Bombay High Court
Arzan Khambatta vs Martin Borchert And Anr on 11 October, 2019
Author: S. J. Kathawalla
Bench: Akil Kureshi, S.J. Kathawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 106 OF 2019
IN
MISC. PETITION NO. 63 OF 2010
IN
TESTAMENTARY PETITION NO. 566 OF 2008
Arzan Khambatta )
Indian Inhabitant, having his address at )
Adenwala Building, Homawazir Road, )
Dadar Parsi Colony, Dadar, Mumbai - 400 014 )... Appellant /
Original Respondent No. 1
Versus
1. Martin Borchert, )
Berlin Inhabitant, having his address at )
Buchsbaumweg 48, 12357, Berlin. )
2. Bernhard Dara Borchert, )
Berlin Inhabitant, having his address at )
Buchsbaumweg 48, 12357, Berlin. )
Respondent Nos. 1 and 2 through their Power )
of Attorney Holder Rashmi P. Mansukhani )
Indian Inhabitant, residing at 605, Prabhu )
Kunj, Peddar Road, Mumbai - 400 026 )... Respondent Nos. 1 & 2 /
Original Petitioners
3. Rajendra Kishanrao Shinde, )
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Indian Inhabitant, having his address at 62, )
Khatau Apartments, 243, Walkeshwar Road, )
Mumbai - 400 006 )... Respondent No.3/
Original Respondent No.2
ALONG WITH
APPEAL NO. 112 OF 2019
IN
MISC. TESTAMENTARY APPLICATION (L) NO. 7 OF 2018
IN
MISC. TESTAMENTARY PETITION NO. 63 OF 2010
IN
TESTAMENTARY PETITION NO. 566 OF 2008
Arzan Khambatta, )
Indian Inhabitant, having his address at )
Adenwala Building, Homawazir Road, )
Dadar Parsi Colony, Dadar, Mumbai - 400 014 )... Appellant /
Respondent No. 1
Versus
1. Martin Borchert, )
Berlin Inhabitant, having his address at )
Buchsbaumweg 48, 12357, Berlin, )
through his Power of Attorney Holder )
Rashmi P. Mansukhani, Indian Inhabitant )
residing at 605, Prabhu Kunj, Peddar Road, )
Mumbai - 400 026 )... Respondent No.1/
Original Applicant
2. Rajendra Kishanrao Shinde, )
Indian Inhabitant, having his address at 62, )
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Khatau Apartments, 243, Walkeshwar Road, )
Mumbai - 400 006 )... Respondent No.2/
Original Respondent No.2
Ms.Priyanka Kothari a/w. Ms. Shamina Taly, Mr. Aziz Shaikh i/b. S. Mahomedbhai
and Co. for the Appellant.
Mr.Haresh Jagtiani, Sr. Adv. a/w. Ms.Vandana Mehta, Mr.Royden Fernandes i/b.
Vandana Mehta for the Respondents.
CORAM : AKIL KURESHI &
S.J. KATHAWALLA,JJ.
JUDGMENT RESERVED ON : 5th SEPTEMBER, 2019
JUDGMENT PRONOUNCED ON : 11th OCTOBER, 2019
JUDGMENT (PER S. J. KATHAWALLA ) :
1. The above two Appeals are fled by the Appellant - Arzan Khambatta (Arzan) who along with one Rajendra Kishanrao Shinde ('Rajendra') is the Executor of the Will of one Ursula Dara Mistry ('Ursula') dated 7th February, 2004 read with Codicil dated 29th November, 2004 (collectively referred to as the 'said Will'). Ursula passed away on 21st June, 2007.
2. Martin Borchert ('Martin') and Bernhard Dara Borchert ('Bernhard') are German nationals. Martin is the brother of Ursula and a residuary legatee under the said Will. Bernhard is the son of Martin and nephew of Ursula.
3. The Executors obtained Probate of the said Will on 21st November, 2009. nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 4 / 16 APP-106-2019.doc
4. After the demise of Ursula, the Executors of the said Will set up a Trust, by the name "Dara Mistry Green World" ('the Trust').
5. Martin and Bernhard fled Misc. Testamentary Petition No. 63 of 2010 and sought removal of the Executors of the said Will and for appointment of Martin as the sole Trustee of the Trust. The Learned Single Judge by his Order dated 6 th April, 2018 directed the Executors of the said Will to take necessary steps to have the Trust dissolved on the ground that the Will proceeded on the basis that Ursula would form the Trust in her lifetime and therefore there was no question of the Executors ever being charged with the duty to set up any such Trust after her demise.
