Bombay High Court
Shernaz Faroukh Lawyer & Anr vs Manek Dara Sukhadwalla & Ors on 21 December, 2018
Equivalent citations: AIRONLINE 2019 BOM 11, 2019 (2) ABR 336 (2019) 5 ALLMR 570, (2019) 5 ALLMR 570
Author: A. K. Menon
Bench: A. K. Menon
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sbw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
REPORT NO.1 OF 2016
AND
SUPPLEMENTARY REPORT NO.1 OF 2016
IN
TESTAMENTARY SUIT NO.29 OF 2012
Shernaz Faroukh Lawyer & Anr. .. Plaintiff
V/s.
Manek Dara Sukhadwalla & Ors. .. Defendants
............
Mr. D. J. Khambata, Senior Advocate a/w N. A. Agarwal, Ms. Naira Jeejeebhoy P.
A. Kabadi and Ms. Taruna Nagpal for the plaintiff.
Mr. K. Thacker a/w M. K. Tanna for defendant no.1.
Mr. Manish Bohra I/b. M/s. A. S. Khan & Associates for defendant nos.3 & 4.
Mr. R.Apte Senior Advocate with A. R. Gole for the noticee/Trust.
Mr. Prasad Dani Senior Advocate a/w Mandar Limaye and Ms. Tanvi Kamat I/b.
for Amoha Traders Pvt. Ltd./Noticee no.2
Ms. Benita Kapadia I/b. K. Ashar & Company for defendant no.5.
Mr. Jonathan S. Soloman, Administrator, a/w Ms. Mansi V. Kaku I/b. Solomon &
Co.
...........
CORAM : A. K. MENON, J.
RESERVED ON : 19 th July, 2018
PRONOUNCED ON : 21 st December 2018
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JUDGMENT:-
1. Purvez Burjor Dalal died in Mumbai on 7 th December 2011. An administrator came to be appointed of the estate of late Purvez Burjor Dalal by this Court on 21st November, 2013. The order appointing the Administrator has since attained finality. The administrator has since taken charge and he has in the process of administering the estate filed the above reports. The reports have been taken up today for hearing. The plaintiffs and defendant no.1 were directed to hand over movable and immovable properties in their possession and also take steps to identify properties forming part of the estate by making necessary enquiries in that behalf. Vide an order dated 24 th December, 2013 the Administrator was directed to file the proceedings for recovery of properties and to engage Advocates and seek directions from this Court as and when necessary. The Administrator has since opened a bank account with the Central Bank of India, Mahatma Gandhi Road, Mumbai (Administrative Account). The reference as to plaintiffs and defendants in this order shall mean reference to the parties to Testamentary Suit no.29 of 2012.
2. In this report, the administrator has sought the following reliefs:
(a) direct the defendant no.1 to make available to the administrator of document pertaining to flat no.8, Al-Karim Manzil, including papers pertaining ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 3* AdmReport_1of 2016.odt to litigation in respect of the said flat;
(b) direct HSBC to furnish to the administrator copies of statements of accounts, details of account holders and authorized signatory relating to bank accounts in the joint names of testator late Purvez Burjor Dalal and/or late Jamshed Burjor Dalal, brother of the testator and one B.J. Dhoodmal including the particulars of bank account to which certain sums of money had been transferred from the account held in the HSBC by Jamshed and Purvez Dalal;
(c) a direction to Kotak Mahindra Bank Limited (KMBL) to furnish details of bank account to which sums have been transferred on 11 th April, 2012 and 24th March, 2012 from an account opened by defendant no.1 in the name of the deceased;
(d) to direct defendant no.1 and one Amoha Traders Pvt. Ltd. to furnish to the administrator copies of documents and particulars relating to certain accounts received by the said company from an account opened by defendant no.1 in the name of deceased testator with KMBL Account;
(e) a direction to the defendant no.1 and Amoha to pay over to the administrator a sum of Rs.17,08,147/- received by Amoha from KMBL Account with interest thereon from 24 th March, 2012 till payment;
(f) to direct defendant no.1 and trustees of one Avabai Hormasji Charitable Trust and Bai Avabai Hormusji Tata Trust to deliver to the administrator true copies of documents relating to a sum of Rs.15 lakhs received by Avabai ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 4* AdmReport_1of 2016.odt Hormasji Charitable Trust on 11th April, 2012 from KMBL Account as also correspondence relating thereto;
(g) a direction to defendant no.1 and trustees (the Trusts) to pay over to the administrator a sum of Rs.15 lakhs along with interest thereon; and
(h) a direction to one B. J. Dhoodmal to provide the administrator with details of bank accounts in the joint names of the deceased and/or late Jamshed Dalal and the said Dhoodmal including accounts to which amounts have been transferred from the HSBC account standing in the names of Jamshed, Purvez and Dhoodmal and defendant no.1.
3. A Supplementary Report has also been filed by the administrator calling upon defendant no.1 to furnish the present address of one of the Directors of Amoha and Avabai Hormasji Tata Charity Trust defendant no.1.
4. The facts as they have transpired and which have prompted the administrator to make this application have been canvassed by the learned Senior Advocate appearing on behalf of the plaintiffs and by the Administrator. It was submitted on behalf of the plaintiffs that the administrator had made numerous attempts to compile all the facts relating to the affairs of the deceased and the suspected diversion of part of the estate by certain personal entities. It is submitted by Mr. Khambata that the plaintiffs have learnt that the funds of the ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 5* AdmReport_1of 2016.odt estate have been diverted inter alia to one Amoha Traders Pvt. Ltd. (Amoha) and one Bai Avabai Hormusji Tata Trust for Charitable Objects (the Trust).
5. It is the case of the applicant that Amoha along with one Jamsheed Minocher Panday have conspired with defendant no.1 to siphon funds from the estate of the deceased. In the course of hearing of this Report, numerous orders have been passed by this Court leading to disclosures from time to time. It is contended that these disclosures prima facie reveal that the siphoning of monies probably involved other persons/entities such as one Safe Securities Services, Sarvashri Dady Lam, Jamshed Panday, Asfandiar Daroowalla who are suspected of playing a systematic fraud on the Court appointed administrator and the plaintiff. Mr. Khambata submitted that defendant no.1 had opened an account with Kotak Mahindra Bank in the name of deceased but failed to provide bank statements and the account opening form. The administrator procured these and then learnt that another account had been opened by the defendant in Yes Bank. The account in Yes Bank had not been disclosed earlier although the defendant no.1 was duty bound to disclose it. The said Panday is said to be married to Feroza, a cousin of the defendant no.1. Although Mr. Panday's real name is Jamsheed Minocher Panday, he described differently at various places such as Jimmy Pandey, Jimmy Panday, J. M. Panday etc. The plaintiffs believed that he is the architect of the conspiracy. ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 :::
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6. Upon scrutiny of the account of the estate held in Kotak Mahindra Bank, the administrator found that a sum of Rs.15 lakhs was paid to the Trust. It was claimed to be a donation by defendant no.1. The name of the trust has been described differently at different stages. It was initially said to have been called "Bai Avabai Hormusjee Charitable Trust." The defendant no.1 claimed that the trust was set up by the industrialist Naval Tata in the year 1954 in memory of his mother and that donations to the trust would qualify for exemption under section 80G of the Income Tax Act. The trust was allegedly used to siphon away funds from the estate. According to the plaintiffs and the administrator, funds transferred to the trust are required to be returned with interest and in this respect, prayer clause (g) of the administrator's report seeks such relief. The donation is said to have been made by defendant no.1 to the trust but this is in violation of terms of the 2011 Will because the 2011 Will provides for utilizing the estate funds for meeting other expenses other than for obsequies and income tax and other liabilities only after obtaining probate.
7. Mr. Khambata therefore submitted that the estate could not have been made the donation to the trust. In this behalf, it is submitted that upon enquiry made as a result of numerous orders passed by the Court, the actual name of the trust was found to be "Bai Avabai Hormusji Tata Trust for Charitable ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 7* AdmReport_1of 2016.odt Objects" and not Avabai Hormasjee Tata Charity Trust. This is attributed to attempts by the defendant no.1 to create confusion in order to prevent names of trustees from being revealed. Mr.Khambata submitted that several documents in relation to the trust have not yet been provided and are unlikely to be provided unless this Court orders an investigation. The documents remaining to be disclosed by defendant no.1 are stated to include the following:
(i) Application seeking addition of Jamsheed Panday as trustee;
(ii) Change Report and Application for change of address to 2B, Hamam House, Change Report Application and an order to add the name of Sudhakar Pai as trustee;
(iii) Certificate under Section 80G of the Income Tax Act;
(iv) Accounts of the trust prior to 2008;
(v) Certificate under Section 12A dated 25 th September, 2012 and connected papers and the statement which refers to the name of trustee in an order dated 28th August, 2017 passed by this Court.
According to Mr. Khambata these are documents which find reference in the records and there may be other documents, existence of which is not apparent today. The plaintiffs have also contended that the defendant has engaged in fabrication of documents and an attempt to mislead the Court that in the affidavit in reply dated 14th July, 2017 in response to the administrator's report, the defendant no.1 contended that the trust was set up as a public charitable ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 8* AdmReport_1of 2016.odt trust by Mr. Naval Tata. According to the plaintiffs, defendant no.1 had made false statements. The documents revealed that the declaration of trust is dated 3rd March, 1943 and although the trust contained reference to the name Tata it was not set up by Naval Tata and Avabai Tata was not the mother of Naval Tata as incorrectly contended by defendant no.1 who has tried to pass off the trust as being associated with the well known house of Tatas. Defendant no.1 has omitted to deal with documents annexed by the plaintiff which disprove the origins of the trust as projected by defendant no.1,
8. Mr. Khambata submitted that Dady Lam who claims to be a trustee of the trust had also made a false statement on oath that the trust is a public charitable trust created by Naval Tata. This was false to his own knowledge since in an affidavit of October 2011 the said Lam himself states that the declaration of the trust is the document creating and governing the affairs of the trust. He affirms the date of formation of the trust as 3 rd March, 1943. In a letter dated 10th November, 2016 addressed by Mr. Lam to the Administrator he had referred to the trust deed dated 3 rd March, 1943. The house of Tatas has denied any connection with the Bai Avabai Trust. In support of this contention Mr. Khambata invited my attention to the plaintiffs affidavit dated 17 th January, 2017. It is therefore submitted that the receipt relied upon by defendant no.1 is not genuine and the defendant no.1 along with trustees have sought to exploit ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 9* AdmReport_1of 2016.odt the trust for their own benefit and deliberately, by creating a letterhead bearing the wrong name of the trust. Such a letterhead was allegedly created for the purpose of this litigation. Mr. Khambata submitted that the trustees of the said trust have withheld details and documents from this Court for deliberately causing confusion as to their correct name till they were compelled to disclose the same by the Court. Furthermore, in the letter dated 10 th November, 2016, Mr. Lam had described the trust incorrectly and also stated that the trust had applied for a change of address to 2B Hamam Street, Ambalal Doshi Marg, Fort, without specifying the name of the building.
9. It is further submitted that on or about 7 th October, 2016 the trustees submitted 828 pages said to be documents in support of their contention that the monies had been utilized by the trust for charity. Only a few of these, about 12 in number, were relatable to the trust. Some of these documents are said to have the name of the trust inserted by hand. Some pertain to persons of various communities and considering that the trust was meant only for the benefit of parsis and the fact that the trustees themselves had reiterated this aspect, the transactions were suspect. The trustees did not produce receipts from the purported beneficiaries. In this respect reference is made to correspondence with the banks. The so called certificate under Section 80G of the Income Tax Act has still not been disclosed although defendant no.1 continues to contend ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 10* AdmReport_1of 2016.odt that the donations, made to the trust were entitled for tax benefits. The trust was compelled by this Court to disclose their bank accounts which revealed payments made to defendant no.1. It is now sought to be contended that the amounts were being returned to defendant no.1. Some of the amounts are said to be paid for medical treatment of one Mr. Waghmare who is obviously not from the Parsi community. The name of the trustees were also suppressed and it is only after the challenge in the Supreme Court was rejected that these names were forthcoming. Till then the names of the trustees were suppressed. It is submitted that the trust had stopped since functioning by 2008 and since the relevant Will was to be executed in 2011 the trust was sought to be revived.
10. Mr. Khambata submitted that several events establish that the trust was sought to be revived for the purpose of fraudulent activities. In October 2011 Mr. Lam, the trustee affirmed an affidavit in support of his change report to add the name of Mr. Paowalla formerly the Director of Amoha Traders and the wife and son of Jamsheed Panday as trustees. In November 2011, the said Mr. Lam filed the change report to add Jamsheed Panday as well as a trustee. On 23 rd November, 2011 Mr. Lam applied to the office of the Charity Commissioner to file audited accounts of the Bai Avabai Trust from 2009. On 28 th January, 2012 a resolution was purportedly passed to authorise Mr. Lam to apply for a duplicate registration certificate of the trust. The resolution did not mention ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 11* AdmReport_1of 2016.odt the then office bearers. In the application made the name of the trust is wrongly mentioned and on 11th April, 2012 a donation is said to have been made to the trust from the funds of the estate and the cheque was encashed.
11. Thus, Mr. Khambata submitted that the trust was sought to be activated only the for purposes of siphoning away the funds of the estate. The defendant no.1 and the trustees have fabricated and used false evidence by creating a letterhead of a non-existent trust for the purposes of the litigation and in an attempt to make it difficult to trace the whereabouts of the Trust. Mr.Khambata further submitted that although the Trust is sought to be represented by Advocates, it cannot because the trust is not a legal entity and therefore the trustees are put to notice that they cannot hereafter contend that they were not represented. The matter has nevertheless been contested on behalf of the said Mr. Lam and others despite being put to notice of this fact.
