Bombay High Court
Abha Dastance-Rao vs Prabhakar Deolankar And 2 Ors on 17 April, 2023
Author: Nitin Jamdar
Bench: Nitin Jamdar, Abhay Ahuja
2023:BHC-OS:3746-DB
401. Appeal No. 332 of 2016-1.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 332 OF 2016
IN
MISCELLANEOUS PETITION (L) NO. 98 OF 2015
Abha Dastane-Rao
Age : 59 years, Occ.: Consultant,
R/at 248, Travis Trail, McMinnville,
TN 37110, USA ... Appellant
vs.
1. Mr. Prabhakar Deolankar
Age : 93 Years, Occ. Retired,
Address: Sukhshanti, Flat No.2,
37, Laxmi Park Colony, Navi Peth,
Pune-411 030.
2. Vibha Jaysinghe
Age : 62 Years, Occ.: Service,
R/at : 7389, Murray field Dr.,
Worthington OH 3085 USA
3. Shubhada Mithilesh
Age : 64 Years, Occ.: Service,
R/at : 8212, Ridgelea Street,
Dallas TX 75209, USA
Respondents. No. 2 & 3 through their
Power of Attorney Holder
Mr. Dinesh Dhundiraj Barve,
Age -Adult, Occ: Retd.,
R/at: 417/2, Narayan Peth, Yogendra
Society, Pune-411 030.
Nikita Gadgil 1 of 11
::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc
4. Maharashtra Executor and Trustee
Company Pvt. Ltd.
1st Floor, 568, Kesariwada, Narayan Peth,
Pune 411 030 ... Respondents
Ms. Abha Dastane-Rao, Appellant in person is present.
Mr. S. N. Chandrachood for Respondent No.1.
Mr. Hemant Ghadigaonkar for Respondents No. 2 and 3.
Mr. Pramod Pawar for Respondent No.4.
CORAM : NITIN JAMDAR AND
ABHAY AHUJA, JJ.
DATE : 17 APRIL 2023
ORAL JUDGMENT : (PER NITIN JAMDAR, J)
. By this Appeal, the Appellant is challenging the order passed by the learned Single Judge of this Court dated 17 February 2016 in Miscellaneous Petition (L) No. 98 of 2015. By the order under challenge, the learned Single Judge has dismissed the Miscellaneous Petition.
2. There were several litigations between the parties and for the purpose of this appeal it is not necessary to narrate them in detail. Appellant along with her mother, who is now no more, had filed the Miscellaneous Petition (L) No. 98 of 2015 under Section 301 of the Indian Succession Act in the matter of the Will alleged to be executed on 25 April 2006 by father of the Appellant late Dr. Naryan Dastate. The Miscellaneous Petition was also in reference to Probate Petition in Miscellaneous Application No. 359 of 2006 Nikita Gadgil 2 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc filed on 5 June 2006 by Respondent No.1- Prabhakar Deolankar for grant of probate for being an executee of the purported Will dated 25 April 2006. The Appellant made Mr. Prabhakar Deolankar and her sisters Mrs. Vibha Jaysinghe and Dr. Shubhada Mithilesh as party Respondents, who are also Respondents in this Appeal. According to the Appellant, on 1 April 2006, her father suffered a heart attack while staying in Pune and Mr. Deolankar, who was residing in the same building, admitted him to the hospital from where he was discharged. The Appellant has provided a detailed account of certain events related to her father's illness in the Petition. The Appellant then stated that Mr. Deolankar, who claims to be the executor of the Will, engaged in various acts of misconduct, which prompted the Appellant to take legal action by approaching various courts.
3. Thereafter, the Appellant filed the present Misc petition on 14 January 2015 in this Court for the following relief:-
"a) That by an appropriate Order or direction of this Hon'ble court, to Suspend, remove or discharge the Executor i.e. the Respondent No.1 i.e. Mr. Prabhakar Narsingh Deolankar, appointed under the Probate petition No. M.A. 359 of 2006 as the Executor of the "last Will of the deceased Dr. Narayan Ganesh Dastane".
b) That by an appropriate order or direction of this Hon'ble appoint the Petitioner No.1 as the executor of "Dr. Narayan Ganesh Dastane' to administer the estate of the deceased Dr. Narayan Ganesh Dastane."
