Bombay High Court
Indira Rajguru vs Balkrishna K. Rajguru And Ors on 10 June, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:8667
1/93 Suit-3165-2010.odt
E-file
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.3165 OF 2010
Indira Rajguru .. Plaintiff
Versus
Balkrishna K. Rajguru & Ors. .. Defendants
...
Mr.Chirag Mody a/w Bhupesh Dhumatkar, Manisha Virkhare,
Omsai Dangi and Nandkishor Supal i/b Divya Shah Associates
for the Plaintiff.
Mr.Rajesh Shah a/w Jayesh Vyas and Sandeep Dhangar for
Defendant Nos.3 and 4.
Mr.S.K. Dhekale, Court Receiver and Mr.N.C. Pawar, O.S.D.
Court Receiver, present.
...
CORAM: BHARATI DANGRE, J.
RESERVED ON : 12th October, 2023
PRONOUNCED ON: 10th June, 2024
JUDGMENT:-
1] The declaratory Suit is filed by the Plaintiff Indira Rajguru, Indian resident, residing in United Kingdom, against Defendant Nos.1 to 5, seeking declaration that she alongwith the Defendants are, each entitled to 1/6th share, right, title and interest in the estate of Mr.Karsanji Keshavji Rajguru , their Digitally deceased father and the Suit also seek various other reliefs signed by RAJSHREE RAJSHREE KISHOR KISHOR MORE including a restrain order against Defendant Nos.2 to 5 and an MORE Date:
2024.06.14 18:38:28 +0530 order of injunction from inter-meddling with the estate of the deceased or parting the possession or disposing off or rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 2/93 Suit-3165-2010.odt inducting any third party or removing the valuables in respect of the property as set out in Exhibit C and D or any part thereof.
The distinct reliefs sought in the Plaint include a relief in form of order and direction to Defendant Nos.2 to 5 to declare on oath the properties of the deceased, described in Exhibit and D and to furnish the accounts of estate of the deceased, which have been utilized by them after his demise.
2] The primary reliefs sought in the Plaint, filed by Indira Rajguru, reads to the following effect :-
d) the estate of the deceased described in Exhibit "C" and "D" hereto be administered by and under the Orders and directions of this Hon'ble Court;
e) this Hon'ble Court be pleased to Order and decree the partition of the estate of the said deceased more particularly described in the Exhibit "C" and "D" hereto and after the same is partitioned into six equal parts and Plaintiff and Defendants be put in possession and hand over 1/6th share each in respect thereof.
g) this Hon'ble Court be pleased to pass Order and decree against Defendant Nos.2 to 5 to give accounts of the estate of the said deceased including the monies/amounts withdrawn/ transferred from the bank accounts of the said deceased after the death of the said deceased;
h) in the event of this Hon'ble Court coming to a conclusion that it is not possible to partition the estate of the said deceased more particularly described in Exhibit C and D hereto and as may be accounted for, this Hon'ble Court be pleased to Order and direct the sale of the estate of the said deceased under the supervision of this Hon'ble Court Order;
i) that this Hon'ble Court be pleased to appoint Receiver in respect of the properties mentioned in Exhibits C and D hereto under powers under Order 40, Rule 1 of the Code of Civil Procedure including the power to sell and distribute the sale proceeds in respect thereof to the Plaintiff and Defendants as per their Share i.e. 1/6th in the estate of the said deceased.
j) that this Hon'ble Court be pleased to declare the purported Power of Attorney dated 18 th June, 2016 (Exhibit P rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 3/93 Suit-3165-2010.odt hereto) is null and void, illegal, unforceable in law and the same may be cancelled, quashed and set aside.
k) that this Hon'ble Court be pleased to declare the purported Gift Deed dated 22nd June, 2006 (Exhibit Q hereto) is null and void, illegal, unenforceable in law and the same may be cancelled, quashed and set aside.
l) that this Hon'ble Court be pleased to declare the purported Released Deed dated 22nd June, 2006 (Exhibit R hereto) is null and void, illegal, unenforceable in law and the same may be cancelled, quashed and set aside.
3] Amongst the other reliefs, a specific direction is sought against the Defendant No.3 from acting upon the purported POA, the purported Gift Deed and the Release Deed, in the following manner:-
m) that this Hon'ble Court be pleased to direct Defendant No.3 to deposit the original Power of Attorney dated 18 th June, 2006 (Exhibit P hereto) Gift Deed dated 22nd June, 2006 (Exhibit Q hereto) Release Deed dated 22nd June, 2006 (Exhibit R hereto) in this Hon'ble Court at the very first instance and after receipt the said documents, the same may be impounded;
n) that this Hon'ble Court be pleased to pass an Order and injunction restraining Defendant No.3 from acting upon the purported Power of Attorney dated 18 th June, 2006 (Exhibit P hereto) purported Gift Deed dated 22 nd June, 2006 (Exhibit Q hereto) and purported Released Deed dated 22nd June, 2006 (Exhibit R hereto).
4] Appointment of the Court receiver is also sought through the following prayer clauses:-
p) that pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay be pleased to appoint Receiver in respect of the properties mentioned in Exhibits C and D hereto under powers under Order XL, Rule 1 of the Code of Civil Procedure including the power to sell and distribute the sale proceeds in respect thereof to the Plaintiff and Defendant Nos.1 to 5 as per their Share i.e. 1/6th in the estate of the deceased.
r) that pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to appoint Receiver or Office of the Court with an authority to enter the properties/estate left behind rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 4/93 Suit-3165-2010.odt by the deceased and to take inventories of all the items lying therein including the ornaments and jewellery including the items lying in the Flat Nos.402 and 601 of the Beach Kings' Apartment Co-operative Society Ltd. And the bank accounts/lockers of the said deceased mentioned in Exhibit D herein and submit a report to this Hon'ble Court and further direct the Plaintiff and Defendants to maintain the said movables jointly.
In addition there are other reliefs which are ancillary to the primary reliefs sought in the Plaint.
5] The Plaintiff and the Defendants are siblings, born to Mr.Karsanji Rajguru and Jivatiben Rajguru.
Jivatiben, the mother of the Plaintiff, predeceased her husband Karsanji , who demised on 31.08.2006 at Porbandar, State of Gujarat, leaving behind the Plaintiff and the Defendants as his heirs. The Plaint is accompanied with the Family Tree of Karsanji.
It is the pleaded case of the Plaintiff, that during the lifetime of her deceased father, he had purchased and/or acquired the right, title and interest in various movable and immovable properties, as more particularly described hereunder.
(I) Immovable Properties :
a) 8 houses situated at Advana in Porbandar Galuka,
Gujarat.
b) Undivided share in respect of the Flat No.601, 6 th Floor,
admeasuring 925 sq. ft. built up area on 6 th Floor, in the building known as "King's Apartments" of Beach King's Apartment Co- operative Housing Society Ltd. (referred to as "The said Society") situated at Juhu Tara Road, Santacruz (W), Mumbai 400 054 alongwith Garage No.8 in the building known as "King's Apartments" situated at Juhu Tara Road, Santacruz (W), Mumbai 400 054.
rajshree
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5/93 Suit-3165-2010.odt
c) Immovable property in the nature of residential Flat
NO.402 admeasuring 925 sq. ft. built up area on the 4 th Floor, in the building known as 'King's Apartment' of Beach King's Apartment Co-operative Housing Society Ltd. Situated at Juhu Tara Road, Santacruz (W), Mumbai - 400 054.
It is the case of the Plaintiff that the deceased, had also acquired rights in movable properties and have various shares, valuables, gold ornaments and Bank Accounts, Bank Lockers etc. and to her best knowledge, the deceased at the time of his death had various movable assets which are described in the Plaint as below :
II. Details of the lockers/accounts :-
a) Monies and other valuables kept in the lockers and/or
accounts of/with:
1. SB Bank at Porbandar;
2. Saurashtra Bank of Porbandar,
3. Union Bank of India,Juhu Tara Road, Bombay;
4. Union Bank of India M.G. Orad, Porbandar.
5. ICICI Bank, Porbandar Branch.
b. Other ornaments kept in Flat No.402 and /or Flat No.601 in Beach King's Apartment Co-operative Housing Society Ltd. c. All other movable properties kept in different Banks in Mumbai and Porbandar in the form of NRI Deposits and NRI Saving Accounts in several banks in the lockers; d. Deposits in the name of the said deceased in Union Bank of India, Juhu Tara Branch, Mumbai.
6] According to the Plaintiff, she is unaware of the complete details of the bank accounts and the jewellery and ornaments lying in the locker, however, the description of the movable properties of the Plaintiff to her knowledge, is enlisted by her at Exhibit D. rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 6/93 Suit-3165-2010.odt 7] It is the case of Indira, the Plaintiff, that her deceased father had executed his last Will and Testament in Gujarati language on 12.05.2006 and she, at the relevant time being at Advana, State of Gujarat, was aware of the execution of the Will. The deceased informed her that she was appointed as an Executrix in the Will, however, according to her, the Defendant No.3 Dhiraj Rajguru, did not render co-operation to her by handing over the original Will, which is alleged to have been retained by him in his custody. The Plaintiff even attempted to contact the attesting witness, Natubhai Paun, who handed over copy of the Will and copy of the Will and its English translation are annexed with the Plaint as Exhibit E and F respectively.
Since the Plaintiff was appointed as sole Executrix of the Will, she filed an application for grant of Probate, before the Additional Senior Civil Judge at Porbandar, which was numbered as Civil Miscellaneous Application No.34/2006.
During its pendency, the Plaintiff addressed a letter to the Secretary of King's Apartment, requesting him to maintain status quo as regards Flat No.402 and 601 in the Apartment, since she had approached the Court for grant of Probate of the last Will of her father.
As per the Plaintiff, the original Will of her deceased father was in possession of Defendant No.3 and she, time and again called upon him to furnish the same, to be produced before the Court at Porbandar Gujarat, but despite the copy of the probate application being served upon Defendant no.3, he did not file any objection or response. However, since the Plaintiff could not file the original Will before the court at rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 7/93 Suit-3165-2010.odt Porbandar, the Probate Application filed by her was dismissed on 05.05.2008.
8] The Plaintiff gained knowledge that Defendant No.3, was making frantic efforts to transfer the flats and the garage in the King's Apartment in his name, though she had already intimated the Secretary of King's Apartment not to transfer the same, pending the probate proceedings instituted by her. She once again informed the Secretary not to permit the transfer without her consent by addressing a communication on 10.11.2008.
The Society informed the Plaintiff's Advocate that it had received a letter from Defendant No.3 requesting transfer of the flats and share certificates in his name. Upon receipt of this communication, the Plaintiff called upon Defendant no.3 to furnish all the documents supporting the claim of the Defendant No.3 in the two flats and garage.
The Plaintiff continued her efforts to obtain the last Will and testament of her father and she contacted Advocate N.D. Kakkad of M/s.Kakkad and Company at Porbandar, who had drafted the document and since Advocate Kakkad had identified the Testator, she called upon Mr. Kakkad to provide her with the certified true copy of the Will. She highlighted that the alleged Power of Attorney (POA) which was executed by her father, on the basis of which her brother, Respondent No.3, claimed the flats and the garage, did not make a mention of the Will and the Will was never revoked by any subsequent document leading to an inference and that prima facie it rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 8/93 Suit-3165-2010.odt seems that the POA was executed under some duress or at a point of time, when her father was not in a proper state of mind.
In furtherance of the letter addressed by the Plaintiff's Advocate, Defendant no.3 through his Advocate disclosed that he was claiming rights in the flats and the garage on the basis of the Gift Deed dated 22.06.2006 and the Release Deed dated 18.06.2006 and on receipt of this letter, the Plaintiff ascertained the intention of Defendant No.3 in not forwarding the copy of the Will and according to her, prior to issuance of this letter, Defendant No.3 had never intimated any one about the alleged Gift Deed/Release Deed and POA and it is alongwith the letter dated 15.01.2009 the Defendant No.3 furnished the copies of these documents to the Plaintiff.
She also alleged that the Defendant no.3 had procured a Gift Deed and Release Deed from her father, which was contrary to her appointment as Executrix of the Will. Advocate N.D. Kakkad, by his letter dated 19.01.2009 admitted that the deceased had instructed him to draft the Will and the Will was executed by the deceased, but since the Testator and two witnesses had not signed the Will in his presence, he did not possess a copy thereof. He also informed the Plaintiff that the POA, Gift Deed and Release Deed, had been prepared by M/s.Bachubhai Munim & Co., Advocates and Solicitors.
9] On 20.01.2009, the Plaintiff through her letter addressed to Defendant No.3 objected to the Execution of the Deeds,by rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 9/93 Suit-3165-2010.odt stating that he had executed the Deeds as agent of the Deceased and under the Contract Act, any Agent could not execute documents for self and hence both the Deeds executed in his favour are illegal, void and unenforceable in law and reliance on the Gift Deed and Release Deed was an afterthought and in any event, it could not acted upon.
She further claimed that the POA was allegedly executed subsequent to the execution of the Will and since it did not find any mention of the Will and, therefore, these documents were executed by the deceased under duress and the transmission of two flats and garage in favour of Defendant No.3, did not have her approval and she sought production of the said Will.
She supported her assertion by stating that the Defendant No.5 during the pendency of the Civil MA No.34/2006 filed in Civil Application No.1/2009 in the Court of Principal Senior Civil Judge at Porbandar for issuance of Succession Certificate and had issued a public notice on 24.01.2009 in "Divya Bhaskar" a Gujarati Daily inviting objection for issuance of the same and the Plaintiff through her Advocate had replied to the notice on 03.02.2009, reiterating that the deceased had executed a Will on 12.05.2006 and she being appointed as Executrix.
The attention of Defendant No.3 was also drawn by the Plaintiff to the effect that the legal heirs of the deceased had withdrawn huge amount from his bank accounts without paying any heed to the sentiments and commitments expressed by the deceased in his last Will and the responsibilities upon her as its Executrix.
rajshree
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10] It is the case of the Plaintiff that, she was unaware of the
fact that the Probate Application was dismissed on 05.05.2008 and on 17.02.2009, she strongly contested the grant of Succession Certificate in favour of Defendant No.5 and this objection was premised on the pendency of the Probate Application filed by her.
The Plaintiff continued to seek assistance from the Defendants, to enable her to take steps in obtaining Probate of the Will and she also learnt of acts of appropriation by Defendant No.3, from the statement of Account of the SB Account No.SBNREAC No.36910202006103, in the name of deceased Karsanji and as she noted the transfer of money from the account after his demise.
On gaining information that bank accounts of the deceased were operated and amounts were withdrawn/ transferred after his death, without having obtained Succession Certificate or letter of Administration of the estate of the deceased, the Plaintiff cautioned Defendant Nos.1 to 5 about the consequences of such illegal acts of appropriation and utilizing the amount, which formed estate of the deceased.
11] On receipt of the letter, the Defendant No.1 confirmed its receipt and expressed support in the Plaintiff and therefore the Defendant no.1 is made as a formal party in the Suit with no reliefs being claimed against him.
However, Defendant no.3 replied to the letter of the Plaintiff, denying that the Gift Deed, Release Deed as well as POA of the deceased was illegal or void. However, Defendant rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 11/93 Suit-3165-2010.odt no.3 agreed and consented to the Plaintiff administering the estate of the deceased in the manner she like.
The Plaintiff has specifically pleaded that the Defendant No.3 continued to exert pressure upon the deceased and this resulted in he requesting the Plaintiff to visit him on several occasions to take charge of the various immovable properties and bank accounts and upon such request, the Plaintiff had visited India during October, 2005, December 2005 and April, 2006. When she returned to United Kingdom, after her visit in April, 2006, the Plaintiff was again called by Karsanji within 3 days of her return and she came back at his insistence and stayed with him for about 5 weeks. In the wake of this, it is the case of the Plaintiff that she was aware of his physical and mental condition and she was aware of the frail health of the deceased and the pressure mounted upon him by Defendant No.3 to transfer the immovable property and bank accounts in his name to the exclusion of other heirs.
The Plaintiff continued to make the Defendant No.3 understand that he stand on the same footing as the Plaintiff and he cannot get the property to the exclusion of other heirs and despite repeated request by her to take constructive steps to effectively administer the estate of the deceased, the Defendant No.3 did not take any steps. As per the Plaint, the Defendant no.3 with malafide intention and ulterior motive is trying to usurp the properties of the deceased and get them transferred in his name on the basis of the alleged documents obtained by him, by playing fraud and exercising undue influence and coercion on their deceased father.
It is the case of the Plaintiff that the Defendant No.3 is rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 12/93 Suit-3165-2010.odt aware of the Will executed by the deceased and despite this, he claims the right to the property of the deceased on the basis of the Release Deed and Gift Deed dated 22.06.2006 and the POA dated 18.06.2006, and all the while he maintained silence as regards execution of these documents until the Probate Application was dismissed on 05.05.2008.
12] The Plaint has also pleaded that the deceased during his lift time has purchased, acquired and/or inherited various movable and immovable properties, particularly set out in Exhibit C and D and in order to exclude the Plaintiff, the Defendant Nos.2 to 5 are coming forward with the case of alleged Deeds and POA.
In any case, the Plaintiff has filed the Suit for declaration, that they are entitled to 1/6th right, title and share in the estate of the deceased, but the Defendant nos.2 to 5 are avoiding to come together and apply for Letters of Administration/Succession Certificate in respect of the estate of their deceased father and they are not interested in administering the property and on the other hand, Defendant no.3, in collusion with the Society is on his way to transfer Flat Nos.402 and 601 alongwith the garage exclusively, in his name.
