1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISC. PETITION NO.45 OF 2008 IN TESTAMENTARY PETITION NO.707 OF 2007 Bomi Pirojshaw Sachinwala ..Petitioner. V. Dr. Cyrus S. Badshah and others ..Respondents. .... Mr. H.N. Thakore with Mr. Riyazali i/b M/s. Thakore Jariwala & Associates for the Petitioner. Mr. Harinder Toor with Ms. Rutuja Ambekar for the Respondents. .... CORAM : DR. D.Y. CHANDRACHUD, J. 25th September, 2009. P.C. : 1. Dr. Shapoor Behram Badshah, a Parsi Zoroastrian, lived and practised medicine in Germany for thirty-six years. He died at Bayreuth, Germany on 26th March, 2007. The First and Second Respondents are sons of the deceased. The First Respondent is a permanent resident of the U.S. The Second Respondent is a permanent resident of New Zealand. The Respondents moved a Testamentary Petition for the grant of letters of administration to them on the basis that their father had died intestate. 2 Letters of administration were granted on 26th March, 2007. The Petition which forms the subject matter of these proceedings was instituted on 28th April, 2008 for (i) revoking or annulling the letters of administration; (ii) for permission to the Petitioner to file a petition for probate in his capacity as the sole executor under a will alleged to have been executed by the deceased; (iii) for an order of restraint against the Respondents from acting upon the letters of administration; (iv) for a direction to the Respondents to render a true and faithful account of the estate of the deceased; and (v) for the appointment of an administrator. 2. The Petitioner claims under a will alleged to have been executed by the deceased on 19th January, 2000. Before this Court it is an admitted position that the deceased had during his lifetime given a contract to the Petitioner for the construction of a hospital building, prayer hall and ashram on certain immovable property belonging to the deceased at village Medhe, Taluka Vasai, District Thane. The Petitioner had instituted a suit before the Civil Judge, Junior Division, Vasai being R.C. Suit 100 of 2003 against the deceased for an injunction restraining him from 3 completing the construction of the building with the aid of third parties until the monies which were claimed by the Petitioner were paid. The suit, the Court was informed was dismissed on 12th February, 2004. During his lifetime, the deceased had instituted two complaints before the State Consumer Disputes Redressal Commission against the Petitioner. In Complaint No.139 of 2005 the relief sought included a claim in the alternative in the amount of Rs.80 lacs while in Consumer Complaint 140 of 2005 the reliefs included a direction to the Petitioner amongst others to reimburse an amount of Rs.47.82 lacs towards the cost of the project which had been entrusted for construction to the Petitioner. On 3rd September, 2002 the Petitioner addressed a communication to the deceased in reply to a letter dated 27th June, 2002 informing the deceased that the contents of his letter were defamatory and serious; and that the deceased had not fulfilled his obligations under the contract, amongst other grievances. Significantly, the letter also contained a specific request to the deceased to remove the name of the Petitioner from the will as an executor on the ground that the Petitioner was not willing to work in that capacity. The direction was to the following 4 effect : “(k) Please remove my name in your Will as I am not willing to work as your “EXECUTOR”, for which a separate letter shall be issued to you officially.” 3. The basis on which a revocation has been sought of the letters of administration granted to the Respondents is that though the Respondents were aware of the execution of a will by the deceased on 19th January, 2000, this was concealed from the Court in the testamentary petition for seeking letters of administration. The case of the Respondents, on the other hand, is that they were not aware of the will and that in any event the Petitioner having resigned as an executor of the will had lost his locus to claim a revocation of the letters of administration granted to the Respondents. On the other hand, it has been submitted on behalf of the Petitioner that (i) the letter addressed by the Petitioner on 3rd September, 2002 is a notice of an intention to renounce and that as a matter of fact no renunciation had taken place; (ii) Even if the Petitioner is not entitled to act as an executor, the Respondents knew of the will and having suppressed from the Court the fact of the execution of the will, the Petitioner is entitled to obtain an 5 order of revocation under Section 263 of the Indian Succession Act, 1925. 4. The Respondents are admittedly the two sons of the deceased. The case of the Respondents is that their father had lived and practised in Germany for thirty six years prior to his death on 26th March, 2007. The Respondents are permanent residents respectively of the U.S. and New Zealand and on being informed of the death of the father, they had proceeded to Germany to perform his last rites. On searching through his old papers the Respondents gathered information about the institution of certain proceedings before the State Consumer Disputes Redressal Commission by the deceased. The Respondents came to Mumbai and upon contacting the advocate who had been engaged by the deceased, they were apprised of Consumer Complaints 139 and 140 of 2005 filed by the deceased inter alia against the Petitioner’s private limited company. The complaint was instituted with the grievance that the Petitioner was guilty of a deficiency of service in not completing the construction of the hospital, ashram, prayer hall and bungalow despite the payment of several crores by the deceased. The Respondents moved proceedings 6 before