Gujarat High Court
Vinayakrao Shantilal Desai vs . on 18 April, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/TEP/1/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TESTAMENTARY PETITION NO. 1 of 2012
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VINAYAKRAO SHANTILAL DESAI
Versus
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Appearance:
PARTY IN PERSON(5000) for the PETITIONER(s) No. 1
MR BB NAIK, SENIOR ADVOCATE with MR EKANT G AHUJA(5323) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 18/04/2018
ORAL ORDER
1. This petition is filed with following prayer made in para 21 thereof:-
a) Letters of Administration with the Copy of Prof. Manjulal R. Majmudar's Will annexed thereto and limited to the extent he has bequeathed to Ku. Shraddhaben M. Majmudar in the Estate described in the "Schedule-I" hereto her legacy on the East-Northern sides in the Northern and Other Parts, namely, of the North Legacy and Others in the case:
b) ...."
2. This petition is titled as "Application for letters of administration of limited grant for legacy-in-Estate of Ku.
Shruddhaben Manjulal Majmudar ("the North Legacy and Others"). It is stated to have been filed in the matter of concurrent jurisdiction of this Court under Section 300(1) of the Indian Succession Act, 1925 ('the Succession Act'). The petitioner has referred himself as formerly professional advocate, prospectively legal representative of Professor Manjulal Ranchhodas Majmudar (the testator) for and on behalf of the testator's estate ('the estate), vis-a-vis Kum. S.M. Majmudar's legacy.
Page 1 of 13 C/TEP/1/2012 ORDER3. As per the case of the petitioner, the testator had his permanent residence at the bungalow, 'Chaitanya Dham' at Plot No.34, Pratapganj, Baroda and at the age of 85 years, he executed a Will in respect of his properties on 19.9.1982. He then died on 11.11.1984. Kum. Shraddhaben, the daughter of the testator, was admitted to Psychiatric hospital, i.e. Hospital for Mental Health under reception order dated 27.09.1994, and being treated as such for more than 17 years. The petitioner claims to be her de facto next friend, acquainted with the facts and equipped in the subject of law. He has also declared that he is the tenant in the estate bequeathed to the daughter but, he is not seeking any relief adversely to Kum. Shraddhaben. The copy of the Will is annexed with the petition. It bears the date of execution as of 19.9.1982. As stated in the Will, the testator had two sons, named Virat and Chandramaulik, and one daughter Shraddhaben. It is stated in the petition that the testator's wife Shrimatiben and his son Chandramaulik predeceased him and is Virat, elder daughter-in-law Mayaben, younger daughter-in-law Vasukiben post-deceased him. Kum. Shraddhaben is described as direct lineal of first degree surviving heir of the testator and Mandar C. Majmudar and Hardik V. Majmudar- grandsons of the testator are described as surviving heirs of the second degree of the testator. The Will makes provision for distribution of the movable and immovable properties of the testator amongst daughter Shraddhaben, elder son Virat and grand son Mr. Mandar, who was minor at the relevant time. From the property of bungalow 'Chaitanya Dham`, Kum.Shraddhaben was given specific legacy of its Northern side. The petitioner has placed on record copy of the order dated 11.4.2012 passed by learned 10th Additional District Judge (Ad-Hoc), Vadodara in Misc. Civil Application No.79 of 2001, whereby the petitioner was appointed as Manager of all and any property of Kum. Shraddhaben in exercise of the powers under Section 54 of the Mental Health Act, 1987 ('the M.H. Act'). The Page 2 of 13 C/TEP/1/2012 ORDER Superintendent of Mental Hospital, Karelibaug, Vadodara was appointed as guardian of the person of impatient Kum. Shruddhaben. While passing such order, learned Judge recorded that Kum. Shraddhaben was indoor patient of mental hospital since 1994 and she was found to be mentally ill person as a matter of fact and that she was not personally capable of taking care of herself and managing her property, inclusive of her share in the ancestral property. This order appointing the petitioner as manager of the properties of Kum. Shraddhaben has not been interfered with by this Court in First Appeal No.1536 of 2012 filed by grandson Hardik V. Majmudar.
