Bombay High Court
Nina Anwar Merchant vs Karim Ul Haq Meghani And 17 Ors And Hdfc ... on 27 June, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
20.ia(l).8578.2022.docx
GANESH
SUBHASH
LOKHANDE IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
GANESH SUBHASH
LOKHANDE ORDINARY ORIGINAL CIVIL JURISDICTION
Date: 2022.06.30
12:43:53 +0530
INTERIM APPLICATION (L) NO. 8578 OF 2022
IN
SUIT (L) NO. 18494 OF 2021
Nina Anwar Merchant .. Applicant/Org. Plaintiff
IN THE MATTER BETWEEN
Nina Anwar Merchant .. Plaintiff
Vs.
Karim Ul Haq Meghani & Ors. .. Defendants
AND
HDFC Bank Ltd. & Ors. .. Proposed Respondents
Zubin Behram Kamdin i/b Chaitanya Bhandarkar for Applicant in both
IA/Org. Plaintiff.
Tejas Vora a/w Vishal Acharya for Defendant No. 1 to 4.
Dilip Rai i/b D.R. Mishra for Defendant Nos. 5 & 6.
Z.A. Jariwala i/b MDP & Partners for Defendant Nos. 7 to 9, 12, 13 & 18.
Vishal Kanade i/b A.M. Rajabally for Defendant No. 10 & 11.
CORAM:- B. P. COLABAWALLA,J.
DATE :- JUNE 27, 2022.
P. C.:
1. The above Interim Application has been filed seeking the following reliefs which read thus:
Utkarsh page 1 of 16
20.ia(l).8578.2022.docx
a) Pending the hearing and final disposal of this Hon'ble Court be pleased to pass a preliminary decree declaring the shares of the beneficiaries as per the Last Will and Testament of the Testatrix (Exhibit A hereto) and appoint the Commissioner for taking accounts attached to this Hon'ble Court, or any other fit or proper person for:
i. Making/taking accounts and/or to make inquiries in relation to amounts, incomed and rents due and payable to the estate of the Testatrix from its debtors;
ii. Taking accounts of the legacies given by the Last Will and Testament of the Testarix;
iii. Conducting an inquiry and to take an account of creditors of the Testatrix;
b) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to appoint a fit and proper person as the Administrator of the estate of Testatrix as set out in Exhibit C hereto with all powers, including the power to take possession and charge of the part or parts of the estate (such as deposits, investments, shares, securities etc.) including but not limited to that lying in the hands of the Defendant Nos. 1 to 4, 7, 10 and 11 and/or in; and/or transferred to the Bank Accounts belonging to Defendant Nos. 1 to 4, 7, 10 and 11; and/or the Accounts and/or investments in Mutual Funds belonging to late Gulshan Rehman Meghani;
c) Pending the hearing and final disposal of the present Suit and Testamentary Petition (L) No. 8514, all properties of the Testatrix, including the properties as set out in the Schedule being Exhibit C, be administered by the Court Receiver, High Court Utkarsh page 2 of 16
20.ia(l).8578.2022.docx Bombay with all powers under Order LV of the Code of Civil Procedure, 1908;
d) Pending the hearing and final disposal of the present Suit, this Hon'ble Court be pleased to direct the Defendants to disclose on oath all such assets and/or properties that constitute the estate of the Testatrix along with their value, particulars, documents, and current status of the same;
e) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to pass an order directing Defendant Nos. 7, 10 and 11 to forthwith jointly and/or severally deposit with the registry of this Hon'ble Court, a sum of Rs. 5,82,30,030/- (Rupees Five Crores Eighty Two Lakhs Thirty Thousand and Thirty Only) and/or such further sums that may be found to have been received, appropriated and/or siphoned off by them from the estate of the Testatrix;
f) Pending the hearing and final disposal of the above suit, this Hon'ble Court be pleased to pass an order restraining Defendant No. 7 from encashing and/or appropriating or withdrawing in any manner, the 13 Fixed Deposits bearing Nos.00338300000125; 00338300000134;00338300000143;003383000001 52;00338300000107;00338300000116;003383000 00073;00338300000055;00338300000019;003383 00000028;00338300000037; 00338300000046; 00338300000073 and 00325300030445 with DCB Bank in the aggregate principal sum of Rs.2,60,00,000/- (Rupees Two Crore Sixty Lakhs Only) (Exhibit DDD hereto).
