Gujarat High Court
Vinayakrao Shantilal Desai vs . on 17 April, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/TEP/1/2012 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 1 of 2013
IN
R/TESTAMENTARY PETITION NO. 1 of 2012
==========================================================
VINAYAKRAO SHANTILAL DESAI Versus ========================================================== Appearance:
MR VS DESAI for the PETITIONER(s) No. MR BB NAIK, SENIOR ADVOCATE with MR EKANT G AHUJA for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 17/04/2018 IA ORDER
1. Following is the prayer made in para -18 of the present application:-
18. The applicant, therefore prays that the Hon'ble Court be pleased to grant to him appropriate interim relief of its overruling-cum-discharge of Hardik's purported opposition by and in his affidavit-in-reply dated 11.6.2013."
2. In the Testamentary Petition No.1 of 2012, wherein present application is filed, following prayer is made in para 21 thereof:-
a) Letters of Administration with the Copy of Prof. Manjulal R. Majmudar's Will annexed thereto and limited to the extent he has bequeathed to Ku. Shraddhaben M. Majmudar in the Estate described in the "Schedule-I" hereto her legacy on the East-Northern sides in the Northern and Other Parts, namely, of the North Legacy and Others in the case:
b) ...."
3. The applicant is the original petitioner of above referred Testamentary petition and has appeared as party-in-person. When the Testamentary Petition was earlier taken up for hearing, learned advocate Mr. Mangukiya then appearing for the opponent, to whom Page 1 of 13 C/TEP/1/2012 IA ORDER the citation was issued in the Testamentary petition, raised objection against maintainability of the Testamentary petition before this court on the ground that since District court has jurisdiction to decide Testamentary petition, the petitioner be relegated to the District court especially when disputed questions of fact are involved in the petition. At that stage, arguments were advanced by the applicant in the context of the maintainability of the Testamentary petition before this court by referring to the jurisdiction available to this Court under the Indian Succession Act, 1925 ('the Succession Act') as also under the Letters Patent.
However, while making such arguments on different dates, the applicant extensively referred to the provisions of the Succession Act and to some extent the provisions of Mental Health Act, 2005. At the same time, the applicant stated that the Testamentary petition has been pending for 5 years and referring to the health condition of Kum. Shraddhaben, as critical, he requested to decide the matters at the earliest and opposed to grant any adjournment to the opponent. It is in the above context, the Court decided to hear arguments of the applicant on the present application as also on the Testamentary petition, by stating that such course was being adopted to avoid any delay in deciding the proceedings of the Testamentary petition. The applicant did not take any objection though stated before the Court that other side be permitted to make arguments only on the application.
4. Following are some facts which need to be first stated.
4.1. The Testamentary petition is filed seeking to grant letters of administration in connection with the Will, copy whereof is placed at Annexure-A to the petition. Perusing the copy of the Will, it appears that it was executed by Shri Manjulal Ranchhodas Majmudar (the Testator) on 19.09.1982 to bequeath his properties, movable and immovable, as stated in the Will. As referred in the Will, he had two sons, named Chandramaulik and Virat and a daughter named Page 2 of 13 C/TEP/1/2012 IA ORDER Shraddhaben. His son Chandramaulik predeceased him and was survived by his widow, Smt. Mayaben, and his son Mandar who was minor at the relevant time. Another son Viratbhai had in his family his wife and his minor son, named Hardik- the opponent in the present application. Kum. Shraddhaben, aged 40 years, was unmarried daughter of the Testator, and stated to have acquired good education up to M.A., Ph.D. The Will makes provision for distribution of the movable and immovable properties amongst the heirs of pre-deceased son Chandramaulik, son Virat and daughter Kum. Shraddaben. There is no need to refer to all the properties covered under the Will, suffice it to mention that there is specific legacy in favour of kum. Shraddhaben of North side of the property on Plot No.34, known as "Chaitanjhya Dham", which is referred as a residential house. Late Shri Manjulal Ranchhodas Majmudar, referred as Prof. Majmudar died on 11.11.1984. As stated in the Testamentary petition, somewhere in the year 1994, Kum. Shradhaben was under reception order admitted in Mental hospital and since then she has been treated as mentally ill person. The applicant, who has referred himself as formerly professional advocate, and prospectively legal representative of Prof. Majmudar , came to be appointed as Manager of all and any property of Kum. Shraddhaben by the order dated 11.4.2012 passed by learned 10th Additional District Judge (Ad-hoc), Vadodara in Misc. Civil Application No.79 of 2001 in exercise of the powers under Section 54 of the Mental Health Act, 1987 (to be referred as 'M.H.Act'). This order has not been interfered with by this Court in First Appeal No.1536 of 2012 filed by the opponent. Unfortunately, Kum.Shraddhaben died on 1.1. 2018, i.e. pending the Testamentary petition, as stated in the declaration made before this Court by the applicant on 9.1.2018.