4. By order dated 8.2.2013, the Court admitted the petition and ordered to issue citation to two grandsons, i.e. Mandar C. Majmudar and Hardik V. Majmudar, of the testator and also ordered for publication of such citation on the notice board of District Court, Vadodara, of this Court and also at the office of the Collector, Vadodara. It appears that grandson Hardik Majmudar then filed Affidavit-in-Reply dated 11.6.2013 opposing the grant of prayers made in the petition and after such reply, he also filed caveat under Section 284(4) of the Succession Act on 4.8.2014 with affidavit in support of the caveat.
5. As stated in the order passed today in Civil Application No.578 of 2013 (Civil Application No.1 of 2013), which was filed for overruling-cum discharge of the grandson Hardik's opposition taken by way of affidavit-in-reply against the petitioner, after the petition with the application were placed before this Court, the petitioner pressed for early hearing of the petition by pointing out that more than five years had passed and at that stage, since objection was taken by learned advocate Mr. Mangukiya, who was then appearing for grandson Hardik- the citee, against maintainability of the petition before this Court, the petitioner who appears as party-in -person took the Court to various provisions of the Succession Act as also of Page 3 of 13 C/TEP/1/2012 ORDER the M.H. Act and his arguments were heard on different dates and during the arguments, at one stage, he pressed for hearing of the Civil Application No.578 of 2013. However, since the petitioner made arguments concerning the issues involved in the petition also, the Court asked him to make arguments on the Civil Application as also on the Testamentary petition and stated that from the arguments of other side, the arguments relevant for deciding the Civil Application, shall be considered. To such course, the petitioner did not take any objection and he was heard extensively on the Civil Application No.578 of 2013 and also on the petition. Today, the Civil Application is rejected.
6. In the petition, the petitioner has referred to many provisions of the Succession Act. When put to the petitioner in the context of the prayer made in the petition for grant of letters of administration with copy of the Will annexed as to under which provision of the Succession Act, the petitioner would claim grant of letters of administration to him with copy of the Will annexed, the petitioner declared before the Court that it could be only under Section 254 of the Succession Act. The petitioner, not being universal legatee, residuary legatee or a legatee, either under special legacy or general legacy, of the estate of the testator, cannot claim letters of administration under any other provisions of Chapter-I and II of Part- IX of the Succession Act and therefore he declared that his prayer for grant of letters of administration could be considered only under Section 254 of the Succession Act. As per Section 236 of the Succession Act, mentally ill person is not entitled to grant of letters of administration. However, as provided in Section 246 of the Succession Act, the person to whom the care of the estate of minor or lunatic has been committed by the competent authority could be granted letters of administration, if minor or lunatic is sole executor, sole universal or residuary legatee or is solely entitled to the estate of intestate according to the rule for distribution of the intestate Page 4 of 13 C/TEP/1/2012 ORDER estate, for the use and benefit of minor or lunatic until he attains majority or becomes of sound mind, as the case may be. Kum. Shraddhaben -mentally ill person, was neither executor,nor universal legatee nor residuary legatee nor would have been solely entitled to the estate of Prof. Majmudar if died intestate. Therefore under this section also, grant of letters of administration was not available to the petitioner.
7. Some relevant provisions from the Succession Act, concerning grant of letters of administration are required to be first referred. Part IX of the Succession Act contains the provisions for grant of probate and letters of administration with the Will annexed and the administration of the estate of the deceased in cases of intestate succession. In Chapter-I thereof, Section 232 provides for grant of letters of administration to an universal or a residuary legatee with the Will annexed of the whole estate or of so much thereof as may be unadministered in a case where deceased has made a Will but not appointed an executor or executor appointed but not legally capable or refuses to act or died before the testator or before he could prove the Will or dies after proving the Will but before he has administered all estate of the deceased. Section 233 speaks about the right to administration of representative of deceased residuary legatee. Section 234 provides that where no executor nor residuary legatee nor representative of such legatee is available or declines or incapable to act, the person or persons who would be entitled to the administration of the estate of the deceased if deceased died intestate or any other legatee having a beneficial interest or creditor, may be admitted to prove the Will and letters of administration may be granted to him or them accordingly. Section 235 provides that letters of administration with the Will annexed shall not be granted to any legatee other than an universal or a residuary legatee, until a citation has been issued and published in the manner as provided, calling on the next-of-kin to accept or Page 5 of 13 C/TEP/1/2012 ORDER refuse letters of administration. Chapter-II provides for grant of probate and letters of administration for limited duration, for use and benefit of the others having right of grant of letters of administration and also for special purposes. Section 254 which falls in Chapter-II reads as under:-
254. Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration.-(1) When a person has died intestate, or leaving a will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator.