Apart from this, the Plaint also seek a direction to the Defendants, to furnish the accounts of the estate of the deceased which have been utilized by them after demise of their father. It is in these circumstances, and in interest of justice, the Plaintiff is seeking direction against Defendant rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 13/93 Suit-3165-2010.odt Nos.2 to 5 to disclose on oath the monies and amount withdrawn/transferred by them from the bank accounts/ lockers/fixed deposits, belonging to and forming the part of the estate of the deceased and deposit of the documents in this Court and upon its receipt request is made for its impounding.
13] As far as the cause of action and limitation in filing the Suit is concerned, it is specifically pleaded as under :-
"58. The Plaintiff states and submits that the deceased expired on 31 August, 2006. One of the attesting witnesses to the Will Shri. Natubai Paun has handed over copy of the Will dated 12th May, 2006 to the Plaintiff. The Plaintiff has thereafter filed a Probate Application being Civil Miscellaneous Application No.34 of 2006 at Porbundar in Gujarat. The same came to be dismissed on 5th May, 2008. The Plaintiff came to know about the alleged Power of Attorney dated 18th June, 2009 alleged Gift Deed and alleged Release Deed dated 22nd June, 2006 only on 15th January, 2009. After receipt of the said documents, the Plaintiff has through her Advocates' addressed various correspondence to the Defendants in order to amicably settle the matter. However, the Defendant Nos.2 to 5 failed and neglected to comply with any of the offers made by the Plaintiff in order to pay respect to the sentiments, commitments and wishes of the said deceased. Thus, the Plaintiff is left with no other alternative but to file the present suit in order to protect the estate of the said deceased and administer of the same. Thus, the suit is well within time and not barred by limitation."
14] The Suit is contested by Dhiraj Rajguru by filing written statement dated 20.04.2011, where Defendant No.3, has claimed that the Suit is filed with an ulterior motive by the Plaintiff to unjustly benefit herself from the estate of Karsanji Rajguru, which was distributed by him, during his life time. It is specifically pleaded in the written statement that the Plaintiff , in spite of being aware that the properties are transferred by their late father Karsanji Rajguru, during his life time and even after she has received her own share, she rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 14/93 Suit-3165-2010.odt has purportedly filed the Suit which suffers from vice of suppressio veri suggestio falsi, and it is also alleged that the Plaintiff has not approached the Court with clean hands and the Suit deserve to be rejected on this ground alone.
According to Defendant No.3, the Plaintiff has made several unsuccessful attempts in the past, with malafide intention to intermeddle with the properties transferred to him by Karsanji in his life time and it is alleged that she had made misrepresentation to the Beach King's Apartment Co- operative Housing Society and other defendants only in order to stall the process of transferring the shares in his favour.
According to Defendant No.3, he alongwith the Plaintiff and Defendant no.4 reside in England and the Plaintiff has filed the Suit on 23.10.2010 and the Suit is opposed on the ground that it is barred by Law of Limitation. The Defendant no.3 has also referred to the Suit filed by the Plaintiff for obtaining probate of the purported Will of late Karsanji, which was dismissed, conclusively confirming the contention of the Defendant that Karsanji had not left any Will and he had distributed all his assets amongst his children during his life time. It is for this reason, the relief claimed in the Suit for administration of his estate do not survive, is the specific plea adopted by the Defendant.
Defendant No.3 has also asserted that, after the death of Karsanji and having found that on distribution of his assets, he got a larger share and the Plaintiff who had also received the share in the assets distributed during his life time, she is now raking up issues based on the purported Will, which is never produced. According to the Defendant no.3, Flat No.402 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 15/93 Suit-3165-2010.odt and 601 in King's Apartment were gifted by Karsanji to him in his life time and having acquired these flats he had approached the Society for their transfer in his name, to deal with and enjoy and dispose off the flats. However, the Plaintiff misguided the society and prevented this transfer.
15] In the written statement, the Defendant has offered the details of the property of the deceased, which include the following properties :_
a) Houses at Advana, Porbandar, Gujarat.
b) Share bearing NO.1651 to 165 under Share Certificate No.33 issued on 01.06.1977 and incidental rights in respect of Flat No.402 on fourth floor in building known as Kings Apartment.
c) Karsanji had 41.81% undivided interest held jointly with Defendant no.3 and Defendant No.4 being share No.226 to 230 under share certificate No.46 issued on 01.06.1977 and incidental rights in respect of Flat No.601 situated on6th floor, and incidental rights in respect of garage no.8, in the building known as Kings Apartment.
According to Defendant No.3, Karsanji released his share of 41.84% in the said shares in respect of Flat No.601 and in the the incidental rights in the said flat, in his favour during his life time. His written statement also contain the status of the bank accounts of the deceased.
16] The Written Statement was permitted to be amended and it is pleaded by the Defendant No.3 that in the last week of February, 2012, his aunt and Karsanji's sister, Amrutben Rajguru informed him that she found a declaration dated rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:58 ::: 16/93 Suit-3165-2010.odt 25.07.2006 from an old cupboard in the house at Advana, Porbandar, about which she had forgotten, with passage of time. But on seeing the same, she recollected that the same was written by her as dictated by her brother Karsanji and she handed over the same to Defendant No.3 and this is how the declaration dated 25.07.2006 came in his possession.
This declaration dated 25.07.2006, inter alia declare that Karsanji wanted to administer all his properties during his life time and he had transferred the immovable properties at Advana, Porbandar, Gujarat, Flat No.402 and his share in Flat No.601 in favour of Defendant No.3 and thus executed POA on 18.06.2006 in his favour for the said purpose and also gave the residual property to him, whereas, he has declared that the amounts pending in the bank account shall go to the joint holder of that account.
Based upon the declaration the Defendant No.2 filed Special Civil Suit No.12/2012 in the Court of Principal Civil Judge, Senior Division, Porbandar.
In his written statement, Defendant No.3 has accused the Plaintiff of suppressing certain material facts which include health status of Karsanji and the written statement has also specifically referred to the execution of POA, Gift Deed and Release Deed, which are annexed as Exhibit D, E and F to the Written Statement.
17] The Written Statement has also accused the Plaintiff, of misleading the Society in order to obstruct the transfer of share in respect of Flat no.402 and 601 and the incidental rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 17/93 Suit-3165-2010.odt rights therein in his favour and it is alleged that the Society in spite of passing resolution in its 31st AGM held on 05.01.2006, to transfer the shares in his favour, did not act upon it. Defendant No.3 denied that Karsanji executed purported Will, but without prejudice to the above it is stated by him that Karsanji distributed/disposed off his estate amongst his children during his life time and he expired on 31.08.2006 and the purported Will is dated 12.05.2006, which if at all was executed, shall only be effective from his death.
The Written statement also contain para-wise reply to the pleadings in the Plaint and the most relevant paragraphs in the written statement reads to the following effect-
"34. With reference of paragraph 14 of the Plaint, Defendant No.3 states that the contents thereof are a matter of record. Defendant No.3 craves leave to refer to and rely upon the said letter for its true and correct meaning and interpretation. Defendant No.3 denies that at no given point of time informed the Plaintiff, orally or otherwise, that the purported Will was kept with him, Defendant No. 3 denies that the said Karsanji executed the purported Will. Defendant No. 3 denies that the said Karsanji was misguided into executing the said Power of Attorney or the same was executed under duress, as alleged or otherwise. Defendant No. 3 states that the said Karsanji executed the said Power of Attorney out of his free will and knowing full well the consequences thereof. Defendant No. 3 denies that the Plaintiff or the other Defendants were not aware of the execution of the said Power of Attorney by the said Karsanji. Defendant No. 3 states that mere filing of frivolous proceedings is of no consequence.
35. With reference of paragraph 15 of the Plaint, Defendant No.3 states that the contents of the said letter dated 3rd February, 2009 only go on to show the malafides of the Plaintiff in as much as even after the Application for probate being dismissed in May, 2008 the Plaintiff continued to misrepresent that she was alleged the executrix appointed under the purported Will. Defendant No.3 denies that the Plaintiff was unaware of the fact that the said probate Application was dismissed on 5th May, 2008. Vide the letter dated 15th January, 2009 itself the Plaintiff's Advocates were informed that the said probate Application was dismissed. Admittedly, even thereafter the Plaintiff issued a letter to a Court of Law claiming that the said probate Application was pending."
"43. With reference of paragraph 23 of the Plaint, Defendant No. rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 18/93 Suit-3165-2010.odt 3 states that the question of co-operation for obtaining probate of the purported Will does not arise as the said Karsanji never executed the purported Will as alleged or otherwise. Defendant No. 3 denies that he was trying to usurp the properties of the said Karsanji as alleged or otherwise. Defendant No. 3 denies that said Power of Attorney was obtained by playing fraud and/or by exerting undue influence and/or coercion upon the said Karsanji as alleged or otherwise. I deny that Defendant No. 3 was operating any of the bank accounts of the said Karsanji after his death and / or appropriating and/or utilizing the monies lying in the same.
44. With reference of paragraph 24 of the Plaint, Defendant No. 3 denies that the said Gift Deed and the said Release Deed are illegal, void, unenforceable in law. Defendant No. 3 denies that the said Power of Attorney was obtained under duress and/or undue influence as alleged or otherwise. Defendant No. 3 states that the unilateral suggestions made in the said paragraph are irrelevant and of no legal consequence."
18] As regards the cause of action the written statement specifically plead as under :-
"52. With reference of paragraph 58 of the Plaint, Defendant No. 3 states that the Plaintiff has no cause of action to file the present suit and the same deserves to be dismissed with costs. Without prejudice to the foregoing and in view of the facts and circumstances mentioned hereinabove Defendant No. 3 states that the cause of action, if any, accrued upon the demise of the said Karsanji i.e. on 1st September, 2006. The present suit is filed on 30th October, 2010. Defendant No. 3 states that in the circumstance above the present suit is barred by the law of limitation and deserves to be dismissed on this ground alone."
19] On 31.01.2012, Ten (10) issues were settled by consent of parties however, in the wake of amendment to the written statement by order dated 07.04.2017 issue No.7 was deleted and in its replaced with issue nos.(vii) and (viii).
20] The issues which arise for determination before, as formulated and re-formulated by my Predecessor are as follows :
rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 19/93 Suit-3165-2010.odt "1) Does the Plaintiff prove that she has 1/6th share in the estate of her deceased father ?
2) Does the Plaintiff prove that the property listed in Exhibit and Exhibit D to the Plaint form part of the estate of the deceased father?
3) Does the Defendant No.3 prove that the immovable properties at Porbandar were transferred to the Defendant No.3 ?
4) Whether the Plaintiff proves that the Power of Attorney dated 18/06/2006 being Exhibit P to the Plaint, is not valid and therefore not enforceable for the reasons set out in Paragraphs 14, 23 and 24 of the Plaint?
5) Does the Plaintiff prove that the Gift Deed and Deed of Relinquishment both dated 22/06/2006 relied on by the Defendant No.3 being documents at Exhibit Q and Exhibit R to the plaint are illegal, not valid and not enforceable for reasons set out in Paragraphs 14, 23 and 24 of the Plaint ?
6) Does the Defendant no.3 prove that the monies in the bank accounts-i.e i)S.B. Account No.SBNREAC 369102020006103 with Union Bank of India, Juhu and ii) Account No. 10217 with Union Bank of India, Porbandar in the name/joint name of the deceased father were validly transferred to his account during the lifetime of the deceased father as alleged in Paragraph 11 of the written statement?
7) Whether defendant no.3 proves that Late Karsanji Rajguru by the said declaration dated 25th July 2006 had during the lifetime of Late Karsanji Rajguru disposed of all his movable and immovable properties and therefore the present suit is infructuous as stated by defendant no.3 in para 13(d) and 13(e) of the written statement?
8) Whether Defendant no.3 proves that in the last week of January 2012 for the first time defendant No.3 came to know about the Declaration dated 25th July 2006 and the said Declaration is made by Late Karsanji Rajguru as stated by defendant No.3 in para 13(a) to 13(b) of the written statement?
9) Whether the Plaintiff proves that the Defendant No.3 has illegally and without any authority transferred funds from the bank accounts of his deceased father ?
10) Whether the Defendant No.3 proves that the suit is barred by the Law of Limitation ?
xi) What Relief ? What Order ?"
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21] In order to substantiate her claim for partition and
entitlement of 1/6th share in the estate of deceased Karsanji, the Plaintiff Indira Rajguru entered into witness box and was cross-examined pursuant to her Affidavit of Evidence being filed. Similarly, since the claim is contested by Defendant No.3, he also filed his Affidavit in Evidence and was cross-examined during the trial.
Another witness who filed Affidavit and was cross- examined, is Advocate N.D. Kakkad, who was cross-examined on behalf of the Plaintiff, as he is a witness examined by the Defendant in support of execution of the POA as well as the Deed of Relinquishment and the Release Deed.
22] Amongst the 10 issues settled in the Suit, the burden was on the Plaintiff to prove issue Nos.(i), (ii), (iv), (v) and (ix), whereas, the Defendant No.3 was cast a burden to prove issue Nos.(iii), (vi), (viii) and (x) as he had raised the point of limitation.
The Suit filed by the Plaintiff for administration and partition of the estate left behind Mr.Karsanji Rajguru, seek a declaration of entitlement of 1/6th share, right, title and interest in his estate. On other hand, the Plaintiff seek cancellation of the POA dated 18.06.2006 alleged to be executed by Mr.Karsanji and the subsequent Gift Deed and Release Deed dated 22.06.2006 executed and registered by the Defendant No.3 based upon the POA granted in his favour by his father, late Karsanji.
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23] Coming to the issue No.1 AND 2 i.e. whether the Plaintiff
prove that the property listed in Exhibit C and D to the Plaint, form part of the estate of the deceased father, when the Exhibit C and D are perused, Exhibit C has enlisted the immovable properties belonging to the deceased and this include 8 houses situated at Advana in Porbandar, Taluka Gujarat and two other properties, being two flats situated in Kings Apartment being Flat No.601 and Flat No.402 alongwith a garage, whereas, Exhibit D has enlisted the movable properties, which include the monies and other valuables kept in lockers and/or accounts of/with various banks and it also include the following :-
b) Other ornaments kept in Flat No.402 and/or Flat NO.601 in Beach King's Apartment Co-operative Housing Society Ltd.
c) All other movable properties kept in different Banks in Mumbai and Porbandar in the form of NRI Deposits and NRI Saving Accounts in several banks in the lockers;
d) Deposits in the name of the said deceased in Union Bank of India, Juhutara Branch, Mumbai.
As far as clause No.(b) and (c) is concerned, Plaintiff has specifically averred in the Plaint that she do not have complete details of the bank accounts and jewellery and ornaments lying in the locker in Flat No.402 and/or 601 and she had called upon the Defendants to provide the complete details of the ornaments lying in the bank locker and the flats and elsewhere, if any.
24] The above averment of the Plaintiff is met by the Defendant No.3 in the written statement and in respect of the rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 22/93 Suit-3165-2010.odt immovable property, i.e. houses at Advana, Porbandar, Gujarat, the Defendant No.3 has specifically pleaded as under :-
"a. House at Advana, Porbandar, Gujarat;
The house in Advana stand on a plot of land, two pieces and parcel of which were owned by the said Late Karsanji and the other two by Mrs.Amrutben Keshavji Rajguru (Defendant No.3's Aunt) and one Mr.Jethalal.
STATUS : The plots owned by the said Late Karsanji and the houses thereon were transferred in Defendant No.3's favour by him in his lifetime under the provisions of the Bombay Land Revenue Code. The other two pieces and parcel of land were transferred by way of gift in favour of Defendant No.3 by Mrs.Amrutben Keshavji Rajguru and Mr.Jethalal."
In respect of Flat No.402 with reference to share certificate No.33, situated on 4th Floor, in Kings Apartment, the Defendant No.3 has given the following status :-
"STATUS : The said Karsanji gifted the said Shares in respect of Flat No.402 and the incidental rights in Flat No.402 to Defendant No.3 during his life time."
In respect of another flat, i.e. Flat No.601, where Karasanji staked 41.81% undivided interest, jointly shared with the Defendant no.3 to the extent of 36.35% and Defendant No.4 with holding of 21.84%, the status of the said flat is asserted in the Written Statement as below :-
"Status : The said Karsanji released his share of 41.81% in the said Shares in respect of Flat no.601 and in the incidental rights in Flat No.601 to the Defendant No.3 during his life time."
