Shernaz Faroukh Lawyer & Anr vs Manek Dara Sukhadwalla & Ors

Shernaz Faroukh Lawyer & Anr. .. Plaintiff V/s. Manek Dara Sukhadwalla & Ors. .. Defendants

............ Mr. D. J. Khambata, Senior Advocate a/w N. A. Agarwal, Ms. Naira Jeejeebhoy P. A. Kabadi and Ms. Taruna Nagpal for the plaintiff. Mr. K. Thacker a/w M. K. Tanna for defendant no.1. Mr. Manish Bohra I/b. M/s. A. S. Khan & Associates for defendant nos.3 & 4. Mr. R.Apte Senior Advocate with A. R. Gole for the noticee/Trust. Mr. Prasad Dani Senior Advocate a/w Mandar Limaye and Ms. Tanvi Kamat I/b. for Amoha Traders Pvt. Ltd./Noticee no.2 Ms. Benita Kapadia I/b. K. Ashar & Company for defendant no.5. Mr. Jonathan S. Soloman, Administrator, a/w Ms. Mansi V. Kaku I/b. Solomon & Co. ........... CORAM : A. K. MENON, J. RESERVED ON : 19 th July, 2018 PRONOUNCED ON : 21 st December 2018

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 2* AdmReport_1of 2016.odt

JUDGMENT:

-

1. Purvez Burjor Dalal died in Mumbai on 7 th December 2011. An

administrator came to be appointed of the estate of late Purvez Burjor Dalal by

this Court on 21st November, 2013. The order appointing the Administrator

has since attained finality. The administrator has since taken charge and he has

in the process of administering the estate filed the above reports. The reports

have been taken up today for hearing. The plaintiffs and defendant no.1 were

directed to hand over movable and immovable properties in their possession

and also take steps to identify properties forming part of the estate by making

necessary enquiries in that behalf. Vide an order dated 24 th December, 2013

the Administrator was directed to file the proceedings for recovery of

properties and to engage Advocates and seek directions from this Court as and

when necessary. The Administrator has since opened a bank account with the

Central Bank of India, Mahatma Gandhi Road, Mumbai (Administrative

Account). The reference as to plaintiffs and defendants in this order shall mean

reference to the parties to Testamentary Suit no.29 of 2012.

2. In this report, the administrator has sought the following reliefs:

(a) direct the defendant no.1 to make available to the administrator of

document pertaining to flat no.8, Al-Karim Manzil, including papers pertaining

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 3* AdmReport_1of 2016.odt

to litigation in respect of the said flat;

(b) direct HSBC to furnish to the administrator copies of statements of

accounts, details of account holders and authorized signatory relating to bank

accounts in the joint names of testator late Purvez Burjor Dalal and/or late

Jamshed Burjor Dalal, brother of the testator and one B.J. Dhoodmal including

the particulars of bank account to which certain sums of money had been

transferred from the account held in the HSBC by Jamshed and Purvez Dalal;

(c) a direction to Kotak Mahindra Bank Limited (KMBL) to furnish details of

bank account to which sums have been transferred on 11 th April, 2012 and 24th

March, 2012 from an account opened by defendant no.1 in the name of the

deceased;

(d) to direct defendant no.1 and one Amoha Traders Pvt. Ltd. to furnish to the

administrator copies of documents and particulars relating to certain accounts

received by the said company from an account opened by defendant no.1 in the

name of deceased testator with KMBL Account;

(e) a direction to the defendant no.1 and Amoha to pay over to the

administrator a sum of Rs.17,08,147/- received by Amoha from KMBL Account

with interest thereon from 24 th March, 2012 till payment;

(f) to direct defendant no.1 and trustees of one Avabai Hormasji Charitable

Trust and Bai Avabai Hormusji Tata Trust to deliver to the administrator true

copies of documents relating to a sum of Rs.15 lakhs received by Avabai

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 4* AdmReport_1of 2016.odt

Hormasji Charitable Trust on 11th April, 2012 from KMBL Account as also

correspondence relating thereto;

(g) a direction to defendant no.1 and trustees (the Trusts) to pay over to the

administrator a sum of Rs.15 lakhs along with interest thereon; and

(h) a direction to one B. J. Dhoodmal to provide the administrator with details of

bank accounts in the joint names of the deceased and/or late Jamshed Dalal and

the said Dhoodmal including accounts to which amounts have been transferred

from the HSBC account standing in the names of Jamshed, Purvez and

Dhoodmal and defendant no.1.

3. A Supplementary Report has also been filed by the administrator calling

upon defendant no.1 to furnish the present address of one of the Directors of

Amoha and Avabai Hormasji Tata Charity Trust defendant no.1.

4. The facts as they have transpired and which have prompted the

administrator to make this application have been canvassed by the learned

Senior Advocate appearing on behalf of the plaintiffs and by the Administrator.

It was submitted on behalf of the plaintiffs that the administrator had made

numerous attempts to compile all the facts relating to the affairs of the deceased

and the suspected diversion of part of the estate by certain personal entities. It is

submitted by Mr. Khambata that the plaintiffs have learnt that the funds of the

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 5* AdmReport_1of 2016.odt

estate have been diverted inter alia to one Amoha Traders Pvt. Ltd. (Amoha) and

one Bai Avabai Hormusji Tata Trust for Charitable Objects (the Trust).

5. It is the case of the applicant that Amoha along with one Jamsheed

Minocher Panday have conspired with defendant no.1 to siphon funds from

the estate of the deceased. In the course of hearing of this Report, numerous

orders have been passed by this Court leading to disclosures from time to time.

It is contended that these disclosures prima facie reveal that the siphoning of

monies probably involved other persons/entities such as one Safe Securities

Services, Sarvashri Dady Lam, Jamshed Panday, Asfandiar Daroowalla who are

suspected of playing a systematic fraud on the Court appointed administrator

and the plaintiff. Mr. Khambata submitted that defendant no.1 had opened an

account with Kotak Mahindra Bank in the name of deceased but failed to

provide bank statements and the account opening form. The administrator

procured these and then learnt that another account had been opened by the

defendant in Yes Bank. The account in Yes Bank had not been disclosed earlier

although the defendant no.1 was duty bound to disclose it. The said Panday is

said to be married to Feroza, a cousin of the defendant no.1. Although Mr.

Panday's real name is Jamsheed Minocher Panday, he described differently at

various places such as Jimmy Pandey, Jimmy Panday, J. M. Panday etc. The

plaintiffs believed that he is the architect of the conspiracy.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 :::

6* AdmReport_1of 2016.odt

6. Upon scrutiny of the account of the estate held in Kotak Mahindra Bank,

the administrator found that a sum of Rs.15 lakhs was paid to the Trust. It was

claimed to be a donation by defendant no.1. The name of the trust has been

described differently at different stages. It was initially said to have been called

"Bai Avabai Hormusjee Charitable Trust." The defendant no.1 claimed that the

trust was set up by the industrialist Naval Tata in the year 1954 in memory of

his mother and that donations to the trust would qualify for exemption under

section 80G of the Income Tax Act. The trust was allegedly used to siphon

away funds from the estate. According to the plaintiffs and the administrator,

funds transferred to the trust are required to be returned with interest and in

this respect, prayer clause (g) of the administrator's report seeks such relief.

The donation is said to have been made by defendant no.1 to the trust but this is

in violation of terms of the 2011 Will because the 2011 Will provides for

utilizing the estate funds for meeting other expenses other than for obsequies

and income tax and other liabilities only after obtaining probate.

7. Mr. Khambata therefore submitted that the estate could not have been

made the donation to the trust. In this behalf, it is submitted that upon enquiry

made as a result of numerous orders passed by the Court, the actual name of

the trust was found to be "Bai Avabai Hormusji Tata Trust for Charitable

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 7* AdmReport_1of 2016.odt

Objects" and not Avabai Hormasjee Tata Charity Trust. This is attributed to

attempts by the defendant no.1 to create confusion in order to prevent names of

trustees from being revealed. Mr.Khambata submitted that several documents

in relation to the trust have not yet been provided and are unlikely to be

provided unless this Court orders an investigation. The documents remaining

to be disclosed by defendant no.1 are stated to include the following:

(i) Application seeking addition of Jamsheed Panday as trustee;

(ii) Change Report and Application for change of address to 2B, Hamam House,

Change Report Application and an order to add the name of Sudhakar Pai as

trustee;

(iii) Certificate under Section 80G of the Income Tax Act;

(iv) Accounts of the trust prior to 2008;

(v) Certificate under Section 12A dated 25 th September, 2012 and connected

papers and the statement which refers to the name of trustee in an order dated

28th August, 2017 passed by this Court.

According to Mr. Khambata these are documents which find reference in the

records and there may be other documents, existence of which is not apparent

today. The plaintiffs have also contended that the defendant has engaged in

fabrication of documents and an attempt to mislead the Court that in the

affidavit in reply dated 14th July, 2017 in response to the administrator's report,

the defendant no.1 contended that the trust was set up as a public charitable

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 8* AdmReport_1of 2016.odt

trust by Mr. Naval Tata. According to the plaintiffs, defendant no.1 had made

false statements. The documents revealed that the declaration of trust is dated

3rd March, 1943 and although the trust contained reference to the name Tata it

was not set up by Naval Tata and Avabai Tata was not the mother of Naval Tata

as incorrectly contended by defendant no.1 who has tried to pass off the trust as

being associated with the well known house of Tatas. Defendant no.1 has

omitted to deal with documents annexed by the plaintiff which disprove the

origins of the trust as projected by defendant no.1,

8. Mr. Khambata submitted that Dady Lam who claims to be a trustee of

the trust had also made a false statement on oath that the trust is a public

charitable trust created by Naval Tata. This was false to his own knowledge

since in an affidavit of October 2011 the said Lam himself states that the

declaration of the trust is the document creating and governing the affairs of

the trust. He affirms the date of formation of the trust as 3 rd March, 1943. In a

letter dated 10th November, 2016 addressed by Mr. Lam to the Administrator he

had referred to the trust deed dated 3 rd March, 1943. The house of Tatas has

denied any connection with the Bai Avabai Trust. In support of this contention

Mr. Khambata invited my attention to the plaintiffs affidavit dated 17 th January,

2017. It is therefore submitted that the receipt relied upon by defendant no.1 is

not genuine and the defendant no.1 along with trustees have sought to exploit

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 9* AdmReport_1of 2016.odt

the trust for their own benefit and deliberately, by creating a letterhead bearing

the wrong name of the trust. Such a letterhead was allegedly created for the

purpose of this litigation. Mr. Khambata submitted that the trustees of the said

trust have withheld details and documents from this Court for deliberately

causing confusion as to their correct name till they were compelled to disclose

the same by the Court. Furthermore, in the letter dated 10 th November, 2016,

Mr. Lam had described the trust incorrectly and also stated that the trust had

applied for a change of address to 2B Hamam Street, Ambalal Doshi Marg, Fort,

without specifying the name of the building.

9. It is further submitted that on or about 7 th October, 2016 the trustees

submitted 828 pages said to be documents in support of their contention that

the monies had been utilized by the trust for charity. Only a few of these, about

12 in number, were relatable to the trust. Some of these documents are said to

have the name of the trust inserted by hand. Some pertain to persons of various

communities and considering that the trust was meant only for the benefit of

parsis and the fact that the trustees themselves had reiterated this aspect, the

transactions were suspect. The trustees did not produce receipts from the

purported beneficiaries. In this respect reference is made to correspondence

with the banks. The so called certificate under Section 80G of the Income Tax

Act has still not been disclosed although defendant no.1 continues to contend

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 10* AdmReport_1of 2016.odt

that the donations, made to the trust were entitled for tax benefits. The trust

was compelled by this Court to disclose their bank accounts which revealed

payments made to defendant no.1. It is now sought to be contended that the

amounts were being returned to defendant no.1. Some of the amounts are said

to be paid for medical treatment of one Mr. Waghmare who is obviously not

from the Parsi community. The name of the trustees were also suppressed and

it is only after the challenge in the Supreme Court was rejected that these

names were forthcoming. Till then the names of the trustees were suppressed.

It is submitted that the trust had stopped since functioning by 2008 and since

the relevant Will was to be executed in 2011 the trust was sought to be revived.

10. Mr. Khambata submitted that several events establish that the trust was

sought to be revived for the purpose of fraudulent activities. In October 2011

Mr. Lam, the trustee affirmed an affidavit in support of his change report to add

the name of Mr. Paowalla formerly the Director of Amoha Traders and the wife

and son of Jamsheed Panday as trustees. In November 2011, the said Mr. Lam

filed the change report to add Jamsheed Panday as well as a trustee. On 23 rd

November, 2011 Mr. Lam applied to the office of the Charity Commissioner to

file audited accounts of the Bai Avabai Trust from 2009. On 28 th January, 2012

a resolution was purportedly passed to authorise Mr. Lam to apply for a

duplicate registration certificate of the trust. The resolution did not mention

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:18 ::: 11* AdmReport_1of 2016.odt

the then office bearers. In the application made the name of the trust is wrongly

mentioned and on 11th April, 2012 a donation is said to have been made to the

trust from the funds of the estate and the cheque was encashed.

11. Thus, Mr. Khambata submitted that the trust was sought to be activated

only the for purposes of siphoning away the funds of the estate. The defendant

no.1 and the trustees have fabricated and used false evidence by creating a

letterhead of a non-existent trust for the purposes of the litigation and in an

attempt to make it difficult to trace the whereabouts of the Trust. Mr.Khambata

further submitted that although the Trust is sought to be represented by

Advocates, it cannot because the trust is not a legal entity and therefore the

trustees are put to notice that they cannot hereafter contend that they were not

represented. The matter has nevertheless been contested on behalf of the said

Mr. Lam and others despite being put to notice of this fact.

12. As far as Amoha Traders is concerned, it is submitted that the bank

statement of Kotak Mahindra reveals that the defendant no.1 had paid a sum of

Rs.17,08,147/- to Amoha on or around 24 th March, 2012 when the estate was

in medio. The telephone no.022-30281941 given to the Bank by defendant

no.1 was also used by Amoha Traders and was registered in the name of the

said Panday. The email-id provided by defendant no.1 was also that of Amoha

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 12* AdmReport_1of 2016.odt

and the mobile number given on by defendant no.1 is that of Darayus Paowalla

who was Director of Amoha Traders. The said Paowalla is also a trustee of the

Bai Avabai Trust. The Account Opening Form reveals, that defendant no.1 had

instructed the bank to provide daily balance updates to the aforesaid email-id

and mobile number although he is claiming to be executor of the 2011 Will.

