Bangalore District Court
Sri.Ajit Tekchand Vaswani vs Vice Admiral Adolph Britto on 29 September, 2015
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH.No.19)
Dated: This the 29th Day of September 2015
Present: Sri. V.K.Badiger, B.Com., LL.B.,(Spl.,)
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.2579/2002
Plaintiff: Sri.Ajit Tekchand Vaswani,
S/o Tekchand Ahimchand
Vaswani, Aged about 64 years,
Residing at 502, Solitarise,
Hiranandani Gardens, Powal,
Mumbai - 400 076.
(By Sri.J.L., Advocate)
Vs.
Defendants: 1. Vice Admiral Adolph Britto,
Major, No.13, Defence
Colony, I main Road,
Indiranagar, Bangalore - 560
038.
2. Mr.Carlos Da Corta, Major,
C/o Ms. Da Costa & Da
Costa, 403, 4th Floor, Prestige
Meridian-2, No.30-31,
M.G.Road, Bangalore - 560
001.
2 O.S.No.2579/2002
3. Miss Jane Vaz, Major,
No.645, HAL II Stage, 11th
Main, Indiranagar, Bangalore.
4. Tata Finance Limited, Jiji's
House, 4th Floor, Damodardas
Sukhadwala Marg, Mumbai -
1.
5. Infrastructure Leasing &
Financial Services Limited,
Mahindra Towers, 4th Floor,
Worli, Mumbai - 400 018.
6. Mrs.Lissa F.Darwin, Major,
4230, Lavelo, St. Palanan
Makali, Philippines - 1200.
7. Victorina Limpo, Major, No.7,
Jasmin Street, Cainta, Riza,
Philippines.
8. Cayetano Limpo, Jr., Major,
C/o Victoria Limpo, No7,
Jasmin Street, Cainta, Riza,
Philippines.(dead)
9. Domindador Limpo, Major,
C/o Victoria Limpo, No.7,
Jasmin Street, Cainta, Riza,
Philippines.
10. Violeta Cruz, Major, C/o
Victoria Limpo, No.7, Jasmin
Street, Cainta, Riza,
Philippines.
3 O.S.No.2579/2002
11. Fe Arevalo, major,
residing at 926, Panin Street,
Mandaleyong City, Philippines
3119.
12. Purita Roque, major,
C/o Fe Arevalo,Residing at
926, Panin
Street,Mandaleyong City,
Philippines 3119.
13. Aurora Fernandes,
Major, Residing at 27,
Rodriguez Cent Phil Am
Village, Laspanas Rizal,
Philippines.
(By Sri.JAS., Advocate)
Date of institution of suit 16.4.2002
Nature of the suit Permanent injunction & Declaration
Date of commencement of 1.12.2009
recording of evidence
Date on which Judgment 29 -9-2015
was pronounced
Total duration Days Months Years
13 05 13
/ JUDGMENT /
This is a suit filed by the plaintiff against the
defendants for permanent injunction.
2. The plaintiff's case, in brief, is as follows:-
4 O.S.No.2579/2002
One Mrs.Gloria Mohan Vaswani, Gloria
Limpo Vaswani being her maiden name before, is his
sister-in-law ie., brother's wife. The said person was a
Philippine national, she got married to the plaintiff's
brother Mr.Mohan Tekchand Vaswani. She was
residing at Bangalore with her husband. Her relatives
reside in Philippines. The defendants No.6 to 9 in this
suit are the relatives of the said Gloria Limpo Vaswani.
The 6th defendant is her niece. The 7th defendant is her
mother and defendants No.8 to 13 are her brothers and
sisters. Defendants No.1 to 3 are the executors of the
will of M/s.Gloria Limpo Vaswani.
3. After the death of plaintiff's brother Mr.Mohan
Tekchand Vaswani, the plaintiff and his mother were
providing for the maintenance of Mrs.Gloria Limpo
Vaswani out of humanitarian consideration, she being
the plaintiff's sister-in-law. The plaintiff was remitting
monies frequently to take care of her requirements. In
order to ensure that some amount could be sent to her
5 O.S.No.2579/2002
regularly for her requirements, the plaintiff out of
humanitarian consideration created certain fixed
deposits. The plaintiff felt a moral obligation to take care
of her as she was not having any regular income of her
own and she was not gainfully employed anywhere. In
order to ensure that some amount could be sent to her
regularly and to make the remittance of the same
convenient the plaintiff got the deposits made out jointly
in the name of Mrs.Gloria Limpo Vaswani and himself.
Three such deposits were created by the plaintiff, one
each with the 4th and 5th defendants and another with
ITC Ltd., A sum of Rs.1,00,000/- was deposited with
Tata Finance Ltd., the 4th defendant a sum of
Rs.2,00,000/- was deposited with the 5th defendant and
a sum of Rs.1,00,000/- was deposited with ITC Ltd., On
19.3.1999,9.4.1999 and 27.3.1999 respectively the said
deposits were created. Accordingly, the said companies
issued fixed deposit receipts in the joint names of
Mrs.Gloria Limpo Vaswani and the plaintiff. The plaintiff
6 O.S.No.2579/2002
further submits that it was he who deposited the money
and created such of these fixed deposits. The said fact
is established by the copies of the cheques made out by
the plaintiff in favour of the three companies. The name
of M/s Gloria Limpo Vaswani was shown as that of the
1st depositor only out of humanitarian consideration in
order to see that it would be convenient for the interest
payable upon the said fixed deposits to be remitted to
her. The said fixed deposits came with an "either or
survivor" clause. As per the terms of fixed deposits in
the event of the 1st depositor passing away,
automatically the amount standing in the fixed deposit
would belong to the 2nd depositor viz., the plaintiff and
no other person could claim any right to the said
monies.