12. As far as Amoha Traders is concerned, it is submitted that the bank statement of Kotak Mahindra reveals that the defendant no.1 had paid a sum of Rs.17,08,147/- to Amoha on or around 24 th March, 2012 when the estate was in medio. The telephone no.022-30281941 given to the Bank by defendant no.1 was also used by Amoha Traders and was registered in the name of the said Panday. The email-id provided by defendant no.1 was also that of Amoha ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 12* AdmReport_1of 2016.odt and the mobile number given on by defendant no.1 is that of Darayus Paowalla who was Director of Amoha Traders. The said Paowalla is also a trustee of the Bai Avabai Trust. The Account Opening Form reveals, that defendant no.1 had instructed the bank to provide daily balance updates to the aforesaid email-id and mobile number although he is claiming to be executor of the 2011 Will. Mr.Khambata submitted that in his affidavit dated 24 th April, 2018 defendant no.1 had stated that Amoha had acted as the introducer of the bank account and that he was not operating any email account. He further contended that he had provided to the bank his contact details as that of Amoha since Amoha maintained a running office and communications could be received from the bank.
13. Mr. Khambata further submitted that so called loans amounting to Rs.27,92,147/- were given by Amoha, despite the contest to the Will, to meet its expenses of the estate through a nominated entity. Mr. Daroowala is said to be involved in the grant of the alleged loan although he shown to be a minor shareholder of Amoha. Although it is contended that defendant no.1 had repaid a sum of Rs.17,08,147/- on behalf of the estate it would still leave a sum of Rs.10,84,000/- due, Amoha had not claimed this amount despite filing of the affidavits and had avoided service of letters issued by the administrator. Mr. Khambata submitted that the reason for Amoha not asserting its claim is ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 13* AdmReport_1of 2016.odt obviously because these amounts were not shown as loans or advances in its balance sheets. It is further submitted that the repayment of such funds in itself would constitute evidence of siphoning of funds since the 2011 Will did not permit taking of loans. It is submitted that Amoha is liable to return the amounts received from defendant no.1. Defendant no.1 is liable personally since Amoha was not a creditor of the estate. This conduct has to be viewed in the light of the fact that the estate was in medio at all material times and in this view of the matter both Amoha and defendant no.1 are jointly and severally liable to repay the amount. I may observe here that although I have heard the learned counsel appearing for the defendants and the respondents including Amoha at no time was any offer made to "repay" the said sum of Rs.10,84,000/-.
14. Mr. Khambata further submitted that Amoha was a loss making company and it owes Rs.2.68 crores to a company known as Kratos Energy and Infrastructure and the loss is reflected in balance sheet of Amoha. For the period 2011-12, 2012-13 and 2013-14 the average loss was 4.60 lakhs across these years. The balance sheets do not reflect any loans or advances given to any party and the only loan shown in the Directors report of Amoha is to one Vaseem Kapadia and Jaya S. Pai wife of Sudhakar Pai trustee of the Bai Avabai Trust and a friend and business associate of the said Panday. This is clearly ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 14* AdmReport_1of 2016.odt indicative of the fact that defendant no.1 had made a wrong statement on oath to the effect that loans were given by Amoha to the estate to the extent of Rs.27,92,147/-. Referring to documents relied upon by Amoha in the affidavit dated 7th August, 2017, Mr. Khambata submitted that cash payments of Rs.11,09,976/- were made to Safe Security Services and a total sum of Rs.17,08,147/- is said to have been paid by Amoha on behalf of the estate. Surprisingly, these amounts paid on different dates were not paid in cash and all within a period of less than 3 months i.e. between 9 th December, 2011 and 5th March, 2012. Cancellations were made on invoices of professional fees paid to reflect the name of "PBD matter" which are the initials of the testator. Probate fees of Rs.2000/- was allowed to be paid for the probate petition and Rs.75,027.50 as probate court fees. This amount shown in particulars of invoice had been blacked out and the words "Printing and Stationery" have been inserted. Legal fees paid do not appear to be connected with the estate. A Chartered Accountant has certified as Amoha had incurred Rs.17,08,147/- on behalf of the estate and had received reimbursement thereof. The certificate is issued on the basis of alleged "verification of books and information and explanation provided by the representative of the company" but the name of the representative is conspicuous by its absence. The information and explanations referred to by the Chartered Accountant has also not been disclosed in the affidavits filed by Amoha.
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15. Mr. Khambata submits that Amoha is owned and controlled by said Panday who along with his wife and nominees hold stakes in companies known as Great Western Finance and Leasing Ltd. and Lakshmi Vijayam Investments Pvt. Ltd. and owned about 75% issued shares of Amoha Traders. The fact that Paowalla acts as an authorised representative is admitted by him in an order passed by the Securities Exchange Board of India and forming part of the plaintiffs affidavit dated 12 th October, 2017. Mr.Khambata submitted that within a fortnight of the demise of the testator, the said Panday has signed as a witness in a purported letter of possession dated 21 st December, 2011 by which defendant no.1 is believed to have handed over possession of flat no.8 in Al Karim building to one Vaseem Kapadia. That transaction has been held by this Court to be illegal. The fact that the said Panday was attending to matters of the estate was evident from the letters dated 18 th January, 2012 and 2nd February, 2012 disclosed at Exhibit UU page 1006 of the affidavit dated 7 th August, 2017 filed by Amoha. These letters were addressed by Mr. Panday himself and not at the request of defendant no.1. Mr. Khambata stated that the said Panday and Amoha were receiving updates from Kotak Mahindra on a daily basis.
16. On 15th March, 2012 defendant no.1 is stated to have made an inventory ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 16* AdmReport_1of 2016.odt at the residence of the deceased. Panday along with Dhoodhmal and Irfan Khan were present. Panday is believed to have acted for the estate even in September 2014 viz. even after the injunction order and the appointment of the administrator. This according to Mr. Khambata appears from the letter dated 22nd June, 2015 addressed to the administrator by one Rohit Shinde a person who said to be a tenant of a bungalow belonging to the estate of the deceased named "Lovedale". The telephone number provided in the said communication is standing in the name of Amoha Traders having its office at 31-C, 3 rd floor, Rajabahadur Mansion, 32 Ambalal Doshi Marg, Fort, Mumbai-4000 001, which address is also used by El Dorado Guarantee, the promoter of Kratos Energy (Kratos). Mr. Panday is or has been a Director of El Dorado Guarantee. There are also references made to one Gheewala in the letter and also the initials "PG" in numerous documents. "PG" appears to be the said Pervez Gheewala. The letter bears the caption "Attn: - Mr. Jimmy Pandey RE: - Estate of Parvez B. Dalal". He submitted that unless Amoha was involved in the dealings in relation to the estate. It is therefore contended that defendant no.1, said Panday, Daroowala, Engineer, Gheewala, Safe Security Services and Vaseem Kapadia and some other persons are acting in conspiracy. The fact that Vaseem Kapadia is close to Panday and the group is evident from the fact that Vaseem Kapadia is shown to be owing Amoha Traders a sum of Rs.65 lakhs as of 1st April, 2015, Rs.56 lakhs as of 31 st March, 2016. The Kapadia named in ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 17* AdmReport_1of 2016.odt the records of Amoha Traders appears to be the same person who is said to have bought flat no.8 in Al Karim Manzil for Rs.75 lakhs.
17. It is submitted that the acts of said persons are clearly contemplated under Section 303 and 304 of the Succession Act and all these persons are accountable to the estate, to the administrator of this Court. Mr. Khambata submitted that Amoha's contention that it has not inter-meddled with the estate because it did not possess any asset of the estate is incorrect since it had taken money from the estate funds. He submitted that an inter-meddler is any one who dabbles with the estate of the deceased and that the claim of bills being raised in the name of Amoha and Amoha paid them directly is sufficient to constitute Amoha an inter-meddler. In this behalf, Mr. Khambata referred to the decision of Sudama Devi and Ors. V/s. Jogendra Choudhary and ors .1. He further submitted that Panday in collusion with others had conspired to siphon of the estate and interfered with the estate and dealt with it illegally when the property was in medio and even after this Court had passed the order of injunction. He submitted that defendant no.1 is closely connected with said Panday and the companies in question and defendant no.1 had committed forgery by stating that he had no nexus with Panday or Amoha Traders. Defendant no.1 is a shareholder of Kratos and Canos Trading. Kratos shares the same phone number as Amoha Traders which stands in the name of Jimmy 1 AIR 1987 Patna 239(FB) ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 18* AdmReport_1of 2016.odt Panday. The annual report of Kratos is said to contained reference to establish that Amoha Traders, Arma Financial and Canos Trading are related parties and associated companies. Furthermore, the plaintiffs have recently discovered that Canos Trading Ltd., was used as a means for creating liability in the name of the estate and to siphon away the estate funds. This is sought to be established by Mr. Khambata by submitting that defendant no.1 along with three others are shareholders in Canos Trading hold one percent. Defendant no.1 holds one percent as a shareholder of Canos along with three others. Amoha Traders is one of the older shareholders in Canos holding 10%. One Ms. Firozi Patel who is stated to be the wife of Irfan Khan holds 50% of shares in Amoha and is a Director in Canos Trading. The balance 39% is said to be held by one Nikhil Shah. The registered office of Canos Trading is at 2B Hamam House and which address was used by the trust and which the trustee Mr. Lam proposed as a new address of the Bai Avabai Trust. Canos Trading also has its correspondence address at Rajabahaur Mansion address which is also shared by Amoha Traders. Mr. Khambata states that that in the Directors Report of Canos Trading for the period ended 31st March, 2015, item no.16 records that during the year the company advanced a loan of Rs.69,60,577/- to Mr. Purvez Dalal who had incidentally died in December 2011. Further for the year ended December 2016 a further loan of Rs.47,62,383/- is shown to be given to Purvez Dalal. The closing balance in the Directors Report of Canos Trading showed an ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 19* AdmReport_1of 2016.odt amount of Rs.1,17,22,959/- as being due from the deceased testator. The Directors report for the year ended 31 st March, 2016 is signed by Firozi Patel, a major shareholder of Canos and wife of Irfan Khan who is said to be a business associated. The loans have been advanced after the date of demise of the testator and therefore appeared to have taken in the name of the estate of the deceased testator. These are dealings well after the defendant no.1 was restrained from acting as an Executor and also after the appointment of the administrator. Furthermore, the loan does not appear to be reflected in any of the bank accounts of the estate disclosed to the administrator or to the Court and the defendant no.1 who would have been recipient of the Director's Report would certainly have been aware that loans were shown in the name of the deceased testator. It is submitted by Mr. Khambata that these facts have now been discovered upon a search being carried out by the plaintiffs and none of these aspects have been denied by the defendant no.1 or the respondents or dealt with while making submissions.
18. Mr.Khambata submitted that in the plaintiffs affidavit dated 17 th January, 2017 it was pointed out that defendant no.1 was a shareholder of Canos and had filed an affidavit in reply dated 24 th April, 2018 wherein, while dealing with paragraph 44 defendant no.1 contended that he was not aware of the contents and hence did not comment upon the same. Defendant no.1 had ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 20* AdmReport_1of 2016.odt filed an affidavit dated 19 th June, 2018 in which he has admitted that he holds shares in Canos and that he had received Rs.1,17,22,959/- who claims to have received as a personal loan and has attempted to explain away the Director's Report as "incorrect" and an "error" relying upon the purported Chartered Accountants certificate. No explanation is forthcoming as to how Canos would have learnt of the testator and how such an error could have been made by the company and its auditor in its Director's Report. It is submitted that J.C. Desai & Co. which has issued the certificate is the statutory auditor for Canos and also the chartered accountant from whom the certificate was obtained regarding the sum of Rs.17,08,147/- said to have been spent by Amoha which amounts have been given by defendant no.1 out of the funds of the estate. Incidentally the certificate issued by J. C. Desai & Co. is issued upon verification of books of accounts and other relevant records as produced before the Chartered Accountants by Canos Trading and on the basis of verification and explanation provided by the company. No documents which are said to have been verified have been referred to. It was further submitted that defendant no.1 has stated that he has annual income of Rs.5 to 10 lakhs in his affidavit dated 17 th January, 2017 and it is inconceivable that Canos could give a loan of Rs.1.17 crores to defendant no.1 who admittedly was a man of moderate means of which this makes it obvious that defendant no.1 was creating liabilities in the name of late testator and siphoning the amounts in cahoots with others even ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 21* AdmReport_1of 2016.odt when the property is custodia legis.
19. Apropos the connection between defendant no.1, the said Panday and his various companies under his control and the trust, Mr. Khambata pointed out that 2B Hamam House, Hamam Street has been the office of Amoha Traders, Jamsheed Panday, Canos Trading, El Dorado Guarantee, Lakshmi Vijayam Investments, Great Western Finance and the trust also had its office at the same place. He has taken me through the various affidavits from which these facts emerge. Panday is also Director of Lakshmi Vijayam Investments, Great Western Finance and along with his wife they have 75% shareholding in Amoha. Panday and his wife are the promoters of Amoha, looking after its day to day affairs. Amoha had also its office at 31-C, Raja Bahadur Mansion, Ambalal Doshi Marg. The telephone number 30281941 is common to Amoha Traders and Jamsheed Panday and is also provided by defendant no.1 at the Kotak Mahindra Bank. The telephone number 66341941 is common to Canos Trading and El Dorado Guarantee, and the telephone number 22642264 is common to Amoha Traders and Jamsheed Panday and El Dorado Guarantee. Another common link is the email id which bears the prefix "[email protected]" is used by Amoha, Canos, Arma, Allanzers Securities, El Dorado Residences and Alpic BBK Finance Ltd. which is since in liquidation. The email address "[email protected]" is thus used by Arma, El Dorado ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 22* AdmReport_1of 2016.odt Securities, Pirojsha Consultants, El Dorado Guarantee, Great Oaks Holdings, Lakshmi Vijayam Investments and Great Western Finance and Leasing. These facts have been gathered from the plaintiffs affidavit dated 16 th May, 2018. The Defendant no.1 or the others have not disputed these statements in the plaintiffs affidavit.
