MUMBAI HIGH COURT

PRAVINA VIKRANT GHOTGE VS. VINAYAK RAMCHANDRA DINDORIKAR & ANOTHER 

DATED : 03.07.2014

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

The question that arises for consideration of the Court, in this petition is whether a third party who is not a beneficiary under a Will, can be impleaded as a party respondent to a probate petition.

Facts of the Case :

The set of facts within which the question arises is as follows :- Shri. Narayanrao Ramrao Bhave was the ruler of Ramdurg Sansthan. He died intestate on 10th April, 1996 leaving behind his daughter, the petitioner herein and his wife, Ushadevi (since deceased). Ushadevi expired on 10th April, 2000.

In view of death of her parents, the petitioner preferred two applications being Misc. Application No.507 of 2000 and Misc. Application No.508 of 2000 in the Court of Civil Judge Senior Division, Pune on 11th July, 2000 for issuance of succession certificate in respect of the properties left behind by them.

By the letter dated 18th October, 2000, one R.G. Joshi a resident of Kolhapur informed the petitioner about the Will dated 26th March, 2000 left by Ushadevi and forwarded true copy of the Will to her.

Respondent no.1 and original respondent no.2 filed Misc. Application No.707 of 2001 before the same Court for probate of the Will of Ushadevi as the executors and administrators appointed under the Will. The petitioner was made a party respondent to the application. Then, the petitioner filed Regular Civil Suit No.1505 of 2003 in the Court of Civil Judge Junior Division, Pune against the executors and Shri. R.G. Joshi to challenge the Will of Ushadevi contending that the same was a false and fabricated document. It was also her contention that, her father having died intestate, she was entitled to succeed to one-half of his properties and her rights could not have been bequested by her mother in the Will.

It would be convenient at this stage, to note the details of the Will so as to understand the terms of compromise between the parties.  As regards two of the immovable properties, the Will mentions that Ushadevi had formed a trust in respect of the temple at Nargund. She was the Chief Trustee of that trust.  She wished that a trust should be formed also of the temple at Wai, Satara, with the executors of the Will as it's trustees. 

The sale proceeds of all other properties were to be utilized by the executors for putting up a memorial in the name of Shri. Narayanrao and also for social causes.

Original respondent no.2 who was the Diwanji of Ramdurg and respondent no.1 were appointed as executors-cum-administrators of the Will.

Under the compromise, the petitioner admitted the Will and agreed to fulfill the wishes of Ushadevi stated therein. The executors accepted and confirmed that the petitioner had at no point of time, released her share in the properties inherited by her on the death of Narayanrao, and that the Will was not binding upon the petitioner's one-half undivided share in the properties.

The executors, further admitted that on the death of Narayanrao, both, the petitioner and Ushadevi became equally entitled to all the estate and properties of Narayanrao and that the Will cannot be implemented in respect of all the properties of Narayanrao.

In view of the settlement and in view of the petitioner agreeing to fulfill the wishes of Ushadevi, the executors withdrew themselves as the administrators or executors of the Will and agreed for the petitioner to be appointed as the executor.

They undertook not to object or obstruct the petitioner for her lawful ownership and enjoyment of the suit properties.

It was further agreed that, the petitioner and the executors shall form a Charitable Trust in the name of Late Shrimant Narayanrao Bhave, within a period of 6 months from the date of the petitioner obtaining probate or letters of administration in respect of the Will.

The trustees of the trust were to be, the petitioner as the Chief Managing Trustee, Vikrant Ghotge-the husband of the petitioner, Vivek Ghotge- father-in-law of the petitioner and the two executors under the Will. For implementation of the Will, it was agreed that the petitioner shall be entitled to sell the properties except the flat and appropriate 50% of the sale proceeds for her own benefits. The balance 50% was to be deposited with the Trust, for the purpose of its utilization as per the wishes of Ushadevi.

The executors gave their "No Objection", for allowing the application in favour of the petitioner. She also filed her affidavit of examination-in-chief in the application. Thereafter, however, the application remained pending in the Court.

