1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1 OF 1989 IN PETITION NO.637 OF 1988 Mr.Ramesh M. Haria. ..Plaintiff. V/s. Smt.Laxmi Jivraj Shah. ..Defendant. Mr.Suresh N. Manoti for plaintiff. Mr.Vivek Valawalkar i/b. B. Amin & Co. for defendant. CORAM: D.B.BHOSALE, J CORAM: D.B.BHOSALE, J CORAM: D.B.BHOSALE, J DATE : APRIL 29, 2008. DATE : APRIL 29, 2008. DATE : APRIL 29, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard learned Counsel for the parties. 2. Plaintiff/Petitioner has instituted this suit/petition for Letters of Administration to the property and credits of one Lalji Ravji Haria who admittedly died intestate on 31.5.1968. The properties, as they were initially incorporated, in Schedule I appended to the Petition were as under : "S C H E D U L E - I Rs. Ps. 1. Cash in hand 200.00 2. House hold goods 375.00 3. Tenancy rights in respect of 2 premises bearing No.Estate/- Scheme, Colony/Code No.22014, T.No.900, Check Code 7, Situate at 3rd floor, Bldg.No.44, Azad Nagar No.3, Veera Desai Road, Bombay Housing and Development Board, Andheri, Andheri, Andheri, Bombay-58. The monthly rent in respect of the same is Rs.65/-. Therefore 12 months’ rent amount to Rs.780/-.780.00 See rider for item No.(4) & (5) on the back. 20720.00 ----------- Total Rs. 22075.00 ----------- Less Funeral expenses as per Schedule II(Not subject to duty). 200.00 ----------- Grant total Rs. 21875.00 -----------" It appears that an objection was raised by the caveatrix/defendant stating that all the properties of the deceased-Lalji Haria were not incorporated by the plaintiff/petitioner in the petition. In view of the objection the petitioner added two more properties by way of an amendment. The added properties are as under: S C H E D U L E -1A "4. Tenancy rights in respect of Shop premises being Shop No.4 Shop No.4 Shop No.4, situate at 16/C, B.I.T.,Chawl, Belasis Road, Bombay - 400 008. The monthly rent in respect of the same is Rs.60/- 3 Therefore 12 months rent amounts to Rs.720/- 720.00 5. An immovable property immovable property immovable property consisting of a House thereon situate and lying at being House No.42/2 District: Mandvi Kutch, Mandvi Kutch, Mandvi Kutch, Gujrat of the present market value of 20,000.00 ------------- The above property does not fetch any rent. Rs. 20,720.00 ============= 3. The Plaintiff/Petitioner is the grand-son of deceased Lalji Haria. Lalji Haria died on 14th April, 1980 leaving behind three daughters, the widow of his pre-deceased son, and a sister. The plaintiff/petitioner is the son of the said predeceased son and the caveatrix/defendant is the daughter of Lalji Haria. The petition was filed on 9th December, 1988. After service of citation, the defendant/caveatrix filed a caveat opposing the petition mainly on the ground that the petitioner did not disclosed all the assets/properties of the deceased in the schedule appended to the petition and that the Petitioner is not a fit person to be granted Letters of Administration to the estate of the deceased. It was also opposed on the ground that an intention of the plaintiff/petitioner, to obtain Letter of Administration, is to usurp the entire estate of the deceased including the premises in 4 "Arihant building" being constructed in the place of old building at Daruwala compound, Lamington Road, wherein the deceased had a room No.6 as a tenant and also the premises at Andheri which was allotted by the developer to the deceased as a transit accommodation. It is against the backdrop of these facts the following issues, as were framed vide order dated 19th December, 2007, fall for my consideration: "1. Whether the plaintiff is a fit and proper person to be entitled to Letters of Administration to the property and credits of the deceased Shri Lalji Ravji Haria ? 2. Whether the plaintiff is entitled to Letters of Administration in respect of tenancy rights of property viz. premises bearing No.estate/scheme, Colony/Code No.22014, T No.990 check Code-7 situate on 3rd floor, building No.44, Azad Nagar No.3, Veera Desai Road, Bombay Housing and Development; Board, Andheri, Mumbai-400 058? 3. What order ?" 4. The Plaintiff/petitioner and the defendant examined themselves in support of their case. The case as disclosed from the pleadings and the evidence in support thereof laid by the plaintiffs is that he is entitled to file petition for Letters of Administration, he being the son of the predeceased son of the deceased Lalji Haria. He states that he 5 is a class-I heir of the deceased and is, therefore, entitled to administer the estate of the deceased. He also claims to be a fit and proper person to obtain Letters of Administration to the property of the deceased. The main emphasis for obtaining the letters of administration is that none of the other heirs fall under class-I of Section 8(c) of the Hindu Succession Act, 1980 and that they have not applied for succession certificate/Letters of Administration. In view thereof, according to the plaintiff/petitioner, he is entitled for Letters of Administration to the estate of the deceased. He states that though he has only 1/12 share in the properties of the deceased his purpose of filing this Petition is only to administer the properties of the deceased. 5. My attention was invited by the learned Counsel for the Plaintiff to the evidence of defendant/caveatrix to contend that she is not trustworthy since in the cross-examination she does not state as to why she never applied for Succession Certificate or Letters of Administration for getting the tenement at Andheri transferred in her name. Counsel for the Plaintiff on the basis of the evidence of the defendant submitted that the 6 defendant has not taken any step in regard to the properties and credits of the deceased though she is also heir of Lalji Haria. He submitted that the defendant has filed the caveat with the sole object that the plaintiff does not get letters of administration. It was also submitted that insofar as rights of the parties are concerned, it is always open to the defendant to file appropriate proceedings for appropriate reliefs in respect of her share in the property left by the deceased Lalji Haria and she cannot obstruct grant of letters of administration to the estate of the deceased in favour of the plaintiff to administer the properties of the deceased. 