Mr.Khambata submitted that in his affidavit dated 24 th April, 2018 defendant

no.1 had stated that Amoha had acted as the introducer of the bank account

and that he was not operating any email account. He further contended that he

had provided to the bank his contact details as that of Amoha since Amoha

maintained a running office and communications could be received from the

bank.

13. Mr. Khambata further submitted that so called loans amounting to

Rs.27,92,147/- were given by Amoha, despite the contest to the Will, to meet its

expenses of the estate through a nominated entity. Mr. Daroowala is said to be

involved in the grant of the alleged loan although he shown to be a minor

shareholder of Amoha. Although it is contended that defendant no.1 had repaid

a sum of Rs.17,08,147/- on behalf of the estate it would still leave a sum of

Rs.10,84,000/- due, Amoha had not claimed this amount despite filing of the

affidavits and had avoided service of letters issued by the administrator. Mr.

Khambata submitted that the reason for Amoha not asserting its claim is

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 13* AdmReport_1of 2016.odt

obviously because these amounts were not shown as loans or advances in its

balance sheets. It is further submitted that the repayment of such funds in itself

would constitute evidence of siphoning of funds since the 2011 Will did not

permit taking of loans. It is submitted that Amoha is liable to return the

amounts received from defendant no.1. Defendant no.1 is liable personally

since Amoha was not a creditor of the estate. This conduct has to be viewed in

the light of the fact that the estate was in medio at all material times and in this

view of the matter both Amoha and defendant no.1 are jointly and severally

liable to repay the amount. I may observe here that although I have heard the

learned counsel appearing for the defendants and the respondents including

Amoha at no time was any offer made to "repay" the said sum of

Rs.10,84,000/-.

14. Mr. Khambata further submitted that Amoha was a loss making

company and it owes Rs.2.68 crores to a company known as Kratos Energy and

Infrastructure and the loss is reflected in balance sheet of Amoha. For the

period 2011-12, 2012-13 and 2013-14 the average loss was 4.60 lakhs across

these years. The balance sheets do not reflect any loans or advances given to

any party and the only loan shown in the Directors report of Amoha is to one

Vaseem Kapadia and Jaya S. Pai wife of Sudhakar Pai trustee of the Bai Avabai

Trust and a friend and business associate of the said Panday. This is clearly

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 14* AdmReport_1of 2016.odt

indicative of the fact that defendant no.1 had made a wrong statement on oath

to the effect that loans were given by Amoha to the estate to the extent of

Rs.27,92,147/-. Referring to documents relied upon by Amoha in the affidavit

dated 7th August, 2017, Mr. Khambata submitted that cash payments of

Rs.11,09,976/- were made to Safe Security Services and a total sum of

Rs.17,08,147/- is said to have been paid by Amoha on behalf of the estate.

Surprisingly, these amounts paid on different dates were not paid in cash and

all within a period of less than 3 months i.e. between 9 th December, 2011 and

5th March, 2012. Cancellations were made on invoices of professional fees paid

to reflect the name of "PBD matter" which are the initials of the testator. Probate

fees of Rs.2000/- was allowed to be paid for the probate petition and

Rs.75,027.50 as probate court fees. This amount shown in particulars of invoice

had been blacked out and the words "Printing and Stationery" have been

inserted. Legal fees paid do not appear to be connected with the estate. A

Chartered Accountant has certified as Amoha had incurred Rs.17,08,147/- on

behalf of the estate and had received reimbursement thereof. The certificate is

issued on the basis of alleged "verification of books and information and

explanation provided by the representative of the company" but the name of

the representative is conspicuous by its absence. The information and

explanations referred to by the Chartered Accountant has also not been

disclosed in the affidavits filed by Amoha.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 :::

15* AdmReport_1of 2016.odt

15. Mr. Khambata submits that Amoha is owned and controlled by said

Panday who along with his wife and nominees hold stakes in companies known

as Great Western Finance and Leasing Ltd. and Lakshmi Vijayam Investments

Pvt. Ltd. and owned about 75% issued shares of Amoha Traders. The fact that

Paowalla acts as an authorised representative is admitted by him in an order

passed by the Securities Exchange Board of India and forming part of the

plaintiffs affidavit dated 12 th October, 2017. Mr.Khambata submitted that

within a fortnight of the demise of the testator, the said Panday has signed as a

witness in a purported letter of possession dated 21 st December, 2011 by which

defendant no.1 is believed to have handed over possession of flat no.8 in Al

Karim building to one Vaseem Kapadia. That transaction has been held by this

Court to be illegal. The fact that the said Panday was attending to matters of

the estate was evident from the letters dated 18 th January, 2012 and 2nd

February, 2012 disclosed at Exhibit UU page 1006 of the affidavit dated 7 th

August, 2017 filed by Amoha. These letters were addressed by Mr. Panday

himself and not at the request of defendant no.1. Mr. Khambata stated that the

said Panday and Amoha were receiving updates from Kotak Mahindra on a

daily basis.

16. On 15th March, 2012 defendant no.1 is stated to have made an inventory

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 16* AdmReport_1of 2016.odt

at the residence of the deceased. Panday along with Dhoodhmal and Irfan

Khan were present. Panday is believed to have acted for the estate even in

September 2014 viz. even after the injunction order and the appointment of the

administrator. This according to Mr. Khambata appears from the letter dated

22nd June, 2015 addressed to the administrator by one Rohit Shinde a person

who said to be a tenant of a bungalow belonging to the estate of the deceased

named "Lovedale". The telephone number provided in the said communication

is standing in the name of Amoha Traders having its office at 31-C, 3 rd floor,

Rajabahadur Mansion, 32 Ambalal Doshi Marg, Fort, Mumbai-4000 001,

which address is also used by El Dorado Guarantee, the promoter of Kratos

Energy (Kratos). Mr. Panday is or has been a Director of El Dorado Guarantee.

There are also references made to one Gheewala in the letter and also the

initials "PG" in numerous documents. "PG" appears to be the said Pervez

Gheewala. The letter bears the caption "Attn: - Mr. Jimmy Pandey RE: - Estate

of Parvez B. Dalal". He submitted that unless Amoha was involved in the

dealings in relation to the estate. It is therefore contended that defendant no.1,

said Panday, Daroowala, Engineer, Gheewala, Safe Security Services and

Vaseem Kapadia and some other persons are acting in conspiracy. The fact that

Vaseem Kapadia is close to Panday and the group is evident from the fact that

Vaseem Kapadia is shown to be owing Amoha Traders a sum of Rs.65 lakhs as

of 1st April, 2015, Rs.56 lakhs as of 31 st March, 2016. The Kapadia named in

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 17* AdmReport_1of 2016.odt

the records of Amoha Traders appears to be the same person who is said to

have bought flat no.8 in Al Karim Manzil for Rs.75 lakhs.

17. It is submitted that the acts of said persons are clearly contemplated

under Section 303 and 304 of the Succession Act and all these persons are

accountable to the estate, to the administrator of this Court. Mr. Khambata

submitted that Amoha's contention that it has not inter-meddled with the estate

because it did not possess any asset of the estate is incorrect since it had taken

money from the estate funds. He submitted that an inter-meddler is any one

who dabbles with the estate of the deceased and that the claim of bills being

raised in the name of Amoha and Amoha paid them directly is sufficient to

constitute Amoha an inter-meddler. In this behalf, Mr. Khambata referred to

the decision of Sudama Devi and Ors. V/s. Jogendra Choudhary and ors .1.

He further submitted that Panday in collusion with others had conspired to

siphon of the estate and interfered with the estate and dealt with it illegally

when the property was in medio and even after this Court had passed the order

of injunction. He submitted that defendant no.1 is closely connected with said

Panday and the companies in question and defendant no.1 had committed

forgery by stating that he had no nexus with Panday or Amoha Traders.

Defendant no.1 is a shareholder of Kratos and Canos Trading. Kratos shares the

same phone number as Amoha Traders which stands in the name of Jimmy

1 AIR 1987 Patna 239(FB)

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 18* AdmReport_1of 2016.odt

Panday. The annual report of Kratos is said to contained reference to establish

that Amoha Traders, Arma Financial and Canos Trading are related parties and

associated companies. Furthermore, the plaintiffs have recently discovered that

Canos Trading Ltd., was used as a means for creating liability in the name of

the estate and to siphon away the estate funds. This is sought to be established

by Mr. Khambata by submitting that defendant no.1 along with three others are

shareholders in Canos Trading hold one percent. Defendant no.1 holds one

percent as a shareholder of Canos along with three others. Amoha Traders is

one of the older shareholders in Canos holding 10%. One Ms. Firozi Patel who

is stated to be the wife of Irfan Khan holds 50% of shares in Amoha and is a

Director in Canos Trading. The balance 39% is said to be held by one Nikhil

Shah. The registered office of Canos Trading is at 2B Hamam House and which

address was used by the trust and which the trustee Mr. Lam proposed as a

new address of the Bai Avabai Trust. Canos Trading also has its correspondence

address at Rajabahaur Mansion address which is also shared by Amoha Traders.

Mr. Khambata states that that in the Directors Report of Canos Trading for the

period ended 31st March, 2015, item no.16 records that during the year the

company advanced a loan of Rs.69,60,577/- to Mr. Purvez Dalal who had

incidentally died in December 2011. Further for the year ended December

2016 a further loan of Rs.47,62,383/- is shown to be given to Purvez Dalal.

The closing balance in the Directors Report of Canos Trading showed an

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 19* AdmReport_1of 2016.odt

amount of Rs.1,17,22,959/- as being due from the deceased testator. The

Directors report for the year ended 31 st March, 2016 is signed by Firozi Patel, a

major shareholder of Canos and wife of Irfan Khan who is said to be a business

associated. The loans have been advanced after the date of demise of the testator

and therefore appeared to have taken in the name of the estate of the deceased

testator. These are dealings well after the defendant no.1 was restrained from

acting as an Executor and also after the appointment of the administrator.

Furthermore, the loan does not appear to be reflected in any of the bank

accounts of the estate disclosed to the administrator or to the Court and the

defendant no.1 who would have been recipient of the Director's Report would

certainly have been aware that loans were shown in the name of the deceased

testator. It is submitted by Mr. Khambata that these facts have now been

discovered upon a search being carried out by the plaintiffs and none of these

aspects have been denied by the defendant no.1 or the respondents or dealt

with while making submissions.

18. Mr.Khambata submitted that in the plaintiffs affidavit dated 17 th

January, 2017 it was pointed out that defendant no.1 was a shareholder of

Canos and had filed an affidavit in reply dated 24 th April, 2018 wherein, while

dealing with paragraph 44 defendant no.1 contended that he was not aware of

the contents and hence did not comment upon the same. Defendant no.1 had

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 20* AdmReport_1of 2016.odt

filed an affidavit dated 19 th June, 2018 in which he has admitted that he holds

shares in Canos and that he had received Rs.1,17,22,959/- who claims to have

received as a personal loan and has attempted to explain away the Director's

Report as "incorrect" and an "error" relying upon the purported Chartered

Accountants certificate. No explanation is forthcoming as to how Canos would

have learnt of the testator and how such an error could have been made by the

company and its auditor in its Director's Report. It is submitted that J.C. Desai &

Co. which has issued the certificate is the statutory auditor for Canos and also

the chartered accountant from whom the certificate was obtained regarding the

sum of Rs.17,08,147/- said to have been spent by Amoha which amounts have

been given by defendant no.1 out of the funds of the estate. Incidentally the

certificate issued by J. C. Desai & Co. is issued upon verification of books of

accounts and other relevant records as produced before the Chartered

Accountants by Canos Trading and on the basis of verification and explanation

provided by the company. No documents which are said to have been verified

have been referred to. It was further submitted that defendant no.1 has stated

that he has annual income of Rs.5 to 10 lakhs in his affidavit dated 17 th

January, 2017 and it is inconceivable that Canos could give a loan of Rs.1.17

crores to defendant no.1 who admittedly was a man of moderate means of

which this makes it obvious that defendant no.1 was creating liabilities in the

name of late testator and siphoning the amounts in cahoots with others even

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 21* AdmReport_1of 2016.odt

when the property is custodia legis.

19. Apropos the connection between defendant no.1, the said Panday and

his various companies under his control and the trust, Mr. Khambata pointed

out that 2B Hamam House, Hamam Street has been the office of Amoha Traders,

Jamsheed Panday, Canos Trading, El Dorado Guarantee, Lakshmi Vijayam

Investments, Great Western Finance and the trust also had its office at the same

place. He has taken me through the various affidavits from which these facts

emerge. Panday is also Director of Lakshmi Vijayam Investments, Great

Western Finance and along with his wife they have 75% shareholding in

Amoha. Panday and his wife are the promoters of Amoha, looking after its day

to day affairs. Amoha had also its office at 31-C, Raja Bahadur Mansion,

Ambalal Doshi Marg. The telephone number 30281941 is common to Amoha

Traders and Jamsheed Panday and is also provided by defendant no.1 at the

Kotak Mahindra Bank. The telephone number 66341941 is common to Canos

Trading and El Dorado Guarantee, and the telephone number 22642264 is

common to Amoha Traders and Jamsheed Panday and El Dorado Guarantee.

Another common link is the email id which bears the prefix

"ppmd59@hotmail.com" is used by Amoha, Canos, Arma, Allanzers Securities,

El Dorado Residences and Alpic BBK Finance Ltd. which is since in liquidation.

The email address "ppmd59@gmail.com" is thus used by Arma, El Dorado

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 22* AdmReport_1of 2016.odt

Securities, Pirojsha Consultants, El Dorado Guarantee, Great Oaks Holdings,

Lakshmi Vijayam Investments and Great Western Finance and Leasing. These

facts have been gathered from the plaintiffs affidavit dated 16 th May, 2018.

The Defendant no.1 or the others have not disputed these statements in the

plaintiffs affidavit.

