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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC.APPLICATION (L) NO. 2 OF 2018
IN
PETITION NO. 1610 OF 2018
Amardeep Singh Sujan Singh Chadha ….. Deceased
Davinder Kaur Amardeep Singh Chadha)
of Mumbai, aged 62 years, )
Occupation – Housewife, Sikh, )
Indian Inhabitant, widow and )
legal heir of the deceased abovenamed,)
residing at Flat nos. 301, 302, )
rd
3 Floor, Preetika Apartments, )
Saraswati Road, Santacruz (West), )
Mumbai 400 054. ) ….. Applicant
VERSUS
Inderjeet Singh Amardeep Singh )
Chadha @ Supremo )
residing at Flat nos. 301, 302, )
3rd Floor, Preetika Apartments, )
Saraswati Road, Santacruz (West), )
Mumbai 400 054. ) ….. Caveator
Mrs.Veena Thadani, a/w. Ms.Priyanka Raul for the Applicant.
Mr.Omprakash Pandey, a/w. Ms.Anita Vasani, i/b. M/s.Pandey Co.
for the Respondent.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 5th FEBRUARY, 2019
PRONOUNCED ON : 15th FEBRUARY, 2019
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JUDGMENT :
By this miscellaneous application filed under section 247 of the
Indian Succession Act, 1925 (for short the Succession Act), the
applicant seeks her appointment as an administrator pendente lite in
respect of the estate of the deceased late Mr.Amardeep Singh Sujan
Singh Chadha with all rights and powers of a General Administrator
and subject to the control of this court. Some of the relevant facts for
the purpose of deciding this petition are as under :-
2. The applicant is a widow of late Mr.Amardeep Singh
Sujan Singh Chadha. The respondent is son of the said late
Mr.Amardeep Singh Sujan Singh Chadha and son of the applicant. Out
of the wedlock of the applicant and the said late Mr.Amardeep Singh
Sujan Singh Chadha, two children were born i.e.Mr.Inderjeet Singh
Amardeep Singh Chadha @ Supremo Singh Chadha, son of the said
late Mr.Amardeep Singh Sujan Singh Chadha and a married daughter
Mrs.Gogi Kaur Keer @ Daljeet Tarvinder Keer.
3. On 26th November,1998, the respondent married
Ms.Parmeetkaur. Two children were born out of the said wedlock. The
said deceased late Mr.Amardeep Singh Sujan Singh Chadha was
carrying on business in the name and style of M/s.Hotel Amardeep
Lodging and Boarding and Restaurant at 3 rd Road, Khar (West),
Mumbai as the sole proprietor thereof till his death on 27 th April, 2017.
It is the case of the applicant that the respondent has studied only upto
the 4th or 5th standard and fell into bad company and developed all bad
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habits. It is the case of the applicant that due to the bad behaviour and
interference with the business of M/s.Hotel Amardeep Lodging and
Boarding and Restaurant which was run by the said deceased husband
of the applicant, the said deceased suffered a paralytic stroke. The
respondent took the advantage of the said situation and forcibly took
over the management of the said business and started living a lavish
life style.
4. Sometime in the year 2012, the husband of the applicant
jointly with the applicant filed a suit which was subsequently
numbered as 423 of 2014 in this court inter alia praying for a
permanent injunction restraining the respondent from interfering or
disturbing the business of running the hotel/lodging house or restaurant
which was run by the husband of the applicant and also for various
reliefs. The applicant and her husband had also filed a Notice of
Motion (L) No.3225 of 2012 in the said suit.
5. The respondent filed affidavit in reply dated 7th December,
2012 in the said notice of motion and disputed the ownership rights of
the deceased husband of the applicant in respect of the immoveable
properties of the said deceased and claimed that the said properties
were either ancestral properties or HUF properties or had been
purchased by him by taking a loan from HSBC Bank which was repaid
by him subsequently. In the said suit, the respondent herein filed a
Notice of Motion No.1395 of 2013 and alleged that the said hotel
M/s.Hotel Amardeep Lodging and Boarding and Restaurant was in his
exclusive use and possession since last 20 years and that he has been
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managing the business since last 20 years and was responsible for
developing the said business.
6. It is the case of the applicant that the respondent opened a
bank account fraudulently in the month of October 2013. The
deceased husband of the applicant jointly with the applicant filed a
police complaint on 7th January,2014 against the respondent with the
Senior Police Inspector, Khar Police Station, Mumbai.