5. The prayer made in the present application for discharge of the opposition of the opponent is mainly on the premise that the Page 3 of 13 C/TEP/1/2012 IA ORDER opponent is not entitled to inherit the estate left by Prof. Majmudar as he does not fall in the classification/ schedule of heirs of Prof. Majmudar and that the opponent has not filed valid caveat and he has no caveatable interest to oppose grant of letters of administration to the applicant.
6. So far as the applicant is concerned, he neither claims to be the legatee of the estate of Prof. Majmudar nor claims to be next of kin of Prof. Majmudar. Whereas the opponent is the son of the deceased legatee Viratbhai and the next-of-kin of Prof. Majmudar
7. The applicant Mr. Desai submitted that as per Section 283 of the Succession Act, in all cases, for grant of probate or letters of administration, when the Court decides to issue citation to the person claiming to be interested in the estate of deceased, it is only for the limited purpose to come to see the proceedings before grant of probate or letters of administration. He submitted that the person, to whom citation is issued, is not entitled to oppose grant of probate or letters of administration unless there is a valid caveat entered and caveatable interest is shown. Mr. Desai submitted that the opponent has not entered valid caveat and shown any caveatable interest and therefore, is not entitled to oppose the Testamentary petition. Referring to the provisions of Sections 284 to 286 of the Succession Act and the Bombay High Court Rules, he submitted that in absence of proof of caveatable interest, the proceedings of Testamentary petition could not be taken as contentious and when remedy of revocation of letters of administration is available under Section 263 of the Succession Act, the opponent may not be permitted to oppose the Testamentary petition. Mr. Desai submitted that even otherwise, the opponent who claims to be next of kin of testator has not claimed letters of administration in connection with the Will of Prof. Majmudar and therefore, since the applicant would remain the only person entitled for grant of letters of administration, the opponent's opposition to Page 4 of 13 C/TEP/1/2012 IA ORDER petition is required to be discharged.
8. Learned senior advocate Mr. Bharat B. Naik with learned advocate Mr. Ekant Ahuja for the opponent submitted that the opponent, being grandson of the testator, is very much interested in the estate of testator, whereas the applicant who is neither legatee nor a next of kin of testator has come forward to ask for letters of administration for protection of his own interest. Mr. Naik submitted that the applicant was appointed as Manager for the properties of Kum. Shraddhaben, under Mental Health Act, 1987 (M.H.Act), however Kum. Shraddhaben passed away pending the Testamentary proceedings, and with passing away of Kum. Shraddhaben, not only the applicant ceased to be the Manager of the properties of Kum. Shraddhaben but the Testamentary petition will not remain maintainable. Mr. Naik submitted that the applicant is not entitled to claim letters of administration under any of the provisions contained in Chapter-I and Chapter-II of part-IX of the Succession Act, and therefore he has no right to claim discharge of the opposition by the opponent and the opponent being the heir of the testator is very much entitled to oppose grant of letters of administration to the applicant in connection with the will of the testator. Mr. Naik submitted that in response to the citation issued in the gazette, not only the opponent has file affidavit but has also filed caveat to oppose the letters of administration to the applicant and since the caveator- the opponent is legal representative of one of the legatees of the testator and interested in the estate of