Bombay High Court
Mah. Gen. Jonathan Reuben Samson vs Zillah Solomon And Others on 6 August, 1990
Equivalent citations: AIR1991BOM222, 1991(1)BOMCR334, AIR 1991 BOMBAY 222, (1991) 1 BOM CR 334
ORDER
1. This petition is for (a) setting aside the order dated 30th November, 1989 disposing with the service of citations and revoking the grant of Letters of Administration issued to respondents Nos. 1 and 2 pursuant to the said order, (aa) removing or discharging respondents Nos. 1 and 2 as administrators of the estate of late Rachel Hyams and appointing the petitioner in their place as administrator and (b) suitable orders/directions regarding accounts, disclosures, etc. for ascertaining the damages for loss caused to the estate by respondents Nos. 1 and 2.
2. The facts giving rise to the present petition are as follows :
(a) The matter concerns the estate of one Rachel Hyams, who died on 15th October, 1978. The petitioner (Jonathan) is the brother of Rachel. Respondent No. 1 (Zillah) is the niece of Rachel being the daughter of Daisy, who is the sister of Rachel. Respondents Nos. 2, 4, 5, 7, 8 and 9 (Emannuel, Asher, Disna, Daisy, Elsie and Sophie) are brothers and sisters of the said Rachel. Respondent No. 3 (Gene) is Rachel's niece being the daughter of Isaac, who was Rachel's brother. Respondent No. 6 (Samson) is Rachel's nephew being the son of Rebeea or Ruby, who was the sister of Rachel. In the petition it is stated that Samson is the brother of Rachel, but at the stage of arguments it was conceded that this statement in the petition was not correct and that Samson is not a brother but a nephew of Rachel.
(b) On 31st July, 1980 Zillah filed Petition No. 648 of 1980 for Letters of Administration with Will annexed of the deceased Rachel. Citations were issued. The sufficiency or the legality of those citations is in dispute. It is however undisputed that Jonathan was served with citation. Caveats were filed by Emannuel and Isaac. On 22nd December, 1981 the caveats were withdrawn and there was an order passed by Rele, J. The Minutes of the Order read as follows: "Order in terms of the Consent Terms signed by the Plaintiff and Defendant No. 1 and their counsel and handed in and marked 'X'". On 1st September, 1989 the present petition was filed. At the time of filing of the present petition reliefs in terms of the present prayer (a) had not been sought. At that time the present prayer (aa) stood as prayer (a). At that time the Letters of Administration had not been issued. On 30th November, 1989 Suresh, J. passed order which reads "Service of citations who have appeared earlier in this matter is dispensed with. Office to proceed further". On 5th December, 1989 the Letters of Administration were issued. Thereafter the present petition was amended by adding the present prayer (a) and renumbering the then prayer (a) as prayer (aa). It may be stated that, before the present petition was amended as stated above, Jonathan had taken out a separate Notice of Motion wherein the relief as asked for in the present prayer (a) had been sought. There was an objection to the format for asking that relief by way of Notice of Motion and there was also an objection that the present petition was itself premature inasmuch as it had been filed before the grant of the Letters of Administration. Both these objections stood waived as Jonathan carried out the amendments as stated above.
3. According to Jonathan, the facts are as follows: Rachel was owner of three immovable properties viz., (i) House No. 91 at Bandra, (ii) House No. 68 at Bandra and (iii) 1/3rd undivided share in House No. 87 at Bandra. Rachel's Will refers to houses only and not to adjoining land. The Will prohibits sale of houses in clear terms. In Zillah's Petition No. 648 of 1980 (converted into suit bearing Suit No. 8 of 1981) there is no reference to House No. 87, Citations were served on some heirs. Zillah and Emannuel misled the Court to pass the consent order dated 22nd December, 1981. Zillah and Emannuel purported to convey Houses Nos. 9l and 68 to each other. Zillah and Emannuel have not complied with office requisitions nor they have taken any steps to collect the grant. Zillah has entered into a purported development agreement regarding House No. 91 and adjoining land with M/s. King Builders and given Power of Attorney to M/s. King Builders and she had forced the tenants to vacate their premises and she has got House No. 91 transferred to her name in Collector's records. Emannuel took out Notice Motion No. 2993 of 1986 wherein he complained that Zillah was not co-operating with him in complying with the office requisitions. On an application made by Jonathan this Court by the order of Mr. Justice Variava passed on 7th December, 1987 restrained Zillah and Emannuel from disposing of and/or alienating and/or encumbering and/ or parting with possession or creating of any third party right in respect of the properties until they had collected the Letters of Administration. Zillah and Emannuel permitted King Builders to evict all the tenants in House No. 91 and demolish the entire structure. Jonathan had therefore taken out a Notice of Motion for punishing Zillah and Emannuel for contempt of Court. On 7th March, 1989, this Court committed Zillah to civil prison for one month. However in Appeal No. 374 of 1989 this Court accepted her unconditional and unreserved apology and undertaking and saved Zillah from imprisonment. Zillah and Emannuel have grossly mismanaged the administration. They have not included in the Schedule all the assets of Rachel. They have deliberately not complied with the office requisitions. Zillah had purported to have disposed of House No.91.