20. Mr. Khambata submitted that the denials in the affidavits filed on

behalf of the Amoha to the Administrator Report contained vague and evasive

denials and only in the affidavit dated 8 th May, 2018 few of the allegations

have been briefly dealt with on merits and there is little or no denial. Mr.

Khambata submitted that an evasive denial or a failure to deny constitutes an

admission. He relied upon the decision of the Supreme Court in the case of

Jaspal Kaur Cheema v/s.Industrial Trade Links 2 and Express Newspapers

Pvt. Ltd. V/s. Union of India and others 3 in this respect. It is submitted that

Panday was also accused in the RBF Nidhi Scam noticed by a Division Bench of

the Madras High Court. He is also said to be accused of conspiracy to cheat

Canara Bank through Great Western Industries Ltd. which has found mention

in proceeding before the Karnataka High Court. He invited my attention to the

relevant pages of the compilation to indicate the involvement of Panday by

reference to the orders of the Madras High Court and orders dated 7 th July,

2014 and 26th October, 2015. Mr. Khambata took me through the said orders.

These orders refer to the said Panday described as "Jimmy Panday" and it 2 (2017) 8 SCC 592 3 (1986) 1 SCC 133

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 23* AdmReport_1of 2016.odt

appears that Panday was adjudicated insolvent is reflected in order dated 3rd

February, 2009 of the Madras High Court.

21. Mr. Khambata also submitted that Kotak Mahindra Bank in its account

statement shows large sums of money having which spent by the defendant

no.1 all of which appear to be the sums of money siphoned away from the

estate through the conduits of Amoha Traders, Safe Security Services and Bai

Avabai Trust. Mr. Khambata also submitted that the Succession Act does not

permit the executor to borrow money and there was no justification in the

defendant no.1 binding the estate by borrowing funds. Furthermore, he had no

power or right to act as executor either to borrow or to donate funds. The

donation to trust and the repayment to Amoha and other monies said to have

been paid to Safe Security Services and legal fees were liable to be paid over to

the administrator and the fact justify an order of investigation. Mr. Khambata

submitted that defendant no.1 and his associates have inter-meddled with the

estate and continued to do so. They have resisted the attempts of the

administrator and therefore the Court to discover the estate in its entirety and

that the Court had given opportunities to the defendant no.1 to make further

disclosures of the estate assets and dealings vide its order dated 21 st June, 2012,

9th June, 2015 and 29th June, 2015 despite which the defendant no.1 had failed

to comply. The orders for discovery were made by a Single Judge of this Court

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 24* AdmReport_1of 2016.odt

on 24th December, 2013 and by the Division Bench on 8 th August, 2014. The

findings of contempt included conduct in not disclosing the assets of the estate

and merely because an appeal against the order providing for his imprisonment

was pending does not prevent compliance with the order. In this behalf, Mr.

Khambata referred to the judgment of the Supreme Court in State of Uttar

Pradesh v/s. Mohd. Noor 4. He further submitted that the appeal Court had not

stayed the judgment holding the defendant no.1 in contempt but has merely

suspended the sentence. The order of the Division Bench dated 24 th February,

2017 had observed that the plaintiffs have a right to find out if the said trust

was being used as a front to siphon off the estate. Furthermore it is submitted

that attempts made by the administrator from time to time calling for

information and documents is made to which no response was forthcoming as

evident from the administrators report. The administrator is therefore facing

serious difficulties in ascertaining the information to the extent of the estate.

Apart from the matter siphoning away of the estate funds, third parties have

continued to exploit and interfere with the estate when it is in medio and have

indulged in fabrication of documents and that the administrator is not been

able to discover and recover the assets without the assistance of this Court.

22. In any event, Mr. Khambata submitted that it must be borne in mind

that defendant no.1 cannot be permitted to retain the fruits of his contemptuous

4 AIR 1958 SC 86

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 25* AdmReport_1of 2016.odt

act and was also the third party is concerned who were involved in the

conspiracy. In this behalf, he relied upon the decision of All Bengal Excise

Licensees Association v/s. Raghabendra Singh and others 5 and submitted

that defendant no.1 was also receiving amounts in cash on behalf of the estate

but has failed to deposit the same in the bank account that there was apparently

one or more accounts that had been opened in the name of estate and not

disclosed which aspect has been dealt with in an order dated 9 th January, 2017

passed in Testamentary Suit no.29 of 2012 in Testamentary Petition no.341 of

2012. It must be ascertained whether any amounts of the estate have been

deposited into personal bank account of defendant no.1 or that of his associates

Panday and others. It is not understood why Canos Trading would consent for

giving loans to the testator after his demise. It is necessary to consider these

aspects.

23. Revival of the Bai Avabai Trust and fabrication of letter heads and

receipts leads one to believe that the trust is being used for the purposes of

receiving kick backs and the true nature of the trust has to be ascertained.

There are immovable properties in Manmad, Bachav and Nasik some of them

having machinery. There are also hotel properties in Andheri and Vile Parle.

There are government securities forming part of the estate. Defendant no.1 has

been collecting cash amounts on behalf of the estate and not depositing it in the

5 (2007) 11 SCC 374

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 26* AdmReport_1of 2016.odt

estate account. On the other hand, the enquiries must be made whether the

defendant no.1 is depositing cash and other collection in this personal account

which ought to have been part of the estate account especially since he has

suppressed bank accounts. The role of the other persons such as defendant no.1,

Panday, Aspi Daroowala, Vaseem Kapadia, Gev Engineer, Irfan Khan, Firozi

Patel, Pervez Gheewala, Dady Lam when the estate is in medio would in my

view require for a court monitored enquiry.

24. Mr. Khambata therefore submitted that a Court may invoke power under

Section 340 of the Cr.P.C. since finding is disclosed are inter alia under Sections

191, 192, 196, 199 and 200 of the Indian Penal Code and punishable under

Section 193. Other violations include all statements being punishable under

Section 209 forgery under Section 463, 464, 471 as also section 467 there

being a conspiracy that has been purported by the alleged conspirators. He

relied upon the decision in the case of R.K.Dalmia v/s. Delhi Administration 6

and that the defendant no.1 with the assistance of the alleged conspirators

committed contempt of Court. The identities and the roles if any played by

these persons requires to be looked into. He submitted that defendant no.1 and

the respondents cannot question the power of Court to consider the relief

sought. Their contention is that the testamentary Court's jurisdiction can not

be invoked to grant reliefs for refund of monies and that refund of monies, if

6 AIR 1962 SCC 1821

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 27* AdmReport_1of 2016.odt

any, can only be sought in appropriate proceedings when defendant no.1

would have fullest opportunity to defend the case. He submitted that although

whilst granting or refusing probate, the Court does not concern itself with the

title to or existence of the property bequeathed, the testamentary Court

continues to be the High Court with all its jurisdictions and authority and

powers since the Court would be enforcing of its order dated 21 st June, 2012

and other orders for disclosure. In view of the fact that the disclosure is clearly

not forthcoming, the defence on behalf of the Amoha and trustees and

defendant no.1 is only to the effect that the testamentary Court has limited

powers in a probate proceeding, this cannot be expanded. In this behalf, Mr.

Khambata submitted that inJyoti Bhushan Gupta v/s.The Banaras Bank Ltd .7

the powers of the High Court are held to be undiminished and in exercising its

jurisdiction in the manner and in terms of the assistance now sought from the

Court would not involve exercise of any special jurisdiction under Article 215

of the Constitution. Every High Court as a court of record has power to punish

the contempt of itself. The inherent powers of Court are unlimited and set out

in Pritam Pal v/s. High Court of Madhya Pradesh through Registra r8. It is

observed that the powers of the High Court under Section 215 cannot be

restricted or trammeled upon by any ordinary legislation and that the inherent

power of the High Court are elastic, unfettered and not subjected to any limit.

7 1962 AIR 403 8 1993 Suppl. 1 SCC 529

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 28* AdmReport_1of 2016.odt

He further submitted that in H.P.S. Chawla v/s. N.P.S. Chawla 9the Delhi High

Court has observed that even while sitting in its testamentary jurisdiction and

in the absence of statutory prohibition the High Court does not cease to be a

court of equity. Steps must be taken to ascertain the extent of inter-meddling

by the conspirators including defendant no.1. He relied upon Maria

Margarida Sequeira Fernandes v/s. Erasmo Jack De Sequeira 10 which held

that courts use power under Section 30 of CPC frequently and such exercise of

powers were justified especially in view of the assertion by Mr. Lam in his

affidavit dated 4th June, 2018 to the effect that he cannot be directed to produce

the books of account of trust. Every Civil Court has powers to summon

strangers as witnesses to give evidence as well as produce documents under

Section 30(b) and Order 16 Rule 14 of the C.P.C. and administrator is similarly

placed as a receiver is. As held in Pandurang Shamrao Laud v/s. Dwarkadas

Kalliandas 11 even in a case of a receiver where third party claims are involved

the merits of the case can considered by the Court and cannot be rejected

summarily. He relied upon Prabodh N. Shah v/s. State Bank of India 12. Mr.

Khambata submitted that although the Court may feel that the administrator

required to file appropriate proceedings to recover amounts that can only

depend on the pleadings and proof placed before the Court and this is observed

9 AIR 2006 Del 53 10 2011 (5) SCC 370 11 1933) 35 BLR 700 12 AIR 2003 SCC 3637

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 29* AdmReport_1of 2016.odt

by the Supreme Court in Anthoney C Leo v/s. Nandlal Balkrishnan & Ors. 13 and

Usha Harshadkumar Dalal v/s. ORG Systems & Ors. 14 He submitted that

summary proceedings did not diminish the power of the Court and even

complicated questions can be considered as observed by the Supreme Court in

Mohan Lal v/s. Kartar Singh 15 and Sanjeev Kumar Mittal v/s. The State 16.

This aspect has been considered at length and that Court monitoring

investigation was justified prior to launching the complaint under Section 340

of Cr.P.C. In the matter of ordering an investigation, it was submitted that a

high ranking officer may conduct the investigation as considered in the case of

Vijay Enterprises v/s. Gopinath Mahade Koli and others 17 as also Sita

Ram v/s. Balbir alias Bali 18 (**). Reference was also invited to the decision of

the Supreme Court in the case of Pritish v/s. The State of Maharashtra 19

which was followed in Union of India v/s. Haresh Virumal Milani 20

holding that proceeding are to be initiated or even to give notice to the person

against whom proceedings are to be initiated. It is also held that the Civil Court

has the power to call witnesses and exercise power under Section 311 of the

Cr.P.C. similar to Section 30(b) and Order 16 Rule 14 of the C.P.C. and that this

Court has held that proceedings for applications under Section 340 of the

13 1996) 11 SCC 376 14 2001 SCC 742 15 1995 Suppl.(4) SCC 684 16 174 DLT 214 17 2006(4) BCR 701 18 2017 (2) SCC 456 19 (2002) 1 SCC 253 20 2017 (4) Mh. L.J. 441

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 30* AdmReport_1of 2016.odt

Cr.P.C. are independent and that for such proceedings. The power under the

Code of Criminal Procedure can be enjoyed by the Civil Court. An SLP filed

from this judgment is stated to have been withdrawn as recorded in an order

dated 18th September, 2016. It is the contention of the plaintiffs that the High

Court always can order an investigation under its plenary and inherent powers

and the Court is in any event does not lack the power to order of investigation

in its testamentary jurisdiction or on the administrator's report, the jurisdiction

and powers of the Court are unaltered.

25. Mr. Khambata also relied on the following judgments:

1) M.V. Elisabeth and others v/s. Harwan Investment and Trading Pvt. Ltd.;

2) Sudhirendra Nath Mitter v/s. Arunendra Nath Mitter and others

3) S. K. Gupta and another v/s. K.P. Jain and another ;

26. In M.V. Elisabeth (supra), the Court was considering the

competence of the appropriate Indian Court to deal in accordance with the

general principles of maritime law with things and persons within their

jurisdiction. The Supreme Court held that the power is plenary and unlimited

unless it is curtailed by express or necessary implication in the words of the

Supreme Court "absent such curtailment of jurisdiction, all remedies which are

available to the Courts to administer justice are available to a claimant against a

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 31* AdmReport_1of 2016.odt

foreign-ship and its owner found within the jurisdiction of the High Court

concerned". The Supreme Court went on to hold that the High Court in India

are superior courts of record. They have original and appellate jurisdiction and

inherent and plenary powers and unless expressly or impliedly barred and

subject to the appellate and discretionary jurisdiction of the Court. The High

Courts have unlimited jurisdiction including to determine their own powers.

27. In Sudhirendra Nath Mitter (supra) the Calcutta High Court observed

that where upon a death of person there is a litigation in the probate Court

touching the executorship to the deceased and since during the context none

can act as executor. The probate court may grant administration to another

pending the suit. The administrator may collect the effects sue, if necessary

since it is the part of his office to recover and get the debts of the deceased. The

Calcutta High Court followed the judgment in Bellew v. Bellew (1865-4 Sw &

Tr 58) to the effect that the probate court may grant administration of the estate

pendente lite and that the Court of Chancery would appoint a receiver when

the property was in medio. That the estate being in the enjoyment of no one,

it is in the common interest of all parties that the Court should prevent a

scramble and in such situations receivers are appointed and the charges are

made against the executor named in the Will. The Executor who is mixed up in

the case as executor should not be appointed the Administrator pendente lite]

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 32* AdmReport_1of 2016.odt

28. In S. K. Gupta (supra), the Supreme Court was considering a case of a

company in an action under Section 392(2) of the Companies Act and while

dealing with the case it observed that the Court can act suo moto and it is

immaterial as to who drew the attention of the Court to a situation which

necessitated the Court's intervention to exercise the powers conferred on a

Court to take action. The Court may decline to act at the instance of a busy

body but if the action proposed is justified, valid and legal, the Court can

proceed to take action and the capacity or credentials of the person who

brought the situation about which called for the court's intervention is not

relevant and would not invalidate the action on that ground.

Submissions of Mr.Thacker for Defendant No.1.

29. On behalf of defendant no.1 Mr. Thacker learned counsel referred to the

background of the dispute and contended that the Will propounded by the

defendant no.1 provided that the estate was to enure for charitable purpose.