the testator, he is entitled to be heard in the petition filed by the applicant who is stranger to the family of the testator. Mr. Naik submitted that since after the death of Kum. Shraddhaben, her estate would go to her heir/ legal representative and the opponent being one of the heirs/ legal representative of Kum. Shraddhaben, he remains entitled to oppose the Testamentary petition. Mr. Naik submitted that the estate of Kum. Shraddhaben since shall stand Page 5 of 13 C/TEP/1/2012 IA ORDER governed by the Hindu Succession Act after her death, the opponent becomes entitled to inherit the estate left by her and therefore, the opponent is very much interested in the proceedings of the Testamentary petition filed by the applicant who is nowhere concerned with the estate of Kum. Shraddhaben after her death. Referring to deferent provisions of the M.H. Act, Mr. Naik submitted that the applicant is not entitled and has no locus to ask for letters of administration for the estate of mentally ill person- Kum. Shraddhaben. Mr. Naik submitted that when Kum. Shraddhaben was not entitled to letters of administration, the applicant, being appointed as Manager of the property of Kum. Shraddhaben would not be entitled to ask for letters of administration for the estate of the testator vis-à-vis legacy of Kum. Shraddhaben. Mr. Naik submitted that the testator died somewhere in the year 1984 and till Kum. Shraddhaben was sent to mental asylum in 1994, she never filed any proceeding as legatee for letters of administration in connection with the Will executed by Prof. Majmudar. Mr. Naik submitted that now after more than 30 years, the Testamentary petition is filed by the applicant which is hopelessly time barred as by virtue of Section 137 of the Limitation Act, on expiry of three years period from the date the right accrued for letters of administration, the remedy was already lost. Mr. Naik submitted that even before the Court considers it necessary or convenient to grant letters of administration to any person other than the person ordinarily entitled to grant of letters of administration, the court may be required to consider the opposition of the person ordinarily entitled to grant of letters of administration and therefore also, the opponent, who is interested in the estate of the testator shall be required to be given an opportunity to oppose the petition and therefore, the prayer for discharge of the opposition of the opponent may not be granted. Mr. Naik submitted that in any case, after the opponent was issued citation in the Testamentary petition, the opponent has filed caveat and he has shown caveatable interest as Page 6 of 13 C/TEP/1/2012 IA ORDER grant of letters of administration to the applicant will affect his right to succeed to the estate in legacy of Kum. Shradhaben with other heirs.
9. It was made clear to learned senior advocate Mr. Naik that from his arguments, those which will be relevant for deciding the present application shall be considered at this stage and the arguments concerning the Testamentary petition could be considered only when the court decides not to grant the prayer made in the present application.
10. The Court, having heard the applicant as party in person and learned senior advocate Mr. Naik for the opponent finds that Kum. Shraddhaben as one of the legatees had vested interest in the estate of the testator limited to her legacy from the date of death of the testator. It was then in the year 1994, Kum. Shraddhaben was received in mental asylum. In Misc. Civil Application No.729 of 2001 filed under Section 50 read with Sections 53 and 54 of the M.H. Act, where the applicant was also one of the applicants, learned 10 th Additional District Judge, Vadodara passed order dated 11.4.2012 appointing the applicant as Manager of all and any property of Kum. Shraddhaben.
