LegalCrystal - Indian Law Search Engine - Jayavanti Dawood Khalfe and Others Vs. Pushpa Ramdas and Others

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1 LegalCrystal - Indian Law Search Engine - Jayavanti Dawood Khalfe and Others Vs. Pushpa Ramdas and Others LegalCrystal Citation : legalcrystal.com/ Court : Mumbai Decided On : Jul Judge : THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD & R.D. DHANUKA Appeal No. : APPEAL NO. 253 OF 2012 IN MISCELLANEOUS PETITION NO. 64 OF 2008 IN TESTAMENTARY PETITION NO. 488 OF 2000 WITH NOTICE OF MOTION NO OF 2012 Appellant : Jayavanti Dawood Khalfe and Others Respondent : Pushpa Ramdas and Others Judgement : ORAL JUDGMENT Dr. D.Y. Chandrachud, J. 1. This Appeal arises from an der dated 30 August 2011 of a Learned Single Judge. The order has been passed when a report submitted by the Additional Registrar (O.S.) dated 9 March 2011 came up for hearing. In order to appreciate the nature of the controversy, it would be necessary to extract the order of the learned Single Judge as it stands and which reads as follows : 1. After hearing Counsels on both sides, it appears that the parties are disputing over the many orders which are sought by the Administrator. It appears that evidence will have to be recorded in order to have the distribution of the various items. This is being stated when I called upon the learned Advocate for the respondent nos.2 and 3 to hand over the ornaments to the Administrator, so that they can be distributed as per the desire of the Testator, he submitted that the items are already with the other side and not with them. If this is the position, matter requires consideration only after recording of evidence. Adjourned to for recording of evidence. 2. Respondent Nos.2 and 3 are permitted to file evidence affidavit. Affidavit filed by the respondent nos.2 and 3 is taken on record. 2. A preliminary objection has been taken on behalf of the second and third Respondents to the maintainability of the Appeal on the ground that the impugned order does not constitute a judgment, since it does not decide upon the substantive rights of the parties. 3. Kesarbai Ramdas died on 26 March During her life time, she had executed a will on 2 September 1972 and three Codicils respectively on 1 November 1980, 4 August 1989 and 29 March The second and third Respondents who are named

2 as Executors applied for probate only of the will and not of the codicils on 1 February The First Appellant who is also a daughter of the deceased took out an iginating Summons on 11 August 2006 for a direction that a probate be issued both of the will and of the first and the second codicils and that the third codicil be declared as invalid. On 16 June 2007 probate has been granted in respect of the will and the first and the second codicils. 4. On 16 October 2008, the first Appellant together with one Mansinh Ramdas (original Petitioner No. 2, since deceased) filed a Petition for removal of the second and third Respondents as Executors on the ground that they failed and neglected to administer the estate of the deceased since her death on 26 March 1995 and after the grant of the probate on 16 June The Petition came up before the learned Single Judge on diverse dates including 25 August 2010 and 27 September It appears that during pendency of the proceedings, an effort was made to explore as to whether the estate could be amicably administered since the parties are closely related. Eventually an order was passed by the learned Single Judge on 28 September The der of the learned Single Judge deals in detail with various items forming part of the estate of the deceased. While issuing directions in regarding to the administration of the estate, the learned Single Judge directed that if those acts and deeds are not completed within a period of two weeks, the present executors shall be taken to be removed and in their place, the Prothonotary shall depute an officer of the Court to act as a sole executor to complete the administration of the estate of the deceased. As regards the items of jewellery, the learned Single Judge issued the following directions : A number of items of jewellery and silverware except four items have been distributed. A receipt in that behalf has been passed by Petitioner Nos.2(a), 2(b) and 2(c) and Respondent No.4 and one Sonali Munjal. The four items of jewellery, which are stated not to have been distributed, shall have to be distributed by Respondent Nos.2 and 3 within a period of two weeks from today. Apart from this, it would appear that there was a dispute with regard to certain shares. Among them were shares of Wipro Limited. The learned Single Judge in the order dated 28 September 2010 issued the following directions in regard to those shares : There has been a lot of dispute with regard to the shares of Wipro Limited. The original 960 shares were with the Petitioners. The Petitioners shall hand over those shares to the executors forthwith. The other shares, which were bonus shares have been in the custody of the executors. All the shares of Wipro Ltd., including all bonus shares and the dividends received or accepted thereon and all other income therefrom shall be transferred or transmitted to the beneficiaries as per the ratio mentioned in the Will/Codicils. The executors shall write a letter to the Company in that behalf within two weeks from today. Since the estate was not administered in accordance with the directions of the learned Single Judge, the second and third Respondents stood removed. The Prothonotary accordingly appointed the Additional Registrar/Additional Prothonotary as administrator in terms of the directions issued by the Court. Several meetings took place before the Additional Registrar(O.S.). Eventually the Additional Registrar(O.S.) in his capacity as Administrator filed a report dated 9 March 2011 seeking the following directions :