Nikita Gadgil 3 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc
4. In this Petition, the Appellant also took out various notices of motion seeking various prayers. The Petition came up for consideration before the learned Single Judge and it was heard. The learned Single Judge dismissed the Petition by the impugned judgment and order dated 17 February 2016. The learned Single Judge, in the judgment at the outset observed that the reliefs prayed by the Appellant were inconsistent with each other and the Appellant could not impeach very Will the Appellant is seeking to appoint herself as an executor and the revocation application must necessarily fail. The learned Single Judge observed that this fact was pointed out to the Appellant and the Appellant should chose either of the relief. Thereafter, learned Single Judge also addressed the issues on merits as regard the prayers and concluded that there was no merit in the allegation against Respondent -Deolankar. Learned Single Judge again referred to the issue of maintainability regarding conflict in the prayers of the Miscellaneous Application and in detail narrated as to how the learned Single Judge has drawn the attention of the Counsel for the Applicant towards this position and that the prayers be modified and as noted that in-spite of pointing this out the Appellant did not modify the same and dismissed the Petition. Being aggrieved by this judgment and order dated 17 February 2016, the Appellant has filed the present Appeal.
5. The Appeal was admitted by order dated 24 November 2016 and thereafter it has come up on board on various occasions. The Nikita Gadgil 4 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc request of the Appellant in person to take up the matter on priority basis has been noted from time to time. Subsequent by an administrative order the Appeal is assigned to this Bench for disposal.
6. When the Appeal came up on Board on 8 July 2022, the Notice of Motion taken out by the Appellant for appointment of Forensic Auditor was considered and M/s Mukund Chitale & Co. was appointed as a Forensic Auditor. Thereafter, the Appeal was adjourned from time to time and interim report of the Forensic Auditor was filed and thereafter final report was placed on record. Notice of Motion No. 1590 of 2017 taken out by the Appellant was disposed of by the Appeal Bench in respect of appointment with further direction in respect of the Forensic Auditor.
7. We have heard Ms. Abha Dastae-Rao, Appellant in person and Mr. S. N. Chandrachood, learned Advocate for Respondent No.1, Mr. Hemant Ghadigaonkar, learned Advocate for Respondents No. 2 and 3 and Mr. Pramod Pawar, learned Advocate for Respondent No.4.
8. The short question that arises before us is whether the learned Single Judge was right in holding that in view of the contradictory/conflicting prayers the Petition filed by the Appellant was liable to be dismissed as not maintainable. The learned Single Nikita Gadgil 5 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc Judge has proceeded on the basis that if on one hand the Appellant is seeking appointment as an executor, the Appellant cannot proceed on the Will as the will is bogus and on that basis remove the executor. The learned Single Judge has referred to the Section 301 of the Indian Succession Act and has observed that such Miscellaneous Petition cannot be entertained.
9. The Appellant in person has drawn our attention to the order passed by the learned Single Judge in the case of Radhika Bhargav and Another Vs. Arjun Sahgal1, where the learned Single Judge has made the following observations:-
"25. This application clearly is one not under Section 301 but one that must be brought in a regular suit for administration of the estate (as on intestacy). This administrator is not the 'successor' to the office contemplated under Section 301 at all. He is the appointee of the Court and operates under the Court's supervision. Further, this is an application that can be made even during the pendency of a probate petition; and Ms. Iyer's clients are, of course, fully at liberty to file such a suit if they are able and to make an appropriate application for an administrator pendente lite. This is not the same as an application for removal, and such a suit need not even seek an executor's removal, for it makes out a case that there is no Will at all, and therefore, no question of any person being an executor under that will. The challenge is fundamental and goes to the root of the appointment itself. There can be no question of 'removal' of an executor in such a case. This does mean, however, that Ms. Iyer's clients would have to pay the requisite court fees on such a suit. That option is not and cannot be foreclosed and, 1 (2017) 2 HINDULR 514 Nikita Gadgil 6 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc should such a suit be filed and application for an administrator pendente lite made, it will have to be addressed on its own merits.
26. The following propositions may be culled from this discussion:
(a) An application under Section 301of the Succession Act can only be made to the High Court.
(b) Such an application can be brought at any time even during the pendency of a probate petition or one for Letters of Administration with or without Will annexed.
The grant of probate or Letters of Administration is not a condition precedent to the maintainability of such an application.
(c) Where a Will is propounded and an application for removal of an executor is made under Section 301, that application can only be made by a beneficiary or legatee who accepts the Will. It cannot be made by a person who seeks to dislodge the Will or contests the application for probate or Letters of Administration with Will Annexed. The application for removal posits the acceptance of a Will.
(d) Any application for removal of an executor must necessarily be read as one for the appointment of a successor in place and stead of that executor. There can be no application for removal of an executor or administrator under Section 301 without the appointment of a successor to take his place."
