Bombay High Court
Prakash P. Bambardekar vs Avinash Vishvanath Ajgaonkar on 4 July, 2013
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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MPT67.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
MISC. PETITION NO. 67 OF 2012
IN
PETITION NO. 210 OF 2009
Prakash P. Bambardekar )
residing at Block 43, New Municipal)
Building Nana Chawk, Grant Road,)
Mumbai - 400 007 ) ..... Petitioner
Versus
Avinash Vishvanath Ajgaonkar )
Hindu Inhabitant of Mumbai,
residing at 201, Pitruchhaya,
)
)
Parelkar Marg, Shivaji Park, Dadar)
(West), Mumbai 400 028 )
Constituted Attorney of ANANT )
SADASHIV AJGAONKAR only )
son of the deceased residing at )
House 5981, Amherst Court, Sugar )
Land, Texas, TX 77479 U.S.A. ) ..... Respondent
Mr.Abhishek Bharti, i/b. M/s.M.P.Vashi & Associates for the Petitioner.
Mr.Prashant Karande for the Respondent.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 27th JUNE, 2013
PRONOUNCED ON : 4th JULY, 2013
JUDGMENT :
By this petition filed under section 263 of the Indian Succession Act, 1925, petitioner seeks revocation of Letter of Administration issued by this Court to the respondent on 15th June, 2009 in Testamentary Petition No. 210 of 2009 and also ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 2/12 MPT67.12 seeks an order and direction against the respondent to handover possession of flat No. A/501 to the petitioner. Some of the relevant facts for the purpose of deciding this petition are as under :-
2. Respondent is son of the deceased Mr.Sadashiv Anant Ajgaonkar (hereinafter referred to as the said deceased) and Mrs.Sudha Sadashiv Ajgaonkar.
Mrs.Sudha Sadashiv Ajgaonkar died on 23rd February, 2002. Mr.Sadashiv Anant Ajgaonkar died on 16th August, 2003. It is the case of the petitioner that since 1960, the respondent has been staying in U.S.A. and occasionally used to visit the said deceased Mr.Sadashiv and his wife i.e. only once in one or two years.
3. It is the case of the petitioner that the petitioner was introduced to the said deceased in or about 1987 by one Mr.P.G.Shroff and the petitioner became close to the said deceased and his wife. Petitioner used to help the said deceased and his wife as due to old age they were not in a position to get their work done.
Petitioner used to look after the day to day affairs of the said deceased and his wife. It is the case of the petitioner that flat bearing No. 18 situated at Samanth Block, Cama Road, Andheri (West), Mumbai - 400 058 which was occupied by the said deceased, the developer M/s.R.N.A.Builders had proposed to develop the entire building and the said deceased accordingly had executed a Deed of Declaration on 21st January, 2002. It is the case of the petitioner that by the said Deed of Declaration, the said deceased transferred the ownership right in the new building to be alloted by the developer to the petitioner. It is alleged that similar declaration was also executed by wife of the deceased in favour of the petitioner. The said developer had filed eviction suit (926 of 2002) in Small Causes Court at Mumbai for eviction of the said deceased. Parties to the said suit filed consent terms whereby the said developer agreed to give a permanent alternate ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 3/12 MPT67.12 accommodation to the deceased i.e. flat No. A/501, admeasuring 628 sq.ft.carpet area.
4. On 8th February, 2005, petitioner claiming to be the executor and beneficiary of the Will of the said deceased executed a Deed of Confirmation in respect of the said flat bearing No.501 allotted by the said developer to the said deceased.
Consent terms filed between the developer and the petitioner on 6th February, 2003 is alleged to have been signed by the petitioner on behalf of the deceased as constituted attorney of the said deceased. There is no other signatory to the said Deed of Confirmation dated 8th February, 2005 other than the petitioner.
5. Petitioner has placed reliance upon the receipts issued by U.S.Magnet Pvt.
Ltd., developers in the name of the said deceased jointly with the petitioner for recovery of rent in respect of Room NO.18 for the period June 2004 to May 2005 and June 2005 to October 2005 dated 10th May, 2005 and 30th September, 2005 respectively.