On 13th February, 2012 respondent no.3, a Charitable Trust filed application for impleading itself to the Miscellaneous application. It claimed to be a charitable trust established in pursuance of the Will vide trust deed dated 4th October, 2011 registered with Sub-Registrar, Ramdurg.

It further claimed that the properties of late Shrimant Narayanrao Bhave and his wife vest in it. As such, it claimed to be necessary party to the application. Respondent no.3 alleged in the application that the compromise arrived at between the petitioner and the executors travelled beyond "scope of law and jurisdiction of Hon'ble court" and that the petitioner has no legal right to seek probate of the Will or seek Letters of Administration.

The petitioner contested the application alleging that it was defective since it was neither verified nor was supported by an affidavit. Further respondent no.3 has no locus-standi to file the application. It is not entitled to challenge the compromise decree and that the Will nowhere provides for establishment of a trust. The petitioner denied that respondent no.3 is a necessary party to the application and that the properties of Narayanrao vest in it and that the petitioner has no legal right to seek probate of the Will. She also denied that she is not entitled to succeed to or inherit the estate of her father, who had died intestate.

Judgement :

In all the above circumstances, the trust can never be said to be a necessary party to the proceedings for probate/letters of administration with Will attached. Besides, as long as respondent no.1 is available for taking care of the Will and it's contents, in view of the provision of Section 312 of Indian Succession Act, no other party can be concerned with the Will.

For the above reasons, the petition is allowed in terms of prayer clause (a). The application at Exhibit-77 filed by respondent no.3 in Misc. Application No.486 of 2004 is dismissed. Respondent no.3 shall pay costs of the petition quantified at Rs.25,000/- (Rs. Twenty Five Thousand only) to the petitioner within a period of 4 weeks from today. At the request of Mr. Kanetkar, the operation of this order is stayed for a period of 4 weeks from today. The interim order in the petition shall continue during the period of stay.

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MUMBAI HIGH COURT

PRAVINA VIKRANT GHOTGE VS. VINAYAK RAMCHANDRA DINDORIKAR & ANOTHER 

DATED : 03.07.2014

Case Number/Writ Petition No. 6945 of 2012

Judge THE HONOURABLE MRS. JUSTICE R.P. SONDURBALDOTA

Appellant : Pravina Vikrant Ghotge

Respondent : Vinayak Ramchandra Dindorikar and Another

Pronouncement : Jul-03-2014

Judgment :

1. By the order dated 28th August, 2012 notice of the petition was issued to the respondents with a specific note that the petition would be heard and disposed off finally at the stage of admission. Accordingly, notices have been served upon the respondents. Respondent no.1 is absent despite service. The name of respondent no.2 has been deleted from the proceedings on account of his death. Respondent no.3 had appeared before the Court to contest the petition.

2. The question that arises for consideration of the Court, in this petition is whether a third party who is not a beneficiary under a Will, can be impleaded as a party respondent to a probate petition.

3. The set of facts within which the question arises is as follows :-

Shri. Narayanrao Ramrao Bhave was the ruler of Ramdurg Sansthan. He died intestate on 10th April, 1996 leaving behind his daughter, the petitioner herein and his wife, Ushadevi (since deceased). Ushadevi expired on 10th April, 2000. In view of death of her parents, the petitioner preferred two applications being Misc. Application No.507 of 2000 and Misc. Application No.508 of 2000 in the Court of Civil Judge Senior Division, Pune on 11th July, 2000 for issuance of succession certificate in respect of the properties left behind by them. By the letter dated 18th October, 2000, one R.G. 