the Consumer Disputes Redressal Commission for being brought on the record. At that stage, on 1st May, 2007 the Petitioner filed an affidavit stating that the deceased had died on 26th March, 2007 at Germany and that the complaints did not survive. According to the Respondents, the Petitioner did not disclose that the deceased had left behind a will which the Petitioner sought to propound even when filing the affidavit on 1st May, 2007. A disclosure about the purported will was made by the Petitioner on 30th November, 2007 when he filed his written statement in the complaints. According to the Respondents if the deceased had left behind a will, the Petitioner as an executor was duty bound to inform them being the only heirs and next of kin of the deceased which the Petitioner chose not to do. The case of the Respondents is that as a matter of fact no will was executed by the deceased and the will upon which reliance is sought to be placed is a fabricated document and the signature of the deceased thereon is a forgery. On 22nd January, 2008 the Respondents filed a rejoinder before the State Consumer Disputes Redressal Commission categorically denying the existence of the will. The Petition for the grant of letters of 7 administration had been filed on or about 26th July, 2007 prior to which despite due and diligent search, no will of the deceased was stated to be found. The Petitioner, by addressing correspondence to the bankers of the deceased sought to prevent the Respondents from receiving amounts in pursuance of the grant of the letters of administration. 5. In considering the merits of the rival submissions, it would be necessary for the Court to make a brief reference to the contents of the will which is sought to be propounded by the Petitioner. The will purports to have been made by the deceased. The address of the deceased is shown to be that in Germany while the “present residence” of the deceased is shown ‘C/O’. the Petitioner in the Taluka of Vasai. By the will the deceased has purported to bequeath Plot No.140 with the bungalow to the Second Respondent and Plot No.151 to the First Respondent. A shop in Delhi is sought to be bequeathed to a charitable trust. In the event that any property other than the property disposed of under the will is found, that is sought to be bequeathed to the trust. The will recites that the deceased had given a contract to the Petitioner to 8 construct a hospital building, prayer hall and ashram building on the immovable property at village Medhe. Clause 7 of the will provides that during his lifetime the deceased would manage the affairs of the hospital, ashram, and prayer hall; that after his death his sons would administer the affairs thereof and if they decline to do so, the same shall vest in the executor viz. the Petitioner for managing the affairs of the trust. The Petitioner is appointed as executor for the purposes of the will. During the course of the hearing, counsel appearing on behalf of the Respondents placed several suspicious circumstances attendant upon the execution of the will. These circumstances can now be summarized. Firstly, the course of events in proximity to the execution of the will would show that there was an acrimonious dispute between the deceased and the Petitioner which led to the institution of a suit by the Petitioner against the deceased in the Civil Court and the filing of consumer complaints by the deceased against the Petitioner before the State Consumer Disputes Redressal Commission. Though these events took place respectively in 2003 and 2005, it is abundantly clear from the Petitioner’s letter dated 3rd September, 2002 that disputes had arisen between the Petitioner and the 9 deceased which led to the Petitioner renouncing his position as executor under the will. Secondly, the address of the deceased is shown to be the same as the address of the Petitioner. Thirdly, there is a blank in regard to the date of the execution of the will in the prefatory part of the will though such a date has been subsequently filled in, in the concluding line of the will. Fourthly, one of the attesting witnesses to the will is a person by the name of Shailesh Mistry who, as the record of the proceedings before the State Consumer Disputes Redressal Commission would show, was impleaded as the Seventh Respondent to those proceedings in his capacity as a director of the private limited company represented by the Petitioner. Fifthly, the will purports to have been presented for registration between 11.00 a.m. and 12.00 noon on 19th January, 2000 on the very day of its execution. While Shailesh Mistry who is an attesting witness continued to be a witness at the time of registration, the other attesting witness was substituted by a person by the name of Jose Allamma who was also impleaded subsequently in the proceedings before the Consumer Disputes Redressal Commission in her capacity as a director of the private limited company of the Petitioner. 