The learned Single Judge in paragraph 11 of the decision in the case of Radhika Bhargav and Another (Supra), has observed thus:
"11. It is perfectly open to the Applicants in the Miscellaneous Petition to file a Suit disclaiming the Will in its entirety, seeking the appointment of an administrator Nikita Gadgil 7 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc and a restraint against the two executors from acting as such. I do not, however, see how the present application in this form is maintainable in the least. There was before me a similar case not long ago1 where a party sought both revocation of probate and removal of the executors. I held that both could not co-exist. I will accept, however, that the present case is at some distance from that decision and is on a somewhat different footing."
(emphasis supplied) "(1. Abha Dastane-Rao & Anr Vs. Prabhakar Deolankar & Ors.(Misc. Petition (L) No. 98/2015 dated 17 February 2016))"
The decision in the case of Radhika Bhargav and Another (Supra) was rendered on 14 December 2016, subsequent to the impugned order are refers and relies upon the same.
10. The decision of the learned Single Judge in the case Radhika Bhargav and Another (Supra) came up for consideration of the Appeal Bench in Appeal No. 56 of 2017. The Appeal Bench referred to the issue before it that is whether an application under Section 301 of the Act of 1925 can be made only by the beneficiary or legatee who accepts the Will and as to whether it cannot be made by a person who seeks to dislodge the Will or contest the application for probate or Letters of Administration with the Will annexed. The Appeal Bench, after taking a survey of the earlier decisions, concluded that such an application under Section 301 is maintainable. Accordingly, the Appeal Bench in Appeal No. 56 of 2017 by judgement and order 11 January 2019 set aside the order of the learned Single Judge in the case of Radhika Bhargav and Nikita Gadgil 8 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc Another (Supra) and remitted the Miscellaneous Petition to consider on its own merits.
11. According to the Appellant in person the decision in the case of Radhika Bhargav and Another (Supra) is directly applicable to the case hand. Respondents have not shown how the decision of the Appeal Bench is not applicable. We agree with the submissions of the Appellant in person. The decision in the case of Radhika Bhargav and Another (Supra) itself makes a reference to the impugned order. Therefore the identical course of action as the Appeal Bench done by the Bench of remanding the proceedings needs to be adopted. The learned Single Judge in the impugned order, though has made certain observations on the merits of the rival contentions, against the Appellants and in favour of the Respondent No.1, these observations cannot be sustained as the learned Single Judge has dismissed the Miscellaneous Petition also holding that it was not maintainable.
12. Therefore, the impugned order passed by the learned Single Judge will have to be quashed and set aside and the Miscellaneous Petition filed by the Appellant will have to be restored to file, where the parties can advance their contentions in support of the prayers made. It is open to the Appellant to move interim application, if they are so permitted in law, to be considered on merits.
Nikita Gadgil 9 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc
13. In the notice of motion filed by the Appellant in this appeal seeking appointment of a Forensic Auditor, M/s Mukund Chitale & Co. was appointed as a Forensic Auditor. The Forensic Auditor has submitted the report. We direct that the report of the Forensic Auditor which is submitted in this Appeal be transmitted to the learned Single Judge to be considered when the Miscellaneous Petition is taken up. Copies of the report have already been furnished to all the parties. It is open to the Appellant to seek directions in respect of the Forensic report, if any. Further clarification, or modification required in respect of the same will have to be made before the learned Single Judge. The Appellant in person accepts that there are certain typographical errors in the prayers as regards the executor and it is open to the Appellant to move an application for amendment, subject to the rights and contentions of the Respondents. The additional evidence allowed in this appeal be considered as the part of the proceedings before the learned Single Judge. We make it clear that we have only taken the additional evidence on record without commenting on the evidentiary value of the same and the learned Single Judge will consider the Petition along with the additional material on its own merits as per law.
14. Accordingly, the Appeal is allowed. Impugned judgment and order dated 17 February 2016 is quashed and set aside. The Miscellaneous Petition is restored to be filed of the learned Single Nikita Gadgil 10 of 11 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::
401. Appeal No. 332 of 2016-1.doc Judge. No costs.
15. The Registry, subject to the approval and directions of the learned Single Judge, place the Petition on Board under the caption "For Directions" on 6 June 2023 so that the learned Single Judge can give suitable direction for a listing of the matter.
16. The Appellant in person makes a fervent prayer for early disposal of the proceedings. The Appellant in person has been pursuing this litigation regarding her father's estate single-handedly for several years. So if the Appellant in person makes a request to take up the Petition early we have no doubt that the learned Single Judge will consider it sympathetically. However, it is for the learned Single Judge to take that decision, considering the position of the cause list and the pendency.
(ABHAY AHUJA, J.) (NITIN JAMDAR, J.)
Nikita Gadgil 11 of 11
::: Uploaded on - 02/05/2023 ::: Downloaded on - 16/06/2023 20:22:57 :::