He submitted that particulars of donation paid vide letter dated 10 th April, 2012

was sent to the Administrator and vide disclosure letter dated 7 th October, 2016

copy of which is to be found at page 365 Exhibit-T.

30. The first submission of Mr. Thacker is that there is no lis between the

administrator and defendant no.1 as on date and therefore the plaintiff cannot

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 33* AdmReport_1of 2016.odt

seek any relief in the Administrator's Report. A suit would have to be filed. The

plaintiff was entitled to file his own proceeding and so was the administrator.

No relief can be sought by means of this report.

31. Secondly, he submitted that even assuming the plaintiff can seek relief,

the relief sought would have to be within the scope of the probate proceedings

which were parent proceeding in relation to the Will. He submitted that the

relief apropos investigation is beyond the scope of parent proceeding and

therefore cannot be sought on the basis of an administrator's report, if at all it

can be sought only in a suit for administration of the estate.

32. Thirdly, he submitted that the machinery of the state cannot be utilised to

fish out evidence. He submitted for example, if a money suit were to be filed,

the plaintiff would have to establish fraud on own and not by reference to the

State machinery. In the instant case he submitted that the plaintiff is not

remedy-less. By virtue of section 192 which is only available to beneficiary

under the Succession Act, a complete code in itself, but it does not provide for

such relief to be granted. Section 192 gives them right to apply but not absolute

right and there are limitation.

33. Section 193 has three prerequisites. Firstly an examination on oath, a

further inquiry and person in possession must have no legal title. He invited

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 34* AdmReport_1of 2016.odt

my attention to the statement of objects and reasons in Succession Act. He

submitted that section 193 applies to both movable and immovable properties

and there is no prejudice caused to the plaintiff if the relief sought are declined.

Mr. Thacker then submitted considering the provision of section 208 and 209

that the application is premature considering the summary provisions till a

final view is taken, today it is time barred due to section 205 in which the six

months period commence in 2014 when the Kotak Mahindra Bank amount

was received, the present application is filed only in the year 2016 and that the

plaintiff has not been diligent.

34. Furthermore the plaintiff is seeking independent relief beyond the scope

of Chapter VII of Part IX. He made reference to the Act 90 of 1841 which was

an act for protection of movable and immovable property against wrongful

possession in cases of succession and referred to provisions of that Act. In

support of his contention that persons claiming rights in property of deceased

person were required to apply to Judge of Civil Court, agents and Court of

Wards. He submitted that even that on appointment for curator may conduct

the suit on behalf of the State. He submitted that even that did not contemplate

the Court directing the use of State machinery. He therefore submitted that the

plaintiff cannot hijack the administrators report and seek relief there under. He

made specific reference to section 208. He submitted section 208 contemplated

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 35* AdmReport_1of 2016.odt

that there was no impediment in bringing the suit hitherto by the party on

whose behalf an application is rejected before or after summoning the party in

possession or by the party who may have been evicted from possession under

part VII of the Act. Likewise the decision of the District Judge in summary

proceeding under part VII shall have no effect other than settling the actual

position, but such decision will be final and is not subject to appeal or review.

These two sections are to be read with conjunction to section 207 which

provides for possession by Court of Ward of any property and in the light of

these provisions of section 207 that section 208 and 209 met reliefs.

35. Part VII deals with protection of property of the deceased and largely

based on the 1841 Act to which my attention has been drawn. According to

Mr. Thakker, save and except for Part VII of the Succession Act, no other

provisions can be invoked. Inviting my attention to provisions of section 269 of

the Act, he submitted that the Court may only appoint an officer to take and

keep possession of the property. He submitted that the relief sought cannot be

granted since the power under the section stands exhausted, once an

administrator is appointed. He submitted that this section 269 has no

application and that the decision in Rupali Mehta v/s Tina Narinder Sain

Mehta AIR 2007 Bom 62 would apply. He submitted that the only question

to be considered is whether the Court has inherent power under the scheme of

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 36* AdmReport_1of 2016.odt

the Act. The Court cannot assume extension of such inherent power. However,

I do not see how these provisions are relevant for the purpose of considering

reliefs sought in this administrator's report.

36. Mr. Thacker submitted that section 192 and 269 do not apply in the

facts of the case. He submitted that there are no provisions in the original side

rules either. In any case, Mr. Thacker submitted that the only relief that can be

granted was under part VII and under section 269. He submitted with

reference to the Administrator's Report, that all documents were already

disclosed in the contempt petition and they were also provided to the

Administrator on 7th October, 2016. He referred to the letter dated 10 th April,

2015 addressed by the administrator to the then Advocate for defendant no. 1

in response to the letter dated 26 th December, 2014 and 12 th December, 2014

and submitted that copies of all documents received from Kotak Mahindra Bank

were provided. He further submitted that all invoices were also provided and it

is material to note that the administrator has not contended that the documents

or any of them were fabricated. Referring to the chart at page 739 he

submitted that the deceased had no cash, chart was prepared by defendant no. 1

and as executed by defendant no. 1 was authorised to make disbursement. This

was necessary and for the benefit of the estate. Mr.Thacker submitted the

affidavit filed by defendant no. 1 dated 21 st November, 2012 in notice of motion

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 37* AdmReport_1of 2016.odt

no.138 of 2012, all disclosures had been made (see Exhibit 55) and there was

nothing remaining to be provided. Mr.Thacker invited my attention to the

police complaint dated 27th October, 2011 in relation to alleged trespasses at

the premises of and submitted that guards of Safe Security Service were

engaged for that purposes. During the life time of the deceased there was

nothing suspicious about appointment of the security guards. He invited my

attention to the bank statement of HSBC which revealed that sum of Rs.89,416/-

was paid on 2nd November, 2011 to Safe Security Service in Notice of Motion

138 of 2012. He further submitted that monies were borrowed from Amoha

before the order of injunction and property was then vested in defendant no.1

who was duty bound to protect the property. He submitted that upon demise

of the testator the property stood vested and therefore defendant no. 1 was

fully empowered to deal with it.

37. Referring to provision of section 307, 320 and 321 he submitted that the

power of the executor is absolute as far as disposal of property is concerned

subject to the restrictions in sub-section (2) that under section 320 and 321

after payment of final expenses, medical expenses boarding and lodging]

Payment of expenses were also permitted and whether such expenses incurred

in fraudulent manner can only be established at the trial and the Court cannot

direct repayment in the Administrator's Report. He submitted that defendant

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 38* AdmReport_1of 2016.odt

no. 1 was always entitled to assume office as executor and dealt with the estate

and the proceedings now contemplated are premature. Furthermore if probate

is granted to the defendant no.1 all acts of the defendant no. 1 shall stand

validated by virtue of operation of section 227 of the Act which render valid of

premature Acts.

38. Mr. Thacker submitted that the assumption of the office of executor by

defendant no. 1 is permissible in law and the present procedure is alien to the

Succession Act. The fourth submission of Mr.Thacker is that the relief provided

for in the Act have been granted. He submitted that the present application on

behalf of the plaintiff / administrator is at best application under Order 38 Rule

5. He submitted that defendant no. 1 claimed his registered Will. Defendant

no. 1 is propounder of the Will and he is entitled to hold on to the property,

since the prior Will is not a registered Will. Furthermore, he submitted that the

forensic report has revealed that the signature of the testator on the will is

forged. Lastly he submitted that the balance of convenience favours the

defendant no.1. He submitted that the deceased had transactions with various

parties as seen from the Bank statement received from HSBC.

39. Although these aspects has not been pleaded it is evident from the record

it is submitted that the deceased had himself given a loan to Kratos as of 2013.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 :::

39* AdmReport_1of 2016.odt

He submitted that the loan to Kratos was given in 2013. The Directors report

showed that monies had been borrowed. However this is incorrect since it is

clearly an error. He submitted that there are no Government securities to the

knowledge of of Defendant no. 1. The family of deceased did not have any

Government securities and reference to Government securities is only to be

found in the Will of the deceased brother.

40, Mr.Thacker relied upon the following judgments :

1) Mt.Azimunnisa Begum v/s. Sirdar Ali Khan and Others AIR 1927

Bom.387;

2) Bai Panbai vs. Morarji Kanji AIR 1927 Bom.438;

3) Premraj Mundra v/s. Md. Maneck Gazi & Ors. AIR 1951 Cal. 156;

4) Raman Tech & Process Engg. Co. and Anr. V/s. Solanki Traders (2008) 2

SCC 302;

5) FGP Ltd. v/s Saleh Hooseni Doctor and Anr. (2009) 10 SCC 223;

6) Fuerst Day Lawson Ltd. v/s Jinal Exports Ltd. (2011) 8 SCC 333;

7) Chiranjilal Shrilal Goenka (Decd.) Through LRs v/s Jasjit Singh and Ors.

(1993) 2 SCC 507;

8) Ramapati Tewari v/s Dharam Sukh Tewari and Anr. AIR 1986 All 310;

9) HajiMahamadbhai Peerbhai v/s Bai Havabai & Ors. AIR 1924 Bom.507; ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 :::

40* AdmReport_1of 2016.odt

41. In Mt. Azimunnisa Begum (supra) this Court considered a case where the

plaintiff had contended that the Will was ab-initio void, not because it was a

forgery or it was obtained by fraud, coercion or undue influence but because all

the provisions of the will are invalid under the Mahomedan law and therefore

the executor had no power to act or bind the parties. The Court found that in

terms of Section 4 of the Probate and Administration Act all property of the

deceased person were since execute and if the executor abused his powers in

respect of the property, the only remedy can only be a personal remedy.

Outsiders who have dealt with the executor on the faith of the property having

vested in him must be protected and authorities have held that while the

property is vested with the executor although it may be found later that the

properties were wrongly vested as in the case of forged will, all acts of the

executor in respect of such property the bonafide purchasers are concerned

must be regarded as valid.

42. In Bai Panbai (supra) while dealing with the provisions of Section 317

of the Succession Act the Court held that an executor or administrator may be

compelled to exhibit an inventory and render an account of his administration

of the personal estate of the testator. Mr. Thacker had relied upon the said

decision in support of his contention that the intention of the legislature under

Section 317 was that the inventory and accounts filed under that Section are to

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 41* AdmReport_1of 2016.odt

be regarded as final and protection was afforded to parties interested in the

Will to the extent that if the inventory and the accounts are intentionally false,

the executor or administrator makes himself liable to punishment and the

interested parties can file an action against the executor or administrator to

questioning the correctness of the accounts.

43. In Premraj Mundra (supra) Mr. Thacker relied upon the facts which

reveal that while dealing with an application under Order 38 Rule 5 & 6 of the

CPC for furnishing a security the Court culled out the following guiding

principles (1) that an order can be issued under Rule 5 & 6 of Order 38 only if

circumstances contemplated in Order 38 exist and (2) whether such

circumstances exist or not is a question of fact which has to be proved to the

satisfaction of the Act. (3) The Court may not be justified in issuing an order of

attachment before judgment merely because it thinks that no harm will be done

or the defendants would not be prejudiced. (4) Furthermore, the affidavits

supporting such contention of a applicant must not be vague and properly

verified. (5) The affidavit in support must be true to knowledge, information or

belief and it must state which portion is true to knowledge of the person

making the affidavit. (6) The fact that a party is insolvent by itself would not

justify passing of an order of attachment. Mr. Thacker submitted that in view

of these guidelines that found in favour with the Court and if all these

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 42* AdmReport_1of 2016.odt

guidelines are put to used in the present case, the facts would not justify grant

of an order directing investigation. He submitted that the decision of Premraj

Mundra has been approved by the Supreme Court.

44. In the case of Raman Tech (supra) in paragraph 4 & 5, the Supreme

Court had considered the object of Order 38 Rule 5 of the CPC. This is a drastic

and extraordinary power and could not be exercised mechanically or merely

for the asking. It should be used sparingly and strictly in accordance with the

Rule and that the purpose of the provision was not to convert an unsecured

debt into a secured debt.

45. In FGP Limited (supra) reliance was placed on the observations of the

Supreme Court in paragraph 46 and 47 inasmuch as the Supreme Court had

discussed the difference between Section 211 and 213 of the Succession Act.

Under Section 211 the executor or administrator of a deceased person is his

legal representative for all purposes and property of the deceased vests in him

the expression legal representative would have the same meaning given in

Section 2(11) of the Code of Civil Procedure "legal representative" means a

person who in law represents the estate of the deceased and it includes person

who inter-meddles with the estate of the deceased. That vesting of a property is

dealt with in Section 211 and not Section 213 and such vesting does not takes

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 43* AdmReport_1of 2016.odt

place as a result of the probate. On the executors accepting his office, the

property vests on him and the executor derives is title from thwill and becomes

the representative of the deceased even without grant of probate and the

probate only confirms his title.

46. In Fuerst Day Lawson Limited (supra) Mr. Thacker had placed reliance

on paragraph 89 which considered the fact that the Arbitration Act 1940 from

its inception was held to be a self-contained code and if that were so the

Arbitration Act, 1996 which consolidates, amends and design the law relating

to arbitration to be brought in harmony, with the UNCITRAL Model must be

held only to be more so and once it is held that the Act is a self-contained code

and exhaustive, then it must be held to carry with it "a negative import that

only such acts as are mentioned therein are permissible to be done and acts or

things not mentioned therein are not permissible to be done." It was thus

submitted that the Succession Act being a self-contained code the present

exercise which the plaintiffs call upon this Court to enter upon cannot be

undertaken and ought not to be entertained.

47. Relying upon Chiranjilal Shrilal Goenka (supra) Mr. Thacker

reiterated that the probate court does not decide issues of title or existence of

the property and therefore cannot enter upon the controversy in the present

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 44* AdmReport_1of 2016.odt

case and therefore this Court cannot grant relief in the case at hand. He relied

upon paragraph 14 and 15 of the judgment which dealt with Section 273

declares conclusiveness of the probate which are conclusive as to the

representative title against the debtors of the deceased and all persons holding

property which belonging to him and affords indemnity to all debtors and by

operation of Section 211(1) the executor of a deceased person is his legal

representative for all purposes and all the property of the deceased person

vests in him. The judgment also considered the decision of Ishwardeo Narain

Singh (supra) reiterating that the probate court is only concerned with the issue

of the documents to be forward as a last Will in testament.

