Gujarat High Court
Himmatlal Tribhovandas Family Trust ... vs Purushottamdas Manilal on 16 January, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
HIMMATLAL TRIBHOVANDAS FAMILY TRUST THRO TRUSTEE MR SHARAD....Applicant(s)V/SPURUSHOTTAMDAS MANILAL PATEL C/CA/11296/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION NO. 11296 of 2012 In SPECIAL CIVIL APPLICATION NO. 8971 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ HIMMATLAL TRIBHOVANDAS FAMILY TRUST THRO TRUSTEE MR SHARAD....Applicant(s) Versus PURUSHOTTAMDAS MANILAL PATEL & 3....Respondent(s) ================================================================ Appearance: MS GARGI VYAS for M/S WADIA GHANDY &CO, ADVOCATE for the Applicant(s) MS SHRUTI PATHAK, ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 2 and 3 RULE SERVED BY DS for the Respondent(s) No. 1 , 3 - 4 VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/01/2013 ORAL JUDGMENT
Rule was issued in this application on 22.10.2012.
This application has been preferred by the applicant, who has been appointed as executor of the last Will and Codicil of the original petitioner Shrimati Champagauri Himmatlal, who died on 19.09.2012, as per the Death Certificate, annexed at Page-8 of the application.
It is stated in the application that by the last Will and Codicil made by the original petitioner on 03.02.2010, all rights, title and interests in her movable and immovable properties have been transferred in favour of the applicant. It is stated that the property, which is the subject-matter of the petition also stands transferred in favour of the applicant by virtue of the above-mentioned Will. It is further stated that the applicant-Trust came into existence on 20.12.2009 by virtue of the Deed of Discretionary Trust, whereby the first trustees, beneficiaries, properties and the purpose of the applicant-Trust was incorporated. One of the trustees of the applicant, namely Shri Sharad Himmatlal Jobanputra has been appointed as an executor of the last Will and Codicil of the original petitioner and by Resolution dated 07.02.2012, passed in the meeting of the Board of Trustees, he has been authorised to represent the applicant-Trust before the Courts of law.
Ms.Gargi Vyas, learned advocate for M/s.Wadia Ghandy and Company, learned counsel for the applicant, submits that in view of the last Will and Codicil executed by the original petitioner, the applicant-Trust has become her rightful and legal heir, therefore, the prayer made by the applicant-Trust for substituting itself in place of the deceased petitioner in the main petition, may be granted.
Mr.Viral K.Shah, learned advocate for respondent No.1, has opposed the prayer made in the application by submitting that the petition was filed by the petitioner on 03.07.2012 and the document upon which the applicant is relying, namely, the Will, is dated 03.02.2010. The Trust was formed on 20.12.2009 and the Resolution passed by the Trust is dated 07.02.2012. It is submitted that all these documents were available with the applicant at the time of filing of the petition but none of them were disclosed and nor were any averments made in respect of those documents in the petition, which speaks volumes regarding their genuineness.
It is further submitted that the petition has been filed by the original petitioner through her Power of Attorney, that is, Shri Sharad Himmatlal Jobanputra, and now the same person is the applicant before this Court and is making a request for substitution. It is submitted that material documents have been withheld from this Court, therefore, the prayers made in the application may not be granted.
Ms.Shruti Pathak, learned Assistant Government Pleader for respondents Nos.2 and 3, has no objection if the prayers made in the application are granted.
I have heard learned counsel for the respective parties, perused the averments made in the application and other material on record.
The main petition, being Special Civil Application No.8971 of 2012, has been filed, inter alia, with a prayer to quash and set aside order dated 25.02.2011, passed by the Gujarat Revenue Tribunal in Revision Application No.TIN/B.A./369 of 2010, as also order dated 07.06.2010 passed by the Deputy Collector, Viramgam, in Jamin/Sharatbhang/Case No.1/09. At the time of filing of the petition, the original petitioner, Shrimati Champagauri Himmatlal, was alive. There is no doubt that the petition has been filed through her Power of Attorney holder Shri Sharad Himmatlal Jobanputra, who is also the executor of the last Will and Codicil of the original petitioner dated 03.02.2010. It is also an admitted fact that the Trust has been formed on 20.12.2009, pursuant to THE transfer of all the rights, title and interests in the properties, immovable and movable, in favour of the applicant-Trust. Shri Sharad Himmatlal Jobanputra has been authorised by a Resolution passed by the applicant-Trust on 07.02.2012 to represent it in all Courts of law, hence, the present application has been filed by Shri Sharad Himmatlal Jobanputra.
It has been submitted by learned counsel for respondent No.1 that material documents, such as the Will dated 03.02.2010 and the Trust Deed dated 20.12.2009, have not been placed on record by the applicant at the time of filing the petition.
Since the petition is directed against the orders passed by the Gujarat Revenue Tribunal and the Deputy Collector, the Will made by the original petitioner and the formation of the Trust in respect of her properties would, in the view of this Court, hardly have any co-relation with the prayers made therein. It cannot, therefore, be said that the petition has been filed by suppression of material documents. In any case, a person who executes a Will is not bound to disclose the same during his/her lifetime. What the original petitioner does with her property is of no relevance in the context of the prayers made in the petition. In this view of the matter, the objections raised by the learned advocate for respondent No.1 against granting the prayers made in the application, which have also been stated in the affidavit-in-reply filed by the said respondent, cannot be accepted.
The properties in question have been bequeathed to the applicant-Trust by the Will executed by the original petitioner and as the Trust has been formed during her lifetime, it cannot be said that the documents are not genuine, as is suggested by the learned advocate for respondent No.1. Even otherwise, the genuineness and veracity of documents cannot be decided in the present proceedings.
For the above reasons, and as the properties, movable and immovable, of the original petitioner, have been bequeathed to the applicant-Trust by the last Will and Codicil executed by her, the prayers made by the applicant-Trust for substituting it in place of the petitioner, deserve to be granted.
Accordingly, the application is allowed. The applicant-Trust is directed to be substituted in place of the deceased original petitioner in Special Civil Application No.8971 of 2012. The necessary amendment to the cause-title may be carried out within a period of two weeks from today. Rule is made absolute. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) (sunil) Page 9 of 9