4. As per the very terms of the creation of the
fixed deposits and also in view of the deposit having
been created by the plaintiff, upon the death of
Mrs.Gloria Limpo Vaswani, the fixed deposits belong to
7 O.S.No.2579/2002
the plaintiff alone. The fixed deposits were not created
by Mrs.Gloria Limpo Vaswani but were created by the
plaintiff. The monies invested in the fixed deposit
belong to the plaintiff. It was only to ensure that the
interest accruing on the fixed deposits could be provided
to meet the requirement of Mrs.Gloria Limpo Vaswani,
that the fixed deposits were created in the joint name of
the plaintiff and herself. The fixed deposits were not
owned by or did not belong to Mrs.Gloria Limpo
Vaswani.
5. Mrs.Gloria Limpo Vaswani passed away on
29.1.2000 at Manila, Philippines. It appears that she
had left behind her a registered will dated: 15.7.1999.
Under the said will she appointed the defendants No.1
to 3 as the executors and appears to have willed all her
investments, fixed deposits and bank accounts including
those which were in joint names, in favour of the
defendants No.7 to 9 who are residing in Philippines.
The plaintiff was initially unaware of the said will. After
8 O.S.No.2579/2002
the death of Mrs.Gloria Limpo Vaswani the plaintiff
requested the companies in which the fixed deposits
had been created to make over the name to his name.
The plaintiff subsequently came to know of the said will.
Upon enquiries it was also learnt that certain persons
had been named as the executors of the will and that
they were taking steps to obtain a probate of the said
will. The plaintiff, through his counsel got addressed a
letter to the defendants No.1 to 3 on 5th August 2000
seeking for a copy of the application for probate. After
coming to know that in the probate petition as well in the
affidavit of assets filed by the defendants No.1 to 3 in
the probate petition which was filed in the High Court of
Karnataka, the above referred fixed deposits had been
included. The plaintiff got addressed a letter to the
Counsel for executors stating out that the amount in the
fixed deposits is held by the plaintiff as the owner
thereof and therefore the same ought not to be shown
as part of the estate or the assets of Mrs.Gloria Limpo
9 O.S.No.2579/2002
Vaswani. However it appears that the defendants No.1
to 3 and their counsel went ahead with the probate
petition without responding to the plaintiff and without
even furnishing him the details of the probate petition.
6. The plaintiff who was awaiting a positive
response from the defendants No.1 to 3 came to know
that the Hon'ble High Court of Karnataka had granted
probate of the said will on 28.11.2000 in Prob
C.P.No.9/2000. The proceedings for grant of probate of
a will are only concerned with the issue as to whether
the will has been executed by the deceased and
whether it was done so in a sound state of mind and she
does not deal with questions as to the validity of any
disposition thereunder or the right or title of the
testator/testament over the properties disposed off.
The defendants No.1 to 3 or their Counsel did not
choose to deny the assertion made by him to the effect
that the fixed deposits belonged to him and the said
right is unaffected by the will of Mrs.Gloria Limpo
10 O.S.No.2579/2002
Vaswani. In fact, they did not reply at all to the said
assertion.
7. The plaintiff learnt that as per the order
granting probate the defendants No.1 to 3 were
supposed to file as inventory setting out the list of assets
of the deceased within 6 months of the date of the order.
Despite the lapse of the said period, no such inventory
had been filed, the plaintiff therefore was under the
impression that the defendants No.1 to 3 in view of their
not denying the assertion of the plaintiff of his right to
the fixed deposit would file an inventory without setting
out the said fixed deposits. The plaintiff thereafter
proceeded to write to the companies in which the
deposits had been created asking them to refund the
amount in the fixed deposit, in view of the deposit being
in joint name of himself and Mrs.Gloria Limpo Vaswani
and Mrs.Gloria Limpo Vaswani having passed away.
8. The said companies did not choose to
respond immediately. In fact Tata Finance Limited
11 O.S.No.2579/2002
replied to the plaintiff asking him to furnish the death
certificate and execute indemnity bond, when the
plaintiff indicated his readiness to do so there was no
further response from the said company. Almost 5
months after the said letters were sent, ITC Limited
chose to respond by their letter dated: 16.8.2001. The
plaintiff was taken back at the contents of the letter
wherein, completely contrary to the terms of deposit, it
was stated that the request of the plaintiff could not be
accorded to in view of the probate being granted by the
High Court of Karnataka of Mrs.Gloria Limpo Vaswani's
will. The plaintiff realized that attempts had possible
been made by the defendants No.1 to 3 with ITC Limited
to withdraw the entire amount in deposit. The plaintiff
therefore wrote back to the company pointing out that as
per the terms of deposit the fixed deposite rightfully
belonged to him. It was also pointed ut that grant of
probate did not mean that the right of the deceased to
will away certain properties had been upheld. The
12 O.S.No.2579/2002
plaintiff apprehending that an attempt may be made by
the defendants No.1 to 3 to seek for the other fixed
deposits on the basis of the probate, immediately wrote
to the other two companies demanding that they do not
act at on any such order granting probate as the fixed
deposits belonged to him.
9. Realizing the legal position ITC Limited,
immediately wrote back recognizing that the fixed
deposit belonged to the plaintiff and assuring the plaintiff
that the amounts would be released to the plaintiff only
as per the terms and conditions of the deposit. However
there was no response from the other two companies.
In the meanwhile the plaintiff sought to verify as to
whether the defendants No.1 to 3 had complied with his
request and had not included the deposits in the
inventory. However it was found that despite the lapse
of more than one year from the grant of probate the
defendants No.1 to 3 had not filed any inventory in the
High Court. The plaintiff bonafide believed that the
13 O.S.No.2579/2002
defendants No.1 to 3 would not make any attempt to
withdraw the amounts in the said fixed deposits.
