Bombay High Court
Sameer Ramesh Vashi vs Rakesh Ramesh Vashi And 2 Ors on 7 January, 2019
Author: A.K. Menon
Bench: A.K. Menon
hcs
nmt172.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO.172 OF 2018
IN
TESTAMENTARY SUIT NO.16 OF 2014
IN
TESTAMENTARY PETITION NO.1560 OF 2013
Rakesh Ramesh Vashi .. Applicant
In the matter between
Sameer Ramesh Vashi .. Plaintiff.
Vs.
Rakesh Ramesh Vashi & Ors. .. Defendants.
Mr.Rakesh Ramesh Vashi, Applicant in person.
Mr.Simil Purohit with Mr.Nikunj Mehta, Mr.Virendra Pereira and Mr.Shardul
Pendse i/b Divya Shah Associates for the Plaintiff in TS No.16/2014.
Mr.Nilesh Bhutekar for Respondent Nos.2 and 3.
CORAM : A.K. MENON, J.
DATED : 7TH JANUARY, 2019 P.C. :
1. By this Notice of Motion, the applicant, who is a Caveator and defendant No.1 in Testamentary Suit No.16 of 2014 seeks appointment of an interim administrator under section 247 of the Indian Succession Act, 1925 in respect of estate of his deceased father Late Ramesh Vashi, who died on 1/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt 6th November, 2013. The plaintiff - Sameer Ramesh Vashi is the elder brother of the applicant and has been appointed as an Executor of last Will and testament of Shri Ramesh Vashi. Relief is sought by the applicant on the basis that the plaintiff along with his wife are co-trustees "in respect of testamentary trust mandated by the deceased in his Will" for benefit of the son of the applicant - Siddharth Vashi, who was then a minor.
2. According to the applicant, the plaintiff and his wife (hereinafter collectively referred as "plaintiff" wherever the context so requires) in collusion with other two named Executors are interfering with the administration of estate and are usurping the estate by fraudulent means. The applicant has appeared in person before the Committee of Registrars and the Committee of the Registrars have suggested that the applicant would be able to assist the Court. Accordingly, I have heard the applicant in person. Apart from oral submissions made, the applicant has also filed written submissions dated 17th October, 2018 and 31st October, 2018
3. It is case of the plaintiff that the assets and properties of several partnership firms are being dealt with contrary to intention of the testator.
According to the applicant, the rival contentions are whether the assets/properties of partnership firms are that of individual partners to extent of their respective shares or whether the assets/properties are partnership assets and they form stock in trade. Mr.Vashi submitted that a partnership firm not being an independent legal entity, the real owners of the 2/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt assets of the partnership firm are partners and the assets of the partnership belong to and are owned by partners and each partner is owner of the assets to extent of his share in the partnership. It is contended that unlike a company registered under the Companies Act, a partnership firm is not a separate legal entity. According to Mr.Vashi, it is not disputed that some properties forming part of the partnership firms were personal assets of the deceased and the said properties were bequeathed to the grandson Siddharth, who was not a partner in the firms and was a minor at the material time. According to the applicant, the Will mandated that these properties be put in a Trust for benefit of the minor and appointed continuing partners as the Executors of Will of the deceased. Mr.Vashi submitted that the plaintiff was "entrusted" by the deceased with the properties and the plaintiff was responsible to ensure that the properties were protected and preserved for benefit of his son and the plaintiff was to expeditiously seek probate of the Will for the sake of the beneficiaries including his son and to formally establish a trust for his son. The plaintiff was required to establish a trust after obtaining orders of the Competent Court, maintain accounts of the trust and seek opinion, advice or direction of the Court in respect of management of the trust and also pay for education of the minor, his maintenance and advancement in life. He submitted that nothing adverse to the interest of beneficiaries could be done and trust properties certainly could not be used for benefit of the plaintiff. According to the applicant if the plaintiff was 3/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt desirous of selling properties from the estate, it can only be dealt with after obtaining probate, forming a trust and upon seeking further permission and consent of the appropriate Court, whereas the plaintiff in breach of trust and by manipulation had diverted and dealt with 140 valuable properties.
4. Mr.Vashi submitted that although the partnership deeds provided for the effect of demise of a partner and allowed the partnerships to continue it does not exempt the plaintiff from complying with laws governing Trusts and because the deceased bequeathed the properties to a minor and mandated formation of a trust. He submitted that at the end of 2013 after making enquiries and obtaining certified copies of Index II in relation to some of the sale deeds, the applicant was able to ascertain that there has been gross mismanagement, conversion and diversion from the estate of deceased resulting in an immense fraud on the estate. He contended that in the partnership firm known as M/s.S.R. Corporation, there were only two partners and upon death of the testator, the firm stood dissolved but the plaintiff formed another partnership with same name and dealt with and disposed of properties of the original partnership firm. Siddharth was a minor and one of the properties of M/s.S.R. Corporation was under valued to Rs.15 lakhs and purchased by the plaintiff. The plaintiff allegedly took advantage of the fact that Siddharth was minor and the properties of other firms were also disposed of. All partnership firms were dissolved, six weeks prior to Siddharth attaining majority by executing dissolution deeds. The 4/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt implied authority of the partnership has been abused and rents in excess of Rs.33 lakhs per month were being collected by the plaintiff in parallel firms.
5. It is the case of the applicant that apart from these properties agricultural income accrues from about 100 acres of land for 14 years and are required to be collected. Valuable property of 61 acres had been fenced and the plaintiff's wife has managed to include her name as part owner of this property. A penthouse situated at Valsad has been usurped by the plaintiff. It is further contended that the Will has conflicting provisions in respect of the property described in clause 5(b)(v) and by virtue of Section 88 of the Indian Succession Act the property is legally owned by the applicant's son, yet that very property has been let out in the name of widow of deceased. Although the applicant and Siddharth have not pursued legal action against the mother and this property must be handed over to the applicant's son, who is the rightful owner.
6. Mr.Vashi also submitted that he has filed testamentary petition No.1868 of 2016 wherein the appointment of the executors have been challenged and their removal has been sought and in anticipation of such removal, the applicant has sought grant of Letters of Administration. That petition has since been converted into suit being Testamentary Suit No.19 of 2017. He submitted that pending litigation between parties it is necessary to preserve and safeguard the property. The probate petitioner is named as "trustee", the two other executors have filed caveats in order to convert the 5/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt litigation into contentious one and the executors in collusion with one another have no intention of seeking probate but have merely filed caveats and supporting affidavits within days of each other having filed their affidavits inter alia challenging their own appointment as the executors. He submitted that a criminal complaint has been filed in the Magistrate's Court and process has been issued.