Joshi a resident of Kolhapur informed the petitioner about the Will dated 26th March, 2000 left by Ushadevi and forwarded true copy of the Will to her. Respondent no.1 and original respondent no.2 filed Misc. Application No.707 of 2001 before the same Court for probate of the Will of Ushadevi as the executors and administrators appointed under the Will. The petitioner was made a party respondent to the application. Then, the petitioner filed Regular Civil Suit No.1505 of 2003 in the Court of Civil Judge Junior Division, Pune against the executors and Shri. R.G. Joshi to challenge the Will of Ushadevi contending that the same was a false and fabricated document. It was also her contention that, her father having died intestate, she was entitled to succeed to one-half of his properties and her rights could not have been bequested by her mother in the Will.

4. Later, the petitioner and the executors of the Will settled the dispute as regards the Will. They filed joint compromise purshis dated 4th March, 2004 at Exhibit-20 in Regular Civil Suit No.1509 of 2003 and the suit was decreed in terms of the compromise purshis. In accordance with the terms of compromise, the petitioner withdrew Misc. Application No.507 of 2000 and Misc. Application No.508 of 2000. Similarly, the executors withdrew Misc. Application No.707 of 2001 filed by them for the probate.

5. It would be convenient at this stage, to note the details of the Will so as to understand the terms of compromise between the parties. The Will of Ushadevi listed immovable and movable properties left by Narayanrao. The immovable properties consisted of (i) the Rajwada property at Ramdurg (Karnataka) and the open land around it (ii) the property at Wai-Satara with Vyankateshwar Mandir, houses and open land, (iii) the property at Nargund, Karnataka with a temple and open land, (iv) 15 pieces of land at Ratnagiri and (v) a flat at Ramkunj Society, Pune. The movable properties consisted of household articles, jewelleries and ornaments, silverware, cash, a car, amounts in bank accounts, fixed-deposits, shares etc. 

Ushadevi expressed a wish that the petitioner be given the Flat at Ramkunj Society minus the articles therein. As regards two of the immovable properties, the Will mentions that Ushadevi had formed a trust in respect of the temple at Nargund. She was the Chief Trustee of that trust. She wished that a trust should be formed also of the temple at Wai, Satara, with the executors of the Will as it's trustees. All other properties, movable and immovable, were to be sold by the executors. The sale proceeds of the lands at Ratnagiri were to be invested in a fixed-deposit with a bank and the petitioner was to be given the yearly interest earned over the fixed-deposits. The sale proceeds of all other properties were to be utilized by the executors for putting up a memorial in the name of Shri. Narayanrao and also for social causes. Original respondent no.2 who was the Diwanji of Ramdurg and respondent no.1 were appointed as executors-cum-administrators of the Will.

6. Under the compromise, the petitioner admitted the Will and agreed to fulfill the wishes of Ushadevi stated therein. The executors accepted and confirmed that the petitioner had at no point of time, released her share in the properties inherited by her on the death of Narayanrao, and that the Will was not binding upon the petitioner's one-half undivided share in the properties. The executors, further admitted that on the death of Narayanrao, both, the petitioner and Ushadevi became equally entitled to all the estate and properties of Narayanrao and that the Will cannot be implemented in respect of all the properties of Narayanrao. In view of the settlement and in view of the petitioner agreeing to fulfill the wishes of Ushadevi, the executors withdrew themselves as the administrators or executors of the Will and agreed for the petitioner to be appointed as the executor. 

They undertook not to object or obstruct the petitioner for her lawful ownership and enjoyment of the suit properties. It was further agreed that, the petitioner and the executors shall form a Charitable Trust in the name of Late Shrimant Narayanrao Bhave, within a period of 6 months from the date of the petitioner obtaining probate or letters of administration in respect of the Will. The trustees of the trust were to be, the petitioner as the Chief Managing Trustee, Vikrant Ghotge-the husband of the petitioner, Vivek Ghotge- father-in-law of the petitioner and the two executors under the Will. For implementation of the Will, it was agreed that the petitioner shall be entitled to sell the properties except the flat and appropriate 50% of the sale proceeds for her own benefits. The balance 50% was to be deposited with the Trust, for the purpose of its utilization as per the wishes of Ushadevi.