20. Mr. Khambata submitted that the denials in the affidavits filed on behalf of the Amoha to the Administrator Report contained vague and evasive denials and only in the affidavit dated 8 th May, 2018 few of the allegations have been briefly dealt with on merits and there is little or no denial. Mr. Khambata submitted that an evasive denial or a failure to deny constitutes an admission. He relied upon the decision of the Supreme Court in the case of Jaspal Kaur Cheema v/s.Industrial Trade Links 2 and Express Newspapers Pvt. Ltd. V/s. Union of India and others 3 in this respect. It is submitted that Panday was also accused in the RBF Nidhi Scam noticed by a Division Bench of the Madras High Court. He is also said to be accused of conspiracy to cheat Canara Bank through Great Western Industries Ltd. which has found mention in proceeding before the Karnataka High Court. He invited my attention to the relevant pages of the compilation to indicate the involvement of Panday by reference to the orders of the Madras High Court and orders dated 7 th July, 2014 and 26th October, 2015. Mr. Khambata took me through the said orders. These orders refer to the said Panday described as "Jimmy Panday" and it 2 (2017) 8 SCC 592 3 (1986) 1 SCC 133 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 23* AdmReport_1of 2016.odt appears that Panday was adjudicated insolvent is reflected in order dated 3rd February, 2009 of the Madras High Court.
21. Mr. Khambata also submitted that Kotak Mahindra Bank in its account statement shows large sums of money having which spent by the defendant no.1 all of which appear to be the sums of money siphoned away from the estate through the conduits of Amoha Traders, Safe Security Services and Bai Avabai Trust. Mr. Khambata also submitted that the Succession Act does not permit the executor to borrow money and there was no justification in the defendant no.1 binding the estate by borrowing funds. Furthermore, he had no power or right to act as executor either to borrow or to donate funds. The donation to trust and the repayment to Amoha and other monies said to have been paid to Safe Security Services and legal fees were liable to be paid over to the administrator and the fact justify an order of investigation. Mr. Khambata submitted that defendant no.1 and his associates have inter-meddled with the estate and continued to do so. They have resisted the attempts of the administrator and therefore the Court to discover the estate in its entirety and that the Court had given opportunities to the defendant no.1 to make further disclosures of the estate assets and dealings vide its order dated 21 st June, 2012, 9th June, 2015 and 29th June, 2015 despite which the defendant no.1 had failed to comply. The orders for discovery were made by a Single Judge of this Court ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 24* AdmReport_1of 2016.odt on 24th December, 2013 and by the Division Bench on 8 th August, 2014. The findings of contempt included conduct in not disclosing the assets of the estate and merely because an appeal against the order providing for his imprisonment was pending does not prevent compliance with the order. In this behalf, Mr. Khambata referred to the judgment of the Supreme Court in State of Uttar Pradesh v/s. Mohd. Noor 4. He further submitted that the appeal Court had not stayed the judgment holding the defendant no.1 in contempt but has merely suspended the sentence. The order of the Division Bench dated 24 th February, 2017 had observed that the plaintiffs have a right to find out if the said trust was being used as a front to siphon off the estate. Furthermore it is submitted that attempts made by the administrator from time to time calling for information and documents is made to which no response was forthcoming as evident from the administrators report. The administrator is therefore facing serious difficulties in ascertaining the information to the extent of the estate. Apart from the matter siphoning away of the estate funds, third parties have continued to exploit and interfere with the estate when it is in medio and have indulged in fabrication of documents and that the administrator is not been able to discover and recover the assets without the assistance of this Court.
22. In any event, Mr. Khambata submitted that it must be borne in mind that defendant no.1 cannot be permitted to retain the fruits of his contemptuous 4 AIR 1958 SC 86 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 25* AdmReport_1of 2016.odt act and was also the third party is concerned who were involved in the conspiracy. In this behalf, he relied upon the decision of All Bengal Excise Licensees Association v/s. Raghabendra Singh and others 5 and submitted that defendant no.1 was also receiving amounts in cash on behalf of the estate but has failed to deposit the same in the bank account that there was apparently one or more accounts that had been opened in the name of estate and not disclosed which aspect has been dealt with in an order dated 9 th January, 2017 passed in Testamentary Suit no.29 of 2012 in Testamentary Petition no.341 of 2012. It must be ascertained whether any amounts of the estate have been deposited into personal bank account of defendant no.1 or that of his associates Panday and others. It is not understood why Canos Trading would consent for giving loans to the testator after his demise. It is necessary to consider these aspects.
23. Revival of the Bai Avabai Trust and fabrication of letter heads and receipts leads one to believe that the trust is being used for the purposes of receiving kick backs and the true nature of the trust has to be ascertained. There are immovable properties in Manmad, Bachav and Nasik some of them having machinery. There are also hotel properties in Andheri and Vile Parle. There are government securities forming part of the estate. Defendant no.1 has been collecting cash amounts on behalf of the estate and not depositing it in the 5 (2007) 11 SCC 374 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 26* AdmReport_1of 2016.odt estate account. On the other hand, the enquiries must be made whether the defendant no.1 is depositing cash and other collection in this personal account which ought to have been part of the estate account especially since he has suppressed bank accounts. The role of the other persons such as defendant no.1, Panday, Aspi Daroowala, Vaseem Kapadia, Gev Engineer, Irfan Khan, Firozi Patel, Pervez Gheewala, Dady Lam when the estate is in medio would in my view require for a court monitored enquiry.
24. Mr. Khambata therefore submitted that a Court may invoke power under Section 340 of the Cr.P.C. since finding is disclosed are inter alia under Sections 191, 192, 196, 199 and 200 of the Indian Penal Code and punishable under Section 193. Other violations include all statements being punishable under Section 209 forgery under Section 463, 464, 471 as also section 467 there being a conspiracy that has been purported by the alleged conspirators. He relied upon the decision in the case of R.K.Dalmia v/s. Delhi Administration 6 and that the defendant no.1 with the assistance of the alleged conspirators committed contempt of Court. The identities and the roles if any played by these persons requires to be looked into. He submitted that defendant no.1 and the respondents cannot question the power of Court to consider the relief sought. Their contention is that the testamentary Court's jurisdiction can not be invoked to grant reliefs for refund of monies and that refund of monies, if 6 AIR 1962 SCC 1821 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 27* AdmReport_1of 2016.odt any, can only be sought in appropriate proceedings when defendant no.1 would have fullest opportunity to defend the case. He submitted that although whilst granting or refusing probate, the Court does not concern itself with the title to or existence of the property bequeathed, the testamentary Court continues to be the High Court with all its jurisdictions and authority and powers since the Court would be enforcing of its order dated 21 st June, 2012 and other orders for disclosure. In view of the fact that the disclosure is clearly not forthcoming, the defence on behalf of the Amoha and trustees and defendant no.1 is only to the effect that the testamentary Court has limited powers in a probate proceeding, this cannot be expanded. In this behalf, Mr. Khambata submitted that inJyoti Bhushan Gupta v/s.The Banaras Bank Ltd .7 the powers of the High Court are held to be undiminished and in exercising its jurisdiction in the manner and in terms of the assistance now sought from the Court would not involve exercise of any special jurisdiction under Article 215 of the Constitution. Every High Court as a court of record has power to punish the contempt of itself. The inherent powers of Court are unlimited and set out in Pritam Pal v/s. High Court of Madhya Pradesh through Registra r8. It is observed that the powers of the High Court under Section 215 cannot be restricted or trammeled upon by any ordinary legislation and that the inherent power of the High Court are elastic, unfettered and not subjected to any limit.
7 1962 AIR 403
8 1993 Suppl. 1 SCC 529
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He further submitted that in H.P.S. Chawla v/s. N.P.S. Chawla 9the Delhi High Court has observed that even while sitting in its testamentary jurisdiction and in the absence of statutory prohibition the High Court does not cease to be a court of equity. Steps must be taken to ascertain the extent of inter-meddling by the conspirators including defendant no.1. He relied upon Maria Margarida Sequeira Fernandes v/s. Erasmo Jack De Sequeira 10 which held that courts use power under Section 30 of CPC frequently and such exercise of powers were justified especially in view of the assertion by Mr. Lam in his affidavit dated 4th June, 2018 to the effect that he cannot be directed to produce the books of account of trust. Every Civil Court has powers to summon strangers as witnesses to give evidence as well as produce documents under Section 30(b) and Order 16 Rule 14 of the C.P.C. and administrator is similarly placed as a receiver is. As held in Pandurang Shamrao Laud v/s. Dwarkadas Kalliandas 11 even in a case of a receiver where third party claims are involved the merits of the case can considered by the Court and cannot be rejected summarily. He relied upon Prabodh N. Shah v/s. State Bank of India 12. Mr. Khambata submitted that although the Court may feel that the administrator required to file appropriate proceedings to recover amounts that can only depend on the pleadings and proof placed before the Court and this is observed 9 AIR 2006 Del 53 10 2011 (5) SCC 370 11 1933) 35 BLR 700 12 AIR 2003 SCC 3637 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 29* AdmReport_1of 2016.odt by the Supreme Court in Anthoney C Leo v/s. Nandlal Balkrishnan & Ors. 13 and Usha Harshadkumar Dalal v/s. ORG Systems & Ors. 14 He submitted that summary proceedings did not diminish the power of the Court and even complicated questions can be considered as observed by the Supreme Court in Mohan Lal v/s. Kartar Singh 15 and Sanjeev Kumar Mittal v/s. The State 16. This aspect has been considered at length and that Court monitoring investigation was justified prior to launching the complaint under Section 340 of Cr.P.C. In the matter of ordering an investigation, it was submitted that a high ranking officer may conduct the investigation as considered in the case of Vijay Enterprises v/s. Gopinath Mahade Koli and others 17 as also Sita Ram v/s. Balbir alias Bali 18 (**). Reference was also invited to the decision of the Supreme Court in the case of Pritish v/s. The State of Maharashtra 19 which was followed in Union of India v/s. Haresh Virumal Milani 20 holding that proceeding are to be initiated or even to give notice to the person against whom proceedings are to be initiated. It is also held that the Civil Court has the power to call witnesses and exercise power under Section 311 of the Cr.P.C. similar to Section 30(b) and Order 16 Rule 14 of the C.P.C. and that this Court has held that proceedings for applications under Section 340 of the 13 1996) 11 SCC 376 14 2001 SCC 742 15 1995 Suppl.(4) SCC 684 16 174 DLT 214 17 2006(4) BCR 701 18 2017 (2) SCC 456 19 (2002) 1 SCC 253 20 2017 (4) Mh. L.J. 441 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 30* AdmReport_1of 2016.odt Cr.P.C. are independent and that for such proceedings. The power under the Code of Criminal Procedure can be enjoyed by the Civil Court. An SLP filed from this judgment is stated to have been withdrawn as recorded in an order dated 18th September, 2016. It is the contention of the plaintiffs that the High Court always can order an investigation under its plenary and inherent powers and the Court is in any event does not lack the power to order of investigation in its testamentary jurisdiction or on the administrator's report, the jurisdiction and powers of the Court are unaltered.
25. Mr. Khambata also relied on the following judgments:
1) M.V. Elisabeth and others v/s. Harwan Investment and Trading Pvt. Ltd.;
2) Sudhirendra Nath Mitter v/s. Arunendra Nath Mitter and others 3) S. K. Gupta and another v/s. K.P. Jain and another ;
26. In M.V. Elisabeth (supra), the Court was considering the competence of the appropriate Indian Court to deal in accordance with the general principles of maritime law with things and persons within their jurisdiction. The Supreme Court held that the power is plenary and unlimited unless it is curtailed by express or necessary implication in the words of the Supreme Court "absent such curtailment of jurisdiction, all remedies which are available to the Courts to administer justice are available to a claimant against a ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 31* AdmReport_1of 2016.odt foreign-ship and its owner found within the jurisdiction of the High Court concerned". The Supreme Court went on to hold that the High Court in India are superior courts of record. They have original and appellate jurisdiction and inherent and plenary powers and unless expressly or impliedly barred and subject to the appellate and discretionary jurisdiction of the Court. The High Courts have unlimited jurisdiction including to determine their own powers.
27. In Sudhirendra Nath Mitter (supra) the Calcutta High Court observed that where upon a death of person there is a litigation in the probate Court touching the executorship to the deceased and since during the context none can act as executor. The probate court may grant administration to another pending the suit. The administrator may collect the effects sue, if necessary since it is the part of his office to recover and get the debts of the deceased. The Calcutta High Court followed the judgment in Bellew v. Bellew (1865-4 Sw & Tr 58) to the effect that the probate court may grant administration of the estate pendente lite and that the Court of Chancery would appoint a receiver when the property was in medio. That the estate being in the enjoyment of no one, it is in the common interest of all parties that the Court should prevent a scramble and in such situations receivers are appointed and the charges are made against the executor named in the Will. The Executor who is mixed up in the case as executor should not be appointed the Administrator pendente lite] ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 32* AdmReport_1of 2016.odt
28. In S. K. Gupta (supra), the Supreme Court was considering a case of a company in an action under Section 392(2) of the Companies Act and while dealing with the case it observed that the Court can act suo moto and it is immaterial as to who drew the attention of the Court to a situation which necessitated the Court's intervention to exercise the powers conferred on a Court to take action. The Court may decline to act at the instance of a busy body but if the action proposed is justified, valid and legal, the Court can proceed to take action and the capacity or credentials of the person who brought the situation about which called for the court's intervention is not relevant and would not invalidate the action on that ground.
