Bombay High Court
Savita Jeevan Sabnis And Anr vs Sujata Abhay Sabnis And Anr on 29 April, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:7201
ts 195 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.195 OF 2013
IN
TESTAMENTARY PETITION NO.214 OF 2012
1. Savita Jeevan Sabnis,
Age 38 years, Occu - Service,
SWAROOP
SHARAD
PHADKE 2. Rahul Jeevan Sabnis,
Digitally signed by Age 18 years, Occu - Student,
SWAROOP
SHARAD PHADKE
Date: 2025.04.29
Both Hindu Indian Inhabitants
19:56:13 +0530
of Mumbai, both presently residing
at, Room No.5, Chawl No.3, Punjab
Society, Tagore Road, Santacruz
(West), Mumbai - 400 054.
being the Widow and son respectively,
of the deceased abovenamed. ... PLAINTIFFS
VERSUS
1. Sujata Abhay Sabnis,
Residing at Flat No.1A, Ground Floor,
Gomantak Society, Paranjpe 'B'
Scheme, Hanuman Road, (Road No.1),
Near Mahila Sangh School, Vile Parle
(E) Mumbai - 400 057.
2. Nilima Subhash Rege,
Residing at Flat No.1A, Ground Floor,
Gomantak Society, Paranjpe 'B'
Scheme, Hanuman Road, (Road No.1),
Near Mahila Sangh School, Vile Parle
(E) Mumbai - 400 057. ... DEFENDANTS
Mr. Nirman Sharma with Mr. Girish Kedia, Ms. Priyanka Choudhary, Mr.
Paresh Parekh, for Plaintiffs.
Mr. Prabhu Velar with Mr. Joel D'Souza, for Defendants.
SSP 1/26
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CORAM : N.J.JAMADAR, J.
RESERVED ON : 16 DECEMBER 2024
PRONOUNCED ON : 29 APRIL 2025
JUDGMENT :
1. This is a suit for grant of Letters of Administration to the property and credits of Jeevan Mangesh Sabnis (deceased).
2. The material averments in Petition No.214 of 2012, which came to be converted into a Testamentary Suit, upon contest, read as under :
2.1 Savita Jeevan Sabnis (P1) claimed to be the wife of the deceased.
Their marriage was solemnized on 23 May 2006 as per Hindu Vedic Rites. The marriage was registered under the Special Marriage Act, 1954. Prior to her marriage with the deceased, Plaintiff No.1 was a divorcee. The deceased had no issue out of the wedlock with the Plaintiff No.1. Rahul Jeevan Sabnis (P2) was born to Plaintiff No.1 by her quondam husband. 2.2 The Plaintiffs claimed, after the marriage of Plaintiff No.1 with the deceased, Plaintiff No.2 became the son of the deceased. The change in name of the Plaintiff Nos.1 and 2, post marriage of Plaintiff No.1 with the deceased, has been notified and published in the Government Gazette. The deceased was working with Food and Civil Supplies Department, Mantralaya, Mumbai. He passed away on 26 November 2010.
2.3 According to the Plaintiffs, apart from Plaintiff Nos.1 and 2, Sushila Mangesh Sabnis, mother of the deceased, who passed away on 29 October SSP 2/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc 2012, was the legal heir of the deceased in accordance with the provisions contained in Hindu Marriage Act, 1956.
2.4 The Plaintiffs asserted, after the demise of Jeevan, late Sushila, mother-in-law of the Plaintiff No.1, by taking undue advantage of her nomination, made attempts to usurp the properties of the deceased. Hence, the Petition for grant of Letters of Administration in respect of the properties and credits of the deceased. Plaintiff Nos.1 and 2, thus, claimed 1/3 share each in the estate left behind by the deceased.
2.5 In the statement of claim (Exhibit E), the Plaintiffs have shown the flat situated at Flat No.1A, Ground Floor, Gomantak Society, Paranjpe 'B' Scheme, Hanuman Road, (Road No.1), Near Mahila Sangh School, Vile Parle (E) Mumbai - 400 057 (Gomantak Flat), terminal benefits due and payable by the Food and Civil Supplies Department, Mantralaya, Mumbai, the amount standing to the credit of the bank accounts of the deceased and the securities standing to the credit of the account of the deceased in DPID No.12011700 with Dalal and Broacha Stock Broking Pvt. Ltd., valued at Rs.22,04,281/- as of 23 January 2011.
