Bombay High Court
Krishnaraj Pratap Thaker vs Yatin Hariram Ruparel And Ors And ... on 27 June, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:9619
ial 11209 of 2002.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO.392 OF 2021
IN
TESTAMENTARY PETITION NO.377 OF 2008
Bhavana Harish Ruparel and Ors. ... Applicants
and
Yatin Hariram Ruparel And Anr. ... Petitioners
versus
Ashwin Hariram Ruparel ... Respondent
WITH
INTERIM APPLICATION (L) 15054 of 2021
IN
TESTAMENTARY PETITION NO.377 OF 2008
Ashwin Hariram Ruparel ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
WITH
INTERIM APPLICATION NO.2376 OF 2022
IN
TESTAMENTARY PETITION NO.377 OF 2008
Krishnaraj Pratap Thaker ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
versus
Ashwin Hariram Ruparel and Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO.8791 OF 2022
IN
TESTAMENTARY PETITION NO.377 OF 2008
Yatin Hariram Ruparel ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
versus
Ashwin Hariram Ruparel and Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO.11209 OF 2022
SSP / Arun 1/63
ial 11209 of 2002.doc
IN
TESTAMENTARY PETITION NO.377 OF 2008
Ashwin Hariram Ruparel ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
Dr. Abhinav Chandrachud with Ms. Khushboo Rupani, Mr. Sharan Shetty i/by
HSA Advocates for Applicants in IA No.392 of 2021.
Mr. Avesh Harshan i/by Bose and Mitra and Co., for Original Petitioner No.2 in
TP No.377 of 2008 and for Applicant in IA No.2376 of 2022.
Mr. S.C.Naidu with Mr. Omkar Kulkarni, Mr. Pradeep Kumar, for Petitioner
No.1 in TP No.377 of 2008 and forApplicant in IAL No.3791 of 2022.
Mr. Anoshak Daver with Mr. Viraj Jadhav, for Respondent No.1 in IA No.392 of
2021 and for Applicant in IAL 15054 of 2021 and 11209 of 2022.
CORAM : N.J.JAMADAR, J.
RESERVED ON : 24 OCTOBER 2024
PRONOUNCED ON : 27 JUNE 2025
JUDGMENT :
1. All these Interim Applications have their genesis in Testamentary Petition No.377 of 2008 filed for grant of Letters of Administration to the property and credits of Shantadevi Ruparel (Deceased).
2. In view of the order passed by the Appeal Bench dated 2 May 2024 in Appeal No.86 of 2024, all these Interim Applications were heard together and are being decided by this judgment.
3. In the backdrop of the genesis of the disputes which essentially revolve around the due and proper administration of the estate of the deceased and the developments that have occurred during the pendency of these SSP / Arun 2/63 ial 11209 of 2002.doc applications pursuant to the various orders passed over a period of time, it may not be necessary to elaborately note the pleadings in each of the Interim Applications. It would be in the fitness of things to first note the background facts in a little detail and then briefly advert to the averments and prayers in each of the Interim Applications and the response thereto.
4. BACKGROUND FACTS :
4.1 Hariram Ruparel was the husband of Shantadevi (deceased). Hariram passed away on 10 May 1970. The deceased had three sons and three daughters by Hariram. The deceased passed away on 19 November 2007.
Vijayalaxmi, Indira, Bhagwati and Harish predeceased the deceased. Ashwin and Yatin are the surviving sons.
4.2 Yatin (P1) instituted a Petition with the assertion that, the deceased died intestate and sought Letters of Administration to the property and credits of the deceased. Krishnaraj (P2), son of Indira, had initially filed a caveat. 4.3 In the said Petition, on 21 September 2009, consent terms were filed by the Petitioners. Pursuant thereto, by an order dated 12 July 2010, the Court granted Letters of Administration, whereunder Yatin (P1) and Krishnaraj (P2) were appointed as joint administrators of the estate of the deceased. 4.4 Bhavana (A1) is the wife of Harish and Lisha (A2) and Kunal (A3) are the daughter and son, respectively, of Harish - Applicants in IA No.392 of 2021.
SSP / Arun 3/63
ial 11209 of 2002.doc 4.5 Harshal Dhabliwala, son of Vijayalaxmi, relinquished his 1/5th share in the estate of the deceased in favour of Yatin (P1), Bhavana (A1), wife of Harish, and Ashwin (R1). By an order dated 25 July 2012 passed in Chamber Summons No.72 of 2012, the Court directed the joint Administrators to divide the said 1/5th share of Harshal Dhabliwala among Yatin (P1), Bhavana (A1) and Ashwin (R1). Resultantly, Yatin (P1), Bhavana (A1), Lisha (A2) and Kunal (A3), collectively, and, Ashwin (R1) each have 26.66% share in the estate of the deceased and Krishnaraj (P2) has 20% share in the estate of the deceased.
IA NO.392 OF 2021 4.6 Bhavana (A1), Lisha (A2) and Kunal (A3), filed Interim Application No.392 of 2021, asserting inter alia that the Petitioners, especially Yatin (P1), have not provided full, complete and accurate disclosure of the estate of the deceased and have mal-administered the estate of the deceased and also siphoned off the funds out of the estate of the deceased. The applicants had, thus, initially sought relief of removal of the Petitioners as joint Administrators of the estate of the deceased and appointment of a fit and proper person as Administrator of the estate, declare that the Petitioners / joint administrators had illegally and unlawfully made preferential distribution to few selected persons to the detriment of the heirs of the deceased; direct the Petitioners and Ashwin (R1) to bring back into the estate of the deceased the monies SSP / Arun 4/63 ial 11209 of 2002.doc which had been preferentially distributed to some heirs and appoint Court Receiver for the purpose of administering the estate of the deceased. 4.7 Number of affidavits and undertakings were filed by Yatin (P1). Orders were also passed by the Court directing the Petitioners to make a complete disclosure of the financial transactions and dealings with the immovable properties of the deceased. Disclosures and undertakings were filed. Statement of expenses (marked X), and Statement (X-1) were filed by Yatin (P1) on 16 December 2021 indicating how the amount received from the estate of the deceased was proposed to be distributed. 4.8 By an order dated 11 February 2022, this Court permitted the Petitioners to act upon the statement of expenses (marked X) as well as the statement of distribution of monies (X-1).
4.9 The aforesaid order was carried in Appeal (L) No.3483 of 2022 and the connected appeals. By an order dated 9 March 2022, the Appeal Bench directed that the orders impugned in the appeal were not to be implemented or acted upon pending the hearing and final disposal of the Interim Applications.
4.10 Eventually, by an order dated 5 April 2023 in IA No.392 of 2021, with the consent of the parties, Yatin (P1) and Krishnaraj (P2) relinquished the joint administratorship and Mr. Anoj Menon, Solicitor, came to be appointed as an Administrator and Ms. Krupa Gandhi was appointed as an Auditor with certain SSP / Arun 5/63 ial 11209 of 2002.doc directions. Thus, the prayers to remove the Petitioners as joint administrators and the appointment of the another administrator In Interim Application No.392 of 2021 stood worked out.
4.11 The Interim Application No.392 of 2021 has been, thus, prosecuted for the reliefs of declaration that the Petitioners had made preferential distribution and the Petitioners and Ashwin (R1) be directed to bring back into the estate of the deceased the monies which have been preferentially distributed. As the auditor submitted the Audit Report, the Applicants have heavily banked upon the findings and the comments of the auditor to substantiate their claims.
IA No.2376 of 2022 4.12 Krishnaraj (P2) has filed IA No.2376 of 2022 with the contention that the debts of the estate have not been accurately described in the Statement (marked X) and that Yatin (P1) be directed to provide complete accounts of the estate to the beneficiaries of the estate along with upto date statement of accounts of the estate with Bank of Maharashtra, Indian Overseas Bank and Central Bank of India and that no payment shall be made without leave of the Court on account of purported expenses recorded in the statement (Marked X), except for payment of statutory dues. It was asserted that the said statement (marked X) had been unilaterally prepared by Yatin (P1) and was not accurate record of the amounts due to be paid by the estate. Krishnaraj SSP / Arun 6/63 ial 11209 of 2002.doc (P2) was made to sign the said statement (marked X) in good faith. IA(L) No.8791 of 2022 4.13 Yatin (P1) took out Interim Application (L) No.8791 of 2022 to release and distribute the amount of Rs.8,36,45,743/- to the legal heirs of the deceased as per the Statement of Distribution which was annexed as Exhibit I thereto and the balance amount of Rs.4,62,44,048/- be kept in a fixed deposit, subject to the decision in IA No.392 of 2022 and IA(L) No.3806 of 2022. It was, inter alia, asserted that pursuant to the order passed by the Supreme Court enhancing the compensation for the acquisition of the land owned by the deceased at Village Adai, Tal Panvel, Dist. Raigad, a sum of Rs.12,98,89,791/-, after deduction of TDS, became receivable to the estate of the deceased. Referring to the purported inconsistent stand of Krishnaraj (P2) and the Applicants in IA No.392 of 2021, Yatin (P1) proposed that after keeping aside the disputed claim to the tune of Rs.4,62,44,048/-, the balance amount of Rs.8,36,45,743/- be distributed amongst the Petitioner Nos.1 and 2, Ashwin (R1) and the applicants in IA No.392 of 2021 in the ratio indicated above.
IA(L) No.15054 of 2021 4.14 Ashwin (R1) has preferred IAL No.15054 of 2021 seeking directions to the Administrator to incorporate 1/4th share of the deceased in the properties of late Harish, son of the deceased and husband of Bhavana (A1), as SSP / Arun 7/63 ial 11209 of 2002.doc described in Exh. A, in the Schedule I to the Letters of Administration issued in TP No.377 of 2008.