Submissions of Mr.Thacker for Defendant No.1.
29. On behalf of defendant no.1 Mr. Thacker learned counsel referred to the background of the dispute and contended that the Will propounded by the defendant no.1 provided that the estate was to enure for charitable purpose. He submitted that particulars of donation paid vide letter dated 10 th April, 2012 was sent to the Administrator and vide disclosure letter dated 7 th October, 2016 copy of which is to be found at page 365 Exhibit-T.
30. The first submission of Mr. Thacker is that there is no lis between the administrator and defendant no.1 as on date and therefore the plaintiff cannot ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 33* AdmReport_1of 2016.odt seek any relief in the Administrator's Report. A suit would have to be filed. The plaintiff was entitled to file his own proceeding and so was the administrator. No relief can be sought by means of this report.
31. Secondly, he submitted that even assuming the plaintiff can seek relief, the relief sought would have to be within the scope of the probate proceedings which were parent proceeding in relation to the Will. He submitted that the relief apropos investigation is beyond the scope of parent proceeding and therefore cannot be sought on the basis of an administrator's report, if at all it can be sought only in a suit for administration of the estate.
32. Thirdly, he submitted that the machinery of the state cannot be utilised to fish out evidence. He submitted for example, if a money suit were to be filed, the plaintiff would have to establish fraud on own and not by reference to the State machinery. In the instant case he submitted that the plaintiff is not remedy-less. By virtue of section 192 which is only available to beneficiary under the Succession Act, a complete code in itself, but it does not provide for such relief to be granted. Section 192 gives them right to apply but not absolute right and there are limitation.
33. Section 193 has three prerequisites. Firstly an examination on oath, a further inquiry and person in possession must have no legal title. He invited ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 34* AdmReport_1of 2016.odt my attention to the statement of objects and reasons in Succession Act. He submitted that section 193 applies to both movable and immovable properties and there is no prejudice caused to the plaintiff if the relief sought are declined. Mr. Thacker then submitted considering the provision of section 208 and 209 that the application is premature considering the summary provisions till a final view is taken, today it is time barred due to section 205 in which the six months period commence in 2014 when the Kotak Mahindra Bank amount was received, the present application is filed only in the year 2016 and that the plaintiff has not been diligent.
34. Furthermore the plaintiff is seeking independent relief beyond the scope of Chapter VII of Part IX. He made reference to the Act 90 of 1841 which was an act for protection of movable and immovable property against wrongful possession in cases of succession and referred to provisions of that Act. In support of his contention that persons claiming rights in property of deceased person were required to apply to Judge of Civil Court, agents and Court of Wards. He submitted that even that on appointment for curator may conduct the suit on behalf of the State. He submitted that even that did not contemplate the Court directing the use of State machinery. He therefore submitted that the plaintiff cannot hijack the administrators report and seek relief there under. He made specific reference to section 208. He submitted section 208 contemplated ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 35* AdmReport_1of 2016.odt that there was no impediment in bringing the suit hitherto by the party on whose behalf an application is rejected before or after summoning the party in possession or by the party who may have been evicted from possession under part VII of the Act. Likewise the decision of the District Judge in summary proceeding under part VII shall have no effect other than settling the actual position, but such decision will be final and is not subject to appeal or review. These two sections are to be read with conjunction to section 207 which provides for possession by Court of Ward of any property and in the light of these provisions of section 207 that section 208 and 209 met reliefs.
35. Part VII deals with protection of property of the deceased and largely based on the 1841 Act to which my attention has been drawn. According to Mr. Thakker, save and except for Part VII of the Succession Act, no other provisions can be invoked. Inviting my attention to provisions of section 269 of the Act, he submitted that the Court may only appoint an officer to take and keep possession of the property. He submitted that the relief sought cannot be granted since the power under the section stands exhausted, once an administrator is appointed. He submitted that this section 269 has no application and that the decision in Rupali Mehta v/s Tina Narinder Sain Mehta AIR 2007 Bom 62 would apply. He submitted that the only question to be considered is whether the Court has inherent power under the scheme of ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 36* AdmReport_1of 2016.odt the Act. The Court cannot assume extension of such inherent power. However, I do not see how these provisions are relevant for the purpose of considering reliefs sought in this administrator's report.
36. Mr. Thacker submitted that section 192 and 269 do not apply in the facts of the case. He submitted that there are no provisions in the original side rules either. In any case, Mr. Thacker submitted that the only relief that can be granted was under part VII and under section 269. He submitted with reference to the Administrator's Report, that all documents were already disclosed in the contempt petition and they were also provided to the Administrator on 7th October, 2016. He referred to the letter dated 10 th April, 2015 addressed by the administrator to the then Advocate for defendant no. 1 in response to the letter dated 26 th December, 2014 and 12 th December, 2014 and submitted that copies of all documents received from Kotak Mahindra Bank were provided. He further submitted that all invoices were also provided and it is material to note that the administrator has not contended that the documents or any of them were fabricated. Referring to the chart at page 739 he submitted that the deceased had no cash, chart was prepared by defendant no. 1 and as executed by defendant no. 1 was authorised to make disbursement. This was necessary and for the benefit of the estate. Mr.Thacker submitted the affidavit filed by defendant no. 1 dated 21 st November, 2012 in notice of motion ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 37* AdmReport_1of 2016.odt no.138 of 2012, all disclosures had been made (see Exhibit 55) and there was nothing remaining to be provided. Mr.Thacker invited my attention to the police complaint dated 27th October, 2011 in relation to alleged trespasses at the premises of and submitted that guards of Safe Security Service were engaged for that purposes. During the life time of the deceased there was nothing suspicious about appointment of the security guards. He invited my attention to the bank statement of HSBC which revealed that sum of Rs.89,416/- was paid on 2nd November, 2011 to Safe Security Service in Notice of Motion 138 of 2012. He further submitted that monies were borrowed from Amoha before the order of injunction and property was then vested in defendant no.1 who was duty bound to protect the property. He submitted that upon demise of the testator the property stood vested and therefore defendant no. 1 was fully empowered to deal with it.
37. Referring to provision of section 307, 320 and 321 he submitted that the power of the executor is absolute as far as disposal of property is concerned subject to the restrictions in sub-section (2) that under section 320 and 321 after payment of final expenses, medical expenses boarding and lodging] Payment of expenses were also permitted and whether such expenses incurred in fraudulent manner can only be established at the trial and the Court cannot direct repayment in the Administrator's Report. He submitted that defendant ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 38* AdmReport_1of 2016.odt no. 1 was always entitled to assume office as executor and dealt with the estate and the proceedings now contemplated are premature. Furthermore if probate is granted to the defendant no.1 all acts of the defendant no. 1 shall stand validated by virtue of operation of section 227 of the Act which render valid of premature Acts.
38. Mr. Thacker submitted that the assumption of the office of executor by defendant no. 1 is permissible in law and the present procedure is alien to the Succession Act. The fourth submission of Mr.Thacker is that the relief provided for in the Act have been granted. He submitted that the present application on behalf of the plaintiff / administrator is at best application under Order 38 Rule
5. He submitted that defendant no. 1 claimed his registered Will. Defendant no. 1 is propounder of the Will and he is entitled to hold on to the property, since the prior Will is not a registered Will. Furthermore, he submitted that the forensic report has revealed that the signature of the testator on the will is forged. Lastly he submitted that the balance of convenience favours the defendant no.1. He submitted that the deceased had transactions with various parties as seen from the Bank statement received from HSBC.
39. Although these aspects has not been pleaded it is evident from the record it is submitted that the deceased had himself given a loan to Kratos as of 2013. ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 :::
39* AdmReport_1of 2016.odt He submitted that the loan to Kratos was given in 2013. The Directors report showed that monies had been borrowed. However this is incorrect since it is clearly an error. He submitted that there are no Government securities to the knowledge of of Defendant no. 1. The family of deceased did not have any Government securities and reference to Government securities is only to be found in the Will of the deceased brother.
40, Mr.Thacker relied upon the following judgments : 1) Mt.Azimunnisa Begum v/s. Sirdar Ali Khan and Others AIR 1927 Bom.387; 2) Bai Panbai vs. Morarji Kanji AIR 1927 Bom.438;
3) Premraj Mundra v/s. Md. Maneck Gazi & Ors. AIR 1951 Cal. 156;
4) Raman Tech & Process Engg. Co. and Anr. V/s. Solanki Traders (2008) 2 SCC 302;
5) FGP Ltd. v/s Saleh Hooseni Doctor and Anr. (2009) 10 SCC 223;
6) Fuerst Day Lawson Ltd. v/s Jinal Exports Ltd. (2011) 8 SCC 333;
7) Chiranjilal Shrilal Goenka (Decd.) Through LRs v/s Jasjit Singh and Ors. (1993) 2 SCC 507;
8) Ramapati Tewari v/s Dharam Sukh Tewari and Anr. AIR 1986 All 310;
9) HajiMahamadbhai Peerbhai v/s Bai Havabai & Ors. AIR 1924 Bom.507; ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 :::
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41. In Mt. Azimunnisa Begum (supra) this Court considered a case where the plaintiff had contended that the Will was ab-initio void, not because it was a forgery or it was obtained by fraud, coercion or undue influence but because all the provisions of the will are invalid under the Mahomedan law and therefore the executor had no power to act or bind the parties. The Court found that in terms of Section 4 of the Probate and Administration Act all property of the deceased person were since execute and if the executor abused his powers in respect of the property, the only remedy can only be a personal remedy. Outsiders who have dealt with the executor on the faith of the property having vested in him must be protected and authorities have held that while the property is vested with the executor although it may be found later that the properties were wrongly vested as in the case of forged will, all acts of the executor in respect of such property the bonafide purchasers are concerned must be regarded as valid.
42. In Bai Panbai (supra) while dealing with the provisions of Section 317 of the Succession Act the Court held that an executor or administrator may be compelled to exhibit an inventory and render an account of his administration of the personal estate of the testator. Mr. Thacker had relied upon the said decision in support of his contention that the intention of the legislature under Section 317 was that the inventory and accounts filed under that Section are to ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 41* AdmReport_1of 2016.odt be regarded as final and protection was afforded to parties interested in the Will to the extent that if the inventory and the accounts are intentionally false, the executor or administrator makes himself liable to punishment and the interested parties can file an action against the executor or administrator to questioning the correctness of the accounts.
43. In Premraj Mundra (supra) Mr. Thacker relied upon the facts which reveal that while dealing with an application under Order 38 Rule 5 & 6 of the CPC for furnishing a security the Court culled out the following guiding principles (1) that an order can be issued under Rule 5 & 6 of Order 38 only if circumstances contemplated in Order 38 exist and (2) whether such circumstances exist or not is a question of fact which has to be proved to the satisfaction of the Act. (3) The Court may not be justified in issuing an order of attachment before judgment merely because it thinks that no harm will be done or the defendants would not be prejudiced. (4) Furthermore, the affidavits supporting such contention of a applicant must not be vague and properly verified. (5) The affidavit in support must be true to knowledge, information or belief and it must state which portion is true to knowledge of the person making the affidavit. (6) The fact that a party is insolvent by itself would not justify passing of an order of attachment. Mr. Thacker submitted that in view of these guidelines that found in favour with the Court and if all these ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 42* AdmReport_1of 2016.odt guidelines are put to used in the present case, the facts would not justify grant of an order directing investigation. He submitted that the decision of Premraj Mundra has been approved by the Supreme Court.
44. In the case of Raman Tech (supra) in paragraph 4 & 5, the Supreme Court had considered the object of Order 38 Rule 5 of the CPC. This is a drastic and extraordinary power and could not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule and that the purpose of the provision was not to convert an unsecured debt into a secured debt.
45. In FGP Limited (supra) reliance was placed on the observations of the Supreme Court in paragraph 46 and 47 inasmuch as the Supreme Court had discussed the difference between Section 211 and 213 of the Succession Act. Under Section 211 the executor or administrator of a deceased person is his legal representative for all purposes and property of the deceased vests in him the expression legal representative would have the same meaning given in Section 2(11) of the Code of Civil Procedure "legal representative" means a person who in law represents the estate of the deceased and it includes person who inter-meddles with the estate of the deceased. That vesting of a property is dealt with in Section 211 and not Section 213 and such vesting does not takes ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 43* AdmReport_1of 2016.odt place as a result of the probate. On the executors accepting his office, the property vests on him and the executor derives is title from thwill and becomes the representative of the deceased even without grant of probate and the probate only confirms his title.
46. In Fuerst Day Lawson Limited (supra) Mr. Thacker had placed reliance on paragraph 89 which considered the fact that the Arbitration Act 1940 from its inception was held to be a self-contained code and if that were so the Arbitration Act, 1996 which consolidates, amends and design the law relating to arbitration to be brought in harmony, with the UNCITRAL Model must be held only to be more so and once it is held that the Act is a self-contained code and exhaustive, then it must be held to carry with it "a negative import that only such acts as are mentioned therein are permissible to be done and acts or things not mentioned therein are not permissible to be done." It was thus submitted that the Succession Act being a self-contained code the present exercise which the plaintiffs call upon this Court to enter upon cannot be undertaken and ought not to be entertained.