3. Sujata Abhay Sabnis, widow of Abhay Sabnis, the brother of the deceased and Nilima Subhash Rege - Defendant No.2 and the sister of the deceased, entered caveats. Defendant Nos.1 and 2 resisted the prayer of the Plaintiffs to grant Letters of Administration to the properties and credits of SSP 3/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc the deceased. The substance of the resistance putforth by the Defendants can be summerised as under :
3.1 Mangesh Y.Sabnis was the father of the deceased. Mangesh passed away intestate on 20 February 1999 at Mumbai. Mangesh was survived by Sushila, the widow, Jeevan (the deceased), Abhay, another son, and Nilima (D2), the daughter. Abhay predeceased the deceased, on 3 November 2009.
Sujata (D1) is the wife of Abhay. They have a son Omkar, who was born on 14 March 1999.
3.2 Gomantak Flat was the self-acquired property of late Mangesh and Sushila. After the demise of Mangesh, his widow, sons and daughter succeeded to the said Gomantak Flat as Class I heirs. Neither the deceased, nor the Plaintiffs had any right, title or interest in the Gomantak Flat. It was also contended that, prior to her death, late Sushila had executed a registered Gift Deed in favour of Omkar on 21 December 2011.
3.3 Though it was not disputed that the marriage of Plaintiff No.1 was solemnized with the deceased, yet the claims of the Plaintiffs regarding the marital life of the Plaintiff No.1 and deceased, and the treatment of Sushila at the hands of Plaintiff No.1, in particular, were contested. It was contended that the Plaintiff No.1 did not take care of Sushila and the Defendants were required to incur expenditure for the medical treatment of Sushila to the tune of Rs.25 Lakhs.
SSP 4/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 :::
ts 195 of 2023.doc 3.4 The entitlement of the Plaintiff No.2 to succeed to the estate of the deceased was put in contest. It was categorically contended that Plaintiff No.2 having been born to Plaintiff No.1 by her quondam husband, was not the legal heir of the deceased.
3.5 Thus, the Plaintiffs were not entitled to seek Letters of Administration.
4. In the wake of the aforesaid pleadings, the following issues were settled. I have recorded my findings against each of them for the reasons to follow :
ISSUES FINDINGS
(1) Whether the Plaintiffs prove that
they are entitled to the Letters of
Administration to the property and
credits of the deceased, Jeevan
Mangesh Sabnis ? In the negative.
(2) Whether the Defendants prove that
the Letters of Administration should
be granted to the Defendants or to the
Plaintiffs and Defendants jointly or to
some other fit and proper person ? In the negative.
(3) What reliefs and What Orders ? As per final
order.
REASONS
5. In order to substantiate her claim for grant of Letters of Administration, Savita (P1) entered into the witness box. A number of documents were SSP 5/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc tendered in evidence to support the Plaintiffs' claim. Sujata - Defendant No.1 (DW1) and Nilima - Defendant No.2 (DW2) have also examined themselves in the rebuttal. Defendants have also tendered a number of documents.
6. At the conclusion of the trial, I have heard Mr. Nirman Sharma, learned Counsel for the Plaintiffs, and Mr. Prabhu Velar, learned Counsel for the Defendants, at some length. Learned Counsel took the Court through the pleadings, evidence of witnesses and documents to draw home their respective points.
7. Before appreciating the evidence qua the issues (extracted above), it may be apposite to record the facts over which there is not much controversy. Firstly, the relationship between the parties is not much contest. Admittedly, Mangesh was the father of the deceased. Mangesh passed away intestate on 20 February 1999. He was survived by Sushila, the widow, Jeevan, the deceased, Abhay, the predeceased brother of the deceased, and Nilima - Defendant No.1. It is not disputed that Abhay passed away on 3 May 2009, leaving behind Sujata (D1) and a son Omkar. The factum of marriage of Plaintiff No.1 with the deceased on 23 May 2006, as such, is not in contest, though there is controversy over the fact as to whether the marriage was solemnized according to Hindu Vedic rites or the Special Marriage Act, 1954. Incontrovertibly, the deceased passed away on 26 November 2010. The parties are not at issue over the fact that the deceased died intestate. SSP 6/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 :::
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8. It is also not in dispute that the deceased was posted in Food and Civil Supplies Department, Mantralaya, Mumbai. By and large, it is admitted that Plaintiff No.1 was also working in Mantralaya, Mumbai. There was no issue out of the wedlock between Plaintiff No.1 and the deceased. Indubitably, Rahul (P2) was born to Plaintiff No.1 by her quondam husband. There is a serious controversy as to the entitlement of the Plaintiff No.2 to succeed to the estate of the deceased.