6. Arzan therefore fled Appeal No. 106 of 2019 impugning the Order dated 6 th April, 2018. In Appeal No. 106 of 2019, Martin, Bernhard and Rajendra are arrayed as party Respondent Nos. 1, 2 and 3 respectively.
7. Martin fled Misc. Testamentary Application (L) No. 7 of 2018 in Misc. Testamentary Petition No. 63 of 2010 before the Learned Single Judge seeking direction against the Executors of the said Will to transfer the properties assigned to the said Trust in his favour. The Learned Single Judge by his Order dated 14 th December, 2018, granted liberty to Martin to apply to the Authority concerned for transfer and mutation of the record in his name citing the Will and Order dated 6 th April, 2018.
8. Arzan fled Appeal No.112 of 2019 impugning the order dated 14 th nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 5 / 16 APP-106-2019.doc December, 2018.
9. Both the above Appeals are taken up for fnal hearing.
10. The facts which have led to fling of the above two Appeals, are in brief set out hereunder :
10.1. As set out earlier, Ursula had executed the said Will. The Appellant and Rajendra are named as Executors in the said Will. Ursula passed away in Mumbai on 21st June, 2007. Clause 12 of the last Will is relevant for the purpose of deciding the above Appeals and is reproduced hereunder for ready reference :
"I own another separate immovable property at Agarsure, Alibag being Survey No. 146, Hissa No. 3 and Survey No. 146, Hissa No. 6, on which I have intended to establish a Centre devoted to spread of knowledge of Indian culture, yoga, sustainable living, organic vegetable growing, healing arts and forestry. I direct my executors to assign to a private charitable trust to be created and formed in the name of "Dara Mistry's Green World" both the said immovable properties situated at Agarsure, Alibag. If the said Trust is not created in my lifetime I direct my Executors and Trustees after my death that in that event they should appoint and nominate the frst Trustees of the said Trust the following persons :
Carmel Mistry Fahroukh Dudhmal Feruzan Khambatta Ferzin Khambatta nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 6 / 16 APP-106-2019.doc Arzan Khambatta Tinaz Rotnem Firooz Bomi Pavri and my nephew Bernhard Dara Borchert to be benefciary of the Trust who could live on the said properties and garage in the Trust properties and make a living therefrom. If the trust is not formed then my brother Martin Borchert will administer the benefts on behalf of Bernhard Dara Borchert and operate the accounts of Dara Mistry's Green World singly and without being responsible to any other benefciary under this Will."
10.2. Arzan and Rajendra by fling Testamentary Petition No. 566 of 2008 before this Court applied for and obtained Probate of the said Will of Ursula on 21 st November, 2009. The distribution of the estate of Ursula has been completed. 10.3. Martin along with his son - Bernhard fled Misc. Petition No. 63 of 2010 in Testamentary Petition No. 566 of 2008 before this Court inter alia seeking removal of Arzan and Rajendra as Executors and to appoint Martin as the sole Trustee of the said Trust.
10.4. On 2nd August, 2010, the Executors of the said Will executed a Deed of Trust, whereunder they created the said Trust i.e. 'Dara Mistry Green World'. Four out of seven persons named in Clause 12 of the said Will subscribed their names to the formation of the said Trust and caused registration of said Trust in accordance with the provisions of the Indian Registration Act bearing Registration No. ALB-3021/2010 nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 7 / 16 APP-106-2019.doc dated 2nd August, 2010 in the Ofce of the Sub Registrar of Assurances at Alibaug. 10.5. The said Misc. Petition No. 63 of 2010 in Testamentary Petition No. 566 of 2008, was disposed of by the Learned Single Judge by his Order dated 6 th April, 2018, wherein the Learned Single Judge inter alia held that Ursula intended to form the said Trust during her lifetime, and there is no question of the Executors ever being charged with the duty to set up any such Trust after her demise. The Learned Single Judge proceeded to hold and direct that if the Executors have registered any Trust, or set up a Private Trust, then it is for them to take necessary steps under the Act to have that Trust dissolved.
10.6. Arzan fled Appeal No. 106 of 2019 impugning the Order of the Learned Single Judge dated 6th April, 2018 passed in Misc. Petition No. 63 of 2010. Since the Learned Advocates for Martin and Bernhard informed Arzan that they are moving the Learned Single Judge on 15th October, 2018 inter alia seeking possession of the Trust Property, Arzan moved the Division Bench of this Court for urgent ad-interim reliefs. The Division Bench of this Court did not grant any urgent reliefs for the reasons set out in paragraph 3 of the Order dated 11th October, 2018, which is reproduced hereunder :
"3 Sufce it to say that as of today, there is no direction issued under the order dated 6th April, 2018 to the appellant to handover possession of any property or part with any property. nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 8 / 16 APP-106-2019.doc Even assuming that any such direction will be issued on 15 th October, 2018, we are sure that the learned Single Judge will consider the prayer of the appellant for grant of a reasonable time to move the Appellate Court. Hence, as of today, there is no urgency. Place this appeal on the date fxed as per C.M.I.S. after all ofce oboections are removed."