7. It is the case of the applicant that on 29 th January,2014, the
said deceased husband of the applicant executed a Will which was
duly registered bequeathing all his properties to the applicant and
excluded the respondent from all inheritance.
8. On 2nd May, 2015, the respondent separated with his first
wife, Mrs.Parmeetkaur Supremo Inderjeet Chadha and the respondent
and his wife filed a petition F-1727 of 2016 before the Family Court,
Mumbai at Bandra under section 13-B of the Hindu Marriage Act,
1955 for divorce by mutual consent. By judgment dated 30th January,
2017 passed by the Family Court, the said petition came to be allowed
and the marriage solemnized between the respondent and
Mrs.Parmeetkaur came to be dissolved by a decree of divorce by
mutual consent with effect from the said order.
9. It is the case of the applicant that the flat no.301 in
Preetika Apartments which was in the name of the respondent was
gifted by the respondent on 27th May, 2016 in favour of
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Mrs.Parmeetkaur. Flat no.302 in the same building was in the name of
the applicant. All though flat no.301 and flat no.302 were combined
where the applicant resided with her husband all throughout in the said
flat, the respondent gifted flat no.302 to Mrs.Parmeetkaur by executing
a gift deed.
10. On 14th February,2017 the respondent married Ms.Sonu
Pandey. On 7th March,2017, the deceased husband of the applicant was
admitted to the hospital due to paralytic stroke. On 12 th March,2017,
the deceased husband of the applicant was discharged from the hospital
but was still unwell. It is the case of the applicant that on 18 th
March,2017, the first wife of the applicant obtained a gift deed
fraudulently from the applicant in favour of grand-daughter
Ms.Hansmeet Kaur of flat which was owned by the applicant in the
building Kusum Villa from which property the applicant was earning
rent. It is the case of the applicant that on 18 th March,2017, the first
wife of the respondent fraudulently obtained a gift deed from the
applicant in her own favour in respect of flat no.302 situated at 3 rd
Floor, Preetika Apartments, Saraswati Road, Santacruz (West),
Mumbai 400 054 which flat was owned by the applicant. On 27 th
April,2017, the husband of the applicant expired.
11. It is the case of the applicant that in the month of October
2017, the applicant was shocked when the secretary of Preetika
Apartments informed the applicant that the first wife of the respondent
wanted to transfer the said flat no.302 in her name on the basis of the
gift deed dated 18th March,2017. The applicant therefore obtained
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copies of the two gift deeds dated 18th March,2017 under the provision
of Right to Information Act in the month of November 2017.
12. On 13th December,2017, the respondent filed a
testamentary petition bearing no.2458 of 2017 in this court inter alia
praying for probate of the purported notarized Will dated 12th
April,2017 of the deceased husband of the applicant and the father of
the respondent.
13. On 7th November,2017, the daughter of the applicant
Mrs.Gogi Kaur Keer @ Daljeet Tarvinder Keer filed a caveat in the
testamentary petition filed by the respondent. On 2nd February,2018,
the applicant herein filed a caveat in the Testamentary Petition
No.2458 of 2017. On 21st March, 2018, the applicant filed a petition
for Letters of Administration bearing no. TPL 971 of 2018 in respect of
the alleged registered Will of the deceased dated 29th January, 2014.
14. On 10th April,2018, the applicant filed Notice of Motion
(L) No.906 of 2018 in the Suit No.423 of 2014 which was filed by the
applicant and her husband against the respondent, seeking appointment
of the Court Receiver in respect of M/s.Hotel Amardeep Lodging and
Boarding and Restaurant, for injunction restraining the respondent
from entering into the immoveable properties of the deceased husband
of the applicant and from dispossessing from flat nos. 301 and 302.
15. The applicant filed chamber summons bearing no.1033 of
2018 in Suit No.423 of 2014 seeking leave to amend the plaint by
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deleting the name of the deceased husband of the applicant and for
impleading the daughter Mrs.Gogi Kaur Keer @ Daljeet Tarvinder
Keer and also substituting the old address with the new address of the
respondent.
16. On 20th April,2018, the applicant filed a suit bearing (L)
No.539 of 2018 challenging the gift deeds both dated 18th March,2017
in this court which is allegedly obtained by the wife of the respondent
fraudulently from the applicant.
