1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS TESTAMENTARY AND INTESTATE JURISDEICTION NOTICE OF MOTION NO.119 OF 2008 IN TESTAMENTARY PETITION NO.314 OF 2008 Gopal Nayak ..Petitioner. Vs. Ammembal Anant Pai S/o Krishna Pai ..Respondent. .... Mr. S.G. Bhandary i/b Bhandary & Bhandary for the Petitioner. Mr. S.G. Deshmukh for the Respondent. ... CORAM : DR. D.Y. CHANDRACHUD, J. 11th September, 2009. P.C. : 1. Radhabai Sanjeeva Pai was, during her lifetime, the owner of a residential flat which forms the subject matter of the Notice of Motion. The flat in question is flat No.3 situated at Vasant Vihar Co- operative Housing Society Limited, 14th Road, Khar, Mumbai. Radhabai died on 21st June, 2000. The Applicant to the Notice of Motion is the nephew of Sanjeeva Pai, the deceased husband of Radhabai. His case is that some time before her death, Radhabai had 2 accompanied him to his residence at Versova and continued to reside with him until she died. The fact that Radhabai was residing with the Applicant at the time of her death is an admitted position before the Court though counsel appearing on behalf of the original Petitioner, Gopal Nayak, states that she had resided for a period of two weeks prior to her death with the Applicant. The relationship of the Applicant with the deceased is not in dispute. According to the Applicant Radhabai had handed over the keys of the flat and of the cupboards inside the flat to him and he is in possession of the keys. The Petitioner, Gopal Nayak, is alleged to have forcibly entered into possession of the residential flat after the death of Radhabai. The Applicant alleges that the door of the residential flat was changed and that the Petitioner had trespassed into the flat. A complaint was lodged with the Khar Police Station. 2. The Motion has been taken out for a direction to the Petitioner to handover possession of the residential flat to the Applicant and in the alternative to direct him to handover the keys of the flat to the 3 Secretary of the co-operative society. The building where the flat is located is stated to be in a dilapidated condition and is in need of reconstruction. 3. The Applicant filed a petition for letters of administration before this Court in May 2007 (TP 504 of 2007). On 15th March, 2008 the Petitioner, Gopal Nayak, filed a petition in order to seek probate of a will alleged to have been executed on 11th April, 1998. The Petitioner is a Chartered Accountant by profession and according to him he has been named as an executor in the will of Radhabai. The beneficiary under the will is alleged to be a neighbour, Ashok V. Kamath, who claims that the executor of the will had handed over possession to him. According to him, his daughter Poornima is a nominee in respect of the flat. Ashok Kamath has entered appearance in these proceedings through counsel, filed an affidavit and has been heard. 4. There can be no dispute about the proposition in law that probate of a will, when granted, establishes the will from the death of 4 the testator, by virtue of the provisions of Section 227 of the Indian Succession Act. No probate has been granted of the alleged will of the testatrix dated 21st June, 2000. In the absence of the grant of probate, it was not open to the executor to intermeddle with the estate and to handover possession of the residential flat to the alleged beneficiary who is a neighbour in the same co-operative society. In paragraph 7 of the affidavit in support of the Notice of Motion there is a specific averment to the effect that the Petitioner and the so called legatees have gone to the extent of changing the door of the flat and removing the name plate of Sanjeeva Pai thereon. Similarly there is an averment to the effect that the Petitioner and the legatees are operating the bank account standing in the name of Radhabai. 5. Two affidavits in reply have been filed. The first affidavit has been filed by the Petitioner. The Petitioner states that he was advised earlier that it was not necessary to file a petition for probate of the will, but after the Applicant “started creating trouble” he was advised to file a petition which he has since filed. The Petition for probate 5 was filed eight years after the death of the testatrix. The Petitioner who is a Chartered Accountant claims that before the testatrix lived with the Applicant some time before her death, she had left one set of the keys of the main door and the cupboard with him and that he had looked after the financial affairs of the Petitioner for some decades. The allegation that the door of the flat was changed and that the name plate was removed has not been denied. 6. A second affidavit has been filed in these proceedings by Ashok V. Kamath. In his affidavit he has stated that the building which was constructed in 1945 is dilapidated and required certain repairs which he carried out in the interest of safety and security. There is no traverse of the allegation that the door of the flat was removed and the name plate was changed. 7. Prima facie, at this stage, there is substance in the grievance of the Applicant both in law and in fact. 6 8. On the question of law, it cannot be disputed that the Petitioner and the alleged beneficiary under the will cannot be heard to establish any claim on the basis of the will of Radhabai until the will is probated. No probate admittedly has been granted until date. 9. On the question of fact, it has not been disputed in the affidavits that Ashok V. Kamath, who has filed an affidavit in these proceedings dated 20th November, 2008 entered into possession after the death of the deceased. He claims to be in possession for the last eight years. This is seriously disputed by the Applicant who contends that possession was unlawfully taken some time in February 2007 upon which a police complaint was filed. The date since when possession was taken is not of material consequence at this stage, because irrespective of the length of possession, the act of entry into possession after the death of the deceased is unlawful. Neither the executor nor the beneficiary were entitled in law to assume forcible control over the estate of the deceased. Prima facie the door of the flat was changed and forcible possession was taken after the death of 7 the deceased. 10. Both the Petition for probate filed by the executor and the petition filed by the Applicant for the grant of letters of administration would have to be heard and disposed of together. There shall be an order in these terms. 11. The substantive relief that has been sought in the Motion is a direction that the Applicant be put into possession. In the alternative, it has been prayed that the keys of the flat be handed over to the secretary of the co-operative society. 12. At this stage, it would not be appropriate to allow relief in the wide terms as sought in the Notice of Motion since that would operate virtually as an order of eviction at the interim stage. It would be appropriate instead to issue a direction for the appointment of the Court Receiver as Receiver of the flat. The appointment of a Receiver is necessary to ensure that the estate of the deceased is not fritter ed 8 away or dissipated. 13. The Notice of Motion shall accordingly be governed by the following orders : (i) The Court Receiver is appointed as Receiver of flat No.3, Vasant Vihar Co-operative Housing Society, 14th Road, Khar, Mumbai; (ii) The Court Receiver shall, in the first instance, furnish an opportunity to Ashok V. Kamath (who has appeared in these proceedings and has filed an affidavit and has been represented by counsel) to seek agency of the Receiver subject to security and royalty as may be determined by the Court Receiver; (iii)In the event that agency is refused by Ashok V. Kamath, the Court Receiver shall invite bids from all interested parties including the Applicant before finalising the award of the agency; (iv)Counsel appearing on behalf of the Applicant and counsel appearing on behalf of the original Petitioner and the alleged beneficiary are agreed in stating before the Court that they 9 would have no objection, in the event that a proposal for reconstruction of the building is sanctioned by the co-operative society, if the Court Receiver grants his consent thereto subject to the Receiver being placed back into possession after the reconstruction is complete. There shall be a direction to the Court Receiver accordingly in those terms. The Notice of Motion shall accordingly stand disposed of. *****