7. Mr.Vashi relied upon a decision of the Supreme Court in Sharad Subramanyan vs. Soumi Mazumdar & Ors. 1 according to the applicant the Will being only evidence of the executor's title pursuant to section 211 and since under section 213 the executor cannot exercise right except after grant of probate, since the probate petition is now converted to suit, there is no occasion for the plaintiff to deal with the estate in manner he has. According to Mr.Vashi there is no proper person to receive the assets. He further relied upon decision in a case of Pandurang Shyamrao Laud and Others vs. Dwarkadas Kalliandas and Others 2 to contend that appointment of the administrator is justified since neither of contesting parties is said to be in lawful and undisputed possession of the property. He further submitted that the Will grants substantial benefit to grandson of the deceased and a case has been made out for an appointment of the receiver. It is contended that the plaintiff has suppressed existence of applicant's son Siddharth in the probate petition although he was a direct beneficiary under 1 AIR 2006 SC 1993 2 1932 SCC Online Bom. 154 6/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt the Will. He submitted that a plain reading of the Will establishes this fact and suppression of the names of Siddharth and other grand children is an attempt to obtain a probate through fraud. It is submitted that the properties will have to be ascertained and legal proceedings will have to be adopted for recovery of properties lost to the estate, including by the actions of the executors and trustees. After ascertaining the properties, rents and license fees will have to be collected, tax will have to be paid, investment made and maintenance will have to be undertaken. According to Mr.Vashi, conduct of the plaintiff would justify appointment of the administrator. According to Mr.Vashi he has no quarrel with contents of the Will i.e. properties bequeathed but has serious objections against the executors appointed.
8. Mr.Vashi further submitted that in order to protect the party, who ultimately succeeds in the above petition and Testamentary Suit No.19 of 2017 it is appropriate that an administrator be appointed and not appointing the administrator would amount to pre-judging the issues raised in this petition and exposing the estate to risk of loss and damage in face of serious allegations by and against parties and it is for that reason the applicant has sought Letter of Administration and in the meantime sought to protect the right to administer the estate. In the case of Manek Dara Sukhadwalla vs. Shernaz Faroukh Lawyer 3 an administrator came to be appointed and in the facts of the present case an appointment of the administrator was justified. He further submitted that the Supreme Court in 3 Appeal (L) 7/2014 dt.8.8.2014 7/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt the case of Shambhu Prasad Agarwal vs Bhola Ram Agarwal 4 had concluded that the appeal ought not to be dismissed on technical grounds and that even after 14 years having elapsed after demise of testator, the beneficiaries are still awaiting to administer the estate. According to Mr.Vashi notwithstanding dispute between parties it is necessary to protect the estate and therefore appoint an administrator pendente lite.
9. Opposing the application, Mr.Purohit relied upon written submissions on behalf of his clients and submitted that in 1984, the plaintiff completed Bachelor of Mechanical Engineering and in the year 1986 he commenced work in the partnership by the name of K. Sameer and Associates. The firm was engaged in construction business and consisted of the plaintiff one Mr.Hasmukh Ruparelia and Mr.Mukesh Mehta as the partners. The firm was dissolved in or about year 1985/1986. Thereafter six other firms were set up in the name of :
Sr.No. Name of the Firm Name & Share of the partners.
1. M/s.Samrock Construction (i) R.P. Vashi HUF - 25%
(ii) Mr.Sameer Vashi - 25%
(iii) Mrs.Padma R. Vashi - 25%
(iv) Ms.Sonali R. Vashi - 25%
2. M/s.Siddharth Builders (i) R.P.Vashi - 20%
and Developers (ii) R.P. Vashi HUF - 20%
(iii) Mr.Sameer Vashi - 20%
(iv) Mrs.Padma R. Vashi - 20%
(iv) Ms.Sonali R. Vashi - 20%
4 (2000) 9 SCC 714
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3. M/s.S.R. Corporation (i) R. P. Vashi - 50%
(ii) Sameer Vashi - 50%
4. M/s.Samrock Developer Not a partnership firm.
Mr.Sameer Vashi is proprietor.
5. M/s.R.Sameer & Associates (i) Mr.Sameer Vashi - 25%
(ii) Mrs.Padma R. Vashi - 25%
(iii) Ms.Sonali R. Vashi - 25%
(iv) Ms.Jagruti Desai - 20%
(v) Mr.Shailesh Desai - 5%
10. In respect of first firm M/s.Samrock Construction Mr.Purohit
submitted that the firm was set up in the year 1987 by four partners and after the deceased testator retired from the Central Bureau of Investigation (CBI), Hindu Undivided Family (HUF) was set up by the deceased and the deceased was inducted as partner in M/s.Samrock Construction and he had 25% share. After death of the deceased. M/s.Samrock Construction was dissolved in 2010 and as provided in the Will 25% share of Mr.R.P. Vashi was bequeathed to Mr.Sameer Vashi and Mr.Siddharth Vashi equally resulting in share of the plaintiff going up to 37.5%. As provided in the partnership deed, remaining partners continued to carry on business of the firm since balance stock in trade had to be disposed and remaining partners were ready to provide the share of Mr.Siddharth Vashi after 9/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt accounts were made up. It is further contended that the accounts were maintained in electronic form.
11. As far as the second firm is concerned, 50% share held by the deceased was bequeathed in favour of the plaintiff and Mr.Siddharth Vashi equally. The share of the plaintiff has therefore risen to 40% and as per the partnership deed, the firm continued to be in business in disposing of balance stock in trade and remaining partners were ready and willing to provide Mr.Siddharth Vashi his share. The third firm M/s.S.R. Construction consisted of two partners. The funds required by M/s.S.R. Construction were reportedly brought in by Mr.Sameer Vashi and Mr.Vinod Shah in ratio of 75% and 25% and the deceased was inducted in the firm in the year 1989 after his retirement from CBI. The share of deceased was 37.5% and was provided by the plaintiff from his share of 75%. In the year 2000, Mr.Vinod Shah retired and that left the plaintiff and his late father with 50% share each. The firm stood dissolved on demise of the testator and this legal position would prevail and the executor is now ready and willing to handover the share of deceased to Mr.Siddharth Vashi as on death and subject to accounts being drawn up. It is submitted that the firm was reconstituted with the plaintiff holding share of 75% and the plaintiff's wife holding 25%. Mr.Purohit submitted that Mr.Siddharth Vashi being a beneficiary in the Will has no right in the reconstituted firm.
