Bombay High Court
Bombay Parsi Punchayet And 5 Ors vs Sorab Kaikhushroo Modi (Deceased) on 1 October, 2021
Author: G.S. Patel
Bench: G.S. Patel
33-TPL-7532-2021.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION (L) NO. 7532 OF 2021
Bombay Parsi Punchayet & Ors ...Petitioner
Sorab Kaikhushroo Modi ...Deceased
Mr Aurup Dasgupta, with Sonam Ghiya, & Jinal Vani, i/b M/s.
Jhangiani, Narula & Associates, for the Petitioner.
CORAM: G.S. PATEL, J
DATED: 1st October 2021
PC:-
1.The matter is uncontested. It is a Petition for Letters of Administration with Will annexed. A previous Bench had requested ASHWINI Mr Aurup Dasgupta to take up the matter pro-bono. He agreed. HULGOJI GAJAKOSH Digitally signed by ASHWINI
2. The Petitioners are the Bombay Parsi Punchayet (" BPP") HULGOJI GAJAKOSH Date: 2021.10.04 and its trustees.
10:55:24 +0530
3. Unfortunately, while the matter was pending in the Registry, where there were several unusual requisitions that had to be dealt with, one of the trustees of the BPP, Mr Viraf D Mehta, was noted in various documents, including meetings and notes of meetings, as having made some completely unacceptable statements against Mr Page 1 of 5 1st October 2021 33-TPL-7532-2021.DOC Dasgupta and, by inevitable and necessary implication, against this Court.
4. Mr Mehta is present in Court. He says that he did not intend to level any allegations against Mr Dasgupta and most certainly not against the Court. He expresses his regret and apology. To show his bona fides he has sworn a handwritten statement withdrawing all statements and allegations against Mr Dasgupta and all indirect references against this Court. He undertakes not to repeat to this conduct in future. I will accept the apology and the undertakings but he should understand that I will hold him very strictly to its terms. There will not be a second chance after this.
5. The sworn statement of Mr Mehta is taken on record and marked "X" for identification. It is not to be uploaded. However, it will be retained with the principal papers and is not to be sent for destruction in the normal course. Mr Dasgupta is at liberty to take a copy of the statement.
6. The objection raised by the Registry questions how the BPP can maintain such a Petition. For this, one has to have regard to the provisions of the Will. This is at page 13 of the Petition. It says that the deceased Sorab Modi's property at 41-42 C, Meherina, 51/C, Nepean Sea Road, Mumbai 400 036 is to be given to a charity for building or residential park. Of the total area built, 51% is to be reserved for the Parsi community and 49% for all others.
Page 2 of 51st October 2021 33-TPL-7532-2021.DOC
7. The third clause says that there is another three-bedroom flat in which deceased had 50% share. This is to be given to charity to implement the provisions of the Will.
8. The Will also says that an investment amount of about Rs. 5 crores is to be left intact to form the Trust meant to create the residential park. The executors named in the Will are the Standard Chartered Bank, CitiBank and the State Bank of India. This was but ambitious and resulted, predictably, in all three executors renouncing executorship.
9. Given that the bulk of the bequest is to a charity meant for members of the Parsi community, it is difficult to resist the submission by Mr Dasgupta that the BPP is best placed to effect the bequest in accordance with its intended terms. In its current working, the BPP, which is a registered Trust under the Maharashtra Public Trusts Act makes extensive provisions including residential accommodation for deserving or needy members of the Parsi community. The bequest in question is not one intended to be used by any individuals for personal benefit or gain. The question from the registry really is how can the BPP be said to be a "a beneficiary" under this Will?
10. Now there is no law that requires a Will to be in rigidly formal writing. A Will need not take any particular form. It is settled law, however, that the task of a testamentary Court is to see if a Will is proved in its solemn form. A testamentary court is not concerned with questions of title. In a given case, however, it may be Page 3 of 5 1st October 2021 33-TPL-7532-2021.DOC confronted with questions involving the implementation of the Will, or how to as nearly as possible give effect to it if an exact effecting is not practicable or possible. If the objection from the Registry is sustained, the bequest will fail in its entirety. The estate would be left without administration, and would pass conceivably into the hands of the Administrator General without specific direction for its application. Now the intention of the testator is clear that 51% of the sales proceeds of a valuable immovable property are to be retained for the benefit of Parsis by creating or building a residential park. This purpose is not achieved by upholding the objection from the Registry.
11. Second, whenever a bequest is made to a public cause, the duty of the Court is to attempt to give effect to the bequest. A court officer may be appointed to administer the estate. The law does not prohibit any particular person from being appointed. For example, if a testator leaves his estate to "the poor and needy of the city" no individual can claim a right in specie to any part of the estate, but the Court may administer it through its own officer. Alternatively, if there is a responsible body, the Court can always allow that administration of the Estate and the effecting of the Will to be done by that responsible entity.
12. What BPP seeks to do today is in fact narrower. It takes on the burden of the administering the estate because the major beneficiary will be members of the Parsi community of which the BPP is the single most prominent Trust. In this task, it will have to make provision for 49% for other community. It is difficult to say therefore that the BPP cannot or is somehow disqualified from seeking letters Page 4 of 5 1st October 2021 33-TPL-7532-2021.DOC of administration with Will annexed. The Will is directed to a charitable cause, and makes provision for Parsis. That is the BPP's charter. The purpose of the Will is unquestionably best served by the BPP. It has the necessary resources to give full effect to the Will.
13. The objection is thus overruled. It is dispensed with.
14. The Registry will proceed accordingly.
15. The Court fees have not been paid because of this objection. These are to be paid no later than within three weeks from today.
16. The Prothonotary and Senior Master will give Mr Dasgupta the keys to the Meherina flat mentioned in the Will. There is work going on in that building and one of the balcony doors is open. The keys to the flat were deposited in Miscellaneous Petition No. 11 of 2019. The Prothonotary and Senior Master is requested to give the keys to Mr Dasgupta personally. He will take charge of the keys. The Prothonotary and Senior Master with the representative of the Petitioner who is attending to the matter will lock the open door and return the keys to Mr Dasgupta who will then return them to the Prothonotary and Senior Master.
17. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 5 of 5 1st October 2021