25] In the written statement, the Defendant has also given the status of the Bank accounts to the following effect :-
"II. BANK ACCOUNTS
a. SB Bank of Porbander
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STATUS : The SB Bank of Porbander & the Saurashtra Bank of Porbandar are one and the same. The details of the account held in the Bank are given below b. Saurashtra Bank of Porbander STATUS : Account held in joint name of the said Karsanji and Defendant No.4, herein. Monies therein were transferred to Defendant No.4 in the said Karsanji's life time.
c. Union Bank of India, 27 Maneck Mahal, Juhu Tara Road, Santacruz, Mumbai - 400 009;
i. Saving Bank account No.369102020006103 STATUS The Account still has a Rs.1,80,002/- in it. ii. Investment Certificate No.EM/TBA-A-4455407. STATUS: The Defendant No. 3 is not aware of the statue iii. FCNR Deposit A/c No. 369103910012429 STATUS: The account was held in joint name of the said Karsanji and Defendant No.3. The said Kersanji in his life time transferred all the amounts in the said account to Defendant No.3. The said account was closed in July, 2006.
iv.FCNR Deposit A/c No.369103910012431 STATUS: The account was held in joint name of the said Karsanji and Defendant No.3. The said Karsanji in his life time transferred all the amounts in the said account to Defendant No.3's UK account. The said amount was closed in July, 2006.
d. Union Bank of India, M. G. Road, Porbandar;
I. S.B. NRE 10217 STATUS : Account held in the joint name of the said Late Karsanji and Defendant No.3. Balance amount Rs.2817/-. ii. S.A. NRE 9170 STATUS : Account held in the joint name of the said Late Karsanji and Defendant No.3. Balance amount Rs.9042/-.
Iii. S.B. NRE 7640 STATUS : Account held in the joint name of the said Late Karsanji and Defendant No.4. Balance amount Rs.299/-. iv.S.B. NRE 9171 STATUS : Account held in the joint name of the Defendant NO.5 and the said Late Karsanji. Balance amount Rs.1213/-. v. S.B. NRE 10771 STATUS : Account held in the joint name of the said Late Karsanji and the Plaintiff. Balance amount Rs.6847/-.
vi. S.B. NRE 10172 STATUS : Account held in the joint name of the Defendant NO.4 and the said Late Karsanji. Balance amount Rs.1,01,620/-
vii. S.B. NRE 7522 STATUS : Account held in the joint name of the Plaintiff and the rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 24/93 Suit-3165-2010.odt said Late Karsanji. Balance amount Rs.607.20/-.
viii. NRE RUP EPR 0009/K4340 STATUS : Account held in the joint name of the Defendant NO.2 and the said Late Karsanji. Balance amount Rs.16,00,000/-.
ix. NRE RUPDR 00065/R3179 STATUS : Account held in the joint name of the Defendant No.5 and thes aid Late Karsanji. Balance amount - Rs.3,11,186/-. x. NRE RUPDRC 00110-15-4314 STATUS : Account held in the joint name of the said Late Karsanji and myself. Account closed on 16/6/2006.
xi. NRE RUPDRC 00120/13147STATUS : Account held in the joint name of the Plaintiff and the said Late Karsanjo. Balance amount - Rs.21,04,327/-.
Xii. FCNR GBP DR 2 0014/5 4338 (sic) STATUS : Account held in the joint name of the Defendant No.4 and the said Late Karsanji. Account closed on 15/6/2006.
xiii. FCNR GBP DR-2 00013-K4314 STATUS : Acount held in the joint name of the said Late Karsanji and Defendant No.3. Account closed on 5/7/2006.
xiv. FCNR GBP DR-2 00031 5000004339 STATUS : Account held in the joint name of the said Late Karsanji and Defendant No.4. Account is yet operational.
xv. FCNGBP DR-200013 K00000 4314 STATUS : Account held in the joint name of the Defendant No.5 and the said said Late Karsanji. Account is yet operational.
xvi. FCNGBP DR-200013 K00000 4314 STATUS : Account held in the joint name of Defendant No.5 and the said Late Karsanji. Account is yet operational.
xvii. FCNGBP DR-200015 K00000 4314 STATUS : Account held in the joint name of the DefendantNo.2 and said Late Karsanji. Account is yet operational.
xviii. FCNGBP DR-200015 K00000 4314 STATUS : Account held in the joint name of the Defendant No.2 and said Late Karsanji. Account is yet operational.
xix. FCNGBP DR-200015 K00000 4314 STATUS : Account held in the joint name of the Defendant No.2 and said Late Karsanji. Account is yet operational.
xx. FCNGBP DR-200013 K00000 4314 STATUS : Account held in the joint name of the Defendant No.2 and said Late Karsanji. Account is yet operational.
e. ICICI Bank, Suruchi Hospital, Wadia Road, Porbandar Branch, Gujarat.
I. AC No.020715075069 - Fixed Deposits STATUS : Account held in the name of the said Late Karsanji. Account is yet operationa.
ii. AC No.020701075245 - NRE Saving Acount.
26] The claim of the Plaintiff that the property listed at
Exhibit C and D form part of the estate of their deceased
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father is not contraverted by the Defendant.
The Plaintiff and the Defendants, the Parties to the Suit are Hindu and it is not in dispute that the Plaintiff and Defendants are the siblings and they are the children and legal heirs of late Karsanji Rajguru and on intestacy under the provisions of Hindu Succession Act, 1956, the Plaintiff and each of the Defendants would have been entitled to 1/6th share in the estate of their deceased father, however, the Defendant has specifically pleaded his case that, their deceased father had, during his life time, distributed all his assets amongst his children and as a result there is no property left behind by him at the time of his death i.e. on 31.08.2006, for being partitioned or administered.
As far as the property enlisted at Exhibit C and D to the Plaint are concerned, there is no contest that it belong to the deceased father, except the case of the Defendant, from his written statement, that, after their mother's death on 26.10.1988, all the ornaments were distributed amongst the Plaintiff and Defendant No.4, the two sisters, but this was prior to the death of Karsanji.
As regards the immovable properties enlisted at Exhibit C, the Defendant No.3 has raised a contest on the claim of the Plaintiff that she is entitled for 1/6th share therein as according to him, during the life time of Karsanji, he had executed POA, which resulted in execution of the Relinquishment deed and the Gift Deed in his favour and therefore, at the time of his death, no property remained to be succeeded to, by the other Defendants as well as the Plaintiff as the property being self acquired property of Karsanji, was rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 26/93 Suit-3165-2010.odt distributed by him, by his free Will amongst his children, which include the Defendant No.3 himself.
Issue No.2 thus stands answered in the affirmative.
27] Coming to the third issue i.e. "Does the Defendant No.3 prove that the immovable properties at Porbandar were transferred in his favour", the burden is upon the Defendant No.3 Dhiraj Rajguru, as Exhibit C has enlisted the 8 properties at Porbandar and he has adopted a specific stand in the written statement filed, which I have reproduced above. In addition, in Para 14(d) of the written statement, the Defendant No.3 has pleaded as under:-
" The house in Advana stand on a plot of land, two pieces and parcel of which were owned by the said Late Karsanji and the other two by Mrs.Amrutben Keshavji Rajguru (Defendant No.3's Aunt) and one Mr.Jethalal. The plots owned by the said Late Karsanji and the houses thereon were transferred in Defendant No.3's favour by him in his lifetime under the provisions of the Bombay Land Revenue Code.
28] In the examination in chief, the Defendant No.3, has reiterated this fact and has produced certified copy of the Village Form No.8A, Village Form No.2 and Village Form No.6 in the compilation of original documents at Sr. No.1 to 3, though these documents are not admitted in evidence.
The above stand was reflected in the objections filed by the Defendant No.3 alongwith Shakuntala Rajguru (Defendant No.4) in the proceedings filed by the Plaintiff, for grant of probate, before the Senior Civil Judge, Porbandar and while raising the objection in January 2007, in Para 22, a specific rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 27/93 Suit-3165-2010.odt stand was adopted that immovable properties in village Advana remained in the name of opponents, as owners with rights of possession and enjoyment. Amongst the immovable properties, Amrutben, sister of the deceased Karsanji, had gifted her property by a registered Gift Deed on 19.06.2006 to Defendant No.3 and even Jethabhai Dave the power holder of Karsanji also gifted his share by a registered Gift Deed.
Pursuant to this statement, there was no challenge raised by the Plaintiff to these transfers even till date.
29] The learned counsel Mr.Shah, in addition, has also submitted that while under cross-examination Defendant No.3, was shown the certified copy of the Application filed by Defendant No.3, in the court of Civil Judge, Senior Division, Porbandar, seeking a declaration that he is the owner of the property described in Schedule A and B together with possessory occupation rights and Probate/Letters of Administration with Will, may issued in respect of these properties. In Para 4 and 5 of the Plaint, a specific pleading is contained to the following effect :-
4. Out of the immovable properties mentioned in Schedule-
C as above, there were following Deli-Houses, immovable properties, houses at village Advana.
Village Form Sq. Meters
No.
1. 356 144-64-05
2. 537 393-44-65
3. 137 33-00-90
4. 509 130-35-50
During his life time the father of this petitioner decided to give the aforesaid immovable properties to me and on the date 21-07- 2006 or thereabout gave consents and made applications and had transferred/ got the same transferred to my name in the revenue record. The entry in respect thereof has been certified lawfully in Village Form No.6. True copy of the same is produced herewith rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 28/93 Suit-3165-2010.odt for Your Honour's knowledge. And since then I, the petitioner, have been and have become absolute independent owner of the aforesaid properties together with possessory-occupation rights. And the perfect respondents were from the beginning aware of transfer of the same to my name in this manner by our father. The present respondent Nos.1 and 2 have neither raised nor submitted any objection-dispute against this transfer till this day.
5. Further, out of the immovable properties mentioned in Schedule-C, the immovable property being the land bearing Village Form No.2, 507 and Plot No.8/A, admeasuring 139-35-50 sq. mtrs. was of the ownership and in the possession and occupation of my maternal aunt (father's sister) Amritben Keshavji Rajyaguru. My maternal aunt Amritben Keshavji Rajguru gifted this immovable property being the house to me, the petitioner, vide the Gift Deed dated 19-06-2006 bearing registration No.3844 and since then I, the petitioner, have been and have become sole, absolute independent owner of the aforesaid immovable properties together with possessory- occupation rights. Xerox copy of the said registered Gift Deed is produced herewith for Your Honour's knowledge.
6. Further, out of the properties mentioned in Schedule- C, the residential land bearing Khata No.536 of (Village Form No.) 8/A, admeasuring 143-80 sq. mtrs. was of the ownership and in the possession and occupation of Jethabhai Dave and Shri Jethabhai had appointed our father as the Constituted Attorney in respect of this property; and as the Constituted Attorney of Jethabhai my father gifted the same to me, the petitioner, vide the Gift Deed dated 29-07-2006 bearing registration No.4730; and since then I, the petitioner, have been and have become sole, absolute independent owner of the aforesaid immovable properties together with possessory-occupation rights."
30] The aforesaid circumstance, is, therefore, alleged to be well within the knowledge of the Plaintiff, but till date no steps have been taken to raise challenge in respect of the same. It is for this reason, I must hold that the Defendant no.3 has proved that the immovable properties at Porbandar were transferred to him.
31] I shall now deal with Issue No.4 alongwith Issue No.5 in a composite manner, as it is the POA dated 18.06.2006, which rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 29/93 Suit-3165-2010.odt is pleaded to be the basic document resulting into the execution of Gift Deed and Deed of Relinquishment on 22.06.2006. The burden to prove Issue Nos.4 and 5 is on the Plaintiff.
It is the pleaded case of the Plaintiff that in the letter addressed by the Advocate for Defendant No.3 on 15.01.2009 responding to the Plaintiff's Advocate's letter dated 09.12.2008 and 05.01.2009, Mr.Dhiraj claim the rights in the two suit flats and one garage in Kings Apartment , by projecting the claim on the basis of POA dated 18.06.2006 and two documents dated 22.06.2006 and the Plaintiff's pleaded case is, despite being aware that their father had executed a Will, Defendant No.3 with malafide intention avoided to hand over the original Will to her, though he was aware that she had filed Application for Probate in the Court at Porbandar. As per the Plaintiff, prior to this point of time, Dhiraj had never intimated to any one much less to the Plaintiff about the alleged documents under which he was claiming his right to the two flats and one garage.
Alongwith this letter the Advocate also forwarded the copies of the Gift Deed and Release Deed to the Plaintiff's Advocate.
On 20.01.2009, the Plaintiff responded by alleging that the Defendant No.3 had executed the Deeds as Agent of the deceased and under the Contract Act, an Agent could not execute documents for self and hence both the Deeds are illegal, void and unenforceable in law and it was nothing but an attempt to deny the rights to the Plaintiff flowing from the Will. Hence, doubt is expressed about execution of these rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 30/93 Suit-3165-2010.odt documents by stating that the Will was executed before the alleged execution of the POA and the deceased was the Executor of the Will as well as the POA and the subsequent document ought to have found a mention of the Will, as by executing the said document, the legacy under the Will would stand revoked or modified to the extent of the POA.
An apprehension is also expressed by Indira, that the deceased was misguided to execute the POA and was unaware of its implications or consequences and he must have been compelled to do so by exerting pressure or keeping him under duress. It is also the case of the Plaintiff that even the other heirs of the deceased were unaware of execution of such POA, ,Gift Deed/Release Deed in favour of Defendant No.3, as the Defendant No.5 during the pendency of the application for Probate filed by the Plaintiff, had filed Civil Application No.1/2009 for issuance of succession certificate and a public notice was accordingly issued on 24.01.2009, where there was a reference of the execution of the Will by the deceased on 12.05.2006 and the Plaintiff being appointed as the Executrix.
32] In the written statement, the Defendant No.3 specifically pleaded as under :-
"e. The said Karsanji out of his own free will executed a Power of Attorney dated 18th June, 2006 (hereinafter referred to as "the said Power of Attorney") thereby, inter alia, appointing Defendant No. 3 as his true and lawful attorney and authorizing him to sign and execute the said Deed of Gift transferring his right, title and interest in the said Flat No. 402 in Defendant No. 3's favour and to sign and execute the said Deed of Release denouncing his share in the said Flat No. 601 and Garage No. 8 in Defendant No. 3's favour. The said Karsanji executed the said Power of Attorney as he was rendered house bound and was not in a position to travel to Mumbai for executing/registering the rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 31/93 Suit-3165-2010.odt said Gift Deed and the said Release Deed. The said Power of Attorney was drafted by M/s. Bacchubhai Munim & Co., Advocates & Solicitors, Mumbai, Maharashtra.
f. Pursuant to the said Power of Attorney, the Defendant No. 3 executed the. Deed of Gift dated 22nd June, 2006 (hereinafter referred to as "Deed of Gift") and the Deed of Release dated 22 nd June, 2006 (hereinafter referred to as "the said Deed of Release) as a constituted attorney on behalf of the said Karsanji. The said Gift Deed and Deed of Release were duly executed, stamped and registered as required by law."
In furtherance thereof, according to Defendant No.3, on 20.07.2006 itself he submitted all relevant documents to Mr. Ashok Shaha, the Secretary of the Society in order to transfer the shares and share certificate in respect of Flat Nos.402 and 601 in his name and the Society passed a Resolution in its 31 st AGM held on 05.11.2006 to transfer the shares of Karsanji in Flat NO.402 in his favour, subject to completion of the formalities of furnishing requisite Indemnity Bond and NOC of other member i.e. Defendant No.4 and accordingly, on 23.08.2006 Indemnity Bond was also submitted to the Society.
The whole process, however, came to a grinding halt, when the Society received a notice dated 19.10.2006 from the Registrar of Court of Civil Judge, Senior Division, Porbandar, Gujarat, calling upon, to give the status of the flats and on 20.01.2009 the Society put the transfer of the Flats in Defendant No.3's favour, on hold.
33] The Plaintiff has hence raised a stand, seeking a declaration that the POA as well as the Gift Deed and Relinquishment Deed are void as according to her, the said documents were executed under 'duress' and undue 'influence' and in Para 24 of the Plaint, the Plaintiff has rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 32/93 Suit-3165-2010.odt pleaded her case as under :-
"24. The Plaintiff states and submits that on the perusal of the copies of alleged Gift Deed and alleged Release Deed, it can be seen that Defendant No.3 has executed both the Deeds as the agent of the said deceased as well as for self. A copy of the alleged Power of attorney dated 18th June, 2006 has been annexed to the said Deeds. Defendant No.3 claims that a Power of Attorney was granted by the said deceased on 18th June, 2006, to Defendant No.3 for the alleged purposes mentioned therein. A person cannot execute a document in dual capacity i.e. as an agent and in his personal capacity. In the circumstances, it is submitted that the alleged Gift Deed and alleged Release Deed are illegal, void, unenforceable in law and hence not binding. The Plaintiff further says that the alleged Power of Attorney was obtained under duress and undue influence exerted on the said deceased by Defendant No.3 who tried to have control over the said deceased. Moreover, when the deceased had executed his Last Will and Testament just over a month prior to the execution of the alleged Power of Attorney, he could not have executed the alleged Power of Attorney, as in spite of his advanced age the mental health said deceased was sound and had a very sharp memory and he would have obviously remembered the execution of the Will. The deceased at least would have made a mention of the Will in the Power of Attorney, thereby modifying the Will or revoking it."
34] When the Affidavit of evidence of the Plaintiff, as well as the additional Affidavit of Evidence is carefully read, she has deposed that the Defendant No.3 emotionally blackmailed the deceased and exerted tremendous pressure and her late father bitterly complained about this to her. She also deposed that the deceased told her that his financial affairs were looked after by Defendant No.3 and he was taking advantage of his frail and ailing condition and making the deceased sign papers for grabbing the property.
The Plaintiff, in the wake of the amendment carried out in the written statement by Defendant no.3, filed an additional Affidavit of Evidence on 15.05.2007, where she deposed as under :-
rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 33/93 Suit-3165-2010.odt "3. I immediate made plans to return to India and visited him. Defendant no.1 arrived 2 days later. My father informed me that he wanted me to take charge of all his estate. My father at that time informed me that Defendant no.3 was pressurizing him to execute a Power of Attorney. My father also informed me that Defendant No.3 was pressuring him to execute a Power of Attorney in his favour since last 2 - 3 years, which my father was time and again refusing to execute.
