Bombay High Court
Mr.Yatin Hariram Ruparel vs Shantadevi Hariram Ruparel on 27 June, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:9619
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO.392 OF 2021
IN
TESTAMENTARY PETITION NO.377 OF 2008
Bhavana Harish Ruparel and Ors. ... Applicants
and
Yatin Hariram Ruparel And Anr. ... Petitioners
versus
Ashwin Hariram Ruparel ... Respondent
WITH
INTERIM APPLICATION (L) 15054 of 2021
IN
TESTAMENTARY PETITION NO.377 OF 2008
Ashwin Hariram Ruparel ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
WITH
INTERIM APPLICATION NO.2376 OF 2022
IN
TESTAMENTARY PETITION NO.377 OF 2008
Krishnaraj Pratap Thaker ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
versus
Ashwin Hariram Ruparel and Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO.8791 OF 2022
IN
TESTAMENTARY PETITION NO.377 OF 2008
Yatin Hariram Ruparel ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
versus
Ashwin Hariram Ruparel and Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO.11209 OF 2022
SSP / Arun 1/63
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IN
TESTAMENTARY PETITION NO.377 OF 2008
Ashwin Hariram Ruparel ... Applicant
and
Yatin Hariram Ruparel and Anr. ... Petitioners
Dr. Abhinav Chandrachud with Ms. Khushboo Rupani, Mr. Sharan Shetty i/by
HSA Advocates for Applicants in IA No.392 of 2021.
Mr. Avesh Harshan i/by Bose and Mitra and Co., for Original Petitioner No.2 in
TP No.377 of 2008 and for Applicant in IA No.2376 of 2022.
Mr. S.C.Naidu with Mr. Omkar Kulkarni, Mr. Pradeep Kumar, for Petitioner
No.1 in TP No.377 of 2008 and forApplicant in IAL No.3791 of 2022.
Mr. Anoshak Daver with Mr. Viraj Jadhav, for Respondent No.1 in IA No.392 of
2021 and for Applicant in IAL 15054 of 2021 and 11209 of 2022.
CORAM : N.J.JAMADAR, J.
RESERVED ON : 24 OCTOBER 2024
PRONOUNCED ON : 27 JUNE 2025
JUDGMENT :
1. All these Interim Applications have their genesis in Testamentary
Petition No.377 of 2008 filed for grant of Letters of Administration to the
property and credits of Shantadevi Ruparel (Deceased).
2. In view of the order passed by the Appeal Bench dated 2 May 2024 in
Appeal No.86 of 2024, all these Interim Applications were heard together and
are being decided by this judgment.
3. In the backdrop of the genesis of the disputes which essentially revolve
around the due and proper administration of the estate of the deceased and
the developments that have occurred during the pendency of these
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applications pursuant to the various orders passed over a period of time, it
may not be necessary to elaborately note the pleadings in each of the Interim
Applications. It would be in the fitness of things to first note the background
facts in a little detail and then briefly advert to the averments and prayers in
each of the Interim Applications and the response thereto.
4. BACKGROUND FACTS :
4.1 Hariram Ruparel was the husband of Shantadevi (deceased). Hariram
passed away on 10 May 1970. The deceased had three sons and three
daughters by Hariram. The deceased passed away on 19 November 2007.
Vijayalaxmi, Indira, Bhagwati and Harish predeceased the deceased. Ashwin
and Yatin are the surviving sons.
4.2 Yatin (P1) instituted a Petition with the assertion that, the deceased
died intestate and sought Letters of Administration to the property and credits
of the deceased. Krishnaraj (P2), son of Indira, had initially filed a caveat.
4.3 In the said Petition, on 21 September 2009, consent terms were filed by
the Petitioners. Pursuant thereto, by an order dated 12 July 2010, the Court
granted Letters of Administration, whereunder Yatin (P1) and Krishnaraj (P2)
were appointed as joint administrators of the estate of the deceased.
4.4 Bhavana (A1) is the wife of Harish and Lisha (A2) and Kunal (A3) are
the daughter and son, respectively, of Harish – Applicants in IA No.392 of
2021.
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4.5 Harshal Dhabliwala, son of Vijayalaxmi, relinquished his 1/5th share in
the estate of the deceased in favour of Yatin (P1), Bhavana (A1), wife of
Harish, and Ashwin (R1). By an order dated 25 July 2012 passed in Chamber
Summons No.72 of 2012, the Court directed the joint Administrators to divide
the said 1/5th share of Harshal Dhabliwala among Yatin (P1), Bhavana (A1)
and Ashwin (R1). Resultantly, Yatin (P1), Bhavana (A1), Lisha (A2) and Kunal
(A3), collectively, and, Ashwin (R1) each have 26.66% share in the estate of
the deceased and Krishnaraj (P2) has 20% share in the estate of the
deceased.
IA NO.392 OF 2021
4.6 Bhavana (A1), Lisha (A2) and Kunal (A3), filed Interim Application
No.392 of 2021, asserting inter alia that the Petitioners, especially Yatin (P1),
have not provided full, complete and accurate disclosure of the estate of the
deceased and have mal-administered the estate of the deceased and also
siphoned off the funds out of the estate of the deceased. The applicants had,
thus, initially sought relief of removal of the Petitioners as joint Administrators
of the estate of the deceased and appointment of a fit and proper person as
Administrator of the estate, declare that the Petitioners / joint administrators
had illegally and unlawfully made preferential distribution to few selected
persons to the detriment of the heirs of the deceased; direct the Petitioners
and Ashwin (R1) to bring back into the estate of the deceased the monies
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which had been preferentially distributed to some heirs and appoint Court
Receiver for the purpose of administering the estate of the deceased.
4.7 Number of affidavits and undertakings were filed by Yatin (P1). Orders
were also passed by the Court directing the Petitioners to make a complete
disclosure of the financial transactions and dealings with the immovable
properties of the deceased. Disclosures and undertakings were filed.
Statement of expenses (marked X), and Statement (X-1) were filed by Yatin
(P1) on 16 December 2021 indicating how the amount received from the
estate of the deceased was proposed to be distributed.
4.8 By an order dated 11 February 2022, this Court permitted the
Petitioners to act upon the statement of expenses (marked X) as well as the
statement of distribution of monies (X-1).
4.9 The aforesaid order was carried in Appeal (L) No.3483 of 2022 and the
connected appeals. By an order dated 9 March 2022, the Appeal Bench
directed that the orders impugned in the appeal were not to be implemented
or acted upon pending the hearing and final disposal of the Interim
Applications.
4.10 Eventually, by an order dated 5 April 2023 in IA No.392 of 2021, with
the consent of the parties, Yatin (P1) and Krishnaraj (P2) relinquished the joint
administratorship and Mr. Anoj Menon, Solicitor, came to be appointed as an
Administrator and Ms. Krupa Gandhi was appointed as an Auditor with certain
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directions. Thus, the prayers to remove the Petitioners as joint administrators
and the appointment of the another administrator In Interim Application
No.392 of 2021 stood worked out.
4.11 The Interim Application No.392 of 2021 has been, thus, prosecuted for
the reliefs of declaration that the Petitioners had made preferential distribution
and the Petitioners and Ashwin (R1) be directed to bring back into the estate
of the deceased the monies which have been preferentially distributed. As
the auditor submitted the Audit Report, the Applicants have heavily banked
upon the findings and the comments of the auditor to substantiate their
claims.
IA No.2376 of 2022
4.12 Krishnaraj (P2) has filed IA No.2376 of 2022 with the contention that the
debts of the estate have not been accurately described in the Statement
(marked X) and that Yatin (P1) be directed to provide complete accounts of
the estate to the beneficiaries of the estate along with upto date statement of
accounts of the estate with Bank of Maharashtra, Indian Overseas Bank and
Central Bank of India and that no payment shall be made without leave of the
Court on account of purported expenses recorded in the statement (Marked
X), except for payment of statutory dues. It was asserted that the said
statement (marked X) had been unilaterally prepared by Yatin (P1) and was
not accurate record of the amounts due to be paid by the estate. Krishnaraj
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(P2) was made to sign the said statement (marked X) in good faith.
IA(L) No.8791 of 2022
4.13 Yatin (P1) took out Interim Application (L) No.8791 of 2022 to release
and distribute the amount of Rs.8,36,45,743/- to the legal heirs of the
deceased as per the Statement of Distribution which was annexed as Exhibit I
thereto and the balance amount of Rs.4,62,44,048/- be kept in a fixed deposit,
subject to the decision in IA No.392 of 2022 and IA(L) No.3806 of 2022. It
was, inter alia, asserted that pursuant to the order passed by the Supreme
Court enhancing the compensation for the acquisition of the land owned by
the deceased at Village Adai, Tal Panvel, Dist. Raigad, a sum of
Rs.12,98,89,791/-, after deduction of TDS, became receivable to the estate of
the deceased. Referring to the purported inconsistent stand of Krishnaraj
(P2) and the Applicants in IA No.392 of 2021, Yatin (P1) proposed that after
keeping aside the disputed claim to the tune of Rs.4,62,44,048/-, the balance
amount of Rs.8,36,45,743/- be distributed amongst the Petitioner Nos.1 and
2, Ashwin (R1) and the applicants in IA No.392 of 2021 in the ratio indicated
above.
IA(L) No.15054 of 2021
4.14 Ashwin (R1) has preferred IAL No.15054 of 2021 seeking directions to
the Administrator to incorporate 1/4th share of the deceased in the properties
of late Harish, son of the deceased and husband of Bhavana (A1), as
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described in Exh. A, in the Schedule I to the Letters of Administration issued
in TP No.377 of 2008.