17. On 21st April, 2018, the applicant filed a notice of motion
bearing (L) No.1030 of 2018 in Suit (L) No.539 of 2018 for injunction
restraining the said Mrs.Parmeetkaur Supremo Inderjeet Chadha, the
first wife of the respondent and Ms.Hansmeet Kaur from creating any
third party rights in those two flats. On 21st April,2018, this court
passed an order of status-quo in respect of flat no.302 in the said
Preetika Apartments and also in respect of the flat in Kusum Villa.
18. On 20th June, 2017, the two children (twin) were born to
the second wife of the respondent. On 21 st April,2018, the respondent
made a statement before this court in Notice of Motion (L) No.906 of
2018 in Suit No.423 of 2014 that the divorce between the respondent
and his ex-wife Mrs.Parmeetkaur was only on paper of this court. This
court recorded the said statement made by the respondent.
19. On 24th April,2018, the respondent filed an affidavit in
Notice of Motion (L) No.906 of 2018 in Suit No.423 of 2014 alleging
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that he was residing in the flat nos. 301 and 302 with his wife
Mrs.Parmeetkaur and two grown up children.
20. On 27th April, 2018, Mrs.Parmeetkaur filed affidavit in
reply in Notice of Motion (L) No.906 of 2018 alleging that the divorce
decree between the respondent and the said Mrs.Parmeetkaur was only
on paper. On 26th June, 2018, the respondent filed affidavit in
Chamber Summons (L) No.577 of 2018 in the Suit No.423 of 2014 and
reiterated that the decree of divorce between him and Mrs.Parmeetkaur
was only on paper.
21. On 6th August,2018, the marriage between the respondent
and Ms.Sonudevi Bholanath Pandey which was allegedly solemnized,
was registered with the Registrar of Marriages, Mumbai.
22. On 27th February,2018, the applicant filed this
miscellaneous petition inter alia praying for appointment as
administrator of the estates of the deceased husband late Mr.Amardeep
Singh Sujan Singh Chadha. Mrs.Thadani, learned counsel appearing
for the applicant invited my attention to various portion of the
pleadings filed by both the parties, documents annexed to the
miscellaneous petition and also to the compilation of documents filed
by her and various orders passed by this court.
23. It is submitted by the learned counsel that flat no.301 was
in the name of the respondent whereas the flat no.302 was owned and
was in the name of the applicant. The applicant was also holding a flat
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in her name on ownership basis in the building Kusum Villa.
24. It is submitted by the learned counsel that because of the
illegal act of the respondent and misbehaviour with the husband of the
applicant and also with the applicant, both of them filed a civil suit
against the respondent for various reliefs.
25. Learned counsel appearing for the applicant invited my
attention to the Will dated 29th January,2014, duly registered which is
propounded by the applicant which was executed by the deceased
husband of the applicant and would submit that under the said Will, the
husband of the applicant had bequeathed various properties of the said
deceased in favour of the applicant. She submits that insofar as the
property M/s.Hotel Amardeep Lodging and Boarding and Restaurant is
concerned, it is stated in the said Will that it was an ancestral property
and therefore the same shall be transferred in the name of the applicant
and the respondent jointly. However, the management of the said hotel
M/s.Hotel Amardeep Lodging and Boarding and Restaurant would
remain with the applicant and the respondent shall not interfere with
the management thereof to be looked after by the applicant.
26. Learned counsel also invited my attention to the alleged
Will propounded by the respondent on 12th April,2017 and would
submit that even under the said alleged Will propounded by the
respondent, insofar as the hotel M/s.Hotel Amardeep Lodging and
Boarding and Restaurant is concerned, the said property is exclusively
bequeathed in favour of the applicant. She also invited my attention to
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the averments made by the respondent in the testamentary petition filed
by the respondent i.e. 2458 of 2017 and would submit that the
respondent himself having applied for probate in respect of the alleged
Will dated 12th April,2017, the respondent has admitted exclusive
ownership of the husband of the applicant in respect of the said
property, the respondent cannot be allowed to run the said hotel
business or to claim any right, title or interest of any nature whatsoever
in the said property and the said hotel business.
27. It is submitted that the applicant has to depend upon the
mercy of her daughter. The respondent who got the control of the said
property has not been paying any amount to the applicant though the
respondent can neither claim any share in the said property nor can be
permitted to manage the hotel business. It is submitted by the learned
counsel that the respondent has threatened the applicant to throw her
out of the house and also that he and his first wife would stop giving
her food and medicines.