6. Mr.Bharti, the learned counsel appearing on behalf of the petitioner also placed reliance on the General Power of Attorney alleged to have been executed by respondent in favour of the petitioner on 16th March, 2002. It is submitted that in the said General Power of Attorney executed by the respondent, it was recited that the said deceased had executed a Will dated 31st December, 2001 and was a tenant in respect of Block No.18 at Samanth Block, Cama Road, Andheri (West), Mumbai - 400 058 and had appointed petitioner as an executor of the said Will and the petitioner was since last 10 years had been looking after the father and mother of the respondent. Learned counsel invited my attention to the attestation of the alleged signature of the respondent before the Notary Public and identified ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 4/12 MPT67.12 by Mr.Jagdish L.Thakkar, advocate.
7. Learned counsel invited my attention to the public notice issued by advocate Mr.Jagdish L.Thakkar on behalf of the petitioner whereby members of the public were warned not to enter into any transaction or agreement for sale in respect of the flat alloted to the said deceased by the developer.
8. It is the case of the petitioner that though respondent was fully aware of the Will executed by the said deceased, respondent filed a petition (210 of 2009) in this Court inter alia praying for Letter of Administration in respect of the estate of the said deceased falsely alleging that inspite of taking diligent search, respondent could not find any Will of the deceased. This court issued Letter of Administration on 15th June, 2009 to the respondent to have effect throughout State of Maharashtra for the use and benefit of the respondent. It is case of the petitioner that vide letter dated 6th August, 2009, the said developer handed over possession of flat A/501 to the respondent on the basis of the letter of administration obtained by the respondent. It is the case of the petitioner that in the month of January 2012 when the petitioner contacted the secretary of the society with a request to register petitioner's claim on the said flat bearing No. A/501, petitioner was orally informed by the secretary that the respondent had already obtained letter of administration from this Court and the developer had already handed over possession of the said flat to the respondent. Petitioner thereafter made an application to the society under the provisions of Right to Information Act and was furnished copy of the Letter of Administration issued by this Court.
9. The learned counsel appearing for the petitioner submits that Letter of Administration has been obtained by the respondent by making false statement on ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 5/12 MPT67.12 oath that the deceased has not left any Will though to the knowledge of the respondent, deceased had left a Will dated 31st December, 2001 which fact has been acknowledged by the respondent in the said power of attorney executed by the respondent in favour of the petitioner on 16th March, 2002. The learned counsel submits that the said false statement was made by the respondent and was with a malafide intention to grab the said flat which has been bequeathed by the said deceased in favour of the petitioner.
10. The learned counsel for the petitioner placed reliance upon the copy of the alleged Will of the said deceased alleged to have been executed on 31st December, 2001. The learned counsel submits that under the said Will, petitioner was appointed as an executor. The petitioner had also signed the said Will as an attesting witness alongwith Mr.Mahesh S.Savardekar. The learned counsel submits that under the said Will, the flat alloted by the developer has been bequeathed by the said deceased in favour of his wife and after her death, to the petitioner.
11. Respondent has filed detailed affidavit in reply. Mr.Prashant Karande, learned counsel appearing for the respondent submits that the petition filed by the petitioner herein is based on alleged Will dated 31st December, 2001 of the deceased and alleged declaration dated 21st January, 2002 of the deceased, alleged declaration alleged to have been executed by the mother of the respondent and General Power of Attorney dated 16th March, 2002 alleged to have been executed by the respondent. The learned counsel submits that the signature of the deceased father on the alleged Will and on alleged declaration are forged and fabricated. It is submitted that signature on the blank paper was given by the respondent to his father upon the death of the mother of the respondent which paper has been ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 6/12 MPT67.12 misused by the petitioner to fabricate General Power of Attorney dated 16th March, 2002. It is submitted that respondent never executed any such document in favour of the petitioner before any advocate or Notary Public. Both the parents of the respondent died intestate. Respondent is the only son of the said deceased and Mrs. Sudha Sadashiv Ajgaonkar.