9. It would be contextually relevant to note that the Plaintiffs had taken out Notice of Motion No.28 of 2014 seeking appointment of an administrator or the Court Receiver in respect of Gomantak Flat and incidental reliefs with regard to the said flat. By an order dated 7 April 2014, this Court declined to grant ad-interim relief observing, inter alia, that the Plaintiffs would have to file a suit and seek interim reliefs under Order XXXIX and XL of the Code of Civil Procedure, 1908 (the Code).
10. Consequent to the said order, the Plaintiff No.1 has instituted a suit being Suit No.974 of 2014 before the City Civil Court at Dindoshi, seeking, inter alia, a declaration that she is entitled to 1/3 share in Gomantak Flat and the consequential reliefs against Defendant Nos.1 and 2 and Omkar - Defendant No.2 therein (in whose favour late Sushila had executed a registered Gift Deed). In the said suit, Defendants therein have filed a Counter-claim seeking a declaration that the Plaintiff No.1 unlawfully received SSP 7/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc a sum of Rs.26,22,449/- towards the terminal benefits from the Government of Maharashtra and the Defendants are entitled to their share in the said terminal benefits and also recover the proportionate share of the expenses of Rs.25 Lakhs incurred by the Defendants for the treatment of late Sushila, and damages.
ISSUE NOS.1 AND 2 :
11. In the backdrop of the aforesaid rather uncontroverted facts, the first question that wrenches to the fore is, to whom, in a situation of the present nature, the Letters of Administration can be granted. Section 218 of the Indian Succession Act, 1925 (the Act, 1925) reads as under :
"218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person. - (1) if the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased."
12. The text of Section 218 would indicate that the following conditions need to be satisfied before the Letters of Administration can be granted. First, SSP 8/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc the deceased must have died intestate. Secondly, the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person. Third, administration of his estate can be granted to any person, who, under the law governing intestate succession of the deceased, would be entitled to the whole or any part of the estate of the deceased.
13. In the case at hand, the first two conditions can be said to have been satisfied. The controversy revolves around the question as to which rules would govern the distribution of the estate of the deceased and then, whether the Plaintiffs, or for that matter, Defendant Nos.1 and 2, would be entitled to the whole or any part of the deceased's estate.
14. It is imperative to note that the Plaintiffs have approached the Court with a case that the Plaintiffs and late Sushila being the Class I Heirs of the deceased were entitled to 1/3rd share each in the estate left behind by the deceased. There are averments in the Petition that the marriage of Plaintiff No.1 was solemnized with the deceased according to Hindu Vedic rites. At the same breath, the Plaintiffs have also asserted that the marriage of the Plaintiff No.1 with the deceased was registered under the Special Marriage Act, 1954. The certificate of marriage (Exh.P-1/4) issued by the Marriage Officer under Section 13 of the Special Marriage Act, 1954 was tendered in evidence. The solemnization of the marriage between the Plaintiff No.1 and the deceased in accordance with the provisions of the Special Marriage Act, SSP 9/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc 1954 is of material significance.
15. Section 12 of the Special Marriage Act, 1954 provides that the marriage may be solemnized in any form which the parties may choose to adopt. Section 13(2) of the said Act, declares that a certificate of marriage issued thereunder shall be deemed to be conclusive evidence of the fact that a marriage under the said Act, has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.
16. Sections 21 and 21-A of the Special Marriage Act, 1954 read as under :
"21. Succession to property of parties married under Act. - Notwithstanding any restrictions contained in the Indian Succession Act, 1925, with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestate) had been omitted therefrom.