47. Relying upon Chiranjilal Shrilal Goenka (supra) Mr. Thacker reiterated that the probate court does not decide issues of title or existence of the property and therefore cannot enter upon the controversy in the present ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 44* AdmReport_1of 2016.odt case and therefore this Court cannot grant relief in the case at hand. He relied upon paragraph 14 and 15 of the judgment which dealt with Section 273 declares conclusiveness of the probate which are conclusive as to the representative title against the debtors of the deceased and all persons holding property which belonging to him and affords indemnity to all debtors and by operation of Section 211(1) the executor of a deceased person is his legal representative for all purposes and all the property of the deceased person vests in him. The judgment also considered the decision of Ishwardeo Narain Singh (supra) reiterating that the probate court is only concerned with the issue of the documents to be forward as a last Will in testament.
48. In Ramapati Tewari (supra) Mr. Thacker relied upon the observation of a single Judge of the Allahabad High Court that the District Judge had not recorded any finding as to whether any material prejudice would be caused to the applicant if he invokes the ordinary remedy of the suit and as to whether the application was bonafide. Both these were condition precedent to the exercise of power and in the absence of these findings, the judgment of the District Judge could not be sustained. In that case, an application was filed under Section 192 of the Succession Act and was allowed by the District Judge. The applicant Tewari filed a revision application challenging the judgment and his nephew Girja Prasad Tewari also filed revision against the same judgment ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 45* AdmReport_1of 2016.odt since both revision applications involved a common question they were decided by a common judgment. The Court after hearing the revisional petitioners remanded the matter to the lower Court to re-assess the evidence under Section 193 of the Succession Act was dealt with which require the District Judge to examine the applicant on oath and make further inquiries that he may think necessary to ascertain whether there is a sufficient ground to believe that the party in possession or taking forcible means for seizing possession has no lawful title and that the application was made bonafide. Finding that the District Judge has not recorded any finding as to material prejudiced, the matter came to be remanded.
49. In the case of Haji Mahamadbhai Peerbhai (supra) decided in November 1923, Mr. Thacker had relied upon the scheme of the 1841 Act under Section 3, 4 and 5 thereof and held that all proceedings where under interlocutory depending upon the filing of an application for relief asking the Court to determine who has a right to possession pending the final determination of the rights of parties in a regular suit. The Court held that considering the wide powers given to the Courts to make interlocutory orders in suits, that an application for relief under the Act could not be entertained because under Section 3 the Judge has to be satisfied that the applicant is entitled to the property and is likely to be materially prejudiced and such a ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 46* AdmReport_1of 2016.odt person could not be said to be materially prejudiced after he has asked to file a regular suit in which he can seek interlocutory relief. Mr. Thacker therefore submitted that no case is made out in the facts at hand for any further relief on the administrators report. Mr. Thacker also relied upon 1841 Act in an attempt to show that the provisions of the 1925 Act were comparable and therefore the judgment would be relevant even under the 1925 Act.
50. Mr. Thacker submitted that there was no occasion to order in investigation into the affairs of the estate by outside agencies. He submitted that the administrator is fully empowered to take whatever steps are required under law. He relied upon an affidavit of the defendant no.1 dated 21 st November, 2012 and the exhibits to the said affidavit on behalf of defendant no.1 he denied that defendant no.1 was at fault and adopted the contents of the affidavit to the exception relevant. He submitted that the expenses incurred on behalf of the estate were necessary expenses and were being paid even earlier during the lifetime of the deceased. He relied upon Exhibit 10 to the affidavit of Mr. Sukhadwalla to which recorded that there was a incidence of trespassing in the flat owned by the deceased. He submitted that the appointment of security guards was therefore necessitated. He relied upon a letter dated 8 th September, 2011 Exhibit 14 to the said affidavits wherein the deceased had himself recorded that he had discontinued a services of his personal physician and had ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 47* AdmReport_1of 2016.odt consulted Dr. Rumi K. Unwala instead of Dr.L.S. Ballani whose integrity the deceased had doubted even during his lifetime. Mr. Thacker submitted that there was no occasion to doubt the veracity of the Will propounded by the deceased.
51. In conclusion Mr. Thacker submitted that no further reliefs can be granted under the administrator report.
Submissions of Mr. Dani for Noticee no.2
52. Mr.Dani, learned Senior Counsel represented Noticee No.2 - Amoha Traders Pvt. Ltd. Mr. Dani initially contended on instructions that the name of the company not properly shown. He submitted that in report no.1 of 2018 two reliefs are sought firstly, disclosure of documents relating to flat no.8 at Al- Karim Manzil, papers pertaining to litigation filed during the lifetime of the deceased in relation to the flat, disclosure of the HSBC Bank statements of accounts in relation to the bank accounts in the joint names of the deceased Pervez Dalal and/or Jamsheed Dalal and one Dhoodhmal. The further orders of disclosure sought against KMBL is what concerns his clients that the disclosure sought in prayer clause (d) and (e) seeking a direction to furnish copies and details of a sum of Rs.17,08,147/- received by Amoha Traders on or about 24 th ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 48* AdmReport_1of 2016.odt March, 2012 out of the bank account opened in KMBL and also direction to his clients to pay over the administrator the said amount along with interest to be fixed by this Court. Further disclosures sought in the report do not concern Amoha.
53. Thus effectively as far as Mr. Dani's clients are concerned, he submitted that the petitioners seek disclosure of payment of monies received by Amoha. He submitted that the relief prayed in report no.1 of 2018 prayer clause (e)cannot be granted in the testamentary jurisdiction of this Court that it is not a plenary jurisdiction that the Court is exercising and therefore it is beyond the purview and provisions of the Succession Act. He submitted that Amoha is a third party unconnected to the parties to the suit and the only connection sought to be made out is set out in the affidavit. He submitted that provisions of Section 192, 193, 217, 268 and 269 of the Succession Act would be the relevant provisions of law and considering these provisions, the directions sought to regain property cannot stretch to the extent of property which is already "lost". He submitted that the administrator will have to file a title suit for the money now sought to be recovered.
54. Mr. Dani submitted that there are conflicting issues and therefore reliance under Section 193 of the Succession Act cannot be sought that the notice concerned was responding to an administrator's report and the plaintiff ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 49* AdmReport_1of 2016.odt cannot make enquiries against other persons who are not claiming the estate. He submitted that no order can be passed in terms of paragraph 24(e) of the report directing Amoha to handover and pay to the administrator a sum of Rs.17 lakhs paid to Amoha on 24 th March, 2012 out of the KMBL bank account without a proper investigation into the claim is made. He referred to the decision in Rupali Mehta (supra) and Ramchandra Hande (supra) and submitted that those were cases involved questions of title and in the present case there is no question of a dispute on title. These judgments were not helpful to the plaintiffs or the administrator. It is submitted that as far as Amoha is concerned, the claim against Amoha is restricted to Rs.17 lakhs and that balance sum of Rs.10 lakhs is paid over by defendant no.1 who has spent Rs.27 lakhs for protecting the estate. He submitted that Article 215 of the Constitution of India cannot be invoked in the facts of the present case since the testamentary and intestate jurisdiction is unique and the High Court 's empowerment under Article 215 of the Constitution cannot confer jurisdiction that the plaintiffs and the administrator now seek to invoke. The administrator must file a suit for any relief pursuant to his appointment. Furthermore, he submitted that Mr. Panday is not a party to this proceeding. Panday is not a director and he holds only 25 shares in Amoha. He submitted that Amoha has only two directors. He further submitted that as set out in page 969 the petitioners have only received reimbursement of hospital expenses, security ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 50* AdmReport_1of 2016.odt costs and medical expenses. He submitted that documents compiled from page 792 to 1127 disclosed such expenses and whether the funds were spent and to what extent they were spent will have to be gone into. Mr. Dani submitted that payments have been made to defendant no.1. Apropos the operating of the bank account he said that there is an explanation in paragraph 14 of the affidavit filed on behalf of Amoha and these are all questions of fact which have to be gone into. Mr. Dani further submitted that it is not the administrators case that Amoha had withdrawn funds. He submitted that no case had made out for the Court to order any investigation and nothing prevented the administrator from filing a first information report or a private complaint. In this light of the matter he submitted that no case is made out against notice no.2. Mr. Dani relied upon the decisions of this court in Rupali Mehta (Supra) and Ramchandra v/s Vithalrao 2011 (4) Mh L J 50 in support of his aforesaid contentions.
Submissions of Mr.Apte for the Trust
55. On behalf of Avabai Trust, Mr.Apte adopted that all the legal submissions made by Mr. Dani he invited my attention to the order dated 23 rd June, 2017 and submitted only prayers (e) and (g) survive and therefore no investigation as sought can be ordered. He submitted that the executor has made the donation. He invited my attention to affidavit dated 15 th July, 2017 and 4th June, 2018 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 51* AdmReport_1of 2016.odt filed on behalf of (Bai Avabai Hormusji Tata Trust for Charitable Objects).
56. Mr. Apte relied upon the donation receipt issued to defendant no.1 and the amounts received by cheque. He said that amount of Rs.15 lakhs was received on 10th April, 2012 whereas the administrator came to be appointed on 24th December, 2013. He invited my attention to page 269 of the report and the order being passed by the learned single Judge appointing the administrator referring to paragraph 827 he submitted that the administrator can file appropriate proceedings for recovery of properties. He submitted that in view of this specific direction there was no occasion to pass any further orders on the report. Referring to paragraph 77 of the order of the learned single Judge appointing the administrator, he submitted that the learned single Judge had observed that in respect of tenanted properties forming part of the estate, steps will have to be taken for recovery of possession or rent and for which appropriate proceedings will have to be filed. He submitted that this observation supports his contention that it is for the administrator to adopt the appropriate proceedings. Mr.Apte further submitted that as evident from the order dated 23rd June, 2017 passed by appellant and in paragraph 4 thereof, the property is not clearly a subject matter of the testamentary suit or probate proceedings and that only prohibitory orders can be granted. In the present case monies are donated before the appointment of the administrator. This ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 52* AdmReport_1of 2016.odt money was used for the objects of the trust and although payments were made to non-parsis it was legitimately made use of because it was for charitable purposes. Relying on paragraph 2 of the judgment of Ramchandra Hande (supra), Mr.Apte submitted that no Garnishee Notice can be issued to the Trust and if such notice is issued or any order passed directing the Trust to pay the money it would amount to deprive the Trust without adjudication and the suit is the only remedy. He submitted that in the case of Vimla Rajani (supra) the learned single Judge had followed the decision in the case of Ramchandra Hande (supra). Mr.Apte submitted that after the appointment of an administrator, only protective reliefs can be sought and granted if mandatory reliefs are required to be granted, such orders can be passed only in a suit and the administrator will have to file appropriate proceedings with the leave of the Court.
57. He invited my attention to the chart appearing at pages 901-908 of the compilation which he submitted that provided all details of the money spent. He submitted that the issue as far as the trust is concerned is a matter of principle and that the Court may not pass a mandatory order. If at all, the donation was paid without the right to do so the amount must be recovered from the executors. In the course of submissions, I called upon Mr. Apte to seek instructions whether the money can be deposited in the Court to which Mr. ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 53* AdmReport_1of 2016.odt Apte said that he has no instructions to make that statement. In other words the trust is unwilling to deposit the money in Court on its own. Mr. Apte then relied upon Section 368 and 369 of the Succession Act and contended that in the light of these provisions, the money cannot be recovered from the trust. The amount was used for charity and it is nobody's case that the receipts are bogus. He therefore submitted that no case was made for repayment of the amount. In conclusion Mr. Apte states that the amount was paid and received prior to appointment of the interim administrator and therefore no relief can be granted and no investigation can be ordered.
58. In Rupali Mehta v/s. Smt. Tina Narinder Sain Mehta 21 wherein the Court observed that the perusal of the Section 269 reveal that the power conferred on the Court is to interfere with the protection of the property till probate is granted is not available in cases where the deceased is a Hindu, Muslim, Buddhist, Sikh or Jaina or an Indian Christian who has died interstate. In that case the deceased was Hindu and therefore Section 269 was not available. This Court held that the very fact that the legislature had made a special provision under Section 269 of the Act giving power to the Court to make orders for protection of property during the pendency of the probate petition or the petition for letters of administration and restricted that category of persons would indicate two things firstly in order to enable the testamentary Court to 21 AIR 2007 Bom 62 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 54* AdmReport_1of 2016.odt make an interim order in relation to the properties during the pending of probate petition or a petition for letters of administration, the legislature has to enact a provision, secondly, the legislature did not intend to confer such a power on the testamentary Court in relation to the persons who are in the category mentioned in Section 269(2) of the Act. So far as the Act is concerned, there is one more provision which gives power to the Court to make orders for protection and that is contained under Section 192 and 193. Section 192 provides of a situation where an order of the protection of the property under Part VII of the Act is made by the Court in a summary proceeding and the Court can make such an order when the Court finds that urgent orders are necessary and the Court cannot wait for a party to secure that order by adopting an ordinary remedy of a civil suit. The order under Section 192 and 193 can be made only to prevent a person having no rights.
59. Mr. Apte submitted that case of Rupali Mehta(supra) had been dealt with by the Division Bench in the case of Ramchandra Ganpatrao Hande @ Handege v/s. Vithalrao Hande 22, Mr. Apte, the learned senior counsel appearing on behalf of noticee submitted that in the proceedings for grant of probate or letters of administration, the Division Bench had observed that the Court exercising testamentary jurisdiction was not concerned with the title to the property. In determining whether probate should be granted, the Court 22 2011(4) Mh.L.J. 50 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 55* AdmReport_1of 2016.odt determines only the genuineness and due execution of the Will and determination of matters of title are alien to probate proceedings. He submitted that this principle was reiterated by the Supreme Court even earlier in Ishwardeo Narain Singh v/s. Kamta Devi 23 and reiterated in Chiranjilal Shrilal Goenka v/s. Jasjit Singh 24 while Mr. Apte referred to the observations in Ramchandra Hande (supra) and in the context of Ishwardeo N. Singh (supra), Mr. Khambata had submitted that as held in Chiranjilal Goenka (supra) the Succession Act is a self- contained code in so far as the question of making an application for probate is concerned or an appeal against the decision of grant or refusal of probate or an appeal carried against the decision of the probate court, this is clearly manifested in the provisions of the Act. Probate proceedings are conducted by the Probate Court in the manner prescribed under the Act and a grant probate will only establish conclusively as to the appointment of the executor and the valid execution of the Will.