12. M/s.Samrock Developers is not a partnership firm but a 10/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt proprietary concern of the plaintiff and as such the deceased has no share or interest in the firm. There is no mention of the said firm in the Will. The other entity known as M/s.R. Sameer and Associates is a partnership firm but the deceased was not partner of the said firm and had no interest therein. According to Mr.Purohit, the Will incorrectly mentions that the deceased was a partner and it does not mention the share in partnership firm, if any, held by the deceased. Mr.Purohit submitted that the applicant's son Mr.Siddharth Vashi will have share only in some of the partnership firms and in which the deceased had a share. In this respect Mr.Siddharth Vashi has already filed a suit for administration of being Suit No.181 of 2014 claiming a share in the properties left by the deceased since said Siddharth is only beneficiary and not the applicant, Siddharth's exact share will be ascertained in the course of time and the present applicant has no cause of action to seek any relief on account of alleged failure to pay the share of said Siddharth. He submitted that the testamentary Court could only decide whether the executor proves execution of the Will and if so whether probate should be granted. In absence of a Will, a testamentary Court can grant the letter of administration and in testamentary petition which is converted into suit, no interim relief could be granted. Even otherwise, the applicant is not entitled to relief since he has filed a caveat challenging the Will. Since it is contended that Mr.Siddharth Vashi was deprived of the share by Mr.Sameer Vashi and other executors and in order to obtain any relief, the applicant would have 11/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt to withdraw the caveat. According to Mr.Purohit, cause of action to claim the share in the partnership firm arose upon demise on 6th November, 2003 and any proceedings claiming such share should have been filed within three year from the date of demise. In the present case the beneficiary Mr.Siddharth Vashi, has not filed caveat but has filed an administration suit. According to Mr.Purohit since Siddharth was minor at the time of demise of the testator, the period of limitation would commence on the said Siddharth attaining majority and therefore, would have commenced in the year 2010. In such case even the suit would be barred by law of limitation and, therefore, an administrator cannot be appointed in the facts and circumstances of the case.
13. Mr.Purohit submitted that the motion proceeds on erroneous basis that the partner has a right in the assets of the partnership firm when a partner only has a right to dissolution and accounts. The firm cannot be dissolved on account of demise of the testator since these firms provided for continuation of business. The firm which provides for continuation of business cannot be dissolved on demise of the testator and the applicant is claiming on behalf of his son and therefore, cannot claim a right higher than the deceased. According to Mr.Purohit the deceased has no independent right in the assets of firm. He relied upon judgment of the Calcutta High Court in a case of Sudhirendra Nath Mitter vs. Arunendra Nath Mitter 5 5 AIR 1952 Cal 418 12/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt wherein well known judgment of English case Horrell vs. Witts was referred which sets out that where the deceased at the time of his death was in partnership with another person, an administrator "pendente lite" should usually be appointed. It is submitted that Testamentary Petition No.1560 of 2013 was filed by the present applicant and was converted into a testamentary suit No.16 of 2014, but the applicant has not joined his mother, who is widow of the testator and his two sisters as party defendants and it appears that the applicant is treating litigation as one between him and his brother. Furthermore, the widow of the deceased and one of the sister of the applicant, namely, Sonali Chetan Shah (nee Sonali Ramesh Vashi) were the partners of various firms and, therefore, they are necessary for taking accounts of different partnership firms, yet the applicant has not joined them as parties to the testamentary suit.
14. Mr.Purohit submitted that apropos the partners' interest in the assets of firm it is well known that concept of partnership is one of joint venture. All properties including immovable properties brought into the joint venture ceased to be exclusive property of the person who brought it in. These properties are treated as the assets of firm and the partners have interest in proportion to their share in joint venture of the business partnership. In joint venture business, there is no exclusive right of the property brought in or over any other property of the partnership. The partners are only entitled to get a share of profits from time to time and 13/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt upon retirement or death to get value of the share in the net partnership, asset as on date of dissolution or retirement after adjusting liabilities. He submitted that if individual partners are only entitled to share of profits accruing to partnership, there was no occasion to claim a share and that the partnership firm not being legal entity has no separate existence. The partners of the firm could not treat any property of the firm as his or her personal property and only right is to receive profits that may accrue. Mr.Purohit further contended that a partner has direct interest in property of the partnership firm to extent of his/her share is contrary to basic concept of partnership since the right of a partner is only a right to share in the profits. When a firm is dissolved its partner has right to share value of the assets after discharging all liabilities and where the partnership firm continues the outgoing partner or his estate is entitled at the option of such outgoing partner or his representatives to such share of profits made since he ceased to be a partner and as may be attributable to use of his share of the property of the firm or to interest at the rate of 6% per annum. He submitted that when immovable property is stock in trade of a partnership firm the same could not be converted into capital asset except by the agreement of the parties upon dissolution of the firm. Thus, even upon dissolution, an erstwhile partner is only entitled to the money value of his share in the assets of firm after discharging all liabilities. Thus, for accounting and taxation purposes, an immovable property that is a trading asset of the firm 14/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt is treated as stock in trade of the firm and not as a capital of individual partner and upon dissolution, it does not convert itself into a capital asset except if the partners so agree.
15. Mr.Purohit submitted that in case of the firms that continue, no administrator pendent lite could be appointed. The heirs of the deceased cannot get a higher right than one granted under the Partnership Act, 1932 and in the instant case, the applicant has no right vesting in him to interfere with the partnership business and if partnership is continued in law. In that view of the matter, he submitted that the partnership could continue. Mr.Purohit submitted that the application lacks bonafides. He submitted that the applicant allegedly referred to fraudulent transaction, last of which pertain to the year 2013 makes it evident that there has been unexplained delay in seeking relief in this application. The Motion is taken out in August 2018. The applicant has not filed any suit or other proceedings challenging alleged acts which were fraudulent. None of the transactions entered into have been assailed in other legal proceedings. 136 transactions referred to are with third parties who are since put in possession of these premises and in any case third party purchasers, who are not parties to the present application cannot be made to suffer. Furthermore, the applicant's son Siddharth Vashi has filed a suit and the applicant as a party defendant has supported applicant's son's case. The relief sought in the suit deals with very issues which are now highlighted. Issues have been framed in the suit 15/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt and the applicant's son Siddharth proposes to lead evidence. The applicant can always rely upon on all evidence that he has at the trial of suit.