6. Mr.Walawalkar, learned counsel for the defendant, at the outset, submitted that the plaintiff has not approached this court with clean hands and in view thereof is not fit person to seek Letters of Administration as prayed in the Petition. He submitted that the plaintiff has suppressed material facts in respect of the properties/estate of the deceased and his intention is not to administer estate of the deceased but to usurp the said properties. 7. The order to grant "Letters of 7 Administration" under Section 298 of the Indian Succession Act, 1925 is discretionary in nature. The direction under this provision can be exercised in those applications, where the applicant requires administration of the properties for his benefit and for the benefit of other heirs. In such cases it becomes more important for the court to see whether or not the applicant has approached to the court with clean hands and/or has not suppressed material facts from the court. It is also necessary in such cases to see whether the intention of the applicant to administer the properties/estate of the deceased is genuine and not to usurp the properties and/or to deprive other heirs of the deceased. If the court feels that the applicant has suppressed material information from the court or has deliberately not disclosed all the properties of the deceased, the court can reject the prayer for grant of Letters of Administration. 8. I perused the Petition and the Schedule I appended thereto. It is clear that initially only one immovable property, at Andheri, which is admittedly in possession of the defendant, was shown as a property/estate of the deceased apart from small amount of cash and old goods worth paltry sum. The 8 plaintiff added the other properties by way of an amendment only when a serious objection was raised to that effect by the defendant. By way of the amendment shop No.4, which is in possession of the plaintiff, and the immovable property at Kutch in Gujrat were added in the Schedule I. No satisfactory explanation is forthcoming as to why these properties were excluded while filing the petition. 9. It appears, the tenement at Andheri is the transit accommodation which was allotted to the deceased-Lalji Haria after the building at Daruwala Compound, Lamington Road, in which the deceased had a room No.6, got destroyed in the fire in 1977. In the place of old building at Daruwala Compound, a new building, known as Arihant, has come up. The petitioner has filed a writ petition in this Court, being Writ Petition No.2369 of 1993, seeking an allotment of a flat in the newly constructed building Arihant, in lieu of Room No.6, which the deceased had occupied in the building at Daruwala compound. In that Writ Petition, initially he had not joined the defendant as party respondent. This court is informed, and it is not denied, that the court, in the said writ petition, directed the plaintiff/petitioner to join her as a party 9 respondent and that is how she came to know about the said Petition. It is pertinent to note that the property at Daruwala compound does not form a part of the Schedule-I. That apart, The original schedule appended to the Petition and the amended schedule show that the petitioner had suppressed two properties of the deceased namely shop No.4 and the immovable property at Kutch. There is no dispute that insofar as Shop No.4, which was initially standing in the name of deceased Lalji Haria, the Petitioner got it transferred in his own name immediately after his death keeping all other heirs of the deceased in dark. Similarly for no reason the plaintiff suppressed Kutch property which forms a part of the estate of the deceased. From the evidence of the plaintiff and the contents of the plaint, it is not possible to belive that he was not aware of the Kutch property. 10. Keeping in view the initial suppression of the properties and considering the contents of the writ petition and the prayers made therein coupled with the fact that the defendant was not initially joined as a party-respondent therein, and then getting the shop No.4 transferred in his own name keeping the other heirs in dark, in my opinion, the 10 plaintiff cannot be stated to have approached the Court with clean hands and his intention appears to be to usurp the properties of the deceased. It is pertinent to note that even in the affidavit of evidence, he has stated that he was nominated by the deceased in respect of the property at Daruwala Compound. The Plaintiff/petitioner has not brought any material in support of this claim. Suppression and the false statements made one after another clearly show that the true intention of the plaintiff to obtain letters of administration is to usurp the entire estate of the deceased including premises in Arihant building and deprive the defendant of her share in the property of the deceased. Moreover it cannot be ignored that the premises at Andheri does form a part of the estate of the deceased inasmuch as it was allotted to the deceased only as alternative/transit accommodation, that would flow from the tenancy of the deceased from Daruwala compound premises. It is pertinent to note that the property in Arihant building at Daruwala compound has not been shown as Lalji Haria’s property, which forms a part of his estate, in the present petition though in respect thereof an independent Writ Petition came to be filed by the plaintiff/petitioner. I am satisfied that the plaintiff/petitioner for the 11 reasons recorded is not a fit person to grant Letters of Administration as prayed in the Petition. Hence suit is dismissed with costs. (D.B.BHOSALE,J) (D.B.BHOSALE,J) (D.B.BHOSALE,J)