Jonathan has filed Administration Suit No. 3419 of 1988. Zillah and Emannuel are not on good terms with each other. They have not yet served citations on all heirs of Rachel. They have failed to inform the Court regarding Advocate chosen by them. They have grossly undervalued the two properties. They have lost interest in acting as Administrators. Hence it is prayed that Zillah and Emannuel be removed as Administrators of the estate as it is just and necessary for the welfare of the beneficiaries.
4. Zillah and Emannuel both opposed this petition. They denied the various allegations made in the petition against them.
5. It may be stated at the outset that I got it clarified from their counsel of Zillah and Emmanuel that they were claiming administration only in respect of the property disposed of by the Will of Rachel. Therefore as regards Rachel's 1/3rd share in House No. 87, Zillah and Emannuel do not claim to be the Administrators or to have any right of administration over that immovable property. Only the properties bearing Houses Nos. 91 and 68 are the ones referred to in Rachel's Will. Under that Will House No. 91 has been bequeathed to Zillah and Lilly. Lilly having predeceased Rachel, Zillah claims that entire House No.91 comes to her under the Will. (According to Jonathan as Lilly predeceased Rachel half share in House No. 91 goes by intestacy). Zillah says that neither Jonathan nor any of the other heirs of Rachel had any beneficial interest in House No. 91. Emannuel has also stated that Jonathan is not the beneficiary. It is stated that there is no cause of action for this petition. The petition is barred by limitation, res judicata and estoppel. Estoppel is relied on the basis that Jonathan was served with citation in Petition No. 648 of 1980 and yet filed no caveat. The petition is hit by delay. The restrictions in the Will regarding saie of the property is void. It is denied that the Will refers to houses only and not to the land. Citations were served on all heirs. There was a publication of citation on 5th December, 1980. All heirs came to know about Petition No. 648 of 1980. Jonathan, Asher, Diana, Samson, Elsie and Sophie are acting in collusion. Jonathan was served with citation but did not file a caveat. He has filed this petition only to knock out monies from the developer. Isaac withdrew his caveat dated 9th January, 1981 by his affidavit dated September, 1981. Samson filed his consent affidavit dated 11th May, 1989 for grant of Letters of Administration with Will annexed to Zillah and Emannuel. On 13th April, 1989 the Appeal Court allowed the developers to develop the property and contempt proceedings have come to an end. Regarding transfer of House No. 91 in Zillah's name in Collector's records, Jonathan has no right to challenge this. Jonathan ought to have moved the Revenue Authorities for cancelling the entry. Jonathan's contention on this point was dispelled by this Court on 7th November, 1989 in Chamber Summons No. 1077 of 1989 in Suit No. 3419 of 1988. Emannuel withdrew his Notice of Motion No. 2993 of 1986 by order dated 13th February, 1987. Jonathan is misleading all the heirs of the deceased that they have interest in House No. 91. Mismanagement is denied. It is stated that the petition is false, frivolous, vexatious and mala fide and the same should be dismissed with heavy costs and compensation.
6. Jonathan filed an affidavit dated 8th February, 1990 stating that Zillah and Emannual had obtained an order dispensing with citations on 30th November, 1989 and this was without giving him and other heirs notice and by suppressing the fact of this petition and the appeal. Zillah then filed an affidavit dated 20th February, 1990 on behalf of herself and Daisy. In that she relies upon her affidavit dated 20th February, 1990 in Notice of Motion No. 514 of 1990 in Misc. Petition No. 1 of 1990 and seeks the same to be treated as her reply here. She further states that Jonathan has no locus standi because he was personally served with the citation. She also seeks that her affidavit dated 7th Feburary, 1990 in Misc. Petition No. 22 of 1989 be treated as reply here. She denies the allegations of suppression, fraud, etc.
7. The affidavit filed by Asher on 19th July 1990 on behalf of himself and for Diana, Samson, Elsie and Sophie supports the petition.
8. The issues are as follows :
1. Whether the Respondent No. 1 ought to have referred to the 1/3rd share in House No. 87 in the Schedule to the Petition for grant of Letters of Administration with Will annexed. If so, whether the Respondents were guilty of fraud and/or misrepresentation and/or suppression of material facts?
2. Whether the consent order dated 22-12-1981 was obtained by collusion between Respondents Nos. 1 and 2?
3. Whether the manner in which the said consent order dated 22-12-1981 was obtained by Respondents Nos. 1 and 2 constituted a fraud on the other heirs of the deceased Rachel Hyams?