4.15 As an interim measure, a direction was sought against the Applicants in
IA No.392 of 2021 to deposit an amount of Rs.95,82,456/- with the
Administrator of the estate of the deceased towards the share of the
deceased in the estate of late Harish. Ashwin (R3) asserted that the lands
described in Exh.A were the joint family properties. Without prejudice to the
said contention, at any rate, the deceased being the Class I heir of Harish,
was entitled to succeed to the estate of late Harish along with Bhavana (A1),
Lisha (A2) and Kunal (A3), in equal share. Upon the acquisition of the said
lands, the applicants in IA No.392 of 2021 have received a sum of
Rs.5,11,06,440/- out of the total compensation of Rs.9,83,06,440/-, to the
exclusion of Shantadevi, the deceased mother of late Harish. The applicants
in IA No.392 of 2021 did not deliberately disclose that the deceased was also
entitled to succeed to the estate of late Harish. Therefore, it was necessary to
incorporate said 1/4th share of the deceased in the lands (Exh.A), and,
consequently, in the compensation receivable upon the acquisition of the said
lands, in the Schedule of Properties appended to the Letters of
Administration.
IA(L) No.11209 of 2022
4.16 Ashwin (R1) took out another Interim Application i.e. IAL No.11209 of
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2022 seeking directions to the surviving legal heirs of late Harish and/or
Maharashtra State Road Development Corporation Limited (Acquiring Body)
to directly deposit an amount of Rs.1,24,56,688/- with the administrators of
the estate of the deceased towards the share of the deceased in the estate of
late Harish. It was, inter alia, contended that the properties which stood in the
name of Harish were not his self-acquired properties, but the properties
acquired out of the income of the business of Hindustan Commercial
Company, a HUF. Thus, the applicant – Ashwin (R1) and other legal heirs of
late Harish were entitled to succeed to the estate of late Harish. In any
event, Shantadevi, the deceased mother of Harish, was entitled to succeed to
1/4th share in the estate left behind by Harish.
4.17 It was learnt that MSRDC was in the process of transferring balance
amount of compensation to the Court. Thus, the deceased was entitled to a
sum of Rs.1,24,56,688/- towards her share in the balance amount of
compensation. Hence, Ashwin (R1) sought directions to the Applicants in IA
No.392 of 2021 and/or MSRDC to deposit the said amount with the
Administrator of the estate of the deceased.
5. The situation which thus emerges is that in these Interim Applications in
TP No.377 of 2008, wherein Letters of Administration have been granted to
Yatin (P1) and Krishnaraj (P2) for the property and credits of the deceased,
SSP / Arun 9/63
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there are rival claims as to due administration of the estate of the deceased.
6. In IA No.392 of 2021, the applicants who are the heirs of late Harish,
predeceased son of the deceased, alleged that the joint administrators have
made preferential distribution to few persons to the detriment of the
applicants; in IA No.2376 of 2022, Krishnaraj (P2), the erstwhile joint
administrator, by and large, supports the claim of the Applicants in IA No.392
of 2021 and seeks directions against Yatin (P1) to provide complete accounts
and distribute the estate of the deceased in accordance with the respective
shares of the heirs; Yatin (P1), in turn, seeks partial distribution of the estate
of the deceased amongst the legal heirs of the deceased, keeping aside the
sums over which there are disputes and Ashwin (R1) seeks inclusion of the
1/4th share of the deceased in the estate of late Harish in the Schedule of
property appended to the Letters of Administration alleging that the applicants
have wrongfully appropriated the entire estate of late Harish to the exclusion
of the deceased.
7. The prayers in the respective applications are opposed by the
opponents / applicants in the rival applications Number of affidavits have
been filed on behalf of the parties.
8. In the wake of the pleadings and the aforesaid facts, I have heard Dr.
Chandrachud, learned Counsel for the Applicants / heirs of late Harish,
Mr.Avesh Harshan, learned Counsel for Krishnaraj (P2), Mr. Naidu, learned
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Counsel for Yatin (P1) and Mr. Anoshak Daver, learned Counsel for Ashwin
(R1) in IA No.392 of 2021 and the Applicant in IA(L) Nos.15054 of 2021 and
11209 of 2022, at some length. Learned Counsel for the parties took the
Court through the pleadings and documents on record, including the audit
report filed by the Auditor pursuant to the order passed by this Court. Learned
Counsel have also tendered written notes in elaboration of the submissions
canvassed across the bar.
9. Dr. Chandrachud, the learned Counsel for the Applicants, would urge
that the facts which have progressively emerged indicate that Yatin (P1) has
abused the office of the Administrator of the estate of the decesed. Adverting
to various acts of commission and omission, Dr. Chandrachud would urge that
Yatin (P1) resorted to all sorts of pretexts and subterfuge to justify the
preferential distribution of assets of the deceased to himself, his wife Jyoti and
Ashwin (R1) by taking inconsistent and, at times, contradictory defences,
when the pretence was unearthed.
10. Dr. Chandrachud premised the prayer to direct Yatin (P1) and Ashwin
(R1) and the other persons, to whom there has been alleged preferential
distribution of the assets, on the orders passed by this Court in these very
proceedings, dated 7th April 2021, 5th April 2023 and 21st March 2024. Placing
reliance on these orders, Dr. Chandrachud would submit that the challenge to
the maintainability of the Interim Application No.. 392 of 2021 on the ground
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that the proper remedy is to institute a separate Suit to recover amounts that
have allegedly been preferentially allotted or otherwise pilfered from the
estate of the deceased, is not at all tenable.
11. Dr. Chandrachud, would urge that under Section 303 and 304 of the
Indian Succession Act, a person who intermingles with the estate of the
deceased is liable to compensate the estate for the loss. Under Section 368
of the Act of 1925, an Administrator who misapplies the estate is liable to
make good the loss to the estate. The powers of the Testamentary Court, Dr.
Chandrachud would urge, are plenary.
12. A strong reliance was placed by Dr. Chandrachud on the judgment of
the Division Bench of this Court in the case of Manek Dara Sukhadwalla Vs
Shernaz Faroukh Lawyer & Others,1 to buttress the submission that there is
no restraint on the power of the Testamentary Court to fashion the remedies
to ensure that the estate of the deceased is administered in accordance with
the law. Therefore, if the Applicants succeed in demonstrating that Yatin (P1)
has made preferential distribution and otherwise caused loss to the estate of
the deceased and Yatin (P1), Ashwin (R1) and other heirs have unjustly
enriched themselves, the Court can direct those persons to bring back the
said amount alongwith interest.
13. The submissions were principally rested on the Auditor’s final report
1 2024 SCC OnLine Bom 2204.
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submitted in terms of the order dated 5 April 2023 passed by this Court in IA
th
No. 392 of 2021. Dr. Chandrachud took the Court through the finding of the
Auditor qua each item of the alleged preferential allotment and/or loss to the
estate of the deceased, to draw home the point that Yatin (P1), Ashwin (R1)
and others who have unjustly enriched themselves, were given an efficacious
opportunity by the Auditor and they could not satisfactorily account for the
same and on the basis of objective material, the Auditor has recorded
objective findings and even Yatin (P1) and Ashwin (R1) have miserbly failed
before this Court despite filing multiple Affidavits and statements.
14. At this stage, it may not be necessary to document the submission on
each count of allotted preferential distribution and pilferation of the estate of
the deceased. Instead the Court finds it appropriate to broadly note the
submissions and appreciate the same in the light of facts and material which
are on the record of the Court.
15. As many as nine instances of preferential distribution of the estate to
the detriment of the Applicants and others were pressed into service.
Distribution was made to Yatin (P1), Ashwin (R1) and Jyoti, the wife of Yatin,
out of the estate of the deceased which were suppressed and not made part
of the original schedule of assets annexed to the Petition. Secondly, Leena
Ruparel, wife of Ashwin (R1), who is not an heir of the deceased, Ashwin (R1)
and Yatin (P1), have preferentially received the assets from the estate of the
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deceased, which were initially suppressed and not made part of the schedule
of assets. When the blatant suppression was brought to light, the Petitioner,
Yatin (P1) and Ashwin (R1) offered explanations which were ex-facie
untenable and even contradictory.
16. Another feature of the case of Yatin (P1) and Ashwin (R1) was that they
tried to offer different explanations and justify the usurpation of the estate of
the deceased to suit their convenience at varying points of time, urged Dr.
Chandrachud. Initially, in an email dated 28th October 2020, Ashwin (R1)
sought to rely upon a purported “custom” in Navi Mumbai that the family
member(s) who participated in litigation concerning land acquisition
proceedings were entitled to 10% of the proceeds of compensation and
sought payment in excess of Rs. 1 Crore. When this Court thoroughly
repelled the said contention by order dated 25 th March 2021, Yatin (P1) and
Ashwin (R1) propounded the theory of “out of pocket expenses” and
“liaisoning fees”, allegedly incurred by them. Krishnaraj (P2) the co-
administrators categorically denied such out of pocket expenses. Not only no
document could be produced to support the said contention but even the
amounts kept changing. A reference was made to various Affidavits filed by
Yatin (P1) and Ashwin (R1) to demonstrate the unsustainability of the said
claim of Yatin (P1) and Ashwin (R1). Even the said, “out of pocket expenses
theory” was rejected by this Court by an order dated 7 th April 2021.
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Undaunted, Yatin (P1) in the statement of the proposed distribution (X1)
claimed that Advocates’ fees to the tune of Rs..1.51 Crores was required to be
paid out of the estate of the deceased. Even the said stand was rejected by
this Court by an order dated 21st March 2024.
17. Dr. Chandrachud would, thus, urge that at different points of time, Yatin
(P1) and Ashwin (R1) have made desperate attempts to justify their unjust
enrichment by ascribing reasons which were ex-facie unsustainable and even
contradictory. In the face of overwhelming material to show that Yatin (P1) and
Ashwin (R1) have unlawfully converted the estate of the deceased to their
own use, in excess of the their entitlement, final distribution of the estate of
the deceased cannot be effected without Yatin (P1), Ashwin (R1) and others,
who have unjustly enriched themselves, first being directed to bring the said
amounts in the estate of the deceased.
18. Dr. Chandrachud submitted that in the light of the aforesaid situation, it
would be in the interest of all the heirs of the deceased to withhold the
distribution until all the issues are resolved and the preferentially distributed
amount is brought back along with interest.