10. In the meanwhile the plaintiff was repeatedly
requesting defendant Nos.4 and 5 to make over the
fixed deposits in his name, but they seemed to be
dragging their feet over the matter. On 12.3.2002, Tata
Finance Limited responded by stating that the probate
obtained by the defendants No.1 to 3 did not contain
schedule of assets and that without the said order being
amended, they would not be releasing the monies to
defendants No.1 to 3, especially in view of the plaintiff's
demand. Thereafter all of a sudden on 9.4.2002, the
said company addressed a letter to the plaintiff stating
that in view of an affidavit of assets filed in the probate
petition by the defendants No.1 to 3, they would be
releasing the entire amount in the fixed deposit to the
defendants No.1 to 3, based on the order granting
probate, unless any injunction order granted by a civil
court is produced. The said company does not seem,
14 O.S.No.2579/2002
to have insisted on its earlier condition that the order of
probate must be amended. The plaintiff have learnt that
around the same time that Tata Finance Limited has
issued the letter threatening to handover the fixed
deposits to the executors, that attempt is being made to
withdraw the fixed deposit with defendant No.5 also.
The plaintiff submits that as of now the fixed deposits
have not been encashed by the executor or the legatees
under the will are all residing in Philippines. If the fixed
deposits are allowed to be released in favour of the
defendants No.1 to 3, the said monies would be straight
away made over to defendants No.7 to 9 at Philippines,
in which event there would be absolutely no possibility
of the plaintiff being able to recover the same and his
right would be completely and effectually defeated.
11. The plaintiff further contended that fixed
deposits were created by him by crediting the monies
hereto from his own account and from the terms and
conditions governing the fixed deposit, it is clear that
15 O.S.No.2579/2002
upon the death of Mrs.Gloria Limpo Vaswani, it is the
plaintiff who becomes the owner of the fixed deposit
and is entitled to the monies thereto. The terms and
conditions governing the fixed deposits made it very
clear that in the event of the fixed deposits being in joint
names and in the event of death of the 1st depositor, the
fixed deposit would belong to the 2nd depositor without
reference to the heir or legal representative of the
deceased. It is therefore clear that by the very terms of
the fixed deposit, the defendant Nos.7 to 9 would not get
any right to the same and therefore it is not permissible
for the companies to release the amounts therein to the
defendants No.1 to 3 acting on behalf of the legatees as
the executors of the will. The grant of probate of the will
cannot by itself confer any right or title on the legatees
of the will to the said fixed deposits. The grant of
probate is only concerned with the questions as to
whether the will had been executed by the deceased
being in a sound and disposed state of mind and not
16 O.S.No.2579/2002
with the question of title of the deceased to the assets
willed away. The defendants No.1 to 3 do not seem to
have disclosed to the Court in the proceedings that the
deposit willed away stood in the joint names of the
deceased and the plaintiff. By suppressing this material
fact they have obtained the probate by including the said
fixed deposits in the list of assets belonging to the
deceased.
12. In the alternative, even assuming that the
plaintiff does not become the owner of the entire amount
in the fixed deposit, it cannot be disputed that at least he
would have a half share in the fixed deposits, he being a
joint holder of the fixed deposits. Therefore, in any
event Mrs.Gloria Limpo Vaswani cannot be will away
even the half share of the plaintiff and the executor and
the legatees of the will, will not have right to withdraw
the entire amount available in the fixed deposits. It
appears that they are now making attempts by virtue of
the grant of probate to withdraw the entire amount in the
17 O.S.No.2579/2002
fixed deposit and the companies are intending to
release the entire amount to them, which is
impermissible and contrary to law.
13. In violation of his right to the fixed deposit
and in contravention of provisions of law as well as
terms and conditions of the deposits defendants No.4
and 5 are attempting to make payments to the
defendants No.7 to 9 who are in Philippines through the
executors of the said will, if they succeed in doing so
plaintiff's right should be completely defeated, the
legatees being located abroad. It is therefore imperative
that an injunction be granted restraining the companies
from releasing any of the amounts in the fixed deposits
to the legatees through the executors otherwise
irreparable injury and hardship will be caused to the
plaintiff.
14. The cause of action arose on 19.3.1999,
23.7.1999, 29.1.2000 and 9.4.2002. Hence, for all
these reasons, it is prayed to decree the suit.
18 O.S.No.2579/2002
15. In response to the suit summons, the
defendants No.1 to 3, 4 to 8 appeared through their
Counsels. The defendant Nos.7 and 9 to 13 placed ex-
parte.
The defendant Nos.1 to 3 contended in the written
statement that they are admitting substantially correct
but allegations in para - 2 of the plaint except that the
maiden name of Gloria Mohan Vaswani herein after
referred as deceased, was Gloria Limpo Vaswani.
Besides this, it is not only defendants No.6 to 9 who are
relatives of the deceased but also defendant Nos.10 to
13. Further, these defendants are not aware of, do not
admit and deny the several allegations in paragraph 3 of
the plaint, except that a sum of Rs.1,00,000/- was
deposited with defendant No.4, a sumof Rs.2,00,000/-
with defendant No.5 and a sum of Rs.1,00,000/- with the
ITC Limited and that all the aforesaid 3 deposits , all of
which were placed in fixed deposits and are hereinafter
referred to as the three fixed deposits in question were
19 O.S.No.2579/2002
in joint names of the deceased and the plaintiff. The
plaintiff is therefore, put to proof of such of the aforesaid
allegations which are not admitted.
16. These defendants are not aware of the
allegations in para Nos.4 and 5 of the plaint, except 3
fixed deposits in question had an "either or survivor"
clause. The plaintiff is therefore put to strict proof of the
allegations in the aforesaid paragraph Nos.4 and 5. In
particular, these defendants deny that the name of the
deceased was shown as the 1st depositor only out of
humanitarian considerations, that upon the death of the
deceased the three fixed deposits in question
automatically belonged to the plaintiff alone, that no
other person could claim any right to the afore said 3
fixed deposits, that the nominees invested in the said
three fixed deposits belonged to the plaintiff and that
they were not owned by and did not belong to the
deceased. The allegation to the effect that the plaintiff
became the owner of the three fixed deposits in
20 O.S.No.2579/2002
question and was entitled to the monies due under the
aforesaid three fixed deposits because of the terms and
conditions governing the said three fixed deposits is
incorrect and is also denied.