7. After withdrawal of the proceedings filed by the parties, the petitioner filed Misc. Application No.486 of 2004 in the Court of Civil Judge Senior Davison, Pune for grant of probate of the Will of Ushadevi and in the alternative for grant of Letters of Administration with the Will annexed. The executors gave their "No Objection", for allowing the application in favour of the petitioner. She also filed her affidavit of examination-in-chief in the application. Thereafter, however, the application remained pending in the Court.

8. On 13th February, 2012 respondent no.3, a Charitable Trust filed application at Exhibit 73 through its Chairman, under Order 1 Rule 10(2) read with Section 151 of Civil Procedure Code (CPC for short) for impleading itself to the Miscellaneous application. It claimed to be a charitable trust established in pursuance of the Will vide trust deed dated 4th October, 2011 registered with Sub-Registrar, Ramdurg. It further claimed that the properties of late Shrimant Narayanrao Bhave and his wife vest in it. 

As such, it claimed to be necessary party to the application. Respondent no.3 alleged in the application that the compromise arrived at between the petitioner and the executors travelled beyond "scope of law and jurisdiction of Hon'ble court" and that the petitioner has no legal right to seek probate of the Will or seek Letters of Administration.

9. The petitioner contested the application alleging that it was defective since it was neither verified nor was supported by an affidavit. Further respondent no.3 has no locus-standi to file the application. It is not entitled to challenge the compromise decree and that the Will nowhere provides for establishment of a trust. The petitioner denied that respondent no.3 is a necessary party to the application and that the properties of Narayanrao vest in it and that the petitioner has no legal right to seek probate of the Will. She also denied that she is not entitled to succeed to or inherit the estate of her father, who had died intestate.

10. The trial court allowed the application of respondent no.3 by the order impugned herein, with a very short reasoning, which reads as below:

"Third party is charitable trust and registered in pursuance of the said Will challenging all the properties of deceased Narayan Bhave and his mother Ushadevi Bhave now vested to third party trust. Third party wants to contest the claim of Probate filed by the objection. On the said ground, it appears me that presence of third party is necessary for deciding the claim of the applicant. I do not find any wrong if third party is added as opponent."

11. Mr. Behere, the learned advocate for the petitioner argues that the trial court did not even verify the claim of respondent no.3 that it was formed in pursuance of the Will and that in view of the Will the properties of Late Narayanrao vest in it. This argument is substantiated by bare reading of the impugned order. The learned Judge has neither referred to nor considered the contents of the Will and the trust deed. Undisputedly, the Will does not contemplate formation of a trust for implementation or execution of it's contents. The trust referred to therein is only in respect of the two temples owned by Narayanrao.

12. Mr. Kanetkar, the learned advocate for respondent no.3, per-contra, refers to Sections 211 and 307 of the Indian Succession Act to urge that the powers of an executor are vast and that the property of the deceased person vests in him. Section 211 of the Indian Succession Act puts the executor into the position of a legal representative of the deceased and the powers conferred upon executor by Section 307 of the Indian Succession Act are wide enough to enable him to form a trust for execution of the contents of the Will.

13. In view of the argument advanced by Mr. Kanetkar, it is now necessary to ascertain whether respondent no.3 can be said to have been formed for implementation of the directions under the Will and what is the nature of vesting of properties in the executors.

14. It will be convenient to reproduce at this place, Sections 211 and 307 of Indian Succession Act relied upon by Mr. Kanetkar and also Section 312 which would be relevant. Part VIII of Indian Succession Act with title "Representative title to property of deceased on succession opens with Section 211, which reads as follows:

"211. Character and property of executor or administrator as such.- (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. 

(2) When the deceased was a Hindu, Muhammadan, Buddhist, [Sikh, Jaina or Parsi] or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person."

Section 307 falls in Chapter VI with title "Of the powers of an Executor or Administrator". The other section relevant from Chapter VI in Section 312. The two sections read as follows:

"307. Power of executor or administrator to dispose of property.- (1) Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit.

Illustrations

(i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The bale is valid.