4. (A) Whether the Petitioner or any of the Respondents have pleaded their case that Respondent No. 1 acted fraudulently in entering into the agreement with M/s. King Builders?
(D) If so, whether sufficient particulars of this fraud have been pleaded?
(C) If so, whether this fraud is proved as regards case of fraud pleaded by any of the Respondents?
(D) Whether it is open to them to plead their case of fraud and, if so, whether such case of fraud is barred by limitation?
5. Whether the fact that Respondent No. 1 was held guilty of contempt of Court is sufficient reason by itself for removal of Respondent No. 1 as an administrator of the estate of the deceased?
5A. Whether Respondent No. 1 acted fraudulently in obtaining or causing the mutation entry in the City Survey Records in her own name?
6. Whether the gross delay committed by the Respondents Nos. 1 and 2 in collecting the grant is sufficient reason for their removal as administrators of the estate of the deceased?
7. Whether Respondents Nos. 1 and 2acted fraudulently in not serving the citations personally on two of the heirs of the deceased?
8. (A) Whether the Petitioner or any of the Respondents have pleaded that Respondents Nos. 1 and 2 acted fraudulently in describing themselves as landlords in the suit filed by them against the tenants in the Hon'ble Small Causes Court?
(B) If so, whether sufficient particulars of this fraud have been pleaded?
(C) If so, whether this fraud is proved as regards case of fraud pleaded by any of the Respondents?
(D) Whether it is open to them to plead the case of fraud and, if so, whether such case of fraud is barred by limitation?
9. Whether Respondents Nos. 11 and 2 acted fraudulently in circumstances in which the order dated 30-11-1989 came to be passed?
10. (A) Whether Respondents Nos. 1 and 2 prove that the Petitioner has no locus standi to file this Petition?
(B) Whether Respondents Nos. 1 and 2 prove that the Petitioner is estopped from filing this Petition as he did not file caveat though he was served with citation?
(C) Whether Respondents Nos. 1 and 2 prove that the Petitioner has acquiesced for grant of the Probate in favour of Respondents Nos. 1 and 2?
11. Whether the Petition is barred by the Law of Limitation?
12. Whether the Petition is barred by the Principle of Res Judicata?
13. Whether the Petition is maintainable under Section 301 of the Indian Succession Act and whether the Respondents Nos. 1 and 2 are not private administrators as alleged by Respondents Nos. 1 and 2?
14. Whether there is substantial delay in filing this Petition and as such it suffers from laches on part of the Petitioner inasmuch as the Petition was filed on 1st September, 1989 (before the issuance of the actual grant on 5th December, 1989) although he came to know about the Agreement between the Respondent No. 1 and M/s. King Builders as far back as 7th August, 1985?
15. Whether the Petitioner is a beneficiary legatee under the Will and have any interest in property Nos. 91 and 68 and as such it is just and necessary for the welfare of the beneficiaries to remove Respondents Nos. 1 and 2 as administrators?
16. Whether the Petition has been filed for collateral purpose and ulterior object?
17. Whether the Will refers to houses only and not the adjoining land as alleged by the Petitioner and whether the restraint in the Will prohibiting the sale of the houses has no effect as alleged by Respondents Nos. 1 and 2 in view of Section 138 of the Indian Succession Act,
18. Whether Respondents Nos. I and 2 have failed to comply with the office objection as alleged by the Petitioner?
9. My answers are as follows :
1. Issue No. 1 - No
2. Issue No. 2 - No
3. Issue No. 3 - No
4. Issue No. 4(A) - No Issues Nos.4(B), 4(C) and 4(D) do not survive.
5. Issue No. 5 - No
6. Issue No. 5(A) - No
7. Issue No. 6 -- No
8. Issue No. 7 -No
9. Issue No. 8(A) - No Issues Nos. 8(B), 8(C) and 8(D) do not survive.
10. Issue No. 9 - No
11. Issue No. 10(A) -- Yes Issue No. 10(B) - No Issue No. 10(C) - Yes
12. Issue No. 11 - No
13. Issue No. 12 - No
14. Issue No. 13 -- Not pressed.
15. Issue No. 14 - No
16. Issue No. 15 - No
17. Issue No. 16 -- Not necessary to decide.
18. Issue No. 17 -- Will refers to adjoining land also. The restraint in the Will prohibiting sale of houses has no effect.
19. Issue No. 18 -- Does not survive.
Tuesday, the 7th August, 1990.
REASONS
10. Before dealing directly with the issues one by one I will first consider certain crucial questions that arise for decision and on the decision of which the answers of most of the issues will depend. The first question is whether Jonathan is entitled to an order revoking the grant of Letters of Administration issued to Zillah and Emannuel on the ground that citations were not served on all the heirs. This question also arose before me in Misc. Petition No. 1 of 1990* where similar reliefs were asked by Asher, Elsie, Diana, Sophie and Samson and where I held that revocation of the grant could not be granted in the facts and circumstances of this case even if citations had not been served on some of the heirs. I have no reason to come to a different conclusion here from the conclusion arrived at by me in that petition on the point under discussion.