17. These defendants are not aware of and do
not admit the allegations in paragraph 6 of the plaint,
except that the deceased passed away at Manila,
Philippines, on the 29th January 2000 and that she left a
registered will dated:15th July 1999 wherein she
appointed these defendants as the executors thereof,
that they took steps to obtain probate of the aforesaid
will and that they received a couple of letters from the
plaintiff's Counsel in this connection. In one of the
letters received by the then Counsel for these
defendants it was, no doubt, alleged that the amount in
the three fixed deposits in question were held by the
plaintiff as the owner thereof. However, the petition for
probate of the will of the deceased had already been
filed by the time the aforesaid letter was received. Even
21 O.S.No.2579/2002
otherwise, the defendants would still have been obliged
to disclose the three fixed deposits in question in the
affidavit of assets which accompanied the petition for
probate, since the plaintiff's allegation to the effect that
the aforesaid three fixed deposits were held by him as
the owner thereof was from what the deceased
mentioned in writing incorrect. The deceased
bequeathed all the properties which she died possessed
of not only to defendant Nos.7 to 9 but also to defendant
Nos.10 to 13.
18. Regarding para - 7 and 8 of the plaint, these
defendants states that the mere fact that neither they
nor their then counsel chose to deny the assertions
made by the plaintiff, to the effect that the three fixed
deposits in question belonged to him and that his right is
unaffected by the will of the deceased, does not thereby
mean that they accepted either of the aforesaid
assertions. Besides, the petition for a grant probate of
the will of the deceased had been filed even before the
22 O.S.No.2579/2002
very first letter dated: 5th August 2000 was received and
the three fixed deposits in question had been shown in
the affidavit of assets which accompanied the said
petition. While these defendants are not aware and do
not admit the allegations in paragraphs 9, 10 and 11 of
the plaint that despite the lapse of more than one year of
the grant of probate they have not filed the inventory is
incorrect. In any event, the several allegations in these
paras do not in any way establish that the plaintiff and
not the deceased was the real owner of the three fixed
deposits in question. In fact, the several allegations in
the aforesaid paragraphs 9 to 11 as also those in
paragraph 12 of the plaint the second half of which are
not admitted are irrelevant and immaterial so far as
deciding the point involved in the present suit is
concerned.
19. These defendants do not admit and deny
the allegations paragraph 13 of the plaint, these
defendants deny that merely because the plaintiff was a
23 O.S.No.2579/2002
joint holder with deceased of the 3 fixed deposits in
question is entitled to have a half share in the aforesaid
3 fixed deposits. Paragraph 14 of the plaint is denied.
On the contrary, an injunction as presently sought for to
be granted, the legatees of the will of the deceased
would be put to irreparable injury, loss and hardship.
From the information available with these defendants, it
appears that the plaintiff is only attempting to collect the
entire amount due under the three fixed deposits in
question or at least half the aforesaid amount, neither of
which he is entitled to. These defendants further state
that plaintiff has no cause of action. The suit is not
properly valued, court fee paid is insufficient. Hence, for
all these reasons, it is prayed to dismiss the suit.
20. The defendant No.5 filed written statement
contending that the averments in para - 2 of the plaint
are not known to this defendant. Para - 3 of the plaint
are not within the knowledge of this defendant. On the
contrary, it is contended that the averments of the
24 O.S.No.2579/2002
plaintiff that he had made deposits in the name of
Mrs.Gloria Mohan Vaswani and himself with defendant
No.4 and M/s.ITC Ltd., a sum of Rs.1,000/- each are not
within the knowledge of this defendant. These
defendants submit that on 28th July 1999 a fixed deposit
was placed jointly by Mrs.Gloria Mohan Vaswani and
plaintiff as fixed deposit No.100009589 as per their
records.
21. This defendant admits that the name of
Mrs.Gloria Mohan Vaswani has been shown as the first
depositor, but denies the other averments made by the
plaintiff. As regards the averments made in para 5 and
6 of the plaint, this defendant submits that the deposits
were not created by Mrs.Gloria Mohan Vaswani is
denied as false. The averments in para 6 of the plaint
the death of the first depositor in Philipines on 29.1.2000
and that she had left behind a registered will dated:
15.7.1999 wherein she had made bequests in favour of
defendants No.7 to 9 and also had appointed
25 O.S.No.2579/2002
defendants No.1 to 3 as executors of the said will are
not within the knowledge of this defendant and the
plaintiff be put to strict proof the same.
22. Regarding para - 7 of the plaint this
defendant submits that the alleged probate proceedings
before the Hon'ble High Court of Karnataka and the
granting of the probate are not within the knowledge of
this defendant and the plaintiff is put to strict proof of the
same. This defendant submits that he is also not a
party to the said probate proceedings.
23. The averments para - 8, 9, 10 and 11 of the
plaint do not call for any reply as they are not within the
knowledge of this defendant.
24. The averments of para - 12 and 12, this
defendant submits that defendants No.1 to 3 acting as
the executors of the alleged will and on behalf of
defendant Nos.7 to 9 are trying to with draw the money
of the said fixed deposits based on the grant of probate
26 O.S.No.2579/2002
not known to this defendant, however, the said money in
deposits with this defendant. The averments of para- 13
and 14 are false. Hence, for all these reasons, it is
prayed to dismiss the suit.
25. On the basis of the above pleadings of the
parties, the following issues have been framed:
ISSUES
1. Whether the plaintiff proves that he has
kept fixed deposits No.TFLMR -
0034605 with defendant No.4 and
F.D.No.0100009589 with defendant
No.5 jointly in his name as well as in the
name of Mrs.Gloria Limpo Vaswani as
averred under para Nos.3 and 4 of the
plaint?
2. Whether the plaintiff further proves that
he is having absolute right over the said
fixed deposit to receive back the same
from defendants No.4 and 5 respectively
as the alleged will dated: 15.7.1999 left
behind by the said Mrs.Gloria Limpo
Vaswani is not binding on the plaintiff?