21-A Special provision in certain cases - Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, Section 19 and section 21 shall not apply and so much of Section 20 as creates a disability shall also not apply."
17. Mr. Velar, the learned Counsel for the Defendants submitted that the manner in which Plaintiff No.1 fared in the cross-examination indicates that, an endeavour was made by the Plaintiffs to suppress the factum of marriage SSP 10/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc under the Special Marriage Act, 1954, and, unjustifiably, claim succession to the estate of the deceased by resorting to the provisions contained in the Hindu Marriage Act, 1956, as if the marriage had been solemnized in accordance with the tenets of Hindu religion. Mr. Velar took the Court through the cross-examination of P.W.1 to show how P.W.1 wavered from one end to another, before conceding that the marriage was solemnized under the Special Marriage Act, 1954 (answers to Question Nos.278 and 279).
18. Mr.Velar would urge that in view of the fact that the marriage of Plaintiff No.1 was solemnized with the deceased under the Special Marriage Act, the provisions of Section 21 of the special Marriage Act, 1954 would be attracted, and the succession would be governed by the provisions of the Indian Succession Act, 1925 and not Hindu Succession Act, 1956. Resultantly, the provisions contained in Section 33(b) read with Section 44 of the Indian Succession Act, 1925, would govern the distribution of the estate of the deceased.
19. To lend support to these submissions, Mr. Velar placed a strong reliance on the decision of this Court in the case of Archana Arun Palav V/s. Jennifer Michael and Ors.1, wherein it was observed that, on a conjoint reading of section 5 of Hindu Succession Act, Section 21 of Special Marriage Marriage Act and Section 33 of the Indian Succession Act, the Court was of 1 2013(5) Mh.L.J. 916 SSP 11/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc the view that since the marriage of the deceased with Respondent No.2 therein was registered under the provisions of the Special Marriage Act, 1954, the provisions of the Hindu Marriage Act, 1956 would not apply to the properties, succession to which was regulated by the provisions of the Indian Succession Act, 1925. In view of Section 21 of the Special Marriage Act read with Section 33 of the Indian Succession Act, succession of such parties would be governed by the provisions of Indian Succession Act, 1925, as per shares described under Section 33.
20. Thus, at best, the Plaintiff No.1 would be entitled to succeed to ½ of the estate left behind by the deceased and the other half shall go to those who are kindred to the deceased. As indicated in Section 44, which provides that the mother and each living brother or sister or living child or children of each deceased brother or sister, shall be entitled to the property in equal shares.
21. Mr.Sharma, learned Counsel for the Plaintiffs, would urge that the controversy sought to be raised by the Defendants is of no significance for the grant of Letters of Administration. Mr. Sharma would urge, first and foremost, the question of title cannot be adjudicated in a proceeding for grant of Letters of Administration. Secondly, even if the case of the Defendants that the succession to the estate of the deceased would be governed by the provisions contained in the Indian Succession Act, 1925, is assumed to be correct, yet, the Plaintiff would No.1 would be entitled to ½ of the estate of the SSP 12/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc deceased. Such entitlement, according to Mr. Sharma, is, in itself, sufficient to seek grant of Letters of Administration.
22. Mr. Sharma further submitted that the Plaintiffs are not pressing the case of Plaintiff No.2 for the grant of Letters of Administration and seek grant for Plaintiff No.1 alone. Therefore, on the own showing of the Defendants since the Plaintiff No.1 has at least ½ share in the estate left behind by the deceased, and the Defendant Nos.1 and 2 have never applied for the grant of Letters of Administration to them, there is no reason not to grant the Letters of Administration to the Plaintiff No.1. It was submitted that since Defendant Nos.1 and 2 have not at all applied for grant of Letters of Administration, the provisions contained in sub-Section (2) of Section 218 of the Indian Succession Act, 1925, are not at all attracted.