28. It is submitted by the learned counsel that the respondent
has illegally taken over the control of the hotel business and has been
spending lavishly. She submits that under the said judgment of the
Family Court passed in the consent petition filed by the respondent and
Mrs.Parmeetkaur, the respondent agreed to pay a sum of Rs.7,00,000/-
per month to Mrs.Parmeetkaur at the same time and the respondent as
well as the said Mrs.Parmeetkaur have filed two separate affidavits in
various proceedings alleging that the said divorce between the said
respondent and the said Mrs.Parmeetkaur was only on paper.
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29. It is submitted by the learned counsel that even in respect
of the flat no.302 which was owned by the petitioner and was in the
name of the applicant, the said Mrs.Parmeetkaur has fraudulently
obtained a gift deed from the applicant and also similarly taken gift
deed in respect of the another flat in Kusum Villa Apartments. The
applicant has already filed a separate suit impugning those two gift
deeds. This court has already passed an order of status-quo in flat
no.302 and flat in Kusum Villa. It is submitted by the learned counsel
that both the parties are propounding two separate Wills of the
deceased husband of the applicant.
30. Learned counsel for the petitioner submits that the
respondent has no right, title or interest of any nature whatsoever
nature even according to the Will propounded by him in respect of
Amardeep Hotel business and thus he cannot be allowed to run the said
business and that also without paying any amount to the petitioner who
has been bequeathed the said property even according to the alleged
Will propounded by the respondent. He submits that admittedly out of
the income generated from the hotel business, the respondent has been
paying substantial amount by way of monthly compensation agreed to
be paid by the respondent to his first wife under the consent decree.
She submits that since the respondent did not have any right, title
and/or interest in the hotel business, the respondent cannot be allowed
to misuse and/or spend any amount from the said business which is
absolutely bequeathed in favour of the petitioner.
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31. It is submitted that various proceedings filed by both the
parties against each other in respect of the estate of the said deceased
husband of the petitioner are pending. The property forming part of the
estate of the deceased husband of the petitioner who was father of the
respondent is thus required to be protected. It is also not in dispute that
both the parties have filed their respective caveats in the testamentary
petition filed by each other.
32. Learned counsel for the petitioner strongly placed reliance
on section 180 of the Indian Succession Act, 1925 and would submit
that the respondent has not elected to dissent from the bequest made by
the deceased husband of the petitioner in the Will propounded by the
respondent himself and has filed the testamentary petition inter-alia
praying for probate of the said alleged Will in toto. The respondent has
thus admitted the ownership of the deceased husband and father of the
respondent in the testamentary petition filed by himself and thus
cannot be allowed to urge that he has any right of any nature
whatsoever to run the said hotel business during the pendency of the
testamentary petition filed by both the parties. She submits that the
respondent similarly cannot claim any ownership in any of the
properties bequeathed by the said deceased, including Amardeep Hotel
business in view of the respondent not having challenged any portion
of the Will propounded by him.
33. Mr.Omprakash Pandey, learned counsel appearing for the
respondent on the other hand submits that his client has also filed a
separate testamentary petition in respect of the later Will propounded
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by his client which was executed by the deceased husband of the
petitioner and the father of the respondent. He submits that his client is
the only son of the said deceased testator who has been carrying on the
said Hotel business for last more than two decades. He submits that the
petitioner is on the contrary only a house wife and has no knowledge
or experience of conducting the hotel business. He submits that
admittedly the petitioner has been staying with the respondent in the
same flat. The respondent has been looking after the petitioner
exclusively.
34. It is submitted that the father of the respondent was
paralyzed in the year 2007 and since then his movement was totally
restricted. He was not able to look after the business and thus the entire
hotel business was looked after exclusively by the respondent. Learned
counsel for the respondent invited my attention to the order dated 21 st
April, 2018 passed by Shri Justice S.J. Kathawalla recording the
statement made by the respondent that the divorce petition between the
respondent and his first wife was only a paper decree. The respondent
has denied the divorce with his first wife. He submits that several
proceedings are also filed by his client so as to protect the estate of the
deceased father.
