Will but also the two letters addressed
to Sudha and Jaya respectively. The said letters prima facie had been
drafted in a manner which would ultimately be beneficial to the interest of
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Sudha alone. Presumably, at that point of time the 2 appellant expressed
her stray resent in relation to the whole affair. Rightly or wrongly, she was
not ad idem with her husband. It gave rise to execution of a third set of
document which was signed not only by late Parmanand Patel but also the
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appellant no.2 conferring a power of review upon Shirish Patel. It was also
attested by R.A. Shah. We have been given to understand that the said
Shirish Patel alone was helping late Parmanand Patel in running the
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business. It is in the aforementioned context that letter dated 26 August
2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as
under :
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“Further to my letter dated 25 August 2005, I
wish to confirm that all the documents purported
to have been executed on January 23, 2005 by
Parmanandkaka dealing with his assets and the
acts of Sudha pursuant thereto are detrimental to
the interest of Parmanandkaka and therefore he
should not be bound by the same.”
The Will and the letters of gift as evidenced by the two letters dated
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23 January 2005 were subject to review by Shirish Patel. He having
opined that the arrangement being detrimental to the interest of Parmanand
Patel, in our opinion, should be given primacy at this stage. We would,
however, refrain ourselves from making any comment upon the correctness
or otherwise of the one set of reports submitted by the medical experts in
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preference to another. The case of the 1 respondent may or may not be
correct. It is possible, as has been contended by her, that late Parmanand
Patel had a desire to divide the property in equal shares between her two
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daughters. However, for the purpose of passing an interlocutory order, we
may proceed on the premise that the rights of the parties would have to be
considered in terms of the provisions of the Hindu Succession Act, 1956,
that is, on the assumption that Parmanand Patel died intestate in which event
share of each of his heirs would be one third. Distribution of property
amongst the children by the parents, however, may be found to be desirable
if the mother wants to retain her share and deal with the same on her own.
No exception can be taken thereto. Ordinarily, a Court shall presume the
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existence of a right in the property of the deceased in favour of the 2
appellant herein unless a strong prima facie case is made out that she had
been deprived therefrom. It is not for the court to consider as to whether her
stand is fair to one of her daughters or not. Even if it be held that the Will
and the letters had been executed by late Parmanand Patel in sound
disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be
accompanying her father to various parts of the country as also abroad to
see that Parmanand Patel received best of the treatment, but then Jaya had
also been residing in the same bungalow with her father despite her
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marriage in 1979. Above all, 2 appellant had also not only been looking
after her husband but also accompanying him for his treatment wherever it
was found to be necessary. We, as at present advised, do not wish to
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comment upon the contentions raised before us that the Will was not only
unnatural but was surrounded by a large number of suspicious
circumstances. Such a question would fall for consideration of the High
Court in the suit.
20. We, therefore, having taken into consideration all aspects of the
matter, are of the opinion that it is a fit case where the High Court should
have appointed a receiver and/or an administrator with suitable directions.
We have, to the aforementioned extent, intend to interfere with the order of
the High Court as Sudha alone had been given exclusive powers not only to
execute documents but also induct tenants. The aforementioned job, in our
opinion, keeping in view the relationship between the parties should better
be left with an officer of the Court who would be subject to directions as
may be issued by the High Court from time to time.
We leave the matter relating to imposition of conditions and/or
appointment of chartered accountant or others to assist the receiver
completely at the hands of the High Court. In a case of this nature,
however, the official receiver himself may not be appointed as receiver.
26
21. Before parting with this case, however, we may place on record that
Mr. Hemant Choudhari, learned counsel appearing for respondent no.6-
Bank submitted that appellants and the respondent-companies owned by
appellants and the first respondent even borrowed a sum of about Rs.5
crore. The High Court may consider desirability of protecting the interest of
the bank also.
22. This appeal is allowed to the aforementioned extent and with the
aforementioned observations and directions.
C.A.No. 1575 of 2009 @ S.L.P. (C) No.17396 of 2006
23. In view of the order passed in the appeal arising out of S.L.P.(C)
No.17162 of 2006, this appeal would also stand disposed of on the above
terms.
24. Costs of these appeals shall abide by the result of the suit.
……………………….J.
[S.B. Sinha]
……………………….J.
[Cyriac Joseph]
New Delhi;
March 6, 2009.