48. In Ramapati Tewari (supra) Mr. Thacker relied upon the observation

of a single Judge of the Allahabad High Court that the District Judge had not

recorded any finding as to whether any material prejudice would be caused to

the applicant if he invokes the ordinary remedy of the suit and as to whether

the application was bonafide. Both these were condition precedent to the

exercise of power and in the absence of these findings, the judgment of the

District Judge could not be sustained. In that case, an application was filed

under Section 192 of the Succession Act and was allowed by the District Judge.

The applicant Tewari filed a revision application challenging the judgment and

his nephew Girja Prasad Tewari also filed revision against the same judgment

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 45* AdmReport_1of 2016.odt

since both revision applications involved a common question they were decided

by a common judgment. The Court after hearing the revisional petitioners

remanded the matter to the lower Court to re-assess the evidence under Section

193 of the Succession Act was dealt with which require the District Judge to

examine the applicant on oath and make further inquiries that he may think

necessary to ascertain whether there is a sufficient ground to believe that the

party in possession or taking forcible means for seizing possession has no

lawful title and that the application was made bonafide. Finding that the

District Judge has not recorded any finding as to material prejudiced, the

matter came to be remanded.

49. In the case of Haji Mahamadbhai Peerbhai (supra) decided in

November 1923, Mr. Thacker had relied upon the scheme of the 1841 Act

under Section 3, 4 and 5 thereof and held that all proceedings where under

interlocutory depending upon the filing of an application for relief asking the

Court to determine who has a right to possession pending the final

determination of the rights of parties in a regular suit. The Court held that

considering the wide powers given to the Courts to make interlocutory orders

in suits, that an application for relief under the Act could not be entertained

because under Section 3 the Judge has to be satisfied that the applicant is

entitled to the property and is likely to be materially prejudiced and such a

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 46* AdmReport_1of 2016.odt

person could not be said to be materially prejudiced after he has asked to file a

regular suit in which he can seek interlocutory relief. Mr. Thacker therefore

submitted that no case is made out in the facts at hand for any further relief on

the administrators report. Mr. Thacker also relied upon 1841 Act in an attempt

to show that the provisions of the 1925 Act were comparable and therefore the

judgment would be relevant even under the 1925 Act.

50. Mr. Thacker submitted that there was no occasion to order in

investigation into the affairs of the estate by outside agencies. He submitted

that the administrator is fully empowered to take whatever steps are required

under law. He relied upon an affidavit of the defendant no.1 dated 21 st

November, 2012 and the exhibits to the said affidavit on behalf of defendant

no.1 he denied that defendant no.1 was at fault and adopted the contents of the

affidavit to the exception relevant. He submitted that the expenses incurred on

behalf of the estate were necessary expenses and were being paid even earlier

during the lifetime of the deceased. He relied upon Exhibit 10 to the affidavit of

Mr. Sukhadwalla to which recorded that there was a incidence of trespassing in

the flat owned by the deceased. He submitted that the appointment of security

guards was therefore necessitated. He relied upon a letter dated 8 th September,

2011 Exhibit 14 to the said affidavits wherein the deceased had himself

recorded that he had discontinued a services of his personal physician and had

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 47* AdmReport_1of 2016.odt

consulted Dr. Rumi K. Unwala instead of Dr.L.S. Ballani whose integrity the

deceased had doubted even during his lifetime. Mr. Thacker submitted that

there was no occasion to doubt the veracity of the Will propounded by the

deceased.

51. In conclusion Mr. Thacker submitted that no further reliefs can be

granted under the administrator report.

Submissions of Mr. Dani for Noticee no.2

52. Mr.Dani, learned Senior Counsel represented Noticee No.2 - Amoha

Traders Pvt. Ltd. Mr. Dani initially contended on instructions that the name of

the company not properly shown. He submitted that in report no.1 of 2018 two

reliefs are sought firstly, disclosure of documents relating to flat no.8 at Al-

Karim Manzil, papers pertaining to litigation filed during the lifetime of the

deceased in relation to the flat, disclosure of the HSBC Bank statements of

accounts in relation to the bank accounts in the joint names of the deceased

Pervez Dalal and/or Jamsheed Dalal and one Dhoodhmal. The further orders of

disclosure sought against KMBL is what concerns his clients that the disclosure

sought in prayer clause (d) and (e) seeking a direction to furnish copies and

details of a sum of Rs.17,08,147/- received by Amoha Traders on or about 24 th

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 48* AdmReport_1of 2016.odt

March, 2012 out of the bank account opened in KMBL and also direction to his

clients to pay over the administrator the said amount along with interest to be

fixed by this Court. Further disclosures sought in the report do not concern

Amoha.

53. Thus effectively as far as Mr. Dani's clients are concerned, he submitted that

the petitioners seek disclosure of payment of monies received by Amoha. He

submitted that the relief prayed in report no.1 of 2018 prayer clause (e)cannot

be granted in the testamentary jurisdiction of this Court that it is not a plenary

jurisdiction that the Court is exercising and therefore it is beyond the purview

and provisions of the Succession Act. He submitted that Amoha is a third party

unconnected to the parties to the suit and the only connection sought to be

made out is set out in the affidavit. He submitted that provisions of Section 192,

193, 217, 268 and 269 of the Succession Act would be the relevant provisions

of law and considering these provisions, the directions sought to regain

property cannot stretch to the extent of property which is already "lost". He

submitted that the administrator will have to file a title suit for the money now

sought to be recovered.

54. Mr. Dani submitted that there are conflicting issues and therefore

reliance under Section 193 of the Succession Act cannot be sought that the

notice concerned was responding to an administrator's report and the plaintiff

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 49* AdmReport_1of 2016.odt

cannot make enquiries against other persons who are not claiming the estate.

He submitted that no order can be passed in terms of paragraph 24(e) of the

report directing Amoha to handover and pay to the administrator a sum of

Rs.17 lakhs paid to Amoha on 24 th March, 2012 out of the KMBL bank account

without a proper investigation into the claim is made. He referred to the

decision in Rupali Mehta (supra) and Ramchandra Hande (supra) and

submitted that those were cases involved questions of title and in the present

case there is no question of a dispute on title. These judgments were not helpful

to the plaintiffs or the administrator. It is submitted that as far as Amoha is

concerned, the claim against Amoha is restricted to Rs.17 lakhs and that

balance sum of Rs.10 lakhs is paid over by defendant no.1 who has spent Rs.27

lakhs for protecting the estate. He submitted that Article 215 of the

Constitution of India cannot be invoked in the facts of the present case since the

testamentary and intestate jurisdiction is unique and the High Court 's

empowerment under Article 215 of the Constitution cannot confer jurisdiction

that the plaintiffs and the administrator now seek to invoke. The administrator

must file a suit for any relief pursuant to his appointment. Furthermore, he

submitted that Mr. Panday is not a party to this proceeding. Panday is not a

director and he holds only 25 shares in Amoha. He submitted that Amoha has

only two directors. He further submitted that as set out in page 969 the

petitioners have only received reimbursement of hospital expenses, security

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 50* AdmReport_1of 2016.odt

costs and medical expenses. He submitted that documents compiled from page

792 to 1127 disclosed such expenses and whether the funds were spent and to

what extent they were spent will have to be gone into. Mr. Dani submitted that

payments have been made to defendant no.1. Apropos the operating of the

bank account he said that there is an explanation in paragraph 14 of the

affidavit filed on behalf of Amoha and these are all questions of fact which have

to be gone into. Mr. Dani further submitted that it is not the administrators

case that Amoha had withdrawn funds. He submitted that no case had made

out for the Court to order any investigation and nothing prevented the

administrator from filing a first information report or a private complaint. In

this light of the matter he submitted that no case is made out against notice

no.2. Mr. Dani relied upon the decisions of this court in Rupali Mehta

(Supra) and Ramchandra v/s Vithalrao 2011 (4) Mh L J 50 in support of

his aforesaid contentions.

Submissions of Mr.Apte for the Trust

55. On behalf of Avabai Trust, Mr.Apte adopted that all the legal submissions

made by Mr. Dani he invited my attention to the order dated 23 rd June, 2017

and submitted only prayers (e) and (g) survive and therefore no investigation as

sought can be ordered. He submitted that the executor has made the donation.

He invited my attention to affidavit dated 15 th July, 2017 and 4th June, 2018

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 51* AdmReport_1of 2016.odt

filed on behalf of (Bai Avabai Hormusji Tata Trust for Charitable Objects).

56. Mr. Apte relied upon the donation receipt issued to defendant no.1 and

the amounts received by cheque. He said that amount of Rs.15 lakhs was

received on 10th April, 2012 whereas the administrator came to be appointed

on 24th December, 2013. He invited my attention to page 269 of the report and

the order being passed by the learned single Judge appointing the administrator

referring to paragraph 827 he submitted that the administrator can file

appropriate proceedings for recovery of properties. He submitted that in view

of this specific direction there was no occasion to pass any further orders on the

report. Referring to paragraph 77 of the order of the learned single Judge

appointing the administrator, he submitted that the learned single Judge had

observed that in respect of tenanted properties forming part of the estate, steps

will have to be taken for recovery of possession or rent and for which

appropriate proceedings will have to be filed. He submitted that this

observation supports his contention that it is for the administrator to adopt the

appropriate proceedings. Mr.Apte further submitted that as evident from the

order dated 23rd June, 2017 passed by appellant and in paragraph 4 thereof,

the property is not clearly a subject matter of the testamentary suit or probate

proceedings and that only prohibitory orders can be granted. In the present

case monies are donated before the appointment of the administrator. This

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 52* AdmReport_1of 2016.odt

money was used for the objects of the trust and although payments were made

to non-parsis it was legitimately made use of because it was for charitable

purposes. Relying on paragraph 2 of the judgment of Ramchandra Hande

(supra), Mr.Apte submitted that no Garnishee Notice can be issued to the Trust

and if such notice is issued or any order passed directing the Trust to pay the

money it would amount to deprive the Trust without adjudication and the suit

is the only remedy. He submitted that in the case of Vimla Rajani (supra) the

learned single Judge had followed the decision in the case of Ramchandra

Hande (supra). Mr.Apte submitted that after the appointment of an

administrator, only protective reliefs can be sought and granted if mandatory

reliefs are required to be granted, such orders can be passed only in a suit and

the administrator will have to file appropriate proceedings with the leave of the

Court.

57. He invited my attention to the chart appearing at pages 901-908 of the

compilation which he submitted that provided all details of the money spent.

He submitted that the issue as far as the trust is concerned is a matter of

principle and that the Court may not pass a mandatory order. If at all, the

donation was paid without the right to do so the amount must be recovered

from the executors. In the course of submissions, I called upon Mr. Apte to seek

instructions whether the money can be deposited in the Court to which Mr.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 53* AdmReport_1of 2016.odt

Apte said that he has no instructions to make that statement. In other words the

trust is unwilling to deposit the money in Court on its own. Mr. Apte then

relied upon Section 368 and 369 of the Succession Act and contended that in

the light of these provisions, the money cannot be recovered from the trust. The

amount was used for charity and it is nobody's case that the receipts are bogus.

He therefore submitted that no case was made for repayment of the amount.

In conclusion Mr. Apte states that the amount was paid and received prior to

appointment of the interim administrator and therefore no relief can be

granted and no investigation can be ordered.

58. In Rupali Mehta v/s. Smt. Tina Narinder Sain Mehta 21 wherein the Court

observed that the perusal of the Section 269 reveal that the power conferred on

the Court is to interfere with the protection of the property till probate is

granted is not available in cases where the deceased is a Hindu, Muslim,

Buddhist, Sikh or Jaina or an Indian Christian who has died interstate. In that

case the deceased was Hindu and therefore Section 269 was not available. This

Court held that the very fact that the legislature had made a special provision

under Section 269 of the Act giving power to the Court to make orders for

protection of property during the pendency of the probate petition or the

petition for letters of administration and restricted that category of persons

would indicate two things firstly in order to enable the testamentary Court to

21 AIR 2007 Bom 62

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 54* AdmReport_1of 2016.odt

make an interim order in relation to the properties during the pending of

probate petition or a petition for letters of administration, the legislature has to

enact a provision, secondly, the legislature did not intend to confer such a

power on the testamentary Court in relation to the persons who are in the

category mentioned in Section 269(2) of the Act. So far as the Act is concerned,

there is one more provision which gives power to the Court to make orders for

protection and that is contained under Section 192 and 193. Section 192

provides of a situation where an order of the protection of the property under

Part VII of the Act is made by the Court in a summary proceeding and the Court

can make such an order when the Court finds that urgent orders are necessary

and the Court cannot wait for a party to secure that order by adopting an

ordinary remedy of a civil suit. The order under Section 192 and 193 can be

made only to prevent a person having no rights.

59. Mr. Apte submitted that case of Rupali Mehta(supra) had been dealt

with by the Division Bench in the case of Ramchandra Ganpatrao Hande @

Handege v/s. Vithalrao Hande 22, Mr. Apte, the learned senior counsel

appearing on behalf of noticee submitted that in the proceedings for grant of

probate or letters of administration, the Division Bench had observed that the

Court exercising testamentary jurisdiction was not concerned with the title to

the property. In determining whether probate should be granted, the Court

22 2011(4) Mh.L.J. 50

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:19 ::: 55* AdmReport_1of 2016.odt

determines only the genuineness and due execution of the Will and

determination of matters of title are alien to probate proceedings. He submitted

that this principle was reiterated by the Supreme Court even earlier in

Ishwardeo Narain Singh v/s. Kamta Devi 23 and reiterated in Chiranjilal

Shrilal Goenka v/s. Jasjit Singh 24 while Mr. Apte referred to the observations

in Ramchandra Hande (supra) and in the context of Ishwardeo N. Singh

(supra), Mr. Khambata had submitted that as held in Chiranjilal Goenka

(supra) the Succession Act is a self- contained code in so far as the question of

making an application for probate is concerned or an appeal against the

decision of grant or refusal of probate or an appeal carried against the decision

of the probate court, this is clearly manifested in the provisions of the Act.

Probate proceedings are conducted by the Probate Court in the manner

prescribed under the Act and a grant probate will only establish conclusively as

to the appointment of the executor and the valid execution of the Will.