23. To buttress the submission that in a proceeding for grant of letters of administration, the question of title to the property left behind by the testator need not be delved into, Mr. Sharma placed reliance on a Division Bench judgment of this Court in the case of Ochavaram Nanabhai Haridas V/s. Dolatram Jamietram Nanabhai2; a Division Bench judgment of Patna High Court in the case of Debendra Prasad Sukul V/s. Surendra Prasad Sukul and Ors.3; a judgment of the learned Single Judge of this Court in the case of Bai Parvatibai V/s. Raghunath Lakshman4 and an order passed by this Court in 2 ILR 1904 28 Bom 644 3 1919 SCC Online Pat 200 4 1940 SCC Online Bom 136 SSP 13/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc the case of Surya Prakash S. Makharia V/s. Pramod Kumar Makharia5.
24. In the case of Bai Parvatibai (supra), the learned Single Judge of this Court, after adverting to the previous pronouncements, referred to above, enunciated the law as under :
"3. In my opinion a testamentary Court dealing with the question of issuing a grant of probate is concerned to see whether the will is duly executed as required by law by a testator of sound and disposing state of mind. In case of grant of letters of administration the Court has to see that the person properly entitled to represent the estate of the deceased according to the Indian Succession Act has come to Court, and is given the grant. It is no part of the duty of the Testamentary Judge to consider the question of title to property. Section 211 of the Indian Succession Act expressly provides that the issue of probate or letters of administration does not vest in the executor or administrator as the case may be the property which is claimed to belong to a joint family of which the deceased was a member. In my opinion a caveat cannot be sustained on the mere ground that the property which is attempted to be disposed of by the deceased by the will or in respect of which letters of administration are asked for is joint family estate. I understand that to be the uniform practice on the testamentary side, and I see no reason to differ from it. In my opinion this practice is based on sound reason. The caveat in this case which is based on this ground alone is therefore dismissed. This is not likely to prejudice in any way the caveator because he has the right to file a suit to establish his title to the property, and if adequate grounds are made out, to obtain the appointment of a receiver or an injunction against the administrator."
(emphasis supplied) 5 IA No.332 of 2023 dated 4 July 2024 SSP 14/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc
25. The legal position is well neigh settled. The Court exercising jurisdiction to grant Probate or Letters of Administration cannot delve into the question of title to the subject property. The question whether the deceased had the title to the subject property ought to be agitated before the Civil Court.
26. The fact that the marriage between the deceased and Plaintiff No.1 was solemnized under the Special Marriage Act, 1954 does not materially alter the position as regard the applicability of the law of succession. It is true, Section 21 of the Special Marriage Act, prescribes that the succession to the property of any person whose marriage is solemnized under the Special Marriage Act, and to the property of issue of such marriage shall be regulated by the provisions of the Indian Succession Act, 1925 and for the purposes of the said Section, the Succession Act shall have effect as if Chapter III Part V (Special Rules for Parsi Intestates) had been omitted therefrom. However, with the incorporation of Section 21-A of the Special Marriage Act, 1954 (Act of 69 of 1976), the law of succession where both the parties to a marriage belong to Hindu, Buddhist, Sikh or Jain religion remains the same; implying that such persons, despite the solemnization of their marriage under the Special Marriage Act, 1954, would continue to be governed by the provisions of the Hindu Succession Act, 1956, as before.
27. From a conjoint reading of Section 21 and 21-A of the Special Marriage Act, 1954, it becomes abundantly clear that Sections 19 and 21 of the Special SSP 15/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc Marriage Act, 1954, were, as if, repealed as far as Hindu, Buddhist, Sikh or Jain marrying Hindu, Buddhist, Sikh or Jain. The provisions regarding the succession to estate which were introduced by virtue of Sections 19 and 21 of the Special Marriage Act, 1954 for those who marry under the said Act, ceased to have any application as far as Hindu, Buddhist, Sikh or Jain are concerned, so as long as they marry someone who was also a Hindu, Buddhist, Sikh or Jain. This position was explained by the Division Bench of the Delhi High Court in the case of Smt. Maneka Gandhi V/s. Smt. Indira Gandhi and Anr.6.
28. As the deceased and Plaintiff No.1 both professed Hindu religion, despite solemnization of their marriage under the Special Marriage Act, 1954, the succession to the estate of the deceased would be governed by the provisions of the Hindu Succession Act, 1956.