11. Under the M.H. Act, powers are given to the Manager for the management of the property of the mentally ill person and there are also duties and obligations cast on such Manager. Section 236 of the Succession Act provides that letters of administration cannot be granted to any person who is minor and/or of unsound mind. Section 246 of the Succession Act provides for grant of letters of administration with or without the Will, annexed, to the person to whom care of the estate of minor or lunatic has been committed by competent authority, i.e. the Manager or if there is no such person, to such other person as the Court deems fit to appoint, but, such letters of administration shall not be granted under this provision if Page 7 of 13 C/TEP/1/2012 IA ORDER a minor or lunatic (mentally ill person) is not sole executor or a sole universal or residuary legatee or a person who would be solely entitled to the estate of the intestate according to the rules for distribution of intestate's estate applicable in the case of deceased. This is the only provision which could be resorted to for grant of letters of administration to the manager of the mentally ill person, provided the conditions of Section 246 are complied with. As regards the other provisions for grant of probate and letters of administration contained in Chapter-I of Part-IX, Section 232 provides for grant of administration or grant of letters of administration with the Will annexed, to an universal or residuary legatee of the whole estate or of so much estate remains un- administered of the testator in absence of an executor or an executor becoming legally incapable or refusing to act or died before the testator or on executor dying after having proved the Will or before he has administered all the estate of the deceased. Section 234 provides for grant of letters of administration to legatee under the Will when there is no executor or no residuary legatee or representative of a residuary legatee or when they decline or are incapable to act or cannot be found. Section 235 provides for issuance of citation calling on the next-of-kin to accept or refuse letters of administration before grant of letters of administration to the legatee other than universal or residuary legatee. Chapter- II in Part- IX is for limited grant of letters of administration and also for grant of letters of administration for specific purpose. The applicant would not be entitled to grant of letters of administration under any of the above provisions. The applicant has referred to many provisions of the Succession Act in his Testamentary petition and therefore, when the court specifically asked him as to under which provision of the Succession Act, he would claim letters of administration, he stated before the Court that his claim for grant of letters of administration could be considered under Section 254 of the Succession Act. Section 254 of the Succession Act reads as Page 8 of 13 C/TEP/1/2012 IA ORDER under:-
254. Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration.-(1) When a person has died intestate, or leaving a will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator.
(2) In every such case letters of administration may be limited or not as the Court thinks fit.
12. As could be seen from the provisions of Section 254, the Court may in its discretion appoint some person to administer the estate or any part thereof of the deceased, other than the person who, in ordinary circumstances, would be entitled to a grant of administration. But, before making such appointment, Section 254 requires the Court to decide on the necessity or convenience to appoint some other person and also to consider the aspects of consanguinity amount of interest, safety of the estate and probability that it will be properly administered.
13. When a person claims grant of probate or letters of administration under any other provision and files petition under Sections 276 or Section 278, the Court may follow the procedure as contemplated under Section 283, including that of issuance of citations calling on all the persons claiming to have any interest in the estate of the deceased to come and see the proceedings before grant of probate or letters of administration. However, if the caveat is filed, as provided under Section 284 of the Succession Act, against grant of probate or letters of administration, no proceedings shall be taken as mandated by Section 285 of the Succession Act on a petition for probate or letters of administration after caveat Page 9 of 13 C/TEP/1/2012 IA ORDER against grant of thereof has been entered with the Judge before whom the application has been made until the notice is given to such person by whom, the caveat has been entered. Such provisions not to proceed with the petition for probate or letters of administration until notice is given to the caveator, are made to give opportunities to the persons claiming interest in the estate of the deceased to oppose the grant of probate or letters of administration by showing that he has caveatable interest.
14. In the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha and others reported in (2008)4 SCC 300. Hon'ble Supreme Court has held and observed in para 84 and 86 as under:-
84. Section 283 of the 1925 Act confers discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not have the effect of destroying the estate of the testator itself.
Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.
86. The propositions of law which in our considered view may be applied in a case of this nature are :
(i) To sustain a caveat, a caveatable interest must be shown:
(ii) The test required to be applied is : does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right.
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on the ground outside the law of succession would be a stranger to the probate proceedings in as much as none of such rights can effectively be adjudicated therein.Page 10 of 13
C/TEP/1/2012 IA ORDER
15. In the case of Saroj Agarwala v. Yasheel Jain reported in (2017)14 SCC 285, Hon`ble Supreme Court has observed in para -7 to 9 as under:
7. The preliminary issue that has arisen in the probate case which is still pending, relates to "caveatable interest".
Chapter XXXV of the Rules incorporate provisions relating to testamentary and intestate jurisdiction. Rule 1 defines 'non- contentious business' to include the business of obtaining probate and letters of administration (with or without the will annexed, and whether general, special or limited) where there is no contention as to the right thereto, as also in contentious cases where the contest is terminated and also includes the business of lodging caveats against the grant of probate or letters of administration. Rules 24, 28 and 30 are relevant to the issues at hand and are hence extracted hereinbelow :
"24. Caveat. Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his attorney file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his attorney. (Form No.13).