11. Jonathan, who is the petitioner in this case, was undisputedly served with citation. Therefore, he cannot make a grievance of want of service of citation. He did not file any caveat implying that he had no objection for grant of Letters of Administration on the basis of the propounded Will and with copy of the propounded Will annexed to Zillah and Samson. The propounded Will has been admitted by Jonathan. At Exhibit 'F' is a copy of Jonathan's affidavit dated 20th March, 1989 which he filed in Petition No. 509 of 1987. That is a petition filed by Mrs. Vivienne Marie Pereira where another Will purporting to be Rachel's Will was propounded. Jonathan in his affidavit (Ex. 'F') states "I say that the deceased hardly had any education. She went to a Marathi School at Pune. She used to communicate, i.e. speak and write only in Marathi language. Her mother tongue was Marathi. She hardly knew English language and had no education in English language. This fact would be amply clear since the Will dated 30th August, 1968 has been written in Marathi language by my sister in her own handwriting". Thus Jonathan even admits that the Will was written in the handwriting of Rachel. That explains why Jonathan filed no caveat in Zillah's Petition No. 648 of 1980. That also explains why, in spite of being served with citation in due time Jonathan took no steps, until 1989 seeking revocation of the grant. In fact, as far back as on 6th December, 1982, a letter was addressed by Nanu Hormasjee and Co., Solicitors on behalf of Jonathan and 7 others and in that letter there is a reference to Rachel's Will, but there is no contention raised there that the Will was not a genuine Will of Rachel. There is also a reference there to the consent order obtained in December, 1981 but yet there is no contention against that order. The grievance made there is that Zillah had not taken further steps in the matter of taking the grant of Letters of Administration. It is stated there "The consent order was obtained in December, 1981. We have ascertained from the Court that no steps have so far been taken to proceed with the Petition for Letters of Administration. As such our clients will be justified in seeking a revocation of the grant to be obtained by you fraudulently....." The only other grievance made there is in respect of House No. 91. I will refer to the question pertaining to House No. 91 at a later stage. In letter dated 9th December, 1982 written by M/s. Nanu Hormasji and Co., Solicitors on behalf of Jonathan again the Will is referred to and no allegation is made in that letter about the genuineness of the Will. It is claimed in that letter that since Rachel's 1/3rd share in House No. 87 was not disposed of by the Will dated 30th March 1968, that 1/3rd share in House No. 87 would go on intestacy to the heirs of Rachel and, therefore, it is finally stated "We are instructed to state that our client will now proceed to present a Petition in the High Court as heirs of Rachel Hyams on intestacy". Jonathan obtained a Power of Attorney from Asher dated 18th January, 1983. In that Power of Attorney Asher makes a reference to Rachel's Will and states that under the Will House No. 91 was given to Lily and Zillah and as Lily had predeceased Rachel, her half share would go to Rachel's heirs as on intestacy and to make that claim Jonathan had undertaken to present the petition in the Bombay High Court. Even the letter dated 6th December, 1982 was given on the instructions of Jonathan and 7 others. M/s. Nairn Hormasjee and Co.'s letter dated 25th March, 1983 named those others as Jonathan, Diana, Sophie, Rebeca, Asher, Elsie and Emannuel. It is pertinent to note that Emannuel who is joint holder of the Letters of Administration and who came in later as joint petitioner in Petition No. 648 of 1980 is also one of those who had joined in addressing the letter dated 6th December, 1982. Clearly therefore this correspondence was not for challenging the Will or even for challenging the consent order of 22nd December, 1982. It was merely for making a claim in respect of Rachel's estate which according to Jonathan and others went as on intestacy. According to them only part of Rachel's estate was disposed of by the Will and, therefore, ail that was sought was administration in respect of the remainder of Rachel's estate. It may be mentioned here that it is also the case of Zillah and Emannuel that only part of Rachel's estate was disposed of by Will and no claim is made by Zillah and Emannuel as Administrators in respect of the remainder of Rachel's estate.