Utkarsh page 3 of 16
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g) Pending the hearing and final disposal of the present Suit, this Hon'ble Court be pleased to restrain the Defendants, their servants agents, employees, assignees, or any other person claiming through the Defendants, from dealing with or disposing of and parting with possession of the properties belonging to the estate of the Testatrix as more particularly set out in the Schedule at Exhibit C in any manner whatsoever;
h) Pending the hearing and final disposal of the above Suit, this Ho'nble Court be pleased to pass an order directing Respondent No. 1 (HDFC Bank Limited) to make a true and correct disclosure of all shares of Respondent No. 1 standing in the name of the Testatrix whether held singly or otherwise.
i) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to pass an order restraining Respondent No. 1 (HDFC Bank Limited) from processing any transaction, application and/or request of any nature whatsoever in respect of the accounts, all shares of Respondent No. 1 standing in the name of the Testatrix whether held singly or otherwise.
j) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to pass an order directing Respondent No. 2 (HDFC Limited) to make a true and correct disclosure of all shares of Respondent No. 2 standing in the name of the Testatrix whether held singly or otherwise.
k) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to pass an order Utkarsh page 4 of 16
20.ia(l).8578.2022.docx restraining Respondent No. 2 (HDFC Limited) from processing any transaction, application and/or request of any nature whatsoever in respect of the accounts, all shares of Respondent No. 2 standing in the name of the Testatrix whether held singly or otherwise.
l) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to pass an order directing Respondent No. 3 (DCB Bank Limited) to make a true and correct disclosure of all accounts, investments and securities of any nature whatsoever held by the Testatrix whether singly or otherwise with Respondent No. 3.
m) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to pass an order restraining Respondent No. 3 (DCB Bank Limited) from processing any transaction of any nature whatsoever in respect of the accounts, investments and securities of any nature whatsoever held by the Testatrix whether singly or otherwise with the DCB Bank save and except under the Orders of this Hon'ble Court.
2. The above Suit has been filed seeking the administration of the estate of the Deceased, the Late Mrs. Gulshan Rehman Meghani as per her last Will and Testament dated 8th July 2020.
3. Mr. Kamdin, the learned counsel appearing on behalf of the Plaintiff (the Niece of the Deceased), and who is the executor of the said Utkarsh page 5 of 16
20.ia(l).8578.2022.docx Will, has pressed the above Interim Application for ad-interim reliefs in terms of prayer clauses (d), (f), (g), (h), (i), (j) & (k) respectively.
4. Mr. Kamdin took me through the Will of the Deceased dated 8th July 2020 and brought to my attention how the Bank Accounts, Fixed Deposits, Shares, Mutual Funds & other Investments of the Deceased are to be liquidated and thereafter distributed to the respective beneficiaries mentioned in the said Will. Mr. Kamdin also brought to my attention the estate of the Deceased set out in Exhibit- 'C' to the Interim Application and prayed that an injunction ought to be granted in relation to assets mentioned therein to safeguard the estate of the Deceased.
5. Thereafter, Mr. Kamdin stated that the Deceased had 2 Bank Accounts with DCB Bank Ltd., bearing Account No. 00512200002264 (standing in the single name of the Deceased) and DCB Bank Account No. 00112200006392 (standing jointly with Defendant No. 10). In this Joint Account the Deceased was the 1 st holder and Defendant No. 10 was the 2 nd holder. He also brought to my attention Page No. 297 of the Interim Application which is an SMS Alert received from DCB Bank on 14th October, 2020 which showed the balance in the Joint Account at Rs.5,88,96,851.25/-. He submitted that Utkarsh page 6 of 16
20.ia(l).8578.2022.docx this was the SMS which was received by the Deceased 2 days prior to her death. He thereafter brought to my attention Page No. 300 of the Interim Application which is an SMS Alert received from DCB Bank on 3rd November 2020 showing the balance in the aforesaid Joint Account No. 00112200006392 at Rs.6,66,785.75/-. Relying upon these SMS Alerts Mr. Kamdin submitted that Defendant No. 10, who was the joint holder of this account, has withdrawn over Rs.5,80,00,000/- (Five Crore Eighty Lakhs Only) therefrom within a period of less than 3 weeks. Mr. Kamdin submitted that as per the Will of the Deceased, Defendant No. 10, at the highest was bequeathed only 50% of the amount that was in the said Joint Bank Account. In contrast, Defendant No. 10 has completely wiped out the said account in the span of 3 weeks.