16. Mr.Purohit submitted that there is no bonafide dispute relating to validity of the Will and hence section 247 of the Indian Succession Act will not be attracted. The appointment of Sameer Vashi as an executor is not disputed. He submitted that Sameer Vashi was not required to establish any family trust for benefit of the applicant's son and since the partnership business could continue, there was no question of requiring any prior approval of the Court while dealing with assets of partnership. He submitted that the accounts have been maintained in digital form and are available. That each partner and partnership firm had also filed their tax returns and that grievance is made by the applicant. In beneficiary Siddharth Vashi's suit, an application was made for the appointment of the Court Receiver which has been declined and in the fact and circumstances of the case, an administrator cannot be appointed merely because the applicant has filed caveat in respect of documents which the applicant claims to be forged.
17. Mr.Purohit denied that Sameer Vashi was liable for education and maintenance of the applicant's son. The plaintiff has not benefited personally by partnership assets in discharge of his functions as an executor. He has only entitled to his share. As far as the applicant's son's share is concerned, accounts have been maintained and there is no ground made out to alleged violation to any of the provisions. As far as various properties are 16/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt concerned, Mr.Purohit sets out in tabulated form as to how 140 properties have been dealt with. 44 properties have been sold by Sameer Vashi as a proprietor of M/s.Samrock Developers in which the deceased had no interest. 2 properties at Serial No.66 and 72 has been purchased by the plaintiff as proprietor of M/s.Samrock Developers. Those have not been sold and have no connection with the estate of deceased. 34 properties belonging to M/s.Samrock Constructions wherein deceased's HUF had 25% share is part of business of the firm which continues. 20 properties belong to M/s.Siddharth Builders and Developers in which deceased had 20% share and HUF has 20%. The said firm business also continues. 6 other properties belong to M/s.S.R. Corporation which firm stands dissolved and 50% share of the deceased is distributed equally between the plaintiff and Siddharth Vashi. The stock in trade of firm is disposed and after taking accounts, the plaintiff is ready to pay over 25% share to said Siddharth. The properties at Item Nos.56 and 112 belong to M/s.S.R.Corporation and new partnership firm, wherein the plaintiff and his wife are partners. The premises at Serial No.82 has been purchased by the plaintiff in his individual capacity and has been erroneously mentioned in the Will. Mr.Purohit submitted that in paragraph 11(c) in the applicant's submission an averment has been made pertaining to a duplex property which is purchased for Rs.15 lakhs, although it was purchased for Rs.50 lakhs to the applicant's knowledge. He submitted that difference in cost if at all attributed to under valuation could 17/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt be Rs.7.5 lakhs. This in any event has not been challenged in any suit or other legal proceedings. With regard to property at Serial Nos.112, 113 and 114, it is submitted that the deceased has no interest in the same. Furthermore, some other properties such as those at Item Nos.115 and 116 stand in the name of M/s.S.R. Corporation and Ayesha Vashi respectively.
18. M/s.S.R.Corporation is a partnership firm consisting of the plaintiff and his wife Ayesha Vashi and the deceased had no interest in these properties. As far as property at Item Nos.117, 118 and 119 are concerned the properties in question belongs to M/s.R.Sameer and Associates. The deceased never had interest in these properties. The property at Item No.120 consists of four plots of land, two of which belong to the plaintiff and one to the deceased and one plot has been bequeathed to Ayesha Vashi. He, therefore, submitted that none of the allegations hold water and some of the properties in Gujarat particularly those referred in paragraph 5(b)(i) and 5(b)(ii) were sold with consent of heirs of the deceased including the applicant. The sale proceeds of which were distributed including to said Siddharth Vashi, whose share was paid over to the applicant. It was submitted that the applicant has also executed a Power of Attorney in favour of the plaintiff to complete the transaction in question. He submitted that the applicant was a beneficiary of one shop premises under the Will which was sold with help of the plaintiff and the applicant is under guise of seeking to protect his son's share is trying to control over the 18/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt assets of deceased.
19. Apropos to allegations that M/s.Samrock Construction ought not to have commenced business as a proprietary concern, Mr.Purohit submitted that there is no requirement in law that new agreements to develop properties should be carried out with existing partnership or proprietary concern and grievance, if any, can be made only by existing partners and that at the material time, the partners had no such grievance. Making specific reference to allegation in paragraph 17 of the written submissions filed by the applicant to the effect that Mrs.Ayesha Vashi had managed to include her name as part owner of land admeasuring 61 acres, Mr.Purohit submitted that this allegation is baseless. It is submitted that the plaintiff and deceased had purchased farmland in their respective names as well as in the name of other family members. The deceased was co-owner with other family members and it is not appropriate to appoint an Administrator or Receiver in view of the fact that the deceased only had undivided share in that property which will be accounted for. In the meanwhile a plot of land has been purchased by the plaintiff and his wife in their personal name in which the deceased had no share and it is in respect of this plot that the allegations are sought to be made. He submitted that there is no basis for such complaints/allegations.
20. In respect of allegations that Mrs.Padmaben Vashi and the plaintiff are illegally collecting rent in respect of shop premises which the applicant 19/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt claims to be handed over to Siddharth Vashi, it is submitted that Mrs.Padmaben is not a party to the Testamentary Suit or Notice of Motion taken out by the applicant and, therefore, there was no question of passing any order in that respect. Moreover the Will contains a bequest in respect of shop premises at Viral Apartment in favour of Mrs.Padmaben during her lifetime and after her death the shop premises would go to Mr.Siddarth Vashi. During her lifetime Mrs.Padmaben is entitled to all benefits of the said property and hence there is no substance in the contention.
21. In rejoinder, the applicant submitted that the estate has been interfered with and the plaintiff has acquired his own properties out of the estate. Inconvenient aspects when pointed out are sought to explained as mistakes in the Will and the plaintiff has misused his authority. It is submitted that there are no errors in the Will and it is the plaintiff, who has misused his authority to manipulate and usurp certain properties. The contention of the plaintiff that there are errors in the Will merely indicate his malafide intention. That under Sections 180 and 181 of the Indian Succession Act whether or not the testator's believes certain property to be of his ownership is immaterial. No benefit can be derived under the Will if the executor has denied the title of deceased. The applicant submitted that there are no errors in the Will and he has no objections to bequests and has no objection to the testator's wishes being carried out. However, in the instant case, he states that the plaintiff is not a fit and proper person. He submitted 20/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt that although reliance was placed on a decision of the Single Judge of this Court in case of Rupali Mehta (supra), that was a case in which injunction and receiver of the property was sought under the Code of Civil Procedure and that is not consistent with the Indian Succession Act since the probate Court was not concerned with the title. In the instant case, appointment of the Administrator pendente lite was imperative since the deceased had acquired properties from his own earnings and this fact has been clearly stated in the Will. The plaintiff, therefore, could not deny the title of deceased, either he relinquishes his post as an executor of the Will or an administrator must be appointed since other two executors being sisters of the applicant and the plaintiff have also filed caveats and they are also interested in frustrating administration of the estate of deceased. That the three executors have made efforts to usurp estate of the deceased and this fact is evident from the amended probate petition. He submitted that amendments have resulted in under valuation of the estate and that the name of Siddharth Vashi has now been struck of.