60. Mr. Apte submitted that a reading of Section 269 and 273 of the

Succession Act and the fact that contents of a probate petition are recorded by

Section 266 the extent of exercising jurisdiction needs to be considered. In this

behalf appellants in Ramchandra Hande (supra) had submitted that the powers

of the Court exercising testamentary jurisdiction are much wider than

probating a Will or granting letters of administration. The Court also 23 AIR 1954 SCC 280 24 (1993) 2 SCC 507

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 56* AdmReport_1of 2016.odt

considered the case of Thrity Sam Shroff v/s. Shiraz Byramji Anklesaria 25.

Mr. Apte relied upon the fact that the Probate Court is not concerned with the

questions relating to the property itself. The Division Bench in Ramchandra

Hande had considered their express provisions contained in Section 269(2) to

the effect that there could be no recourse to the exercise of the inherent powers

of the Civil Court and this would not preclude recourse to a Civil Suit for

obtaining necessary relief for protection of the property. We are not concerned

in the present case with issues of title or ownership but ascertaining the extent

and misuse of the estate. The Division Bench had also considered the judgment

of the single Judge of this court in P.S Laud (supra) which according to the

Division Bench did not dealt with the issues arising in Ramchandra Hande

(supra).

61. The Division Bench in Ramchandra Hande (supra) held that the words

"all matters connected therewith" in Section 266 of the Act must receive the

interpretation in the context in which they are used and in the context of

jurisdiction of the probate court. It is a well settled principle of law that the

Court cannot go into questions regarding title or as to an existence of a

property bequeathed by the deceased. The Court found that the contention of

the respondents that interpretation sought to be placed by the appellant in

Ramchandra Hande(supra) would travel beyond the scope of the jurisdiction of

25 (2007) 4 Mh.L.J. 56

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 57* AdmReport_1of 2016.odt

the probate court and would therefore be contrary to the legislative intent as

accepted by the Division Bench. Mr. Apte therefore had placed into service this

aspect of the case.

62. In Vimla L. Rajani(deceased) Maya Harichand Makhija v/s. Asha

Kanayalal Bajaj and Deutsche Bombay School Educational Institution 26, Mr.

Apte had relied upon the observation of the Single Judge on a notice of motion

taken out under Section 247 of the Succession Act for appointment of an

administrator. The issue was whether two different persons can be appointed

separately as executors for different parts of the property and the issue had

come up for consideration before the Division Bench of Gujarat High Court.

63. In H. H. Maharani Vijaykunverba Saheb v/s. Commissioner of

Income Tax 27, the Court held that it is permissible to make Wills or Codicils for

different part of his property and it is also permissible for him to appoint

different executors for different properties under different Wills or Codicils or

for that matter to appoint two or more different executors in respect of

different parts of his properties under a single will. This decision in the case of

H.H. Maharani Vijaykunverba Saheb (supra) found in favour to this Court

which held that Section 247 of the Succession Act undoubtedly confers a power

on the Court including a testamentary Court to appoint an administrator 26 2012(2) Mh. L.J. 683 27 (1982)136 ITR 18

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 58* AdmReport_1of 2016.odt

pending decision of a suit touching the validity of the Will of a deceased person

and that the power cannot be exercised arbitrarily and an administrator could

be appointed merely because the Court has the power to do so. There may be

several reasons for appointment of an administrator and this cannot be

enumerated as misuse of property may be one of the grounds and in the case of

the Vimla Rajani (supra) the Court held that the testamentary Court is only

concerned to finding out whether the alleged Will was the last Will of the

testator and whether it was executed in accordance with law. It is not the duty

of the Court to consider title. Following Ramchandra Hande(supra), the Court

found that the question whether the bequest is good or bad is not within the

purview of the probate court. The notice of motion was therefore dismissed.

Submissions in rejoinder

64. Mr. Khambata in rejoinder reiterated that the Succession Act is a code

in itself. In the present case there is a lis between the administrator and

defendant no.1. No evidence has been led by defendant no.1. Mr. Khambata

recapitulated the defence that the Court cannot order in investigation and that

even if a sum of Rs.32 lakhs has been siphoned off from the estate, the

testamentary Court cannot pass orders in relation to bringing it back. He

submitted that Section 247 of the Succession Act gives immediate control to the

Court over the estate through the administrator and since the administrator is

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 59* AdmReport_1of 2016.odt

subject to the control of the Court and is to act under the direction of the Court.

Under Section 269 the Court has power over all the parties concerned in the

present litigation, powers of the Court are extremely wide as contemplated in

Section 266 in relation to all matters connected with and in relation to grant of

probate, powers of the Judge under Chapter IV of Part IX are all encompassing

before any civil suit or proceeding pending in the Court of the concerned

Judge, that under Section 268 proceedings in relation to grant of probate which

regulated by the Code of Civil Procedure, 1908 and therefore the Court is fully

empowered to order an investigation. He submitted that under Section 295 in

contentious cases, the proceedings may take the form of a regular suit in which

case the petitioner for probate may be the plaintiff and the person opposing the

grant is the defendant. He submitted that Section 295 has to be read with Rule

436 of the High Court (Original Side) Rules, that in cases not provided for

under the Rule in relation to the Succession Act by the CPC a Judge that may

pass orders following the procedure of the High Court of Justice in England to

the extent applicable. In this connection he invited my attention to Section

94(c) and Section 151 of the CPC. Section 94 provides for supplemental

proceedings and sub-section(c) of Section 94 empowers the Court to make such

other concurrent orders as may appeared in the code to be just and convenient

of proving the ends of justice from being defeated. Further under Section 151

the inherent powers of the Court are unaffected to make such orders and

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 60* AdmReport_1of 2016.odt

maybe necessary for the ends of justice merely the code is not exhaustible and

hence in such situations that warrant to exercise of inherent jurisdiction. (I am

of the view that this may be exercised only in the ends of justice). In the

circumstances and as contended by Mr. Khambata the Court is not powerless to

pass appropriate orders. He submitted that the High Court does not cease to be

the High Court in testamentary matters.

65. In HPS Chawla v/s. Dr. NPS Chawla (supra), it was observed that the

testamentary Court was not without jurisdiction to expunge material that has

scandalous, defamatory or that the testamentary court does not cease to be a

court of equity. Mr. Khambata submitted that Part VII of the Succession Act

empowers recovery of possession from third parties that nothing prevents

recovery of money from a third party. He submitted that the case of

Ramchandra Hande (supra) dealt with the case of Goenka (supra) which dealt

only with probate and Section 151 cannot be used to fill up gaps especially in

the case of Section 269 which is applicable to the case of Parsi's. The ratio in

the case of Rupali Mehta (supra) and Ramchandra Hande (supra) cannot apply

especially when the property is in medio. Inviting my attention to the judgment

of the Division Bench dated 8th August 2015 in case of the deceased P. B. Dalal

to which I was a party, Mr. Khambata submitted that in the Birla case an

injunction had been granted and this aspect has been considered by the

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 61* AdmReport_1of 2016.odt

Division Bench in paragraph 68, 69, 73 of the judgment. Furthermore, in

paragraph 75 the propositions in Rupali Mehta(supra) have also been

considered. He further submitted that payments made to Amoha and Safe

Security Services were not disclosed on affidavit. He submitted that the case of

Ramchandra Hande (supra) and Rupali Mehta (supra) do not apply. Firstly

because they do not consider a case whether the estate is in medio. They did not

consider that it was the High Court exercising its powers and this was not

raised before the Single Judge or the Division Bench. In the decision of

Ramchandra Hande (supra) in paragraph 14 the inconsistency between Section

269(1) of the Succession Act and Section 151 of the CPC was gone into which is

not relevant in the case at hand since the deceased was a Parsi. He further

submitted that once an administrator is appointed, he is like a receiver and as if

the property is custody legis and in the present case defendant no.1 had not

made any application for leading evidence therefore the Court can pass order

as in a summary proceeding. He further submitted that under provisions of

Section 368 and 369, the executor was liable for loss and damages and he is

liable to make good the loss and damages to the estate. Similarly in Section 369

the executor is liable for neglect to bring any part of the property and is liable

to make the good amount (see illustrations). Similarly under Section 303 and

304, the defendant no.1 would be liable since he may be a person who inter-

meddles with the estate of the deceased where there is no rightful executor. He

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 62* AdmReport_1of 2016.odt

makes himself an executor of his own wrong. The only exception being inter-

meddling with the goods of the deceased for the purpose of preserving them or

providing for immediate necessities of family or property and dealing in the

ordinary course of business with the goods of the deceased received from

another.

66. An executor who was acted of his own wrong is liable to the rightful

executor of Administrator. One can proceed on the basis that the defendant

no.1 is an executor of his own wrong in the facts of the present case even

before a decision as arrived at in a suit. In response to the argument that the

relief sought is premature, Mr. Khambata submitted that Section 227 will

normally validate all actions but in the instant case considering the illegalities,

validation under Section 227 is not possible. As far as defendant no.1 is

concerned, he is in the control of Panday and the Trustees De Son-tort. The

trustees themselves are executors de son-tort. He submitted that in Part VII of

the Act reference to Section 192 and the Act of 1841 it was restricted to the

possessory aspect that Section 209 and the fact of summary proceedings settles

only the aspect of possession and nothing more and that when an executor de

son-tort has siphoned due monies and action can be brought under Section 192

from protecting the property, Part VII does not apply in all cases. The power to

act suo moto in such cases is always available to this court and the source of

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 63* AdmReport_1of 2016.odt

information is not relevant. In this respect, he relied upon the decision of the

Supreme Court (1979) 3 SCC 54 which referred to the suo moto power.

67. Reference was made to the method of payment as also the fact that there

is no written application in relation to the payments made to Waghmare. It was

contended that the payment was made to defendant no.1 on behalf of

Waghmare who was an in-patient and amounts paid by Waghmare were

reimbursed by the defendant no.1. No account books were produced and there

is nothing to co-relate the amount of Rs.15 lakhs of the expenses from the date

of receipt of the amount till the money was spent.

68. Mr. Thacker on behalf of defendant no.1 had submitted in this respect that

Waghmare did not have funds. Defendant no.1 paid the hospital and he

received reimbursement. On the judgments cited by Mr. Khambata, Mr.

Thacker submitted that the same were not relevant and that judgment was in

relation to suit by a person who gave a loan. In the present case, defendant no.1

took money was taken from the executor and the case against the estate is not

relevant.

69. In J.P. Srivastava and Sons (P) Ltd and Others v/s Gwalior Sugar Co. Ltd

and Others (2005) 1 SCC 172 the Supreme court observed that substance must

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 64* AdmReport_1of 2016.odt

take precedence over form. There are some rules which are vital and cannot be

broken and some were non-compliance may be compensated or dispensed with

and if there is substantial compliance with the rules read as a whole, no

prejudice will be caused. In Sudama Devi (supra) the full bench of the Patna

High Court was considering a suit for partition and in the course of doing so

observed that a inter-meddler is on the same footing as an executor de son tort

in English law and he is one who, in any way dabbled with or comes in contact

with the estate of the deceased. That a legal guardian and possessor of the

estate of a minor would, in the event of demise of the minor, qualify as an inter-

meddler with the estate in the eyes of law.

70. In Express Newspapers , the Court had occasion to consider how

allegations of malafides are to be dealt with. It observed that vague allegations

are not enough to dislodge the burden vesting on a person who makes the

allegations although what is required is not absolute proof and that definite

allegations of malafides are required to be made with sufficient particulars. It is

necessary that person against whom the allegations are made should come

forward with an answer refuting or denying such allegations as otherwise the

allegation would remain unrebutted and the Court would be constrained to vest

the allegations remaining in unrebutted on the subject to the test of probability.

The defendant and noticees have failed this test.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 :::

65* AdmReport_1of 2016.odt

71. In this behalf, the Supreme Court had relied upon its own decision in the

case of Diary and Chemicals Ltd. V/s. Company Law Board 1966 Suppl. SCR

311. In Manindra Chandra v/s. Sudir Krishna Banerjee and Ors. 28 a

Division Bench of the Calcutta High Court while considering an appeal under

the Succession Act observed that under Section 307 to 315 of the Succession

Act the estate vests in the executor only for discharging duties under the Will

and powers under law. That although estate vests in the executor, there is

nothing that entitles him to borrow money. The Court observed that the

executor would not in the absence of special power given to him by the will,

render the estate liable for monies borrowed by him for the purposes of the

estate. In the case at hand no such power has been canvassed.

72. In All Bengal Excise Licensees Association (supra) while

dealing with Section 2B of the Contempt of Court Act 1971 the Court reiterated

that a party to a litigation cannot be allowed to take unfair advantage by

committing breach of an interim order and there can be consequences by mis-

understanding and yet retain the advantage gained by breach of the order.

In Pritam Pal v/s. High Court of Madhya Pradesh, Jabalpur

through Registrar 29 the Court considered the nature and scope of contempt

power of the Supreme court and High Courts held that power is not restricted 28 AIR 1932 Cal 182 29 1993 Supp (1) SCC 529

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 66* AdmReport_1of 2016.odt

to any ordinary legislation including the Contempt of Courts Act and the Code

of Criminal Procedure and that the procedure in exercise of this power being

summary in nature should be fair and a reasonable opportunity should be

granted to the defendants as contemnor should be made aware of the charge

against him so that he could defend himself.The defendant no.1 has already

been held in contempt. Despite that he continues to be obstructive despite

opportunities to come clean. Although we are not presently considering

contumacious conduct, the fact remains that he has had sufficient opportunity.

74. In Sita Ram (supra) , the Supreme Court directed the Central Bureau of

Investigation to nominate a senior officer to conduct an inquiry into the

circumstances in which the respondent therein was admitted to private

hospital. This was a case of Contempt of Court wherein the hospital authorities

knowingly assisted the respondent accused in evading arrest. The Court found

that the circumstances under which the respondent continued to evade arrest

by the police on account of his prolonged admission to hospital led the Court to

hold a prima facie that an appropriate enquiry is called for to bring the truth to

light especially with a view to ascertain whether the hospital had become very

privy to the attempt of the respondent to avoid arrest and therefore, the Central

Bureau of Investigation directed to nominate a senior officer to conduct an

enquiry.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 :::

67* AdmReport_1of 2016.odt

75. In Sanjeev Kumar Mittal (supra) , the Delhi High Court has considered at

length the case law on ordering investigation by the police and if considered an

order of the Division Bench of the Delhi High Court in Manjit Kaur v/s. J.P.