(ii) The executor in the exercise of his discretion mortgages a part of the immovable estate of the deceased. The mortgage is valid.

(2) If the deceased was Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by sub-section (1) shall be subject to the following restrictions and conditions, namely:-

(i) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.

(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,-

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 211, or

(b) lease any such property for a term exceeding five years.

(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person interested in the property.

(3) Before any probate or letters of administration is or are granted in such a case, there shall be endorsed thereon or annexed thereto a copy of sub-section (1) and clauses (i) and (iii) of sub-section (2) or of sub-section (1) and clauses (ii) and (iii) of sub-section (2), as the case may be.

(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by subsection (3) not having been made thereon or attracted thereto, not shall the absence of such an endorsement or annexure authorise an executor or administrator to act otherwise than in accordance with the provisions of this section."

"312. Survival of powers on death of one of several executors or administrators- Upon the death of one or more of several executors or administrators, in the absence of any direction to the contrary in the Will or grant of letters of administration, all the powers of the office become vested in the survivors or survivor."

15. Section 211 of Indian Succession Act, defines the status of the executor, as well as, that of the property of the deceased. The section confers, status of representative of the deceased for all purposes upon the executor or administrator. Also by virtue of the provision, property of the deceased vests in the executor as such. It is evident from the language of the section itself and in particular, use of the words "as such" that "vesting" of the property of the deceased in the executor is solely for the purpose of representation and for the purpose of it's administration under the Will. There is no absolute vesting of the property in the executor. The duration of the vesting, therefore would also be limited. 

The property remains vested only so long as the executor continues to fill the character of an executor during the course of administration of the estate i.e. until dispensation of the property as per the Will of the deceased. Any freedom enjoyed by the executor with vesting of the property in him, is bounded by the contents of the Will. Therefore, the action of formation of respondent no.3 by original respondent no.2, must be in accordance with and with the sole intent of administration of the estate of the deceased as per the Will.

16. The claim of respondent no.3 and the document of trust-deed dated 4th October, 2011 by which respondent no.2 has come into existence, will have to be appreciated against the backdrop of the above legal position. Original respondent no.2 (since deceased) is the settlor of respondent no.3. He is one of the executors of the Will and Diwanji of earstwhile, Ramdurg State. The other executor i.e. respondent no.1 has played no part in it. There is no explanation offered for leaving out respondent no.1 in the process of formation of the Trust. The explanation would be relevant since the tenor of the Will as seen above is such that, its contents are to be implemented jointly by the two executors.

17. The recital to the trust-deed which states the reason for setting up the trust reads as follows :-

"Shri Narayan Venkatesh Ogalapur, Age : 92 years, Occ : pensioner and Administrator, R/o: Padakot Galli, Ramdurg, Dist : Belgaum who is appointed as an administrator by late Smt. Ushadevi Narayanrao Bhave by executing a will dated 26-03-2000, authorizing the executants as administrator in view of the old age and the below named person supported to case to execute the work of administrator for the last more than one decade and decided a establish a trust as Raj Wade as per the will and wish executant of will dated 26-03-2000. And accordingly executing this deed of trust so as to achieve the desire of executants and accordingly This Deed of Trust is made and executed on this 4th day of October 2011, at Ramdurg Raj Wade, by appointing the following persons as Trustees to achieve the desire of the executants of will dated 26-03-2000 executed by Smt. Ushadevi Narayan Bhave."

From, what one can make out of, the recital, original respondent no.2 who, at the relevant time was 92 years old, was looking for support to implement the terms of the Will. Apparently, he had, earlier, been helped by the persons named as trustees in the trust-deed while administering the estate of Narayanrao, as well as, Ushadevi. Therefore, they were named as trustees alongwith himself. Significantly, the name of respondent no.1, the other executor does not figure in the list of trustees. Setting up such a trust, is directly in conflict with the wish of the deceased disclosed in the Will, which is that, the properties be administered by the named executors during their lifetime and thereafter by their children, who also have been specifically named. They are, the daughter of original respondent no.2, Mrs. Vakil and the son of respondent no.1, Shri. Vikas.