12. Respondent in the said affidavit has deposed that respondent with the assistance and co-operation of his relative, Mr.Ajit S.Ajgaonkar, Vilas Nerkar, Dilip Vishwanath Ajgaonkar and Avinash Vishwanath Ajgaonkar used to take care of the parents. It is stated that the petitioner is not at all related to any of the parents of the respondent and is Chartered Accountant by profession. The petitioner was acquainted with the parents of respondent on account of taxation work. The respondent has deposed that he was fully acquainted with the signatures of the parents and the same are forged and fabricated documents. It is case of the respondent that even the witnesses who have alleged to have signed the said alleged Will were not at all related to or on friendly terms with the parents of the respondent. It is stated that the said deceased who was well educated and practicing advocate would not execute a document in Marathi. It is pointed out in the affidavit that there is no signature of the deceased on the first page of the alleged Will. It is stated that Mr.Jagdish L.Thakkar who alleged to have signed the said document was not advocate of the deceased parents but was advocate of the petitioner. It is submitted that the alleged declaration relied upon by the petitioner are also not properly notarised in accordance with the rules framed under the Notaries Act are on the face of it fabricated documents. It is submitted that on 21 st January, 2002 when mother of the respondent has alleged to have executed declaration deed, mother was not even tenant in respect of the said premises and thus there was no question of transferring the said premises in favour of the ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 7/12 MPT67.12 petitioner. Alleged Power of Attorney has not been annexed to the consent terms dated 6th February, 2003 alleged to have been executed by the deceased in favour of the petitioner. It is submitted that though the petitioner has executed a Deed of Confirmation on 8th February, 2005 in his capacity as executor and beneficiary of the alleged Will, petitioner never applied for probate of the alleged Will for last nine years. It is submitted that the developer has already handed over vacant and peaceful possession of the said flat to the respondent which was alloted to the said deceased in lieu of his tenanted premises. The learned counsel submits that the petitioner has not explained in this petition as to why he did not file any probate petition for more than 9 years though he claimed to have been appointed as executor under the said alleged Will, alleged signatory to the said Will as attesting witness and was beneficiary of the immoveable property under the said alleged Will. It is submitted that the petitioner was no way related to the said deceased. The petitioner has been filed with ulterior motives. The petitioner does not satisfy any of the conditions under section 263 of the Indian Succession Act and thus no relief can be granted in favour of the petitioner. Letter of Administration granted by this Court in favour of the respondent as far back as on 15th June, 2009 has been already acted upon.
13. Relevant portion of Section 263 of Indian Succession Act is extracted as under :-
263. Revocation or annulment for just cause.- The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation.--Just cause shall be deemed to exist where--
(a) the proceedings to obtain the grant were defective in substance; or ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 8/12 MPT67.12
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) ......
(e) ......
14. On perusal of the petition, it is clear that the only ground on which the petitioner has applied for revocation of Letter of Administration is that respondent has obtained Letter of Administration by making false statement on oath that the deceased had not left any Will though it was to the knowledge of the respondent who is son of the deceased that the said deceased had left Will dated 31 st December, 2001.
15. It is not in dispute that respondent was only legal heir and next of kin of the said deceased. Petitioner was no way related to the said deceased. Petitioner is Chartered Accountant by profession. It is his case that he was introduced to the deceased in the year 1987 by Mr.P.G.Shroff and he used to help the deceased in all his problems. Though petitioner propounded a Will and claims to be executor under the said alleged Will, attesting witness and also beneficiary, no probate petition came to be filed by the petitioner for a period of nine years from the death of the deceased. In this petition filed for revocation of Letter of Administration, petitioner has not explained any delay in filing any probate proceedings or given any explanation for delay in filing this petition for revocation of Letter of administration. Petitioner has also not disclosed whether custody of the alleged ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 9/12 MPT67.12 Will annexed at Ex.A was with the petitioner or was with somebody else.
16. On perusal of the alleged Will annexed by the petitioner in the petition, it is revealed that the said alleged Will is in Marathi. The petitioner not only claims to be executor under the said alleged Will but also one of the attesting witness and also beneficiary under the said Will. In my view, Mr.Karande, learned counsel appearing for the respondent is right in his submission that the deceased himself being well educated and practicing advocate at the time of his death, would not have prepared such alleged Will in Marathi. The petitioner who has signed the consent terms in the court of Small Causes at Mumbai in the suit filed by the developer, has signed the said consent terms as Constituted Attorney of the deceased. No such power of attorney has been annexed by the petitioner to the said consent terms nor in the present proceedings.
17. In support of his plea that the respondent had obtained Letter of Administration by making false statement that deceased had not left any Will, petitioner strongly placed reliance upon the General Power of Attorney alleged to have been executed by the respondent on 16th March, 2002 in favour of the petitioner.