3. Whether the defendants No.1 to 3 prove
that the will was executed by deceased
Mrs.Gloria Limpo Vaswani on 15.7.1990
during her disposing state of mind which
is binding on the plaintiff?
27 O.S.No.2579/2002
4. Whether the plaintiff proves that the
defendants No.4 and 5 have interfered
with the right of the plaintiff in respect of
the said respective deposits?
5. To what relief the plaintiff is entitled?
6. What decree or order?
26. In support of the case of the plaintiff, the
plaintiff is examined as PW.1 and got documents
marked at Exs.P1 to P.35. On the other hand, the 2nd
defendant is examined as Dw.1 and one document is
marked Ex.D1.
27. Heard argument. The Learned Counsel for
the plaintiff filed written argument. On the other hand,
the Learned Counsel for the defendants No.1 to 3 and
defendant No.5 also filed written argument.
28 My findings on the above issues are as
under:-
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the affirmative
Issue No.4 : In the negative
28 O.S.No.2579/2002
Issue No.5 : In the negative
Issue No.6 : As per the final order
for the following:
REASONS
29. Issues Nos.1 to 3:- Since, these issues
are inter linked with each other, to avoid repetition of
facts, they are taken together for discussion.
The contention of the plaintiff is that he has kept
F.D.No.TFLMR 0034605 with defendant No.4 and
F.D.No.0100009589 with defendant No.5 jointly in his
name as well as in the name of M/s.Gloria Vaswani as
averred under para - 3 of the plaint.
30. Further contention is that, he is having
absolute rights over the said fixed deposits to receive
back the same from defendants No.4 and 5 respectively,
as the alleged will dated: 15.7.1999 left behind by the
said M/s.Gloria Limpo Vaswani is not binding on the
plaintiff.
31. On the contrary, the defendant Nos.1 to 3
contended that the will was executed by the deceased
29 O.S.No.2579/2002
Gloria Limpo Vaswani on 15.7.1990 during her
disposing state of mind which is binding on the plaintiff.
32. To substantiate the rival contentions, the
oral evidence of P.W.1 reveals that it is reiteration of the
plaint averments and this P.W.1 relied on the
documents much less certified copy of order, statement
of account, fixed deposit receipts, copies of cheques,
F.D. application form, account opening form, terms and
conditions of F.D., and tata finance IL and FS,
Photostat copy of registered will dated: 15.7.1999, legal
notice copies, orders in probate C.P.No.9/2000, letter
addressed to defendant No.4, another legal notice, letter
addressed to defendant No.5, legal notice, plaintiffs
letter, reply letter issued by defendant No.4, legal notice
to ITC Calcutta reply by ITC lease deed, office copy of
legal notice, reply of ITC, reply of defendant No.4 copy
of affidavit of defendant No.1 filed in probate
C.P.No.9/2000 which are at Exs.P1 to P35.
30 O.S.No.2579/2002
33. During the course of cross-examination, this
witness admitted that he do not have any records to
prove that after the death of his brother he was
maintaining his sister-in-law and also admitted that his
sister-in-law was having other source of income. This
witness stated during the life time of his sister-in-law he
never intended to make a claim over this fixed deposits
because their intention was that it should be meant for
maintenance of his sister-in-law. On perusal of entire
version of Pw1 it is evident that though he has stated
that immediately after the death of his brother, his sister-
in-law was maintained by him. To show this aspect, he
has no documents. More over, this P.W.1 clearly
admitted that his sister-in-law was having other source
of income and during the life time of his sister-in-law he
never intended to make claim over this fixed deposits.
On looking to the clear admissions of this witness, it is
evident that he has no document to show that he has
invested and kept the fixed deposits in the name of 1st
31 O.S.No.2579/2002
defendant, only on humanitarian grounds. Another one
important admission during the course of recording of
evidence by the Commissioner this witness stated that
he was not aware of the probate proceedings and also
admitted that he has not made any attempt to file
objection in the said proceedings. Looking to the entire
version of P.W.1 first of all the plaintiff failed to prove
that he has kept fixed deposit in the name of M/s.Gloria
Limpo Vaswani, since he has no documents in this
regard. Another one important aspect is that he was
party to the probate proceedings he never raised any
objection either regarding the will or regarding the said
fixed deposits. Therefore, it is hard to believe that the
plaintiff has kept deposits in his name as well as in the
name of M/s.Gloria Limpo Vaswani jointly.
34. Whereas, the D.W.1 in the chief evidence
has deposed that Mrs.Gloria Limpo Vaswani married
plaintiff's brother late Mohan Tekchand Vaswani and
lived in Bangalore. The deceased died in Philippines on
32 O.S.No.2579/2002
29.1.2000 leaving a registered will dated: 15.7.1999.
The defendants No.1 to 3 are the executors named in
the registered will. The defendants No.4 and 5 are
finance companies, wherein the deceased had held
fixed deposits and defendants No.6 to 13 are the
relatives and beneficiaries named in the registered will
of the deceased, live in Philippines. Further, it is
deposed that himself and defendants No.1 and 3 only
aware that a sum of Rs.1,00,000/- was deposited with
defendant No.4. A sum of Rs.2,00,000/- was deposited
with defendant No.5, a sum of Rs.1,00,000/- with the
ITC Limited. All the 3 deposits were in joint names of
deceased and plaintiff. Three fixed deposits in question
had an either or survivor clause. But, it is not correct
that the name of the deceased was shown as the first
depositor only out of humanitarian consideration, upon
the death of deceased, the 3 fixed deposits in question
automatically belonged to the plaintiff alone and that no
other person can claim any right to the aforesaid 3 fixed
33 O.S.No.2579/2002
deposits and that they are not owned and did not belong
to the deceased. The deceased was the owner of 3
fixed deposits in question. Further, it is deposed that
the deceased passed away in Manila, Philippines as
executors named in the registered will dated: 15.7.1999
and they took steps to obtain probate of the aforesaid
registered will and received a couple of letters from the
plaintiffs counsel in this connection. Though, the plaintiff
claimed that he had kept the money in the 3 deposits as
the owner, but, the petition for probate had already been
filed when the aforesaid letter was received. The
deceased bequeathed all the properties, which she
had possessed to the defendants 7 to 13 who are
relatives and therefore, all the properties held by her
were stated in affidavit of assets filed with the petition
for probate before the Hon'ble High Court of Karnataka.