12. After it is noticed that Jonathan does not dispute genuineness of the Will nor in fact, as discussed above, he had any grievance to make in respect of the consent terms dated 22nd December, 1981 or the order dated 22nd December, 1981, one may refer to the decision of the Supreme Court given in Anil Behari Ghosh v. Latika Bala Dassi, . The facts in Anil Behari Ghosh's case were as follows : The propounded Will was dated 29th April, 1912. The deceased whose Will was propounded was one Binod Lal Ghosh. On 5th March, 1920 Binod Lal Ghosh died. His adopted son Charu was one of the legatees under the Will dated 29th July, 1912. Charu was convicted for the offence of murder of Binod Lal Ghosh and sentenced to transportation for life. On 30th September, 1921 the surviving executors applied for probate. If Charu was the murderer, Girish Chandra Ghosh, a cousin of Binod Lal Ghosh, would be the nearest reversioner to the estate of Binod Lal Ghosh under certain circumstances and, therefore, would be entitled to be served with citations. On the same day (i.e. 30th September, 1921) which fell during the long vacation, the Judge in charge passed the order -- "Order as prayed". This was without citations being issued. One of the original petitioners having died on 24th July, 1933, Debi Prasad Mitter, the son of the executor who had died, applied for probate to himself and other surviving executors and on 16th September, 1933 an order was passed --"Order as prayed". Subsequently in December, 1940 Girish Chandra Ghosh died and in July, 1948, Anil Nath Basu one of the executors died. On 17th September, 1949 Anil Behari Ghosh, son of Girish Chandra Ghosh applied for revocation of the probate dated 30th September, 1921 and 16th September, 1933 on the grounds :--
(a) that no notice was served on Girish Chandra Ghosh who was the nearest male relative alive at the time when the deceased died;
(b) the grants were obtained fraudulently;
(c) the grants were made by untrue allegation of a fact essential to justify the grant;
(d) the grants were made by false delaration regarding value of the property;
(e) the grants were useless and inoperative;
(f) there was no filing of accounts;
(g) The facts of the intention of the deceased to revoke the Will were concealed; and
(h) the deceased never lived within the Original Civil Jurisdiction of the Court.
The Original Court passed an order revoking the grant. Against this order, there was an appeal filed before the Division Bench, which allowed the appeal and dismissed the application for revocation. Against this order there was an appeal filed in the Supreme Court by Anil Behari, son of Girish Chandra. On the question whether the grant was bad because there was no citation issued to Girish Chandra Ghosh, it was held in the negative. It was observed that the Court had discretion and that "defective in substance" meant that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. The Supreme Court observed that assuming that pirish was the nearest male relative to the estate of the testator-Binod, Girish took no steps in that direction for 19 years though he had been aware of the grant latest by 1933 and this indicated that the Will was valid. The Supreme Court also rejected the contention that the question whether the Will was or was not valid could only be decided after revocation of the grant when the proceedings would be restarted.
13. In our case also the Will was a registered Will. In our case the deceased died 10 years after the date of registering the Will. In our case also the heirs who were long back aware of the probate proceedings never challenged the Will itself. In our case, Jonathan, the present petitioner, as pointed out above, has in fact specifically admitted the Will and did not file any caveat making out any objection to the grant of Letters of Administration as was sought by Zillah. Further, as already pointed out above, the other heirs and particularly Jonathan were really not concerned with the Will or the bequests made in the Will nor with the administration of the estate covered by the Will. They were only concerned in pointing out that certain properties of the deceased were not covered by the Will or that certain bequests lapsed and, therefore, the properties covered by those bequests went as per intestacy, and it is in respect of this part of the estate, which according to Jonathan would devolve as on intestacy, that these heirs were interested in getting administered.
14. Neither Jonathan nor the other heirs who are supporting him are legatees under the propounded Will. No one who is a legatee under the Will is raising any contention or challenging the Court of Letters of Administration with the Will annexed to Zillah and Emannuel. The Letters of Administration with the Will annexed granted to Zillah and Emannuel does not affect the rights, if any, of Jonathan or the heirs supporting him in the estate of the deceased which is not covered by the Will. There will be no purpose in revoking the grant only for complying with the technicalities for issuing of citation and again issuing a fresh grant in the same manner. Hence, though ordinarily the omission to issue citations to persons who should have been apprised of the probate proceedings would be a ground by itself for revocation of the grant, in the facts of the present case no revocation is called for on this ground, and certainly not on Jonathan's objection who was served with citation and filed no caveat.
15. The next material question that arises for decision is whether half share in House No. 91 goes as of intestacy as is claimed by Jonathan. It is claimed that House No. 91 was bequeathed to Zillah and Lily and since Lily pre-deceased Rachel, Lily's share of the bequest, i.e. half share in House No. 91 would go by intestacy. Now the legacy given to Zillah and Lily is one given to two persons jointly. Section 106 of the Indian Succession Act, 1925 applies to this bequest. Section 106 reads: "If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole." The illustration given for Section 106 reads as follows: "The legacy is simply to A and B. A dies before the testator, B takes the legacy." I therefore hold that the bequest of House No. 91 to Zillah and Lily was given to the two of them jointly and, therefore, under the provisions of Section 106 of the Indian Succession Act, as Lily pre-deceased Rachel, Zillah takes the whole of this bequest.
16. Another material question that arises for decision is whether Rachel's 1/3rd share in House No. 87 should have been mentioned in the Schedule to the petition filed in Petition No. 645 of 1980. Now, it is undisputed that Rachel's 1/3rd share in House No. 87 was not disposed of by the Will dated 30th August, 1968. Zillah and Emannuel sought Letters of Administration with the will annexed and they make it clear that they are seeking administration only of the estate disposed of by the Will dated 30th August, 1968. Mr. Humranwala drew my attention to sub-section (1) of Section 211 of the Indian Succession Act which reads as follows:
"Section 211(1) - - The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such."