4. My aunt Ms.Amrutben Rajguru, was also present in the same room at that time, when my father requested me to take charge of the estate of my father. My aunt told me that if Defendant No.3 would take charge of the estate, he would throw her out of the house."
"7. My father was extremely tired of the pressure exerted by Defendant No.3 and had realized that if he died without making Will, Defendant No.3 would usurp his entire property and nobody would get any money whatsoever."
In her additional Affidavit on oath, she also depose about the purported declaration dated 25.07.2006 which was subsequently discovered by the Defendant No.3 and brought on record by amending his written statement, to support his case that the deceased Karsanji had already disposed off his properties during his life time and in this regard she specifically assert to the following effect :-
"20. The said purported declaration dated 25th July, 2006 could not have been executed by my father as :
"a. The signature of my father on the said purported Declaration dated 25th July, 2006 (said Declaration) is ex facie forged and fabricated. The signature is not that of my father. b. Even the language used in the said purported Declaration th dated 25 July, 2006 is not of my father.
c. My father was very professional in his approach and was very meticulous in his work. He could not have made the said Declaration in such a manner - especially when the said purported Declaration is made in a completely haphazard and unprofessional manner as compared to the Will dated 12 th May 2006, in which my father clearly bequeathed his Estate to his family members and donated to the local community as well.
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35] The Plaintiff is subjected to extensive cross-examination and upon reading of the answers of the Plaintiff to the questions put to her as assertions in the Plaint and in her evidence Affidavit, the claim of the Plaintiff about the execution of the Will and objection to the execution of POA and the two subsequent documents in favour of her brother Dhiraj, being hit by undue influence and coercion, appear to become frail.
The uncertainty of her claim clearly surfaces through her cross-examination and the following excerpts from her cross-examination would bring about the dubious nature of her claim, when she assert her right on the basis of the alleged Will, which was never produced, which resulted in dismissal of the probate proceedings and her doubt as regards execution of the POA and the two subsequent documents in favour of the Defendant No.3.
36] In her Affidavit of evidence dated 17.03.2012, she has specifically asserted that the last Will and Testament executed by her father on 12.05.2006 was in custody of Defendant No.3, however, in her additional Affidavit of Evidence filed on 15.05.2017, she had stated that the Will was sent to Advocate Kakkad for having it stamped and sealed and accordingly, the stamped and sealed Will was given to her father, which was put in the cupboard.
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When confronted, which of the statements is correct, she assertively state that the additional Affidavit of Evidence is the correct version and she offers a clarification that after the Will was put in possession of her father, the Defendant No.3 took its custody.
The Plaintiff has specifically pleaded that Defendant No.5 informed her about the Defendant No.3 being in possession of the Will and when extensively cross-examined as to at what point of time and whose presence this disclosure was made, the Plaintiff has answered, by stating that her sister Shakuntala (Defendant No.4) and Kishor ( Defendant No.2) were present and when specifically asked where the meeting took place with Defendant No.5, she state that it was in London. When asked , whether anybody else was present with Defendant No.5, when it was disclosed to her, she state that nobody was present as it informed to her by Defendant No.5 on telephone.
The plaintiff is also confronted with her pleading, in the probate petition, and though she did not produce the Proceedings, she was confronted with a certified copy of the Probate Petition where it was pleaded by her that her father was residing at village Advana and he had kept the original Will in safe custody of his Advocate. Her answer to the above question is "the statement made in the Probate Petition is on a belief that my father's Advocate would have the original Will in his safe custody.
37] The Plaintiff was also asked as to whether in the Probate
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Petition filed by her, any witness summons was issued, either to Defendant No.3 or Advocate Kakkad calling upon them to produce the original Will, and her answer is in the negative.
Further she was also asked, whether prior to dismissal of the Probate Proceedings, i.e. on 05.05.2008, did she write any letter to Defendant No.3 or Advocate Kakkad for production of the original Will, her answer is once again in the negative.
Despite the above answers, she deny the suggestion that her case that the original Will is either with Defendant No.3 or Advocate Kakkad, is false.
38] In order to ascertain the veracity of her claim as to how she came in possession of the copy of the Will, the Plaintiff is specifically asked whether copy of the Will is furnished to her by her father and she answered in the negative. Since it is her case that she contacted the attesting witness of the Will Mr. Natubhai Paun, who handed over a copy of the Will of her father, to her, she was asked, when was the copy of the Will was made available to her and her answer is on 16 th day after her father passed away.
The Plaintiff was also asked as to how did she learn that Natubhai Paun was having a copy of the Will to which answered by deposing, that since Mr.Natubhai Paun was attesting witness to the Will, and she was told by her brother that there was no Will, then she contacted Natubhai Paun , who told her that he had a copy of the Will. When asked whether in whose presence the copy was handed over to her, she state that it was in presence of Defendant No.1. But when rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 37/93 Suit-3165-2010.odt particularly asked that his fact was not mentioned in her Affidavit of Evidence, the Plaintiff responded that she cannot give the reason for the same.
39] The Plaintiff was cross-examined on behalf of Defendant No.3 on certain vital aspects and she has responded in the following manner :-
"28 Q. Did you ever show Defendant no.3 the copy of the Will that you claim or allege was made by your father ?
Ans. When I had a copy of the Will in my hand, I left for London. When I returned and approached the Court in Porbunder for Probate, a copy of the original Will in Gujarati and an English translation were sent alongwith the Petition to all concerned including the 3rd Defendant. I did not separately or independently of the Probate Petition send a copy of the Will to Defendant No.3.
41. Q. (shown paragraph 5 of the Additional Evidence Affidavit) Having regard to what you have said, do you know personally for a fact whether your father did or did not execute a Power of Attorney in favour of Defendant no.3 ?
Ans. I am certain that he did not. 42. Q. Do you know if your father took any action
against Defendant No.3 for pressurising him as you have alleged in paragraph 5 ?
Ans. He did not take any legal action. He however did call me and tell me about what the 3rd defendant was doing.
44. Q. Was anyone else present when you father said what you claim he did, in paragraph 6 of this Affidavit ?
Ans. Defendant No.1 was present."
40] About the claim of the Plaintiff that the condition of her
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father was deteriorating and she was catering to his health, the following answers given by her reflect otherwise :-
53. Q. Did you consult a doctor about your father's condition as described in paragraph 127 Ans. No.
54. Q. Did you make any attempt to resume the medication being administered to your father and which you allege the 3rd Defendant stopped or interrupted?
Ans. By then all medication had been disposed of so here was nothing to resume.
55. Q. Did you ask for a fresh stock of medication?
Ans. No.
56. To Did you see a prescription from a Doctor at that time ?
Court :
And. No. I did not.
57. To Did you ask Amrutben for the prescription or list of
Court: medicines?
Ans. Amrutben told me that the medication had been disposed of
but I did not ask her for either a list or a prescription.
41] In her additional Affidavit in lieu of Examination filed on 15.05.2017, the Plaintiff has deposed about some additional facts which were conspicuously absent in her first Affidavit of Evidence, when she deposed that one week before her father died, he called her and she informed him that she is coming to see him, but he resisted her visit by saying that if she came to India she would be embroiled in arguments with Defendant Nos.3 and 4 and when she spoke to her aunt who had disclosed to her that Defendant Nos.3 and 4 were quarrelling and fighting with him about the Will and therefore, her father never wanted that she should come to India and get involved in arguments.
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She state that two days prior to the death of the father i.e. on 28-29th August, she visited India, when Defendant No.3 had left and she found her father to be very weak, tired, stressed and hassled. In Para 12 of the additional Affidavit, she described that he looked as if he was beaten up and it seem that he was not getting adequate sleep, as he was pale and drowsy and upon enquiry, she was informed by her aunt that, Defendant No.3 had stopped him from taking medicine and Defendant Nos.3 and 4 had constant arguments with him about property and she was told by her aunt that her father was extremely fed up with the constant pressure, bickering etc. going on in the family.
In Para 15 she state that she left for Shri Lanka as she wanted to attend a business meeting and she would come back in two days and sort out the issues with Defendant No.3. When she reached Shri Lanka, she came to know that her father had passed away and, therefore, she came back to attend the last rites of her father.
In Para 16, she deposed about she contacting Natubhai Paun to find out whether her father had changed his mind about the last Will and was told that as far as he was aware, there were no changes and he had a copy of the last Will, which was handed over to the Plaintiff and Natubhai also informed that he received a threatening call from Defendant No.3 not to get involved in the family matters. Thereafter, it her version that she went to London, got the Will translated, came back to India and filed Probate Proceedings.
In the cross-examination, she was specifically asked as to why she did not state all these facts stated by her in Para 11 to rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 40/93 Suit-3165-2010.odt 14 and 16 to 18 of the additional Affidavit of Evidence, which is not to be found in the Plaint or in the first Affidavit of Evidence, what she answered is interesting to be taken note of, "I was often not asked the right questions".
42] In the entire case set up by the Plaintiff to claim that the POA executed by her father under which the Defendant No.3 got the Gift Deed and the Relinquishment Deed executed were under 'duress' and 'pressure' from Defendant No.3, except the assertion in the additional Affidavit, that too after a lapse of almost 7 years from filing of the Plaint and 5 years after the filing of her original Affidavit of Evidence i.e. 17.03.2012, the Plaintiff has made an attempt to improve her case, by describing the physical condition of her father. When she filed the Plaint, she never provided any details of his health condition, except saying that Defendant no.3 has got the documents executed under 'duress'. However, except use of the word 'duress/undue influence' there is no other pleading to be found.
The Plaint as well as the Affidavit of Evidence lack particulars demonstrating how the act of Defendant No.3 amounted to undue influence and coercion, nor any particulars are furnished except the bald statement that Defendant No.3 got the POA executed under duress and since the Will was executed by her father, it was improbable that he could have executed a POA in favour of Defendant No.3.
rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 41/93 Suit-3165-2010.odt 43] The law as regards undue influence and coercion is well settled. In Bishundeo Narain & Anr. vs. Seogeni Rai & Ors. 1,
Justice Vivian Bose speaking for the Constitution Bench pronounced upon this aspect by the following observations :
"[24] We turn next to the questions of undue influence & coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate & separable categories in law & must by separately pleaded.
[25] It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence & coercion, the parties pleading it must set forth full particulars & the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, & the same applies to undue influence & coercion. See 0. 6, R. 4, Civil P. C."
"[27] We will deal with the case of coercion first. It will be seen that the pltfs'. case regarding that is grounded on the single allegation that their father was threatened with death. When all the verbiage is pleared away, that remains as the only foundation. The rest & in particular the facts set out in paras. 8 to 12 about the ferocious appearance of Firangi Rai & his allegedly high-handed & criminal activities & his character, are only there to lend colour to the genuineness of the belief said to have been engendered in Ghughuli Rai's mind that the threat of death administered to him was real & imminent. But as regards the threat itself, there is not a single particular. We do not know the nature of the threat. We do not know the date, time & place in which it was administered. We do not know the circumstances. We do not even know who did the threatening. Now when a Ct. is asked to find that a person was threatened with death, it is necessary to know these particulars, otherwise, it is impossible to reach a proper conclusion.
[28] It was contended that it is not necessary for a pltf. to give particulars & if the other side is not satisfied, there are provisions in the Code which entitle him to ask for them. That is a grave misapprehension."
1 AIR 1951 SC 280 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 42/93 Suit-3165-2010.odt 44] Further, another Constitution Bench decision in case of Ladli Parshad Jaiswal vs. The Karnal Distillery Co. Ltd. Karnal & Ors.2, by relying upon the decision of Privy Council in Satgur Prasad. vs. Har Narain Das3, exphasized upon the necessity of specific pleading where the party relies upon misrepresentation, fraud, undue influence and it is specifically highlighted in the following words :-
"(19)Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In Satagur Prasad v. Har Narain Das, 59 Ind App 147: (AIR 1932 PC
89) the Privy Council held that in a suit to set aside a deed on the ground that it was procured by undue influence and fraud, the finding that it was so procured is a finding of fact and is not liable to be reopened if fairly tried. Under the Civil Procedure Code, a second appeal does not lie to the High Court, except on the ground specified in the relevant provision of the code, prescribing the right to prefer a second appeal, and the High court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross of inexcusable the error seem to be" (Mt. Durga Choudharain v. Jawahir Singh Choudhri, 17 Ind App122 (PC)). But the challenge before Bishan Narain, J, to the decision of the District Judge was founded not on the plea that appreciation of evidence was erroneous, but that there were no adequate particulars of the plea of undue influence, that the particulars of facts on which undue influence was held established by the District Judge were never set up, that there was no evidence in support of the finding of the District Judge and that burden of proof on a misconception of the real nature of the dispute was wrongly placed on the plaintiff. A decision of the first appellate Court reached after placing the onus wrongfully or based on no evidence, or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision."
45] A reference is also made to the earlier decision in case of Bishundeo Narain (supra) in Para 26, the relevant observation is to be found as regards the burden to prove that a transaction is vitiated on account of undue influence.
2 AIR 1963 SC 1279
3 AIR 1932 PC 1989
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"26. A transaction may be vitiated on account of undue influence where the4 relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction : he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained, an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in, a position to dominate the will of another where he holds al real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, ill- ness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-sec. (2)) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But sub-sec. (3) has manifestly a limited application: the presumption will only arise if it is establish- ed by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift."
46] The learned counsel Mr. Shah for Defendant No.3 has also relied upon a Three Judge Bench decision of the Apex Court in the case of Subhas Chandra Das vs. Ganga Prosad Das Mushib and others4, where it is held that the Court trying a case of undue influence must consider two things, mainly the relations between the Donor and Donee and whether the Donee used that position to obtain an unfair advantage over the Donor. It is categorically held that merely because the parties were related to each other or merely because the Donor was old or of weak character, no presumption of undue influence can arise and in the peculiar circumstances that the grandfather making gift of a portion of his property to his only grandson, a few years before his death was held to be not a transaction unconscionable, on the face of it.
When the Court was called upon to examine whether undue influence was exercised or not, with reference to Order 4 AIR 1967 SC 878 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 44/93 Suit-3165-2010.odt 6 Rule 4 of the CPC and by referring to the decision in case of Ladli Parshad Jaiswal (supra), the following conclusion was drawn:
"25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstance that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable trans- action. Moreover, we cannot lose sight of the fact that if Balaram was exercising un- due influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."
47] What is thus essential is, if a plea is to be based on fraud, undue influence etc., the necessary evidence being placed on record by the Plaintiff to prove that the Defendant was in a position to dominate the Will of the Donor and merely because he is of old age and he had executed a Will in favour of a person long back, would not necessarily lead to an inference that the Gift Deed was on account of undue influence.
48] Facts, somehow similar to the facts involved before me, Mr.Shah has relied upon a decision delivered by Himachal Pradesh High Court, in Roshan Lal and Others vs. Kartar rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 45/93 Suit-3165-2010.odt Chand and others5, where in a second Appeal before the High Court, the issue arose in the peculiar facts, that one Hushnaki, the common ancestor of the parties, was owner in possession of a land situated at Tika Naugran, Tahsil and District Hamirpur and on his death his five sons inherited his estate in equal share i.e. 1/5th share each. The Plaintiffs are successors of three of the sons whereas the Defendants are the successors of two others including Shri Sunder, who died issueless and the dispute between the parties is in respect of his estate.
49] According to the Plaintiffs, Sunder had executed a Will when he bequeathed his property in favour of successors of his four brothers in equal share i.e. 1/4th each and accordingly they claimed 3/4th share of the property of Sunder under the Will and as far as the remaining 1/4th of his property, falling to the share of the Defendants, their case was that, they were inducted as tenants at Will and they acquired proprietary rights. The Plaintiffs, therefore, sought a direction that they have become owners of the property of Sunder to the exclusion of Defendants.
The Defendant Kartar Chand and other Defendants filed written statement and denied the case of the Plaintiff. Though they admitted that Sunder had executed a Will, but they pleaded that the Will was cancelled by Cancellation Deed and Sunder had adopted Kartar Chand as his son and thereafter executed an Adoption Deed and, therefore, he succeeded to his estate. Apart from this, it was also pleaded that Sunder had 5 AIR 2002 Himachal Pradesh 131 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 46/93 Suit-3165-2010.odt executed a Gift Deed in favour of Kartar Chand, where he gifted whole of his property in his favour as he was in possession thereof. It was denied that any fraud, misrepresentation or undue influence was played upon Shri Sundar.
In dealing with this aspect and the case of fraud, misrepresentation and undue influence, what is held by the learned single Judge is necessary to be reproduced :-
"8.Learned Counsel for the plaintiffs has taken this Court through the evidence to urge that the gift deed Ex.D2 and the cancellation deed, Ex.D3 were the result of undue influence exercised upon Shri Sunder by defendant Kartar Chand, his parents and his father-in-law which can be inferred from the facts and circumstances proved on record that he was 85 years of age, not keeping good health and was residing with the family of defendant Kartar Chand and also the fact that Shri Sunder had already executed a Will dated 6-1-1969. Ex. P.2, bequeathing his property to all the successors of his brothers in equal shares and there were no reasons to cancel the said Will and give his entire property to defendant Kartar Chand only.