The probate of the registered will was granted to these
defendants and they have also filed inventory relating to
the deceased assets before the Hon'ble High Court in
34 O.S.No.2579/2002
the probate petition. The proceeds of the fixed deposits
kept in recurring deposit with the State Bank of India,
Indiranagar Branch, Bangalore. Later as per the
direction of the Hon'ble High Court in probate
C.P.No.8/2004 the proceeds were placed in fixed
deposit with the ING Vysya Bank, High Court extension
center, Bangalore. The original fixed deposits are not in
their possession. Moreover the mere mention of the
name of the plaintiff does not entitle him to half a share
in the three fixed deposits. The sum and substance of
D.W.1 is that they are the executors of the registered
will of the deceased are liable to legatees of the will of
the deceased and he has appeared before this court to
protect the estate of the deceased who has named as
executors on profound belief and trust in them to carry
out her desire and wishes. The plaintiff is only
attempting to collect the entire amount due under the 3
fixed deposits in question or at least half the aforesaid
amount, though he is not entitled.
35 O.S.No.2579/2002
35. During the course of cross-examination,
this witness has been suggested regarding the
relationship of Gloria Mohan Vaswani with them and
regarding financial condition and also suggested who
was supporting the deceased Gloria vaswani for
financial after her husband's death and also suggested
regarding fixed deposits in the individual name of Gloria
Vaswani. This witness is suggested that the plaintiff
alone is entitled for the fixed deposits in question and
asked regarding either or survivor clause entitles the
plaintiff exclusively to the amount of the fixed deposit
upon Gloria Vaswani's death. For all these suggestions,
this witness gave satisfactory answers.
36. The Learned Counsel for the plaintiff placing
reliance on Exs.P8, 5, 10, 7, 17, 9, 6, 18, 19, 20, 21, 23,
25, 22, 24, 26, 27, 28, 29, 30, 31, 32, 33 and 34 argued
that the defendants No.1 to 3 and defendant No.5 have
admitted in their written statement as well as in evidence
that the plaintiff has kept fixed deposit with the
36 O.S.No.2579/2002
defendant No.5 jointly in his name as well as in the
name of Gloria Limpo Vaswani and the said fixed
deposits were in the joint names of Gloria Vaswani and
plaintiff and in the deposition the D.W.1 also admits that
the plaintiff and Gloria Vaswani were joint owners of the
fixed deposit and defendant No.5 in the written
statement has admitted that the fixed deposits were in
the joint names of plaintiff and Mrs.Gloria Limpo
Vaswani. Further, it is argued that Gloria Limpo
Vaswani was the sister-in-law of the plaintiff, upon
marriage with the plaintiff's brother, Mrs.Gloria Limpo
Vaswani and Mr.Mohan Tekchand Vaswani were
residing in Bangalore. Upon the death of plaintiff's
brother, the plaintiff and his mother uses to provide for
and maintain Mrs.Gloria Limpo Vaswani out of
humanitarian considerations in order to ensure that
some amount of money gets remitted to Mrs.Gloria
Limpo Vaswani on regular basis. The plaintiff opened 3
fixed deposits with defendants No.4 and 5. The said
37 O.S.No.2579/2002
deposits were created by the plaintiff by issuing a
cheques and relied on documents at Exs.P6, 8 and 9
and mentioned joint names of plaintiff and Mrs.Gloria
Limpo Vaswani to the said deposits. It is further
submitted that Mrs.Gloria Limpo Vaswani was named
as 1st depositor only. Only with an intention to take
care of her monthly expenditure and only for
humanitarian consideration and she had no regular
source of income and was not gainfully employed. The
said Mrs.Gloria Limpo Vaswani has in no manner
contributed towards the creation of fixed deposits. The
terms and conditions of the said fixed deposits was an
either or survivor clause. It implies in the event of the
death of the either of the joint depositors, the fixed
deposit would be directly made out in the name of the
survivor. The amount automatically standing in the fixed
deposit would belonged to 2nd depositor and no other
person can claim any right over the fixed deposits. The
sum and substance of argument is that the plaintiff has
38 O.S.No.2579/2002
kept fixed deposits with defendant Nos.4 and 5 jointly in
his name as well as in the name of Gloria Limpo
Vaswani.
37. Where as the Learned Counsel for the
defendants No.1 to 3 argued that the deceased
Mrs.Gloria Mohan Vaswani appointed these defendants
No.1 to 3 to be the executors in the registered will. The
defendants No.6 to 13 are the relatives and
beneficiaries named in the will. These defendants No.1
to 3 have filed petition C.P.No.9/2000 before the Hon'ble
High Court for probate. Accordingly, order passed in
probate of the will was allowed. After the grant of
probate as per procedure the inventory was filed within
six months and final accounts had been filed within one
year from the date of issue of probate. These
defendants have shown 5 assets of the deceased which
are likely to come to their hands as executors. In the
said list these 3 deposits are finds place. Under
registered will the deceased had directed her executors
39 O.S.No.2579/2002
to collect all her assets and net proceeds of the assets
be handed over to the defendant No.6 for being
distributed as per the terms of her will. Further, it is
argued that these defendants are not aware of the
monies sent by the plaintiff and his mother regularly to
the deceased after her husband died in 1996. Neither
or these defendants aware as to whose money was
deposited in the deposits. More over, the P.W.1 during
the course of cross-examination has stated that a sum
of Rs.1,50,000/- was given to his brother ie., the
husband of deceased Gloria Limpo Vaswani as his
share from sale proceeds of a flat in Mumbai in 1978
and plaintiff also admitted that his sister-in-law was
having other source of income. It is also stated that his
brother was worked with various organizations. These
all circumstances show that deceased and her husband
had funds of their own and would not have to depend for
maintenance from plaintiff and his mother every month.