He also relied upon AIR 1929 Lahore 753, H. P. Robson v. Administrator General, Punjab. He also referred to Section 255 of the Indian Succession Act and urged that if Zillah and Emannuel wanted administration only in respect of a portion of the estate of the deceased they should have specifically mentioned it as an exception. Now, we have the decision of our High Court in Anant Trimbak v. Vasant Pratap, . Section 211 has been considered there and it is observed "Section 311 does make the executor a legal representative of the testator for all purposes, and all the property of the deceased person does stand vested in him. The sweeping language of Section 211 does suggest as if intestate property also stands vested in the Executor. It must however be borne in mind that the Executor is liable to be appointed only with respect of the property bequeathed and not intestate property in respect of which the appointment of an administrator is contemplated under Section 213 of the Indian Succession Act. The words 'all property' in sub-section (1), therefore, shall have to be restricted only to the property covered by the Will. Cases are not unknown where only a fraction of the property is bequeathed. Legislature could not have intended to extend the domain of the Executor of such a Will over the entire property and suspend its vesting in the lawful heirs till the Executor chooses to act....."
17. Mr. Humranwala urged that the decision in Anant Trimbak's case should be restricted to a case of an executor and should not be extended where the Letters of Administration are taken. In our case Letters of Administration are taken not as of intestacy but with Will annexed. The provisions of sub-section (1) of Section 211 of the Succession Act refers to both executor and administrator.
18. Mr. Humranwala then urged that Anant Trimbak's case speaks only of vesting of the estate of the deceased and that if Anant Trimbak's case is applicable then it is applicable only for the purpose of vesting of the property but not for the purpose of disclosing the assets for which provisions of Rule 375 of the High Court Original Side Rules apply. The relevant provisions of Rule 375 states "There shall also be annexed to the petition (1) a schedule of the property and credits which the deceased died possessed of or entitled to at the time of his death which have or are likely to come to the petitioner's hands....." Now it will be noticed that not all the properties of the deceased that is required to be mentioned in the schedule, but it is only that property which is likely to come to the petitioner's hands. As already pointed out Zillah sought Letters of Administration with the Will annexed. Under Section 211 of the Indian Succession Act as interpreted in Anant Trimbak's case only the property disposed of by the Will will vest in the administrator. If that is so, how can Zillah get in her hands, as administrators, the property which does not vest in her as administrator? Therefore, the property which remains undisposed by the Will has not to be mentioned in the schedule under Rule 375.
19. Mr. Humranwala urged that it is only the Bombay High Court in Anant Trimbak's case that has held that only the property covered by the Will alone vests in the executor and other High Courts have held contrary to the Bombay decision and, therefore, the Bombay High Court decision should be restricted to the facts of that case and should apply for the purpose of vesting and further only for probate. I cannot accept this submission of Mr. Humranwala. The ratio of the decision is binding on me. It is under that ratio that I have made the observation as stated above. As for what property to be mentioned in the schedule I may point out that so far as probate is concerned it is Rule 374 of the High Court Rules that applies, while for Letters of Administration it is Rule 375 that applies. But the words used in the two Rules so far as the schedule of the property and the credits of the deceased is concerned are identical. As regards Section 211 I have pointed out that the same applies to both the executor as well as the administrator. It is therefore clear that Zillah has properly omitted to include in the schedule Rachel's 1/3rd share in House No. 87. Even if Zillah was required to have mentioned Rachel's 1/3rd share in House No. 87 in the schedule her omission to do so cannot be said to be a fraud or misrepresentation or suppression of material facts. On the body of Will itself there is a reference to Rachel's 1/3rd share in House No. 87. It was brought to the notice of the Court that the portion of the Will where there is a reference to 1/3rd share in House No. 87 was an interpolation. It is for that reason that that portion was not considered as part of the Will of Rachel. It was also brought to the notice of the Court that this 1/3rd share in House No. 87 was acquired by Rachel after 30th August, 1987. Therefore nothing was hidden from the Court. Under the circumstances there is no question of any fraud. I have therefore answered Issue No. 1 accordingly.
20. Consent between the two parties does not mean there is a collusion. I fail to understand what is the collusion which falls under Issue No. 2. It is true that Zillah and Emannuel came to a certain agreement and entered into certain consent terms. Whether they were legal or not is another question. Certainly there is no question of collusion. I have therefore answered Issue No. 2 in the negative.
21. I will now discuss Issue No. 3. Now from the discussion made by me earlier, it will be noticed that of the three immovable properties only two immovable properties were the subject matter of legacies bequeathed by Rachel and those are House Nos. 91 and 68.