9.The finding that gift deed Ex.D.2 was executed by Shri Sunder with his free Will and there was no undue influence played upon him by defendant Kartar Chand or any other members of his family, is a finding of fact arrived at by the District Judge on the basis of evidence on record and this Court is not supposed to re- appreciate the evidence to disturb this finding unless it is shown that either any material evidence is not taken into account or misread and mis-appreciated, which the learned Counsel has not been able to successfully establish. The District Judge has rightly relied upon the evidence of Parmodh Singh, DW-3 and Kanshi Ram. DW-4, attesting witnesses to hold that the gift deed Ext. D.2 was executed and got registered before the Sub-Registrar, Barsar by Shri Sunder, as no purposeful cross-examination was done to either of them witnesses or to DW-1 Kartar Chand to elicit from any of these that the execution of the gift deed was the result of fraud, misrepresentation or undue influence. In fact, after going through the plaint this Court finds that except making general allegations that the adoption deed, gift deed and cancellation deed were the result of fraud, misrepresentation and undue influence, the particulars as envisaged under Order 6, Rule 4 C.P.C. have not been stated. Order 6, Rule 4 is as under:-
"Particulars to be given where necessary:- In all cases in which rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 47/93 Suit-3165-2010.odt the party pleading relies on any mis-representation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items if necessary shall be stated in the pleadings."
10.Referring to this provision the learned Judges of the Supreme Court in Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280 have held in para 25:
"It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure form them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence and coercion."
13. Therefore, in view of the settled legal position, the District Judge has rightly held that in the absence of pleadings giving necessary particulars of fraud, mis-representation and undue influence the evidence led to that effect cannot be looked into. Otherwise also, as held by District Judge there is no evidence adduced by the plaintiffs to prove that defendant No.1 Kartar Chand was in a position to dominate the Will of Shri Sunder and the execution of the gift deed was conscionable."
50] Mr. Mody for the Plaintiff, has placed relied upon the decision of the Apex Court in the case of Krishna Mohan Kul alias Nani charan Kul and another vs. Pratima Maity and others6, to submit that normally the burden to prove is on the person who alleges fraud, undue influence or misrepresentation, but when a person is in a fiduciary relation with another, the latter is in a position of active confidence and burden of proving the absence of fraud, misrepresentation or undue influence is upon the person dominating the position as he has to prove that the transaction is genuine and bonafide.
I do not think that this proposition of law apply to the 6 (2004) 9 SCC 468 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 48/93 Suit-3165-2010.odt facts in hand, as if not the son who will be in a dominating position as against his father, but it has to be otherwise and merely because the deceased was of old, considering the nature of relationship between the father and the son, it cannot be said that the son was in a fiduciary relationship with the father instead the converse being true.
51] Mr. Mody has also placed reliance upon the decision of the Apex Court in the case of Neeraj Dutta vs. State7, to submit that circumstantial evidence is equally direct evidence and it has to be proved.
In the present scenario, while appreciating the case of the Plaintiff and the Defendants, merely because it is the case of the Plaintiff that she assumed that Defendant no.3 exerted pressure upon the deceased father for executing the documents, is not sufficient to discredit the execution of the documents as even according to the Plaintiff herself, the Will was executed by her father in her favour, but since she was unable to produce the same, she has no way then to claim 1/6th share and administration of estate of her father. Otherwise, the Plaintiff's case to the Will which is depicted from the probate proceedings, is to the effect that her father considered her to be the only worthy heir to whom he was interested in entrusting his property, to the exclusion of others. However, since the Will has not been produced, the Plaintiff has lost the opportunity to claim the entire property of the deceased and therefore she has now deemed it fit to stake her 1/6th share of the property of her father and for 7 (2023) 4 SCC 731 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 49/93 Suit-3165-2010.odt administration of estate.
52] By reference to the above, the position of law being well settled to the effect that general allegation of fraud/undue influence are insufficient for any Court to take notice, however strong the language in which the allegations are couched and a general plea can never serve the purpose, it was imperative for the plaintiff to have pleaded and proved the allegation by adducing cogent and reliable evidence as to the nature of the influence exercised, and the unfair advantage obtained by the Defendant no.3. Merely by raising a bald plea that the Defendant No.3 coerced the deceased to execute the POA in his favour and which resulted in execution and registration of the Relinquishment Deed thereby conferring the right, title and interest in the two flats and garage exclusively to the Defendant No.3, in absence of the particulars of undue influence being pleaded, merely by making an assertion in the Affidavit of Evidence, do not deserve its acceptance as a proof of the assertion.
The pleadings of the Defendant not being in conformity with Order 6 Rule 4 of the CPC, merely by improving the version in the Affidavit of Evidence by stating that the deceased was looking stressed, harassed and in a bad shape , do not take the case of the Plaintiff any further.
In any case, from the cross-examination it is evident that she did not attended to his medication or the follow up treatment, nor did she, at the relevant time, confront the Defendant No.3 if she was harnessing under any impression rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 50/93 Suit-3165-2010.odt that her father was being harassed by him. In fact the Plaintiff as well as the Defendant No.3, were not residing with the deceased and when he suffered a fall, they rushed to him and visited him sometimes together and sometimes behind back of each other. It is pursuant to a back injury on account of fall in April, 2006, Karsanji became bed-ridden and continued to reside in Advana, Gujarat. The purported Will is alleged to have been executed by the deceased on 12.05.2006, whereas, the POA is executed on 18.06.2006 to be followed by the Gift Deed and Release Deed dated 22.06.2006. It is these subsequent documents, which according to the Plaintiff are signed by the deceased on being coerced, but in absence of pleadings giving necessary particulars of fraud, undue influence, coercion as asserted by the Plaintiff, the pleadings and evidence brought on record, do not lead to an inference that the said documents are executed under coercion. In the Affidavit of Evidence dated 17.03.2012, the Plaintiff except repeating and reiterating the allegations made in the correspondence prior to filing of the Suit and the averments in the Plaint, has failed to give any particulars or material to justify her case of coercion.
53] In her additional Affidavit of Evidence in lieu of examination, she has deposed that when she came to India in April, 2006, her father complained to her about Defendant No.3 pressurizing him to execute POA in his favour since last 2-3 years, which her father had refused to execute. In her cross-examination a question was specifically put to her as Question No.35 as to whether it is the same POA which her rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 51/93 Suit-3165-2010.odt father was referring to and she answered as under :-
" I do not know. My father confided in me and I have set out in Paragraph 5 what my late father told me."
54] Thus, the version of the Plaintiff is, her father told her that Defendant No.3 was pressurizing him for executing the POA since last 2-3 years which he was refusing to execute.
The Plaintiff is not a witness to the Defendant No.3 exerting pressure or coercing him to execute the POA and in Para 5 of the Affidavit, she has referred to the POA, but in Question NO.35 she is unable to state whether this is the same POA which was executed by her father.
From her response in the cross-examination it is evident that the Plaintiff is not aware if the Defendant No.3 had exerted pressure as regards the POA, which is subject matter of the Suit. Until April, 2006, her father had not executed the POA and worth it to note that except complaining to the Plaintiff, father did not take any action against Defendant No.3 or prevented the visit of Defendant No.3, if at all he was exerting pressure pressure for executing the POA, in his favour.
55] As regards to so-called information supposedly given by the deceased father to the Plaintiff, in para 6 when specifically asked whether any person is a witness, the Plaintiff has deposed that Defendant No.1 was present when the deceased father told the Plaintiff about the harassment he was facing, but the Plaintiff has not chosen to lead any evidence in that rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 52/93 Suit-3165-2010.odt regard, by bringing him in witness box or for that matter, Amrutaben the Aunt who is also alleged to have reported to her about the harassment faced by her deceased brother Karsanji, at the hands of his son.
56] The Plaintiff has thus chosen not to give any particulars of the "pressure" supposedly exerted by Defendant No.3 for executing the POA. The evidence rendered by the Plaintiff and the pleadings of the Plaintiff has failed to prove that in April, 2006 any pressure was exerted by Defendant No.3 for execution of the POA and the POA was signed by the deceased on 18.06.2006. Post April, 2006, there is no evidence that Defendant No.3 exerted any pressure on his deceased father for execution of the POA except the belief of the Plaintiff as in her additional affidavit in lieu of examination in chief, the Plaintiff in Para 10 has deposed as under :-
"Thereafter, Defendant No.3 and Defendant No.4 went to visit our father in India. It is during this visit, whilst my father was recovering from the treatment, I believe that Defendant No..3 and Defendant No.4 started pressing my father to hand over to estate to them."
57] It is pertinent to note that in April 2006, Defendant No.3 was not in India. He came to India after the father was admitted in Breach Candy Hospital i.e. after 15th May 2006. From cross- examination of Defendant No.3 by the Plaintiff's Advocate, and in particular Q/A.47 to 61 at pages 1304 to 1306 of the Plaintiff's Compilation of Documents, it appears that Defendant No.3 was in India in March 2006.
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In March 2006, according to Defendant No.3's evidence by way of cross-examination, there was general discussion between Defendant No.3 and his father as regards the distribution of his assets amongst his children during his lifetime. Defendant No.3 in cross-examination has categorically stated that there was no discussion as regards the so-called Will or the Power of Attorney.
In paragraph 11, it is alleged that the Plaintiff had called upon the deceased father one week before the father died. The father died on 31 August 2006, which would mean around 23rd August 2006, the Plaintiff had called her father as claimed in paragraph 11.
It is pertinent to note that in that communication, the father did not complain to Plaintiff about any "pressure" being exerted by Defendant No.3.
In paragraph 11, the Plaintiff has alleged that her aunt told her that Defendant Nos. 3 and 4 were regularly quarreling and fighting with the deceased about the Will, which the deceased had made.
This allegation of the Plaintiff is hearsay inasmuch as the aunt is still available, however, the Plaintiff has not chosen to lead her evidence.
In answer to Q.49, the Plaintiff has admitted that Aunt is available at Advana and even according to her, Defendant Nos. 3 and 4 were pressuring the father for execution of the Power of Attorney.
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Paragraphs 12 and 13 of Affidavit of Evidence refer to the event two days prior to the date of death of the deceased father on 31st August 2006.
In paragraphs 12 and 13, there is no allegation made by the Plaintiff that Defendant No.3 had pressurized the father to execute the Power of Attorney. It is pertinent to note that the events mentioned in paragraphs 12 and 13 are of August 2006 whereas the Power of Attorney was executed on 18th June 2006.
As regards the allegations made in paragraphs 12 and 13 of additional Affidavit of Evidence, reference may be made to cross-examination of the Plaintiff in Q/A. 52 to 60. This evidence in cross-examination of the Plaintiff would demonstrate that the allegations made in paragraphs 12 and 13 of her Additional Affidavit of Evidence are nothing but figment of imagination of the Plaintiff and the same are not proved by the Plaintiff.
Post the arrival of Defendant No.3 in India in May 2006, in the course of cross-examination no suggestion has been given by the Plaintiff to Defendant No.3, as regards so-called "pressure" exerted upon the deceased father for getting the Power of Attorney executed. It is also to be noted that in the correspondence prior to the suit as also in the plaint or in any of her Affidavit of Evidence, the Plaintiff has not disputed the signature of deceased father on the Power of Attorney. Despite the same, in her cross-examination after having said that she would generally be able to identify her father's signature in Q/A.36 and 40, Plaintiff purposely failed to recognize the signature of her deceased father on the Power of Attorney rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 55/93 Suit-3165-2010.odt dated 18th June 2006. and this is despite the fact that on 12 th May 2006, according to Plaintiff the deceased father had signed his Will in her presence.
This is indication of the Plaintiff being not a truthful witness.
58] In the Affidavit in lieu of Examination in Chief of the Defendant No.3, he has deposed about the sequence of dates, when in or around April, 2006, the deceased flipped and injured his back and was shifted to Breach Candy Hospital when the Defendant Nos.3 and 4 rushed to Bombay. After his discharge from the hospital, he was taken to his native place Advana as per his wish and upon taking there his health improved, but he was home bound on account of his advance age.
In the Affidavit of Evidence, Defendant No.3 has deposed as under :-
" 6. I say that in view of the old age, the said deceased desired to administer and/or distribute and dispose off all his properties according to his wishes amongst his children in his lifetime.
7. I say that to the best of my knowledge, during his lifetime, the deceased was entitled to immovable properties and movable properties as mentioned by me in paragraph 11 of my Written Statement."
59] In para 9, Defendant No.3 has deposed that in or around May, 2006, he was asked to contact Bachhubhai Munim & Com., a Firm of Solicitors in Mumbai to draft out a POA and he abided by the instructions. He took the draft POA to Advana and handed over it to the deceased, when he contacted Advocate N.D. Kakkad of Porbandar and asked him to prepare rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 56/93 Suit-3165-2010.odt the POA on the requisite stamp paper as per the draft and Advocate Kakkad accordingly typed it on a stamp paper.
The Defendant No.3 has deposed about the execution of these documents in the following words :-
"The said Power of Attorney was executed by the said deceased in my presence on 18th June 2006. Before the execution of the said Power of Attorney, the Doctor of the deceased namely Mr. C.A. Mandavia was called for by the deceased at his residence. The deceased asked said Dr. Mandavia to examine him and to issue a certificate about his health and mental condition. Accordingly, the said Dr. Mandavia after examining the deceased issued his certificate in his own handwriting below that certificate Dr. Mandavia put his signature as also his rubber stamp. The said certificate issued by Dr. Mandavia was attached to the Power of Attorney which was prepared by Advocate Kakkad as per the instructions of the deceased as stated above. The deceased had also called two persons by name K. M. Modhavodiya and K.G. Sudam who were known to the deceased to be attesting witness to the execution of the said Power of Attorney. At the request of the deceased, the said Advocate Kakkad had also called a Notary Mr. S.D. Ranavaya. My sister the Defendant No.4 was also present at the time of execution of the said Power of Attorney. In presence of the said two attesting witnesses, the deceased executed the said Power of Attorney by putting his signature at the end of the said Power of Attorney against the execution clause below the photograph of the deceased affixed thereto. Ii also signed the said Power of Attorney as the donee of the said Power of Attorney below the photograph and signature of the deceased and above my signature my photograph was also affixed to the said Power of Attorney. After the said Power of Attorney was duly executed by the deceased and me, two attesting witnesses namey K.M. Modhavodiya and K.G.Sudam signed the said Power of Attorney as the4 attesting witnesses and put their respective names below their signatures. Below the signatures of two attesting witnesses, Defendant No.4 also signed the said Power of Attorney, and put her name below her signature. After the execution of the said Power of Attorney, the same was notarised by Notary Mr.S.D. Ranaviya. The said deceased was identified to to the Notary by Advoate N.D. Kakkad who put his rubber stamp "Identified by me"below that Mr.N.D.Kakkad put his signature and below that Mr.N.D.Kakkad put his rubber stamp reading as N.D. Kakkad, advocate, Porbandar and put his signature in the space available between the word "Identified by me" and "N.D.Kakkad, Advocate Porbandar". the date 18th June 2006 was also put by way of a rubber stamp below the signature and rubber stamp of Advocate Kakkad. The deceased also put his signature at the bottom of page 1 to page 5 of the said document. At the end of page 5, deceased put the said "18th". I am in a position to identify the handwriting rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 57/93 Suit-3165-2010.odt and signatures which are appearing on the said document as that of the deceased,myself, the two attesting witnesses, Defendant No.4, Advocate Kakkad and Notary MR. S.D. Ranavya in as much as all those writings and signatures were put in my presence."
60] Thereafter, Defendant No.3 has specifically stated on oath that his father told him to go back to Bombay and contact the same Solicitor Firm for preparing a Deed of Gift in respect of Flat No.402 in King's Apartment and for execution of Deed of Release in respect of Flat No.601 in which the deceased had 41.81% undivided right, title and interest alongwith him and Defendant No..4.
In Para 12, Defendant No.3 has deposed that he acted on instructions of his father and a Gift Deed was prepared on the strength of the POA and it was executed on 22.06.2006, which was duly registered with the Sub Registrar of Assurances, Andheri II, Bandra. Similarly, a Deed of Release as regards 41.81% share of the deceased in Flat no.601 was also executed and registered, on the strength of the POA executed by the deceased in his favour.
He has signed the said documents, with an endorsement "Through his CA holder Mr. Dhirajlal Rajguru".
61] The original Gift Deed as well as the Release Deed form part of the compilation tendered by the Defendant and copy of the same was also produced by the Plaintiff. Defendant No.3 is subjected to extensive cross-examination, but on going through the same, there is no suggestion given to him as regards the alleged pressure or misrepresentation or undue rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 58/93 Suit-3165-2010.odt influence exerted and though an serious attempt is made to prove the incoherency of this witness, it is only as regards the sequence of the phases of health of the deceased some inconsistencies which have featured in regard to the timelines, as the cross-examination by the Plaintiff was largely focused on this aspect, the same must be discarded as it does not materially affect the case of the Defendant about execution of the POA resulting into the two documents executed by him as the witnesses cross-examined in respect of events which took place in May/June 2006 and cross-examination was conducted in the month of January to May, 2019.