He therefore submitted that protection be granted in terms of prayer clauses (d), (f), (g), (h), (i), (j) & (k) respectively so that no further damage is done to the estate of the Deceased.
6. Mr. Jariwala, the learned advocate appearing on behalf of Defendant Nos. 7 to 9, 12, 13 and 18, has tendered today an affidavit dated 24th June, 2022 filed on behalf of Defendant No.7. In a nutshell, this affidavit states that Defendant No.7 is submitting to the orders of the Court and that Defendant No.7 is not in control or in the know of any of the assets belonging to the Deceased. Mr. Jariwala has fairly Utkarsh page 7 of 16
20.ia(l).8578.2022.docx stated that at the ad-interim stage, and without prejudice to their rights and contentions, the Defendants whom he represents do not have any objection if ad-interim reliefs in terms of prayer clauses (d), (f), (g), (h),
(i), (j) & (k) are granted in favour of the Plaintiff.
7. Mr. Kanade, the learned advocate appearing on behalf of Defendant Nos. 10 & 11, vehemently opposed the grant of any ad-
interim reliefs and submitted that the Plaintiff is not entitled to any relief whatsoever on the following 3 grounds:
(i) The Plaintiff has approached this Court after a gross delay especially considering that the Deceased expired on 16th October 2020 and the present Application is lodged only on 17th March 2022;
(ii) That in any event, the Plaintiff has applied for probate of the last Will and Testament of the Deceased (dated 8th July, 2020) and the same is pending because Defendant No.10 as well as Defendant Nos.1 to 4 & Defendant Nos.5 & 6 have filed their respective caveats opposing the grant of probate. Considering that the final relief in the Utkarsh page 8 of 16
20.ia(l).8578.2022.docx present Suit is for the administration of the estate of the Deceased as per the last Will and Testament of the Deceased, no final relief can be granted until the probate is obtained. If this be the case, interim relief being in aid of the final relief, also cannot be granted until the probate is obtained; and
(iii) The Interim Application is filed and verified by one Mrs. Manju Gupta on the basis of a Power of Attorney. The said Power of Attorney has not been produced and hence the filing of the above Suit as well as the Interim Application itself is defective.
For all the aforesaid reasons, Mr. Kanade submitted that no ad-
interim relief be granted in favour of the Plaintiff.
8. I have heard Mr. Kanade at some length. I will, deal with each argument canvassed by him separately. The first argument canvassed by Mr. Kanade is that the Plaintiff is not entitled any relief because the Plaintiff has approached this Court after considerable delay.
Though Mr. Kanade may be right that there has been a delay in Utkarsh page 9 of 16
20.ia(l).8578.2022.docx approaching this Court, I do not think that in the case like the present one, delay, without anything more, would disentitle the Plaintiff to ad-
interim reliefs. At the end of the day, the Plaintiff seeks to safeguard the estate of the Deceased which has to be administered (according to the Plaintiff) as per the Will dated 8th July 2020. Mere delay therefore, without anything more, would not dis-entitle the Plaintiff to ad-interim reliefs, especially in the absence of any prejudice being caused to the Defendants. This being the case, I do not find any merit in the first argument canvassed by Mr. Kanade.