Further, it is argued that the plaintiff in his evidence
40 O.S.No.2579/2002
states that a sum of Rs.1,00,000/- was deposited with
M/s. Tata Finance Limited, the 4th defendant a sum of
Rs.2,00,000/- was deposited with 5th defendant and
another Rs.1,00,000/- was deposited with M/s.ITC by
him on 19.3.1999 and 27.3.1999, the said deposits were
created. But, the said cheques are dated: 9.4.1999 and
23.7.1999 which are totally contradictory. The sum and
substance of argument of these defendants is that the
fixed deposits standing in the name of the deceased are
not for her maintenance during her life time, but, the
deceased became the owner of the said fixed deposits,
the deceased would have all the rights to deal with the
fixed deposits as owner. These aspects are well within
the knowledge of the plaintiff. The probate petition was
filed by these defendants. The plaintiff in spite of
sufficient knowledge i.e., the plaintiff and defendant
No.6 were made respondents to the probate
proceedings No.8/2004. The plaintiff was represented
by his counsel but no statement of objection was filed.
41 O.S.No.2579/2002
Therefore, merely because the plaintiff is a joint holder
with the deceased in the 3 fixed deposits does not
entitle him to the entire fixed deposit amount or even
half share in the said 3 fixed deposits. The plaintiff is
not entitled to receive the proceeds of the fixed deposit
as of a right, since the deceased has clearly mentioned
in writing under the registered document that all
investments, bank accounts, joint accounts etc., belong
to her. Hence, for all these reasons, it is prayed to
dismiss the suit.
38. The Learned Counsel for the 5th defendant
argued that the suit is not maintainable. The defendant
No.5 had paid the fixed deposit amount held with them
to the executors of the will ie., defendants No.1 to 3,
this fact has been brought in the evidence of D.W.1 it
was further argued that as per the direction of the
Hon'ble High Court the amount kept in fixed deposit with
the ING Vysya Bank. The sum and substance of
argument is that the amount in fixed deposit has already
42 O.S.No.2579/2002
been paid and is in the fixed deposit as per the orders of
the Hon'ble High Court. Hence, prays to dismiss the
suit.
39. In the light of the arguments advanced and
having perusal of the entire oral and documentary
evidence of both sides, the admitted facts are Gloria
Mohan Vaswani is sister-in-law of the plaintiff. She got
married the plaintiff's brother ie., Mohan Takechand
Vaswani. The defendants No.6 to 9 are the relatives of
Gloria Limpo Vaswani. Defendants No.8 to 13 are her
brothers and sisters. The defendants No.1 to 3 are the
executors of the will of M/s.Gloria Limpo Vaswani.
According to the plaintiff, the said Mohan Takechand
Vaswani died, after that, the plaintiff and his mother was
providing the maintenance to Gloria Limpo Vaswani out
of human consideration. Since, she being the plaintiff's
sister-in-law and the plaintiff was remitting monies
frequently to take care of her requirements. The plaintiff
contends that 3 fixed deposits were kept by the plaintiff
43 O.S.No.2579/2002
with defendants No.4 and 5 in the name of himself and
Mrs.Gloria Limpo Vaswani. The plaintiff relied on clause
"either or survivor" as per the terms of deposits in the
event of 1st defendant passing away automatically the
amount standing in the fixed deposit would belonged to
the 2nd depositor ie., plaintiff, no other person could
claim any right on the said monies. Whereas, the
evidence of D.W.1 reveals that the 3 deposits not
belongs to the plaintiff, there is no question of
humanitarian consideration the plaintiff kept the said
fixed deposits in the name of the deceased either or
survivor clause and also reveals that these defendants
took steps to obtain probate since, the deceased left
behind registered will dated: 15th July 1999. The
probate petition filed prior to the letter dated: 5th August
2000 was received from the plaintiff's Counsel. The
deceased bequeathed all the properties which she
possessed, to the defendants No.7 to 13 who are all her
relations and all the properties held by her were stated
44 O.S.No.2579/2002
in the affidavit of assets filed with the petition for probate
before the Hon'ble High Court. The probate of the
registered will was granted to these defendants and they
have filed inventory relating to the deceased assets and
the deposit of Rs.2,00,000/- with defendant No.5 had
been released and proceeds kept in a recurring deposit
with the State Bank of India, Indiranagara Branch,
Bangalore. Later, as per the direction of the Hon'ble
High Court in probate C.P.No.8/2004 the proceeds were
placed in fixed deposit with ING Vysya Bank, High Court
Extension Center, Bangalore. Therefore, the mere
mention of the name of the plaintiff does not entitle him
in the 3 fixed deposits. Though, the plaintiff contended
that, after the death of his brother ie., the husband of the
deceased, the plaintiff and his mother were providing
maintenance to the deceased and were remitting
monies frequently for her requirements. To substantiate
these aspects, absolutely there is no satisfactory
evidence. Therefore, these defendants are the
45 O.S.No.2579/2002
executors named under the registered will and these
defendants filed petition for probate of the will of the
deceased. More over, the D.W.1 very clearly deposed
that they are not aware of the monies sent by the
plaintiff and his mother regularly to the deceased after
the death of her husband and another one aspect
submitted by the Learned Counsel for the defendant that
during the cross-examination before the Commissioner
the plaintiff has stated that a sum of Rs.1,50,000/- was
given to his brother ie., husband of the deceased as his
share from sale proceeds of a flat in Mumbai in 1978
inherited property. To show the plaintiff was
maintaining his sister-in-law he has no records and the
P.W.1 also admitted that his sister-in-law was having
other source of income and his brother was worked with
various organizations. These aspects clearly disclose
that the deceased and her husband had funds of their
own and would not have to depend for maintenance
from the plaintiff and his mother. According to the
46 O.S.No.2579/2002
defendants, the deceased could have sought the help of
the plaintiff in handling the transaction concerning the
money after the death of her husband. The date of
deposits and the cheques relied on by the plaintiff are
contrary and another one important aspect is that the
plaintiff not made clear as to whether he has mentioned
the fixed deposits in question as his assets before any
authorities and even not shown in the income tax
returns. Therefore, the plaintiff's contention that the
monies for the 3 fixed deposits were given on
humanitarian consideration and put the deceased as
first depositor and his name as 2nd depositor. To
substantiate this aspect, there is no satisfactory
evidence. More over, during the course of cross-
examination, P.W.1 admitted that during the life time of
his sister-in-law he never intended to make a claim over
this fixed deposits. Therefore, the deceased became
the owner of the fixed deposits and deceased would
have all the rights to deal with the fixed deposits as the
47 O.S.No.2579/2002
owner in the event of her death. More over, the
deceased being the owner of the fixed deposits has with
full knowledge, sound mind, memory and understanding
and of her own free will executed registered will in the
presence of witnesses. The plaintiff in spite of having
knowledge of the probate proceedings not objected,
there has been no reason given by the plaintiff as to why
he has not objected to the probate proceedings.