No heir other than Rachel and Zillah have been given any share in these two houses. Zillah and Emannuel are the only legatees of all the immovable properties bequeathed under the Will. Under these circumstances there can be no fraud against other heirs whatever be the order that might be obtained by Zillah and Emannuel in respect of these two properties. I have therefore answered Issue No. 3 in the negative.
22. I do not find that there is any plea in the petition that Zillah acted fraudulently in entering into the agreement with M/s. King Builders. It was urged by Mr. Humranwala that in the affidavit in reply filed by his client this allegation is made. Now, Zillah and Emannuel were called upon to meet Jonathan's case. Jonathan has come to this Court seeking certain orders. It is true that whatever material may be brought forward by any party to this proceeding by way of evidence or otherwise may be relied upon by the petitioner in support of his own case. The petition however has to be allowed or disallowed on the basis of the petitioner's case. A different case cannot be set up. If any of the other parties want any relief on the basis of their own case they may take out separate proceedings. In fact, such proceedings were taken out by Asher, Elsie, Daisy, Sophie and Samson but we are not concerned with those proceedings. I have therefore answered Issue No. 4(A), (B), (C) and (D) accordingly.
23. I will now consider Issue No. 5. In this case Zillah and Emannuel are the only legatees benefiting by the Will in respect of which Letters of Administration have been taken. Under the Will House No. 91 goes to Zillah. All that remains in respect of administering the estate covered by the Will was to give House No. 91 to Zillah and House No. 68 to Emannuel. The contempt of Court is in respect of dealing with House No. 91. The only title holder to that property when the property is administered as per the Letters of Administration would be Zillah. If anyone is harmed by mismanagement it would be Zillah. Why should anyone else administer the property which is to go to Zillah alone? Under these circumstances I answered Issue No. 5 in the negative.
24. I will now discuss Issue No. 5(A). The copy of the consent terms were forwarded by Zillah to the City Survey Authorities for the purpose of getting the mutation of the entry in the City Survey Records. I do not see who is to suffer except Zillah by any entry that may be sought by her in the City Survey Records pertaining to House No. 91. I have therefore answered Issue No. 5(A) in the negative.
25. Zillah and Emannuel are the only legatees of all the properties given by the will in respect of which the Letters of Administration have been sought and obtained. Any delay on their part cannot be a reason for bringing in some other administrator in their place. They are the best persons to administer the properties which are to go to them alone and no one has better rights of administration of the property covered by the Will than these two legatees. I have therefore answered Issue No. 6 in the negative.
26. I will now discuss Issue No. 7. For reasons already discussed, this issue would really not arise for decision as the heirs, who it is alleged, were not served with citations are not the persons who have come here as petitioners asking any reliefs. As already pointed out above, Jonathan, who is the petitioner here, was duly served with citation. However on the question of Zillah and Emannuel committing fraud for want of citations on two heirs, I have already discussed this in my judgment dated 24th April 1990 in Misc. Petition No. 1 of 1990 and I have no reason to differ from the reasons given there. It was urged that there was fraud inasmuch as though the addresses of Asher and Elsie were known yet citations by publication were resorted to and that at least later on when the addresses came to be known, there should have been personal service of citations. Now, the chronology of events is that the office requisitions dated 16th October 1980 required citations to be published in the "Times of India" and subsequently on 28th November 1980 Zillah obtained an order for getting citations published in "Free Press Journal" instead of "Times of India". Accordingly citations were published in Free Press Journal on 5th June 1990. It was thereafter that Emannuel filed affidavit pointing out the address of Asher and Elsie as at Hongkong and Canada respectively. It is not in all cases that the citations by public publication are proper. The publications in this case have already been done, this may have been considered as properly done at the time when Zillah was unaware of the addresses of Asher and Elsie and this may have been considered as sufficient compliance with the provisions of Rule 20 of Order V of the Civil Procedure Code. Considering all these circumstances one cannot impute fraud against Zillah and Emannuel in not serving citations personally on Asher and Elsie. I have therefore answered issue No. 7 in the negative.
27. Issue No. 8. I do not find that Jonathan has pleaded that Zillah and Emannuel acted fraudulently in describing themselves as landlords in the suit filed by them against the tenants in the Small Causes Court. I have therefore answered Issue No. 8(A), (B), (C) and (D) accordingly.
28. I will now discuss Issue No. 9. It is urged that there is fraud inasmuch as Zillah and Emannuel ought to have got citations or notices issued to the other heirs before taking the order dated 50th November 1989. Now the order dated 30th November 1989 is for doing away with the citations. 1 have already discussed the question of citations. Nothing remained further for serving fresh citations. As regards the administration of the estate, I have already pointed out that the estate covered by the Will went entirely to Zillah and Emannuel and no one other than Zillah and EmannueS could be harmed by any order from any Court in respect of the title or want of title or rights over the property covered by the Will. Under these circumstances, there cannot be any fraud. I have therefore answered Issue No. 9 in the negative.