9. The second argument canvassed by Mr. Kanade was that since the Plaintiff had applied for a probate of the last Will and Testament of the Deceased, and which is pending, the Plaintiff is not entitled to any reliefs until the Testamentary Court grands a probate to the Plaintiff. I do not think that this argument should detain me any further as the same is squarely covered by Division Bench decision of this Court in the case of Ramniklal Amritlal Shah VS Bhupendra Impex Pvt. Ltd., [2001(2) BCR 479 : 2000 SCC Online Bom 797 :
(2001) 2 Mah LJ 536]. In the aforesaid judgment, the Division Bench has categorically held that interim relief can be granted in a Suit even whilst the proceedings for probate are pending. The relevant portion of this decision reads thus:
Utkarsh page 10 of 16
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4. Turning to the first question revolving around section 213 of the Indian Succession Act, it appears to us that the effect of section 213 on existing or impending litigation has been misconstrued. All that section 213 provides is that no executor or legatee can establish his right qua executor or legatee in any Court of Justice, unless he obtains a probate of the Will under which such right is claimed. It is strenuously contended by the learned counsel for the respondents that this means that no interlocutory proceedings can also be adopted nor relief granted in interlocutory proceedings unless probate is obtained. We are inclined to disagree. According to Mr. Doctor, learned counsel for the respondents, in the instant case, the present appellant, not having obtained probate of the Will, could not have established his right to represent the estate of the deceased-original plaintiff. The logical result should have been, abatement of the suit. It is contended that if a suit is brought in the capacity of an executor or legatee without production of a probate certificate of the Will under which such character is claimed, then, the suit itself would not be maintainable.
5. In our judgment, the contention is unsound. Way back, in the year 1916, Their Lordships of the Privy Council had occasion to consider the position in law, though somewhat obliquely, in Meyappa Chetty v. Supramanian Chetty, AIR 1916 Privy Council 202. Here, the Privy Council took the view that the words "capable of instituting an action" used in section 17 of the Straits Settlements Limitation Ordinance of 1896 merely mean capable of instituting an action in which a decree might be obtained. In other words. Their Lordships were of the view that the Will under which the executor claims must be capable of probate; otherwise the action must fail. This judgment was followed by a learned Single Judge of our Court in Raichand Dhanji v. Jivraj Bhavanji, AIR 1932 Bombay 13. The learned Single Judge of this Court following the judgment of the Privy Council in Meyappa Chetty v. Supramanian Chetty, AIR 1916 Privy Council 202, Chandra Kishore Roy v. Prasanna Kumari, Utkarsh page 11 of 16
20.ia(l).8578.2022.docx (1910) 38 Cal 327 and the judgment of this Court in Jamsetji Nassarwanji v. Hirjibhai Naoroji, (1912) 37 Bom 158 took the view that the personal property of the testator including all rights of action vests in the executors after the testator's death and that he could institute a suit without obtaining probate, but that he could not obtain a decree in the suit before the grant of probate.
6. Mr. Doctor was quick to point out that these judgments were rendered prior to coming into force of the Indian Succession Act, 1925 and that the language used in sections 111 to 114 of the 1925 Act made a qualitative difference to the legal situation. He particularly drew our attention to the difference in phraseology used in section 212 which deals with representation of the estate by an administrator and section 213 which deals with representation of the estate by a legatee or executor. In his submission, the grant of an administration certificate was a condition precedent under section 212 of the Indian Succession Act, 1925. He also drew our attention to section 214 which talks of a decree not being granted unless the probate certificate is obtained. In our view, it is unnecessary to go into these niceties for the judgment of the Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marleen Wilkinson v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471, is rendered under the Indian Succession Act, 1925 and considers in terms section
213. Explaining the meaning of section 213, the Supreme Court says, (vide paragraph 7):--
"The words of section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letter of administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the Will under which the right is Utkarsh page 12 of 16
20.ia(l).8578.2022.docx claimed and therefore it is immaterial who wishes to establish the right as a legatee or an executor".
In our view, the Supreme Court in this judgment has distinguished laying claim as an executor or a legatee from establishing the right as a legatee or an executor. A reading of the judgment does not even remotely suggest that a suit brought in the capacity of legatee or executor would fail unless the probate certificate is filed with it. Nor does it suggest, as Mr. Doctor does, that where a person is brought on record as an executor to represent the estate of a deceased plaintiff, unless he produces a probate certificate, the suit must be held to have abated. We are, therefore, of the view that section 213 is merely a bar to a person "establishing" his right as an executor or legatee in an action. This does not suggest that the said person cannot claim the capacity of executor or legatee so long as he is able to produce the probate certificate before the actual decree is passed. In other words, the bar is really one against the passing of a decree without a probate certificate and not the entertainment of the suit itself.