35. It is submitted by the learned counsel that though under
the Will propounded by his client, Amardeep Hotel business and the
property is exclusively given to the petitioner by the deceased father of
the respondent since it has been provided that after the demise of the
petitioner, the said property would come to the respondent, the
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respondent is entitled to protect the said property by carrying on
business even during the life time of the petitioner. Learned counsel
submits that this Court may direct the respondent to pay reasonable
amount to the petitioner. He submits that his client has been already
paying a substantial amount to the petitioner but is not able to produce
any proof in respect of such payment.
36. Ms.Thadani, learned counsel for the petitioner in rejoinder
submits that the respondent has not been paying any amount to the
petitioner as falsely alleged by the respondent and on the other hand
has been spending lavishly substantial amount out of the income
generated from the hotel business. She submits that her client may be
appointed as an Administrator in respect of said hotel business. She
can take assistance of a Manager or any other competent person to
assist her for conducting the said hotel business. She further states on
instructions that her client is ready and willing to pay the amount
bequeathed in the Will propounded by the petitioner to the respondent
per month out of the income generated from the hotel business without
prejudice to her rights and contention. She submits that the said hotel
business which is forming part of the estate of the deceased has to be
protected and cannot be allowed to be wasted. She submits that even if
the argument of the respondent is accepted that the respondent would
be entitled to run the hotel business after the demise of the petitioner,
on that ground the respondent cannot be allowed to run the hotel
business even during the life time of the petitioner. She submits that
this is a fit case for appointment of an Administrator by exercising the
powers under section 247 of the Indian Succession Act, 1925 by this
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Court.
REASONS AND CONCLUSIONS :-
37. A perusal of the record indicates that the petitioner has
filed a petition bearing Testamentary Petition (L) No.971 of 2018 for
Letters of Administration on 21st March 2018 in respect of the
registered Will of the deceased dated 29th January 2014.
38. It is not in dispute that prior to the date of execution of the
said alleged Will dated 29th January 2014, the petitioner and the said
deceased had already filed a suit against the respondent herein for
various reliefs in respect of the hotel business. This Court has already
granted interim relief in the said suit against the respondent. The
respondent had filed a caveat in the said Testamentary Petition (L)
No.971 of 2018 and as a result thereof, the said testamentary petition
is converted into as a testamentary suit. There is also no dispute that
the respondent had propounded a separate alleged Will dated 12 th April
2017 of the said deceased and has filed Testamentary Petition
No.2458 of 2017 seeking Probate of the said purported Will dated 12th
April 2017. In view of the caveat and affidavit in support of the caveat
filed by the petitioner and daughter of the petitioner and the said
deceased, the said testamentary petition has already been converted
into a Testamentary suit.
39. In so far as the alleged Will propounded by the petitioner
is concerned, in so far as the immovable properties i.e. M/s.Hotel
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Amardeep is concerned, in the said alleged Will, the said deceased
bequeathed the said property in the name of the petitioner and the
respondent jointly. It was however mentioned in the said alleged Will
that management of the said hotel Amardeep will remain with the
petitioner and the respondent shall not interfere with the management
looked after by the petitioner.
40. In so far as the alleged Will dated 12 th April 2017
propounded by the respondent is concerned, it is provided in the said
alleged Will that as on the date of the said alleged Will, the respondent
was conducting and managing all the affairs of the said Hotel
Amardeep, Lodging Boarding and Restaurant and Bar and all income
generating from the said hotel shall belong to the respondent. It is
further provided in the said alleged Will that after demise of the said
deceased i.e. husband of the petitioner and the father of the respondent,
no one else shall have any right, title, interest, claim or demand
whatsoever on the assets mentioned in the said alleged Will or
properties, all the rights, absolute power and complete authority on
those assets or in any other property which may be substituted in
their place or places which may be acquired or received by the
deceased after the date of execution of the said alleged Will were
given, devised and bequeathed to the petitioner absolutely forever and
in case of her demise, the respondent shall have power to deal or
dispose of the said properties.