22. The applicant contested value of the estate referred to in Schedule I and submitted that the deceased had additional stake in M/s.Siddharth Builders and Developers, a partnership firm, being Karta of HUF. According to the applicant, the executor dealt with property without his consent and that the Power of Attorney granted to executor has been fabricated and misused. The applicant further submitted that as regards the property 21/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt bearing Survey No.439 which has been bequeathed to him will have to be recovered, however, since this property had admittedly been disposed of and the applicant has 1/5th share in the property, he submits that the Power of Attorney granted in 2005 was in respect of property bearing Survey No.435 which remains unsold. It is further contended that the plaintiff has refused to provide partnership details of certain firms. This aspect, however may not survive since during the hearing at suggestion of Court, the plaintiff had agreed to handover the copies of the partnership deeds which had thus far being handed over to the applicant. Mr.Vashi submitted that Schedule I of amended probate petition grossly under values the property and the real market value is far higher. I do not consider it necessary to deal with each of the properties, save and except that from submissions made by the applicant, it is clear that explanation offered on behalf of the plaintiff has been disputed. In substance, he submits that the properties of deceased have been mismanaged by the plaintiff to usurp the properties and to plunder entire estate of the deceased.
23. The applicant reiterates that his application is not for replacing the plaintiff as a partner of the firm but to replace him as an executor due to gross misconduct. He submitted that the plaintiff ought to have filed a civil suit after recusing himself from an executorship. The plaintiff has allegedly failed to comply with wishes of the testator and has misappropriated the properties, manipulated the estate and inter alia engaged in falsification of 22/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt accounts. The applicant submitted that if an executor acts in derogation of the Will and in manner prejudicial to interest of the estate, beneficiaries are not helpless and they can assert their rights under the Will without filing probate petition and by filing a suit. The applicant has no quarrel with the Will. The thrust of this argument is that bequest made in favour of his son must be safe guarded and trust should have been formed. This argument overlooks the fact that the applicant's son had filed a suit for administration of the property. Although the applicant is not directly affected, he contends that the plaintiff has questioned the testator's bonafides, capabilities and contribution to the family. That the testator had affinity for landed and agricultural properties and had acquired large properties in or around Valsad in Gujarat. The applicant claims to hold undivided interest in the properties from his father via family arrangement and that these properties have been purchased many years ago and are much more valuable today. He submitted that although Late father (testator) was a CBI officer, he had retired pre-maturely in 1989 and took charge of all the partnership firms. That the deceased had qualified as a lawyer but rarely practiced. The testator took over control from the plaintiff and all the firms flourished for next 14 years and till time of his demise. The deceased was the brain behind the partnership firms and has therefore, commenced business in the name of his son (plaintiff) and it was not correct that the deceased was inducted in the partnership business after his retirement. He submitted that upon 23/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt retirement from service, the deceased took over all affairs and was at helm of business. He controlled the firms with help of his wife Padmaben and the daughter Sonali.
24. According to the applicant, the plaintiff was not given any importance and out of vengeance, the plaintiff has now proceeded to take charge of entire assets and his actions were directed against the deceased's intention as a result of which other beneficiaries are now victims of such vendetta. He submitted that the plaintiff had secreted the Will and when family members asked him about its contents, he finally filed the Petition for probate. That numerous emails right from the year 2004 revealed his "destructive" attitude that the plaintiff maintained a facade of innocence and the probate petition was not filed until December 2013 and only when the suit was filed by Siddharth Vashi. He submitted that the decision in Rupali Mehta (supra) and Ishwardeo Narain Singh (supra) did not support the plaintiff's case. The applicant repeated that he has no quarrel with contents of the Will but has serious objections to the executor acting and disposing the properties as such intention of the plaintiff is evident from the fact that the applicant's son Siddharth's share has been admitted, but the plaintiff now claims albeit invincibly that the suit filed by Siddharth is time barred. In any event this Court has exclusive jurisdiction to replace the executor. He submitted that the plaintiff and other executors are in possession of the trust properties. The trustees are disputing the rights of Siddharth Vashi who is a 24/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt beneficiary and the plaintiff as an executor is not carrying out his duties including consolidation of the properties. The plaintiff is duty bound to administer the estate and handover properties to all beneficiaries including the trust properties.
25. I have heard both sides at length. As a part of written submissions, the applicant has filed a statement dealing with individual properties, however, prior to dealing with the same, it is appropriate that the contents of Will are perused. The contents of Will are being undisputed. It would be appropriate that the same is scrutinised. The Will is in English and records the fact that previous Will dated 11th May, 2002 has been revoked. Sameer Vashi, Seema Desai and Sonali Shah are appointed as the executors and trustees of the estate. Clause (3) of the Will sets out that the testator is possessed of movable and immovable property described in the annexures. The properties are required to be disposed of as per testator's directions. Clause 5(b)(iv) sets out that the applicant had declared that he would not enter testator's house during the lifetime. Clause 5(b)(v) bequeaths Shop No.11 at Viral Apartment to the widow during her lifetime and thereafter to Siddharth Vashi, after he attains majority. Clause 5(b)(vii) bequeaths shop in the building known as "Madhukunj" to the applicant. Clause 5(b)(c) list out 4 partnership firms and bequeaths all benefits accruing from the said firms to the plaintiff and the applicant's son Siddharth in equal proportion. Siddharth Vashi is entitled to his part of the estate on attaining age of 25/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt majority and till such time the assets are to be held by the plaintiff and his wife Ayesha jointly. As far as the bank accounts are concerned, the Will provides that the widow of deceased and the plaintiff will have right to operate all accounts after his demise. Siddharth Vashi was permitted to operate after he attains the age of majority. If the widow pre-deceased the deponent, her right will go to Siddharth Vashi after he attains majority, however, this is not now relevant.