4.15 As an interim measure, a direction was sought against the Applicants in IA No.392 of 2021 to deposit an amount of Rs.95,82,456/- with the Administrator of the estate of the deceased towards the share of the deceased in the estate of late Harish. Ashwin (R3) asserted that the lands described in Exh.A were the joint family properties. Without prejudice to the said contention, at any rate, the deceased being the Class I heir of Harish, was entitled to succeed to the estate of late Harish along with Bhavana (A1), Lisha (A2) and Kunal (A3), in equal share. Upon the acquisition of the said lands, the applicants in IA No.392 of 2021 have received a sum of Rs.5,11,06,440/- out of the total compensation of Rs.9,83,06,440/-, to the exclusion of Shantadevi, the deceased mother of late Harish. The applicants in IA No.392 of 2021 did not deliberately disclose that the deceased was also entitled to succeed to the estate of late Harish. Therefore, it was necessary to incorporate said 1/4th share of the deceased in the lands (Exh.A), and, consequently, in the compensation receivable upon the acquisition of the said lands, in the Schedule of Properties appended to the Letters of Administration.
IA(L) No.11209 of 2022 4.16 Ashwin (R1) took out another Interim Application i.e. IAL No.11209 of SSP / Arun 8/63 ial 11209 of 2002.doc 2022 seeking directions to the surviving legal heirs of late Harish and/or Maharashtra State Road Development Corporation Limited (Acquiring Body) to directly deposit an amount of Rs.1,24,56,688/- with the administrators of the estate of the deceased towards the share of the deceased in the estate of late Harish. It was, inter alia, contended that the properties which stood in the name of Harish were not his self-acquired properties, but the properties acquired out of the income of the business of Hindustan Commercial Company, a HUF. Thus, the applicant - Ashwin (R1) and other legal heirs of late Harish were entitled to succeed to the estate of late Harish. In any event, Shantadevi, the deceased mother of Harish, was entitled to succeed to 1/4th share in the estate left behind by Harish.
4.17 It was learnt that MSRDC was in the process of transferring balance amount of compensation to the Court. Thus, the deceased was entitled to a sum of Rs.1,24,56,688/- towards her share in the balance amount of compensation. Hence, Ashwin (R1) sought directions to the Applicants in IA No.392 of 2021 and/or MSRDC to deposit the said amount with the Administrator of the estate of the deceased.
5. The situation which thus emerges is that in these Interim Applications in TP No.377 of 2008, wherein Letters of Administration have been granted to Yatin (P1) and Krishnaraj (P2) for the property and credits of the deceased, SSP / Arun 9/63 ial 11209 of 2002.doc there are rival claims as to due administration of the estate of the deceased.
6. In IA No.392 of 2021, the applicants who are the heirs of late Harish, predeceased son of the deceased, alleged that the joint administrators have made preferential distribution to few persons to the detriment of the applicants; in IA No.2376 of 2022, Krishnaraj (P2), the erstwhile joint administrator, by and large, supports the claim of the Applicants in IA No.392 of 2021 and seeks directions against Yatin (P1) to provide complete accounts and distribute the estate of the deceased in accordance with the respective shares of the heirs; Yatin (P1), in turn, seeks partial distribution of the estate of the deceased amongst the legal heirs of the deceased, keeping aside the sums over which there are disputes and Ashwin (R1) seeks inclusion of the 1/4th share of the deceased in the estate of late Harish in the Schedule of property appended to the Letters of Administration alleging that the applicants have wrongfully appropriated the entire estate of late Harish to the exclusion of the deceased.
7. The prayers in the respective applications are opposed by the opponents / applicants in the rival applications Number of affidavits have been filed on behalf of the parties.
8. In the wake of the pleadings and the aforesaid facts, I have heard Dr. Chandrachud, learned Counsel for the Applicants / heirs of late Harish, Mr.Avesh Harshan, learned Counsel for Krishnaraj (P2), Mr. Naidu, learned SSP / Arun 10/63 ial 11209 of 2002.doc Counsel for Yatin (P1) and Mr. Anoshak Daver, learned Counsel for Ashwin (R1) in IA No.392 of 2021 and the Applicant in IA(L) Nos.15054 of 2021 and 11209 of 2022, at some length. Learned Counsel for the parties took the Court through the pleadings and documents on record, including the audit report filed by the Auditor pursuant to the order passed by this Court. Learned Counsel have also tendered written notes in elaboration of the submissions canvassed across the bar.
9. Dr. Chandrachud, the learned Counsel for the Applicants, would urge that the facts which have progressively emerged indicate that Yatin (P1) has abused the office of the Administrator of the estate of the decesed. Adverting to various acts of commission and omission, Dr. Chandrachud would urge that Yatin (P1) resorted to all sorts of pretexts and subterfuge to justify the preferential distribution of assets of the deceased to himself, his wife Jyoti and Ashwin (R1) by taking inconsistent and, at times, contradictory defences, when the pretence was unearthed.
10. Dr. Chandrachud premised the prayer to direct Yatin (P1) and Ashwin (R1) and the other persons, to whom there has been alleged preferential distribution of the assets, on the orders passed by this Court in these very proceedings, dated 7th April 2021, 5th April 2023 and 21st March 2024. Placing reliance on these orders, Dr. Chandrachud would submit that the challenge to the maintainability of the Interim Application No.. 392 of 2021 on the ground SSP / Arun 11/63 ial 11209 of 2002.doc that the proper remedy is to institute a separate Suit to recover amounts that have allegedly been preferentially allotted or otherwise pilfered from the estate of the deceased, is not at all tenable.
11. Dr. Chandrachud, would urge that under Section 303 and 304 of the Indian Succession Act, a person who intermingles with the estate of the deceased is liable to compensate the estate for the loss. Under Section 368 of the Act of 1925, an Administrator who misapplies the estate is liable to make good the loss to the estate. The powers of the Testamentary Court, Dr. Chandrachud would urge, are plenary.
12. A strong reliance was placed by Dr. Chandrachud on the judgment of the Division Bench of this Court in the case of Manek Dara Sukhadwalla Vs Shernaz Faroukh Lawyer & Others,1 to buttress the submission that there is no restraint on the power of the Testamentary Court to fashion the remedies to ensure that the estate of the deceased is administered in accordance with the law. Therefore, if the Applicants succeed in demonstrating that Yatin (P1) has made preferential distribution and otherwise caused loss to the estate of the deceased and Yatin (P1), Ashwin (R1) and other heirs have unjustly enriched themselves, the Court can direct those persons to bring back the said amount alongwith interest.
13. The submissions were principally rested on the Auditor's final report 1 2024 SCC OnLine Bom 2204.
SSP / Arun 12/63
ial 11209 of 2002.doc submitted in terms of the order dated 5 April 2023 passed by this Court in IA th No. 392 of 2021. Dr. Chandrachud took the Court through the finding of the Auditor qua each item of the alleged preferential allotment and/or loss to the estate of the deceased, to draw home the point that Yatin (P1), Ashwin (R1) and others who have unjustly enriched themselves, were given an efficacious opportunity by the Auditor and they could not satisfactorily account for the same and on the basis of objective material, the Auditor has recorded objective findings and even Yatin (P1) and Ashwin (R1) have miserbly failed before this Court despite filing multiple Affidavits and statements.
14. At this stage, it may not be necessary to document the submission on each count of allotted preferential distribution and pilferation of the estate of the deceased. Instead the Court finds it appropriate to broadly note the submissions and appreciate the same in the light of facts and material which are on the record of the Court.
15. As many as nine instances of preferential distribution of the estate to the detriment of the Applicants and others were pressed into service. Distribution was made to Yatin (P1), Ashwin (R1) and Jyoti, the wife of Yatin, out of the estate of the deceased which were suppressed and not made part of the original schedule of assets annexed to the Petition. Secondly, Leena Ruparel, wife of Ashwin (R1), who is not an heir of the deceased, Ashwin (R1) and Yatin (P1), have preferentially received the assets from the estate of the SSP / Arun 13/63 ial 11209 of 2002.doc deceased, which were initially suppressed and not made part of the schedule of assets. When the blatant suppression was brought to light, the Petitioner, Yatin (P1) and Ashwin (R1) offered explanations which were ex-facie untenable and even contradictory.
16. Another feature of the case of Yatin (P1) and Ashwin (R1) was that they tried to offer different explanations and justify the usurpation of the estate of the deceased to suit their convenience at varying points of time, urged Dr. Chandrachud. Initially, in an email dated 28th October 2020, Ashwin (R1) sought to rely upon a purported "custom" in Navi Mumbai that the family member(s) who participated in litigation concerning land acquisition proceedings were entitled to 10% of the proceeds of compensation and sought payment in excess of Rs. 1 Crore. When this Court thoroughly repelled the said contention by order dated 25 th March 2021, Yatin (P1) and Ashwin (R1) propounded the theory of "out of pocket expenses" and "liaisoning fees", allegedly incurred by them. Krishnaraj (P2) the co- administrators categorically denied such out of pocket expenses. Not only no document could be produced to support the said contention but even the amounts kept changing. A reference was made to various Affidavits filed by Yatin (P1) and Ashwin (R1) to demonstrate the unsustainability of the said claim of Yatin (P1) and Ashwin (R1). Even the said, "out of pocket expenses theory" was rejected by this Court by an order dated 7 th April 2021. SSP / Arun 14/63
ial 11209 of 2002.doc Undaunted, Yatin (P1) in the statement of the proposed distribution (X1) claimed that Advocates' fees to the tune of Rs..1.51 Crores was required to be paid out of the estate of the deceased. Even the said stand was rejected by this Court by an order dated 21st March 2024.
17. Dr. Chandrachud would, thus, urge that at different points of time, Yatin (P1) and Ashwin (R1) have made desperate attempts to justify their unjust enrichment by ascribing reasons which were ex-facie unsustainable and even contradictory. In the face of overwhelming material to show that Yatin (P1) and Ashwin (R1) have unlawfully converted the estate of the deceased to their own use, in excess of the their entitlement, final distribution of the estate of the deceased cannot be effected without Yatin (P1), Ashwin (R1) and others, who have unjustly enriched themselves, first being directed to bring the said amounts in the estate of the deceased.
18. Dr. Chandrachud submitted that in the light of the aforesaid situation, it would be in the interest of all the heirs of the deceased to withhold the distribution until all the issues are resolved and the preferentially distributed amount is brought back along with interest.