18. Respondent in his affidavit in reply has alleged that his signature on a blank paper was given to the said deceased upon death of the mother of the respondent which blank paper has been misused by the petitioner to fabricate General Power of Attorney dated 16th March, 2002 and he had never executed any document in favour of the petitioner before any advocate or notary. It is deposed that the said deceased as well as mother of the respondent died intestate. Respondent has also stated in the affidavit that there is absolutely no possibility that parents of the ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 10/12 MPT67.12 respondent and especially his father would give permanent alternate accommodation Flat No. 501, admeasuring about 628 sq.ft.carpet area in the building situated at Andheri which was worth more than Rs.70 lacs to a third person like petitioner by keeping respondent and his other relatives in dark. Respondent has stated in the said affidavit that the said alleged Will as well as other documents relied upon by the petitioner are forged and fabricated. Though the said affidavit was served upon the petitioner long back, no rejoinder has been filed by the petitioner controverting the averments made therein.
19. It is not in dispute that Letter of Administration has been already issued to the respondent by this Court in Petition No. 210 of 2009 as far back as on 15th June, 2009. Petitioner has filed this petition for revocation of the said Letter of Administration on 9th August, 2012 i.e. after more than three years and that also without giving any sufficient explanation for such delay. In my view, petitioner not having taken any steps though claiming to be executor, attesting witness and beneficiary under the said alleged Will for obtaining probate in respect of such alleged Will and not having explained gross delay of nine years in claiming any such right under the said alleged Will, in my view, averments made in the affidavit in reply filed by the respondent that the deceased father of the respondent would not have executed such alleged Will keeping his own son and other close relatives in dark and would not bequeath his valuable flat to an outsider appears to be correct.
20. Petitioner has not denied the averments of the respondent that his signature on the blank paper given to his father upon the death of his mother and has been misused by the petitioner to fabricate his alleged General Power of Attorney dated 16th March, 2002. Petitioner has also not denied averments made in the affidavit in ::: Downloaded on - 27/08/2013 21:03:12 ::: kvm 11/12 MPT67.12 reply that signature of the said deceased was forged and fabricated on the alleged Will and also other documents.
21. On perusal of the petition it is clear that petitioner has not established any right in the estate of the said deceased. In my view, petitioner has not produced any proof which would indicate that respondent made any false and/or any incorrect statement in the petition filed for obtaining Letter of Administration of the deceased. In my view, present proceedings filed by the petitioner lacks bonafide. In my view, a person who applies for revocation of grant of probate or Letter of Administration has to prove that he has interest in the estate of the deceased sufficient to entitle him to a locus standi in the court. He has to prove that he is entitled to contest Letter of Administration and accordingly is entitled to apply for revocation of such grant. If Letter of Administration has been properly granted by this Court, in my view, it cannot be revoked. Petitioner has not established that he was entitled to contest the Letter of Administration and is accordingly not entitled to apply for revocation of Letter of Administration. He also failed to prove that he had any interest in the estate of the deceased sufficient to entitled him to locus standi in the court.
22. In my view, a person who comes to a court after considerable unexplained delay is not entitled to apply for Letter of Administration. In my view, no false or incorrect statement has been made by the respondent in the petition filed by the respondent for obtaining Letter of Administration. Under Section 263 of the Indian Succession Act, 1925, grant of probate or letters of administration can be revoked or annulled for just cause described in explanation to Section 263. In this case, the petitioner has alleged that the respondent has obtained Letter of Administration by making false statement that the deceased had not left any Will.
::: Downloaded on - 27/08/2013 21:03:12 :::kvm 12/12 MPT67.12 The petitioner himself not having taken any step to apply for probate of any such alleged Will though had made an attempt to take advantage under the said alleged Will, in my view, petitioner has not made out a just cause for revocation of Letter of Administration already granted by this court as far back as on 15th June, 2009. Respondent has already acted upon the said Letter of Administration. Flat has been already transferred in the name of the respondent by the society long back.
23. In my view, no case is made out for revocation of Letter of Administration.
This court having properly granted Letter of Administration in respect of the estate of the deceased in favour of the respondent, in my view it cannot be revoked.
Petition is devoid of merits. I, therefore, pass following order :-
(a) Misc. Petition No. 67 of 2012 is dismissed.
(b) No order as to costs.
(R.D. DHANUKA, J.) ::: Downloaded on - 27/08/2013 21:03:12 :::