26. Apropos fixed deposits and funds invested, clause (6) provides that all monies will be divided equally between widow of the plaintiff, Sameer Vashi and Siddharth Vashi upon attaining the age of majority. Provision is made for dealing with funds in the event widow predeceased the testator, however, that is not now relevant. Further bequest of Rs.5,00,000/- is made to each of grand children and the widow Mrs.Padmaben is entrusted with this task. Vide clause (9) the shares held in public limited companies are required to be given to the plaintiff and Siddharth Vashi in equal proportion. A valuable wrist watch has been bequeathed to the applicant. This being position, upon examining whether the application was justified, it is necessary to bear in mind that the applicant had not disputed the contents of Will. In that view of the matter one must take note of the fact that Siddharth Vashi is now a major and has filed Suit No.181 of 2014. In that suit he has arrayed the plaintiff and his wife, his grand-mother (widow of the deceased), present applicant and two daughters of the deceased as the 26/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt defendants. Siddharth Vashi filed Notice of Motion No.301 of 2014 in the suit filed by him in which an application was made for removal of Sameer Vashi as an executor of deceased's Will. Apart from request for removal of Sameer Vashi as an executor, the applicant sought appointment of an administrator and interim relief restraining defendant nos.1 and 2 therein, Sameer Vashi and his wife Ayesha from dealing with and disposing of any property. A statement has been recorded on behalf of the said defendant that without prejudice to the rights and contentions they would not create any third party rights in respect of property referred therein. Certain other statements in respect of partnership firms have also been recorded.
27. Thus, as far as the applicant is concerned, the bequest in his favour is limited to one shop premises in the building known as "Madhukunj" and one wrist watch. It is not in dispute that in respect of the shop premises if the applicant had granted a Power of Attorney in favour of the plaintiff herein and that Power of Attorney has been acted upon. The applicant having accepted the contents of Will, the basis of the challenge cannot be appreciated inasmuch as his grievance is to manner in which his brother Sameer Vashi, an executor has conducted himself. Admittedly, the applicant has no other stake in the estate, save and except the interest of his son Siddharth, who has since attained majority and is a beneficiary in his own right. Siddharth Vashi has also filed a suit as noted above. The suit is pending disposal in this Court and interim application is still awaiting 27/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt disposal. The present application for appointment of the administrator in my view does not make out any case, given the fact that interest of the applicant as a beneficiary has already been taken care of and in relation to which he has no grievance. Assuming that action has been taken at the instance of his son Siddharth Vashi, no ground has been made for grant of relief. It will however be open for Siddharth Vashi to urge all aspects of his case.
28. The respondent has resisted attempts to let the applicant peek into partnership deeds but pursuant to a suggestion of this Court, Mr.Purohit has on instructions agreed to provide the copies of all partnership deeds and this would have been done by now. Such a disclosure is the least that the executor must honour. It is settled law that probate Court is not concerned with the title of the partnership properties. These are not matters that could be gone into in this application since the applicant is not beneficiary of any of the benefits of partnership and it is his son Siddharth Vashi, who is one of the beneficiaries who has taken steps for administration of the estate and this will take its own course unaffected by the application.
29. Apropos contentions of the applicant relating to the properties and as set out in his written submissions, it is his case that ancestral property referred to in paragraph 5(a) of the Will is in all likelihood still undivided. His contention relating to properties in Annexure "A" to the Will is that they are probably bequeathed to the applicant also in addition to Sameer Vashi, 28/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt widow of deceased Mrs.Padmaben and two sisters Seema and Sonali. Similarly in relation to the Orchard property at Valsad railway yard, plot of land at Valsad and another plot known as "Dhedawala-Wado" admeasuring 4 acres, it is his contention that these properties are also probably bequeathed to him. Thus, it is merely the applicant's suggestion that it may be "possibly" be bequeathed to him. Once having affirmed the contents of Will, it is difficult to appreciate the contention of the applicant that he has share in immovable properties in Valsad and Mumbai as well. The grievance of the applicant is that in relation to these four properties the accounts have not been provided and the probate petitioner has incorrectly contended that he is not a beneficiary of property at "Tekra". The ancestral properties of which particulars are listed is at Annexure "A" is seen to be bequeathed to the deceased's two sons and two daughters and his wife, all of whom will have equal share and therefore, the applicant is likely to have 1/5th share in these properties.
30. As regards property at Annexure "B" to the Will, the applicant states that these are self acquired properties of the deceased and son Siddharth has rights in all properties except the plot of land admeasuring 29 gunthas forming Item No.2 of Annexure "B" and the plot described at Item No.10 and the plot of land at Item No.12 and shop at Item No.13 being bequeathed to the applicant and which has already been dealt with. The applicant has contended that the properties are being undervalued by the plaintiff 29/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt Considering the fact that Siddharth Vashi has already filed a suit wherein he seeks relief, in my view the value of the properties as canvassed by the applicant before me will not be of relevance in this application.
31. As regards Annexure "D", they deal with bank accounts wherein the applicant has no stake but his son Siddharth has a stake. It is only the applicant's son Siddharth who will benefit from the bequest and the applicant's contention is that there are false claims being made. The applicant's contention that misappropriation as to extent of the deceased's share is not relevant considering the fact that there is no other bequest in favour of the applicant. In respect of the other items in the Will in paragraph 6, 7, 8, 9, 11 and 12, no bequest is made in favour of the applicant. As far as the wrist watch is concerned, the applicant admits that he is in possession of the same and there is no dispute in relation to that. In my view, mere submission that there are bonafide disputes in relation to the estate and that there is misconduct on the part of the plaintiff and others who are named as the executors in the facts of the present case do not justify grant of relief in this application. As far as the applicant's interest in the bequest is concerned, since the shop and wrist watch have been dealt with, all that remains is his share in the ancestral property in relation to which reference is to be found in paragraph 5(a) of the Will.
32. Mr.Vashi has relied on two compilations of judgments of various High Courts and one of the Supreme Court which are as follows and I propose to 30/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt deal with the said judgments as under :
(i) Dhanabakkiyammal vs. Thangavelu Mudaliar AIR 1927 Madras 994;
(ii) Smt. Karam Devi vs Radha Kishan & Ors. 1935 Lahore Series Vol.XVI 975;
(iii) Jadeja Pravinsinhji A. Vs. Jadeja Mangalsinhji S. AIR 1963 Gujarat 32;
(iv) Govind M. Asrani vs. Jairam Asrani and Anr. (1963) 2 Mh.L.J. 433;
(v) P.B. Srinivasan & Anr. vs. T.P.S. Varadhan (1981) II Mh.L.J. 158;
(vi) Shambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal (2000) 9 SCC 714;
(vii) Satidas Mukherjee Decd. vs. Sudip Mukherjee (2005) 2 Cal. 169;
(viii) Smt.Shanti Devi vs. Yadvinder Thakur and Anr. (2006) 143 PLR 799;
(ix) Ramjee Pandit and Ors. vs. Dhramdeo Pandit and Anr. 2008 (1) PLJ 98;
(x)Tara Chand Sharma & Ors. vs. Uma Aggarwal and Ors. AIR 2010 P & 30;
(xi) Vatsala Srinivasan Hindu Vs. Late N.Raghunathan & Shyamala AIR 2011 Bom.76;
(xii) Ramchandra Ganpatrao Hande vs. Vithalrao Hande & Ors. 2011(4) Mh.L.J.50;
(xiii) Mukesh R. Gokal and Anr. vs. Ashok Jagjivan Gokal and Ors. Misc.