41. A perusal of the said alleged Will propounded by the
respondent himself thus would prima facie indicate that after demise
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of the said deceased, husband of the petitioner, various properties
including the said hotel Amardeep, Lodging Boarding and Restaurant
and Bar was bequeathed in favour of the petitioner absolutely forever
and only in case of her demise, the respondent shall have power to
deal and dispose of the said properties. A perusal of the averments
made in the Testamentary Petition No.2458 of 2017 filed by the
respondent inter alia praying for Probate of the said alleged Will dated
12th April 2017 of the said deceased, husband of the petitioner and the
father of the respondent clearly indicates that the respondent has
admitted in paragraph 6 of the said petition that all the property and
credits which the deceased had possessed of or was entitled to at the
time of his death which had or were likely to come to his hands and
the petitioner has truly set forth in Schedule I appended to the said
testamentary petition. Schedule I annexed to the said testamentary
petition filed by the respondent includes the immovable property
consisting of structure lying at 12/A, Evergreen Building, 3 rd Road,
Khar (West) Mumbai – 400 052 from which the business of Hotel
Amardeep, Lodging Boarding and Restaurant and Bar is being carried
out and the said property is shown as self occupied and did not fetch
any rent. The value of the said property shown in Schedule I is at Rs.5
crores.
42. Learned counsel for the respondent during the course of
the arguments in this Misc. Application vehemently urged before this
Court that under the said alleged Will propounded by his client, the
respondent would be permitted to deal with and dispose of the
aforesaid property on which the said Hotel Amardeep, Lodging
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Boarding and Restaurant and Bar was being run, after the demise of
the petitioner. It was also vehemently urged by the respondent that
the petitioner is housewife and has no experience of running a hotel.
It is disputed by the learned counsel for the respondent that in the Will
propounded by his client, the ownership right in respect of the said
Hotel Amardeep, Lodging Boarding and Restaurant and Bar in which
the said hotel business was run is not bequeathed in favour of the
respondent but has been bequeathed in favour of the petitioner
absolutely.
43. The petitioner has vehemently urged before this Court
that the respondent has been exclusively running the said hotel
business though the respondent is admittedly not bequeathed the said
property and that also excluding the petitioner. The petitioner has
been depending on her daughter exclusively. It is also demonstrated by
the petitioner from the statement of expenses produced by the
respondent that large amount of the alleged expenses have been
debited to the said hotel account under various heads. Lakhs of rupees
have been alleged to have been paid by the respondent to the first
wife of the respondent out of the income generated out of those hotel
business. During the course of the arguments, learned counsel for the
petitioner invited my attention to the decree of divorce passed by the
Family Court, Mumbai at Bandra in Petition No.F-1727 of 2016 which
was filed by the respondent jointly with Mrs.Parmeetkaur Supremo
Inderjeet Chadha.
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44. It was a joint petition under Section 13-B of the Hindu
Marriage Act, 1955 requesting for divorce by mutual consent. It was
mentioned in the said order and judgment dated 30th January 2017 that
due to indifferent nature, views, ideas and temperaments etc. of the
petitioners in the said petition, their matrimonial life was not happy.
They started living separately since 2 nd May 2015. It was further
provided in the said judgment that the respondent herein had towards
full and final settlement as alimony acquired during the marriage
period and transferred by way of registered document in the name of
the petitioner no.2 therein i.e. first wife (i) Gift Deed dated 27 th May
2016 in respect of the Flat No.301 admeasuring 1335 sq.ft., Preetika
Apartment, Saraswat Colony, Saraswat Road, Santacruz (West),
Mumbai – 400 054, (ii) Sale Deed dated 17 th October 2015 in
“Lavdeep C.F.C. Building” consisting of ground plus third (part) floor
totally admeasuring 436 sq.mtrs. and (iii) Sale Deed dated 16 th
December 2014 in respect of Flat No.3, admeasuring 213 sq.ft.
Carpet equal to 255.6 sq.ft. Built Up equal to 23.75 sq.mtrs., Khar
Sunrise HSG Society, ground floor, 5 th Road, Khar (West), Mumbai –
400052.
45. The respondent herein also agreed to pay periodical
maintenance of Rs.7 lakh per month by way of maintenance to the
petitioner no.2 therein and children with further increase by Rs.1 lakh
after every two years. It was further agreed that all additional
expenses as regards the expenses amounting due to the further
education and stay of the children required also would be paid by the
respondent herein. The Family Court, Mumbai allowed the said
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petition filed by the respondent with his wife jointly for mutual
divorce.
46. The respondent however made a statement before this
Court on 21st April 2018 in the Notice of Motion (L) No.906 of 2018
in Suit No.423 of 2014 which was filed by the petitioner and her
deceased husband that divorce between the respondent and his ex-wife
Parmeetkaur was only on paper. In the affidavit-in-reply dated 26 th
June 2008 filed by the respondent in Chamber Summons (L) No.577
of 2018 in Suit No.423 of 2014 also, the respondent once again
made a statement on oath that decree of divorce between the
respondent and the said Mrs.Parmeetkaur was only a paper decree.