29. Even otherwise, looked at from any perspective, namely the succession to the estate being governed by the provisions of the Indian Succession Act, 1925 or Hindu Succession Act, 1956, the entitlement of the Plaintiff No.1 to succeed to the estate of the deceased appears incontestable. If the provisions of the Hindu Succession Act, 1956 are applied, when the succession opened upon the death of the deceased, he was survived by only two Class I heirs; namely, Plaintiff No.1 and late Sushila, his mother. The Defendants would 6 AIR 1985 Delhi 114 SSP 16/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc not have succeeded to the estate of the deceased, as class I heirs.
30. Conversely, if the provisions of Section 33(b) and 44 of the Indian Succession Act, 1925 governed the succession to the estate of the deceased, the Plaintiff No.1 would be entitled to 50% of the estate left behind by the deceased. And Nalini - Defendant No.2, being sister, and Omkar, son of predeceased brother Abhay, would also succeed to ½ estate of the deceased along with late Sushila, in equal share. Either way, it cannot be said that the Plaintiff No.1, widow of the deceased, would not be entitled to any part of the estate of the deceased.
31. This propels me to the moot question; whether in the peculiar facts of the case, the Plaintiff No.1 deserves grant of Letters of Administration ?
32. Mr. Velar, learned Counsel for the Defendants, would urge that the Plaintiff No.1 has disentitled herself from the grant of letters of administration to the estate of the deceased by persistent dishonest conduct, material suppression of facts and even positive misleading statements. Mr. Velar referred to the multiple situations at which the Plaintiff No.1 made incorrect statements to suit her convenience. First, Mr. Velar would urge, the Plaintiffs have brazenly stated that Plaintiff No.2 is the son of the deceased and entitled to 1/3 share in the property left behind by the deceased, despite being fully cognizant of the status of the Plaintiff No.2. The submission that Plaintiff No.2 is now not pressing the application for grant of Letters of Administration, at the SSP 17/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc stage of the final arguments, cannot wipe out the utterly dishonest stand persistently pursued by the Plaintiffs.
33. Second, the Plaintiff No.1 had surreptitiously withdrawn the terminal benefits to the tune of Rs.26,22,449/-, for which letters of administration were sought, by making false and misleading statements. Such a person, according to Mr. Velar, does not deserve the grant of letters of administration.
34. Mr. Sharma, learned Counsel for the Plaintiffs, controverted the submissions of Mr. Velar. Mr. Sharma would urge that there was no suppression of material facts as alleged by the Defendants. In the affidavit itself, a categorical statement was made that the Plaintiff No.2 was born to Plaintiff No.1 by her quondam husband. It was the case of the Plaintiffs that upon the marriage of Plaintiff No.1 with the deceased, Plaintiff No.2 was treated like a son by the deceased. On the said premise, the Plaintiffs asserted that the Plaintiff No.2 is the son of the deceased. Having considered the position, if the Plaintiffs now do not seek to enforce the claim qua Plaintiff No.2, no adverse inference can be drawn against the Plaintiffs, urged Mr. Sharma.
35. Mr. Sharma would further urge that the cross-examination of Plaintiff No.1 which was directed at demonstrating the alleged improper conduct of the Plaintiff No.1, either in claiming that the Plaintiff No.2 was the son of the deceased or in withdrawing the amount of terminal benefits, is not germane to SSP 18/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc the controversy at hand. It is not the case of the Defendants that the Plaintiff No.1 is otherwise incapable of administration of the estate of the deceased on account of the personal attributes like minority or unsoundness of mind.
36. It was submitted that Section 218 of the Indian Evidence Act, does not contemplate refusal of letters of administration on the basis of conduct of a party where the dispute is primarily between the heirs and their rival claims. Discretion is vested in Court under sub-Section (2) of Section 218 only when there are contesting applications by more than one heirs seeking letters of administration.
37. The case with which the Plaintiffs approached the Court for grant of letters of administration cannot be completely brushed aside as immaterial or inconsequential. The Plaintiffs had positively asserted that the Plaintiff No.1 is the wife, and the Plaintiff No.2 is the son, of the deceased. They were entitled to 1/3 share each in the estate left behind by the deceased. Initially, only the names of Plaintiff Nos.1 and 2 as the widow and son, respectively, and late Sushila, as mother, were shown as next of kin of the deceased.