19. Dealing with the submission on behalf of Yatin (P1) that the disputed
amount be retained and the balance amount be distributed amongst the heirs,
Dr. Chandrachud urged that, if any amount is to be set apart to account for
the preferentially distributed / siphoned off amount, it should be set apart from
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the share which would be payable to Yatin (P1) and Ashwin (R1), lest it would
amount to permitting Yatin (P1) and Ashwin (R1) to utilize the estate of the
deceased to which they were not entitled, to the detriment of the other legal
heirs who are not at all at fault.
20. In respect of the prayers in the Interim Application (L) Nos.51054 of
2021 and 11209 of 2022 preferred by Ashwin (R1), Dr. Chandrachud
submitted that the applications are based on the assumption that Harish, the
predecessor in title of the Applicants, died intestate. As a matter of fact,
Harish had left behind a Will for the Probate of which the Applicant No.1 has
instituted a Petition. Upon the caveats being filed, the said Petition has been
converted into a Testamentary Suit. Thus, at this stage, the prayers in the
Interim Application to include the alleged ¼ share of the deceased in the
property left behind by Harish is completely pre-mature. Moreover, the issue
would require adjudication by the testamentary Court.
21. In any event, the applicant is raising the issue about the title to the
property left behind by Harish which cannot be delved into by the
testamentary Court. Therefore, the applications preferred by Yatin (P1) and
Ashwin (R1) deserve to be dismissed.
22. Mr. Avesh Harshan, the learned Counsel for Krishnaraj (P2),
supplemented the submissions of Dr. Chandrachud to the extent of the
alleged unwarranted and preferential distribution by Yatin (P1). The
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statement of expenses (X) and the distribution proposed by Yatin (P1) (X-1)
were stated to be incorrect and misleading. It was controverted that the
amounts were distributed by the joint administrators. Most of the amounts,
the distribution of which is questioned, were withdrawn by Yatin (P1) from the
estate prior to the grant of Letters of Administration. It was further submitted
that apart from the wrongful withdrawals from the estate of the deceased,
Yatin (P1) and Ashwin (R1) have suppressed and continued to suppress the
estate of the deceased. Deliberate wrongful acts of causing loss to the estate
of the deceased, like filing NIL income tax returns, were pressed into service
by Mr. Harshan to draw home the point that Yatin (P1) had mal-administered
the estate of the deceased.
23. Like Dr. Chandrachud, Mr. Harshan placed reliance on the observations
and findings of the auditor with regard to the various items of preferential
allotment and wrongful distribution. Mr. Harshan submitted that the
contention on behalf of Yatin (P1) that the issue of disputed / excess
withdrawal of the amount be kept aside and not considered for distribution, is
misleading as Yatin (P1) and Ashwin (R1), having already misappropriated the
amounts from the estate of the deceased in excess of their entitlement and to
the prejudice of other legal heirs, cannot be permitted to take advantage of
their own wrong.
24. Mr. Harshan was in unison with Dr. Chandrachud that Yatin (P1) and
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Ashwin (R1) must be directed to bring back the amounts in terms of the order
passed by this Court dated 7 April 2021, since their liability stands crystalized
by the report of the auditor and the material on record. If any additional
disbursal is to be made, a sum of Rs.1 Crore be kept aside to meet the
increased income tax liability.
25. Mr. Naidu, learned Counsel for Yatin (P1) stoutly resisted the
submissions on behalf of the Applicants and Krishnaraj (P2). At the outset, Mr.
Naidu submitted that by the order dated 5 April 2023, all the prayers in the IA
No.392 of 2021 stand worked out. A Solicitor of this Court has been
appointed as an Administrator. The auditor has examined the accounts and
submitted voluminous reports. Since the estate is under the management of
Court appointed Administrator, the prayer to appoint the Receiver does not
survive.
26. Referring to the provisions contained in Section 247 of the Act, 1925,
Mr. Naidu would urge, the Administrator has all rights and powers of a general
Administrator. Therefore, all the original prayers in IA No.392 of 2021 have
been completely worked out.
27. Mr. Naidu would strenuously submit that the amended prayers (a1) and
(a2) seeking declaration regarding the preferential distribution and a direction
to bring back the amounts allegedly preferentially, or for that matter,
wrongfully distributed, can, under no circumstances, be subject matter of an
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application in a disposed off testamentary petition. Mr. Naidu submitted that,
the contentious issues which would warrant adjudication post recording of
evidence cannot be delved into and determined in an interim application.
Proper remedy for the person who alleges improper or wrongful distribution of
the assets by the Administrator is to institute a suit for administration, wherein
the Court can legitimately decide the questions which are rooted in facts.
28. The aforesaid submission that the instant application is not a proper
remedy was forcefully canvassed by Mr. Naidu with reference to the various
items of alleged preferential / wrongful distribution of the estate of the
deceased. For instance, Mr. Naidu would urge, the applicants have
questioned the payment of a sum of Rs.2,30,000/- to Jyoti, under a cheque
drawn by the deceased in her lifetime. The said cheque was presented for
encashment after the demise of the deceased. It is the case of Jyoti that the
deceased had paid the said amount by way of gift to her during former’s
lifetime. If this contention is accepted, then the said amount would cease to
be part a of the estate left behind by the deceased. Determination of rival
contentions would, thus, warrant examination of facts and evaluation of
evidence to be adduced by the parties.
29. Mr. Naidu thus submitted that it is well recognized position in law that
the beneficiary who questions the administration of the property by the
administrator is required to institute an administration suit, especially when
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the applicants questioned the extent of the estate of the deceased as of the
date of demise. The said question can only be adjudicated in an
administration suit. To buttress this submission, Mr. Naidu placed a very
strong reliance on the judgment of the Supreme Court in the case of Babulal
Khandelwal and Ors. V/s. Balkrishan D. Sanghavi and Ors.2.
30. As a second limb of the submission, Mr. Naidu would urge, the
applicants have made bald allegations of fraud against Yatin (P1). If the
allegations of fraud qua the administrator is to be proved, primary requirement
is that of specific pleadings as envisaged under the provisions contained in
Order VI Rule 4 of the Code. There are no such specific pleadings. In any
event, serious allegations of fraud cannot be determined on the strength of
the affidavits and counter affidavits, as the affidavits amount to oath against
oath. The allegations would be required to be decided by subjecting
witnesses to the cross-examination. It was further submitted that the
applicants, after more than 10 years of having given consent for the grant of
Letters of Administration and reaped benefits of the distribution of the estate
of the deceased, have raised dispute regarding the estate left behind by the
deceased. Thus, the said question cannot be adjudicated by way of an
application in a disposed off proceeding, and, for this reason also, the only
course open to the Applicants is to institute an independent suit for the
2 (2008) 10 SCC 485
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recovery of alleged preferential and wrongful distribution.
31. In any event, according to Mr. Naidu, the distribution made by Yatin
(P1) and Krishnaraj (P2) jointly, was in the nature of an ad-hoc distribution.
The entire estate of the deceased is yet to be realized and finally distributed.
Therefore, at this stage, the prayers in the instant applications are
misconceived and pre-mature.
32. On the merits of the allegations that there has been preferential and
wrongful distribution of the assets, Mr. Naidu submitted that Yatin (P1) and
Ashwin (R1) have offered explanations to each and every allegation of
preferential distribution or excess withdrawal of the amount from the estate of
the deceased. Taking the Court through the Report of the Auditor, the
disclosures made by Yatin (P1) and the documents tendered in IA (L) No.
8791 of 2022, Mr. Naidu made an endeavour to meet each of the allegations
and demonstrable that each of the disbursal and withdrawal has been
properly accounted for. Mr. Naidu would urge, at best, the allegations of
maladministration of the estate of the deceased are inferential. Even
otherwise, if the correctness of such disbursal or withdrawal is contested,
those issues can be adjudicated only by way of an Administration Suit and not
in an interim application, reiterated Mr. Naidu.
33. The allegations of loss to the estate of the deceased on account of the
alleged incorrect return and non-payment of the tax, Mr. Naidu would urge,
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does not survive as in conformity with the opinion of the Senior Advocate, an
updated Income tax Return for the Assessment Year 2022-2023 has been
filed and tax of Rs.2,93,32,151/- has been paid after adjusting the TDS.
34. In substance, Mr. Naidu would urge, even the final audit report, on
which reliance has been placed by the Applicants, does not allude to any
misappropriation or siphoning off the funds by Yatin (P1). The prayers of the
Applicants are based on the inferences drawn by the Applicants to suit their
convenience. That cannot be the basis for either directing Yatin (P1) and
others to bring back the amount into the estate of the deceased or withholding
further distribution of the assets of the deceased.
35. Mr. Daver, the learned Counsel for Ashwin (R1), supplemented the
submissions of Mr. Naidu, on the aspect of the tenability of the Applications
seeking directions to bring back the amounts which were allegedly
preferentially or wrongfully distributed. It was submitted such reliefs can be
legitimately granted in an Administration Suit.
36. Mr. Daver laid special emphasis on the fact that the efforts of Ashwin
(R1) resulted in multifold enhancement in the compensation awarded for the
acquisition of the properties situated at Village Adai, Taluka Panvel. Mr. Daver
would urge the initial compensation of Rs. 44 lakhs, approximately, came to
be enhanced to Rs.30 Crores, approximately, only on account of the time,
efforts and expenses expended by Ashwin (R1). The Applicants, after having
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reaped benefit of enhanced compensation, have dishonestly questioned the
liability of the estate to pay the Advocate’s fees and out of pocket expenses
incurred by Ashiwin (R1).
37. Mr. Daver submitted that Ashwin (R1) received only those amounts
which were disbursed by cheques, drawn by the joint Administrators. Thus,
the allegation that Yatin (P1) acted in connivance with Ashiwin (R1) and made
preferential distribution to Ashwin (R1), does not hold any water. With regard
to the alleged excess distribution, Mr. Daver submitted, given an opportunity
Ashwin (R1) would be able to satisfy that the expenses incurred by Ashwin
(R1) were all legitimate. Such contentious issues, therefore, cannot be
decided de hors evidence, in the instant application. Therefore, at this stage,
the prayer of the Applicants seeking direction to Ashwin (R1) to bring back the
alleged excess disbursal, does not merit acceptance.