18. It is next to be noted that by appointing another trustee as the Chairman of the trust, original respondent no.2 relinquished his control over the administration of the property which is not permissible in law. Clause-7 of the trust-deed defines the powers of the Chairman. Sub-Clause (1) thereof, reads "the Chairman is whole and sole for activities of the trust and power to be existed (sic) with the consent of the other trustees". The powers under Sub-Clause-2 are for operation of the bank accounts and handling of the finances of the trust. Sub-Clause (3) grants authority to take any action for development of the trust objects. The power left with original respondent no.2 as the Vice-Chairman was merely to carry out the activities in the absence of the Chairman.

19. The objects of the trust have been stated at Clause-3 of the trust-deed. Object no.5 therein reads "to protect the property of RAJ WADA and to do any other acts in respect of the property of WADA as per the Will dated 26th March, 2011 and lease out and recover amount for the purpose of RAJ WADE maintenance." (emphasis supplied). This object of the trust is contrary to the desire of the deceased expressed in the Will. As already mentioned hereinabove, she desired that all the movable and immovable properties, except the flat at Pune be sold. Consequently, the executor has no authority to maintain the Raj Wada property and to lease it out to anybody for any purpose.

 Therefore, this object of the trust is contrary to the directions contained in the Will.

20. Clause-11 of the trust-deed states particulars of property of the trust. It reads as follows :-

"Particulars of property of Trust the property of the trustees as per the will executed on 26/03/2000 by Late Smt. Ushadevi Narayanrao Bhave."

This clause is again not consistent with the contents of the Will, because as already noted hereinabove, the Will permits retention of only three properties, the two temple properties and the flat at Pune. Further, formation of trust could only be in respect of the temple at Wai, Satara and that too with only the executors as the trustees during their lifetime and thereafter their children named in the Will.

21. Thus formation of respondent no.3, is in no way in accordance with the Will. The intention behind formation of respondent no.3, is also, clearly, not to administer the estate of the deceased in accordance with the Will. It smacks more of an attempt to usurp the properties of Narayanrao Bhave.

22. Mr. Kanetkar, argues that respondent no.3 is a duly registered trust. It's trust-deed declares the properties mentioned in the Will as the trust properties. Therefore, that declaration ought to be accepted by the Court. Once that is accepted, the trust becomes a necessary party to the suit filed by the petitioner. There can be no merit in the argument. The declaration by the trust of it's properties is not sacro-sanct and it cannot be said that there cannot be any further enquiry into the claim to the property beyond the contents of the trust-deed.

23. In all the above circumstances, the trust can never be said to be a necessary party to the proceedings for probate/letters of administration with Will attached. Besides, as long as respondent no.1 is available for taking care of the Will and it's contents, in view of the provision of Section 312 of Indian Succession Act, no other party can be concerned with the Will.

24. Mr. Kanetkar, lastly makes submission on the scope of enquiry by this Court in the petition filed under Article 227 of the Constitution of India. In this connection, he relies upon the decision of the Apex Court in Shalini Shyam Shetty and Another V/s. Rajendra Shankar Patil, reported in 2010 (8) SCC page 329. The Apex Court at paragraph-62 of the decision, formulates the principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution of India. Suffice it to say that, the facts of the present case fit into the principle at sub-para (g) which reads as follows :-

"(g). Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted."

25. For the above reasons, the petition is allowed in terms of prayer clause (a). The application at Exhibit-77 filed by respondent no.3 in Misc. Application No.486 of 2004 is dismissed. Respondent no.3 shall pay costs of the petition quantified at Rs.25,000/- (Rs. Twenty Five Thousand only) to the petitioner within a period of 4 weeks from today. At the request of Mr. Kanetkar, the operation of this order is stayed for a period of 4 weeks from today. The interim order in the petition shall continue during the period of stay.