38. Not only in the Petition for grant of letters of administration but also in the correspondence which was addressed on behalf of the Plaintiffs, in the wake of the dispute, it was asserted that the Plaintiff No.2 was the son of the deceased. P.W.1 conceded in the cross-examination that on 20 June 2011, a letter was addressed by Advocate Halwasia (Exh.P-1/7) to the Under SSP 19/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc Secretary, Food and Civil Supplies Department, Managers of the Banks and LIC, asserting that Rahul (P2) was the minor son of the deceased. In another communication dated 20 June 2011 addressed to Gomantak Society (Exh.D-
29) it was again asserted that Rahul (P2) was the son of the deceased. During the course of the cross-examination, an endeavour was made by the Plaintiff No.1 to wriggle out of the situation by asserting that she had always stated that Rahul (P2) was the son of her first husband.
39. The aforesaid explanation is against the weight of a body of material, which shows that an endeavour was made to not only assert but also claim 1/3 share in the estate of the deceased for Plaintiff No.2 by making a positive representation that Plaintiff No.2 was the son of the deceased.
40. I find substance in the submissions of Mr. Velar that the desperate attempt, at the fag end of the trial, to salvage the position by making a submission that the Plaintiffs do not press for the grant of letters of administration to Plaintiff No.2, does not commend itself. This factor bears upon the discretion to grant letters of administration to Plaintiff No.1 as well.
41. On the aspect of the withdrawal of the terminal benefits by Plaintiff No.1 from the employer of the deceased, it may not be necessary to refer to the lengthy cross-examination and numerous admissions elicited therein. The broad position which emerges is that : the deceased passed away under four years of the solemnization of the marriage with the Plaintiff No.1. The mother SSP 20/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc of the deceased was the nominee in the PF, gratuity and other benefits admissible to the deceased. The Plaintiff No.1 was not nominated either in the service record or to the benefits admissible after the retirement, or otherwise termination of the services or to any of the bank accounts maintained by the deceased. Even to the DPID Account (Exh.P-1/9), Abhay, the predeceased brother of the deceased, was the nominee as of 30 March 2011.
42. The tenor of the cross-examination of Plaintiff No.1 also indicates that the factum of marriage between the deceased and Plaintiff No.1 was not disclosed with adequate publicity in the office of the deceased. When the Plaintiff No.1 claimed terminal benefits after the demise of the deceased, initially, she was asked to produce Succession Certificate vide communication dated 14 November 2011 (Exh.P-1/8). Subsequently, it appears, after the demise of late Sushila, Plaintiff No.1 again sought release of the family pension and other benefits expressly stating that Sushila passed away on 29 October 2012. And thereupon the family pension, PF, gratuity and other benefits to the tune of Rs.26,22,449/- were released in favour of the Plaintiff No.1 during the period October 2013 to December 2013, as certified vide Certificate dated 27 May 2014 (Exh.P-1/13).
43. It is pertinent to note that the said amount forms part of the statement of the claim (Item No.2). The receipt of the said amount was not brought to the SSP 21/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc notice of the Court till the Defendants raised issue of surreptitious withdrawal of the said amount. The Plaintiff No.1 went on to concede in the cross- examination that the fact that she had filed a Notice of Motion before this Court as well as in the suit instituted before the City Civil Court seeking ad- interim reliefs, and this Court as well as City Civil Court had declined to grant the ad-interim reliefs, was not brought to the notice of the employer.
44. The aforesaid conduct of Plaintiff No.1, after a petition for letters of administration came to be filed before this Court, including the claim for the terminal benefits of the deceased therein, in my considered view, bears upon the prayer for entrustment of the administration of the estate of the deceased. A party who seeks discretionary relief from the Court cannot afford to wait till the material adversely reflecting upon the conduct of the said party is brought on the record of the Court by the adversary.
45. The submission that there is nothing wrong in claiming terminal benefits of the deceased in the capacity of the widow of the deceased, does not merit acceptance where there is material to show that deliberate incorrect statements about the exclusive entitlement of the Plaintiff No.1 thereto, were made. At any rate, after realizing the correct facts, the Plaintiffs ought to have made amends by apprising the Court of the subsequent developments and immediately carried out necessary amendment in the Petition.