In any case, the inconsistencies in the version as regards the timelines do not materially affect the case of the Defendant No.3, as he is unable to remember the exact day or date when the deceased asked him to go to Bombay to get the draft POA and also as to how many days he was in Bombay, when did he get the draft POA, when he returned to Advana with it and also the date on which he went back to Bombay after getting the POA executed in his favour for execution of the Gift Deed and Release Deed which was done in Bombay as the property was situated in Bombay. The obvious reason for execution of POA was the inability of the deceased to travel to Bombay for executing the POA and it is the pleaded case of the defendant No.3 and it so appears from the reading of the contents of the POA.
62] I must now turn to another important aspect which pertain to the stand of the Plaintiff in her notice addressed to the Advocate for the Defendant, being his inability to execute rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 59/93 Suit-3165-2010.odt the Gift Deed and the Relinquishment Deed premised on the POA and the objection specifically is raised in the letter addressed by the Plaintiff dated 20.01.2009, is that the Defendant no.3 had executed both the Deeds as Agent of the deceased and under the Contract Act, Agent could not execute the documents for self, therefore, the Deeds are illegal, void and unenforceable in Law.
This objection fell for consideration, when the Suit was taken up for considering the admissibility of documents referred to and relied upon by Defendant Nos.3 and 4 in the compilation of documents.
The document being placed at Sr.No.4, 5 and 6 i.e. original POA dated 18.06.2006, original Gift Deed dated 22.06.2006 and original Release Deed dated 22.06.2006, the Plaintiff has denied its existence and the contents and objected to its admissibility.
The document at Sr. No.4 i.e. original POA was objected on the ground that as per Section 17 read with Section 79 of the Registration Act, the said document is inadmissible and the admissibility of other two documents was questioned on the ground that both these documents are purportedly registered based on an unregistered POA.
This objection was considered thread-bare and by order dated 08.01.2019, by referring to the position of Law as laid down by the authoritative pronouncement by the Apex Court, what was observed by the learned single Judge (J.R.D. Dhanuka, as his Lordship then was), holds good even as regards the present objection , and I must reproduce the rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 60/93 Suit-3165-2010.odt relevant portion of the said order;
"37. In my view, the powers exercised by the constituted attorney under the said power of attorney and to execute the document on behalf of the doner would fall under section 32(a) of the Registration Act, 1908 and not section 32(c) of the said Act. Mr.Jagtiani, learned counsel for the plaintiff also fairly conceded this position in law. Even otherwise in my view there is no merit in the submission made by the learned counsel earlier that the provision of section 32(c) would attract to the facts of this case and not section 32 (a).
38. In my view, the provisions of the Transfer of Property Act, 1882 have to be read with the provisions of the Registration Act, 1908. Since no rights were created in favour of the defendant no.3 under the said power of attorney and the said power of attorney did not confer any title in the immovable property, section 17(1)(a) of the Registration Act, 1908 would not be attracted to the facts of this case.
39. Be that as it may, the plaintiff himself in the affidavit in lieu of the examination in chief has referred to and relied upon these documents and more particularly paragraph 13 of the affidavit in lieu of the examination in chief and also prayed for various reliefs in respect of those documents in the plaint and has deposed that these documents be marked in evidence. In my view, the plaintiff cannot be allowed to urge that these documents are not admissible on one or the other grounds. The documents at serial Nos.4, 5 and 6 are accordingly marked as Exhibits D-3 (38), D-3 (39) and D-3 (40)."
63] The objection raised on behalf of the Plaintiff by Mr. Mody about the POA not requiring registration is put to rest by the Apex Court in case of Rajani Tandon vs. Dulal Ranjan Ghosh Dastidar8, where it is held that Section 17 of the Registration Act would not be attracted, as Section 33 of the Registration Act would apply only in cases where presentation of a document is in terms of Section 32 (1)(c) of the Registration Act and not otherwise.
Another decision of the Apex Court in case of Suraj Lamp 8 (2009) 14 SCC 782 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 61/93 Suit-3165-2010.odt & Industries (P). Ltd. Tr. Dir vs. vs. State of Haryana and another9, has also in categorical words held that POA itself is not an instrument of transfer in respect of right, title and interest in the immovable property and no interest is created in favour of Defendant No.3 under the said POA.
It is, apposite to refer to the relevant observation of the Apex Court in case of Rajani Tandon. :
"20. Part VI of the Act deals with "presentation of documents for registration". Sections 32 and 33 of the Act which are in Part VI deal with "persons to present documents for registration" and "power of attorney recognizable for purposes of Section 32"
respectively. Sections 32 and 33 of the Act are referred to hereunder :
"32. Persons to present documents for registration - Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, -
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorized by power of attorney executed and authenticated in manner hereinafter mentioned."
"33. Power of attorney recognisable for purposes of Section 32
- (1) For the purposes of Section 32, the following powers of attorney shall alone be recognized, namely -
(a) if the principal at the time of executing the power of attorney resides in any part of India in which this Act is for the time being in force, a power of attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power of attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in India, a power of attorney executed before and authenticated by a notary public, or any court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government :
9 2012 (1) SCC 656 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 62/93 Suit-3165-2010.odt Provided that the following persons shall not be required to attend at any registration office or court for the purpose of executing any such power of attorney as is mentioned in clauses
(a) and (b) of this section, namely -
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons except by law from personal appearance in the court. (2) In the case of every such person the Registrar or Sub- Registrar or Magistrate, as the case may be, if satisfied that the power of attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf.
21. Section 32 deals with persons who are eligible to present documents for registration before the proper registration office. Section 32 specifies three categories of persons who can present documents for registration. The use of the word "or" between the clauses of Section 32 demonstrates that the legislature intended the said clauses to be read disjunctively and not conjunctively. It is settled law that the use of the word "or" is used to signify the disjunctive nature of a provision. In this regard reference may be made to the decision of this Court in State of Orissa vs. State of A.P.
22. Clause (a) of Section 32 specifies that a document can be presented for registration by :
(i) by the person executing the document;
(ii) any person claiming under the document presented for registration; and
(iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order.
Clauses (b) and (c) deal with cases where the document is presented not by any person mentioned in (I), (ii) and (iii) above but by their agent, representative or assign. This is so because the use of the words "such person" in clauses (b) and (c) can be understood to mean only persons as referred to in, (I), (ii) and (iii) rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 63/93 Suit-3165-2010.odt above.
23. It may also be mentioned herein that the scope of clauses
(b) and (c) in Section 32 may to an extent overlap one another. However, we do not propose to deal with the same as it is not relevant for determination of the issue before us. It is suffice to say that insofar as clause (c) of Section 32 is concerned the agents, representative or assigns of the persons referred to in (i), (ii) and
(iii) above can present the said document for registration only if they are duly authroised by the power of attorney executed and authenticated in the manner hereinafter mentioned.
24. The words "executed and authenticated in manner hereinafter mentioned" in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads "for the purposes of Section 32, the following power of attorney shall alone be recognised". Section 32 refers the documents presented for registration by a holder of "power of attorney" in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding "powers of attorney" of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub- Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments, noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal.
26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the "person executing" the document. The expression "person executing" used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, "person executing"
as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered."
"29. The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant case is one where no rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 64/93 Suit-3165-2010.odt allegation of fraud has been raised. In view thereof the duty cast on the registering officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same."
"33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the registering officer, that is not a case of presentation under Section 32(c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32(c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act."
64] In the wake of the above authoritative pronouncement which continue to hold the field, the POA executed do not warrant registration and this is what was conclusively held while exhibiting these documents.
65] Coming to the very basis, for the execution of Relinquishment Deed and Gift Deed based on the POA and right given to him by Karsanji, who, being desirous of transferring his right, title and interest in Flat No.402, 601 an Garage 8 by way of gift to his son Dhiraj , specifically declared as under :
"C. As a natural love and affection for my son I am desirous of transferring my entire right title and interest in the said Flat No.402, Flat No.601 and garage No.87 mentioned above by way of gift to my son Dhirajlal Karsanji Rajguru.
D. I am desirous of renouncing my right, title and interest in Flat No.601 on the 6th floor rand garage No.8 in the said Kiings Apartment in the said Society, jointly seized and possessed by me rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 65/93 Suit-3165-2010.odt with my son Shri Dhirajlal Karsanji Rajguru and daughter Miss. Shakuntalaben Karsanji Rajguru, in favour of my son Dhirajlal. E. I am at present unable to go to Mumbai for executing the Deed of Gift transferring my right, title and interest in Flat No.402 on 4th floor in the Kings Apartment mentioned in recital A and for executing Deed of Release of my right, title and interest in Flat No.601 on 6th floor in the said Kings Apartment mentioned in recital D above in favour of my son Dhirajlal, I am desirous of appointing my son the said Dhirajlal Karsanji Rajguru to be my true and lawful attorney to do and execute all acts, deeds, things and matters as hereinafter appearing."
By the aforesaid, Karsanji nominated, constituted and appointed his son Dhiraj to be his true and lawful attorney for him and on his behalf, to do and execute all acts, deeds, matters and things and to exercise the following power and authorities or any one of them i.e.:
"1. To sign and execute the Deed of Gift transferring my right, title and interest of Flat No.402, Flat No.601 and Garage No.8 mentioned in recital A and B in favour of himself as Donee and to sign and execute the Deed of Release renouncing my right, title and interest in Flat no.601 on the 6 th floor and garage no.8 in the said Kings Apartment mentioned in recital D in his favour as the release.
2. To sign and execute all other deeds and documents required to be executed for transfer of the shares held by me as stated in the recital above in the said society and those required for completion of the transaction and for mutating my name in the record of the said Society and in my place record name of my son Dhirajlal Karsanji Rajguru.
4. In general to do all other acts deeds matters and things required to be done for the aforesaid purpose."
66] The POA bear the photograph and the signature of Karsanji Rajguru and is signed by two witnesses, who are identified by Advocate N.D. Kakkad, of Porbandar.
Defendant no.3 has also signed the document and at the rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 66/93 Suit-3165-2010.odt end of the same. Dr. C.M. Mandavia., Porbandar has certified that he had examined Mr. K.K.Rajguru, aged about 95 years and found him to be conscious and capable of reading and listening normally. It is also certified that he is of sound mind and understood the matter and signed.
Taking this as the basis and being authorized by his father, while he was alive, Defendant No.3 has signed a Gift Deed dated 22.06.2006, between Shri Karsanji Rajguru , referred to as the Donor and Mr. Dhirajlal Karsanji Rajguru, i.e. Defendant No.3 as Donee, which stipulated that the Donor without any monetory consideration and in consideration of natural love and affection, grant and transfer by way of gift the donors right to occupy and all his right, title and interest to and in the flat No.402 in the building known as King's Apartment and on execution of the Gift Deed the Donee has become the absolute owner thereof with all rights of occupation thereto as member of the society and thereafter donor shall have no right, title and interest therein.
Below the schedule of property which form part of the Gift Deed, the Donor is described as Shri Karsanji Rajguru and this Deed is executed through his constituted Attorney Holder Mr. Dhiraj Rajhuru and on similar lines the Release Deed is executed between Shri Karsanji Rajguru through his constituted Attorney being referred to as " the Releaser" and Mr. Dhiraj Karsanji Rajguru, "the Releasee" as regards Flat No.402 in King's Apartment and the Releasee is related to the Releasor as his son, who desired to release his rights to occupy the flat and the garage no.8 and all his rights, title and interest as well as release the Releaser's interest in the shares rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 67/93 Suit-3165-2010.odt in the society in favour of the Releasee so as to enable him to enjoy the same or deal with it alongwith Shakuntala, who also had limited interest in the said flat.
67] The execution of the POA is proved through Mr. N.D. Kakkad, is an Advocate by profession and, who was known to the deceased Karsanji. In Para 2 of his Affidavit, he has deposed that two to three days prior to 12.05.2006, the deceased contacted him on phone and informed that he was desirous of making his Will since he had a fall and since he was in pain and agony, he would not be able to come to Porbandar for giving instructions and he was, therefore, told that Natubhai Paun was given necessary instructions, who would be contacting him. After preparing the Will, he had instructions to hand it over to Natubhai and he was told that Karsanji would be going to Mumbai for treatment alongwith his daughter Indira and there was some urgency in preparing the Will. Thereafter, Natubhai Paun met him and gave oral instructions and accordingly he prepared the Will after having discussion with the deceased. After the Will was finally prepared, he handed over the same to Natubhai Paun.
He categorically state that he only prepared the Will and endorsed the same as being drafted by him, but he did not preserve the copy of the Will and also the instructions given to him.
In Para 3 to 7 of the Affidavit, Mr. Kakkad has narrated the circumstances in which he once again received instructions from Karsanji and that is 3 or 4 days prior to rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 68/93 Suit-3165-2010.odt 18.06.2006 when he was told that he got a draft of POA prepared from M/s.Bacchubhai Munim & Co. Advocates and Solicitors and after its approval, he asked Mr. Kakkad to have the draft typed on requisite stamp paper. He was also informed by the deceased that he was admitted in Breach Candy Hospital, Mumbai and after he was discharged he was brought to Advana by his son Dhiraj and daughter Shakuntala and he was home bound. Thereafter, the deceased arranged for a stamp paper of Rs.100/- and POA was typed out and collected by the representative of the deceased.
What is most important to note in his Affidavit is what is stated by him as below :-
"4.............The deceased thereafter called me and informed me that he desired to execute the said Power of Attorney in the evening of 18th June, 2006. The deceased told me that he had already arranged for the two attesting witnesses who would be attesting the said Power of Attorney, but requested me to arrange for a Notary before whom, the power of attorney can be notarised after the same was executed. The deceased told me that he required me to identify the deceased before the Notary and accordingly, I should also be present at the time of execution of the said power of attorney by the deceased. I agreed to arrange for the Notary and also to remain present at the time of execution of the Power of Attorney. I informed the deceased that his photograph and the photograph of the Donee of the Power of Attorney will have to be affixed against the execution clause of the deceased and the Donee respectively.
5. As requested by the deceased, I reached the residence of the deceased around 6.00 p.m. on 18th June, 2006. As requested by the deceased, I took alongwith me Mr. S.D. Ranavaya, Notary from Porbundar to the residence of the deceased. When we reached the residence of the deceased, the deceased informed me that he had already affixed the photographs of himself and his son on the last page of the Power of Attorney against their respective execution clause. The deceased also told me that the two attesting witnesses were already present. The deceased introduced me to his son Dhirajal, in whose favour the power of attorney was to be executed, as also his daughter Shakuntala. The deceased also told me that on his own he had called Dr. C. M. Mandavia to certify about his physical and mental health. The deceased further told me that before I visited the residence of the deceased, the doctor rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 69/93 Suit-3165-2010.odt had already examined him and the doctor had endorsed his certificate on the Power of Attorney. When I reached the residence of the deceased, the doctor had already left.
6. Before executing the Power of Attorney the deceased read the same. The said deceased thereafter executed the said Power of Attorney by putting his signature at the end of the said power of attorney against the execution clause below the photograph of the deceased affixed thereto. The deceased also put his signature at the bottom of pages 1 to 5 of the said power of attorney. On page No.5 of the Power of Attorney in the last line the "18" is put by the deceased. After the deceased executed the said Power of Attorney, the donee of the said power of attorney viz., Dhirajlal also executed the said power of attorney by signing the same against his name and below his photograph. After the said power of attorney was duly executed by the deceased and the donnee, the two attesting witnesses signed the said power of attorney as attesting witnesses and put their respective names below their signatures. Below the signatures of the two attesting witnesses, Shakuntala, the daughter of the deceased, signed the said power of attorney and put her name below her signature.
7. After the power of attorney was executed, the same was notarised by Notary Mr. S.D. Ranavava. The said deceased was identified by me before the said Notary. Accordingly, I put my rubber stamp "Identified by me" at the bottom page No.6 of the Power of Attorney. Below that, I put my signature and below my signature, I put my rubber stamp reading as "N.D. Kakkad, Advocate, Porbunder", The date 18th June, 2006 was also put by me by way of rubber stamp below my signature and rubber stamp. I identify the handwriting and signature which are appearing on the said power of attorney as that of the deceased, his son Dhirajlal, the two attesting witnesses and Shakuntala, the daughter of the deceased. I also identify the signature of the Notary S.D. Ranavava. The Notary after notarising the said power of attorney took the signature of the deceased in his Notarial Register."
68] Mr.N.D. Kakkad was cross-examined on behalf of the Plaintiff and on perusal of the cross-examination though serious attempt is made to discredit him by creating dent in his testimony, the evidence of Mr. Kakkad as regards execution of the POA has gone unchallenged.
At no point of time, even a suggestion is given to Mr. rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 70/93 Suit-3165-2010.odt Kakkad as regards the alleged pressure etc. which the Plaintiff claims to have been exerted on her deceased father for executing the POA. The only challenge to the evidence of Mr. Kakkad is on account of his statement in paragraph 2 of his letter dated 19th January 2009 being Exhibit P-18 at Pages 582 and 583 of the Plaintiff's compilation. It is pertinent to note that as stated in this letter, the Plaintiff had approached Mr. Kakkad somewhere around December 2008/ January 2009 to obtain true copy of the Will of deceased father. Since Mr. Kakkad did not have a copy of the said Will, he did not furnish the same to Plaintiff.
It is the case of Mr. Kakkad as it appears from the said letter that because he did not give the copy of the said Will to the Plaintiff, the Plaintiff had addressed her Advocate's letter dated 5th January 2009 being Exhibit P-17 at Page 580.