Sharma in FAO (OS)no.152/1994 in which the Court observed that prima facie

a case of fraud had come to light and the order of investigation by the Director

of the CBI himself or through a senior officer to go through himself and submit

a report. In Davendra Singh v/s. Subroto Ghosh in FAO (OS)no.52/1996 the

Division Bench of the Delhi High Court felt it necessary that there should be an

independent enquiry into certain aspect of execution of documents in favour of

some of the defendants and also whether he was the person who had executed a

general power of attorney and the person who applied to the Municipal

Corporation of Delhi for mutation in its record. In that case as well, the Director

of the CBI was required to appoint a senior officer to go into the facts and

submit a report to the Court. The Court concluded that it was well empowered

to direct the police to investigate and file a report and such power has been

readily exercised by the Courts in cases where litigation with false claims or

false defences. The Court was of the view that the litigations with false claims

and false defences could be decided in shorter time if the Courts so choose and

that a private party cannot be expected to investigate itself, gather the evidence

and place it before the Court. A State agency with statutory powers and with

the State machinery at its command and as well investigate the matter and

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 68* AdmReport_1of 2016.odt

gather evidence and place report before the Court along with evidence

gathered. There may be conspirators, abettors who assisted the wrongdoers and

who are not before the Court. The identity of some persons may not be known

and thus in Sanjeev Kumar Mittal, the Court ordered an enquiry. The decision

of Sanjeev Kumar Mittal had also taken into account in decision of this Court

in Vijay Enterprises (supra).

Conclusions

76. Having dealt with broad framework of law as canvassed by the counsel, it

would now be appropriate to consider the jurisdictional aspect as to whether

this Court can in its testamentary and intestate jurisdiction on a report of a

administrator order an inquiry as sought. The scope of Section 247 of the

Succession Act empowers the Court to appoint an administrator with rights and

powers of general administration excluding the right to distribute the estate.

The administrator in question shall be subject to the immediate control of the

Court and shall act under the directions of the Court. Needless to mention,

administration as contemplated in Section is pendente lite. There is now no

doubt that in the facts of the present case the appointment of the administrator

was justified inasmuch as it is now final, with all challenges to his appointment

having been repelled. When we consider the rights and powers of administrator

it would no doubt encompass the aspect of administration of the estate. It will,

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 69* AdmReport_1of 2016.odt

obviously include the power to make enquiries directly with the persons

involved and all those closely connected to with the estate and its management.

I am of the view that the Administrator should be entitled to make inquiries

with all persons if any connected with the affairs of the estate and ascertain the

truth. The powers of a testamentary Court have been tested on numerous

occasions. This Court in the case of Rupali Mehta (supra) dealt with the scope

of Section 269 observing that Section confers special powers of the Court to

interfere with the protection of property till probate is granted provides the

deceased was not a Hindu, Mahomedam, Buddhist, Sikh, Jaina or an Indian

christian. Ione following the excluded persons.

77. In this case, the deceased was a Parsi and is therefore subject to the

provisions of Section 269. Reference was made to Sections 192 and 193 of the

Act. These sections fall under Part VII which deals exclusively protection of

property of the deceased which empowers the Court to pass orders in summary

proceedings. Section 192 and 193 however can be availed of to prevent the

person without rights taking possession including to prevent persons from

taking forcible possession. Any agent or relatives or near friend or Court of

wards upon taking cognizance can make an application. In my view, an

administrator would certainly be entitled to derive powers of making such an

application. Upon an application being made Section 193 it requires the Court

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 70* AdmReport_1of 2016.odt

to examine the applicant on oath and make further enquiries as to whether

there is sufficient ground to believe that a party in possession or taking forcible

possession has no title and that the person on whose behalf he applies is likely

to be materially prejudiced if left with order any remedy of suit. Lastly, the

application must be bonafide. The conditions required are that there must be

property left behind by the deceased which is in the possession of other or is

likely to be forcibly taken possession of, if the application is made. In the case at

hand there are numerous assertions on oath in these proceeding which would

justify invocation of section 193 and one of the aspects that needs to be

considered is whether the person on whose behalf an application is made is

likely to be prejudiced if he were to file an ordinary suit. The contentions on

behalf of the respondent, almost in chorus, is that the administrator should be

relegated to file suits or complaints. One of the reasons why such proceedings

will be adopted is that there is no justification for the administrator to avail of

any special benefits by the Court order in investigation under Section 340 of

Cr.P.C. and that filing of in proceedings just like any other litigant would

suffice. In my view, filing of criminal complaint would also involve engaging

State machinery. The filing of a complaints by the Administrator would not still

save the involvement of State machinery. Thus, under Section 194 the Court

could summon the defaulting party and determine summarily, the right of

possession. No doubt the focus in Chapter VII is on possession and Section 194

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 71* AdmReport_1of 2016.odt

is subject to the provisions of filing a suit. A suit is contemplated under Section

208. In fact Section 208 saves the right of filing a suit, should the application

under Section 194 be rejected. Thus, it is clear from the Scheme of the Act that

rejection of an application for protection of property under Section 192 to 193

will not bar the filing of a suit. The Court in that case observed that the Act

itself contains no provision authorising a testamentary Court to make an

interim order as a matter of course for protection of property.

78. In my view, it will be only subject to satisfaction of the appropriate

conditions that an order could be passed under the said Part VII. No doubt, the

Court also held that the Civil Procedure Code in its entirety is also applicable to

testamentary proceedings and orders of temporary injunction can always be

passed. The decision in Rupali Mehta (supra) holds that the testamentary Court

has no jurisdiction to go into the question of title and the subject matter is not a

property that is left behind by the deceased. The Court also held that it has no

inherent power to pass suitable interim orders for protection of property in a

probate petition. In that case the Notice of Motion sought appointment of a

receiver but that request was rejected. The Division Bench of this Court once

again held in Ramchandra Hande (supra) that issues of title are alien to probate

the suits. Mr. Apte had canvassed to propose that in a petition for grant of

probate, the court is not concerned with the title. On the other hand, Mr.

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 72* AdmReport_1of 2016.odt

Khambata had contended that the Succession Act being a self-contained code,

the Division Bench considered Section 269 and 273 of the Act and the earlier

decisions on the subject including the case of Thrity Sam Shroff (supra) and

although it was Mr. Apte's contention that a probate court is not concerned

with question of property itself, the Court had held that in view of Section 269

there is no inherent power in the Court to grant interlocutory relief. This being

so and in view of the fact that the probate court is only concerned with the

question whether the will is genuine and whether it was made voluntarily.

Section 269 contemplates power to interfere for protection of the property

until probate is granted or an administrator of the estate is constituted.

79. In the present case the administrator has been appointed and we are

concerned with an application seeking ordering an investigation pursuant to

the appointment of the administrator. In effect, it is an application to assist or

further empower the administrator. Post the appointment of an administrator,

the question to be considered is whether the Court is required to by judicial

orders to empower the administrator to adopt appropriate proceedings.

Relying upon the decision in Vimla Rajani(supra), Mr. Apte had contended that

the probate court cannot consider whether a bequest is good or bad. The Court

could not issue directions to deposit monies in Court and therefore submitted

that there is no power to order any enquiry that the administrator can take such

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 73* AdmReport_1of 2016.odt

action as permitted in law. The decision in Vimla Rajani (supra) however, did

consider the distinction between the Court having power to do a thing and the

exercise of a power for good and valid reasons. It observes that the Court

cannot exercise the power arbitrarily. This observation came in the context of

appointment of an administrator. However, once appointed, the question is

whether the administrator should be left to fend for himself or is entitled to

support, so to speak, from the Court. The decision in Vimla Rajani (supra)

considered only the appointment of an administrator and nothing beyond.

Interestingly, in Ramapati Tewari (supra), it is observed that the District Judge

had invoked powers under Section 192. The District Judge had not recorded

any finding as to whether any material prejudice would be caused to the

applicant if he invokes ordinary remedy of a suit and whether the application

was bonafide. Mr. Thacker had cited this decision in support of his contention

that an administrator could file a suit. On the other hand, what I find from

analysis of Section 193 is that whether the application could be made by a

competent person and if it were be so held, whether the District Judge could

consider the application despite a fact that the remedy of a suit was available. It

is not as if the remedy of the suit is ousted by the application or vice versa. If

the remedy of the suit was not ousted one of the aspects to be considered is

whether there is justification in the instant case for ordering an enquiry or

investigation. In the case at hand, I have no doubt that the defendant/noticees

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 74* AdmReport_1of 2016.odt

have been non-cooperative and such behaviour, despite appointment of the

Administrator is causing material prejudice to the estate and the administration

of justice.

80. One of the aspects that would be appropriate to consider is whether this

Court is coram non-judis given the fact that the Succession Act is considered a

code in itself with its limitations. As observed by the Supreme Court in the case

of A R Antulay v/s. R.S. Nayak 1988 (2) SCC 602, the jurisdiction of Court

is capable of being created or enlarged by legislation. The Supreme Court

observed that jurisdiction comes solely from the law of land and cannot be

exercised otherwise, that jurisdiction may be exercised by the Court as provided

for the constitution or in laws made by the legislature and a power of the Court

to deal with the matter or make an order carrying binding force in the facts of a

particular case that a code cannot confer jurisdiction on itself if it is not

provided in law. In his opinion, Venkatachaliah, J. as he then was, of the view

that the expression "jurisdiction" is a verbal coat of many colours that in case of

the tribunal an error of law might not only be "error in jurisdiction" but in

error of jurisdiction "but otherwise jurisdiction is a legal shelter and the

existence of jurisdiction does not depend on the correctness of its exercise". It

is settled law that a decree passed by a Court without jurisdiction goes to the

root because the court lacks inherent jurisdiction and is coram non-judis. Set

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 75* AdmReport_1of 2016.odt

in this background I am today called upon to consider whether in the

testamentary and intestate jurisdiction of this Court it would be permissible for

the Court to direct an enquiry to investigation to be conducted in the facts

leading up to the controversy which has led the testamentary Court to appoint

an Administrator.

81. This aspect of jurisdiction was once again considered in the context of

the Succession Act in the case of Chiranjilal Shrilal Goenka (supra) which held

that the Court of probate has exclusive jurisdiction and that the civil Court

cannot confer jurisdiction to adjudicate upon proof of a Will and unless the

grant of probate is revoked it operates as a judgment in rem. The Probate Court

does not decide any question of title or the existence of the property itself. In

doing so, the Court considered this aspect of jurisdiction if any. It would be

appropriate to consider how courts have approached the situation which is

identical or similar to the one that the parties are placed in today. In this behalf,

it would also be useful to consider the observations of the Supreme Court in the

Fuerst Day Lawson Ltd. (supra) which made reference to the decision in P.S.

Sathappan v/s. Andhra Bank Ltd. 2004 (11) SCC 672 holding that the

Arbitration Act 1940 from its inception and till 2004 was a self contained code

and the finding that the Arbitration Act 1940 was held to be a self contained

code in the matters of arbitration. The Arbitration and Conciliation Act, 1996 ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 76* AdmReport_1of 2016.odt

which consolidates, amends and design the law relating to arbitration must also

be held to be a self-contained code. Reference was made to the language of

Tulzapurkar, J. to the effect that being a self-contained code it carries with it "a

negative import that only such acts are mentioned in the Act are permissible to

be done and acts or things not mentioned therein are not permissible to be

done." The conclusion in Fuerst Day Lawson Ltd.(supra) of course was to the

effect that no letters patent appeal would lie against an order which is not

appealable under Section 50 of the Arbitration and Conciliation Act. The

Succession Act being treated as a code in itself would therefore require me to

consider whether grant of reliefs prayed for would be hit by a negative import.

One must also consider whether it is possible to limit the exercise of jurisdiction

within the confines of the Succession Act or whether it is possible to exercise

inherent powers where statutes such as Succession Act do not contain such

enabling provisions. In this behalf it is appropriate to refer to the observations

of the Supreme Court in M.V. Elisabeth (supra) wherein the Supreme Court

observed that where statutes are silent and remedy has to be sought by the

courts to basic principles, it is the duty of the Court to devise procedural rules

by analogy and expediency". This observation of the Supreme Court came in

relation to procedure to overcome difficulty of personal service upon a

defendant by compelling him to enter appearance, service of summons, to

ensure furnishing of security in the exercise of admiralty jurisdiction of the

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 77* AdmReport_1of 2016.odt

Court. The Court then considered in that case that a practical procedural devise

can be developed by the Courts with a view to rendering justice in accordance

with substantive law not only in the case of collision and salvage but also in the

case of other maritime liens and claims arising by reason of breach of contract.

The Court further observed as follows:

"Where substantive law demands justice for the party aggrieved,

and the statute has not provided the remedy, it is the duty of the

court to devise procedure by drawing analogy from other

systems of law and practice."

82. The Court also observed in paragraph 66 that the High Courts in India

are superior courts of record. They have inherent and plenary powers and

unless expressly or impliedly barred and subject to the appellate or

discretionary jurisdiction of the Supreme Court, the High Court have unlimited

jurisdiction including the jurisdiction to determine their own powers. In this

behalf, the reference was made to the decision of the Supreme Court in Naresh

Shridhar Mirajkar v/s. State of Maharashtra 1966 (3) SCR 744. No doubt if the

observation of the Supreme Court was the matter pertaining to the admiralty

jurisdiction exercised by the High Court. However, but while culling out the

essence so to speak of the powers of the High Court I am of the view that unless

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 78* AdmReport_1of 2016.odt

it is expressly barred by statute, the High Court in its testamentary jurisdiction

would be able to exercise powers to enforce its own orders and to that extent

monitor the effect of its own orders. The appointment of an Administrator by

the High Court being final, it is appropriate that the Court ensure that the

appointment of the administrator and the steps taken by the administrator in

exercise of his duties are not frustrated or defeated by the machinations of

parties that the Administrator is required to deal with. It is this background

that the present report will have to be considered. In the factual context there

is no doubt that the estate is now in medio and being in medio the administrator

pendente lite is required to ensure its identification and preservation pending

final disposal of the lis. The administrator must be able to exercise his rights,

supervise and perform his duties this would include calling for an appropriate

explanations from the concerned parties. If they do not co-operate the

Administrator must be suitably equipped.