Similar statements are made by the learned counsel for the
respondent during the course of his argument in this notice of motion
that no reliefs on the basis of the said decree passed by the Family
Court can be pressed since the said divorce decree is only a paper
decree and neither enforceable not enforced. It is also the case of the
respondent that the respondent has already married Ms.Sonudevi
Bholanath Pandey within 14 days of the decree of divorce passed by
the Family Court i.e. on 14 th February 2017 and two children are
born out of the said wedlock.
47. On one hand, the respondent has alleged that the said
decree passed by the Family Court, Mumbai in the joint petition filed
by the respondent with Mrs.Parmeetkaur granting divorce by mutual
consent of parties was only a paper decree and on the other hand,
has not disputed that substantial amounts are being paid to
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Mrs.Parmeetkaur out of the income generated from the hotel business.
Learned counsel for the respondent could not explain that decree
passed by the Family Court granting divorce to the respondent and
Mrs.Parmeetkaur by mutual consent was only a paper decree, why the
respondent was required to pay Rs.7 lakh per month to
Mrs.Parmeetkaur out of the income generated from the said Hotel
Amardeep. It is thus clear beyond reasonable doubt that the respondent
has been paying the substantial amount to Mrs.Parmeetkaur out of the
income generated from the hotel business. The respondent could not
point out any right to run the said Hotel Amardeep or to incur any
such expenditure from the said income.
48. Learned counsel for the respondent could not produce any
proof before this Court showing that any amount has been paid by the
respondent to the petitioner from the income generated from the said
hotel business.
49. A perusal of the said statement of account, even if
accepted as true and correct, clearly shows that large amounts have
been withdrawn by the respondent from the said hotel business
towards personal expenses of the respondent. In my prima facie view,
since even according to the respondent, the respondent would have
right, if any, in the said hotel Amardeep, Lodging Boarding and
Restaurant and Bar, only after demise of the petitioner, the respondent
cannot be allowed to carry on such business and to misappropriate,
mishandle or to waste the estate of the said deceased for his personal
gain. Even if the argument of the respondent is accepted on the basis
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of the alleged Will propounded by the respondent, he may claim right
to deal with or dispose of the said property in which the said business
in the name of Amardeep, Lodging Boarding and Restaurant and Bar
is being run after demise of the husband of the petitioner. Since the
petitioner herself is alive, the respondent cannot be allowed to run the
said business during the lifetime of the petitioner. In my view,
Ms.Thadani, learned counsel for the petitioner is right in her
submission that the respondent has not exercised his right to dissent
any portion of Will propounded by him under Section 180 of the
Indian Succession Act, 1925.
50. A perusal of the record further indicates that it is the case
of the petitioner that about one month prior to the demise of the
husband of the petitioner and during the period when the husband of
the petitioner was seriously ill in the month of March 2017, the said
Mrs.Parmeetkaur obtained a Gift Deed fraudulently from the
petitioner in favour of grand-daughter in respect of the flat in “Kusum
Villa” from where the applicant was getting rent. It is also the case of
the petitioner that on the same day i.e. 18 th March 2017, the said
Mrs.Parmeetkaur fraudulently obtained another Gift deed from the
petitioner in her favour in respect of Flat No.302 which was owned
by the petitioner. The petitioner thereafter applied and obtained for
copies of Gift Deed on 2nd November 2017 under the provisions of
Right to Information Act, 2005 and has already filed a Civil Suit
bearing (L) No.539 of 2018 on 20th April 2018 challenging the said
two Gift Deeds.
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51. By an order dated 21st April 2018 passed by this Court in
Notice of Motion (L) No.1030 of 2018 in Suit No.423 of 2014 filed
by the petitioner, this Court has already granted injunction against
Mrs.Parmeetkaur and Hasmeet from creating any third party rights in
the flats allegedly gifted to them till the hearing and final disposal of
the said suit. This Court has also passed an order of status-quo in
respect of Flat No.302 at Preetika Apartment. The testamentary
petitions which were already converted into testamentary suits filed by
both the parties propounding separate Wills are pending. The rival
contentions of the parties in both the suits regarding the alleged
validity of the Will propounded by each other would be considered in
those proceedings. Various proceedings filed by the parties against
each other in respect of the properties in question are also pending.
