Bombay High Court
Martin Borchert vs Arzan Khambatta And Anr on 14 December, 2018
Author: G. S. Patel
Bench: G.S. Patel
917-MTAL7-18.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC TESTAMENTARY APPLICATION (L) NO. 7 OF 2018
IN
MISCELLANEOUS PETITION NO. 63 OF 2010
IN
TESTAMENTARY PETITION NO. 566 OF 2008
Martin Borchert ...Petitioner
Versus
Arzan Khambatta & Anr ...Respondents
Mr Haresh Jagtiani, Senior Advocate, with Ms Vandana Mehta, Deepam Rangwani, & Royden Fernandes, i/b Siddhesh Bhole, for the Petitioner.
Mr Shyam Kapadia, with Mrs Shamima Taly & Mr Aziz Shaikh, i/b S Mahomedbhai & Co, for Respondent No. . 1 CORAM: G.S. PATEL, J DATED: 14th December 2018 PC:-
1. I confess I am wholly unable to understand the opposition of the 1st Respondent to this application. The Petitioner is a German citizen. He is the brother of a lady named Ursula Dara Mistry who died on 21st June 2007 leaving a Will dated 7th February 2004 and a Codicil dated 29th November 2004. The two Respondents were named Executors in that Will. I heard a Miscellaneous Petition and a Page 1 of 6 14th December 2018 ::: Uploaded on - 14/12/2018 ::: Downloaded on - 27/12/2018 07:39:29 ::: 917-MTAL7-18.DOC Chamber Summons for several months at different stages. The matter went through several different stages including addressing questions of accounts, recovery of amounts in various banks, investments, postal savings certificates and more. The Executors' accounts had to be reconciled. Notices had to be issued to the Postmaster General and various banks. Ultimately, I rendered a judgment dated 6th April 2018. One of the questions that arose was on the interpretation of Clause 12 and whether a property at Alibaug, Survey No. 146, Hissa No.3 and Hissa No.6 at village Agarsure was to be vested in a public charitable trust to be set up by the Respondents. This is how I dealt with this question.
"21. The Respondents submit that under this clause a Trust was brought into existence, if not in praesenti, i.e. as on the date of the Will, then at least on 21st June 2007, the date of Ursula's death. It is, therefore, their submission that some of the estate (the immovable properties in Alibaug) were to fall into the corpus of that Trust fund.
22. Mr Jagtiani submits in response, and I think quite correctly, that the clause itself does not bring into existence any Trust. It directs the Executors and Trustees at best to endeavour to set up a Trust, but -- as the emphasized portion shows -- fully contemplates a situation where such a Trust is not formed at all. This is evident from the last sentence of the clause which says "that should the Trust not be formed then Petitioner No. 1, Martin, is to administer the benefits on behalf of Petitioner No. 2 and he is to do so without being responsible to any other beneficiary under that Will". The question, therefore, of a Trust being brought Page 2 of 6 14th December 2018 ::: Uploaded on - 14/12/2018 ::: Downloaded on - 27/12/2018 07:39:29 ::: 917-MTAL7-18.DOC into existence by Clause 12 on its own cannot and does not arise. But does the clause require the Respondents to establish such a Trust? The intrinsic evidence in the clause would indicate not. It seems to suggest that Ursula planned to create it herself inter vivos. She never did; that much is accepted. Had she done so, with that Trust created -- and leaving aside the inherent contradiction or impossibility of a 'private charitable trust' -- what the Executors were to then do was to assign the Alibag properties to that trust, and to nominate and appoint the persons named as trustees. The phrase used is:
I direct my executors to assign to a private charitable trust to be created and formed The phrase is not:
I direct my executors to assign to a private charitable trust to be created and formed by my Executors...
We cannot add words to a clause to give it a totally different meaning, let alone to introduce a patent contradiction; and this is precisely what results if I am to read the clause as the Respondents would have me do. For, in that situation, the latter phrase -- "if the trust is not formed" -- would be entirely otiose. There would simply be no situation in which that trust would not be formed if it was for the executors to form it. Further, if they were indeed to form it, we are not told within what time; or, if they failed to do so for years together, whether the last, default phrase would operate, and from when. The only manner to rationalize this is to Page 3 of 6 14th December 2018 ::: Uploaded on - 14/12/2018 ::: Downloaded on - 27/12/2018 07:39:29 ::: 917-MTAL7-18.DOC hold that Ursula intended to form the trust in her lifetime; and, in her Will, proceeded on the basis that she would do so; but yet made careful provision for what was to happen if, for whatever reason, she could not or did not form that trust while she was alive. There is, therefore, no question of the executors ever being charged with the duty to set up any such trust.
23. If the Respondents have registered any trust or set up a private trust, and which they say they have done by the Deed of 2nd August 2010, a copy of which is at page 157, then it is for them to take necessary steps under the Indian Trusts Act to have that trust dissolved. In any case prima facie that trust does not seem to conform to the requirements of Clause 12. That trust does not have any claim, right, title or interest in any part of Ursula's estate, and it never did. The Alibag lands are not to be moved to that trust."
2. I accept that in that order I did not issue a specific direction for "transfer" of the Agarsure land to the Petitioner. Perhaps I should have, but it now emerges that this is entirely unnecessary. Mr Jagtiani for the Petitioner could well have made this application for speaking to the minutes and indeed he did so, but has been constrained to file this Application only on my directions, which I made having regard to the submission by the 1st Respondent. I thought it necessary to afford the Respondent time for a more proper response, something that could not be done on a praecipe.
3. There is no doubt that the Respondent has challenged my 6th April 2018 order in Appeal. At the same time neither I nor, I dare Page 4 of 6 14th December 2018 ::: Uploaded on - 14/12/2018 ::: Downloaded on - 27/12/2018 07:39:29 ::: 917-MTAL7-18.DOC say, the 1st Respondent should lose sight of the fact that the 1st Respondent is a named Executor, not a beneficiary, and has no personal interest, beneficial or otherwise, in any part of the estate of the deceased. In fairness, this is not Mr Kapadia's case either. He says that his client, with perhaps quite extraordinary zeal, only wants to fully effectuate the wishes of the deceased, even if this means depriving her own brother, a named beneficiary, of some part of his legacy.
4. None of this answers the question raised in the present application. The property is even now in the name of the deceased Ursula Dara Mistry. It has not been transferred to the name of any trust. It has not been transferred to the name of either of the named Executors. It is as it stood on the date of her demise, in her name. In that situation, all that is necessary on this Application is simply to clarify that the Petitioner is at liberty to apply to the authorities concerned for a transfer and a mutation of the records in his name citing the Will and my Order of 6th April 2018. There is no need for any directions to the 1st Respondent to do any particular act or execute any document because the 1st Respondent's name appears nowhere.
5. I am not issuing any directions to the 1st Respondent or even to the Petitioner but merely clarifying that which was self-evident but inadvertently omitted in my order of 6th April 2018, viz., that the Petitioner is at liberty to apply to the authorities concerned to have the property transferred to his name.
Page 5 of 614th December 2018 ::: Uploaded on - 14/12/2018 ::: Downloaded on - 27/12/2018 07:39:29 ::: 917-MTAL7-18.DOC
6. The Application is disposed of in these terms. There will be order as to costs.
7. Mr Kapadia applies for a stay. There is nothing to stay. I have issued no directions to the 1st Respondent nor to the Petitioner. The application is refused as misconceived.
(G. S. PATEL, J) Page 6 of 6 14th December 2018 ::: Uploaded on - 14/12/2018 ::: Downloaded on - 27/12/2018 07:39:29 :::