10 6. The principal ground which must weigh against the claim for relief by the Petitioner for the revocation of the letters of administration is the conduct of the Petitioner himself in addressing a letter dated 3rd September, 2002 to the deceased evincing in no uncertain terms renunciation of his position as an executor under the will. The letter of the Petitioner which is in response to a letter of the deceased dated 27th June, 2002 contains a clear reference to the serious disputes that have arisen between the Petitioner and the deceased over the construction work which was allotted to the Petitioner. The Petitioner has not merely requested the deceased to “remove my name in your will”, but also contains a specific statement to the effect that the Petitioner is “not willing to work as your executor”. The letter dated 3rd September, 2002 is addressed on the letterhead of Dharitri Construction Pvt. Ltd. and is signed by the Petitioner. The letter refers to dealings between the Petitioner and the deceased personally. The letter contains a clear statement by the Petitioner that he was not willing to act as an executor under the will. The letter undoubtedly contains a statement that a 11 separate letter would be issued to the deceased “officially”. However, the act of renunciation is not postponed to the execution of another letter to the deceased since the letter dated 3rd September, 2002 does by itself constitute an act of renunciation. Section 230 of the Succession Act, 1925 provides that an act of renunciation can inter alia be made by a writing signed by the person renouncing and when made shall preclude him from ever thereafter applying for probate of the will appointing him executor. 7. Independent of the renunciation, the matter may be considered from an alternate hypothesis. It is a well settled principle of law that a person who seeks to propound a will is under an obligation to establish the due execution of the will; that the testator was in a fit and disposing condition of mind and to explain all the suspicious circumstances attendant upon the execution of the will. In the present case, the circumstances which have emerged from the execution of the will and as part of a chain of events would show that there were serious disputes between the Petitioner and the deceased over the work of construction 12 that was alloted to the Petitioner. The Petitioner does not claim to be either related to the deceased or to be associated with the deceased in any other capacity other than as a contractor appointed for the work of construction of a hospital and allied facilities. The fact that there were serious disputes which had travelled up to the Courts cannot be disputed. The Petitioner himself instituted a civil suit against the deceased while the deceased had on his part instituted consumer complaints before the State Consumer Disputes Redressal Commission. Significantly, though the Respondents have questioned the very claim of the Petitioner about the execution of the will and about the genuineness of the will, not even an affidavit of an attesting witness has been produced in the course of the proceedings. The burden which lay upon the Petitioner has not been discharged. Undoubtedly the Petitioner has sought to propound the will in support of his submission that the grant of letters of administration to the Respondents must be revoked. While advancing such a plea it was the bounden obligation of the Petitioner to bring satisfactory material before the Court to explain the due execution of the will; the disposing state of the mind of the testator and to explain every suspicious 13 circumstance attendant upon the execution of the will. Registration of a will is by itself not an index of the genuineness and of the authenticity of the will. 8. The contention of the Petitioner that the Respondents had suppressed the factum of the execution of the will while obtaining the letters of administration cannot be accepted. In their affidavit filed by the Respondents on 22nd January, 2008 before the Consumer Disputes Redressal Commission the Respondents categorically stated that they were not aware and did not admit as to whether the original complainant (their father) had executed any will or that he had appointed the Petitioner herein as an executor of the will. The Respondents stated that it was their case that the original complainant had died intestate and had not left behind any will in respect of his properties in India. The Respondents thereupon disclosed that they had moved this Court for obtaining a succession certificate. In these circumstances, the plea that there was a suppression on the part of the Respondents cannot be countenanced. 14 9. The Petitioner has not been consistent in regard to the circumstances in which he addressed his letter dated 3rd September, 2002 to the deceased. In a letter dated 2nd July, 2008 addressed by the Petitioner’s advocate to the Standard Chartered Bank, the Petitioner sought to advance the case that the letter dated 3rd September, 2002 was not issued by the Petitioner and that hence he continued to be an executor of the will of the deceased testator. In the Petition for revocation that has been filed in these proceedings, the Petitioner has in paragraph 3 admitted having addressed the letter dated 3rd September, 2002 but now seeks to assert that no separate letter was officially issued to the deceased and that hence he continued to remain an executor under the will. The Petitioner has therefore adopted varying and inconsistent positions in regard to his renunciation by the letter dated 3rd September, 2002. 10. Section 263 of the Indian Succession Act, 1925 provides that the grant of probate or letters of administration may be revoked or annulled for a just cause. The explanation to the Section provides circumstances in 15 which the just cause shall be deemed to exist. Among them in clause (b) is if the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case. The case that the Respondents have suppressed material from the Court is not worthy of acceptance. The Respondents are the two sons of the deceased being the only legal heirs and next of kin. The Petitioner is a contractor with whom the deceased had entered into an agreement which fell into difficulty and which culminated in legal proceedings adopted by both the sides. The testamentary jurisdiction cannot be allowed to be abused at the behest of a disgruntled contractor who seeks to obstruct the usual course of succession by the heirs of the deceased. 11. For all these reasons there is no merit in the Petition. The petition shall accordingly stand dismissed. *****