Petition No.54/2012 dt. 11th October, 2013;
(xiv) Mukesh R. Gokal and Anr. vs. Ashok Jagjivan Gokal and Ors. Misc. Petition No.66 of 2013 dt. 11th October, 2013;
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(xv) Radhika Bhargava and Ors. vs. Arjun Sahgal and Ors. 2017(3) Mh.L.J.212;
(xvi) F.C.S. Amalnathan and Ors. vs. J.S. Victor Basco AIR 1995. Kant. 258; (xvii) Sharad Subramanyan vs. Soumi Mazumdar & Ors. AIR 2006 SC 1993; (xviii) Watkins vs. Brent 1 Mylne & Craig 97;
(xix) Manek Dara Sukhadwalla vs. Shernaz Faroukh Lawyer & Ors. Appea (L) No.7 of 2014 dt. 8th August, 2014;
(xx) N. Khadervali Saheb (Decd.) & Ors. vs. N.Gudu Sahib (Decd) & Ors. AIR 2003 SC 1524;
(xxi) V.Subramaniam vs. Rajesh Raghuvandra Rao AIR 2009 SC 1858;
33. In Shambu Prasad Agarwal (supra) the Supreme Court was considering dismissal by the High Court of the Revision Petition of the heirs of Appellant. By the said order, the High Court confirmed an order of dismissal passed by the trial Court of an application for substitution and amendment of the legatee's probate petition, even though the Appellant could have filed for issue of letters of administration. The Supreme Court held that the appeal of the Appellant should not have been dismissed on such a technical ground and the matter was remanded to the trial Court after substitution and amendment.
34. In Dhanabakkiyammal (supra) the High Court of Madras set aside the order of dismissal of application under section 301 of the Indian 32/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt Succession Act to remove an executor. The Court found that if the character of the Executor has ceased and he merely becomes a trustee he might be removed from his position as a trustee but if he continued to be executor, he could not be removed. That was the law prior to the Succession Act coming into force and that by virtue of section 301 the executor can be removed. Smt. Karam Devi (supra) relied upon Dhanabakkiyammal (supra) holding that the High Court alone was empowered to remove the executor In Jadeja Pravinsinhji (supra) the Gujarat High Court considered a Civil Revision Application against the order passed by the Civil Judge, Senior Division allowing an amendment of a prayer by the substituted applicant in a probate case. The substituted applicant was not an executor and was not entitled to probate but could only be entitled to letters of administration with the Will annexed. It is in these circumstances, that the prayer in the original probate petition was sought to be amended. The Revision Application was directed against the order, allowing the amendment. It was contended before the High Court that the Revision Application is supported on the ground that the right to probate is a personal right to the executor and this right does not survive on death of the executor and therefore abated. This aspect was considered by the High Court which held that action for probate is representative action and the object of the executor was to get adjudication not of any dispute in which he is personally interested but the object is to propound the Will of the deceased for the benefit of those who have interest 33/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt under the Will. The Gujarat High Court found that the maxim actio personalis moritur cum persona cannot apply to such a case since it is not a personal action. It is possible to carry on probate proceedings after demise of the executor that the prayer must be then for letters of administration with the will annexed.
35. The same view was taken by the earlier bench of the Madras High Court in the case of Rama Naidu vs. Rangayya Naidu (AIR 1933 Madras
114). A different view was, however, been taken by the Calcutta High Court in Sharat Chandra Banerjee vs. Nani MohanBanerjee (ILR 36 Cal.799) in which the Court observed that upon demise of the executor an application on behalf of his widow be substituted in its place was rejected. This view, however, does not find agreement with the learned Single Judge of the Gujarat High Court and it was held that the substitution of the opponent was proper. I do not see how this judgment is relevant in the facts of the present case.
36. In Govind Asrani (supra) the Madras High Court had occasion to consider inherent power of the Court and to take note of subsequent events and to mould reliefs. This once again is a case where the executor of Will has expired. In case of P.B. Srinivasan (supra) the Madras High Court considered the question whether two Petitioners, the second son and wife of a predeceased son of the testator are entitled to have the Respondent removed from executorship and entitled to possession of some equipment. The 34/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt leasehold rights in respect of equipment were in issue and the Court found that the facts of the case warranted exercise of discretion vested in section 301 of the Succession Act and considering the conduct, the Court held against the Respondent and allowed the Petition, removing the Respondent from the office as an executor. In Satidas Mukherjee (supra) a Single Judge of the Calcutta High Court had an occasion to consider the issue whether the Court had inherent power to mould reliefs on basis of altered conditions to ensure that justice is done and in the facts of that case the Court allowed the application permitting conversion of proceedings for grant of letters of administration. It follows the decision in Shambu Prasad Agarwal (supra).
37. In Smt.Shanti Devi (supra), the Punjab and Haryana High Court considered an application for removal of the executor on the basis that the respondents are misappropriating the properties of the trust and the purpose of the trust was not being fulfilled. The facts revealed that the deceased executed a trust deed and a supplementary trust deed and later bequeathed his properties in favour of the trust. The dispute arose between the claimants. It was contended that the Court could not determine the issues of title. The Court held that it was not deciding the issue of title and had exercised power to remove the executor. The trustees were quarreling over whether or not the properties were owned by the trust or not. Considering the multifarious duties of the executor, the Court appointed an executor, 35/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt who was also the Managing Trustee. Additionally the Respondents were also accounted and the Board of Trustees were to govern the properties. However, the Court retained control over sale of the properties in hand. In Ramjee Pandit (supra) the Patna High Court considered the case where the original applicants/plaintiffs have filed the probate case as an executor when, in fact, they were legatees and had interest in the Will. The case was one where the executor had expired and the heirs could not be substituted in place. The case of Shambu Prasad Agarwal (supra) was followed in that case as well. In Tara Chand Sharma (supra) the Court considered the question of removal of trustees.