This Court in the case of Shernaz Faroukh Lawyer Anr. Vs.Manek
Dara Sukhadwalla Anr., 2014 (2) Bom.C.R. 591 has considered a
similar situation where both the parties had propounded different Wills
and both the proceedings were pending. One of the parties however
who was claiming to be a caretaker, was misappropriating,
mishandling and was wasting the estate of the deceased for his
personal gain. This Court having recorded such prima facie finding,
appointed an administrator in respect of the properties of the deceased
which was misappropriated, mishandling and wasted by such party,
though his separate petition for grant of probate was also pending.
52. This Court in the said judgment held that in such a
situation, properties of the estate of the deceased has to be protected
and an administrator deserves to be appointed under Section 247 of
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the Indian Succession Act, 1925. The principles of law laid down by
the learned Single Judge of this Court in the case of Shernaz Faroukh
Lawyer Anr. Vs.Manek Dara Sukhadwalla Anr. (supra) clearly
applies to the facts of this case.
53. Appeal filed against the said judgment in the case of
Shernaz Faroukh Lawyer Anr. Vs.Manek Dara Sukhadwalla
Anr. (supra) by the defendant therein also came to be rejected by a
detailed judgment rendered by this Court in Appeal (L) No.7 of 2014
reported in 2014 SCC OnLine Bom 847. This special leave petition
against the said judgment is also dismissed.
54. This Court with a view to test bona fides of the respondent
asked the learned counsel for the respondent to take instruction
whether a reasonable amount would be paid to the petitioner without
prejudice to the rights and contentions of the petitioner, considering
the substantial income from the hotel business, learned counsel for the
respondent, on instructions from his client, refused to agree to the said
suggestion. Mrs.Thadhani, learned counsel for the petitioner, on
instructions from her client, submits that her client would able to run
the said hotel business by appointing a manager and looking after the
said business herself. Statement is accepted.
55. In my view, the petitioner has thus made out a case for
her appointment as an administrator in respect of the easter of the
deceased late Mr.Amardeep Singh Sujan Singh Chadha, with all rights
and powers of a General Administrator subject to the control of this
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Court including the control of the hotel business run in the name of
Amardeep, Lodging Boarding and Restaurant and Bar with power to
run the said business.
56. I therefore pass the following order :-
(i) The respondent is directed to hand over the
possession of all assets in custody of the respondent
including the said property on which the said hotel in the
name of Amardeep, Lodging Boarding and Restaurant
and Bar is being run by the respondent and all the
licenses and other permissions obtained or existing in
respect of the said hotel business to the petitioner within
four weeks from today.
(ii) It is made clear that the petitioner would be
allowed to conduct the said hotel business in the name of
Amardeep, Lodging Boarding and Restaurant and Bar
herself with the assistance of appropriate number of staff
members including a manager.
(iii) The petitioner shall maintain the accounts in
respect of the said hotel business and shall file the
accounts every six monthly. The respondent would be at
liberty to obtain a copy of such statement of account
from the office of the learned Prothonotary and Senior
Master upon payment of requisite photocopying charges,
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if any.
(iv) The respondent shall not obstruct the
petitioner from carrying on the said hotel business in the
name of Amardeep, Lodging Boarding and Restaurant
and Bar in any manner whatsoever. The petitioner
would be at liberty to seek appropriate directions from
this Court if and when any need so arise.
(v) The petitioner would be at liberty to open a
bank account in the name of “Administrator, estate of
Mr.Amardeep Singh Sujan Singh Chadha” and can
operate the said account in the name of the estate of the
deceased and to run the said hotel business in the name of
Amardeep, Lodging Boarding and Restaurant and Bar.
(vi) The respondent shall furnish a list of sundry
debtors and creditors in respect of the said hotel business
till the date of the respondent handing over the charge
and control of the said business to the petitioner within
four weeks from today.
(vii) In so far as the liability of the said hotel
business is concerned, the petitioner to obtain further
directions from this Court by issuing a notice upon the
respondent’s advocate in advance.
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(viii) Misc. Petition is made absolute in aforesaid
terms. No order as to costs.
(ix) Parties to act on the authenticated copy of
this order.
(R.D.DHANUKA, J.)
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