(2) In every such case letters of administration may be limited or not as the Court thinks fit.
8. Section 254 confers discretion to the Court to appoint some person to administer the estate or any part thereof of the deceased other than the person who in ordinary circumstances would be entitled to grant of administration. But such discretionary powers are to be exercised having regard to consanguinity and other factors stated in section 254. Thus, Section 254 does not confer any right to any person to claim grant of letters of administration. The object and purpose behind enacting Section 254 by the legislature appear to be that if on the large family set-up, considering the amount of interest involved in the estate of the deceased and for the safety thereof, the Court is of the view that for the benefit of the estate and of all persons interested in the distribution of the property, there is a need for protection and preservation of the estate, it will be necessary and convenient to appoint some other person, it may exercise powers under Section 254.
Page 6 of 13 C/TEP/1/2012 ORDER9. Here is a case where the petitioner has referred himself as prospectively a legal representative of the testator to claim relief for grant of letters of administration to the extent of legacy of Kum. Shraddhaben from the estate of the testator. He has stated in his petition that two grandsons, named Mandar and Hardik, have no legal competence and entitlement for transfer of any right, title and interest in the estate and he shall be the only person entitled for grant of letters of administration for the estate of the testator vis-a- vis legacy granted to Kum. Shraddhaben.
10. The petitioner was granted extensive hearing on different dates. He exhaustively referred the provisions of the Succession Act, some provisions from the M.H. Act, some provisions of the Hindu Succession Act, some constitutional provisions and also referred some observation from judgment of Hon'ble Supreme Court on euthanasia.
11. The petitioner submitted that when Kum. Shraddhaben was admitted in mental hospital, none of the family members of the testator, including the citees, had ever come to take care of Kum. Shraddhaben. He submitted that it was he and two other persons when filed petition for judicial inquisition of Kum. Shraddhaben, the Court ultimately found him as suitable person to be appointed as Manager of Kum. Shraddhaben's all and any property. He submitted that the citees having not taken care of Kum. Shraddhaben, having acted prejudicially to the estate of the testator by selling part of the estate and having not come forward for letters of administration, he would be the only person entitled to grant of letters of administration in connection with the Will of the testator to the extent of legacy granted to Kum. Shraddhaben under the Will. He also submitted that since he is the tenant in part of the estate, he is interest in protecting the property, especially the part of the estate given in legacy to Kum. Shraddhaben and therefore, to protect the estate vis-a-vis the legacy given to Kum. Shraddhaben, the court Page 7 of 13 C/TEP/1/2012 ORDER may exercise of its powers under Section 254 of the Succession Act. As regards the effect of death of Kum. Shraddhaben on pending Testamentary petition, he submitted that occurrence of death of Kum. Shraddhaben could neither go against him to take grant of letters of administration nor against the estate of Kum. Shraddhaben as when the petition was filed, Kum. Shraddhaben was alive and if he was otherwise entitled to letters of administration during the lifetime of Kum. Shradhaben, death of Kum. Shraddhaben pending the petition would not take away his right to grant of letters of administration for protection of the estate of Kum. Shraddhaben. He submitted that grant of letters of administration to him in connection with the Will for the estate of the testator vis-a-vis the legacy to Kum. Shraddhaben would not cause prejudice to anybody as if it is ultimately found that letters of administration is invalidly granted to him or for any reason, it is found that he was not entitled to grant of letters of administration, it could well be revoked under Section 263 of the Succession Act. He, therefore, submitted that since he is the only person who can work as a representative of Kum. Shraddhaben and can protect the estate of the testator vis-a- vis the legacy of Kum. Shraddhaben, the Court may exercise its powers under Section 254 of the Succession Act and grant letters of administration to him as prayed for in the petition.
12. Learned senior advocate Mr. Bharat Naik appearing with learned advocate Mr. Ekant Ahuja had while opposing the Civil Application No.578 of 2013 (Civil Application No.1 of 2013) filed by the petitioner had made some arguments touching the issues concerning the grant of letters of administration in connection with the copy of the Will annexed with the Testamentary petition. The Court at that stage had stated to Mr. Naik that his arguments on the issues concerning the grant of letters of administration in connection with the Will annexed would be considered if the Court was not to accept the prayer made in the above application for Page 8 of 13 C/TEP/1/2012 ORDER discharge of the opposition of the opponent therein-the citee Mr.Hardik. Such application is rejected.