60. Mr. Apte submitted that a reading of Section 269 and 273 of the Succession Act and the fact that contents of a probate petition are recorded by Section 266 the extent of exercising jurisdiction needs to be considered. In this behalf appellants in Ramchandra Hande (supra) had submitted that the powers of the Court exercising testamentary jurisdiction are much wider than probating a Will or granting letters of administration. The Court also 23 AIR 1954 SCC 280 24 (1993) 2 SCC 507 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 56* AdmReport_1of 2016.odt considered the case of Thrity Sam Shroff v/s. Shiraz Byramji Anklesaria 25. Mr. Apte relied upon the fact that the Probate Court is not concerned with the questions relating to the property itself. The Division Bench in Ramchandra Hande had considered their express provisions contained in Section 269(2) to the effect that there could be no recourse to the exercise of the inherent powers of the Civil Court and this would not preclude recourse to a Civil Suit for obtaining necessary relief for protection of the property. We are not concerned in the present case with issues of title or ownership but ascertaining the extent and misuse of the estate. The Division Bench had also considered the judgment of the single Judge of this court in P.S Laud (supra) which according to the Division Bench did not dealt with the issues arising in Ramchandra Hande (supra).
61. The Division Bench in Ramchandra Hande (supra) held that the words "all matters connected therewith" in Section 266 of the Act must receive the interpretation in the context in which they are used and in the context of jurisdiction of the probate court. It is a well settled principle of law that the Court cannot go into questions regarding title or as to an existence of a property bequeathed by the deceased. The Court found that the contention of the respondents that interpretation sought to be placed by the appellant in Ramchandra Hande(supra) would travel beyond the scope of the jurisdiction of 25 (2007) 4 Mh.L.J. 56 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 57* AdmReport_1of 2016.odt the probate court and would therefore be contrary to the legislative intent as accepted by the Division Bench. Mr. Apte therefore had placed into service this aspect of the case.
62. In Vimla L. Rajani(deceased) Maya Harichand Makhija v/s. Asha Kanayalal Bajaj and Deutsche Bombay School Educational Institution 26, Mr. Apte had relied upon the observation of the Single Judge on a notice of motion taken out under Section 247 of the Succession Act for appointment of an administrator. The issue was whether two different persons can be appointed separately as executors for different parts of the property and the issue had come up for consideration before the Division Bench of Gujarat High Court.
63. In H. H. Maharani Vijaykunverba Saheb v/s. Commissioner of Income Tax 27, the Court held that it is permissible to make Wills or Codicils for different part of his property and it is also permissible for him to appoint different executors for different properties under different Wills or Codicils or for that matter to appoint two or more different executors in respect of different parts of his properties under a single will. This decision in the case of H.H. Maharani Vijaykunverba Saheb (supra) found in favour to this Court which held that Section 247 of the Succession Act undoubtedly confers a power on the Court including a testamentary Court to appoint an administrator 26 2012(2) Mh. L.J. 683 27 (1982)136 ITR 18 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 58* AdmReport_1of 2016.odt pending decision of a suit touching the validity of the Will of a deceased person and that the power cannot be exercised arbitrarily and an administrator could be appointed merely because the Court has the power to do so. There may be several reasons for appointment of an administrator and this cannot be enumerated as misuse of property may be one of the grounds and in the case of the Vimla Rajani (supra) the Court held that the testamentary Court is only concerned to finding out whether the alleged Will was the last Will of the testator and whether it was executed in accordance with law. It is not the duty of the Court to consider title. Following Ramchandra Hande(supra), the Court found that the question whether the bequest is good or bad is not within the purview of the probate court. The notice of motion was therefore dismissed. Submissions in rejoinder
64. Mr. Khambata in rejoinder reiterated that the Succession Act is a code in itself. In the present case there is a lis between the administrator and defendant no.1. No evidence has been led by defendant no.1. Mr. Khambata recapitulated the defence that the Court cannot order in investigation and that even if a sum of Rs.32 lakhs has been siphoned off from the estate, the testamentary Court cannot pass orders in relation to bringing it back. He submitted that Section 247 of the Succession Act gives immediate control to the Court over the estate through the administrator and since the administrator is ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 59* AdmReport_1of 2016.odt subject to the control of the Court and is to act under the direction of the Court. Under Section 269 the Court has power over all the parties concerned in the present litigation, powers of the Court are extremely wide as contemplated in Section 266 in relation to all matters connected with and in relation to grant of probate, powers of the Judge under Chapter IV of Part IX are all encompassing before any civil suit or proceeding pending in the Court of the concerned Judge, that under Section 268 proceedings in relation to grant of probate which regulated by the Code of Civil Procedure, 1908 and therefore the Court is fully empowered to order an investigation. He submitted that under Section 295 in contentious cases, the proceedings may take the form of a regular suit in which case the petitioner for probate may be the plaintiff and the person opposing the grant is the defendant. He submitted that Section 295 has to be read with Rule 436 of the High Court (Original Side) Rules, that in cases not provided for under the Rule in relation to the Succession Act by the CPC a Judge that may pass orders following the procedure of the High Court of Justice in England to the extent applicable. In this connection he invited my attention to Section 94(c) and Section 151 of the CPC. Section 94 provides for supplemental proceedings and sub-section(c) of Section 94 empowers the Court to make such other concurrent orders as may appeared in the code to be just and convenient of proving the ends of justice from being defeated. Further under Section 151 the inherent powers of the Court are unaffected to make such orders and ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 60* AdmReport_1of 2016.odt maybe necessary for the ends of justice merely the code is not exhaustible and hence in such situations that warrant to exercise of inherent jurisdiction. (I am of the view that this may be exercised only in the ends of justice). In the circumstances and as contended by Mr. Khambata the Court is not powerless to pass appropriate orders. He submitted that the High Court does not cease to be the High Court in testamentary matters.
65. In HPS Chawla v/s. Dr. NPS Chawla (supra), it was observed that the testamentary Court was not without jurisdiction to expunge material that has scandalous, defamatory or that the testamentary court does not cease to be a court of equity. Mr. Khambata submitted that Part VII of the Succession Act empowers recovery of possession from third parties that nothing prevents recovery of money from a third party. He submitted that the case of Ramchandra Hande (supra) dealt with the case of Goenka (supra) which dealt only with probate and Section 151 cannot be used to fill up gaps especially in the case of Section 269 which is applicable to the case of Parsi's. The ratio in the case of Rupali Mehta (supra) and Ramchandra Hande (supra) cannot apply especially when the property is in medio. Inviting my attention to the judgment of the Division Bench dated 8th August 2015 in case of the deceased P. B. Dalal to which I was a party, Mr. Khambata submitted that in the Birla case an injunction had been granted and this aspect has been considered by the ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 61* AdmReport_1of 2016.odt Division Bench in paragraph 68, 69, 73 of the judgment. Furthermore, in paragraph 75 the propositions in Rupali Mehta(supra) have also been considered. He further submitted that payments made to Amoha and Safe Security Services were not disclosed on affidavit. He submitted that the case of Ramchandra Hande (supra) and Rupali Mehta (supra) do not apply. Firstly because they do not consider a case whether the estate is in medio. They did not consider that it was the High Court exercising its powers and this was not raised before the Single Judge or the Division Bench. In the decision of Ramchandra Hande (supra) in paragraph 14 the inconsistency between Section 269(1) of the Succession Act and Section 151 of the CPC was gone into which is not relevant in the case at hand since the deceased was a Parsi. He further submitted that once an administrator is appointed, he is like a receiver and as if the property is custody legis and in the present case defendant no.1 had not made any application for leading evidence therefore the Court can pass order as in a summary proceeding. He further submitted that under provisions of Section 368 and 369, the executor was liable for loss and damages and he is liable to make good the loss and damages to the estate. Similarly in Section 369 the executor is liable for neglect to bring any part of the property and is liable to make the good amount (see illustrations). Similarly under Section 303 and 304, the defendant no.1 would be liable since he may be a person who inter- meddles with the estate of the deceased where there is no rightful executor. He ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 62* AdmReport_1of 2016.odt makes himself an executor of his own wrong. The only exception being inter- meddling with the goods of the deceased for the purpose of preserving them or providing for immediate necessities of family or property and dealing in the ordinary course of business with the goods of the deceased received from another.
66. An executor who was acted of his own wrong is liable to the rightful executor of Administrator. One can proceed on the basis that the defendant no.1 is an executor of his own wrong in the facts of the present case even before a decision as arrived at in a suit. In response to the argument that the relief sought is premature, Mr. Khambata submitted that Section 227 will normally validate all actions but in the instant case considering the illegalities, validation under Section 227 is not possible. As far as defendant no.1 is concerned, he is in the control of Panday and the Trustees De Son-tort. The trustees themselves are executors de son-tort. He submitted that in Part VII of the Act reference to Section 192 and the Act of 1841 it was restricted to the possessory aspect that Section 209 and the fact of summary proceedings settles only the aspect of possession and nothing more and that when an executor de son-tort has siphoned due monies and action can be brought under Section 192 from protecting the property, Part VII does not apply in all cases. The power to act suo moto in such cases is always available to this court and the source of ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 63* AdmReport_1of 2016.odt information is not relevant. In this respect, he relied upon the decision of the Supreme Court (1979) 3 SCC 54 which referred to the suo moto power.
67. Reference was made to the method of payment as also the fact that there is no written application in relation to the payments made to Waghmare. It was contended that the payment was made to defendant no.1 on behalf of Waghmare who was an in-patient and amounts paid by Waghmare were reimbursed by the defendant no.1. No account books were produced and there is nothing to co-relate the amount of Rs.15 lakhs of the expenses from the date of receipt of the amount till the money was spent.
68. Mr. Thacker on behalf of defendant no.1 had submitted in this respect that Waghmare did not have funds. Defendant no.1 paid the hospital and he received reimbursement. On the judgments cited by Mr. Khambata, Mr. Thacker submitted that the same were not relevant and that judgment was in relation to suit by a person who gave a loan. In the present case, defendant no.1 took money was taken from the executor and the case against the estate is not relevant.
69. In J.P. Srivastava and Sons (P) Ltd and Others v/s Gwalior Sugar Co. Ltd and Others (2005) 1 SCC 172 the Supreme court observed that substance must ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 64* AdmReport_1of 2016.odt take precedence over form. There are some rules which are vital and cannot be broken and some were non-compliance may be compensated or dispensed with and if there is substantial compliance with the rules read as a whole, no prejudice will be caused. In Sudama Devi (supra) the full bench of the Patna High Court was considering a suit for partition and in the course of doing so observed that a inter-meddler is on the same footing as an executor de son tort in English law and he is one who, in any way dabbled with or comes in contact with the estate of the deceased. That a legal guardian and possessor of the estate of a minor would, in the event of demise of the minor, qualify as an inter- meddler with the estate in the eyes of law.
70. In Express Newspapers , the Court had occasion to consider how allegations of malafides are to be dealt with. It observed that vague allegations are not enough to dislodge the burden vesting on a person who makes the allegations although what is required is not absolute proof and that definite allegations of malafides are required to be made with sufficient particulars. It is necessary that person against whom the allegations are made should come forward with an answer refuting or denying such allegations as otherwise the allegation would remain unrebutted and the Court would be constrained to vest the allegations remaining in unrebutted on the subject to the test of probability. The defendant and noticees have failed this test.
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71. In this behalf, the Supreme Court had relied upon its own decision in the case of Diary and Chemicals Ltd. V/s. Company Law Board 1966 Suppl. SCR
311. In Manindra Chandra v/s. Sudir Krishna Banerjee and Ors. 28 a Division Bench of the Calcutta High Court while considering an appeal under the Succession Act observed that under Section 307 to 315 of the Succession Act the estate vests in the executor only for discharging duties under the Will and powers under law. That although estate vests in the executor, there is nothing that entitles him to borrow money. The Court observed that the executor would not in the absence of special power given to him by the will, render the estate liable for monies borrowed by him for the purposes of the estate. In the case at hand no such power has been canvassed.
72. In All Bengal Excise Licensees Association (supra) while dealing with Section 2B of the Contempt of Court Act 1971 the Court reiterated that a party to a litigation cannot be allowed to take unfair advantage by committing breach of an interim order and there can be consequences by mis- understanding and yet retain the advantage gained by breach of the order.
In Pritam Pal v/s. High Court of Madhya Pradesh, Jabalpur through Registrar 29 the Court considered the nature and scope of contempt power of the Supreme court and High Courts held that power is not restricted 28 AIR 1932 Cal 182 29 1993 Supp (1) SCC 529 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 66* AdmReport_1of 2016.odt to any ordinary legislation including the Contempt of Courts Act and the Code of Criminal Procedure and that the procedure in exercise of this power being summary in nature should be fair and a reasonable opportunity should be granted to the defendants as contemnor should be made aware of the charge against him so that he could defend himself.The defendant no.1 has already been held in contempt. Despite that he continues to be obstructive despite opportunities to come clean. Although we are not presently considering contumacious conduct, the fact remains that he has had sufficient opportunity.