38. Mr. Daver would further submit that a substantial portion of the estate of
the deceased still lies in this Court. The interest of the beneficiaries can be
secured if partial distribution of the rest of the amount is ordered, keeping the
disputed amount aside.
39. With regard to the prayer in the Interim Application (L) No. 15054 of
2021 and Interim Application (L) 11209 of 2022, filed by Ashwin (R1), Mr.
Daver would submit that the deceased being Class I heir of Harish Ruparel
was entitled to one fourth share in the properties left behind by Harish
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Ruparel, in the least; though it is the case of Ashwin (R1) that those properties
were impressed with the character of joint family properties as those
properties were acquired when Harish was still a minor. Therefore, a direction
to the Administrator to include the said property in the list of assets of
Shantadevi is necessary.
40. Mr. Daver would urge that to resist the claim of Ashwin (R1), the
Applicants have relied upon a purported Will executed by late Harish. The fact
that the said Will came to be propounded after 20 years of the demise of
Harish itself, according to Mr. Daver, speaks volumes about the legality,
validity and genuineness of the said Will. Therefore, the pendency of
testamentary proceeding does not constitute an impediment in bringing the
said assets as a part of the estate of the deceased.
41. The aforesaid submissions now fall for consideration.
INTERIM APPLICATION NO.. 392 OF 2021 :
42. The surviving reliefs in IA No. 392 of 2021 pertain to a declaration that
the Petitioners had made preferential distribution and thus, the Petitioners and
Ashwin (R1) be directed to bring back into the estate of the deceased the
monies which have been preferentially or wrongfully distributed or
appropriated. As noted above, the very tenability of the Application for such
reliefs was seriously assailed on behalf of Yatin (P1) and Ashwin (R1). An
Interim Application in a disposed off Petition cannot be entertained and the
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only remedy was to institute a Suit for Administration was the fulcrum of the
submission on behalf of Yatin (P1) and Ashwin (R1).
Tenability of the Applications :
43. The submission was rested on the premise that, in the context of the
allegations, the question as to whether a particular asset formed part of the
estate of the deceased cannot be delved into in a testamentary proceeding. A
determination as to whether a particular property forms part of the estate of
the deceased, as of the date of her demise, would warrant investigation into
facts. Likewise, whether there has been distribution in excess of the
entitlement and whether the explanations offered by Yatin (P1) and Ashwin
(R1) regarding particular items of expenditure incurred and reimbursed, are
matters rooted in facts and, thus, cannot be determined on the basis of
assertions and denials in the Affidavits.
44. To begin with, it is necessary to note whether there is a legislative
mandate to sustain the enquiries which the Applicants desire the Court to
embark upon?.
45. Dr. Chandrachud would urge, the legislative mandate can very will be
found in the provisions of Sections 303, 304 and 368 of the Act of 1925.
Before adverting to those provisions, a few facts, especially the time-line,
deserve to be kept in view. The deceased passed away on 19 th November
2007. Yatin (P1) instituted Testamentary Petition No. 377 of 2008 on 16 th April
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2008. Pursuant to the Consent Terms, by an order dated 12 th July 2010, the
Court granted Letters of Administration and appointed Yatin (P1) and
Krishnaraj (P2) as the joint Administrators of the estate of the deceased. The
Letters of Administration were thus granted after about 32 months of the
death of the deceased.
46. Section 303 of the Act of 1925 provides the circumstances in which a
person can be said to be the executor of his own wrong. It reads as under:
“303. Executor of his own wrong. – A person who
intermeddles with the estate of the deceased, or does any other
act which belongs to the office of executor, while there is no
rightful executor or administrator in existence, thereby makes
himself an executor of his own wrong.
Exceptions. – (1) Intermedding with the goods of the deceased
for the purpose of preserving them or providing for his funeral or
for the immediate necessities of his family or property, does not
make an executor of his own wrong.
(2) Dealing in the ordinary course of business with goods of
the deceased received from another does not make an executor
of his own wrong.”
47. Section 304 of the Act of 1925, fixes the liability of the executor of his
own wrong. It reads as under:
“304. Liability of executor of his own wrong. – When a
person has so acted as to become an executor of his own
wrong, he is answerable to the rightful executor or administrator,
or to any creditor or legatee of the deceased, to the extent ofSSP / Arun 26/63
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the assets which may have come to his hands after deducting
payments made to the rightful executor or administrator, and
payments made in due course of administration.”
48. Sections 368 and 369 of the Act of 1925 deal with the liabilities of the
executor or administrator for devastation, and loss to the estate by neglecting
to get any part of the property of the deceased. They read as under:
“368. Liability of executor or administrator for devastation. –
When an executor or administrator misapplies the estate of the
deceased, or subjects it to loss or damage, he is liable to make
good the loss or damage so occasioned.”
Illustrations :
(i) The executor pays out of the estate an unfounded claim.
He is liable to make good the loss.
“369. Liability of executor or administrator for neglect to
get any part of property. – When an executor or administrator
occasions a loss to the estate by neglecting to get in any part of
the property of the deceased, he is liable to make good the
amount.”
49. In the case at hand, the two sets of provisions; Sections 303, 304, and
368 and 369, of the Act of 1925 may came into play at different stages of the
dealings with the estate of the deceased by Yatin (P1) and Ashwin (R1), on
the one part, and Yatin (P1) and Krishnaraj (P2), on the other part, after the
latter came to be appointed as the joint Administrators.
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50. It would be contextually relevant to note that under Section 220 of the
Act of 1925, Letters of Administration entitle the Administrator to all rights
belonging to the intestate as effectually as if the administration has been
granted at the moment after his death. At the same time Section 221 of the
Act of 1925, declares in no uncertain terms that Letter of Administration do not
render valid any intermediate acts of the administrator tending to the
diminution or damage of the intestate’s estate.
51. In the backdrop of the aforesaid statutory provisions, especially, the
texts of Section 368 of the Act of 1925, it becomes abundantly clear that the
Administrator is not immune from the liability for the misapplication of the
estate on account of the acts or omissions resulting in loss or damage to the
estate of the deceased.
52. The fact that a person has been appointed as an Administrator of the
estate of the intestate does not give him the carte blanch to administer the
estate as per his whims or caprice. An Administrator is duty bound to
administer the estate in accordance with law and distribute the same to the
persons entitled to an interest therein, on account of the intestacy.
Distribution of the estate to a person not entitled thereto or in excess of the
entitlement is a matter for which the Administrator can be made to account for.
Illustration (i) to Section 368 provides that if the executor pays out of the
estate an unfounded claim, he is liable to make good the loss.
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53. An Administrator is essentially in the shoes of a trustee. As a trustee,
the Administrator is expected to exercise the same degree of diligence and
care in the execution of his office of Administrator as a man of ordinary
prudence would exercise in the management of his own affairs. Thus, if there
is a deliberate misapplication or negligence in the administration of the estate,
prejudicially affecting the interest of the persons entitled to have the estate of
the deceased, the Administrator is liable to make good the loss.
54. In the light of aforesaid statutory regime, the challenge to the tenability
of the applications deserves to be appreciated.
55. Mr. Naidu sought to draw support to the aforesaid challenge, from the
judgment of the Supreme Court in the case of Babulal Khandelwal and Ors
Vs Balkishan D. Sanghvai & Ors 3. Since a submission was sought to be
canvassed that the aforesaid pronouncement puts the controversy at rest, it
may be necessary to note the factual backdrop in which the aforesaid
judgment was rendered.
56. In the said case, in an administration Suit of the estate of his deceased
parents, the Plaintiff sought to implead the transferees of the properties which
were alienated by the deceased during his life time. The Application for
impleadment was resisted on the ground that the transactions entered into by
3 (2008) 10 SCC 485.
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the deceased during the lifetime cannot be questioned in a Suit for
administration of their estate.
57. The Supreme Court did not accede to the aforesaid submission and
upheld the order of the High Court impleading the transferees as parties to
the Administration Suit, for scrutinizing the transactions which were alleged to
have been concluded by the parents of the Plaintiff. In the process, the
Supreme Court observed, inter alia, as under:
“11. It is well settled that in an administration suit, the Court,
while considering the grant of authority to an individual having
an interest in the Estate of the deceased to administer the
Estate, has also to determine the extent of the estate of the
deceased at the time of his death to facilitate the distribution
of the estate to all the heirs of the deceased. It is equally well
settled that during such enquiry the Court is not called upon
to determine the right and title of the parties in the properties
of the Estate, but to ascertain the extent of the properties of
the Estate.
12. The decision in Chiranjilal Shrilal Goenka Vs Jasjit
Singh (1993) 2 SCC 507, applies to probate proceedings
where it has been held that the probate Court does not
decide any question of title or even the existence of the
property itself. In administration suits in respect of a person
who dies intestate, the position is different. The Court while
appointing an Administrator in an administration suit to
administer the Estate of the deceased, who dies intestate,
may be required to examine transactions involving the
properties of the Estate in order to determine the assets ofSSP / Arun 30/63
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the Estate as on the date of death of the owner thereof.
Consequently, the impleadment of persons who may be
involved in some transaction or the other concerning the
Estate of the deceased, may become necessary for a
decision in an administration suit. The High Court has noted
this fact while allowing the prayer of the respondent No.1 for
impleading the appellants as parties to the administration
suit.
15. We, therefore, have little hesitation in holding that the
High Court had not committed any error in allowing the
amendments to the plaint which had the effect of impleading
the appellants as parties to the administration suit filed by the
respondent No.1 and permitting the respondent No.1 to
question the transactions entered into by the owners of the
Estate with third parties. The order of the High Court does not
warrant any interference and the appeal must, therefore, be
dismissed.” (emphasis supplied)
58. The aforesaid pronouncement, if read in a correct perspective, only
indicates that, unlike a testamentary proceeding, where the Testamentary
Court is not expected to delve into any question of title or even the existence
of the property itself, in an Administration Suit, the Court may be required to
examine transactions involving the properties forming part of the estate so as
to determine the extent of the estate as of the date of death of the intestate for
the purpose of distribution. There is no embargo on enquiry into the validity of
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the transactions by the deceased whose estate is the subject matter of
administration.