29. Jonathan being Rachel's heir would have locus standi in respect of Rachel's Will. It is true that after the Will is duly proved and after it is found that nobody except Zillah and Emannuel are the only legatees under this Will nobody else really should have anything to do with the administration of the property covered by the Will. It is in this sense that I have answered Issue No. 10(A) in the affirmative.
As regards Issue No. 10(B) a person, one who does not oppose the grant of Letters of Administration is not thereby debarred from seeking a change of administrators. I have therefore answered Issue No. 10(B) in the negative.
I have already pointed out that not only Jonathan did not file any caveat but he has specifically admitted the Will. I have also referred to the correspondence carried by him in 1982 through his lawyers and pointed out that he never opposed either the genuineness of the Will or the grant of Letters of Administration insofar as they pertain to the properties covered by the Will. I have therefore answered Issue No. 10(C) in the affirmative.
30. This petition being one for removal of the administrators, and the administrators having been appointed only on 5th December 1989, I have answered Issue No. 11 in the negative.
31. It was urged by Mr. Sayed that the petition is barred by principles of res judicata because of the finding given by Guttal, J. on 11th October 1989 and by Pendse, J. in Notice of Motion No. 3217 of 1988 in Suit No. 3419 of 1988 which was confirmed by the order dated 13th April 1989 in Appeal No. 364 of 1989. The order of Guttal, J. was passed at the ad interim stage of this very petition, certainly it cannot be res judicata. As regards the order of Pendse, J. confirmed in appeal, as stated above, that was in an administration suit the scope of which is quite different from the scope of the present proceedings. Hence I have answered Issue No. 12 in the negative.
32. Issue No. 13 has been raised by Mr. Sayed. But at the stage of argument he stated that he was not pressing Issue No. 13. I have therefore answered Issue No. 13 accordingly.
33. Issue No. 14. Now this petition is for (a) revocation of the grant and (b) removal of administrators. The grant is made and administrators were appointed on 5th December 1989. This petition in that sense therefore cannot be said to suffer from the vice of delay or laches. Hence I have answered Issue No. 14 in the negative.
34. In view of what is discussed above, I have answered Issue No. 15 in the negative.
35. Whatever may the motive of filing this petition is irrelevant. If the grounds for removal of administrators or revocation of the grant are proved and further if the petitioner is entitled to get those reliefs then the reliefs have to be granted notwithstanding any ulterior or collateral motive that may be present in the mind of the petitioner. I have therefore answered Issue No. 15 accordingly. However the question of motive of the petitioner does arise while weighing the evidence brought forth by the petitioner. I have already rejected the petitioner's case on various counts including the ground that he is really not concerned with the administration of the property disposed of by the Will. Hence, it is not necessary for me to consider whether the petitioner's evidence would suffer on account of mala fides. Hence, I have answered Issue No. 16 accordingly.
36. I will now discuss Issue No. 17. It is urged that so far as property bearing House No. 91 is concerned, the Will refers only to the house and not to the land surrounding the house. There is no substance in this contention at all. The Will itself speaks about the area as being 662 sq. yds. The schedule to the petition mentioned this area in square metres as 553.5 sq. mts. The records of the City Survey showed this entire property as admeasuring 553.5 sq. mts. I have therefore answered Issue No. 17 accordingly.
37. As regards the restraint in the Will prohibiting sale of houses, I may say that in the first place Johnthan has no right to raise any contention in that regard. For reasons discussed he is not concerned with regard to House No. 91 as the entire house goes to Zillah under the Will. The original Will is in Marathi language. I have read it. It can be read as stating that the houses are not to be sold but to be given to the legatees. This would not place a restriction on the legatees selling the house after they have obtained it.
However, even if there is a specific prohibition on the legatees from selling this house, this restriction is null and void under Section 138 of the Indian Succession Act.
38. Zillah and Emannuel have now complied with the office requisitions and obtained the Letters of Administration. Hence I have answered Issue No. 18 accordingly.
39. It was urged that the administrators have failed to submit accounts within time as provided by law and hence they deserve to be removed as administrators. Now I have seen the Letters of Administration. They provide for one year's time for accounts to be submitted by the administrators. The Letters of Administration was granted on 5th December, 1989 and hence there is no substance in this contention. It is urged that the estate has been administered even before the Letters of Administration have been granted. Now that is a matter which is provided for by Section 303 of the Indian Succession Act and the liability is as per Section 304 of the Indian Succession Act. Here the legatees entitled to the assets are the same persons who have administered them. This particular aspect does not carry the petitioner's case any further. Hence, I pass the following order:
ORDER
1. Petition is dismissed.
2. Petitioner to pay costs in two sets. One set to Respondents Nos. 1 and 7 and the second set to Respondent No. 2.
3. Petition dismissed.