In the said letter, the Plaintiff has alleged that as in the Power of Attorney, no reference is made to the Will which was executed prior to execution of the said Power of Attorney, the said Power of Attorney was executed by the deceased father under duress and/or without he being in proper state of mind to execute the Power of Attorney.
In the said letter, the Advocates for Plaintiff have threatened Mr. Kakkad that if he did not furnish the copy of the Will, the Plaintiff would be constrained to adopt legal proceedings and/or complaint to appropriate authorities about misconduct and/or concealment of true facts of the said Will in the said Power of Attorney.
It may be noted that the letter dated 05.01.2009 asking rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 71/93 Suit-3165-2010.odt Mr. Kakkad to furnish true copy of the Will is addressed much after the date of dismissal of Probate proceedings in Court at Porbunder initiated by the Plaintiff (Probate proceedings were dismissed in May 2008). In the letter dated 05.01.2009, it is further alleged that the deceased was not in a proper state of mind at the time of execution of the said Power of Attorney and the letter contained threats against Mr. Kakkad of initiating legal proceedings and/or to adopt disciplinary proceedings against Mr. Kakkad being an Advocate.
69] On 19.01.2009, Mr. Kakkad responded and offered an explanation as to why he garnered an impression that the Will was executed by the deceased under undue influence of the Plaintiff as the deceased was suffering from back ache and was bed ridden and the instructions to draft the Will was given while the Plaintiff was in Advana and therefore, he reached the conclusion after reading the Plaintiff's Advocate's letter that the draft of Will was prepared under duress and influence of the Plaintiff and considering that the deceased was in pain, Mr. Kakkad drew an inference that the deceased was not in sound state of mind.
In any case, this is an issue which falls apart and has to be distanced from the issue of execution of the POA which deserve consideration in the proceedings. What was the response of Mr. Kakkad to the letter addressed by the Advocate for the Plaintiff and why such a response came, is not a matter which I should ponder upon.
In the wake of aforesaid, issue Nos.4 and 5 stand
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answered against the Plaintiff.
70] Coming to issue No. 6 and 9 whether Defendant No.3 has
proved that the money in the bank accounts in the joint name of the deceased father was validly transferred to his account during the lifetime of his deceased father as stated by him in Para 11 of the written statement. This issue deserve to be answered alongwith Issue No.9 as to whether the Plaintiff has proved that Defendant No.3 has illegally and without authority transferred the funds from the bank accounts of the deceased father.
The Plaintiff allege that Defendant No.3 has appropriated the amount from the account of the deceased and with specific reference to the statement of account dated 19.10.2006, bearing SB Account NO.SBNREAC 36102020006103 and it is pleaded in the Plaint that the bank accounts of the deceased were operated after his demise, without obtaining Succession Certificate or Letter of Administration, and the amount is transferred.
Defendant No.3 in his written statement has given the details of the bank accounts and perusal of the same would reveal that the saving bank account in the Union Bank of India at Juhutara Road, Santacruz, where it is alleged that the money has been siphoned away, the account still has Rs.1,80,002/- in it and as far as FCNR Term Deposits are concerned, since it was held in the joint name of Karsanji and Defendant No.3 in his lifetime, the amounts were transferred in the account of Defendant No.3 and the account was closed rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 73/93 Suit-3165-2010.odt in July 2006 itself.
The letter dated 19.10.2006 issued by Union Bank of India to the Plaintiff, offer the necessary details of late Karsanji Rajguru and this include the details of the Saving Bank account and term deposit. Similarly, the statement from the ICICI Bank, Union Bank of India furnished to the Registrar, Principal Civil Judge, Court Porbandar has offered the details of the accounts held by late Karsanji and the Plaintiff was informed that no transaction has taken place in the fixed deposit account of Mr. Karsanji Rajguru from 01.10.2006. Further a letter from Union Bank of India dated 08.12.2006 addressed to the Civil Judge Porbunder with regard to the accounts of the deceased in the bank has also offered sufficient clarity to the Plaintiff.
Specific reference may be made to item No.(i) at page 1269 in respect of S.B. NRE 10217. This indicates that the account was held in the joint name of the deceased and Defendant No.3 and during the lifetime of the deceased the amounts standing to the credit was paid over by the deceased to Defendant No.3 leaving a balance of Rs.2,817/-. Reference should be made to document appearing at Page 1205.
This would indicate that during the lifetime of the deceased the deceased had transferred various amounts by cheque leaving a balance of Rs.2,817.25ps on 31 st October 2006 and reference must be made to page 1206.
It may be noted that last two entries in this account are also on the basis of the cheques issued by the deceased, which cheques appear to have been credited on 26th October 2006 rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 74/93 Suit-3165-2010.odt and 31st October 2006. Since the cheques were signed by the deceased it cannot be termed as misappropriation of funds of the deceased father by Defendant No.3. Inasmuch as stated in paragraph 14 of the evidence of Defendant No.3 that he was sending monies from UK to deceased father in India from time to time. The deceased father used to invest the said amounts in different bank accounts in his sole name or jointly with Defendant No.3 or any of other sons or daughters. This evidence of Defendant No.3 has gone unchallenged inasmuch as there is no cross examination of Defendant No.3 on this aspect by the Plaintiff.
In view thereof, it is clear that whatever amounts were in the bank accounts were of Defendant No.3. Since the amounts deposited in the banks account of the deceased were of Defendant No.3, the transfer effected on 26th October and 31st October 2006 cannot be termed as misappropriation by Defendant No.3 of the funds of the deceased father.
71] In the written statement filed by Defendant No.3, he has pleaded as under :-
"g. Defendant No.3 was sending monies from United Kingdom to India, from time to time, which would be invested by the said Late Karsanji jointly with Defendant No.3. Defendant NO.3 states that the said Karsanji out of his own free will transferred monies from various accounts mentioned above to personal accounts of the parties to the above Suit, and likewise transferred Defendant No.3's share to his personal account."
72] When the Affidavit of Evidence of the Plaintiff is perused, where she has offered the details of the bank accounts and deposits held in the name of her deceased father, with a rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 75/93 Suit-3165-2010.odt specific pleading that these are the accounts , of which she is aware, a perusal of the list would reveal that distinct accounts were held in the joint name of Karsanji as well as his other children as in some cases, it was Defendant no.3, in some cases Defendant No.4 and in some cases the account was held jointly with Defendant No.5 indicating that the father shared his money in different banks alongwith all his children and in any case from June 2006 onwards the banks have declared that the accounts have not been operated except the accounts from which the amount was transferred during the lifetime of the deceased.
It is a specific case pleaded by Defendant no.3 that he was sending money from UK to the deceased which was invested by him in different joint bank accounts either held by him in his sole name or jointly with Defendant No.3 or either of his sons or daughters.
This statement is not discredited in the cross- examination of Defendant No.3. The accounts were held in the joint name of the deceased and Defendant No.3 and the explanation offered by the banks has clarified this aspect. During the lifetime of the deceased, there is transfer of various amounts by cheque leaving balance of Rs.2,817.25 Ps. On 31.10.2006 in SB NRE 10217 Account and two entries in this account are on the basis of the cheques issued by the deceased, which have been credited on 26.10.2006 and 31.10.2006 and the bank has certified that this transaction is in the ordinary course of business. Since the cheques were signed by the deceased, the transfer cannot be treated as misappropriation of funds. The evidence of Defendant No.3 has not been shaken rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 76/93 Suit-3165-2010.odt on this point.
The cross-examination of Defendant No.3 would reveal that the amount of Rs.4,00,000/- was given by the deceased to Defendant No.3 on the basis of cheque, which was signed by the deceased as well as Defendant No.3 and hence, it cannot be said that there is any misappropriation.
For this reason, Issue Nos.6 and 9 are answered accordingly.
73] Now turning to Issue No.7, whether Defendant No.3 has proved that late Karsanji by the declaration dated 25.07.2006 had, during his lifetime, disposed off all his movable and immovable properties and therefore the present Suit is infructuous, as alleged by Defendant No.3 in his written statement.
This issue deserve to be decided alongwith issue No.8, which has cast a burden on Defendant No.3 to prove that in last week of January, 2012, for the first time, he came to know about the declaration dated 25.07.2006 and the declaration is made by late Karsanji as stated by Defendant No.3 in Para 13a and 13b of the written statement.
The Para 13a to 13e were permitted to be inserted by amendment of the written statement and Defendant No.3 has specifically pleaded as under :-
13a. Defendant No.3 alongwith the Defendant no.4 was taking care of the said Karsanji for several years including during his old age, before his death on 31st August, 2006.
13b. In April 2006, the said Karsanji suffered a major back injury due to which he was rendered bed-ridden in his house at Advana, Gujarat. Due to the fatal injury and the old age the said rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 77/93 Suit-3165-2010.odt Karsanji's health deteriorated considerably. Immediately upon being informed of the accident Defendant No.3 flew down from England to Advana, Gujarat to take care of the said Karsanji.
74] Defendant No.3 is relying on the declaration dated 25.07.2006 for substantiating his case that the deceased father wanted to distribute all his properties during his lifetime.
The declaration is filed alongwith the written statement and it is recorded by the aunt of Defendant No.3 as dictated to her by her brother late Karsanji. The declaration narrate to the following effect :-
"I Karsanji Keshavji Rajguru, I am now aged 95 years. There is no guarantee of life. Thoughts came in my mind between four and six o'clock that, I am giving my property to my son Dhirajlal Karsanji Rajguru and I am retiring. After being released from the hospital, I came to Advana, my health was good. But when I read the Will I had made, it was against my desire, hence, I phoned Kakkad and got it cancelled. Kakkadbhai said that a new Will shall have to be executed in its place, I should make arrangement during my lifetime. According to my wish , I decided that, thath my houses in Advana and my share in Block Nos.402 and 601 in Kings Apartment in Mumbai, be given to Dhirajlal Karsanji Rajguru alone. The moneys are lying in the bank accounts, that should be given to the person whose joint name is appearing in the concerned account. If I have forgotten something, I hereby give the same to my son Dhirajlal Karsanji Rajguru. I have full faith in him. He shall fulfill off my desires. This is my last Will, declaration. And in this regard I have also given the power to Dhirajlal. I have made this document of my own free will and volition. This document shall be given in a closed envelope to Advocate Kakkad."
The aforesaid declaration by the deceased Karsanji, appear to be his reaction to his ill health and feeling that he may not survive the illness and it further record that on being released from the hospital when he came to Advana, his rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 78/93 Suit-3165-2010.odt health was good and when he read the Will, which was against his desire, he made a phone call to Mr. Kakkad and got it cancelled. He was informed by Mr. Kakkad that a new Will shall replace the old one, but he desired that his house in Advana and his shares in Block No.402 and 601 in Kings Apartment in Mumbai shall be given to Dhirajlal Rajguru alone. He also expressed that the monies lying in the account should be given to the person whose joint name is appearing in the concerned account and the deceased reposed full faith in his son Dhirajlal as he expressed that he shall fulfill all his desires and he also expressed about the Power being given to Dhirajlal and this document was directed to be given in closed envelope to Advocate Kakkad.
It can thus be noted that the declaration dated 25.07.2006 is relied upon by the Defendant No.3 for substantiating his case that the deceased father wanted to distribute all his properties during his lifetime and he also indicated about giving Power to Dhirajlal for dealing with the properties in Advana, Porbunder and also as regards Flat No.402 and 602 in Kings Apartment.
The declaration is relied upon by Defendant No.3 in support of his case that during his lifetime the deceased Karsanji had already disposed off all the properties by his free will and after his death, assuming that there existed any Will which was executed by him nothing survive for distribution as no property remain at the time of his death, which was not distributed and this declaration conform to the wishes and desires of the deceased.
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75] Now it has to be seen as to how the Plaintiff has
traversed this pleading of execution of the declaration dated 25.07.2006 and one thing must be kept in mind that in support of the declaration, which is scribed by the sister of the deceased, Amrutaben, she is not examined by either the Plaintiff or Defendant No.3.
Coming to the additional Affidavit in lieu of examination in chief of the Plaintiff, in Para 20 she has disputed the execution of any such declaration by her father and she has averred specifically as under :-
"20. The said purported declaration dated 25th July, 2006 could not have been executed by my father as :
a. The signature of my father on the said purported Declaration dated 25th July 2006 (said Declaration) is ex facie forged and fabricated. The signature is not that of my father. b. Even the language used in the said purported Declaration dated 25th July, 2006, is not of my father. c. My father was very professional in his approach, and was very meticulous in his work. He could not have made the said Declaration in such a manner- especially when the said purported Declaration is made in a completely haphazard and unprofessional manner as compared to the Will dated 12 th May 2006, in which my father clearly bequeathed his Estate to his family members and donated to the local community as well. d. It is inconceivable that my father would agree to two local workers to be witnessed to the said Declaration dated 25 th July, 2006 especially when my father was extremely professional in his dealings.
3. My father would get all his documents executed by his advocate Mr. Kakkad. My father was alive for 5 weeks after he executed the said alleged declaration dated 25th July, 2006. IT is inconceivable that he would not have checked again and again with myAunt Ms.Amrutben and /or Kakkad about the progress of the alleged Declaration."
76] Further, she has also contested the claim of Defendant no.3, that this Declaration was tracked by Ms.Amrutben rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 80/93 Suit-3165-2010.odt Rajguru, the Aunt of the Plaintiff and Defendant No.3, in the old cupboard in the house situated in Advana in last week of January, 2013 and according to her, this is dishonest attempt of Defendant no.3 to create evidence which was not available at the time when the Plaintiff had instituted the Suit and, therefore, this document is looked upon as an afterthought. In this regard, in Para 21 of her additional Affidavit, she has narrated certain circumstances so as to dispel the pleadings by stating as under :-
b. Defendant NO.3 did not get on well with my aunt Ms. Amrutben. On several occasions, my aunt Ms.Amrutbenhad complained and cried in front of myself and complained that Defendant No.3 had threatened her that he would throw her out of house on the demise of my father.
c. Being aware of the threats given by Defendant No.3 to my aunt Ms.Amrutben Rajguru and realising the gravity of the situation, I told my father about this matter. Because of this realisation, in the Will dated 12 th May , 2006, my father provided life interest in favour of Ms.Amrutben Rajguru.
f) Instead of thanking me for giving her the good news, my aunt Ms.Amrutben stated that she was not happy that my father had left all the property to myself. She advised me to return the property to my brothers as traditionally as per the customs and the religious practice the sons should inherit the property. At this stage, she could have mentioned or remembered the said Declaration, but she failed to do so.
h) I met my aunt Ms.Amrutben on our about 4 occasions during 2006-2007 and update her on the progress of the Probate.
At no time during these visits did she mention anything about the said Declaration.
i) My aunt Ms.Amrutben Rajguru was all along aware of the said proceedings. At no point of time did she inforrm me or other Defendants about the said purported Declaration.
j) My aunt Ms.Amrutben Rajguru was a Principal in a School in Porbandar and now a retired teacher. Therefore, it is inconceivable that she would have forgotten about the said purported Declaration. She had the opportunity to remember this fact on several occasions, but failed to do so. This document only came to light after Defendant No.3 lost his case in Appeal (L) No.813 of 2011 in January 2012. This is a final desperate measure to usurp the estate for himself alone.
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It is also deposed by the Plaintiff that Ms.Amrutben Rajguru is under complete influence and control of Defendant No.3 as the house where she is residing in Advana is in possession and custody of Defendant no.3 and therefore she is completely at his mercy and favour. Further, it is also stated that in the year 2012, when the alleged Declaration dated 25.07.2006 was propounded for the first time by Defendant no.3, Amrutben Rajguru was about 75 years old.
77] Defendant No.3 has dealt with the aforesaid allegation and in his Affidavit in lieu of examination in chief, and in Para 32 he has reiterated that his Aunt Amrutben found a Declaration executed by the deceased and she has forgotten about the same. He reiterated that Amrutben handed over the Declaration when he came to India in February, 2012. This Declaration has been written down by Amrutben in her own hand-writing and he is familiar with the hand-writing of Amrutben she being a teacher. Further it is also deposed by Defendant No.3 that the Declaration has been signed by the deceased and he was familiar with the signature of the deceased. It is further stated that the Declaration has been attested by one Kamlesh Ravji and Kaushik Gordhan Sukha, the two persons known to the deceased.
The document being in Gujarathi has been translated and placed on record by Defendant No.3.
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78] The allegation of the Plaintiff that the Declaration is not
signed by the deceased is not substantiated, whereas, Defendant No.3 has categorically deposed on oath and his this statement, is not contradicted by the Plaintiff while cross- examining him, being he was familiar with the signature of the deceased as also he was familiar with the hand-writing of his Aunt Amrutben. Defendant No.3 is not subjected to any cross- examination on the basis of Para 20 of the Affidavit of Evidence filed by the Plaintiff. Thus, Para 20 and 21 in the Affidavit of the Plaintiff are not proved by the Plaintiff by adducing any positive evidence, as though it is alleged that the signature of her father on the Declaration is ex facie forged and fabricated and the signature is not that of her father, nor is the language, no evidence is brought on record by the Plaintiff to establish her claim that the document is forged. In her cross-examination, to a question put to her, "Are you able to identify your father's signature?", she answered by stating "Generally yes".