59. I am afraid, the aforesaid judgment cannot be read in the fashion
canvassed by Mr. Naidu that, the question of lawful administration of the
estate of the deceased by an Administrator appointed by the Court cannot be
enquired into otherwise than by a suit for administration. The provisions
contained in Sections 368 and 369 of the Act 1925 are explicitly clear and
provide the necessary jurisdictional competence even to the Court which had
appointed the Administrator to enquire into the legality and correctness of the
administration.
60. It is true in the case of Manek Dara Sukhadwalla Vs Shernaz
Faroukh Lawyer and Ors.4 the Division Bench was considering the
challenge to an order passed by the Testamentary Court directing the Court
appointed Administrator to draw a complaint to be lodged with the
Commissioner of Police, Mumbai to investigate into the complaint and the
affairs of the deceased. In that context, the Division Bench observed that it
was permissible for the Court to issue directions to bring back the estate and
if such power existed, then there was no reason why the enquiry could not
have been ordered. The Division Bench held as under:
“37. This Court is a court of Original Jurisdiction
having abundant plenary and inherent powers. It is a
4 2024 SCC OnLine Bom 2204.
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Court of record. If the facts of the case are such that an
investigation is found necessary into the dealings of parties
involved, including the Appellants, then an investigation
can be initiated by directing the Administrator to file a
complaint. This Court while exercising even testamentary
jurisdiction retains its inherent and plenary powers and can
initiate such action by directing filing of criminal complaint.
There is no gainsaying that the learned Single Judge of
this Court was not justified in directing the Administrator to
file criminal complaint in the facts and circumstances of
this case. We agree to that extent with the case of the
Respondent/Plaintiffs and with the case law relied upon by
them in that behalf.” (emphasis supplied)
61. The abstract challenge to the tenability of the Application seeking
direction to the Court appointed Administrator to bring back the amounts
which they had allegedly preferentially distributed or appropriated, therefore,
cannot be acceded to unreservedly. If the Applicants succeed in
demonstrating that there has been misapplication of the estate of the
deceased, misappropriation of the assets which came to the hands of the
Administrator, or the Administrator otherwise caused loss or damage to the
estate of the deceased, by their acts or omissions, it cannot be said that the
Court which appointed the Administrators is denuded of the power to direct
them to make the amends, in the very proceeding in which the Administrators
were appointed.
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Misapplication, Preferential and wrongful distribution :
62. Though a number of Affidavits were filed on behalf of the Petitioners,
especially Yatin (P1), to place on the record of the Court the manner in which
the estate of the deceased has been distributed and dealt with, yet it may not
be necessary to make the reference to all those Affidavits/Disclosures. The
Affidavits filed by Yatin (P1) pursuant to the order of this Court dated 7 th April
2021 whereby Yatin (P1) was directed to make complete disclosures would be
the starting point.
Unequal / Excess Distribution :
63. In the said Affidavit, Yatin (P1) disclosed that a total sum of Rs.
21,25,06,879/- was received from the sale of the properties and under land
acquisition awards. Details of the amounts distributed to the legal heirs were
tabulated in the table (Annexure “B” appended to the said Affidavit). The said
table deserves to be extracted to retain emphasis :
TOTAL AMOUNTS RECEIVED TILL DATE FROM THE ESTATE – RS.21,25,06,879/-
TOTAL EXPENDITURE INCURRED TILL DATE – RS. 2,98,28,297
Sr. No. Name of the Share in Share in Less Amount Amounts Difference
legal Heirs Estate Amounts share of Receivabl received
Expenses e
1 Bhavana 14% Rs.5,66,54, Rs.79,52,2 Rs.4,87,02 Rs.4,68,77 Rs.18,24,9
Ruparel 339/- 24/- ,115/- ,163/- 52/- (less
Kunal Ruparel 6.33% received)
Lisha Ruparel 6.33%
2 Ashwin 26.66% Rs.5,66,54, Rs.79,52,2 Rs.4,87,02 Rs.5,17,10 Rs.30,07,9
Ruparel 339/- 24/- ,115/- ,100/- 85/-
(Excess
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received)
3 Yatin Ruparel 26.66% Rs.5,66,54, Rs.79,52,2 Rs.4,87,02 Rs.4,94,24 Rs.7,22,38
339/- 24/- ,115/- ,500/- 5/-
minus
Rs.8,70,57
0/- (Paid
income
tax)
Rs.1,48,18
5/-
(less
received)
4 Krishnaraj 20% Rs.4,25,43, Rs.59,65,6 Rs.3,65,77 Rs.3,52,65 Rs.13,12,7
Thaker 500/- 59/- ,840/- ,075/- 65/-
(less
Received)
64. Yatin (P1) also furnished a chart of the expenses to the tune of
Rs.2,98,28,297/- incurred out of the estate of the deceased (Exhibit “C”).
65. It would be necessary to immediately note that Yatin (P1) claimed that
in addition to the expenses enumerated in the chart (Exhibit “C”), Ashwin (R1)
had incurred ‘out of pocket expenses’ and those expenses were reimbursed
from the branches of Applicants (Rs.18,24,952/-) and Krishnaraj (R2)
(Rs.13,12,765/-).
66. Yatin (P1) further affirmed that those amounts were paid to various
liasioning officers by Ashwin (R1). However, Ashwin (R1) was not in a position
to produce receipts or vouchers in respect of various ‘out of pocket expenses’
incurred by him.
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67. Yatin (P1) also claimed that the income tax of Rs.8,70,570/- was paid
from his personal account as there was no amount then standing to the credit
to the bank account of the estate.
68. Ashwin (R1) also filed an Affidavit affirming that he had incurred huge
‘out of pocket expenses’ to pursuing the proceedings for enhancement of the
compensation and the aforesaid amounts were taken out from the branches
of the Applicants and Krishnaraj (R2) and transferred to his account.
69. In the backdrop of the aforesaid nature of the Affidavits, the submission
of Dr. Chandrachud that Yatin (P1) and Ashwin (R1) have resorted to the
theory of ‘out of pocket expenses’ after the claim for 10% of the compensation
amount as additional payment for pursuing the land acquisition proceedings
on the ground of “custom” in Navi Mumbai, was repelled by the Court, carries
substance. In the order dated 7th April 2021, itself, this Court had made it
absolutely clear that it was not digestible as to how a person other than the
Administrator was required to incur out of pocket expenses, if the estate had
sufficient funds and that there was no evidence to support the said claim.
Such a bald assertion of out of pocket expenses without an iota of material to
substantiate the same cannot be accepted. The Administrators were duty
bound to insist for proof of expenses before making the disbursement under
the specious head of out of pocket expenses.
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70. Though the Affidavits were directed to be filed by Yatin (P1) and Ashwin
(R1), evidently, the Affidavits are far from satisfactory much less sufficient to
substantiate the claim of ‘out of pocket expenses’. This lead to a legitimate
inference that the unequal distribution (qua the ratio of the share of the parties
in the estate of the deceased) is prima facie unsustainable.
Audit Report : Suppression and Misapplication of Estate
71. As noted above, the report submitted by the Court appointed Auditor, in
a sense, opened a pandora’s box. The report broadly revealed that, a number
of assets were dealt with before the institution of the Petition for Letters of
Administration, those assets were not made part of the estate of the
deceased, and few of the assets though available as of the date of the
institution of the Petition were not included in the schedule of assets.
72. The Court does not propose to delve into each and every item of
alleged misapplication, misappropriation or suppression, highlighted in the
Audit report. Instead, in the light of the view which this Court, in the ultimate
analysis, is persuaded to take, the Court considers it appropriate to broadly
deal with the major items of the estate of the deceased which were allegedly,
misapplied, misappropriated or preferentially distributed to the heirs in excess
of their entitlement or distributed to the persons who were not at all entitled
thereto. With regard to such major items, the Court considers it appropriate to
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refer to the allegations of the Applicants, the considerations in the Auditor’s
Report and the response thereto by Yatin (P1) and Ashwin (R1).
ALLEGED MISAPPROPRIATION BY AND PREFERENTIAL DISTRIBUTION
TO YATIN (P1) AND ASHWIN (R1) :
TRANSFER OF CARS OF THE DECEASED:
73. The Applicants alleged Yatin (P1) and Ashwin (R1) got the cars
belonging to the deceased transferred to themselves and offered an
untenable explanation for the same. In the Audit Report, the Auditor (Page 42)
note that the value of the following four cars belonging to the deceased, as of
the date of the demise of the deceased, was Rs.13,04,245/-
Sr. Car No. Amount Remarks
No.
1 Honda City 3,19,690 This car was transferred to Mr. Ashwin
(MHO4 CB 1609) Ruparel on July 2, 2008 from the Estate
as provided in response to our queries
and entries in books of accounts.
2 Beat (MH04 BN 1,51,841 This car was transferred to Mr. Ashwin
4525) Ruparel on July 20, 2008 from the Estate
as provided in response to our queries
and entries in books of account.
3 Tata Indica 1,79,520 This car was transferred to Petitioner 1 on
(MH04 BQ 9691) July 30 2008 from the Estate as provided
in response to our queries and entries in
books of accounts.
4 Hond City (MH01 6,53,194 This car was transferred to Petitioner 1 on
YA 1923) July 30, 2008 from the Estate as provided
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in response to our queries and entries in
books of accounts.
13,04,245
74. An explanation was sought to be offered before the Auditor that the
transfer of the cars was done to facilitate payment of car insurance as
insurance could not have been renewed in the name of the dead person.
75. Before this Court, it was submitted that one of the cars was destroyed
by fire on 28th October 2013 in respect of which a report was lodged with the
police. Secondly, there was an arrangement between the parties whereby a
new Honda City Car was purchased and given to the family of the Applicants.
Reliance was placed on the tax invoice (Exhibit “G” to the Affidavit in
Rejoinder of Yatin (P1) dated 1st February 2023, page 1337).