74. In Sita Ram (supra) , the Supreme Court directed the Central Bureau of Investigation to nominate a senior officer to conduct an inquiry into the circumstances in which the respondent therein was admitted to private hospital. This was a case of Contempt of Court wherein the hospital authorities knowingly assisted the respondent accused in evading arrest. The Court found that the circumstances under which the respondent continued to evade arrest by the police on account of his prolonged admission to hospital led the Court to hold a prima facie that an appropriate enquiry is called for to bring the truth to light especially with a view to ascertain whether the hospital had become very privy to the attempt of the respondent to avoid arrest and therefore, the Central Bureau of Investigation directed to nominate a senior officer to conduct an enquiry.
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75. In Sanjeev Kumar Mittal (supra) , the Delhi High Court has considered at length the case law on ordering investigation by the police and if considered an order of the Division Bench of the Delhi High Court in Manjit Kaur v/s. J.P. Sharma in FAO (OS)no.152/1994 in which the Court observed that prima facie a case of fraud had come to light and the order of investigation by the Director of the CBI himself or through a senior officer to go through himself and submit a report. In Davendra Singh v/s. Subroto Ghosh in FAO (OS)no.52/1996 the Division Bench of the Delhi High Court felt it necessary that there should be an independent enquiry into certain aspect of execution of documents in favour of some of the defendants and also whether he was the person who had executed a general power of attorney and the person who applied to the Municipal Corporation of Delhi for mutation in its record. In that case as well, the Director of the CBI was required to appoint a senior officer to go into the facts and submit a report to the Court. The Court concluded that it was well empowered to direct the police to investigate and file a report and such power has been readily exercised by the Courts in cases where litigation with false claims or false defences. The Court was of the view that the litigations with false claims and false defences could be decided in shorter time if the Courts so choose and that a private party cannot be expected to investigate itself, gather the evidence and place it before the Court. A State agency with statutory powers and with the State machinery at its command and as well investigate the matter and ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 68* AdmReport_1of 2016.odt gather evidence and place report before the Court along with evidence gathered. There may be conspirators, abettors who assisted the wrongdoers and who are not before the Court. The identity of some persons may not be known and thus in Sanjeev Kumar Mittal, the Court ordered an enquiry. The decision of Sanjeev Kumar Mittal had also taken into account in decision of this Court in Vijay Enterprises (supra).
Conclusions
76. Having dealt with broad framework of law as canvassed by the counsel, it would now be appropriate to consider the jurisdictional aspect as to whether this Court can in its testamentary and intestate jurisdiction on a report of a administrator order an inquiry as sought. The scope of Section 247 of the Succession Act empowers the Court to appoint an administrator with rights and powers of general administration excluding the right to distribute the estate. The administrator in question shall be subject to the immediate control of the Court and shall act under the directions of the Court. Needless to mention, administration as contemplated in Section is pendente lite. There is now no doubt that in the facts of the present case the appointment of the administrator was justified inasmuch as it is now final, with all challenges to his appointment having been repelled. When we consider the rights and powers of administrator it would no doubt encompass the aspect of administration of the estate. It will, ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 69* AdmReport_1of 2016.odt obviously include the power to make enquiries directly with the persons involved and all those closely connected to with the estate and its management. I am of the view that the Administrator should be entitled to make inquiries with all persons if any connected with the affairs of the estate and ascertain the truth. The powers of a testamentary Court have been tested on numerous occasions. This Court in the case of Rupali Mehta (supra) dealt with the scope of Section 269 observing that Section confers special powers of the Court to interfere with the protection of property till probate is granted provides the deceased was not a Hindu, Mahomedam, Buddhist, Sikh, Jaina or an Indian christian. Ione following the excluded persons.
77. In this case, the deceased was a Parsi and is therefore subject to the provisions of Section 269. Reference was made to Sections 192 and 193 of the Act. These sections fall under Part VII which deals exclusively protection of property of the deceased which empowers the Court to pass orders in summary proceedings. Section 192 and 193 however can be availed of to prevent the person without rights taking possession including to prevent persons from taking forcible possession. Any agent or relatives or near friend or Court of wards upon taking cognizance can make an application. In my view, an administrator would certainly be entitled to derive powers of making such an application. Upon an application being made Section 193 it requires the Court ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 70* AdmReport_1of 2016.odt to examine the applicant on oath and make further enquiries as to whether there is sufficient ground to believe that a party in possession or taking forcible possession has no title and that the person on whose behalf he applies is likely to be materially prejudiced if left with order any remedy of suit. Lastly, the application must be bonafide. The conditions required are that there must be property left behind by the deceased which is in the possession of other or is likely to be forcibly taken possession of, if the application is made. In the case at hand there are numerous assertions on oath in these proceeding which would justify invocation of section 193 and one of the aspects that needs to be considered is whether the person on whose behalf an application is made is likely to be prejudiced if he were to file an ordinary suit. The contentions on behalf of the respondent, almost in chorus, is that the administrator should be relegated to file suits or complaints. One of the reasons why such proceedings will be adopted is that there is no justification for the administrator to avail of any special benefits by the Court order in investigation under Section 340 of Cr.P.C. and that filing of in proceedings just like any other litigant would suffice. In my view, filing of criminal complaint would also involve engaging State machinery. The filing of a complaints by the Administrator would not still save the involvement of State machinery. Thus, under Section 194 the Court could summon the defaulting party and determine summarily, the right of possession. No doubt the focus in Chapter VII is on possession and Section 194 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 71* AdmReport_1of 2016.odt is subject to the provisions of filing a suit. A suit is contemplated under Section
208. In fact Section 208 saves the right of filing a suit, should the application under Section 194 be rejected. Thus, it is clear from the Scheme of the Act that rejection of an application for protection of property under Section 192 to 193 will not bar the filing of a suit. The Court in that case observed that the Act itself contains no provision authorising a testamentary Court to make an interim order as a matter of course for protection of property.
78. In my view, it will be only subject to satisfaction of the appropriate conditions that an order could be passed under the said Part VII. No doubt, the Court also held that the Civil Procedure Code in its entirety is also applicable to testamentary proceedings and orders of temporary injunction can always be passed. The decision in Rupali Mehta (supra) holds that the testamentary Court has no jurisdiction to go into the question of title and the subject matter is not a property that is left behind by the deceased. The Court also held that it has no inherent power to pass suitable interim orders for protection of property in a probate petition. In that case the Notice of Motion sought appointment of a receiver but that request was rejected. The Division Bench of this Court once again held in Ramchandra Hande (supra) that issues of title are alien to probate the suits. Mr. Apte had canvassed to propose that in a petition for grant of probate, the court is not concerned with the title. On the other hand, Mr. ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 72* AdmReport_1of 2016.odt Khambata had contended that the Succession Act being a self-contained code, the Division Bench considered Section 269 and 273 of the Act and the earlier decisions on the subject including the case of Thrity Sam Shroff (supra) and although it was Mr. Apte's contention that a probate court is not concerned with question of property itself, the Court had held that in view of Section 269 there is no inherent power in the Court to grant interlocutory relief. This being so and in view of the fact that the probate court is only concerned with the question whether the will is genuine and whether it was made voluntarily. Section 269 contemplates power to interfere for protection of the property until probate is granted or an administrator of the estate is constituted.
79. In the present case the administrator has been appointed and we are concerned with an application seeking ordering an investigation pursuant to the appointment of the administrator. In effect, it is an application to assist or further empower the administrator. Post the appointment of an administrator, the question to be considered is whether the Court is required to by judicial orders to empower the administrator to adopt appropriate proceedings. Relying upon the decision in Vimla Rajani(supra), Mr. Apte had contended that the probate court cannot consider whether a bequest is good or bad. The Court could not issue directions to deposit monies in Court and therefore submitted that there is no power to order any enquiry that the administrator can take such ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 73* AdmReport_1of 2016.odt action as permitted in law. The decision in Vimla Rajani (supra) however, did consider the distinction between the Court having power to do a thing and the exercise of a power for good and valid reasons. It observes that the Court cannot exercise the power arbitrarily. This observation came in the context of appointment of an administrator. However, once appointed, the question is whether the administrator should be left to fend for himself or is entitled to support, so to speak, from the Court. The decision in Vimla Rajani (supra) considered only the appointment of an administrator and nothing beyond. Interestingly, in Ramapati Tewari (supra), it is observed that the District Judge had invoked powers under Section 192. The District Judge had not recorded any finding as to whether any material prejudice would be caused to the applicant if he invokes ordinary remedy of a suit and whether the application was bonafide. Mr. Thacker had cited this decision in support of his contention that an administrator could file a suit. On the other hand, what I find from analysis of Section 193 is that whether the application could be made by a competent person and if it were be so held, whether the District Judge could consider the application despite a fact that the remedy of a suit was available. It is not as if the remedy of the suit is ousted by the application or vice versa. If the remedy of the suit was not ousted one of the aspects to be considered is whether there is justification in the instant case for ordering an enquiry or investigation. In the case at hand, I have no doubt that the defendant/noticees ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 74* AdmReport_1of 2016.odt have been non-cooperative and such behaviour, despite appointment of the Administrator is causing material prejudice to the estate and the administration of justice.
80. One of the aspects that would be appropriate to consider is whether this Court is coram non-judis given the fact that the Succession Act is considered a code in itself with its limitations. As observed by the Supreme Court in the case of A R Antulay v/s. R.S. Nayak 1988 (2) SCC 602, the jurisdiction of Court is capable of being created or enlarged by legislation. The Supreme Court observed that jurisdiction comes solely from the law of land and cannot be exercised otherwise, that jurisdiction may be exercised by the Court as provided for the constitution or in laws made by the legislature and a power of the Court to deal with the matter or make an order carrying binding force in the facts of a particular case that a code cannot confer jurisdiction on itself if it is not provided in law. In his opinion, Venkatachaliah, J. as he then was, of the view that the expression "jurisdiction" is a verbal coat of many colours that in case of the tribunal an error of law might not only be "error in jurisdiction" but in error of jurisdiction "but otherwise jurisdiction is a legal shelter and the existence of jurisdiction does not depend on the correctness of its exercise". It is settled law that a decree passed by a Court without jurisdiction goes to the root because the court lacks inherent jurisdiction and is coram non-judis. Set ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 75* AdmReport_1of 2016.odt in this background I am today called upon to consider whether in the testamentary and intestate jurisdiction of this Court it would be permissible for the Court to direct an enquiry to investigation to be conducted in the facts leading up to the controversy which has led the testamentary Court to appoint an Administrator.
81. This aspect of jurisdiction was once again considered in the context of the Succession Act in the case of Chiranjilal Shrilal Goenka (supra) which held that the Court of probate has exclusive jurisdiction and that the civil Court cannot confer jurisdiction to adjudicate upon proof of a Will and unless the grant of probate is revoked it operates as a judgment in rem. The Probate Court does not decide any question of title or the existence of the property itself. In doing so, the Court considered this aspect of jurisdiction if any. It would be appropriate to consider how courts have approached the situation which is identical or similar to the one that the parties are placed in today. In this behalf, it would also be useful to consider the observations of the Supreme Court in the Fuerst Day Lawson Ltd. (supra) which made reference to the decision in P.S. Sathappan v/s. Andhra Bank Ltd. 2004 (11) SCC 672 holding that the Arbitration Act 1940 from its inception and till 2004 was a self contained code and the finding that the Arbitration Act 1940 was held to be a self contained code in the matters of arbitration. The Arbitration and Conciliation Act, 1996 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 76* AdmReport_1of 2016.odt which consolidates, amends and design the law relating to arbitration must also be held to be a self-contained code. Reference was made to the language of Tulzapurkar, J. to the effect that being a self-contained code it carries with it "a negative import that only such acts are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done." The conclusion in Fuerst Day Lawson Ltd.(supra) of course was to the effect that no letters patent appeal would lie against an order which is not appealable under Section 50 of the Arbitration and Conciliation Act. The Succession Act being treated as a code in itself would therefore require me to consider whether grant of reliefs prayed for would be hit by a negative import. One must also consider whether it is possible to limit the exercise of jurisdiction within the confines of the Succession Act or whether it is possible to exercise inherent powers where statutes such as Succession Act do not contain such enabling provisions. In this behalf it is appropriate to refer to the observations of the Supreme Court in M.V. Elisabeth (supra) wherein the Supreme Court observed that where statutes are silent and remedy has to be sought by the courts to basic principles, it is the duty of the Court to devise procedural rules by analogy and expediency". This observation of the Supreme Court came in relation to procedure to overcome difficulty of personal service upon a defendant by compelling him to enter appearance, service of summons, to ensure furnishing of security in the exercise of admiralty jurisdiction of the ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 77* AdmReport_1of 2016.odt Court. The Court then considered in that case that a practical procedural devise can be developed by the Courts with a view to rendering justice in accordance with substantive law not only in the case of collision and salvage but also in the case of other maritime liens and claims arising by reason of breach of contract. The Court further observed as follows:
"Where substantive law demands justice for the party aggrieved, and the statute has not provided the remedy, it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice."
82. The Court also observed in paragraph 66 that the High Courts in India are superior courts of record. They have inherent and plenary powers and unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Court have unlimited jurisdiction including the jurisdiction to determine their own powers. In this behalf, the reference was made to the decision of the Supreme Court in Naresh Shridhar Mirajkar v/s. State of Maharashtra 1966 (3) SCR 744. No doubt if the observation of the Supreme Court was the matter pertaining to the admiralty jurisdiction exercised by the High Court. However, but while culling out the essence so to speak of the powers of the High Court I am of the view that unless ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 78* AdmReport_1of 2016.odt it is expressly barred by statute, the High Court in its testamentary jurisdiction would be able to exercise powers to enforce its own orders and to that extent monitor the effect of its own orders. The appointment of an Administrator by the High Court being final, it is appropriate that the Court ensure that the appointment of the administrator and the steps taken by the administrator in exercise of his duties are not frustrated or defeated by the machinations of parties that the Administrator is required to deal with. It is this background that the present report will have to be considered. In the factual context there is no doubt that the estate is now in medio and being in medio the administrator pendente lite is required to ensure its identification and preservation pending final disposal of the lis. The administrator must be able to exercise his rights, supervise and perform his duties this would include calling for an appropriate explanations from the concerned parties. If they do not co-operate the Administrator must be suitably equipped.