79] The discovery of this document and the declaration contained therein has formed the basis of the Defendant's stand that Karsanji always intended to distribute the property during his lifetime and following his desire, he executed a Declaration on 25.07.2006 and since there is no cross- examination on this aspect which could impeach the credibility of the Defendant's evidence revolving around the Declaration dated 25.07.2006, the issue Nos.7 and 8 stand answered by holding that the deceased Karsanji by his Declaration dated 25.07.2006 had decided to dispose off rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 83/93 Suit-3165-2010.odt movable and immovable properties and this Declaration came to the knowledge of Defendant no.3 only in January, 2012. Though the entitlement of Defendant No.3 to claim the properties at Advana and two flats and one garage in Kings Apartment as well as the amount which has come into his accounts, is not the sole basis of his claim, but this document definitely re-affirm his claim that the deceased intended to distribute/dispose off his movable and immovable properties during his life time. In any case, this document except the desire of the deceased to distribute the properties during his life time, thus serve a limited purpose and definitely does not have the effect of rendering the Suit itself infructuous.
Apart from this, the discovery of this document in January, 2012, though its execution is dated 25.07.2006, the claim of Defendant no.3 that it was handed over to him by his Aunt Amrutben deserve to be accepted as this claim is not refuted by the Plaintiff by bringing any cogent evidence on record. Though, it do not amount to the Suit having been rendered infructuous, but it definitely an impact upon the claims staked by the Plaintiff in the Suit.
For the aforesaid reason, since the Plaintiff has failed to prove her entitlement to 1/6th share in the estate of deceased father, since nothing remained for distribution when Karsanji passed away, Issue No..1 is answered against the Plaintiff.
80] Coming to Issue No.10, as to whether the Suit filed by the Plaintiff is within limitation, as the Plaint has referred to heap of correspondence addressed to the Kings Apartment CHS rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 84/93 Suit-3165-2010.odt and pursuant to the Probate proceedings being filed by the Plaintiff, the Co-operative Housing Society vide its letter dated 23.11.2006 addressed to the Principal Senior Civil Judge, Court of Additional Senior Civil Judge, Porbandar, has informed that the Society has received the application for transfer of Flat no.402 and 601 from Defendant no.3 based on the Gift Deed and requesting to take appropriate action. The letter was received by the concerned registrar of the Court on 28.11.2006.
The contention of the Defendant is, computing the period of limitation in terms of Article 58, the limitation will start running from the date of knowledge or when the cause of action accrued and it shall be 3 years from this point of time. It is submitted that objection was raised by Defendant no.3 in the Probate proceedings initiated by the Plaintiff in the Court at Porbandar in January, 2007 itself and where it is specifically mentioned that the deceased father, while he was alive, has given a POA to him on the basis of which, the Gift Deed was executed in his favour and, therefore, the Plaintiff has no right, title or interest to raise any objection or dispute in regards to these properties.
81] Defendant No.3 has specifically attributed the knowledge to the Plaintiff about the execution of POA and the two Deeds and based on this, it is sought to be canvassed that the Plaintiff had knowledge of transfer of funds by the father in his lifetime since November 2006, whereas, the Suit is filed in the year 2010. It is the specific case of Defendant Nos.3 and 4 that :-
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i) During the lifetime of the deceased father, the deceased father had distributed his properties amongst his children. The Plaintiff is also beneficiary of such distribution. Reference may be made to Affidavit in lieu of Evidence dated 17th March 2012 of the Plaintiff and in particular item No.(III) (v), (vii) at page 801, item (xi) at page 802. These entries would indicate that during the course of said distribution the Plaintiff is one of the beneficiary. The aforesaid fact is also confirmed by the statements submitted by the Banks to the Registrar, Porbunder Court in the Probate proceedings which statement is at page 1201 to 1203. In the said statement item No.5, 7 and 11. The said statement also would indicate the monies were paid by the deceased father to his other children except Defendant No.1. Even according to the Plaintiff the relations of the deceased father were not good with Defendant No.1.
ii)In view of the Plaintiff being one of the beneficiaries of distribution made by the deceased father, the Plaintiff also knew about the Gift Deed and the Release Deed executed by the deceased father on the basis of the said Power of Attorney, right from the date of execution of the said documents. If in the present suit the Plaintiff is challenging the validity of the said documents then for such challenge cause of action would accrue to the Plaintiff right around the time the said documents were executed i.e. in June 2006. The present suit has been filed by the Plaintiff in October 2010. Hence, the same is barred by law of limitation.
iii) Without prejudice to the aforesaid submission and assuming without admitting that the Plaintiff was not aware of the said Power of Attorney, Gift Deed and Release Deed when the same were executed in June 2006, even then the Plaintiff learnt about the same on 26th November 2006 when the said society informed the Registrar of the Court at Porbunder about the claim made by the Defendant No.3 on the basis of the said Power of Attorney, Gift Deed and Release Deed. The said letter was received by the Registrar on 28th November 2006. The Plaintiff therefore knew about the claim of the Defendant No.3 in respect of flat No.402 and 601 from 28th November 2006. Plaintiff could have immediately called upon either Defendant No.3 or the said Society to furnish to her the copies of the said documents. The Plaintiff did not choose to do so and waited till 10th November 2008 when she wrote a letter to the said society inter alia asking the said documents and not to transfer the said flats without getting express consent and/or Letters of Administration of the estate of the deceased father (see paragraph 5 at page 188 of the compilation of documents). Even after 10th November 2008, the Plaintiff did not choose to initiate any proceedings for challenging the said Power of Attorney, Gift Deed and Release Deed until October, 2010.
iv) The said society by its letter 25th November 2008 (see page 191 and in particular the last paragraph of the said letter) addressed to Advocates of the Plaintiff, inter alia, informed the rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 86/93 Suit-3165-2010.odt Plaintiff that the society shall not be in a position to transfer the shares in favour of any of the legal heirs unless an appropriate Court directs the Society to do so. Despite the same the Plaintiff did not choose to initiate any proceedings challenging the said Power of Attorney, Gift Deed and Release Deed.
v) The Plaintiff for the first time, (even though she was aware of the said Power of Attorney, Gift Deed and Release Deed since its execution and in any event since November 2006) by her Advocates letter dated 20th January 2009 challenged the said documents viz. Power of Attorney, Gift Deed and Release Deed. Even after addressing the said letter. the Plaintiff waited till 23rd October 2010 to file the present suit.
vi) In the circumstances, the claim of the Plaintiff to challenge the validity of the said Power of Attorney, Gift Deed and Release Deed, is hopelessly barred by law of limitation. The cause of action having accrued to the Plaintiff in June 2006 and in any event in November 2006, the Plaintiff has filed the present suit on 23rd October 2010 which is beyond the period of 3 years and hence the same is barred by law of limitation.
vii) As far as claim for administration of estate of the deceased father is concerned, the deceased father died on 31st August 2006. Assuming without admitting that on the date of death of the deceased father, the deceased father owned any property even then the suit for administration of estate should have been filed within a period of 3 years from the date of the death of the deceased. The Plaintiff had knowledge of transfer of funds by the father in his lifetime as also about the transfer of said flats atleast since November, 2006.
82] Mr. Mody, the learned counsel for the Plaintiff has invited my attention to the amended written statement filed by Defendant No.3 when he objected to the reliefs claimed by the Plaintiff primarily on two counts; the first being the deceased Karsanji administered/distributed/disposed off his estate during his lifetime, and hence the question of obtaining any letter of administration did not arise. On the second count, while opposing the reliefs in the Suit and praying for dismissal of the Suit, it is pleaded by Defendant No.3 that the Plaintiff has no cause of action for filing the Suit and the cause rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 87/93 Suit-3165-2010.odt of action, if any, accrue upon the demise of said Karsanji i.e. on 01.09.2006 and the Suit is filed on 13.10.2010 and hence, the Suit is barred by law of Limitation and deserve to be dismissed on this ground.
While appreciating the arguments of Mr.Mody, when the written statement as well as the stand taken by Defendant No.3 is carefully looked into, it is evident that he has never pleaded his case to the effect that the cause of action arose from the date of letter dated 23.11.2006 or from January, 2007, from the date of filing of his Affidavit in the Probate proceedings in Porbandar. It was never his case that the limitation start running from 23.11.2006 when the letter was addressed by the Society to the Registrar of the Court in Porbandar. It is thus evident that for the first time without any pleadings to that effect or any evidence being rendered, it is sought to be suggested that the limitation starts running from the exchange of communication dated 23.11.2006 from the society, or from January, 2007 when the Defendant for the first time raised the defence as regards execution of the POA and two Deeds in his favour while raising an objection to the Probate proceedings filed by the Plaintiff.
The Plaintiff's case as pleaded in the Plaint is that, for the first time she gained knowledge about the alleged Gift Deed, Release Deed and POA through the letter dated 15.01.2009 addressed to her lawyer by defendant No.3's lawyer. The submission on behalf of the Defendant No.3 is that the Plaintiff is guilty of suppressing the important developments and what is attempted to be pointed out to me is about the Plaintiff's Probate proceedings, having been rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 88/93 Suit-3165-2010.odt dismissed in 05.05.2008 itself, but the Plaintiff continued her correspondence with the Society in opposing the transfer of shares in name of Defendant No.3, based on the Probate proceedings and giving an impression that the proceedings are still pending.
The purported Will is executed on 12.05.2006 and in fact on the date of dismissal of the Suit filed by the Plaintiff for seeking Probate of the said Will on 05.05.2008, as far as the chapter of the Will is concerned, it has come to an end.
The Plaintiff's case is also not consistent on the aspect as to whether the Will continued to remain in possession of Defendant No.3 or it was handed over to her lawyer and as I have already referred to her cross-examination on this aspect which makes her case doubtful, though I am not convinced on this aspect, as far as the point of limitation is concerned, since it is the pleaded case of the Defendant that the limitation arose from she gaining knowledge about the POA, Release Deed and Gift Deed, from the communication dated 15.01.2009, I am not convinced to accept the submission of Mr.Shah that the suit is barred by limitation.
83] The attempt of Defendant No.3 is to bring in a new case which is not pleaded in the written statement and by giving a new point of limitation on being computed from issuance of letter dated 23.11.2006 about the stand taken in the Probate proceedings, but since Defendant no.3 has also not specifically laid any evidence to that effect, the arguments about limitation advanced by Mr. Shah do not deserve consideration as it rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 89/93 Suit-3165-2010.odt traverse beyond its pleaded case and accordingly, Issue No.10 deserve to be answered in the negative.
84] Since on appreciating the pleadings in the Plaint and the Written Statement as well as the evidence brought on record, it has become clear to me that at the time when the deceased passed away, that is on 31.08.2006, he had already distributed his property through the POA, which resulted in execution of Gift Deed and Release Deed in respect of two flats and garage in Mumbai and similarly, he had distributed the property in Advana in favour of Defendant no.3, and as such nothing remain for being distributed upon his death. Even if there is a Will executed by him, if the distribution of the property in favour of Defendant no.3 is not affected by any legal lacunae/ infirmity, in that case, if at the time of his death, no property remained to be distributed, the execution of Will in favour of the Plaintiff could not have resulted in any consequences. The Declaration found by Amrutben in January, 2012 dated 25.07.2006 has also expressed the desire of the deceased Karsanji to distribute and dispose off the property, in favour of Defendant no.3, but whenever there were joint accounts held with other Defendants, he left it to the respective account holder. The Plaintiff has thus failed to prove her claim, of the deceased leaving the property behind him, when he passed away on 31.08.2006, and since there was disposition of his property as per his desire and wishes, since there is no property remaining for being administered or partitioned in 1/6th share as claimed by the Plaintiff, the relief sought in the Plaint cannot be granted and necessarily the Suit deserve to rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 90/93 Suit-3165-2010.odt be dismissed as I have answered the issues settled in the Suit in the following manner; Issue No.1, 4, 5 and 9 - Answered against the Plaintiff; Issue No.3, 6, 7 and 8 - Answered in favour of the Defendant. Issue No.2 is answered in the Affirmative, whereas, Issue No.10 is answered against the Defendant Nos.3 and 4.
In the wake of the above, having being held that the Plaintiff is not entitled for administration of the estate of the deceased and its partition for making her entitle for 1/6th share, the Suit No.3165/2010 is dismissed.
Decree be drawn accordingly.
85] At this stage when the Judgment was pronounced, the proxy counsel representing Mr.Mody would request for its stay, but in my considered opinion, since the Suit is filed by the Petitioner for declaration and partition and it is held that she is not entitled for the reliefs, there is no question of grant of stay.
86] Since it is noted that the Court Receiver was appointed as Receiver of Flat No.402 and in furtherance of the order, the said flat was given on Leave and License, the Court Receiver has submitted the details of the FDRs lying in the Suit, which has accumulated an amount of Rs.41,16,713.90 as well as security deposit to the tune of Rs.2,88,761.00/-. The details of the same are offered as below :-
Principal Sr.No Name of the Bank Effect Date Due Date Ledger No. Amount 1 Bank of Maharashtra - 1,83,858.00 22/01/2023 22/01/2026 26/9 N rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 91/93 Suit-3165-2010.odt Senior Citizen Indian Overseas Bank -
2 92,252.00 27/08/2023 27/08/2026 26/9 N Flora Fountain Indian Bank - Nariman 3 1,05,337.00 31/07/2022 31/07/2025 27/9 N Point Central Balnk of India -
4 1,11,670.00 19/10/2022 19/10/2025 28/9 N Boribunder 5 Dena Bank - Share Bazar 2,36,049.00 07/01/2023 07/01/2026 28/9 N 6 Uco Bank -Nariman Point 96,743.00 07/10/2022 07/10/2025 30/9 N Union Bank of India - Home 7 96,080.00 08/02/2023 08/02/2026 30/9 N Street 8 Canara Bank - Fort 1,05,071.00 05/05/2023 05/05/2026 30/9 N 9 Canara Bank - Fort 1,14,960.00 26/04/2024 26/04/2027 31/9 N 10 Bank of Baroda - Colaba 2,50,893.00 24/04/2024 24/04/2027 31/9 N 11 Dena Bank - Share Bazar 97,568.00 04/04/2024 04/04/2025 31/9 N 12 Bank of Maharashtra - Fort 89,593.00 10/06/2021 10/06/2024 31/9 N Canara Bank - Nariman 13 1,03,227.00 10/07/2023 10/07/2026 39/9 N Point 14 Uco Bank -Nariman Point 95,390.00 03/02/2023 03/02/2026 39/9 N 15 Syndicate Bank - Fort 1,42,797.42 31/10/2023 31/10/2026 39/9 N 16 Syndicate Bank - Fort 1,43,388.48 30/11/2023 30/11/2026 39/9 N 17 Syndicate Bank - Fort 2,86,737.00 23/03/2024 23/03/2027 39/9 N Central Balnk of India -
18 1,03,185.00 26/02/2023 26/02/2026 39/9 N Boribunder Canara Bank - Nariman 19 89,157.00 24/06/2021 24/06/2024 40/9 N Point Canara Bank - Nariman 20 1,95,479.00 15/06/2021 15/06/2024 40/9 N Point Bank of Maharashtra -
21 96,649.00 09/08/2022 09/08/2025 40/9 N Mantralaya 22 Bank of India - D. N. Road 96,946.00 27/08/2022 27/08/2025 40/9 N Union Bank of India - V. N. 23 2,50,000.00 27/02/2023 27/02/2026 40/9 N Road Union Bank of India - Home 24 75,000.00 24/03/2023 24/03/2026 40/9 N Street Bank of Baroda - Fort 25 1,50,000.00 27/07/2023 27/07/2026 40/9 N University Bank of Baroda - Mumbai 26 1,50,000.00 24/08/2023 24/08/2026 40/9 N Main Bank of Baroda - Fort 27 1,50,000.00 20/01/2024 20/01/2027 41/9 N University 28 Indian Overseas Bank - Fort 1,83,684.00 17/11/2023 17/11/2026 41/9 N rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 92/93 Suit-3165-2010.odt Bank of Baroda - Fort 29 1,50,000.00 29/11/2023 29/11/2026 41/9 N University Bank of Baroda - Crawford 30 75,000.00 27/02/2024 27/02/2027 41/9 N Market TOTAL RS. 41,16,713.90 MULTI A/C-1 (Securit Deposit A/c) 1 Bank of Maharashtra - Fort 93,761.00 21/03/2023 21/03/2026 26/9 N Indian Overseas Bank - New 2 1,95,000.00 20/09/2022 20/09/2025 40/9 N Marine Lines TOTAL RS. 2,88,761.00 87] In the wake of dismissal of the Suit, the Court Receiver, High Court, Bombay is directed to hand over possession of Flat No.402 to Defendant No.3 alongwith the amount lying to the credit of the Court Receiver alongwith accrued interest, after deducting Court Receiver's expenses.
It is also informed that Mr. Anshuman Jeswal is the present licensee and he has deposited security deposit of Rs.1,95,000/- and his license will come to an end on 30.09.2024.
Needless to state that, it is open for Defendant No.3 to take appropriate steps as regards continuation of the licensee, and if at all decision is taken not to renew the the license, the security deposit shall be made over to the licensee Mr. Anshuman Jeswal, within a period of six weeks from the date of expiry.
The Court Receiver stands discharged without passing rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 ::: 93/93 Suit-3165-2010.odt accounts, however, subject to the payment of necessary costs and expenses that have been incurred when the Court Receiver continued to act in terms of the directions issued by this Court.
( SMT. BHARATI DANGRE, J.) rajshree ::: Uploaded on - 14/06/2024 ::: Downloaded on - 23/06/2024 23:13:59 :::