76. I have perused the copy of the alleged report of fire (page 1326) and
the panchnama (page 1329) in respect of the car bearing No. MH-04-BQ-
9691. Both are self-explanatory. Only the electrical wirings were burnt on
account of the short circuit. The explanation that the cars were appropriated
by Yatin (P1) and Ashwin (R1) as a new car was purchased for Bhavana (A1)
also does not merit acceptance. Firstly, the invoice clearly indicates that the
car was purchased in the name of M/s Ruparel Realty of which Bhavana (A1)
was a partner. Moreover, it is not the case of the Yatin (P1) that the said car
was purchased out of estate of the deceased. The explanation of Ashwin (R1)
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also proceeds on identical lines. Ex-facie, the cars were preferentially
distributed between Yatin (P1) and Ashwin (R1).
PREMATURE ENCASHMENT OF FIXED DEPOSITS WITH CENTRAL
BANK OF INDIA:
77. The Auditer notes that two Fixed Deposits of the aggregate value of
Rs.53,00,000/- were in the books of account of the deceased as of the date of
her demise. Yatin (P1) and Ashwin (R1) were the nominees. Those Fixed
Deposits were encashed pre-mature on 10th January 2008, under a couple of
months of the demise of the deceased and the sums of Rs.25,36,000/- and
Rs.27,59,000/- were credited to the accounts of Ashwin (R1) and Yatin (P1),
respectively.
78. An endeavour was made on behalf of Ashwin (R1) to furnish an
explanation regarding the utilization of the said amount of Rs. 53 lakhs for the
purposes specified by the Auditors on pages 44 and 45 of the Audit Report.
Diverse explanations were sought to be offered before this Court as well
regarding the utilization of the aforesaid amount of Rs. 53 lakhs.
79. First and foremost, it is imperative to note that Yatin (P1) and Ashwin
(R1) were the nominees in respect of Fixed Deposits. The position in law as
regards the status of the nominee, is absolutely clear. A nominee does not
become the absolute owner of the corpus. The nomination is only to facilitate
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the discharge to the creditor. The assets of the deceased devolve upon the
heirs who are entitled to succeed to the estate of the deceased.
80. In the case of Shakti Yezdani Vs Jayanand Jayant Salgaonkar &
Ors,5 the Supreme Court has enunciated that the nomination would not lead
to the nominee attaining absolute title over subject property for which such
nomination was made. The usual mode of succession is not to be impacted
by such nomination.
81. Though it was sought to be suggested, on a tangent, that Yatin (P1)
and Ashwin (R1) were the nominees, yet, it was not the case that the
nomination in this case amounted to “advancement”; for which there is no
presumption in the Indian Law. Thus, a heavy onus would rest on Yatin (P1)
and Ashwin (R1) who had withdrawn the aforesaid Fixed Deposits premature.
It is not the case that the said Fixed Deposits were shown in the estate of the
deceased, or for that matter, an effort was made to account for the disbursal
of the proceeds so withdrawn, while filing the Petition for grant of Letters of
Administration. The Auditor, before whom material was placed to account for
the utilisation of the proceeds so withdrawn, found the explanation
unsatisfactory.
82. Few of the major heads of utilisation may be examined.
EXPENSES OF RS. 11,45,474/- FOR BHAGVAT SAPTAHA:
5 2024 (3) ABR 347.
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82.1 In the Affidavit in Rejoinder dated 1 February 2023, Yatin (P1) claimed
stthat a religious ceremony (Bhagvat Saptaha) was arranged between 24th April
2008 to 29th April 2008 in the memory of the deceased. Yatin (P1) incurred
expenses to the tune of Rs.4,05,676/- and Ashwin (R1) incurred expenses to
the tune of Rs.3,88,129/- for the said religious ceremony.
82.2 Reliance was sought to be placed on the Invitation Card for the said
function (pages 1311 to 1312 of the said Affidavit), the photographs and the
statements of accounts maintained with the Bank showing payment towards
the expenses. In contrast to this, the Auditor notes that Yatin (P1) and Ashwin
(R1) informed him that they had spent a sum of Rs.11,45,474/- on religious
expenses.
82.3 It is necessary to note that the said Bhagvat Saptaha ceremony was
arranged after five months of the demise of the deceased. The necessity and
timing of the said ceremony, may not be questioned. However, the quantum of
expenses is a matter which Yatin (P1) and Ashwin (R1) are required to
substantiate. The fact that there is no contemporaneous material to
substantiate the claim that the expenses were incurred out of the proceeds of
the Fixed Deposits or the other sums which were drawn from the estate of the
deceased, bears upon the aforesaid explanation.
82.4 What is of critical salience is the fact that in the Schedule II of the
Testamentary Petition containing the Debts etc., of the deceased, a sum of
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Rs.1,000/- only, was shown towards funeral expenses. Yatin (P1) did not
claim that a sum of about Rs.8,00,000/-, as claimed in paragraph 5 of the
Affidavit in Rejoinder dated 1st February 2023 in IA (L) No. 8791 of 2022 or the
sum of Rs. 11,45,474/- was expended for the Bhagvat Saptaha. Nor the said
expenditure was sought to be added subsequently till the Letters of
Administration were granted. All these factors render it prima facie, rather
difficult to readily accede to the explanation that out of the proceeds of the
Fixed Deposits, a sum of Rs.11,45,474/- was expended for the Bhagvat
Saptaha. Heavy onus would lay on Yatin (P2) and Ashwin (R1) to establish
the said claim.
PAYMENT OF A SUM OF RS.10,00,000/- TO MAHENDRA RUPAREL:
83. In deference to the wishes of the deceased, allegedly expressed during
her lifetime, Yatin (P1) affirmed that a sum of Rs.10,00,000/- was paid by way
of gift to Mahendra Ruparel. Yatin (P1) claimed to have transferred
Rs.5,00,000/- to Mahendra Ruparel, and Ashiwn (R1) paid a sum of Rs.
5,00,000/- to Mahendra Ruparel. An Affidavit filed by Mahendra Ruparel
before the Auditor was sought to be relied upon to substantiate the said claim.
In the said Affidavit, Mahendra Ruparel acknowledged to have received a sum
of Rs.10,00,000/- as and by way of gift and blessings of the deceased.
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83.1 I am afraid such a disposition, out of the estate of the deceased, without
making contemporaneous disclosure can be, prima facie, sustained. It is
imperative to note that all these explanations saw the light of the day after the
Auditor found out the dealings with the estate of the deceased by Yatin (P1)
and Ashwin (R1). The persons who dealt with the estate of the deceased and
made the disbursals, cannot be heard to urge that the disbursals made by
them be challenged in an Administration Suit, especially when those
transactions were effected even before filing the Testamentary Petition.
PAYMENTS PURPORTEDLY MADE TO VARIOUS FAMILY
MEMBERS:
84. The Auditor has extracted the details of verification and explanation of
two Fixed Deposits plus Rs. 5,00,000/- in cash received by Ashwin (R1)
(pages 1250 to 1253). In addition to the expenses towards the Bhagvat
saptaha and gift to Mahendra Ruparel, the following payments were allegedly
made to the other family members.
Payment to Bhavana Ruparel Rs.12,00,000/-
Payment to Yatin + Jyoti Ruparel Rs.7,57,355/-
Payment to Ashwin + Leena Ruparel Rs.14,02,171/-
Payment to Hindustan Commercial Co. (HUF) Rs.2,50,000/-
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In addition a sum of Rs.40,000/- was paid towards the legal fees.
84.1 It is pertinent to note that Leena Ruparel, the wife of Ashwin (R1), and
Jyoti Ruparel, the wife of Yatin (P1), were not entitled to succeed to the estate
of the deceased. Purportedly, a sum of Rs.6,18,000/- was paid to Leena and
a sum of Rs.80,000/- was paid to Jyoti. The disbursal was plainly
impermissible. As regards the payment to Bhavana (A1), the Auditor notes,
initially Ashwin (R1) had stated that a sum of Rs.4,00,000/- was distributed to
Bhavana (A1) out of the estate of the deceased. Later on, Ashwin (R1)
corrected himself to state that payments to Bhavana (A1) from Ashwin (R1)
and Yatin (P1) were by way of loans and Bhavana (A1) had repaid those
loans, over a period of time. In the Note below The table captioned “Payment
made by Ashwin (R1) from Fixed Deposit”, it was categorically stated that
Bhavana (A1) repaid the sum of Rs.4,00,000/- to Ashwin (R1) during the
period 2008-2009.
84.2 As regards the sum of Rs.8,00,000/- purportedly paid by Yatin (P1), the
balancesheet of Ruparel Electronics, of which Yatin (P1) is the sole proprietor,
as sum of Rs.7,60,000/- was shown as a loan to Bhartiya Storage Agency, the
sole proprietary firm of Bhavana (A1), and ledger statement of Ruparel
Electronics in the books of Bhartiya Storage Agency shows that the entire
loan amount of Rs.8,00,000/- was repaid during the financial year 2007-2008
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(pages 1448 and 1449 of the Affidavit in Sur-Rejoinder on behalf of the
Applicants in IA (L) No. 8791 of 2022).
85. Thus, the explanation that out of the proceeds of two Fixed Deposits
expenses were incurred and payments were made to other family members,
does not advance the case of Yatin (P1) and Ashwin (R1) and, prima facie,
they are liable to account for the said proceeds.
CASH PAYMENT OF RS. 5,00,000/- TO ASHWIN (R1) FROM
MODERN WAREHOUSING:
86. The Auditor notes, after the demise of the deceased, a sum of Rs.
5,00,000/- was paid to Ashwin (R1) from the account of the deceased. Ashwin
(R1) initially admitted the receipt of the said amount in a communication dated
29th September 2023 to the Auditor, purportedly as a gift. In the Affidavit in
Reply to the Auditor’s Report Ashwin (R1), however, contended that the entry
of cash payment of Rs.5,00,000/- to Ashwin (R1) was shown only for book
entry and no such cash payment was actually made to Ashwin (R1).
87. As noted above, the said cash of Rs.5,00,000/- was also accounted for
by way of expenses for Bhagvat Saptaha and the payments to the family
members. The explanations are ex-facie irreconcilable.