7. The next contention of Mr. Doctor is that, even presuming that the suit is maintainable without production of the probate certificate, the appellant in his capacity as executor could not have sought any interlocutory relief. This is the argument which seem to have appealed to the learned Single Judge. The contention is that to claim interim relief the appellant had to establish, apart from the merits of the case, his character as the executor; this he could not do without production of a probate certificate by reason of section 213, even prima facie. Consequently, no interim relief could have been granted. In our considered view, this argument is fallacious. A party seeking interim relief in a suit is not required to establish his rights. Question of establishment of rights is relevant only for the purpose of the final decree in the suit and not at an interlocutory stage. In order to seek or get interlocutory relief, all that a party has to show is that the suit is not frivolous, that there is a probability of his succeeding in the suit, apart from balance of convenience, with which we are not concerned here. As far as the argument of Mr. Doctor goes, we focus our Utkarsh page 13 of 16
20.ia(l).8578.2022.docx attention on the "establishment" of the appellant's character as an executor. In our view, it was not necessary for the appellant to establish his character as executor at that stage. It was necessary to show, prima facie, that he was the executor. This could have been done by the production of the will of the deceased-original plaintiff and, unless upon a perusal thereof the Court came to the conclusion that there was no way the appellant could claim to be an executor under the Will, that would prima facie show the character of the appellant as an executor under the Will. The stage for the appellant to establish his right as an executor under the Will is yet to come in the trial if the suit goes on and, under the law as laid down by the Supreme Court, the appellant would fail unless he produces the probate certificate at the time when the Court finally decides the suit. At all intermittent stages, therefore, the insistence upon establishing the appellant's right as an executor, was neither necessary nor required. It was sufficient that he showed that he had a prima facie right to that character.
10. In these circumstances, the second argument canvassed by Mr. Kanade is squarely covered by the aforesaid decision and hence would have to be rejected.
11. As far as the argument regarding non-production of Power of Attorney is concerned, I find that in the papers and proceedings, a copy of the Power of Attorney has been produced. Therefore, at least at this stage, I am of the opinion that the suit or the Interim Application is not defective as filed.
Utkarsh page 14 of 16
20.ia(l).8578.2022.docx
12. I must also mention that Mr. Kamdin correctly pointed out that Defendant No.10 has withdrawn above approximately Rs.5.80 Crores from the account held jointly by Defendant No.10 with the Deceased in DCB Bank Ltd. in a span of approximately 3 weeks. As adverted to earlier, on 14th October, 2020 the amount that was available in the DCB Bank Account No. 00112200006392 was Rs.5,88,96,851.25/-. However, on 3rd November 2020, that amount is reduced to 6,66,785.75/-. On what basis Defendant No. 10 has withdrawn this amount and where this amount has gone will have to be disclosed with great clarity and detail by Defendant No.10.
13. In view of the foregoing discussion, I am of the opinion that the Plaintiff has made out a prima facie case for grant of ad-interim relief. I find that even the balance of convenience is in favour of the Plaintiff. In these circumstances, there shall be ad-interim reliefs in terms of prayer clauses (d), (f), (g), (h), (i), (j) & (k) reproduced above.
14. The disclosure affidavits to be filed by the Defendants as contemplated in prayer clause (d), shall be filed by the respective Defendants within a period of 4 weeks from today and a copy of the same shall be served on the advocates for the Plaintiff.
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15. I have noticed that there is a typographical mistake in prayer clause (j) of the Interim Application. The reference in prayer clause (j) to Respondent No. 1 shall actually be read as Respondent No.
2. Since this is a typographical mistake, I have directed the advocates for the Plaintiff to carry out the said correction forthwith and the same is done in the presence of the Associate.
16. Place the above Interim Application 'for hearing and final disposal' on 1st August 2022.
17. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(B. P. COLABAWALLA, J.)
Utkarsh page 16 of 16