10.7. On 15th October, 2018 Martin moved an Application for speaking to the Minutes of Order dated 6th April, 2018, when the Learned Single Judge directed the Advocate for Martin to take out an appropriate Application. Pursuant thereto, an Application being Misc. Testamentary Application (L) No. 7 of 2018, was fled on behalf of Martin. The said Application was allowed by the Learned Single Judge and liberty was granted to Martin to apply to the concerned Authority for transfer and mutation of record in his name citing the Will and the Order dated 6 th April, 2018. 10.8. Arzan fled Appeal No. 112 of 2019 impugning the Order passed by the Learned Single Judge dated 14th December, 2018. The Order dated 14th December, 2018 is stayed by the Division Bench of this Court vide its Order dated 21 st December, 2018.
11. We have heard the Learned Advocates appearing for the parties in both the Appeals. We have before us a very limited issue for consideration in the above nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 9 / 16 APP-106-2019.doc Appeals i.e. to agree or dissent qua the interpretation given by the Learned Single Judge to Clause 12 of the said Will.
12. At the cost of repetition, Clause 12 of the said Will is once again reproduced hereunder :
"I own another separate immovable property at Agarsure, Alibag being Survey No. 146, Hissa No. 3 and Survey No. 146, Hissa No. 6, on which I have intended to establish a Centre devoted to spread of knowledge of Indian culture, yoga, sustainable living, organic vegetable growing, healing arts and forestry. I direct my executors to assign to a private charitable trust to be created and formed in the name of "Dara Mistry's Green World" both the said immovable properties situated at Agarsure, Alibag. If the said Trust is not created in my lifetime I direct my Executors and Trustees after my death that in that event they should appoint and nominate the frst Trustees of the said Trust the following persons :
Carmel Mistry Fahroukh Dudhmal Feruzan Khambatta Ferzin Khambatta Arzan Khambatta Tinaz Rotnem Firooz Bomi Pavri and my nephew Bernhard Dara Borchert to be benefciary of the Trust who could live on the said properties and garage in the nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 10 / 16 APP-106-2019.doc Trust properties and make a living therefrom. If the trust is not formed then my brother Martin Borchert will administer the benefts on behalf of Bernhard Dara Borchert and operate the accounts of Dara Mistry's Green World singly and without being responsible to any other benefciary under this Will."
13. According to the learned Single Judge, the contents of the said paragraph suggest that the deceased Ursula intended to create the Trust - 'Dara Mistry Green World' herself i.e. during her lifetime and there is no question of the Executors ever being charged with the duty to set up any such Trust. The reasons in support of such interpretation, are found in paragraph 22 of the impugned Order, which paragraph is reproduced hereunder :
"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 benefts on behalf of Petitioner No. 2 and he is to do so without being responsible to any other benefciary under that Will". The question, therefore, of a Trust being brought into existence by Clause 12 on its own cannot and does not arise. But does the clause require the Respondents to nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 11 / 16 APP-106-2019.doc establish such a Trust? The intrinsic evidence in the clause would indicate not. It seems to sugest 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 diferent 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 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 nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 12 / 16 APP-106-2019.doc question of the executors ever being charged with the duty to set up any such trust."