PAYMENT OF RS.2,30,000/- TO JYOTI, WIFE OF YATIN (P1):
88. The Auditor notes, a sum of Rs.2,30,000/- was paid by cheque to Jyoti
after the date of demise of the deceased. Yatin (P1) claimed that the
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deceased had drawn the cheque in the sum of Rs.2,30,000/- by way of gift
before her death. However, the said cheque was presented for encashment
after the demise of the deceased. Jyoti filed an Affidavit to that effect before
the Auditor (page 1246 of the Audit Report).
89. The Affidavit of disclosure on behalf of Yatin (P1) in IA (L) No. 8791 of
2022, indicates that a sum of Rs.2,28,503/- was to the credit of the account of
the deceased, maintained with Indian Overseas Bank on which the said
cheque was drawn, as of the date of death of the deceased On 1 st December
2007, the balance became Rs.2,30,197/- and the cheque was encashed on
4th December 2007.
90. Prima facie, as of the date of demise of the deceased, the amount
standing to the credit of the account of the deceased was not sufficient to
honour the cheque, if the Gift was to operate in praesenti. When there was no
sufficient balance to honour the cheque, there could have been no
acceptance during the lifetime of the deceased and, thus, whether there was
a valid gift becomes debatable. At any rate, the interval of time, almost entire
amount to the credit of the account forming the subject of gift and the
suppression of the said payment, cumulatively betray a desperate attempt to
offer post-facto explanation to suit the defence. The fact remains that the said
asset was not disclosed when the Testamentary Petition was filed much less
these explanations regarding dealings with the assets of the deceased were
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offered. If the said payment did not operate as a gift, then Jyoti cannot have
any claim over the said amount as she was not entitled to succeed to the
estate of the deceased.
PERSONAL EXPENSES ALLEGEDLY INCURRED BY YATIN
(P1) AND ASHWIN (R1):
91. At Exhibit 23 (page 1282), the Auditor has tabulated a statement of
personal expenses amounting to Rs.10,54,884/-. All sorts of sundry expenses
ranging from telephone charges, electricity charges, car expenses and car
insurance, repairs of gadgets are included therein. An explanation was sought
to be offered on behalf of the Yatin (P1) and Ashwin (R1) with regard to each
item of the said expenses to somehow relate those expenses to the estate of
the deceased. Having regard to the purpose for which the expenses have
been incurred, it would be an onerous task for Yatin (P1) and Ashwin (R1) to
account for those expenses, majority of which appear to be unconnected with
the estate of the deceased.
92. Situation which thus emerges is that; firstly, Yatin (P1) and Ashwin (R1),
have been disbursed amounts out of the estate of the deceased in excess of
their entitlement; secondly, a significant part of the estate of the deceased
was suppressed while filing the Petition for grant of Letters of Administration;
thirdly, Yatin (P1) and Ashwin (R1) dealt with the estate of the deceased after
her demise, prima facie, without making the disclosure thereof; fourthly, the
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Audit Report revealed, both the suppression of, and dealings with, the estate
by Yatin (P1) and Ashwin (R1) and, fifthly, the explanations offered by Yatin
(P1) and Ashwin (R1) were found unsatisfactory and, at times, contradictory
and irreconcilable.
Determination of IA No.392 of 2021, IA No.2376 of 2022 and IA(L)
No.8791 of 2022 : Reliefs
93. In the aforesaid backdrop, the submissions on behalf of the Applicants
and Krishnaraj (P2), on the one side, that Yatin (P1) and Ashwin (R1) be
directed to bring back the amount of Rs.55,86,242/- and Rs.68,68,638/-,
respectively, along with interest thereon since the date of the excess disbursal
or appropriation, and on behalf of the Yatin (P1) and Ashwin (R1), on the other
side, that the said disputed amount of Rs.1,24,54,880/-, the amount of
Rs.1,50,50,000/- towards the outstanding professional fees and a buffer
amount of Rs. 1 Crore be kept aside and the balance amount be distributed in
the ratio determined by the Court, deserve to be appreciated.
94. The Applicants claim, on a conservative interest at the rate of 9% per
annum, Ashwin (R1) would be liable to bring back a sum of Rs.2,08,50,291/-
and Yatin (P1) a sum of Rs.1,94,01,888/-, in addition to a sum of
Rs.9,59,588/- to be brought back by Jyoti. The distribution of the assets be
deferred till the Yatin (P1) and Ashwin (R1) bring back the aforesaid amount
and the Administrator submits accounts of the estate.
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95. Krishnaraj (P2) supplements the case of the Applicants. In IA No. 2376
of 2022, Krishnaraj (P2) thus seeks direction to Yatin (P1) and restraint on
further distribution.
96. Per contra, Yatin (P1) and Ashwin (R1) contended that all these are
disputed amounts and would warrant adjudication. Therefore, the aforesaid
principal amount of Rs. 1,24,54,880/- be kept aside. In IA(L) No. 8791 of
2022, Yatin (P1) seeks release of the balance amount after keeping aside the
aforesaid amount of Rs. 1,24,54,880/- and the alleged liabilities of the estate
of the deceased as tabulated in the list of expenses to be incurred (Exhibit
“A”), including the outstanding legal fees.
97. At this juncture, the Affidavit filed by Mr. Anoj Menon, the Administrator
appointed by this Court, deserves to be noted, on two points. First, the tax
liability of the estate, and second, the outstanding professional fees.
Tax Liability
98. The Administrator, has referred to the legal opinion solicited in respect
of the liability to pay tax on the compensation awarded under the Land
Acquisition Act and the computation of taxes by the Chartered Accountant. It
appears that, pursuant to the legal opinion, and computation of the tax, a sum
of Rs. 2,93,32,151/-, has been paid under the updated Income Tax Return for
the Assessment Year 2022- 2023, filed on 30th March 2024. Indeed the
possibility of further tax liability or interest and penalty cannot be ruled out.
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However, a provision for the same can be made by keeping aside an amount
by way of buffer.
Outstanding Professional Fees :
99. As regards alleged outstanding professional fees, the Administrator has
affirmed that the concerned Advocates have shared with him copies of their
pending invoices amounting to Rs. 1,50,50,000/-. It would be contextually
relevant to note that while declining to release the payment towards the
professional fees, in the order dated 21 st March 2024, this Court has made it
clear that the Court was not making any comment on the claims of the
concerned Advocates as regards their balance fees. The Court was not
convinced on the basis of the material then placed on record that a positive
direction could be given to the Administrator to make payment to the said
Advocates. At that stage, the material was found to be sketchy and deficient.
100. By the said order, though liberty was granted to place on record further
material, no credible material has been placed on record to substantiate the
said claim. It is pertinent to note that a determination that no professional fees
be paid out of the estate may bear upon the rights of the concerned
Advocates. It may not be in consonance with the principles of fair paly and
justice to make such determination without providing an opportunity to the
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concerned Advocates. Therefore, at this stage, it would be appropriate to
retain the said sum of Rs. 1,50,50,000/-.
101. The Court is informed that as of date a sum of Rs. 11,03,37,790/-
stands to the credit of the estate of the deceased, with the Registry of this
Court.
102. Thus, the question that comes to the fore is, should the distribution be
deferred till the contentious issues are finally determined. The Court cannot
loose sight of the fact that the Letters of Administration were granted on 12 th
July 2010. A substantial amount would be available for distribution, even after
keeping aside the amounts towards the possible future expenses, liabilities,
the contingencies that may arise, and the claim towards the professional fees.
The corpus standing to the credit of the estate of the deceased undoubtedly
earns interest. But, it is exisable to tax. If a substantial portion can be
distributed, even after making a provision for the aforesaid purposes,
deferring distribution would cause prejudice to the heirs, who are entitled to
succeed, especially to the Applicants and Krishnaraj (P2). At the same time,
while making distribution, the aspect of apparent liabilities of Yatin (P1) and
Ashwin (R1) must be addressed.
103. The aspect of the liability of Yatin (P1) and Ashwin (R1) for the amounts
which have been appropriated by, and preferentially distributed to, can be
approached two ways. One, by directing Yatin (P1) and Ashwin (R1) to bring
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back the said amount determined in the Audit Report, aggregating to Rs.
1,24,54,880/- along with interest as the Court may determine. Two, a portion
of the amount falling to the share of Yatin (P1) and Ashwin (R1) can be
withheld to cover the said amount and interest component thereon, till the
final distribution on the basis the report of the Administrator, appointed by this
Court.
104. In the circumstances of the case, I am persuaded to adopt the latter
course, for the reasons more than one. Firstly, Yatin (P1) and Ashwin (R1)
would jointly be entitled to 53.32% share in the amount so appropriated or
preferentially distributed. Secondly, though the Audit Report constitutes a
credible material to base the findings, yet, Yatin (P1) and Ashwin (R1) deserve
an opportunity to substantiate their claim with regard to various components
of the amounts which were so appropriated or preferentially distributed.
Undoubtedly, the onus would lay on Yatin (P1) and Ashwin (R1) to
substantiate their claims. The other claimants cannot be called upon to prove
that the excess payment and distribution is not sustainable. Thirdly, there is
also possibility of the amounts, proposed to be kept aside, being not required
to discharge the liability of the estate of the deceased or meet future
expenses. In that event, Yatin (P1) and Ashwin (R1) would be entitled to have
26.66% share each, in the residue as well. At that stage, the Court will have
the opportunity to make appropriate orders so as to enforce the liability of
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Yatin (P1) and Ashwin (R1) to make good the amount appropriated by, and,
preferentially distributed to, them.
105. As noted above, the Auditor has determined the excess/preferential
distribution to Yatin (P1) at Rs.55,86,242/- and Ashwin (R1) at Rs.68,68,638/-.
The share of Yatin (P1) and Ashwin (R1) in the amount which is proposed to
be distributed, comes to Rs.2,00,76,242/- each. A direction for withholding
50% of the amount would subserve the object of recovering the amounts
which may be ultimately found due from Yatin (P1) and Ashwin (R1), along
with reasonable interest.
106. I am, therefore, inclined to make interim distribution with a direction to
withhold 50% of the amount falling to the share Yatin (P1) and Ashwin (R1).
107. Interim Application No. 392 of 2021, Interim Application No. 2376 of
2022 and Interim Application (L) No. 8791 of 2022 would thus stand worked
out, by such distribution and directions.