Therefore, merely the plaintiff is a joint holder with the
deceased in the 3 deposits does not entitle him to the
entire fixed deposit amount. The oral and documentary
evidence placed on record by the plaintiff not coupled
with each other with the pleadings, whereas, the
evidence of defendants coupled with the pleadings.
Hence, on the foregoing reasons, I answer issues No.1
and 2 in the negative and issue No.3 in the affirmative.
40. Issue No.4:- For this issue, the
contention of the plaintiff is that the defendants No.4 and
5 have interfered with the rights of the plaintiff in respect
48 O.S.No.2579/2002
of the said respective deposits. This issue is co-related
to issues No.1 and 2. The plaintiff failed to prove that he
has kept the said 3 fixed deposits in his name as well as
in the name of Mrs.Gloria Limpo Vaswani and also failed
that he is having absolute right over the said fixed
deposits. These aspects are not proved by the plaintiff,
question of defendants No.4 and 5 have interfered with
the right of the plaintiff in respect of the said fixed
deposits does not arise. Though, the plaintiff has
contended that in violation of his right to the fixed
deposits and in contravention of all provisions of law
terms and conditions of the deposits the defendants
No.4 and 5 are attempting to make payments to
defendants No.7 to 9 through the executors of the will.
Whereas, the defendants denied these allegations, on
the contrary it is stated that if injunction is granted, the
legatees of the will of the deceased would be put to
irreparable injury and hardship and plaintiff only
attempting to collect the entire amount due under the 3
49 O.S.No.2579/2002
deposits in question. Therefore, the oral and
documentary evidence placed on record by the plaintiff
not coupled with each other with the pleadings. Hence,
this issue is answered in the negative.
41. Issue No.5:- This issue is based on
issues Nos.1,2 and 4. The plaintiff failed to prove that
he has kept fixed deposits in his name as well as in the
name of Mrs.Gloria Limpo Vaswani and also failed to
prove that he is having absolute right over the said fixed
deposits to receive back the same from defendants No.4
and 5 and failed to prove the interference of defendants
No.4 and 5. Hence, the plaintiff is not entitled for any
relief. Therefore, this issue is answered in the negative.
42. Issue No.6:- On the foregoing reasons on
the above issues, I proceed to pass the following:
ORDER
The suit of the plaintiff is dismissed.
No cost.
50 O.S.No.2579/2002Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in open Court today the 29th day of September 2015).
(V.K.Badiger) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
/ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
PW-1 : Ajit Tekchand Vaswani Witness examined on behalf of Defendants:
DW-1 : Carlos Da Costa Documents marked on behalf of Plaintiffs:
Ex.P.1 : Certified copy of the order Exs.P2 to P4 : Statements of account Ex.P5 : Copy of F.D.receipt Ex.P6 : F.D. receipt dtd:28.7.1999 Ex.P7 : FD receipt issued by ITC Ltd., Ex.P8 : Copy of cheque Ex.P9 : Copy of cheque dtd:23.7.1999 Ex.P10 : Copy of cheque dtd:9.4.1999 Ex.P11 : Copy of cheque dtd: 19.3.1999 Ex.P12 : F.D. application form Ex.P13 : Account opening form 51 O.S.No.2579/2002 Ex.P14 : Terms and conditions of FD of Tata finance Ex.P15 : Industrial Loan & Finance Service Ex.P16 : Terms of conditions of F.D. Ex.P17 : Photostat copy of registered will dtd: 15.7.1999 Ex.P18 : Office copy of legal notice Ex.P19 : Office copy of legal notice Ex.P20 : Certified photocopy of orders Ex.P21 : Letter dtd: 21.3.2001 Ex.P22 : Legal notice dtd: 22.3.2001 Ex.P23 : Letter dtd: 21.3.2001 Ex.P24 : Legal notice dtd:22.3.2001 Ex.P25 : Letter dtd: 21.3.2001 Ex.P26 : Legal notice Ex.P27 : Reply letter Ex.P28 : Reply Ex.P29 : Office copy of legal notice Ex.P30 : Office copy of legal notice Ex.P31 : Office copy of legal notice Ex.P32 : Reply Ex.P33 : Reply Ex.P34 : Reply dtd: 9.4.2002 Ex.P35 : Photostat copy of affidavit Documents marked on behalf of Defendants:
Ex.D.1 : General power of attorney VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.52 O.S.No.2579/2002
29.09.2015 P - J.L. D1 to 3 - J.A.S D4-M.R.K. D5-G.K. D8- Dead D6,7,9, 10, 11 to 13 - ex-parte (Judgment pronounced in the open Court (vide separate) and the order portion of the Judgment is as under:-
The suit of the plaintiff is dismissed. No cost.
Draw decree accordingly.
(V.K.Badiger) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY