1 W.P.No.235 of 1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.235 OF 1992 WITH CIVIL APPLICATION NO.5185 OF 1992 CIVIL APPLICATION NO.4954 OF 1998 CIVIL APPLICATION NO.4938 OF 1996 CIVIL APPLICATION NO.10371 OF 2005 CIVIL APPLICATION NO.9775 OF 2007 CIVIL APPLICATION NO.11243 OF 2009 CIVIL APPLICATION NO.11244 OF 2009 CIVIL APPLICATION NO.4965 OF 2011 CIVIL APPLICATION NO.4786 OF 2011 IN WRIT PETITION NO.235 OF 1992 Smt.Ratna w/o Rajpal Gandle, Age 46 years, Occu.Household, R/o at present Aurangabad Forest Bungalow, Adalat road, Aurangabad .. PETITIONER VERSUS 1. Smt.Kanta w/o Sadashiv Dahat, Age 52 years, Occu.Household, R/o 56-57, N-1, CIDCO, New Aurangabad 2. Smt.Kamla w/o Purnaji Dhokey, Age major, Occu.Household, R/o 7, Vikasnagar, Near Sai Mandir, Wardha road, Nagpur 3. Dr.Seema Varma, Age major, Occu.Service, R/o 785, Nullroad, New Chamber land, U.S.A. P.A.17070 4. Smt.Pushpa @ Kavita Gedam, Age major, Occu.Household, R/o 2-15, R.R.L. Quarters, Habsiguda, Hyderabad, A.P. 5. Smt.Jyotsna Kamble, Age major, Occu.Household, R/o 1525, East Iind Street, A.P.T. 1408, Granguri T.X.76048, U.S.A. 2 W.P.No.235 of 1992 6. Shri Parag s/o Vinayak Wankhede, Age major, Occu.Service, R/o C/o Smt.Sushila Wankhede, 45, A.B.D.A. Flats, Rajouri Garden, New Delhi 7. Major (Dr) Sharad Wankhede, Age major, Occu.Medical Practitioner, R/o Sharad Villa, 34, Deshera Maidan, Ujjain, M.P. 450610 8. Ratnakar Wankhede, Age major, Occu.Service, R/o C/o Smt.Bhulabai Palasnagar at Post Umri (Big), J & D Akola 9. Narayan Pakhale, Age major, Sr.Clerk, Industrial Training Institute, (Polytechnic), at Beed 10. Goverdhan Wanwar, Age major (occu. & whereabouts not known to the petitioner for last many years) 11. Prof.R.R.Bilwar, Age major, Occu.Service, Department of Sociology, Marathwada University Aurangabad 12. M.G.Gavai P.S.I. (Retd) Age major, Occu.Pensioner, R/o ‘Ganesh’, Tagore Nagar, Nashik 6 13. Dr.K.G.Deshmukh, Age major, Occu.Vice Chancellor, Amravati University, at Amravati 14. M/s Ellora Steels Ltd., E-26/27, Chikalthana M.I.D.C. Area, P.B.27, Aurangabad through its Manager 15. The State of Maharashtra through Collector, Aurangabad. ..RESPONDENTS Mr N.N.Shinde, Advocate for petitioner 3 W.P.No.235 of 1992 Mr S.K.Kulkarni, Advocate for respondent No.1 Mr C.V.Thombre, Advocate for respondent No.4 Mr M.S.Choudhari, Advocate for respondent No.11 Mrs V.A.Shinde, Assistant Govt.Pleader for respondent No.15 CORAM : MRS MRIDULA BHATKAR, J. DATE : 17th October, 2011 ORAL JUDGMENT 1. By this writ petition, petitioner challenges the orders dated 6.11.1990 and 30.1.1991, passed by Civil Judge Senior Division, Aurangabad in Inquiry No.195 of 1986. Testator Manohar Namdeo Wankhede has executed his last will on 28.3.1978. He expired on 1.5.1978. He was unmarried and issueless. By this will, he bequeathed his self-acquired property between his sisters, brothers and also bequeathed some portion to a domestic servant who was loyal to him for years together. Mr Wankhede had six sisters and two brothers when he died. In his will he appointed one Prof P.R. Bilawar, respondent no.11 - Mr M.G. Gavai, respondent no.12 - Dr. K.G. Deshmukh, respondent no.13 as executors of his will. Mr Wankhede left behind movable and immovable properties. Present petitioner is one of the sisters of the testator. Respondents no.1, 2, 3, 4 and 5 are other five sisters. Respondent no.6 Parag and respondent no.8 are the nephews 4 W.P.No.235 of 1992 of Mr Wankhede. Respondent no.7 Sharad is a brother of Mr Wankhede. One brother Sudhakar Wankhede has expired prior to death of Dr. Manohar Wankhede. Respondent no.7 Major Dr. Sharad Wankhede is real brother of Mr Manohar Wankhede. Respondent no.9 Narayan Pakhale and 10 Goverdhan Wanwar were domestic servants of the testator. Respondent no.14 M/s Ellora Steels Pvt. Ltd. is a company to whom the house owned by testator i.e. 26/27, situated at CIDCO, Aurangabad. Plot nos. 13 and 14 CIDCO, Aurangabad was rented by Mr Wankhede. Respondent no.15 - State of Maharashtra is a formal party. 2. Respondent no.1 in the petition has filed the application for grant of Letters of Administration before the Civil Judge Senior Division at Aurangabad, which was numbered as M.A.R.J.I. No.195 of 1986. In the said inquiry, notices were sent to the respondents. Respondents appeared and thereafter the learned Trial Court, on considering the facts and circumstances of this case, granted Letters of Administration in favour of respondent no.1, i.e. the original applicant on 6.11.1990. 3. Present petitioner, who was original respondent no.5, though appeared in the inquiry did not file written statement and, therefore, the Civil Judge Senior Division passed order on 5 W.P.No.235 of 1992 24.6.1987, matter to proceed ex parte against respondent no.5. The petitioner challenged that ex parte order by filing another petition which was marked as M.A.R.J.I. No.3 of 1991 and prayed that the Misc. Application No.195 of 1986 be restored to its original stage and it is to be heard and decided on merits. The said application was contested by the original applicant by filing say and denying all the contentions raised by the present petitioner. The learned Trial Judge rejected the said petition by order dated 30.6.1991. Being aggrieved by the said orders dated 6.11.1990 and 30.1.1991, the petitioner has preferred this writ petition praying that the orders be set aside. 4. Learned Counsel Mr N.N.Shinde for the petitioner submitted that application of the letters of administration filed by the respondent No.1 was not maintainable. The Court has acted without jurisdiction and should not have granted letters of administration to respondent No.1. He submitted that the respondent No.1 has not obtained probate and in absence of probate the Court should not have granted the letters of administration. He argued that that respondent No.1 did not lead any evidence. It was mandatory for the Court to record evidence and on considering oral as well as documentary evidence, the matter should have been decided. He argued 6 W.P.No.235 of 1992 that throughout the proceedings no Will deed was produced by respondent No.1 and in the absence Will deed order of granting letters of administration in favour of respondent No.1 is arbitrary and illegal. He submitted that for the purpose of appearance of executors it is necessary to give citation or public notice. However, no citation or publication notice was given to seek the appearance of executors. He further argued that it was further obligatory on the part of the Court to record the refusal of executors that they are not interested in working as executors in the Will. However, without recording such refusal of the executors order of appointment of respondent No.1 by way of letters of administration to execute the Will deed is highly erroneous and illegal. He submitted that alleged Will was never placed before the Court nor the copy was furnished to the petitioner and no opportunity of challenging the said Will was given at any time to her. 5. Learned Counsel drew attention of this Court to Civil Application No.4786 of 2011. By moving this application respondent No.1 has sought permission of this Court to withdraw herself as she is not interested to continue as an executor pursuant to grant of letters of administration. He further pointed out that another Civil Application No.4965 of 7 W.P.No.235 of 1992 2011 was filed by respondent No.4, who is another sister and she seeks permission of this Court that in the place of respondent No.1 she be substituted as an executor and the letters of administration to be granted in the place of her sister. Learned Counsel submitted that when powers of the executor are not cancelled by the Civil Court, how letters of administration can be granted in favour of respondent No.2. He submits that the acts done and carried by respondent No.2 during pendency of this writ petition are not binding on this petitioner and respondent No.2 alone shall be held responsible for such acts and its consequences. He further submitted that the Letters of Administration granted by the Trial Court are not in permanent nature but they are only of a temporary period of six months. However, respondent no.1 got it extended time to time by seeking orders from this Court and has misguided this Court. Such renewal of Letters of Administration is illegal and deserves to be set aside. He submitted that if the operative part of Letters of Administration is carefully read, then it reveals that the order of grant of Letters of Administration in favour of respondent no.1 was conditional. The production of original will was a condition for further renewal of the Letters of Administration. However, till today no original will was produced by respondent no.1. He further pointed out the dates 8 W.P.No.235 of 1992 of the Roznamas from the record and proceedings. He submitted that the dates which were given in the month of July to November, 1990 disclose that the matter was fixed to lead evidence. However, on 6.11.1990, though the matter was fixed to lead evidence without adducing any evidence, the Trial Court took up the matter for hearing and order was hurriedly passed in favour of respondent no.1. He further pointed out that the true copy of the Letters of Administration does not show on which exact date the Letters of Administration were granted by the Court as the date is kept blank. 6. Per contra, Mr Kulkarni, learned Counsel for respondent no.1 argued that the submissions made by the learned Counsel for the petitioner about production of the copy of the will is incorrect. An authenticated copy of the will was produced before the Court. It is argued that the executors of the will respondents no.12 & 13 i.e. Mr Deshmukh and Mr Gavai have sent letters and communicated that they were not interested in working as an executor and they have withdrawn themselves from continuing as an executor. He pointed out that the third executor Mr Bilwar has filed reply in the inquiry proceedings and he did not show his willingness to act as an executor but he wanted that the amount of Rs.7,500/- to be refunded to him, 9 W.P.No.235 of 1992 which according to him was the amount lent to the testator. Learned Counsel submitted that as per the requirement of the Succession Act, executors have renounced from acting as executors and all the sisters and brother/nephews, who are the beneficiaries l had consented that the Letters of Administration may be granted to respondent no.1. 7. Mr Kulkarni, learned Counsel argued that when all parties, including the executor appear before the Court pursuant to the notice sent by the Court, there is no need of citation. He submitted that evidence was not required before the trial Court as nobody contested matter and to that effect affidavits of the beneficiaries were filed. He relied on affidavits of respondent No.1, 2, 3 and 4. The order of granting letters of administration to respondent No.1 is legal and is not to be interfered. He argued that petitioner was given sufficient opportunity to file reply in the said inquiry proceedings but she did not file it in time but subsequently, she filed separate petition to set aside the order. The same was contested by respondent No.1, as the said petition was false and mala fide. Learned Counsel submitted that the petitioner has filed this petition because the offer given by her for the purchase of the house at CIDCO was not accepted by respondent No.1 and other beneficiaries. He 10 W.P.No.235 of 1992 submitted that petitioner was given first choice to buy the said house as per the Will of the testator. The petitioner quoted a very low price. She wanted to buy the said house at the price, which was much earlier purchased by the testator. Being aggrieved by that she has filed this petition out of vengeance. Hence, he prayed that this petition be dismissed. 8. Learned Counsel for respondent No.1 has raised objection on the maintainability of this petition, in view of Section 299 of the Indian Succession Act of 1925. Section 299 provides that every order made by the District Judge shall be subject to appeal to the High Court. The present application was tried by the Civil Judge, Senior Division as the powers of District Judge were delegated to the Civil Judge, Senior Division. The said order is appealable under Section 299 of the Act. The petitioner instead of filing appeal, filed present writ petition though appeal is appropriate mode to challenge the order of the trial Court before the High Court. There is no bar to entertain this matter and invoke writ jurisdiction of this Court under Article 227 of the Constitution. The appeal is to be preferred in the High Court and, therefore, as the appellate forum is the same, writ petition can be entertained and is not to be dismissed on the ground of maintainability after nineteen years and, therefore, submissions 11 W.P.No.235 of 1992 of learned Counsel Mr Shinde that writ petition can be entertained are accepted. 9. When the application for letters of administration is moved to the Court, then it is the duty of the Court to first find out whether executors were appointed by the testator or not. In the event of appointment of executors by the testator, the Court has to give notice or citation to all the executors and examine whether they are ready to act as executors of the Will or not. Unless the executors have renounced the executorship the letters of administration shall not be granted to any other person. Provision of Section 230 of the Indian Succession Act, 1925 is to be followed strictly. Sections 230 and 231 of the Act of 1925 state that if there is a renunciation either oral in the presence of a Judge or in writing, then the letters of administration may be granted to the person, who is entitled and who has applied for. In the present case two executors i.e. Mr Deshmukh and Mr Gavai have informed in writing that they wanted to withdraw from the executorship. Third executor Mr Bilwar appeared in the said proceedings before the trial Court, filed reply and denied to execute the Will as there was no response from the beneficiaries. However, he did not expressly showed his willingness to work as an executor but he claimed 12 W.P.No.235 of 1992 that Dr.Wankhede owed Rs.7,500/- during his lifetime and, therefore, the beneficiaries should pay him the said amount with interest as repayment of his loan. The trial Court rightly held that Mr Bilwar was not ready to work as an executor, therefore, in the absence of consent of three executors, Court was free to take further steps as per Section 230 and 231 of the Indian Succession Act of 1925. All the beneficiaries who have appeared, except petitioner all gave consent to grant letters of administration to respondent No.1. Respondent No.14 – Company was inducted as tenant by the testator and respondent No.14 – Company also appeared in the proceedings, filed reply and agreed that it would deposit monthly rent in the account of the person, in whose favour the letters of administration would be granted. 10. The Court has considered all these aspects by giving a reasoned order and granted letters of administration in favour of respondent No.1. 11. The objection was raised that throughout the inquiry, original Will or the authenticated copy of the Will was not produced. Learned Counsel Mr Shinde argued that he never had any opportunity to even see the Will. The order of the trial 13 W.P.No.235 of 1992 Court granting letters of administration in the absence of original or copy of the Will is illegal. These submissions are not based on the factual position and hence, are wrong. Learned Counsel Mr Kulkarni while meeting this objection pointed out list of the documents and authenticated copy of the Will dated 28/3/1978 was produced before the trial Court. He submitted that at the time of filing of the application all these documents were produced. It is pertinent to note that record and proceedings were received by this Court in the year 1992, along with the said copy of the Will. 12. Learned Counsel for respondent No.11 submits that he has no instructions from his client to make submissions as he could not trace him. Learned Counsel for respondent No.1 submits that on 10.10.2011 he made statement that executors i.e. respondent No. 11 Mr Bilwar and respondent No.12 i.e. Mr Gavai are no more. However, this statement is made on the basis of the instructions given to him by his client. 13. Significantly, the contents and truthfulness of the Will are not disputed by the petitioner either before this Court or also before the Trial Court. Petitioner did not file reply. Hence, trial Court proceeded against her ex parte. She thereafter filed a 14 W.P.No.235 of 1992 separate petition i.e. M.A.R.J.I. No.3 of 1991 praying that the ex parte order dated 6.11.1990 be set aside, as she was not given an opportunity. The said petition was contested and the trial Court has rightly rejected the said petition on 30.1.1991. Nothing is brought on record to show that the petitioner was kept in dark about the contents of the Will or petitioner was not aware of the contents of the Will. On the contrary, the application for the inquiry and in the order passed by the trial Court, the contents of the Will are reproduced. Moreover, the averments made in M.A.R.J.I.No.3 of 1991 and the contents of the present petition and also counter affidavit in reply to affidavit filed by the present petitioner on the contrary disclose that petitioner was fully aware of the contents of the Will. In this petition, detail affidavit in reply is filed by respondent No.1. Short affidavits in reply are filed by sisters, i.e. respondent No.2 Kamlabai Dhokey, respondent No.3 Seema Verma, respondent No.4 Smt.Pushpa @ Kavita Gedam, respondent No.5 Jyotsna Kamble, respondent No.6 nephew Parag Wankhede and respondent No.8 Ratnakar Sudhakar Wankhede. Rejoinder to all these affidavits was further filed by the petitioner. The affidavits filed by the respondents – beneficiaries reveal that all the beneficiaries have unanimously consented that respondent No.1 was working with due care and diligence to execute the 15 W.P.No.235 of 1992 Will of Dr.Wankhede. They had no objection but they reposed complete faith in all acts, decisions taken by respondent No.1 pursuant to grant of letters of administration and execution of the Will and they all have expressly denied allegations made by the petitioner against respondent No.1. They have shunned her act of filing the petition raising number of obstructions in smooth execution of the Will. On the other hand petition and the rejoinders filed by the petitioner to these affidavits are not only legally baseless but smack with personal bias and vengeance. Court cannot deal with the internal fights of the parties, but the court has to vindicate the interest of the testator who is no more and Will is a solemn declaration of the last wish and desire of the person about the distribution of the property owned by him/her. It is to be seen that as per the wishes of the testator, the property is to be distributed amongst the beneficiaries without any further wastage or damage and it is not to be transferred in the hands of any party other than the beneficiaries. 14. In the present Will, the testator has specifically mentioned the percentage of the share falling to each of the beneficiary. It appears that house in CIDCO is the issue of entire dispute. The property is at prime location situated in 16 W.P.No.235 of 1992 Aurangabad city. Learned Counsel Mr. Kulkarni has pointed out the letters written by Respondent No. 1 in the year 1991 and also on 15.7.1991 to the petitioner. As per the letters, the first choice was given to the petitioner to purchase the said property. 15. The submissions of learned counsel for the petitioner, Mr. Shinde that respondent No.1 has refused to accept the offer given by the petitioner to purchase the said house was rejected with ulterior motive to grab the said house/property, appears to be out of bias and imaginary. All the abovesaid letters show that offer was given to the petitioner. However, the price quoted by her was too less compared to market price. I think it is necessary to give specific directions in respect of sale of this house. 16. In view of above, there is no merit in the petition and the same stands dismissed, accordingly. During pendency of the petition, both the parties have filed in all nine civil applications and this court, from time to time, passed the orders that these applications will be decided 17 W.P.No.235 of 1992 at the time of final disposal of the petition. Civil Application No. 5185/1992 was filed by Respondent No. 4 and others. Learned Counsel for the said Respondents submits that the said Civil Application is not pressed. Hence, it is disposed of as such. Civil Application No. 4938/1996 for production of record and accounts is filed by petitioner. Respondent No. 1 has submitted accounts from time to time. Hence, said application does not survive and stands disposed of as such. Civil Application No. 4954/1998 is filed by original Respondent No. 1, seeking extension of period of letters of administration granted in favour of respondent No.1 to petition. However, it is not pressed and, accordingly, the same stands disposed of as such. Civil Application No. 10371/2005 is filed by orig. Respondent No. 1 seeking permission to distribute the rent amount plus interest thereon, which is accumulated, amongst sisters and two nephews i.e. the petitioner and the beneficiary- respondents. This application is allowed, and it is directed that 18 W.P.No.235 of 1992 the amount of rent deposited and interest accrued thereon, be distributed as prayed for amongst the petitioner and beneficiary-respondents in equal shares. Civil Application No.9775/2007 is filed by original respondent No.1, seeking permission to sell and dispose of the house property mentioned in the Will of late Dr. Wankhede, situated at CIDCO, Aurangabad. The said application does not survive, in view of the final order passed in the writ petition, and hence, the said application is disposed of, accordingly. Civil Application No.11243/2009 is filed by petitioner for re-issuance of summons to Respondent Nos. 9 and 10. As no steps were taken by the petitioner earlier, this application does not survive and hence, stands dismissed, accordingly. Civil Application No. 11244/2009 is filed by petitioner, seeking permission for substitution and appointment of new trustees in place of earlier trustees i.e. Respondent No. 11 Mr. R.R. Bilwar, and Respondent No. 12 Mr. M.G. Gavai as they are no more. The said application does not survive, in view of the final order passed in the writ petition, and hence, the said application is disposed of, accordingly. 19 W.P.No.235 of 1992 Civil Application No.4786/2011 is filed by original Respondent No. 1 seeking permission to cancel her appointment as administrator as per the Will and she be relieved of the duties and obligations of the administrator under the said Will. The said application is not pressed and hence, disposed of, as such. Civil Application No.4965/2001 is filed by original Respondent No. 4 Pushpa, that she be substituted as an executor, in place of original Respondent No.1. However, the said application is not pressed and hence, disposed of, as such. Rule discharged. House in CIDCO is under litigation and I am informed that liquidator is appointed. Liquidator is directed that he shall co- operate the Administrator in the sale transaction. It is made clear that if the petitioner wishes and is ready, she may purchase the said house at the prevailing market price, which is on the date of this judgment. The offer to be made to her in writing and petitioner should respond by quoting the price 20 W.P.No.235 of 1992 within fifteen days thereafter. As the petitioner is aware of this judgment, petitioner herself can give offer to respondent No.1 by quoting price at the prevailing market rate within twenty days from the date of the judgment. If there is no response from the petitioner, then the respondent No.1 should give an advertisement in daily Marathi newspaper and the highest offer given will be entertained