19. Dealing with the submission on behalf of Yatin (P1) that the disputed amount be retained and the balance amount be distributed amongst the heirs, Dr. Chandrachud urged that, if any amount is to be set apart to account for the preferentially distributed / siphoned off amount, it should be set apart from SSP / Arun 15/63 ial 11209 of 2002.doc the share which would be payable to Yatin (P1) and Ashwin (R1), lest it would amount to permitting Yatin (P1) and Ashwin (R1) to utilize the estate of the deceased to which they were not entitled, to the detriment of the other legal heirs who are not at all at fault.
20. In respect of the prayers in the Interim Application (L) Nos.51054 of 2021 and 11209 of 2022 preferred by Ashwin (R1), Dr. Chandrachud submitted that the applications are based on the assumption that Harish, the predecessor in title of the Applicants, died intestate. As a matter of fact, Harish had left behind a Will for the Probate of which the Applicant No.1 has instituted a Petition. Upon the caveats being filed, the said Petition has been converted into a Testamentary Suit. Thus, at this stage, the prayers in the Interim Application to include the alleged ¼ share of the deceased in the property left behind by Harish is completely pre-mature. Moreover, the issue would require adjudication by the testamentary Court.
21. In any event, the applicant is raising the issue about the title to the property left behind by Harish which cannot be delved into by the testamentary Court. Therefore, the applications preferred by Yatin (P1) and Ashwin (R1) deserve to be dismissed.
22. Mr. Avesh Harshan, the learned Counsel for Krishnaraj (P2), supplemented the submissions of Dr. Chandrachud to the extent of the alleged unwarranted and preferential distribution by Yatin (P1). The SSP / Arun 16/63 ial 11209 of 2002.doc statement of expenses (X) and the distribution proposed by Yatin (P1) (X-1) were stated to be incorrect and misleading. It was controverted that the amounts were distributed by the joint administrators. Most of the amounts, the distribution of which is questioned, were withdrawn by Yatin (P1) from the estate prior to the grant of Letters of Administration. It was further submitted that apart from the wrongful withdrawals from the estate of the deceased, Yatin (P1) and Ashwin (R1) have suppressed and continued to suppress the estate of the deceased. Deliberate wrongful acts of causing loss to the estate of the deceased, like filing NIL income tax returns, were pressed into service by Mr. Harshan to draw home the point that Yatin (P1) had mal-administered the estate of the deceased.
23. Like Dr. Chandrachud, Mr. Harshan placed reliance on the observations and findings of the auditor with regard to the various items of preferential allotment and wrongful distribution. Mr. Harshan submitted that the contention on behalf of Yatin (P1) that the issue of disputed / excess withdrawal of the amount be kept aside and not considered for distribution, is misleading as Yatin (P1) and Ashwin (R1), having already misappropriated the amounts from the estate of the deceased in excess of their entitlement and to the prejudice of other legal heirs, cannot be permitted to take advantage of their own wrong.
24. Mr. Harshan was in unison with Dr. Chandrachud that Yatin (P1) and SSP / Arun 17/63 ial 11209 of 2002.doc Ashwin (R1) must be directed to bring back the amounts in terms of the order passed by this Court dated 7 April 2021, since their liability stands crystalized by the report of the auditor and the material on record. If any additional disbursal is to be made, a sum of Rs.1 Crore be kept aside to meet the increased income tax liability.
25. Mr. Naidu, learned Counsel for Yatin (P1) stoutly resisted the submissions on behalf of the Applicants and Krishnaraj (P2). At the outset, Mr. Naidu submitted that by the order dated 5 April 2023, all the prayers in the IA No.392 of 2021 stand worked out. A Solicitor of this Court has been appointed as an Administrator. The auditor has examined the accounts and submitted voluminous reports. Since the estate is under the management of Court appointed Administrator, the prayer to appoint the Receiver does not survive.
26. Referring to the provisions contained in Section 247 of the Act, 1925, Mr. Naidu would urge, the Administrator has all rights and powers of a general Administrator. Therefore, all the original prayers in IA No.392 of 2021 have been completely worked out.
27. Mr. Naidu would strenuously submit that the amended prayers (a1) and (a2) seeking declaration regarding the preferential distribution and a direction to bring back the amounts allegedly preferentially, or for that matter, wrongfully distributed, can, under no circumstances, be subject matter of an SSP / Arun 18/63 ial 11209 of 2002.doc application in a disposed off testamentary petition. Mr. Naidu submitted that, the contentious issues which would warrant adjudication post recording of evidence cannot be delved into and determined in an interim application. Proper remedy for the person who alleges improper or wrongful distribution of the assets by the Administrator is to institute a suit for administration, wherein the Court can legitimately decide the questions which are rooted in facts.
28. The aforesaid submission that the instant application is not a proper remedy was forcefully canvassed by Mr. Naidu with reference to the various items of alleged preferential / wrongful distribution of the estate of the deceased. For instance, Mr. Naidu would urge, the applicants have questioned the payment of a sum of Rs.2,30,000/- to Jyoti, under a cheque drawn by the deceased in her lifetime. The said cheque was presented for encashment after the demise of the deceased. It is the case of Jyoti that the deceased had paid the said amount by way of gift to her during former's lifetime. If this contention is accepted, then the said amount would cease to be part a of the estate left behind by the deceased. Determination of rival contentions would, thus, warrant examination of facts and evaluation of evidence to be adduced by the parties.
29. Mr. Naidu thus submitted that it is well recognized position in law that the beneficiary who questions the administration of the property by the administrator is required to institute an administration suit, especially when SSP / Arun 19/63 ial 11209 of 2002.doc the applicants questioned the extent of the estate of the deceased as of the date of demise. The said question can only be adjudicated in an administration suit. To buttress this submission, Mr. Naidu placed a very strong reliance on the judgment of the Supreme Court in the case of Babulal Khandelwal and Ors. V/s. Balkrishan D. Sanghavi and Ors.2.
30. As a second limb of the submission, Mr. Naidu would urge, the applicants have made bald allegations of fraud against Yatin (P1). If the allegations of fraud qua the administrator is to be proved, primary requirement is that of specific pleadings as envisaged under the provisions contained in Order VI Rule 4 of the Code. There are no such specific pleadings. In any event, serious allegations of fraud cannot be determined on the strength of the affidavits and counter affidavits, as the affidavits amount to oath against oath. The allegations would be required to be decided by subjecting witnesses to the cross-examination. It was further submitted that the applicants, after more than 10 years of having given consent for the grant of Letters of Administration and reaped benefits of the distribution of the estate of the deceased, have raised dispute regarding the estate left behind by the deceased. Thus, the said question cannot be adjudicated by way of an application in a disposed off proceeding, and, for this reason also, the only course open to the Applicants is to institute an independent suit for the 2 (2008) 10 SCC 485 SSP / Arun 20/63 ial 11209 of 2002.doc recovery of alleged preferential and wrongful distribution.
31. In any event, according to Mr. Naidu, the distribution made by Yatin (P1) and Krishnaraj (P2) jointly, was in the nature of an ad-hoc distribution. The entire estate of the deceased is yet to be realized and finally distributed. Therefore, at this stage, the prayers in the instant applications are misconceived and pre-mature.
32. On the merits of the allegations that there has been preferential and wrongful distribution of the assets, Mr. Naidu submitted that Yatin (P1) and Ashwin (R1) have offered explanations to each and every allegation of preferential distribution or excess withdrawal of the amount from the estate of the deceased. Taking the Court through the Report of the Auditor, the disclosures made by Yatin (P1) and the documents tendered in IA (L) No. 8791 of 2022, Mr. Naidu made an endeavour to meet each of the allegations and demonstrable that each of the disbursal and withdrawal has been properly accounted for. Mr. Naidu would urge, at best, the allegations of maladministration of the estate of the deceased are inferential. Even otherwise, if the correctness of such disbursal or withdrawal is contested, those issues can be adjudicated only by way of an Administration Suit and not in an interim application, reiterated Mr. Naidu.
33. The allegations of loss to the estate of the deceased on account of the alleged incorrect return and non-payment of the tax, Mr. Naidu would urge, SSP / Arun 21/63 ial 11209 of 2002.doc does not survive as in conformity with the opinion of the Senior Advocate, an updated Income tax Return for the Assessment Year 2022-2023 has been filed and tax of Rs.2,93,32,151/- has been paid after adjusting the TDS.
34. In substance, Mr. Naidu would urge, even the final audit report, on which reliance has been placed by the Applicants, does not allude to any misappropriation or siphoning off the funds by Yatin (P1). The prayers of the Applicants are based on the inferences drawn by the Applicants to suit their convenience. That cannot be the basis for either directing Yatin (P1) and others to bring back the amount into the estate of the deceased or withholding further distribution of the assets of the deceased.
35. Mr. Daver, the learned Counsel for Ashwin (R1), supplemented the submissions of Mr. Naidu, on the aspect of the tenability of the Applications seeking directions to bring back the amounts which were allegedly preferentially or wrongfully distributed. It was submitted such reliefs can be legitimately granted in an Administration Suit.
36. Mr. Daver laid special emphasis on the fact that the efforts of Ashwin (R1) resulted in multifold enhancement in the compensation awarded for the acquisition of the properties situated at Village Adai, Taluka Panvel. Mr. Daver would urge the initial compensation of Rs. 44 lakhs, approximately, came to be enhanced to Rs.30 Crores, approximately, only on account of the time, efforts and expenses expended by Ashwin (R1). The Applicants, after having SSP / Arun 22/63 ial 11209 of 2002.doc reaped benefit of enhanced compensation, have dishonestly questioned the liability of the estate to pay the Advocate's fees and out of pocket expenses incurred by Ashiwin (R1).