IA(L) NOS.15054 OF 2021 & 11209 of 2022
108. Ashwin (R1) seeks the inclusion of the properties described in Exhibit A
appended to Interim Application (L) No.15054 of 2021 in the Schedule of
properties appended to Petition No.377 of 2008 at least to the extent of 1/4th
share of the deceased in the estate left behind by Harish, the husband of
Bhavana (A1). The claim is two fold. First, the properties described at Sr.
Nos.1 to 13 i.e. the land situated at Village Adai, Tal. Panvel, were all joint
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family properties. They were acquired out of the joint family nucleolus,
pursuant to the agreements for purchase executed by Hariram, the husband
of the deceased, before his demise. Two, in the alternative, even if it is
assumed that Harish was the absolute owner of the said properties, the
deceased being the Class I heir was entitled to 1/4th share therein along with
the Applicant Nos.1 to 3. Since the Applicants have received compensation
on account of the acquisition of those properties, the Applicants be directed to
deposit an amount of Rs.95,82,456/- towards the share of the deceased in the
said compensation.
109. In IA(L) No.11209 of 2022, Ashwin (R1) seeks directions for deposit of a
sum of Rs.1,24,56,688/- towards 1/4th share of the deceased in the balance
compensation which was to be released by the acquiring body.
110. As noted above, Bhavana (A1) has propounded a purported Will dated
9 November 1996, allegedly left behind by Harish and filed a Petition for grant
of Probate in TP No.178 of 2020. Both Yatin (P1) and Ashwin (R1) have
entered caveats and, thereupon, the Petition has been converted into a
Testamentary Suit. Ashwin (R1) and Yatin (P1), thus, contest the
testamentary disposition allegedly made by Harish and contend that Harish
died intestate.
111. The aforesaid nature of the controversy brings to the fore the remit of
the jurisdiction of the testamentary Court. Incontrovertibly, the question as to
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whether Harish passed away leaving behind a testamentary instrument or
intestate, is the matter which can only be determined by the Court seized with
the Probate proceeding. The Probate Court is only concerned with the
question as to whether the instrument propounded as the last Will and
Testament of the deceased was duly executed and attested in accordance
with law, and, while executing the said instrument, the testator was in a sound
and disposing state of mind and understood the nature and effect of the
dispositions made thereunder. The grant of Probate conclusively establishes
the valid execution of the Will and the appointment of the executor.
112. It is well recognized by a catena of decisions that the Probate Court
does not decide the question of title to the property which is the subject matter
of the bequest, or, for that matter, the very existence of the property. The
grant of Probate, by itself, does not confer title to the property. A Probate
does no more than authorize the executor or administrator to administrate the
estate of the deceased in accordance with the wishes of the testator and
represent the estate of the testator.
113. A profitable reference can be made to the judgment of the Supreme
Court in the case of Chiranjilal Shrilal Goenka (deceased through LRs) V/s.
Jasjit Singh6, wherein the legal position was expounded as under :
“15……The Succession Act, is a self contained code in
so far as the question of making an application for
6 (1993) 2 SCC 507SSP / Arun 56/63
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probate, grant or refusal of probate or an appeal carried
against the decision of the probate court. This is clearly
manifested in the fascicule of the provision of Act. The
probate proceedings shall be conducted by the probate
court in the manner prescribed in the Act and in no
other ways. The grant of probate with a copy of the Will
annexed establishes conclusively as to the appointment
of the executor and the valid execution of the will. Thus
it does no more than establish the factum of the will and
the legal character of the executor. Probate court does
not decide any question, of title or of the existence of
the property itself.”
114. Following the aforesaid pronouncement in the case of Delhi
Development Authority V/s. Mrs. Vijaya C. Gurshaney7, the Supreme Court
reiterated the principle in the following words :
“8………A Testamentary Court is only concerned with
finding out whether or not the testator executed the
testamentary instrument of his free will. It is settled
law that the grant of a Probate or Letters of
Administration does not confer title to property. The
merely enable administration of the estate of the estate
of the deceased.”
7 (2003) 7 SCC 301
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115. The limited nature of jurisdiction of the Probate Court was emphasised
by the Supreme Court in the case of Krishna Kumar Birla V/s. Rajendra Singh
Lodha8 as under :
“57………The jurisdiction of the Probate Court is limited
being confined only to consider the genuineness of the
Will. A question of title arising under the Act cannot be
gone into the probate proceedings. Construction of a Will
relating to the right, title and interest of any other person is
beyond the domain of the Probate Court.”
116. In the light of the aforesaid position in law, readverting to the facts of
the case at hand, it deserves to be noted that the question as to whether
Harish died testate or intestate is at the hub of the controversy. The claim of
Ashwin (R1) that the deceased would have succeeded to the estate of Harish,
who predeceased the deceased, as his Class I heir, alongwith Applicant
Nos.1 to 3, hinges upon the determination as to whether Harish passed away
testate or intestate. If in the Probate proceeding, filed by Bhavana (A1) in the
purported capacity of the executrix of the Will propounded by her, the Court
comes to the conclusion that Harish had left behind a testamentary
instrument, the line of intestate succession would be disrupted.
8 (2008) 4 SCC 300
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117. Conversely, if the Will of Harish is not found legal and valid, on the date
the succession opened, the deceased would have inherited her share in the
estate left behind by Harish.
118. As regards the primary claim of Ashwin (R1) that the properties at Sr.
Nos.1 to 13 in the Schedule A were impressed with the character of the joint
family properties as they were acquired out of the joint family nucleolus, and,
therefore, apart from the deceased, even Yatin (P1) and Ashwin (R1) have
interest therein, it would be suffice to note that the said claim would warrant
investigation into the title to the said properties. The question as to whether
the said properties were impressed with the character of the joint family
properties, or, they were self-acquired properties of Harish, as contended by
the Applicants, cannot be legitimately delved into by the Testamentary Court,
as it would be clearly beyond the remit of the jurisdiction.
119. The same principle would govern the claim as regards the house
property described at Sr. No.14 in the Schedule (Exh.A) appended to IAL
No.15054 of 2021.
120. In the aforesaid view of the matter, at this juncture, and, especially in
these proceedings, this Court does not consider it appropriate to delve into
the rival submissions sought to be canvassed on behalf of the parties with
regard to the assertions as regards the character of the properties which
Ashwin (R1) desires to include in the Schedule of Assets left behind by the
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deceased and the genuineness, legality and validity of the purported Will of
Harish. Since the Testamentary Suit for grant of Probate of the purported Will
of Harish is subjudice, the contentious issues can be legitimately adjudicated
in the said proceedings.
121. Needless to clarify that, depending upon the outcome of the said
Probate proceeding, the entitlement of the parties to succeed to the estate left
behind by the deceased may vary and the parties would be at liberty to work
out their remedies.
122. In the light of the aforesaid consideration, this Court does not find it
expedient to include the properties described in Exh. A appended to IAL
No.15054 of 2011 in the Schedule of properties in TP No.377 of 2009.
123. For the foregoing reasons, IA No.391 of 2021, IA No.2376 of 2022 and
IA(L) No.8791 of 2022 which, in a sense, seek directions regarding assets of
the deceased deserve to be partly allowed. Interim Application (L) Nos.15054
of 2021 and 11209 of 2022, filed by Ashwin (R1), deserve to be rejected.
124. Hence, the following order :
ORDER
(I) IA No.391 of 2021, IA No.2376 of 2022 and IA(L) No.8791 of
2022 stand partly allowed in the following terms :
(1) Out of the amount standing to the credit of the estate of the
deceased with the Registry of this Court, a sum of Rs.2 Crores be kept
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aside as a buffer for future expenses and liabilities of the estate of thedeceased and to take care of the contingencies.
(2) A further sum of Rs.1,50,50,000/-, for which the
Administrator has received claims for professional fees be also kept
aside to address the contingency of the said claim for professional fees
being proved to the satisfaction of the Court or required to be paid
pursuant to the orders of any Court.
(3) After keeping aside the said amount of Rs.3,50,50,000/-,
the balance amount be distributed amongst the Applicants, Yatin (P1),
Krishnaraj (P2) and Ashwin (R1) in the ratio determined by the Court,
subject to the following conditions :
(a) Out of the amount falling to the share of Yatin (P1)
and Ashwin (R1), in the ratio of 26.666% each, only 50% of the amount
be released and the balance 50% amount shall be withheld.
(b) The balance 50% amount be separately invested in
an interest bearing account.
(c) At the time of the final distribution, the balance 50%
amount and interest accrued thereon may be utilised to recover the amount
which Yatin (P1) and Ashwin (R1) are found liable to account for the excess
and preferential distribution and misapplication of the estate of the deceased,
alongwith such interest as the Court may determine.
SSP / Arun 61/63
ial 11209 of 2002.doc
(d) The Applicants, Yatin (P1), Krishnaraj (P2), and
Ashwin (R1) shall file separate undertaking that they will bring back the
amount to be released to them along with such interest as the Court may
direct if it is found that all or any of them were not entitled to receive the said
amount or any portion thereof, or are otherwise liable to the estate of the
deceased.
(4) The Advocates who have lodged claim for outstanding
professional fees, may submit further proof/documents to substantiate their
claim with the Administrator within a period of six weeks from today.
(5) Yatin (P1) and Ashwin (R1) may also file further
proof/documents, if any, apart from the material already on record (including
the documents which form part of the Audit Report) with the Administrator to
disprove their liability, as above, which is tentatively determined, within a
period of six weeks from today.
(6) The Administrator shall comply with the directions in the
order dated 5th April 2023, especially Clauses (G) and (H) of paragraph 2 of
the said order, and submit a Report along with the claims, if any, from the
estate of the deceased and the proof/documents which may be produced by
the concerned Advocates and Yatin (P1) and Ashwin (R1), within 12 weeks
thereafter.
SSP / Arun 62/63
ial 11209 of 2002.doc
(II) IA (L) No. 15054 of 2021 and IA (L) No. 11209 of 2022 standrejected.
( N.J.JAMADAR, J. )
SSP / Arun 63/63
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 27/06/2025 20:13:31