83. One other aspect that needs to be considered is whether the High Court

in its testamentary jurisdiction can act suo moto or only on the application of a

party as contemplated under the Succession Act. This aspect is required to be

separately dealt with, however, in its jurisdiction under the Companies Act we

have the benefit of the Supreme Court ruling in S.K. Gupta (supra) wherein

while interpreting Section 392 of the Companies Act, 1956 it is observed that

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 79* AdmReport_1of 2016.odt

the Court could act suo moto or on the application of a person interested in the

affairs of the company.

84. Section 340 of the Cr.P.C. provides for decisions in cases mentioned in

Section 195 of the Code. Section 195 of the code provides for prosecution for

offences against public justice and for offences relating to documents given in

evidence. Section 195 provides inter alia that no court shall take cognizance of

any offence punishable under the specified sections of the IPC namely 193 to

196, 199, 200, 205 to 211 and 228 when such offence alleged to have

committed in relation to a proceeding in court or any offence described in

section 463 or punishable under sections 471, 475 and 476 of the IPC in

respect of a document produced in court or given in evidence in a court or any

criminal conspiracy to commit or attempt to commit abetment of offences

except on a complaint in writing of that Court or by an officer of the Court

who may be authorized in that behalf or some other court to which the court is

subordinate. Section 340 provides as follows:

"S.340. Procedure in cases mentioned in section 195.

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may,

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 80* AdmReport_1of 2016.odt

after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-

bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section(4) of section 195.

(3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court. (4) In this section," Court" has the same meaning as in section 195."

85. Thus under section 340(3)(a) where the Court making the complaint is a

High Court, an officer of that court may be appointed to make that complaint.

Since the High Court is exercising its testamentary jurisdiction, it is therefore

permissible for an officer of High Court registry to make that complaint. The

object and scope of section 340 is to institute an enquiry and ascertain whether

any offence affecting administration of justice has been committed in relation

to any document produced and given as evidence in Court. Section 340 of the

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 81* AdmReport_1of 2016.odt

Code has been held to be applicable to all proceedings in all Courts in criminal

cases or civil cases irrespective of the fact that whether the matter in court is

one involving an offence mentioned in Section 195. [see (2002) Cri.L.J. 3405

(AP) K. Rajagopala Rao v/s. P. Radhakrishna Murthy] Section 340 provides that

inquiry is held when a complaint is lodged by one of the parties to litigation

after taking precautions to ensure that a false and frivolous complaint is not

initiated. It is permissible for the Court to act suo moto on a complaint to

initiate an enquiry under section 340. It is for the Court to decide whether it is

necessary and it is expedient and in the interest of justice that an enquiry

should be made or complaint filed, absent such satisfaction could not be

appropriate to initiate an enquiry.

86. S.K. Gupta (supra) also held that it is immaterial as to who draws the

attention of the Court to a situation which required the Courts intervention and

that the Court may decline such an application at the instance of a busy body if

the action proposed to be taken is justified, valid or legal. The capacity and

credentials of the person who brought about the situation calling for

intervention of the Court is not relevant and would not invalidate any action in

other words locus standi was not a material factor. In the instant case, the mere

fact that the defendant no.1 who may be subject matter of investigation in

enquiry, being an executor, under the Will propounded by him by itself, will

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 82* AdmReport_1of 2016.odt

not entitle him to be treated differently if the administrator is unable to receive

the assistance that he is entitled to from the defendant no.1 and other persons

inter-meddling with the estate. This fact therefore would be relevant.

87. In the present case, if I come to the conclusion that the facts narrated in

the pleadings, the report and as canvassed by the parties justify the

commencement of an enquiry, there must be sufficient material to justify

initiation of the enquiry. In this respect, Sections 193 of the IPC provides for

punishment for giving false evidence. Section 194 provides for giving or

fabricating such evidence. It is intended to procure conviction of capital

offence. Section 195 concerns intention to procure conviction for life

imprisonment. Sections 196 and 199 contemplates offence when false

evidence and false statements is given if the party knew to be false. Likewise

Section 200 deals with use of any declaration knowing it to be false. Section

205 to 211 deals with aspects of false personation, fraudulent removal and

concealment of property and dishonesty in making a claim in Court knowingly

to be false. In this behalf, Section 209 reads as follows;

"S. 209. Dishonestly making false claim in Court. - Whoever

fraudulently or dishonestly, or with intent to injure or annoy any

person, makes in a Court of justice any claim which he knows to be

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 83* AdmReport_1of 2016.odt

false, shall be punished with imprisonment of either description for a term

which may extend to two years, and shall also be liable to fine."

88. Sections 463, 471, 475, 476 of the IPC form part of Chapter XVIII and

concerns offences relating to documents and property marks. What is to be

seen is whether in the factual background leading up to the administrators

report, the prayers ordering an enquiry would be justified. As far as the power

of the Court is concerned, considering the views that I have expressed in this

judgment, I am of the opinion that this Court was not powerless in the matter

of ordering an inquiry although the Succession Act read as a whole does not

contain any specific power to initiate such enquiries. That having been said and

be conscious of the limitations of the code, I am of the view that the negative

import attaching to the code does not prohibit the ordering of an enquiry. More

so, because the Court found it fit to appoint an administrator and an

administrator must be sufficiently equipped to carry out the tasks expected of

him. I am conscious of the fact and as canvassed by the respondents' successor

that if the administrator so desires, he can file a complaint by himself and need

not seek assistance of this Court under normal circumstances. It may be

appropriate that the administrator approaches the Courts of law on his own.

However, given the factual background of the present case, it appears that the

parties involved, not having faithfully disclosed the extent of their involvement

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 84* AdmReport_1of 2016.odt

and have undoubtedly held back in making a full and proper disclosure and

have been engaged in deceitful conduct.

89. In these circumstances, the question that arises is whether the

Administrator should stand by in anticipation of compliance by the

defendant/noticees. The conduct of the defendant that of the trustees and all

those associated with the Trust and those inter-meddling with the estate leaves

much to be desired and that the disclosures are neither complete nor entirely

truthful. Attempts are made to frustrate the exercise undertaken by the

Administrator and the attitude of the defendants and the respondents is

obstructive. The fact that the defendant no.1 and the respondents had in the

past suppressed information relating to disposal of assets is highlighted by a

single Judge of this Court in his order dated 24 th December, 2013. A clear

finding was recorded that the defendant no.1 had suppressed true or correct

facts in the report and that he had inter-meddled with the estate. One must not

forget that the estate is in medio and all parties are since proceeding on that

basis. Even considering the involvement of Amoha Traders there are far too

many connections with the defendant no.1, the estate of the deceased and the

numerous financial transactions that require closer scrutiny and such scrutiny

is not possible if the defendants/noticees concerned are not forthcoming,

truthful and volunteer necessary information as and when such information is

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 85* AdmReport_1of 2016.odt

sought, failing which the only alternative left is to initiate an inquiry. In my

view, leaving it to the administrator to file a suit may be appropriate and in

normal cases the rule, the Court directing the filing of a complaint may be the

exception. Given the factual matrix and the complex machinations now

revealed, I am inclined to believe that directing an Officer of this Court to file

an appropriate complaints would be the correct course of action.

90. In particular the involvement of Amoha Traders and its various directors

and companies under the same set of persons leads me to believe that role of the

Avabai Hormasji Tata Charity Trust requires to be thoroughly probed. Prima

facie, it does appear that the said trust is being used as a screen to siphon away

the funds of the estate. In particular the trust has not been forthcoming and

has been suppressing information about the application made by the trustees

change reports, applications for change of address and the light. Despite clear

references to these documents and request, this is not been produced by the

trust. The statements made by the trustees including Mr. Lam have turned out

to be incorrect. The trust has withheld documents and particulars. It has

provided incomplete addresses from time to time the use of funds for charitable

purposes has not been established, the payments made for medical treatment of

non parsis is also suspect. Nothing disclosed so far indicates that the trust has

in fact used funds for the benefit of the Parsi community. The involvement of

Mr. Jamshed Pandey and defendant no.1's proximity to Mr. Pandey's and his

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 86* AdmReport_1of 2016.odt

companies and the involvement of various other persons.

91. Furthermore, certifications by Chartered Accountant(s) in respect of the

payments made have also not been satisfactorily explained. The fact that

defendant no.1 is a shareholder in Kratos Energy and Canos Trading and that

Kratos Energy and Amoha Traders use a common telephone number which

stands in the name of one Jimmy Panday and the fact that defendant no.1 being

one of the four shareholders of Canos Trading and have attempted to create

liabilities in the name of the estate has not been properly explained. The fact

that Amoha Traders is one of the shareholders in Canos cannot be a co-

incidence. The Directors' report of Canos Trading for the year 31 st March,

2015 records that during the year the company had advanced a loan of

Rs.69,60,577/- to the testator who died on 7 th December, 2011 is suspect. This

statement appearing in a Directors' report for the year ended 31 st March, 2015

is itself an eye opener. It has become difficult to find out how such a loan could

have been advanced to the deceased three years after his demise.

92. The defendant/noticees have had opportunities to explain these

discrepancies. Defendant no.1 in his affidavit dated 19 th June, 2018 stated that

he held shares in Canos and that he received a sum of Rs.1,17,22,959/- he

however, accepts the statements in the Directors' report as "incorrect" and an

obvious error and relies upon a Chartered Accountants Certificate. The

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 87* AdmReport_1of 2016.odt

Chartered Accountant is common to Amoha Traders and Canos Trading.

Furthermore, the certificate relied upon by the defendant no.1 to claim that

there was an error in the Directors' report reveals that the certificate was issued

after verification of books of account and other relevant records produced

before the firm of Chartered Accountants by Canos Trading for the financial

year ended 31st March, 2016 and on the basis of "verification" and

"explanations" provided by the company. It does not contain mention of any

documents verified. Furthermore, the defendant no.1 does not produce any

certificate from his own accountant. One fact clearly emerges, that there are

wheels within wheels and the questions that arises indicate influences that

defendant no.1 is subjected to self invited or imposed upon him by persons

unknown. If that be so, it is necessary to identify the persons responsible for

these developments because the estate has been targeted.

93. This is a not case where the defendant has been willingly submitted all

orders of the Court at each stage. The plaintiffs and the administrator have

faced resistance in the form of complete non co-operation or attempts to

mislead, suppression of truth and making partial disclosures all of which seek

to frustrate the administration of justice. There is no apparent reason for Canos

to lend a sum of Rs.1,17,22,959/- to the defendant no.1. What the fate of these

funds is also uncertain. What is crucial to note is that atleast three parties are

involved and appear to be interfering with the affairs of the estate through the

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 88* AdmReport_1of 2016.odt

defendant no.1 whether it is by virtue of the conscious participation of

defendant no.1 or whether such conduct is imposed upon him by others is also

to be ascertained. I find it difficult to appreciate the contention of the defendant

no.1 in his affidavit dated 24 th April, 2018 and the telephone numbers and

email id of Amoha since Amoha had a running office. This is to be tested in

the light of the fact that mobile number given is not of defendant no.1. The

defendant no.1 had not furnished any of his own mobile numbers or contact

details. Thus, admittedly he would be unaware of any updates sent by the bank.

In my view this is not indicative of normal behaviour of a person who claims to

be an executor of the estate and which estate is to be intended to fund the

charitable purposes. I must not lose sight of the fact that under Section 317 of

the Indian Succession Act, the administrator is required to ensure that a full and

true estimate of all property and credits and debts are made up. It is therefore

necessary that the administrator appointed is supported in all respects. The

conduct of defendant no.1 is undoubtedly obstructive of the administration of

justice and the earlier affairs under administration are probed, the more

beneficial it will be for the estate. In my view the Court must also ensure that

the Administrator is provided with all necessary assistance to complete the task

in hand. Given the non co-operative, obstructive and misleading conduct

demonstrated over the past few years it is time to ensure that the protection of

the estate is complete in all respects both by securing the estate as presently

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 ::: 89* AdmReport_1of 2016.odt

stands and by recovery of all that has been taken away from it to meet the ends

of justice and to ensure proper administration of justice.

94. I am of the view that an independent investigation is required to be

carried out as to the scope of the investigation, after the complaint

contemplated in this order is filed, it would be for the investigating agency to

seek appropriate directions from this court time to time should the need so

arise. It is necessary to ensure that the enquiry is conducted in a focused and

purposive manner. The administrator will therefore be required to provide all

necessary support. In this behalf needless to mention, the defendant

no.1/noticees are expected to be co-operative to the fullest extent. After all it is

the defendant no.1's case that as executor of the Will propounded by him that

he has an obligation to justice to his role as executor. The resistance to an

enquiry does not appear justified in view of the first defendants contention that

the administrator may if he so desires file complaints. It was possible to

appreciate such contention had there been a complete and fair disclosure but

the fact that even though the Administrator was appointed in 2013 several

questionable transactions have come to light as dealt with elsewhere in this

order, it would be appropriate that a enquiry be conducted so as to leave no

stone unturned.

95. I therefore pass the following order;

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 :::

90* AdmReport_1of 2016.odt

(I) The Administrator appointed by this Court shall draw up a complaint to

be filed and provide the draft complaint to the Prothonotary and Senior Master

within a period of four weeks from today.

(II) Upon the draft complaint being lodged and subject to scrutiny of its

contents the Prothonotary and Senior Master shall forward the complaint on

behalf of the Administrator to the Commissioner of Police, Mumbai who shall

nominate a suitable team of officers to initiate an investigation into the

complaint and the affairs of deceased Purvez Burjor Dalal. The progress of the

investigation after it commences shall be reported to the Prothonotary and

Senior Master on a fortnightly basis.

(III) The Prothonotary and Senior Master is at liberty to seek appropriate

clarifications from this Court.

(IV) This Report shall be listed for further hearing after eight weeks.

(A. K. MENON, J.)

wadhwa

::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 22:49:20 :::