37. Mr. Daver submitted that Ashwin (R1) received only those amounts which were disbursed by cheques, drawn by the joint Administrators. Thus, the allegation that Yatin (P1) acted in connivance with Ashiwin (R1) and made preferential distribution to Ashwin (R1), does not hold any water. With regard to the alleged excess distribution, Mr. Daver submitted, given an opportunity Ashwin (R1) would be able to satisfy that the expenses incurred by Ashwin (R1) were all legitimate. Such contentious issues, therefore, cannot be decided de hors evidence, in the instant application. Therefore, at this stage, the prayer of the Applicants seeking direction to Ashwin (R1) to bring back the alleged excess disbursal, does not merit acceptance.
38. Mr. Daver would further submit that a substantial portion of the estate of the deceased still lies in this Court. The interest of the beneficiaries can be secured if partial distribution of the rest of the amount is ordered, keeping the disputed amount aside.
39. With regard to the prayer in the Interim Application (L) No. 15054 of 2021 and Interim Application (L) 11209 of 2022, filed by Ashwin (R1), Mr. Daver would submit that the deceased being Class I heir of Harish Ruparel was entitled to one fourth share in the properties left behind by Harish SSP / Arun 23/63 ial 11209 of 2002.doc Ruparel, in the least; though it is the case of Ashwin (R1) that those properties were impressed with the character of joint family properties as those properties were acquired when Harish was still a minor. Therefore, a direction to the Administrator to include the said property in the list of assets of Shantadevi is necessary.
40. Mr. Daver would urge that to resist the claim of Ashwin (R1), the Applicants have relied upon a purported Will executed by late Harish. The fact that the said Will came to be propounded after 20 years of the demise of Harish itself, according to Mr. Daver, speaks volumes about the legality, validity and genuineness of the said Will. Therefore, the pendency of testamentary proceeding does not constitute an impediment in bringing the said assets as a part of the estate of the deceased.
41. The aforesaid submissions now fall for consideration. INTERIM APPLICATION NO.. 392 OF 2021 :
42. The surviving reliefs in IA No. 392 of 2021 pertain to a declaration that the Petitioners had made preferential distribution and thus, the Petitioners and Ashwin (R1) be directed to bring back into the estate of the deceased the monies which have been preferentially or wrongfully distributed or appropriated. As noted above, the very tenability of the Application for such reliefs was seriously assailed on behalf of Yatin (P1) and Ashwin (R1). An Interim Application in a disposed off Petition cannot be entertained and the SSP / Arun 24/63 ial 11209 of 2002.doc only remedy was to institute a Suit for Administration was the fulcrum of the submission on behalf of Yatin (P1) and Ashwin (R1).
Tenability of the Applications :
43. The submission was rested on the premise that, in the context of the allegations, the question as to whether a particular asset formed part of the estate of the deceased cannot be delved into in a testamentary proceeding. A determination as to whether a particular property forms part of the estate of the deceased, as of the date of her demise, would warrant investigation into facts. Likewise, whether there has been distribution in excess of the entitlement and whether the explanations offered by Yatin (P1) and Ashwin (R1) regarding particular items of expenditure incurred and reimbursed, are matters rooted in facts and, thus, cannot be determined on the basis of assertions and denials in the Affidavits.
44. To begin with, it is necessary to note whether there is a legislative mandate to sustain the enquiries which the Applicants desire the Court to embark upon?.
45. Dr. Chandrachud would urge, the legislative mandate can very will be found in the provisions of Sections 303, 304 and 368 of the Act of 1925. Before adverting to those provisions, a few facts, especially the time-line, deserve to be kept in view. The deceased passed away on 19 th November 2007. Yatin (P1) instituted Testamentary Petition No. 377 of 2008 on 16 th April SSP / Arun 25/63 ial 11209 of 2002.doc 2008. Pursuant to the Consent Terms, by an order dated 12 th July 2010, the Court granted Letters of Administration and appointed Yatin (P1) and Krishnaraj (P2) as the joint Administrators of the estate of the deceased. The Letters of Administration were thus granted after about 32 months of the death of the deceased.
46. Section 303 of the Act of 1925 provides the circumstances in which a person can be said to be the executor of his own wrong. It reads as under:
"303. Executor of his own wrong. - A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong.
Exceptions. - (1) Intermedding with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property, does not make an executor of his own wrong.
(2) Dealing in the ordinary course of business with goods of the deceased received from another does not make an executor of his own wrong."
47. Section 304 of the Act of 1925, fixes the liability of the executor of his own wrong. It reads as under:
"304. Liability of executor of his own wrong. - When a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of SSP / Arun 26/63 ial 11209 of 2002.doc the assets which may have come to his hands after deducting payments made to the rightful executor or administrator, and payments made in due course of administration."
48. Sections 368 and 369 of the Act of 1925 deal with the liabilities of the executor or administrator for devastation, and loss to the estate by neglecting to get any part of the property of the deceased. They read as under:
"368. Liability of executor or administrator for devastation. - When an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned."
Illustrations :
(i) The executor pays out of the estate an unfounded claim.
He is liable to make good the loss.
"369. Liability of executor or administrator for neglect to get any part of property. - When an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount."
49. In the case at hand, the two sets of provisions; Sections 303, 304, and 368 and 369, of the Act of 1925 may came into play at different stages of the dealings with the estate of the deceased by Yatin (P1) and Ashwin (R1), on the one part, and Yatin (P1) and Krishnaraj (P2), on the other part, after the latter came to be appointed as the joint Administrators. SSP / Arun 27/63
ial 11209 of 2002.doc
50. It would be contextually relevant to note that under Section 220 of the Act of 1925, Letters of Administration entitle the Administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his death. At the same time Section 221 of the Act of 1925, declares in no uncertain terms that Letter of Administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate's estate.
51. In the backdrop of the aforesaid statutory provisions, especially, the texts of Section 368 of the Act of 1925, it becomes abundantly clear that the Administrator is not immune from the liability for the misapplication of the estate on account of the acts or omissions resulting in loss or damage to the estate of the deceased.
52. The fact that a person has been appointed as an Administrator of the estate of the intestate does not give him the carte blanch to administer the estate as per his whims or caprice. An Administrator is duty bound to administer the estate in accordance with law and distribute the same to the persons entitled to an interest therein, on account of the intestacy. Distribution of the estate to a person not entitled thereto or in excess of the entitlement is a matter for which the Administrator can be made to account for. Illustration (i) to Section 368 provides that if the executor pays out of the estate an unfounded claim, he is liable to make good the loss. SSP / Arun 28/63
ial 11209 of 2002.doc
53. An Administrator is essentially in the shoes of a trustee. As a trustee, the Administrator is expected to exercise the same degree of diligence and care in the execution of his office of Administrator as a man of ordinary prudence would exercise in the management of his own affairs. Thus, if there is a deliberate misapplication or negligence in the administration of the estate, prejudicially affecting the interest of the persons entitled to have the estate of the deceased, the Administrator is liable to make good the loss.
54. In the light of aforesaid statutory regime, the challenge to the tenability of the applications deserves to be appreciated.
55. Mr. Naidu sought to draw support to the aforesaid challenge, from the judgment of the Supreme Court in the case of Babulal Khandelwal and Ors Vs Balkishan D. Sanghvai & Ors 3. Since a submission was sought to be canvassed that the aforesaid pronouncement puts the controversy at rest, it may be necessary to note the factual backdrop in which the aforesaid judgment was rendered.
56. In the said case, in an administration Suit of the estate of his deceased parents, the Plaintiff sought to implead the transferees of the properties which were alienated by the deceased during his life time. The Application for impleadment was resisted on the ground that the transactions entered into by 3 (2008) 10 SCC 485.
SSP / Arun 29/63
ial 11209 of 2002.doc the deceased during the lifetime cannot be questioned in a Suit for administration of their estate.
57. The Supreme Court did not accede to the aforesaid submission and upheld the order of the High Court impleading the transferees as parties to the Administration Suit, for scrutinizing the transactions which were alleged to have been concluded by the parents of the Plaintiff. In the process, the Supreme Court observed, inter alia, as under:
"11. It is well settled that in an administration suit, the Court, while considering the grant of authority to an individual having an interest in the Estate of the deceased to administer the Estate, has also to determine the extent of the estate of the deceased at the time of his death to facilitate the distribution of the estate to all the heirs of the deceased. It is equally well settled that during such enquiry the Court is not called upon to determine the right and title of the parties in the properties of the Estate, but to ascertain the extent of the properties of the Estate.
12. The decision in Chiranjilal Shrilal Goenka Vs Jasjit Singh (1993) 2 SCC 507, applies to probate proceedings where it has been held that the probate Court does not decide any question of title or even the existence of the property itself. In administration suits in respect of a person who dies intestate, the position is different. The Court while appointing an Administrator in an administration suit to administer the Estate of the deceased, who dies intestate, may be required to examine transactions involving the properties of the Estate in order to determine the assets of SSP / Arun 30/63 ial 11209 of 2002.doc the Estate as on the date of death of the owner thereof. Consequently, the impleadment of persons who may be involved in some transaction or the other concerning the Estate of the deceased, may become necessary for a decision in an administration suit. The High Court has noted this fact while allowing the prayer of the respondent No.1 for impleading the appellants as parties to the administration suit.
15. We, therefore, have little hesitation in holding that the High Court had not committed any error in allowing the amendments to the plaint which had the effect of impleading the appellants as parties to the administration suit filed by the respondent No.1 and permitting the respondent No.1 to question the transactions entered into by the owners of the Estate with third parties. The order of the High Court does not warrant any interference and the appeal must, therefore, be dismissed." (emphasis supplied)
58. The aforesaid pronouncement, if read in a correct perspective, only indicates that, unlike a testamentary proceeding, where the Testamentary Court is not expected to delve into any question of title or even the existence of the property itself, in an Administration Suit, the Court may be required to examine transactions involving the properties forming part of the estate so as to determine the extent of the estate as of the date of death of the intestate for the purpose of distribution. There is no embargo on enquiry into the validity of SSP / Arun 31/63 ial 11209 of 2002.doc the transactions by the deceased whose estate is the subject matter of administration.