46. It is pertinent to note that, in the intervening period, the Petition was SSP 22/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc twice amended, and, yet, the fact that the Plaintiff No.2 was not entitled to succeed to the estate of the deceased and the Plaintiff No.1 had received substantial amount of Rs.26,22,449/- from the employer of the deceased, was not brought on record.
47. As noted above, apart from the aforesaid amount, there are two major assets. First, the interest of the deceased in Gomantak Flat and the securities standing to the credit of the DPID account of the deceased (Rs.22,04,281/- valued at as of 23 January 2011). In Gomantak Flat, the deceased had, at the highest, ¼th undivided interest on the date the succession opened as late Mangesh left behind the widow, two sons and a daughter as Class I heirs. The Plaintiff No.1 has instituted the suit claiming 1/3 share in Gomantak Flat and consequential and incidental reliefs. In the said suit, Defendant Nos.1 and 2 and Omkar have filed a counter-claim seeking declaration that Plaintiff No.1 illegally and unlawfully received the terminal benefits to the tune of Rs.26,22,449/-. The Defendants are seeking their shares in the said terminal benefits. Whether the Court ought to grant letters of administration for the estate of the deceased in a situation of the present nature ?
48. I find it rather difficult to accede to the submission of Mr. Sharma that the conduct of a party is of no significance in considering the entitlement to grant letters of administration, unreservedly. Section 218 of the Indian SSP 23/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc Succession Act, indicates the circumstances in which and the person to whom administration of the estate of the deceased may be granted. Plaintiff No.1 can undoubtedly be said to have satisfied the eligibility criteria of being a person entitled to succeed to the estate of the deceased. Yet, it must be noted that the grant of letters of administration is not obligatory. Section 218 expressly uses the word 'may'. It is in the discretion of the Court to grant letters of administration.
49. Ordinarily, the conduct of a party otherwise entitled to the letters of administration, may not be of decisive significance. However, to urge that howsoever improper and unfair be the conduct, (borne out from the record of the Court), a party is entitled to grant of letters of administration, as a matter of right, would run counter to the well recognized position in law that a Court exercising jurisdiction under the Indian Succession Act, 1925, is the Court of conscience. If a party approaches the Court for grant of Probate or Letters of Administration with a case which is false to her knowledge, and, during the course of the proceeding, obtains the benefit of the assets for which letters of administration have been sought, and, yet persists with the incorrect statements and refrains from making a clean breast of the transactions till the very last stage of the proceeding, such a party, in my view, disentitles herself from seeking the entrustment of the administration of the estate of the deceased. In such a situation, the Court would not have the necessary SSP 24/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc assurance that such a party would administer the estate of the deceased in accordance with the governing rules of the distribution of estate of the deceased.
50. In the case at hand, since the Plaintiff No.1 has already instituted a suit with regard to the Gomantak Flat and counter-claim has been filed therein, in respect of the substantial terminal benefits received by Plaintiff No.1, in my considered view, it would be appropriate that the entirety of the administration of the estate of the deceased is decided in the said suit. The grant of letters of administration in a situation of the present nature, may further obfuscate the issue of administration of the estate of the deceased.
51. In the light of the view this Court has taken, with regard to the law which would govern the succession to the estate of the deceased i.e. Hindu Succession Act, 1956, the Defendant Nos.1 and 2 would not have succeeded to the estate of the deceased on the day the succession opened, as they were not Class I heirs. They do not satisfy the eligibility criteria prescribed under Section 218 of the Indian Succession Act, 1925. Undoubtedly, they are entitled to succeed to the estate of the deceased falling to the share of Sushila. Thus, their claim for grant of letters of administration also does not merit countenance.
52. Resultantly, I am inclined to answer issue Nos.1 and 2 in the negative.
53. The conspectus of aforesaid consideration is that the suit deserves to SSP 25/26 ::: Uploaded on - 29/04/2025 ::: Downloaded on - 29/04/2025 22:32:54 ::: ts 195 of 2023.doc be dismissed with costs.
54. Hence, the following order :
ORDER
(i) The suit stands dismissed with costs.
(ii) Decree be drawn up accordingly.
( N.J.JAMADAR, J. )
SSP 26/26
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