13. Mr. Naik's submissions were as under:
"Learned senior advocate Mr. Bharat B. Naik with learned advocate Mr. Ekant Ahuja for the opponent submitted that the opponent, being grandson of the testator, is very much interested in the estate of testator, whereas the applicant who is neither legatee nor a next of kin of testator has come forward to ask for letters of administration for protection of his own interest. Mr. Naik submitted that the applicant was appointed as Manager for the properties of Kum. Shraddhaben, under Mental Health Act, 1987 (M.H.Act), however Kum. Shraddhaben passed away pending the Testamentary proceedings, and with passing away of Kum. Shraddhaben, not only the applicant ceased to be the Manager of the properties of Kum. Shraddhaben but the Testamentary petition will not remain maintainable. Mr. Naik submitted that the applicant is not entitled to claim letters of administration under any of the provisions contained in Chapter-I and Chapter-II of part-IX of the Succession Act. Referring to deferent provisions of the M.H. Act, Mr. Naik submitted that the applicant is not entitled and has no locus to ask for letters of administration for the estate of mentally ill person- Kum. Shraddhaben. Mr. Naik submitted that when Kum. Shraddhaben was not entitled to letters of administration, the applicant, being appointed as Manager of the property of Kum. Shraddhaben would not be entitled to ask for letters of administration for the estate of the testator vis-à-vis legacy of Kum. Shraddhaben. Mr. Naik submitted that the testator died somewhere in the year 1984 and till Kum. Shraddhaben was sent to mental asylum in 1994, she never filed any proceeding as legatee for letters of administration in connection with the Will executed by Prof. Majmudar. Mr. Naik submitted that now after more than 30 years, the Testamentary petition is filed by the applicant which is hopelessly time barred as by virtue of Section 137 of the Limitation Act, on expiry of three years period from the date the right accrued for letters of administration, the remedy was already lost."
14. Irrespective of consideration of above submissions of Mr. Naik, if the court independently finds from the Testamentary petition that exercise of the powers for grant of letters of administration is not called for , it can always refuse to grant letters of administration in connection with the will annexed.
Page 9 of 13 C/TEP/1/2012 ORDER15. The Court finds from the averments in the petition that to claim grant of letters of administration in connection with the Will annexed, the petitioner has commented on the rights and interest of the citees in the estate of the testator. The petitioner is neither executor, nor universal legatee, nor residuary legatee nor even legatee of the estate of the testator. He would therefore not claim grant of letters of administration under other provisions of Chapter-I and II under Part IX of the Succession Act, except claiming that his prayer for grant of letters of administration could be considered under Section 254 of the Succession Act. The powers under Section 254 of the Succession Act are meant to be exercised at the discretion of the Court and exercise of such discretion is guided by the factors stated therein. As stated above, the petitioner was appointed as manager of the properties of Kum. Shraddhaben under Section 54 of the M.H. Act. As a Manager of the properties of kum. Shradhaben, if the petitioner would not have been entitled to grant of letters of administration under Section 246 of the Succession for use and benefit of Kum. Shruddhaben, as Kum. Shradhaben was neither executor, nor universal legatee, nor even residuary legatee , the question is whether the petitioner could be granted letters of administration in exercise of the powers under Section 254 of the Succession Act on petitioner alleging that the citees remained indifferent towards their duties to look after Kum. Shraddhaben while she has remained in the mental hospital. Grant of letters of administration under Section 254 of the Succession Act would be for protection and preservation of the estate of the testator so as to make it available for the benefit of the person entitled. In the Affidavit-in-Sur- Rejoinder dated 20.8.2013 filed by one of the citees, i.e. Hardik Virat Majmudar, it is stated that the petitioner has filed rent suit and that earlier, he had filed one application for fixation of standard rent and his intention behind filing of the present Testamentary petition for grant of letters of administration is to act as owner of the estate. It is further stated that there is a Page 10 of 13 C/TEP/1/2012 ORDER rent suit pending for eviction of the petitioner. The petitioner could not deny that the suits in connection with the part of the estate of the testator were pending. With the affidavit-in-rejoinder dated 8.7.2013 filed by the petitioner, the petitioner has placed on record some documents which appear to have been presented in the office of the City Survey Superintendent. They are marked as Annexure-Q, Annexure-R, Annexure-S and Annexure-T. The first document signed by Kum. Shraddhaben was the declaration made before the City Survey Superintendent that the testator died on 11.11.1994, leaving the properties of City Survey Nos.351 and 352 of Ward No.2 in the city of Vadodara and names of the surviving heirs stated therein were Kum. Shraddhaben herself, Maya Chandramaulik and Viratkumar. The second document is the statement before City Survey Superintendent of Kum. Shraddhaben and Viratkumar Majmudar stating about the death of the testator and discloser of his Will dated 19.9.1982 and also stating about the bequeath made by the testator of his properties to his heirs, including Kum. Shraddhaben. The last document at Annexure-T is also the statement of Kum. Shradhaben before the City Survey Superintendent and her brother Viratkumar stating that if it was not possible to implement the Will executed by the testator, they had no objection if the names of the living heirs of the testator were entered on the record of the city survey. Declaration of death of the testator and recording of the above statements had taken place somewhere in the month of December 1985 when Kum.