14. We are, with respect, in complete disagreement with the above interpretation of Clause 12 of the said Will of the deceased Ursula. The deceased has in paragraph 12 of her Will stated, "I direct my executors to assign to a private charitable trust to be created and formed in the name of Dara Mistry's Green World, both the said immovable properties situated at Agarsure, Alibaug". According to the Learned Single Judge, the said statement is not, I direct my executors to assign to a private charitable trust to be created and formed by my Executors..... The Learned Single Judge has proceeded to hold that "we cannot add words to a Clause to give it a totally diferent 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". In our view, the above reasoning of the Learned Single Judge would be applicable to his own interpretation qua the sentence "I direct my executors to assign to a private charitable trust to be created and formed in the name of Dara Mistry's Green World ......" which the Learned Single Judge reads as :
I direct my executors to assign to a private charitable trust to be created and formed by me during my lifetime in the name of Dara Mistry's Green World ....... In fact, the sentence which follows viz. "If the said trust is not created in my lifetime, I nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 13 / 16 APP-106-2019.doc direct my Executors and Trustees after my death that in the event they should appoint and nominate the frst Trustees of the said Trust, the following persons :........."., itself makes it clear beyond any doubt that if the said Trust is not created in the lifetime of the deceased, its Executors are to create the Trust and appoint and nominate the persons whose names are set out in Clause 12 of the said Will, as frst Trustees of the said Trust. Otherwise, the entire direction / instruction of appointing and nominating the frst Trustees of the said Trust, not created by the deceased during her lifetime, would be otiose. The Learned Single Judge has laid great emphasis on the words "if the trust is not formed ........" in the sentence " if the trust is not formed then my brother Martin Borchert will administer the benefts on behalf of Bernhard Dara Borchert and operate the accounts of Dara Mistry's Green World singly and without being responsible to any other benefciary under this Will." The Learned Single Judge has observed that the only manner to rationalize this is to hold that Ursula intended to form the Trust in her lifetime, but yet made careful provision for what was to happen if, for whatever reasons, she could not or did not form that Trust while she was alive. The Learned Single Judge proceeded to hold that "there would simply be no situation in which the said Trust would not be formed if it was for the Executors to form it." In our view, the deceased Ursula by the above direction intended to make a provision in the event of the Trustees failing to form the Trust, as desired by the Testator.
15. It is pertinent to note that the Will of a testator is a document by which a nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 14 / 16 APP-106-2019.doc testator expresses his / her desire and accordingly directs / instructs the Executors named therein, the manner in which they should deal with the estate of the testator after his / her demise. In most of the cases, such desire expressed by the testator is in his / her own words. The level of clarity found in legal documents therefore cannot be looked for or expected in the case of testamentary documents like Wills / Codicils. In cases where such documents lack clarity, the same should be construed harmoniously. The same not being a piece of legislation / Statute has to be interpreted so as to give it a meaning which would take care and give complete efect to the intention / desire of a testator rather than defeating the same.
16. Keeping the above principle in mind and the directions set out in Clause 12 of the said Will, we are of the view that Ursula intended to have the said Trust created in her lifetime and if the same was not so done during her lifetime, the same was to be created as directed by her by the Executors of her Will. The names of the frst Trustees were set out in the Will and the Executors were also directed to assign her immovable properties situated at Agarsure, Alibaug to the said Trust. The deceased - Ursula has exercised caution by providing in her Will that in the event of the Trust not being created by the Executors, then her brother - Martin will administer the benefts as set out in the said Will. We do not wish to labour on the issue that the period during which the Trustees were to carry out the directions, is not mentioned in the said Will, since whenever the direction qua the period is not mentioned, it would be construed nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 15 / 16 APP-106-2019.doc as a reasonable period.
17. In fact, the learned Senior Advocate appearing for Martin and Bernhard, has submitted that it was never his case before the Learned Single Judge that Ursula ought to have created / set up the Trust during her lifetime and the Executors of her Will cannot set up the Trust after her demise. He states that it was his case before the Learned Single Judge that since the seven individuals named in Clause 12 of the Will, were to be nominated as the frst Trustees of the said Trust and that only four of the seven individuals, have been nominated as frst Trustees of the said Trust on the ground that other three were not wanting to act as Trustees, the formation of the Trust is not valid and the directions contained in the said Will qua the consequence of the Trust not being formed / created, should follow.
18. For all the above reasons, we pass the following Order :
i. We hold that the Executors of the Will of the deceased - Ursula were / are entitled to form the Trust for the objects set out in the said Will, even after the demise of Ursula.
ii. The Order dated 6th April, 2018 passed by the Learned Single Judge to the extent that, "There is, therefore, no question of the executors ever being charged with the duty to set up any such trust" and consequently directing the Executors / Trustees to take steps to dissolve the said Trust is set aside.
iii. Misc. Petition No. 63 of 2010 is remanded back to the Regular Court, nitin ::: Uploaded on - 11/10/2019 ::: Downloaded on - 12/10/2019 02:44:43 ::: 16 / 16 APP-106-2019.doc hearing testamentary matters. The Learned Judge shall hear the parties and decide the issue as to whether the Trust formed by the Executors of the Will of Ursula, by nominating only four of the seven Trustees named in the said Will, as the frst Trustees, is valid in law.
iv. In view of this Order, the Order dated 14th December, 2018 is also set aside. v. Both the Appeals as well as the Notices of Motion taken out therein, are accordingly disposed of.
( S.J.KATHAWALLA, J. ) (AKIL KURESHI, J. )
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