3 In view of above, I seek Your Lordship's directions as follows : (A) Executrices i.e. Respondent Nos. 2 and 3 may be directed to hand over jewellery mentioned at item nos. 1 and 2 above to me for distributing the same to the beneficiaries as per Will and Codicils of the deceased. (B) Executrices i.e. Respondent Nos. 2 and 3 may be directed to produce Receipt in respect of jewellery mentioned at item nos. 1 and 2, it is already handed over to the Petitions. (C) Executrices i.e. Respondent Nos. 2 and 3 may be directed to furnish details in respect of discrepancy of balance amount in the Pass Book of Union Bank of India, Cumballa Hill Branch, in saving Bank Account No. 209, since the said amount is not tallied with the amount mentioned in order dated (D) All the aforesaid Shares of Zenith Ltd., Standard Batteries and Wipro Ltd. be distributed to the beneficiaries as per the Will. (E) The aforesaid Shares of Zenith Ltd. and Wipro Ltd. Be distributed as per the share of the Deceased in the said Shares, as stated on behalf of the Executors i.e. Respondent Nos. 2 and 3 (It is stated that deceased had 50% share in the said shares.). (F) Executrices i.e. Respondent Nos. 2 and 3 to disclose the maturity amount of UTI Bonds 64 deposited with Union Bank of India, Cumballa Hill Branch. (G) maturity amount of U.T.I. Bonds 64, in the Union Bank of India, Cumballa Hill branch, be distributed to the beneficiaries as per the Will. (H) Maturity amount of U.T.I. Bonds 64, in the Union Bank of India, Cumballa Hill branch, be distributed as per the share of the Deceased in the said bonds as, stated on behalf of the Executors i.e. Respondent nos. 2 and 3 (It is stated that Deceased had 50% shares in the said Bond). (I) Petitioners and Executors/Respondent Nos. 2 and 3 are directed to disclose remaining estate of the deceased in detail to enable the undersigned to distribute the same as per Will of the deceased. 5 On 30 August 2011, the impugned order has been passed by the learned Single Judge on the report The order adverts to the fact that evidence would have to be recorded for the purpose of effecting distribution of various items on which there appears to be a dispute between the parties. 6 Counsel appearing on behalf of the Appellant submits that if the impugned order is merely construed to be an order permitting the recording of evidence on the items of jewellery, the Appellants would have no objection, since the parties appear to be in