59. I am afraid, the aforesaid judgment cannot be read in the fashion canvassed by Mr. Naidu that, the question of lawful administration of the estate of the deceased by an Administrator appointed by the Court cannot be enquired into otherwise than by a suit for administration. The provisions contained in Sections 368 and 369 of the Act 1925 are explicitly clear and provide the necessary jurisdictional competence even to the Court which had appointed the Administrator to enquire into the legality and correctness of the administration.
60. It is true in the case of Manek Dara Sukhadwalla Vs Shernaz Faroukh Lawyer and Ors.4 the Division Bench was considering the challenge to an order passed by the Testamentary Court directing the Court appointed Administrator to draw a complaint to be lodged with the Commissioner of Police, Mumbai to investigate into the complaint and the affairs of the deceased. In that context, the Division Bench observed that it was permissible for the Court to issue directions to bring back the estate and if such power existed, then there was no reason why the enquiry could not have been ordered. The Division Bench held as under:
"37. This Court is a court of Original Jurisdiction having abundant plenary and inherent powers. It is a 4 2024 SCC OnLine Bom 2204.SSP / Arun 32/63
ial 11209 of 2002.doc Court of record. If the facts of the case are such that an investigation is found necessary into the dealings of parties involved, including the Appellants, then an investigation can be initiated by directing the Administrator to file a complaint. This Court while exercising even testamentary jurisdiction retains its inherent and plenary powers and can initiate such action by directing filing of criminal complaint. There is no gainsaying that the learned Single Judge of this Court was not justified in directing the Administrator to file criminal complaint in the facts and circumstances of this case. We agree to that extent with the case of the Respondent/Plaintiffs and with the case law relied upon by them in that behalf." (emphasis supplied)
61. The abstract challenge to the tenability of the Application seeking direction to the Court appointed Administrator to bring back the amounts which they had allegedly preferentially distributed or appropriated, therefore, cannot be acceded to unreservedly. If the Applicants succeed in demonstrating that there has been misapplication of the estate of the deceased, misappropriation of the assets which came to the hands of the Administrator, or the Administrator otherwise caused loss or damage to the estate of the deceased, by their acts or omissions, it cannot be said that the Court which appointed the Administrators is denuded of the power to direct them to make the amends, in the very proceeding in which the Administrators were appointed.
SSP / Arun 33/63
ial 11209 of 2002.doc Misapplication, Preferential and wrongful distribution :
62. Though a number of Affidavits were filed on behalf of the Petitioners, especially Yatin (P1), to place on the record of the Court the manner in which the estate of the deceased has been distributed and dealt with, yet it may not be necessary to make the reference to all those Affidavits/Disclosures. The Affidavits filed by Yatin (P1) pursuant to the order of this Court dated 7 th April 2021 whereby Yatin (P1) was directed to make complete disclosures would be the starting point.
Unequal / Excess Distribution :
63. In the said Affidavit, Yatin (P1) disclosed that a total sum of Rs. 21,25,06,879/- was received from the sale of the properties and under land acquisition awards. Details of the amounts distributed to the legal heirs were tabulated in the table (Annexure "B" appended to the said Affidavit). The said table deserves to be extracted to retain emphasis :
TOTAL AMOUNTS RECEIVED TILL DATE FROM THE ESTATE - RS.21,25,06,879/-
TOTAL EXPENDITURE INCURRED TILL DATE - RS. 2,98,28,297 Sr. No. Name of the Share in Share in Less Amount Amounts Difference legal Heirs Estate Amounts share of Receivabl received Expenses e 1 Bhavana 14% Rs.5,66,54, Rs.79,52,2 Rs.4,87,02 Rs.4,68,77 Rs.18,24,9 Ruparel 339/- 24/- ,115/- ,163/- 52/- (less Kunal Ruparel 6.33% received) Lisha Ruparel 6.33% 2 Ashwin 26.66% Rs.5,66,54, Rs.79,52,2 Rs.4,87,02 Rs.5,17,10 Rs.30,07,9 Ruparel 339/- 24/- ,115/- ,100/- 85/-
(Excess SSP / Arun 34/63 ial 11209 of 2002.doc received) 3 Yatin Ruparel 26.66% Rs.5,66,54, Rs.79,52,2 Rs.4,87,02 Rs.4,94,24 Rs.7,22,38 339/- 24/- ,115/- ,500/- 5/-
minus Rs.8,70,57 0/- (Paid income tax) Rs.1,48,18 5/-
(less
received)
4 Krishnaraj 20% Rs.4,25,43, Rs.59,65,6 Rs.3,65,77 Rs.3,52,65 Rs.13,12,7
Thaker 500/- 59/- ,840/- ,075/- 65/-
(less
Received)
64. Yatin (P1) also furnished a chart of the expenses to the tune of Rs.2,98,28,297/- incurred out of the estate of the deceased (Exhibit "C").
65. It would be necessary to immediately note that Yatin (P1) claimed that in addition to the expenses enumerated in the chart (Exhibit "C"), Ashwin (R1) had incurred 'out of pocket expenses' and those expenses were reimbursed from the branches of Applicants (Rs.18,24,952/-) and Krishnaraj (R2) (Rs.13,12,765/-).
66. Yatin (P1) further affirmed that those amounts were paid to various liasioning officers by Ashwin (R1). However, Ashwin (R1) was not in a position to produce receipts or vouchers in respect of various 'out of pocket expenses' incurred by him.
SSP / Arun 35/63
ial 11209 of 2002.doc
67. Yatin (P1) also claimed that the income tax of Rs.8,70,570/- was paid from his personal account as there was no amount then standing to the credit to the bank account of the estate.
68. Ashwin (R1) also filed an Affidavit affirming that he had incurred huge 'out of pocket expenses' to pursuing the proceedings for enhancement of the compensation and the aforesaid amounts were taken out from the branches of the Applicants and Krishnaraj (R2) and transferred to his account.
69. In the backdrop of the aforesaid nature of the Affidavits, the submission of Dr. Chandrachud that Yatin (P1) and Ashwin (R1) have resorted to the theory of 'out of pocket expenses' after the claim for 10% of the compensation amount as additional payment for pursuing the land acquisition proceedings on the ground of "custom" in Navi Mumbai, was repelled by the Court, carries substance. In the order dated 7th April 2021, itself, this Court had made it absolutely clear that it was not digestible as to how a person other than the Administrator was required to incur out of pocket expenses, if the estate had sufficient funds and that there was no evidence to support the said claim. Such a bald assertion of out of pocket expenses without an iota of material to substantiate the same cannot be accepted. The Administrators were duty bound to insist for proof of expenses before making the disbursement under the specious head of out of pocket expenses.
SSP / Arun 36/63
ial 11209 of 2002.doc
70. Though the Affidavits were directed to be filed by Yatin (P1) and Ashwin (R1), evidently, the Affidavits are far from satisfactory much less sufficient to substantiate the claim of 'out of pocket expenses'. This lead to a legitimate inference that the unequal distribution (qua the ratio of the share of the parties in the estate of the deceased) is prima facie unsustainable.
Audit Report : Suppression and Misapplication of Estate
71. As noted above, the report submitted by the Court appointed Auditor, in a sense, opened a pandora's box. The report broadly revealed that, a number of assets were dealt with before the institution of the Petition for Letters of Administration, those assets were not made part of the estate of the deceased, and few of the assets though available as of the date of the institution of the Petition were not included in the schedule of assets.
72. The Court does not propose to delve into each and every item of alleged misapplication, misappropriation or suppression, highlighted in the Audit report. Instead, in the light of the view which this Court, in the ultimate analysis, is persuaded to take, the Court considers it appropriate to broadly deal with the major items of the estate of the deceased which were allegedly, misapplied, misappropriated or preferentially distributed to the heirs in excess of their entitlement or distributed to the persons who were not at all entitled thereto. With regard to such major items, the Court considers it appropriate to SSP / Arun 37/63 ial 11209 of 2002.doc refer to the allegations of the Applicants, the considerations in the Auditor's Report and the response thereto by Yatin (P1) and Ashwin (R1). ALLEGED MISAPPROPRIATION BY AND PREFERENTIAL DISTRIBUTION TO YATIN (P1) AND ASHWIN (R1) :
TRANSFER OF CARS OF THE DECEASED:
73. The Applicants alleged Yatin (P1) and Ashwin (R1) got the cars belonging to the deceased transferred to themselves and offered an untenable explanation for the same. In the Audit Report, the Auditor (Page 42) note that the value of the following four cars belonging to the deceased, as of the date of the demise of the deceased, was Rs.13,04,245/-
Sr. Car No. Amount Remarks
No.
1 Honda City 3,19,690 This car was transferred to Mr. Ashwin
(MHO4 CB 1609) Ruparel on July 2, 2008 from the Estate
as provided in response to our queries
and entries in books of accounts.
2 Beat (MH04 BN 1,51,841 This car was transferred to Mr. Ashwin
4525) Ruparel on July 20, 2008 from the Estate
as provided in response to our queries
and entries in books of account.
3 Tata Indica 1,79,520 This car was transferred to Petitioner 1 on
(MH04 BQ 9691) July 30 2008 from the Estate as provided
in response to our queries and entries in
books of accounts.
4 Hond City (MH01 6,53,194 This car was transferred to Petitioner 1 on
YA 1923) July 30, 2008 from the Estate as provided
SSP / Arun 38/63
ial 11209 of 2002.doc
in response to our queries and entries in
books of accounts.
13,04,245
74. An explanation was sought to be offered before the Auditor that the transfer of the cars was done to facilitate payment of car insurance as insurance could not have been renewed in the name of the dead person.
75. Before this Court, it was submitted that one of the cars was destroyed by fire on 28th October 2013 in respect of which a report was lodged with the police. Secondly, there was an arrangement between the parties whereby a new Honda City Car was purchased and given to the family of the Applicants. Reliance was placed on the tax invoice (Exhibit "G" to the Affidavit in Rejoinder of Yatin (P1) dated 1st February 2023, page 1337).
76. I have perused the copy of the alleged report of fire (page 1326) and the panchnama (page 1329) in respect of the car bearing No. MH-04-BQ- 9691. Both are self-explanatory. Only the electrical wirings were burnt on account of the short circuit. The explanation that the cars were appropriated by Yatin (P1) and Ashwin (R1) as a new car was purchased for Bhavana (A1) also does not merit acceptance. Firstly, the invoice clearly indicates that the car was purchased in the name of M/s Ruparel Realty of which Bhavana (A1) was a partner. Moreover, it is not the case of the Yatin (P1) that the said car was purchased out of estate of the deceased. The explanation of Ashwin (R1) SSP / Arun 39/63 ial 11209 of 2002.doc also proceeds on identical lines. Ex-facie, the cars were preferentially distributed between Yatin (P1) and Ashwin (R1).
PREMATURE ENCASHMENT OF FIXED DEPOSITS WITH CENTRAL BANK OF INDIA:
77. The Auditer notes that two Fixed Deposits of the aggregate value of Rs.53,00,000/- were in the books of account of the deceased as of the date of her demise. Yatin (P1) and Ashwin (R1) were the nominees. Those Fixed Deposits were encashed pre-mature on 10th January 2008, under a couple of months of the demise of the deceased and the sums of Rs.25,36,000/- and Rs.27,59,000/- were credited to the accounts of Ashwin (R1) and Yatin (P1), respectively.
78. An endeavour was made on behalf of Ashwin (R1) to furnish an explanation regarding the utilization of the said amount of Rs. 53 lakhs for the purposes specified by the Auditors on pages 44 and 45 of the Audit Report. Diverse explanations were sought to be offered before this Court as well regarding the utilization of the aforesaid amount of Rs. 53 lakhs.
79. First and foremost, it is imperative to note that Yatin (P1) and Ashwin (R1) were the nominees in respect of Fixed Deposits. The position in law as regards the status of the nominee, is absolutely clear. A nominee does not become the absolute owner of the corpus. The nomination is only to facilitate SSP / Arun 40/63 ial 11209 of 2002.doc the discharge to the creditor. The assets of the deceased devolve upon the heirs who are entitled to succeed to the estate of the deceased.
80. In the case of Shakti Yezdani Vs Jayanand Jayant Salgaonkar & Ors,5 the Supreme Court has enunciated that the nomination would not lead to the nominee attaining absolute title over subject property for which such nomination was made. The usual mode of succession is not to be impacted by such nomination.
81. Though it was sought to be suggested, on a tangent, that Yatin (P1) and Ashwin (R1) were the nominees, yet, it was not the case that the nomination in this case amounted to "advancement"; for which there is no presumption in the Indian Law. Thus, a heavy onus would rest on Yatin (P1) and Ashwin (R1) who had withdrawn the aforesaid Fixed Deposits premature. It is not the case that the said Fixed Deposits were shown in the estate of the deceased, or for that matter, an effort was made to account for the disbursal of the proceeds so withdrawn, while filing the Petition for grant of Letters of Administration. The Auditor, before whom material was placed to account for the utilisation of the proceeds so withdrawn, found the explanation unsatisfactory.
82. Few of the major heads of utilisation may be examined.
EXPENSES OF RS. 11,45,474/- FOR BHAGVAT SAPTAHA:
5 2024 (3) ABR 347.SSP / Arun 41/63
ial 11209 of 2002.doc 82.1 In the Affidavit in Rejoinder dated 1 February 2023, Yatin (P1) claimed st that a religious ceremony (Bhagvat Saptaha) was arranged between 24th April 2008 to 29th April 2008 in the memory of the deceased. Yatin (P1) incurred expenses to the tune of Rs.4,05,676/- and Ashwin (R1) incurred expenses to the tune of Rs.3,88,129/- for the said religious ceremony.
82.2 Reliance was sought to be placed on the Invitation Card for the said function (pages 1311 to 1312 of the said Affidavit), the photographs and the statements of accounts maintained with the Bank showing payment towards the expenses. In contrast to this, the Auditor notes that Yatin (P1) and Ashwin (R1) informed him that they had spent a sum of Rs.11,45,474/- on religious expenses.
82.3 It is necessary to note that the said Bhagvat Saptaha ceremony was arranged after five months of the demise of the deceased. The necessity and timing of the said ceremony, may not be questioned. However, the quantum of expenses is a matter which Yatin (P1) and Ashwin (R1) are required to substantiate. The fact that there is no contemporaneous material to substantiate the claim that the expenses were incurred out of the proceeds of the Fixed Deposits or the other sums which were drawn from the estate of the deceased, bears upon the aforesaid explanation.
82.4 What is of critical salience is the fact that in the Schedule II of the Testamentary Petition containing the Debts etc., of the deceased, a sum of SSP / Arun 42/63 ial 11209 of 2002.doc Rs.1,000/- only, was shown towards funeral expenses. Yatin (P1) did not claim that a sum of about Rs.8,00,000/-, as claimed in paragraph 5 of the Affidavit in Rejoinder dated 1st February 2023 in IA (L) No. 8791 of 2022 or the sum of Rs. 11,45,474/- was expended for the Bhagvat Saptaha. Nor the said expenditure was sought to be added subsequently till the Letters of Administration were granted. All these factors render it prima facie, rather difficult to readily accede to the explanation that out of the proceeds of the Fixed Deposits, a sum of Rs.11,45,474/- was expended for the Bhagvat Saptaha. Heavy onus would lay on Yatin (P2) and Ashwin (R1) to establish the said claim.
PAYMENT OF A SUM OF RS.10,00,000/- TO MAHENDRA RUPAREL:
83. In deference to the wishes of the deceased, allegedly expressed during her lifetime, Yatin (P1) affirmed that a sum of Rs.10,00,000/- was paid by way of gift to Mahendra Ruparel. Yatin (P1) claimed to have transferred Rs.5,00,000/- to Mahendra Ruparel, and Ashiwn (R1) paid a sum of Rs. 5,00,000/- to Mahendra Ruparel. An Affidavit filed by Mahendra Ruparel before the Auditor was sought to be relied upon to substantiate the said claim. In the said Affidavit, Mahendra Ruparel acknowledged to have received a sum of Rs.10,00,000/- as and by way of gift and blessings of the deceased. SSP / Arun 43/63
ial 11209 of 2002.doc 83.1 I am afraid such a disposition, out of the estate of the deceased, without making contemporaneous disclosure can be, prima facie, sustained. It is imperative to note that all these explanations saw the light of the day after the Auditor found out the dealings with the estate of the deceased by Yatin (P1) and Ashwin (R1). The persons who dealt with the estate of the deceased and made the disbursals, cannot be heard to urge that the disbursals made by them be challenged in an Administration Suit, especially when those transactions were effected even before filing the Testamentary Petition.
PAYMENTS PURPORTEDLY MADE TO VARIOUS FAMILY
MEMBERS:
84. The Auditor has extracted the details of verification and explanation of two Fixed Deposits plus Rs. 5,00,000/- in cash received by Ashwin (R1) (pages 1250 to 1253). In addition to the expenses towards the Bhagvat saptaha and gift to Mahendra Ruparel, the following payments were allegedly made to the other family members.
Payment to Bhavana Ruparel Rs.12,00,000/-
Payment to Yatin + Jyoti Ruparel Rs.7,57,355/-
Payment to Ashwin + Leena Ruparel Rs.14,02,171/-
Payment to Hindustan Commercial Co. (HUF) Rs.2,50,000/-
SSP / Arun 44/63
ial 11209 of 2002.doc
In addition a sum of Rs.40,000/- was paid towards the legal fees. 84.1 It is pertinent to note that Leena Ruparel, the wife of Ashwin (R1), and Jyoti Ruparel, the wife of Yatin (P1), were not entitled to succeed to the estate of the deceased. Purportedly, a sum of Rs.6,18,000/- was paid to Leena and a sum of Rs.80,000/- was paid to Jyoti. The disbursal was plainly impermissible. As regards the payment to Bhavana (A1), the Auditor notes, initially Ashwin (R1) had stated that a sum of Rs.4,00,000/- was distributed to Bhavana (A1) out of the estate of the deceased. Later on, Ashwin (R1) corrected himself to state that payments to Bhavana (A1) from Ashwin (R1) and Yatin (P1) were by way of loans and Bhavana (A1) had repaid those loans, over a period of time. In the Note below The table captioned "Payment made by Ashwin (R1) from Fixed Deposit", it was categorically stated that Bhavana (A1) repaid the sum of Rs.4,00,000/- to Ashwin (R1) during the period 2008-2009.
84.2 As regards the sum of Rs.8,00,000/- purportedly paid by Yatin (P1), the balancesheet of Ruparel Electronics, of which Yatin (P1) is the sole proprietor, as sum of Rs.7,60,000/- was shown as a loan to Bhartiya Storage Agency, the sole proprietary firm of Bhavana (A1), and ledger statement of Ruparel Electronics in the books of Bhartiya Storage Agency shows that the entire loan amount of Rs.8,00,000/- was repaid during the financial year 2007-2008 SSP / Arun 45/63 ial 11209 of 2002.doc (pages 1448 and 1449 of the Affidavit in Sur-Rejoinder on behalf of the Applicants in IA (L) No. 8791 of 2022).
85. Thus, the explanation that out of the proceeds of two Fixed Deposits expenses were incurred and payments were made to other family members, does not advance the case of Yatin (P1) and Ashwin (R1) and, prima facie, they are liable to account for the said proceeds.
CASH PAYMENT OF RS. 5,00,000/- TO ASHWIN (R1) FROM MODERN WAREHOUSING:
86. The Auditor notes, after the demise of the deceased, a sum of Rs. 5,00,000/- was paid to Ashwin (R1) from the account of the deceased. Ashwin (R1) initially admitted the receipt of the said amount in a communication dated 29th September 2023 to the Auditor, purportedly as a gift. In the Affidavit in Reply to the Auditor's Report Ashwin (R1), however, contended that the entry of cash payment of Rs.5,00,000/- to Ashwin (R1) was shown only for book entry and no such cash payment was actually made to Ashwin (R1).
87. As noted above, the said cash of Rs.5,00,000/- was also accounted for by way of expenses for Bhagvat Saptaha and the payments to the family members. The explanations are ex-facie irreconcilable.
PAYMENT OF RS.2,30,000/- TO JYOTI, WIFE OF YATIN (P1):
88. The Auditor notes, a sum of Rs.2,30,000/- was paid by cheque to Jyoti after the date of demise of the deceased. Yatin (P1) claimed that the SSP / Arun 46/63 ial 11209 of 2002.doc deceased had drawn the cheque in the sum of Rs.2,30,000/- by way of gift before her death. However, the said cheque was presented for encashment after the demise of the deceased. Jyoti filed an Affidavit to that effect before the Auditor (page 1246 of the Audit Report).
89. The Affidavit of disclosure on behalf of Yatin (P1) in IA (L) No. 8791 of 2022, indicates that a sum of Rs.2,28,503/- was to the credit of the account of the deceased, maintained with Indian Overseas Bank on which the said cheque was drawn, as of the date of death of the deceased On 1 st December 2007, the balance became Rs.2,30,197/- and the cheque was encashed on 4th December 2007.
90. Prima facie, as of the date of demise of the deceased, the amount standing to the credit of the account of the deceased was not sufficient to honour the cheque, if the Gift was to operate in praesenti. When there was no sufficient balance to honour the cheque, there could have been no acceptance during the lifetime of the deceased and, thus, whether there was a valid gift becomes debatable. At any rate, the interval of time, almost entire amount to the credit of the account forming the subject of gift and the suppression of the said payment, cumulatively betray a desperate attempt to offer post-facto explanation to suit the defence. The fact remains that the said asset was not disclosed when the Testamentary Petition was filed much less these explanations regarding dealings with the assets of the deceased were SSP / Arun 47/63 ial 11209 of 2002.doc offered. If the said payment did not operate as a gift, then Jyoti cannot have any claim over the said amount as she was not entitled to succeed to the estate of the deceased.
PERSONAL EXPENSES ALLEGEDLY INCURRED BY YATIN (P1) AND ASHWIN (R1):
91. At Exhibit 23 (page 1282), the Auditor has tabulated a statement of personal expenses amounting to Rs.10,54,884/-. All sorts of sundry expenses ranging from telephone charges, electricity charges, car expenses and car insurance, repairs of gadgets are included therein. An explanation was sought to be offered on behalf of the Yatin (P1) and Ashwin (R1) with regard to each item of the said expenses to somehow relate those expenses to the estate of the deceased. Having regard to the purpose for which the expenses have been incurred, it would be an onerous task for Yatin (P1) and Ashwin (R1) to account for those expenses, majority of which appear to be unconnected with the estate of the deceased.
92. Situation which thus emerges is that; firstly, Yatin (P1) and Ashwin (R1), have been disbursed amounts out of the estate of the deceased in excess of their entitlement; secondly, a significant part of the estate of the deceased was suppressed while filing the Petition for grant of Letters of Administration; thirdly, Yatin (P1) and Ashwin (R1) dealt with the estate of the deceased after her demise, prima facie, without making the disclosure thereof; fourthly, the SSP / Arun 48/63 ial 11209 of 2002.doc Audit Report revealed, both the suppression of, and dealings with, the estate by Yatin (P1) and Ashwin (R1) and, fifthly, the explanations offered by Yatin (P1) and Ashwin (R1) were found unsatisfactory and, at times, contradictory and irreconcilable.
Determination of IA No.392 of 2021, IA No.2376 of 2022 and IA(L) No.8791 of 2022 : Reliefs
93. In the aforesaid backdrop, the submissions on behalf of the Applicants and Krishnaraj (P2), on the one side, that Yatin (P1) and Ashwin (R1) be directed to bring back the amount of Rs.55,86,242/- and Rs.68,68,638/-, respectively, along with interest thereon since the date of the excess disbursal or appropriation, and on behalf of the Yatin (P1) and Ashwin (R1), on the other side, that the said disputed amount of Rs.1,24,54,880/-, the amount of Rs.1,50,50,000/- towards the outstanding professional fees and a buffer amount of Rs. 1 Crore be kept aside and the balance amount be distributed in the ratio determined by the Court, deserve to be appreciated.
94. The Applicants claim, on a conservative interest at the rate of 9% per annum, Ashwin (R1) would be liable to bring back a sum of Rs.2,08,50,291/- and Yatin (P1) a sum of Rs.1,94,01,888/-, in addition to a sum of Rs.9,59,588/- to be brought back by Jyoti. The distribution of the assets be deferred till the Yatin (P1) and Ashwin (R1) bring back the aforesaid amount and the Administrator submits accounts of the estate. SSP / Arun 49/63
ial 11209 of 2002.doc
95. Krishnaraj (P2) supplements the case of the Applicants. In IA No. 2376 of 2022, Krishnaraj (P2) thus seeks direction to Yatin (P1) and restraint on further distribution.
96. Per contra, Yatin (P1) and Ashwin (R1) contended that all these are disputed amounts and would warrant adjudication. Therefore, the aforesaid principal amount of Rs. 1,24,54,880/- be kept aside. In IA(L) No. 8791 of 2022, Yatin (P1) seeks release of the balance amount after keeping aside the aforesaid amount of Rs. 1,24,54,880/- and the alleged liabilities of the estate of the deceased as tabulated in the list of expenses to be incurred (Exhibit "A"), including the outstanding legal fees.
97. At this juncture, the Affidavit filed by Mr. Anoj Menon, the Administrator appointed by this Court, deserves to be noted, on two points. First, the tax liability of the estate, and second, the outstanding professional fees.
Tax Liability
98. The Administrator, has referred to the legal opinion solicited in respect of the liability to pay tax on the compensation awarded under the Land Acquisition Act and the computation of taxes by the Chartered Accountant. It appears that, pursuant to the legal opinion, and computation of the tax, a sum of Rs. 2,93,32,151/-, has been paid under the updated Income Tax Return for the Assessment Year 2022- 2023, filed on 30th March 2024. Indeed the possibility of further tax liability or interest and penalty cannot be ruled out. SSP / Arun 50/63
ial 11209 of 2002.doc However, a provision for the same can be made by keeping aside an amount by way of buffer.
Outstanding Professional Fees :
99. As regards alleged outstanding professional fees, the Administrator has affirmed that the concerned Advocates have shared with him copies of their pending invoices amounting to Rs. 1,50,50,000/-. It would be contextually relevant to note that while declining to release the payment towards the professional fees, in the order dated 21 st March 2024, this Court has made it clear that the Court was not making any comment on the claims of the concerned Advocates as regards their balance fees. The Court was not convinced on the basis of the material then placed on record that a positive direction could be given to the Administrator to make payment to the said Advocates. At that stage, the material was found to be sketchy and deficient.
100. By the said order, though liberty was granted to place on record further material, no credible material has been placed on record to substantiate the said claim. It is pertinent to note that a determination that no professional fees be paid out of the estate may bear upon the rights of the concerned Advocates. It may not be in consonance with the principles of fair paly and justice to make such determination without providing an opportunity to the SSP / Arun 51/63 ial 11209 of 2002.doc concerned Advocates. Therefore, at this stage, it would be appropriate to retain the said sum of Rs. 1,50,50,000/-.
101. The Court is informed that as of date a sum of Rs. 11,03,37,790/- stands to the credit of the estate of the deceased, with the Registry of this Court.
102. Thus, the question that comes to the fore is, should the distribution be deferred till the contentious issues are finally determined. The Court cannot loose sight of the fact that the Letters of Administration were granted on 12 th July 2010. A substantial amount would be available for distribution, even after keeping aside the amounts towards the possible future expenses, liabilities, the contingencies that may arise, and the claim towards the professional fees. The corpus standing to the credit of the estate of the deceased undoubtedly earns interest. But, it is exisable to tax. If a substantial portion can be distributed, even after making a provision for the aforesaid purposes, deferring distribution would cause prejudice to the heirs, who are entitled to succeed, especially to the Applicants and Krishnaraj (P2). At the same time, while making distribution, the aspect of apparent liabilities of Yatin (P1) and Ashwin (R1) must be addressed.
103. The aspect of the liability of Yatin (P1) and Ashwin (R1) for the amounts which have been appropriated by, and preferentially distributed to, can be approached two ways. One, by directing Yatin (P1) and Ashwin (R1) to bring SSP / Arun 52/63 ial 11209 of 2002.doc back the said amount determined in the Audit Report, aggregating to Rs. 1,24,54,880/- along with interest as the Court may determine. Two, a portion of the amount falling to the share of Yatin (P1) and Ashwin (R1) can be withheld to cover the said amount and interest component thereon, till the final distribution on the basis the report of the Administrator, appointed by this Court.
104. In the circumstances of the case, I am persuaded to adopt the latter course, for the reasons more than one. Firstly, Yatin (P1) and Ashwin (R1) would jointly be entitled to 53.32% share in the amount so appropriated or preferentially distributed. Secondly, though the Audit Report constitutes a credible material to base the findings, yet, Yatin (P1) and Ashwin (R1) deserve an opportunity to substantiate their claim with regard to various components of the amounts which were so appropriated or preferentially distributed. Undoubtedly, the onus would lay on Yatin (P1) and Ashwin (R1) to substantiate their claims. The other claimants cannot be called upon to prove that the excess payment and distribution is not sustainable. Thirdly, there is also possibility of the amounts, proposed to be kept aside, being not required to discharge the liability of the estate of the deceased or meet future expenses. In that event, Yatin (P1) and Ashwin (R1) would be entitled to have 26.66% share each, in the residue as well. At that stage, the Court will have the opportunity to make appropriate orders so as to enforce the liability of SSP / Arun 53/63 ial 11209 of 2002.doc Yatin (P1) and Ashwin (R1) to make good the amount appropriated by, and, preferentially distributed to, them.
105. As noted above, the Auditor has determined the excess/preferential distribution to Yatin (P1) at Rs.55,86,242/- and Ashwin (R1) at Rs.68,68,638/-. The share of Yatin (P1) and Ashwin (R1) in the amount which is proposed to be distributed, comes to Rs.2,00,76,242/- each. A direction for withholding 50% of the amount would subserve the object of recovering the amounts which may be ultimately found due from Yatin (P1) and Ashwin (R1), along with reasonable interest.
106. I am, therefore, inclined to make interim distribution with a direction to withhold 50% of the amount falling to the share Yatin (P1) and Ashwin (R1).
107. Interim Application No. 392 of 2021, Interim Application No. 2376 of 2022 and Interim Application (L) No. 8791 of 2022 would thus stand worked out, by such distribution and directions.
IA(L) NOS.15054 OF 2021 & 11209 of 2022
108. Ashwin (R1) seeks the inclusion of the properties described in Exhibit A appended to Interim Application (L) No.15054 of 2021 in the Schedule of properties appended to Petition No.377 of 2008 at least to the extent of 1/4th share of the deceased in the estate left behind by Harish, the husband of Bhavana (A1). The claim is two fold. First, the properties described at Sr. Nos.1 to 13 i.e. the land situated at Village Adai, Tal. Panvel, were all joint SSP / Arun 54/63 ial 11209 of 2002.doc family properties. They were acquired out of the joint family nucleolus, pursuant to the agreements for purchase executed by Hariram, the husband of the deceased, before his demise. Two, in the alternative, even if it is assumed that Harish was the absolute owner of the said properties, the deceased being the Class I heir was entitled to 1/4th share therein along with the Applicant Nos.1 to 3. Since the Applicants have received compensation on account of the acquisition of those properties, the Applicants be directed to deposit an amount of Rs.95,82,456/- towards the share of the deceased in the said compensation.
109. In IA(L) No.11209 of 2022, Ashwin (R1) seeks directions for deposit of a sum of Rs.1,24,56,688/- towards 1/4th share of the deceased in the balance compensation which was to be released by the acquiring body.
110. As noted above, Bhavana (A1) has propounded a purported Will dated 9 November 1996, allegedly left behind by Harish and filed a Petition for grant of Probate in TP No.178 of 2020. Both Yatin (P1) and Ashwin (R1) have entered caveats and, thereupon, the Petition has been converted into a Testamentary Suit. Ashwin (R1) and Yatin (P1), thus, contest the testamentary disposition allegedly made by Harish and contend that Harish died intestate.
111. The aforesaid nature of the controversy brings to the fore the remit of the jurisdiction of the testamentary Court. Incontrovertibly, the question as to SSP / Arun 55/63 ial 11209 of 2002.doc whether Harish passed away leaving behind a testamentary instrument or intestate, is the matter which can only be determined by the Court seized with the Probate proceeding. The Probate Court is only concerned with the question as to whether the instrument propounded as the last Will and Testament of the deceased was duly executed and attested in accordance with law, and, while executing the said instrument, the testator was in a sound and disposing state of mind and understood the nature and effect of the dispositions made thereunder. The grant of Probate conclusively establishes the valid execution of the Will and the appointment of the executor.
112. It is well recognized by a catena of decisions that the Probate Court does not decide the question of title to the property which is the subject matter of the bequest, or, for that matter, the very existence of the property. The grant of Probate, by itself, does not confer title to the property. A Probate does no more than authorize the executor or administrator to administrate the estate of the deceased in accordance with the wishes of the testator and represent the estate of the testator.
113. A profitable reference can be made to the judgment of the Supreme Court in the case of Chiranjilal Shrilal Goenka (deceased through LRs) V/s. Jasjit Singh6, wherein the legal position was expounded as under :
"15......The Succession Act, is a self contained code in so far as the question of making an application for 6 (1993) 2 SCC 507 SSP / Arun 56/63 ial 11209 of 2002.doc probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provision of Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question, of title or of the existence of the property itself."
114. Following the aforesaid pronouncement in the case of Delhi Development Authority V/s. Mrs. Vijaya C. Gurshaney7, the Supreme Court reiterated the principle in the following words :
"8.........A Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. The merely enable administration of the estate of the estate of the deceased."
7 (2003) 7 SCC 301 SSP / Arun 57/63 ial 11209 of 2002.doc
115. The limited nature of jurisdiction of the Probate Court was emphasised by the Supreme Court in the case of Krishna Kumar Birla V/s. Rajendra Singh Lodha8 as under :
"57.........The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will. A question of title arising under the Act cannot be gone into the probate proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
116. In the light of the aforesaid position in law, readverting to the facts of the case at hand, it deserves to be noted that the question as to whether Harish died testate or intestate is at the hub of the controversy. The claim of Ashwin (R1) that the deceased would have succeeded to the estate of Harish, who predeceased the deceased, as his Class I heir, alongwith Applicant Nos.1 to 3, hinges upon the determination as to whether Harish passed away testate or intestate. If in the Probate proceeding, filed by Bhavana (A1) in the purported capacity of the executrix of the Will propounded by her, the Court comes to the conclusion that Harish had left behind a testamentary instrument, the line of intestate succession would be disrupted. 8 (2008) 4 SCC 300 SSP / Arun 58/63 ial 11209 of 2002.doc
117. Conversely, if the Will of Harish is not found legal and valid, on the date the succession opened, the deceased would have inherited her share in the estate left behind by Harish.
118. As regards the primary claim of Ashwin (R1) that the properties at Sr. Nos.1 to 13 in the Schedule A were impressed with the character of the joint family properties as they were acquired out of the joint family nucleolus, and, therefore, apart from the deceased, even Yatin (P1) and Ashwin (R1) have interest therein, it would be suffice to note that the said claim would warrant investigation into the title to the said properties. The question as to whether the said properties were impressed with the character of the joint family properties, or, they were self-acquired properties of Harish, as contended by the Applicants, cannot be legitimately delved into by the Testamentary Court, as it would be clearly beyond the remit of the jurisdiction.
119. The same principle would govern the claim as regards the house property described at Sr. No.14 in the Schedule (Exh.A) appended to IAL No.15054 of 2021.
120. In the aforesaid view of the matter, at this juncture, and, especially in these proceedings, this Court does not consider it appropriate to delve into the rival submissions sought to be canvassed on behalf of the parties with regard to the assertions as regards the character of the properties which Ashwin (R1) desires to include in the Schedule of Assets left behind by the SSP / Arun 59/63 ial 11209 of 2002.doc deceased and the genuineness, legality and validity of the purported Will of Harish. Since the Testamentary Suit for grant of Probate of the purported Will of Harish is subjudice, the contentious issues can be legitimately adjudicated in the said proceedings.
121. Needless to clarify that, depending upon the outcome of the said Probate proceeding, the entitlement of the parties to succeed to the estate left behind by the deceased may vary and the parties would be at liberty to work out their remedies.
122. In the light of the aforesaid consideration, this Court does not find it expedient to include the properties described in Exh. A appended to IAL No.15054 of 2011 in the Schedule of properties in TP No.377 of 2009.
123. For the foregoing reasons, IA No.391 of 2021, IA No.2376 of 2022 and IA(L) No.8791 of 2022 which, in a sense, seek directions regarding assets of the deceased deserve to be partly allowed. Interim Application (L) Nos.15054 of 2021 and 11209 of 2022, filed by Ashwin (R1), deserve to be rejected.
124. Hence, the following order :
ORDER (I) IA No.391 of 2021, IA No.2376 of 2022 and IA(L) No.8791 of 2022 stand partly allowed in the following terms :
(1) Out of the amount standing to the credit of the estate of the deceased with the Registry of this Court, a sum of Rs.2 Crores be kept SSP / Arun 60/63 ial 11209 of 2002.doc aside as a buffer for future expenses and liabilities of the estate of the deceased and to take care of the contingencies.
(2) A further sum of Rs.1,50,50,000/-, for which the Administrator has received claims for professional fees be also kept aside to address the contingency of the said claim for professional fees being proved to the satisfaction of the Court or required to be paid pursuant to the orders of any Court.
(3) After keeping aside the said amount of Rs.3,50,50,000/-, the balance amount be distributed amongst the Applicants, Yatin (P1), Krishnaraj (P2) and Ashwin (R1) in the ratio determined by the Court, subject to the following conditions :
(a) Out of the amount falling to the share of Yatin (P1) and Ashwin (R1), in the ratio of 26.666% each, only 50% of the amount be released and the balance 50% amount shall be withheld.
(b) The balance 50% amount be separately invested in an interest bearing account.
(c) At the time of the final distribution, the balance 50% amount and interest accrued thereon may be utilised to recover the amount which Yatin (P1) and Ashwin (R1) are found liable to account for the excess and preferential distribution and misapplication of the estate of the deceased, alongwith such interest as the Court may determine. SSP / Arun 61/63
ial 11209 of 2002.doc
(d) The Applicants, Yatin (P1), Krishnaraj (P2), and Ashwin (R1) shall file separate undertaking that they will bring back the amount to be released to them along with such interest as the Court may direct if it is found that all or any of them were not entitled to receive the said amount or any portion thereof, or are otherwise liable to the estate of the deceased.
(4) The Advocates who have lodged claim for outstanding professional fees, may submit further proof/documents to substantiate their claim with the Administrator within a period of six weeks from today.
(5) Yatin (P1) and Ashwin (R1) may also file further proof/documents, if any, apart from the material already on record (including the documents which form part of the Audit Report) with the Administrator to disprove their liability, as above, which is tentatively determined, within a period of six weeks from today.
(6) The Administrator shall comply with the directions in the order dated 5th April 2023, especially Clauses (G) and (H) of paragraph 2 of the said order, and submit a Report along with the claims, if any, from the estate of the deceased and the proof/documents which may be produced by the concerned Advocates and Yatin (P1) and Ashwin (R1), within 12 weeks thereafter.
SSP / Arun 62/63
ial 11209 of 2002.doc (II) IA (L) No. 15054 of 2021 and IA (L) No. 11209 of 2022 stand rejected.
( N.J.JAMADAR, J. ) SSP / Arun 63/63 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 27/06/2025 20:13:31