38. In Vatsala Srinivasan (supra) this Court considered whether sole beneficiary under Will can seek substitution instead and in place of executor who has died during pendency of testamentary proceedings. The issue was similar to one raised in Shambu Prasad Agarwal (supra) and in the facts of that case, this Court followed the decision in Shambu Prasad Agarwal (supra) and also expressed approval of decisions of the Division Bench of Madras High Court in Rama Naidu (supra) and Govind Asrani (supra). The Court observed that under the Succession Act, the proceedings for grant of probate and for grant of letters of administration with the will annexed is initiated for protecting the interest of legatees under the will. Both the proceedings were same relating to genuineness and authenticity of the will and there is no conceivable reason as to why the law must be regarded as 36/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt prohibiting a beneficiary from seeking to continue the proceedings upon death of the sole executor and as incidental thereto for seeking formal conversion of the proceedings from one for the grant of probate to one for the issuance of letters of administration. Reliance is also placed to the case of Ramchandra Ganpatrao Hande (supra) in which the Division Bench of this Court held that the probate Court cannot go into the issue of title. It can only be decided by the Civil Court. I do not see how these decisions are of any assistance to the applicant.
39. In Mukesh R. Gokal (supra) a Single Judge of this Court had an occasion to consider the order of Prothonotary and Senior Master of this Court permitting the Respondent to amend probate granted by this Court. The petition was filed to correct mis-description of the property. The challenge was to grant of amendment. The Court considered the fact that probate has already been granted on the basis of the original application and held that the Additional Prothonotary ought not have granted the amendment without notice to all other beneficiaries and in the facts and circumstances of that case was to protect the applicants against certain action against the applicants and the order came to be set aside. I do not see how this judgment is of any assistance to the applicant.
40. in Mukesh Gokal (supra) wherein the Petitioners sought removal of Respondents as the Executors and Trustees, the Court placed reliance upon numerous decisions cited earlier including Tarachand Sharma (supra) and 37/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt Shanti Devi (supra) and on the facts found that executors were liable to be removed. In yet another case of Radhika Bhargava (supra) a Single Judge of this Court while deciding an application for removal of the respondents as the executors of Will of one Malati Srivastava who died unmarried with no lineal descendants, the Court observed that section 301 contains a twin provision. The provision is not simpliciter for removal of an executor but it is coupled with a power to make provision for a successor. The Court considered two questions, whether the petitioner seeking probate, a person who has filed a caveat, as the applicants have, can at all seek the removal of a probate petitioner as an executor and whether in a probate petition, a caveator can in addition seek to supplant the named executor by some other person. The Court while upholding that application was misconceived and that they were at liberty to take such steps culled out propositions to the effect that an application under section 301 of the Succession Act could only be made to the High Court, that it can be made at any time during pendency of a probate petition or one for Letters of Administration with or without Will annexed. The grant of probate or letters of administration is not a pre-condition. The application under section 301 can be made only by a beneficiary or legatee who accepts the Will and not by one who seeks to dislodge the Will and contests the application for probate.
41. In F.C.S. Amalnathan (supra) the Karnataka High Court rejected a petition for removal of the Respondent as an executor and dismissed the 38/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:43 ::: nmt172.18.odt petition under Section 301 since on facts the Court found that removal of the Respondent as an executor was not warranted. I do not see how this decision is of any assistance to the applicant. In Watkins vs. Brent (supra), the Court found that in a suit filed in the Ecclesiastical Court for recalling the probate could not be ground to interfere to restrain the executor from receiving the assets. The Court considered the facts and held that there is no ground for interference.
42. In Manek Sukhadwalla (supra) on facts the Court found it proper to appoint an Administrator. The factual matrix in that case was compelling and I do not see how in the present case the decision in Manek Sukhadwalla (supra) is of any assistance to the applicant. Finally, in the case of N.Khadervali Saheb (supra) the Supreme Court considered a pure question of law viz. whether an award by which residue assets of the partnership firm were distributed amongst the partners on dissolution of the firm, requires registration. The Court held that the award did not require registration and objections to the award were rejected and the award was made an order of the Court with decree to follow. I do not see how this decision is of any assistance to the applicant.
43. In V. Subramaniam (supra) the Supreme Court considered the effect of non registration of partnership firm inter alia holding that in view of Sub-section 2A to Section 69 a partner in an unregistered firm cannot file suit for dissolution or for accounts of dissolved firm unless duration of the 39/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:44 ::: nmt172.18.odt firm was only six months or its capital is upto Rs.2000/- only. So firm is not separate legal entity and the property of the firm belongs to its partners.
44. Mr.Vashi would submit that applying the said principle in the instant case, the property of firm belongs to its partners and hence benefits of estate have been denied to beneficiaries. That the properties of firm would have vested in his father as well, who was partner of the firm and was therefore entitled to be dealt with accordingly. Having considered all the above, I am of the view that the various judgments cited do not assist in the facts of this case. The Applicant has stated that he has no quarrel with the contents of the will and has also benefited from a couple of bequests.
45. In conclusion, I may observe that it is the applicant's case that vide family agreement dated 30th June, 1969 these properties were divided amongst six brothers including the deceased out of which four properties came into hands of the deceased and all his brothers have been dealing with the partitioned properties as their own. The applicant has relied upon a copy of family arrangement and contends that in probate petition, the plaintiff has not bothered to ascertain this fact and continues to be under impression that these properties are still undivided. In any event it is for the plaintiff to ascertain this. Although the written submissions refers to Annexure "A" being a copy of family agreement it does not appear to be annexed. Annexure "A" to the written submissions is a copy of the additional affidavit of Sameer Vashi. Be that as it may, in the event that the applicant is 40/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:44 ::: nmt172.18.odt entitled to a part of the said undivided property, the parawise response deals with individual properties and the plaintiff is bound to ensure that 1/5th share of the family members are duly safeguarded. As far as interest of the applicant's son is concerned, Mr.Purohit has already submitted that son's share will be provided for. In any event this is subject matter of the suit. For all the aforesaid reasons, I am of the view that the applicant has not made out a case for grant of any relief in this motion. In this view of the matter no further directions are called for. Needless to mention the order passed in this motion shall not in any manner affect the right of the Applicant's son Siddharth Vashi in proceedings pending and any that he may adopt.
46. I therefore pass the following order :
(i) Notice of Motion is dismissed. Needless to mention that dismissal of the Notice of Motion will not in any manner affect the rights of the applicant or his son Siddharth Vashi.
(ii) No costs.
(A.K. MENON,J.) 41/41 ::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 06:25:44 :::