Shraddhaben was normal person and not suffering with any mental illness. In fact, it was after 9 years, she was taken in the mental hospital under the reception order in the year 1994. During this period Kum. Shraddhaben had not initiated any proceedings concerning grant of letters of administration in connection with the Will of the testator. Considering the matter from the above angle, it could be said that the legacy had already vested in Kum. Shraddhaben for part of the estate bequeathed to her and she had Page 11 of 13 C/TEP/1/2012 ORDER vested interest as legatee in the estate of the testator from the date of the death of the testator. Therefore, when Kum. Shraddhaben had vested interest in the estate which has remained settled for many- many years, the next-of-kin of the testator and of Kum. Shraddhaben, which may include the citees, may claim to be entitled to inherit the estate left by Kum. Shruddhaben.
16. There is one more aspect to be considered which is about delay. After legacy had vested in Kum. Shradhaben, more than 30 years have passed. It is at this stage, the petitioner has come for letters of administration in connection with the Will of Prof. Majmudar.
17. The court is when called upon to exercise powers under section 254 of the Succession Act will not be unmindful of all the above aspects as regards the proceedings taken before the City Civil Superintendent, vesting of interest in estate in Kum. Shradhaben in 1985, the petitioner being tenant in part of the estate and filing of the rent suits by the parties and above all the long delay in asking for letters of administration.
18. Considering the above aspects and in the facts and circumstances of the case, the Court finds that it is not a case where the exercise of the powers under section 254 of the Succession Act is called for.
19. As stated above, the petitioner has extensively referred the provisions of the Succession Act, the M.H. Act and the constitutional provisions and even the observations from the decision of Hon`ble Supreme Court on euthanasia including on the right of dead person to speak through the Testamentary document. Reference to other provisions of the Succession Act, provisions of the M.H. Act, constitutional provisions and the observations of Hon'ble Supreme Court on euthanasia are since not relevant when the Court is to Page 12 of 13 C/TEP/1/2012 ORDER decide whether the case calls for exercise of the powers under Section 254 of the Succession Act, the Court does not find it appropriate to consider any of the other provisions referred and any of the judgments relied.
20. Under Section 254 of the Succession Act, the Court is given discretion to appoint such person as it thinks fit to be the administrator. Therefore, it is absolutely for the Court to decide who could be appointed as the administrator. The Court has observed that the petitioner has been pursuing the present petition very rigorously and putting his case stressfully as if he has a right to claim grant of letters of administration in connection with the Will annexed with the petition. During his long arguments on many different dates, he repeatedly said that he has been well informed on law and shown his dislike when the Court put some query to him. Even at one stage, he stated to the Court not to interfere with his arguments and thereafter, he even came with affidavit stating that the query put by the Court was outside the pleading, not only because Section 246 is not pleaded, but also because it is immaterial in the case. Therefore, over and above the conclusion reached above on the facts and circumstances of the case for not finding a case for grant of letters of administration to the petitioner, the Court finds that even otherwise the petitioner is not the person who can be appointed as the administrator.
21. For the reasons stated above, the Testamentary petition is required to be dismissed. It is accordingly dismissed.
(C.L. SONI, J) OMKAR Page 13 of 13