4 dispute on whether the jewellery has been handed over in accordance with the mandate contained in the will of the deceased. However, Counsel submitted that the impugned order ought not to result in the reopening either of the probate which has been granted by this Court on 16 June 2007 or the order of the learned Single Judge dated 28 September 2010, which has attained finality. It has been submitted that in pursuance of the order of the learned Single Judge, the Second and Third Respondents are now purporting to lead evidence in regard to the shares of Wipro Limited and claim that the first Respondent has a fifty percent interest in those shares. In the circumstances, it has been urged that the impugned order would be appealable under clause 15 of the Letters Patent, because if it is construed to reopen the questions which have been already settled by the der dated 28 September 2010, that would affect the substantive rights of the Appellants. 7 On the other hand, the learned Counsel appearing on behalf of the second and third Respondents relied upon the interim orders that were passed on 25 August 2010 and on 27 September 2010 during the pendency of the Miscelleneous Petition. It appears that in the order dated 25 August 2010, the learned Single Judge had made the following observations in regard to the Wipro shares: 13. The Schedule to the Petition shows 4800 Wipro shares of Rs. 2/- each jointly held by the deceased with Respondent No. 1. Those Wipro shares shall have to be distributed along with all the bonus shares which have been issued from time to time in the aforesaid proportion. However, if the Petitioners have any dispute with regard to the joint holding of Respondent No. 1 with regard to the Wipro shares, the Petitioners and/or Respondent No.1 shall have to sue separately with regard to any declaration and further orders for the Wipro shares. Respondent Nos. 2 and 3, who are the executors, cannot be held responsible or liable for non-administration of the estate of the deceased with regard to the Wipro shares in view of the dispute. On 27 September 2010, the learned Single Judge noted that a part of the estate was administered and that the executors had given a written undertaking with regard to the administration of shares and securities under the will. The undertaking was taken on record by the learned Single Judge. The undertaking dated 27 September 2010 inter alia contains the following provisions in clause (5) : 5. We further undertake to this Hon'ble Court that as soon as the said shares are received by us duly transmitted, we will execute necessary transmition/transfer forms of the said shares in the name of the beneficiaries in the following manner. a) 50% of the said shares in the name of Surviving Share Holder. b) 25% of the said shares in the name of Petitioner No. 2(b) i.e. Munjal Mansinh. c) Balance 25% of the said shares in the name of six daughters i.e. Petitioner No. 1 (Jaywanti Dawood Khalfe), Respondent No. 1 (Pushpa Ramdas), Respondent No. 3 (Tarla Ramdas), Respondent No. 4 (Jaya H. Shah) and Respondent No. 5 (Jyoti K. Sapat) in equal proportion. Based on this it has been urged on behalf of the second and the third Respondents that the Wipro shares were held jointly by the deceased and by the first Respondent and that what remains to be distributed is only the half share of the deceased in respect of the Wipro shares.

5 8. The difficulty in accepting the submission urged on behalf of the Second and Third Respondents lies in the fact that the final order of the learned Single Judge dated 28 September 2010 specifically deals with the shares of Wipro Limited. The order of the learned Single Judge contains a specific direction to the effect that all the shares of Wipro Limited including all the bonus shares and dividends received and all other income received therefrom shall be transferred or transmitted to the beneficiaries in accordance with the ratio me ntioned in the will/codicils. Once a final order was passed on the Miscellaneous Petition on 28 September 2010, the earlier orders dated 25 August 2010 and 27 September 2010 would merge with the final order. In the circumstances, we find merit in the contention which was urged on behalf of the Appellants that while allowing evidence to be adduced, as the learned Single Judge did by his order dated 30 August 2011, issues which have been resolved by the grant of probate and by the previous order dated 28 September 2010 cannot be reopened. If that is allowed that would affect the substantive rights which flow out of the probate and the order dated 28 September If the Second and Third Respondents are aggrieved by the order dated 28 September 2010, they would be at liberty to take recourse to remedies against that order. Similarly if the Second and Third Respondents or for that matter, the First Respondent claim that the First Respondent is entitled to title in respect of any of the Wipro shares, the remedy must lie in the form of a separate suit on title. It is a well settled principle of law that the grant of probate does not establish title. A probate only establishes the genuineness and authenticity of the will of the testator. In the circumstances we leave it open to the first and/ or the second and third Respondents to seek recourse to such remedy as is open in law. 9. Consequently, we dispose of the Appeal with the clarification that the impugned order dated 30 August 2011 shall not have the effect of reopening the order dated 28 September 2010, so long as the order continues to hold the field. The Appellants would now be at liberty to move the learned Single Judge for taking up the report, which has been filed by the Administrator, save and except in regard to the jewellery with respect to which evidence is to be recorded. The Appeal is accordingly disposed of in these terms. There shall be no order as to costs. 10. In view of the disposal of the Appeal, the Notice of Motion does not survive and shall stand disposed of. Since the parties are senior citizens, liberty to move the learned Judge for expeditious disposal is granted. LegalCrystal - Indian Law Search Engine -