...............
28. Procedure on affidavit being filed. Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code (Forms Nos.14 and
15).
...............
30. Trial of Preliminary issue. The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in rule 28, direct the trial of an issue as to the caveator's interest. Where, upon the trial of such issue, it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be."
8. A careful reading of Rules 28 and 30 makes it abundantly clear that before the proceedings are numbered as a suit by orders of a Judge for being tried as a suit as per provisions of the Code of Civil Procedure (for short, 'the Code'), the Court Page 11 of 13 C/TEP/1/2012 IA ORDER may take up as a preliminary issue, whether the caveator has a caveatable interest, if such an application is filed before the Court by the petitioner. Clearly the preliminary issues are triable before the proceedings are treated as a full-fledged suit under order of the Judge concerned. Whereas suit is required to be tried as per provisions of the Code, the procedure for trial of preliminary issue has been left to the discretion of the court. Rule 30 does not require the court to come out with specific findings in respect of preliminary issue because the language used in Rule 30 requires the court to discharge the caveat where, upon trial of such issue, "it appears that the caveator has no interest ........" (Emphasis supplied). The preliminary issue does not relate to the validity or legality of the Will sought to be probated but only to the issue whether the caveator has an interest for which he can maintain the caveat.
9. Learned counsel for both the parties have addressed us at some length as to the meaning of the words "caveatable interest". The matter is no longer res integra in view of a detailed discussion of this term in the case of Krishna Kumar Birla v. Rajendra Singh Lodha[1]. Paragraphs 59 to 86 of this judgment refer to large number of authorities of this Court as well as various High Courts. The conclusions flowing from that judgment including the proposition of law in paragraph 86 clearly support the case of the respondents in both the appeals that they have a caveatable interest. The test which may be applied in the present case is : Does the claim of grant of probate prejudice the respondent's right because it defeats some other line of succession in terms whereof the respondent as a caveator asserted his/her right? Since the answer, in the facts of the case would be in the affirmative, we are in agreement with the view taken by the Division Bench that respondents have a caveatable interest.
16. However, when the person is to take the grant or appointment as administrator at the discretion of the court in exercise of the powers under Section 254, he has no say on the procedure to be followed for exercise of such powers. His appointment as administrator is at the discretion of the Court on Court finding it necessary and convenient to appoint him in place of the person who will be in ordinary circumstances entitled to grant of administration. Such appointment as administrator is not available as a matter of right and it is for the Court to decide whether to exercise power under Section 254. In exercise of such powers when the court is to decide on the necessity or convenience to appoint any person, other than the person in ordinary circumstances entitled to grant of letters Page 12 of 13 C/TEP/1/2012 IA ORDER of administration, the person entitled may oppose appointment of any other person on good grounds and if the court has already issued citation to the person claiming to have any interest in the estate of the deceased, there is no question of discharging him from the proceedings of the Testamentary petition as it is the discretion of the court to afford him an opportunity to oppose grant of letters of administration to any other person not in ordinary circumstances entitled to such grant. Therefore, there is no question for him to show any caveatable interest. The opponent being next of kin of testator will be considered to be the person entitled to grant of administration in ordinary circumstances and when he is called on by the Court by issuing citation, he cannot be debarred from taking part in the proceedings of the Testamentary petition on the ground that he has not filed caveat within the time limit or the caveat filed by him cannot be treated as valid caveat in absence of payment of Court fees or that he has no caveatable interest.
17. In above view of the matter, the Court finds it appropriate not to consider other issues whether there is a valid caveat filed by the opponent or that the opponent could be said to have disclosed caveatable interest to oppose the Testamentary petition and not to refer any judgment on such issues in the context of the provisions of Section 284 of the Succession Act and the Bombay High Court (Original Side) Rules as referred by the applicant.
18. For the reasons stated above, the Court finds that the applicant has not made out any case for grant of the prayers made in the application. The application is therefore, rejected.
(C.L. SONI, J) OMKAR Page 13 of 13