83. One other aspect that needs to be considered is whether the High Court in its testamentary jurisdiction can act suo moto or only on the application of a party as contemplated under the Succession Act. This aspect is required to be separately dealt with, however, in its jurisdiction under the Companies Act we have the benefit of the Supreme Court ruling in S.K. Gupta (supra) wherein while interpreting Section 392 of the Companies Act, 1956 it is observed that ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 79* AdmReport_1of 2016.odt the Court could act suo moto or on the application of a person interested in the affairs of the company.
84. Section 340 of the Cr.P.C. provides for decisions in cases mentioned in Section 195 of the Code. Section 195 of the code provides for prosecution for offences against public justice and for offences relating to documents given in evidence. Section 195 provides inter alia that no court shall take cognizance of any offence punishable under the specified sections of the IPC namely 193 to 196, 199, 200, 205 to 211 and 228 when such offence alleged to have committed in relation to a proceeding in court or any offence described in section 463 or punishable under sections 471, 475 and 476 of the IPC in respect of a document produced in court or given in evidence in a court or any criminal conspiracy to commit or attempt to commit abetment of offences except on a complaint in writing of that Court or by an officer of the Court who may be authorized in that behalf or some other court to which the court is subordinate. Section 340 provides as follows:
"S.340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 80* AdmReport_1of 2016.odt after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-
bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section(4) of section 195. (3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court. (4) In this section," Court" has the same meaning as in section 195."
85. Thus under section 340(3)(a) where the Court making the complaint is a High Court, an officer of that court may be appointed to make that complaint. Since the High Court is exercising its testamentary jurisdiction, it is therefore permissible for an officer of High Court registry to make that complaint. The object and scope of section 340 is to institute an enquiry and ascertain whether any offence affecting administration of justice has been committed in relation to any document produced and given as evidence in Court. Section 340 of the ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 81* AdmReport_1of 2016.odt Code has been held to be applicable to all proceedings in all Courts in criminal cases or civil cases irrespective of the fact that whether the matter in court is one involving an offence mentioned in Section 195. [see (2002) Cri.L.J. 3405 (AP) K. Rajagopala Rao v/s. P. Radhakrishna Murthy] Section 340 provides that inquiry is held when a complaint is lodged by one of the parties to litigation after taking precautions to ensure that a false and frivolous complaint is not initiated. It is permissible for the Court to act suo moto on a complaint to initiate an enquiry under section 340. It is for the Court to decide whether it is necessary and it is expedient and in the interest of justice that an enquiry should be made or complaint filed, absent such satisfaction could not be appropriate to initiate an enquiry.
86. S.K. Gupta (supra) also held that it is immaterial as to who draws the attention of the Court to a situation which required the Courts intervention and that the Court may decline such an application at the instance of a busy body if the action proposed to be taken is justified, valid or legal. The capacity and credentials of the person who brought about the situation calling for intervention of the Court is not relevant and would not invalidate any action in other words locus standi was not a material factor. In the instant case, the mere fact that the defendant no.1 who may be subject matter of investigation in enquiry, being an executor, under the Will propounded by him by itself, will ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 82* AdmReport_1of 2016.odt not entitle him to be treated differently if the administrator is unable to receive the assistance that he is entitled to from the defendant no.1 and other persons inter-meddling with the estate. This fact therefore would be relevant.
87. In the present case, if I come to the conclusion that the facts narrated in the pleadings, the report and as canvassed by the parties justify the commencement of an enquiry, there must be sufficient material to justify initiation of the enquiry. In this respect, Sections 193 of the IPC provides for punishment for giving false evidence. Section 194 provides for giving or fabricating such evidence. It is intended to procure conviction of capital offence. Section 195 concerns intention to procure conviction for life imprisonment. Sections 196 and 199 contemplates offence when false evidence and false statements is given if the party knew to be false. Likewise Section 200 deals with use of any declaration knowing it to be false. Section 205 to 211 deals with aspects of false personation, fraudulent removal and concealment of property and dishonesty in making a claim in Court knowingly to be false. In this behalf, Section 209 reads as follows;
"S. 209. Dishonestly making false claim in Court. - Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of justice any claim which he knows to be ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 83* AdmReport_1of 2016.odt false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine."
88. Sections 463, 471, 475, 476 of the IPC form part of Chapter XVIII and concerns offences relating to documents and property marks. What is to be seen is whether in the factual background leading up to the administrators report, the prayers ordering an enquiry would be justified. As far as the power of the Court is concerned, considering the views that I have expressed in this judgment, I am of the opinion that this Court was not powerless in the matter of ordering an inquiry although the Succession Act read as a whole does not contain any specific power to initiate such enquiries. That having been said and be conscious of the limitations of the code, I am of the view that the negative import attaching to the code does not prohibit the ordering of an enquiry. More so, because the Court found it fit to appoint an administrator and an administrator must be sufficiently equipped to carry out the tasks expected of him. I am conscious of the fact and as canvassed by the respondents' successor that if the administrator so desires, he can file a complaint by himself and need not seek assistance of this Court under normal circumstances. It may be appropriate that the administrator approaches the Courts of law on his own. However, given the factual background of the present case, it appears that the parties involved, not having faithfully disclosed the extent of their involvement ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 84* AdmReport_1of 2016.odt and have undoubtedly held back in making a full and proper disclosure and have been engaged in deceitful conduct.
89. In these circumstances, the question that arises is whether the Administrator should stand by in anticipation of compliance by the defendant/noticees. The conduct of the defendant that of the trustees and all those associated with the Trust and those inter-meddling with the estate leaves much to be desired and that the disclosures are neither complete nor entirely truthful. Attempts are made to frustrate the exercise undertaken by the Administrator and the attitude of the defendants and the respondents is obstructive. The fact that the defendant no.1 and the respondents had in the past suppressed information relating to disposal of assets is highlighted by a single Judge of this Court in his order dated 24 th December, 2013. A clear finding was recorded that the defendant no.1 had suppressed true or correct facts in the report and that he had inter-meddled with the estate. One must not forget that the estate is in medio and all parties are since proceeding on that basis. Even considering the involvement of Amoha Traders there are far too many connections with the defendant no.1, the estate of the deceased and the numerous financial transactions that require closer scrutiny and such scrutiny is not possible if the defendants/noticees concerned are not forthcoming, truthful and volunteer necessary information as and when such information is ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 85* AdmReport_1of 2016.odt sought, failing which the only alternative left is to initiate an inquiry. In my view, leaving it to the administrator to file a suit may be appropriate and in normal cases the rule, the Court directing the filing of a complaint may be the exception. Given the factual matrix and the complex machinations now revealed, I am inclined to believe that directing an Officer of this Court to file an appropriate complaints would be the correct course of action.
90. In particular the involvement of Amoha Traders and its various directors and companies under the same set of persons leads me to believe that role of the Avabai Hormasji Tata Charity Trust requires to be thoroughly probed. Prima facie, it does appear that the said trust is being used as a screen to siphon away the funds of the estate. In particular the trust has not been forthcoming and has been suppressing information about the application made by the trustees change reports, applications for change of address and the light. Despite clear references to these documents and request, this is not been produced by the trust. The statements made by the trustees including Mr. Lam have turned out to be incorrect. The trust has withheld documents and particulars. It has provided incomplete addresses from time to time the use of funds for charitable purposes has not been established, the payments made for medical treatment of non parsis is also suspect. Nothing disclosed so far indicates that the trust has in fact used funds for the benefit of the Parsi community. The involvement of Mr. Jamshed Pandey and defendant no.1's proximity to Mr. Pandey's and his ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 86* AdmReport_1of 2016.odt companies and the involvement of various other persons.
91. Furthermore, certifications by Chartered Accountant(s) in respect of the payments made have also not been satisfactorily explained. The fact that defendant no.1 is a shareholder in Kratos Energy and Canos Trading and that Kratos Energy and Amoha Traders use a common telephone number which stands in the name of one Jimmy Panday and the fact that defendant no.1 being one of the four shareholders of Canos Trading and have attempted to create liabilities in the name of the estate has not been properly explained. The fact that Amoha Traders is one of the shareholders in Canos cannot be a co- incidence. The Directors' report of Canos Trading for the year 31 st March, 2015 records that during the year the company had advanced a loan of Rs.69,60,577/- to the testator who died on 7 th December, 2011 is suspect. This statement appearing in a Directors' report for the year ended 31 st March, 2015 is itself an eye opener. It has become difficult to find out how such a loan could have been advanced to the deceased three years after his demise.
92. The defendant/noticees have had opportunities to explain these discrepancies. Defendant no.1 in his affidavit dated 19 th June, 2018 stated that he held shares in Canos and that he received a sum of Rs.1,17,22,959/- he however, accepts the statements in the Directors' report as "incorrect" and an obvious error and relies upon a Chartered Accountants Certificate. The ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 87* AdmReport_1of 2016.odt Chartered Accountant is common to Amoha Traders and Canos Trading. Furthermore, the certificate relied upon by the defendant no.1 to claim that there was an error in the Directors' report reveals that the certificate was issued after verification of books of account and other relevant records produced before the firm of Chartered Accountants by Canos Trading for the financial year ended 31st March, 2016 and on the basis of "verification" and "explanations" provided by the company. It does not contain mention of any documents verified. Furthermore, the defendant no.1 does not produce any certificate from his own accountant. One fact clearly emerges, that there are wheels within wheels and the questions that arises indicate influences that defendant no.1 is subjected to self invited or imposed upon him by persons unknown. If that be so, it is necessary to identify the persons responsible for these developments because the estate has been targeted.
93. This is a not case where the defendant has been willingly submitted all orders of the Court at each stage. The plaintiffs and the administrator have faced resistance in the form of complete non co-operation or attempts to mislead, suppression of truth and making partial disclosures all of which seek to frustrate the administration of justice. There is no apparent reason for Canos to lend a sum of Rs.1,17,22,959/- to the defendant no.1. What the fate of these funds is also uncertain. What is crucial to note is that atleast three parties are involved and appear to be interfering with the affairs of the estate through the ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 88* AdmReport_1of 2016.odt defendant no.1 whether it is by virtue of the conscious participation of defendant no.1 or whether such conduct is imposed upon him by others is also to be ascertained. I find it difficult to appreciate the contention of the defendant no.1 in his affidavit dated 24 th April, 2018 and the telephone numbers and email id of Amoha since Amoha had a running office. This is to be tested in the light of the fact that mobile number given is not of defendant no.1. The defendant no.1 had not furnished any of his own mobile numbers or contact details. Thus, admittedly he would be unaware of any updates sent by the bank. In my view this is not indicative of normal behaviour of a person who claims to be an executor of the estate and which estate is to be intended to fund the charitable purposes. I must not lose sight of the fact that under Section 317 of the Indian Succession Act, the administrator is required to ensure that a full and true estimate of all property and credits and debts are made up. It is therefore necessary that the administrator appointed is supported in all respects. The conduct of defendant no.1 is undoubtedly obstructive of the administration of justice and the earlier affairs under administration are probed, the more beneficial it will be for the estate. In my view the Court must also ensure that the Administrator is provided with all necessary assistance to complete the task in hand. Given the non co-operative, obstructive and misleading conduct demonstrated over the past few years it is time to ensure that the protection of the estate is complete in all respects both by securing the estate as presently ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 89* AdmReport_1of 2016.odt stands and by recovery of all that has been taken away from it to meet the ends of justice and to ensure proper administration of justice.
94. I am of the view that an independent investigation is required to be carried out as to the scope of the investigation, after the complaint contemplated in this order is filed, it would be for the investigating agency to seek appropriate directions from this court time to time should the need so arise. It is necessary to ensure that the enquiry is conducted in a focused and purposive manner. The administrator will therefore be required to provide all necessary support. In this behalf needless to mention, the defendant no.1/noticees are expected to be co-operative to the fullest extent. After all it is the defendant no.1's case that as executor of the Will propounded by him that he has an obligation to justice to his role as executor. The resistance to an enquiry does not appear justified in view of the first defendants contention that the administrator may if he so desires file complaints. It was possible to appreciate such contention had there been a complete and fair disclosure but the fact that even though the Administrator was appointed in 2013 several questionable transactions have come to light as dealt with elsewhere in this order, it would be appropriate that a enquiry be conducted so as to leave no stone unturned.
95. I therefore pass the following order;
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90* AdmReport_1of 2016.odt (I) The Administrator appointed by this Court shall draw up a complaint to
be filed and provide the draft complaint to the Prothonotary and Senior Master within a period of four weeks from today.
(II) Upon the draft complaint being lodged and subject to scrutiny of its contents the Prothonotary and Senior Master shall forward the complaint on behalf of the Administrator to the Commissioner of Police, Mumbai who shall nominate a suitable team of officers to initiate an investigation into the complaint and the affairs of deceased Purvez Burjor Dalal. The progress of the investigation after it commences shall be reported to the Prothonotary and Senior Master on a fortnightly basis.
(III) The Prothonotary and Senior Master is at liberty to seek appropriate clarifications from this Court.
(IV) This Report shall be listed for further hearing after eight weeks.
(A. K. MENON, J.) wadhwa ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 :::