1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 145 OF 2009 IN MISC. PETITION NO. 42 OF 1999 1. Vikas Prabhakar Javeri, ) 2. Arun Prabhakar Javeri, ) Both adults, Hindus of Indian ) Inhabitant residing at Flat No.3, 101, ) Vanovan, Shivaji Park, Road No.3, ) Dadar, Mumbai – 400 028. ).. Applicants (Org. Respondent No.2 & 3) Versus 1. The Administrator General of the ) State of Maharashtra, havingt his ) office at P.W.D. Build, Veer Nariman Road,) Fort, Mumbai – 400 063. ) 2. Mrs. Manisha alias Vidya Anil Nilekar, ) of Bombay, adult Indian Hindu, ) Inhabitant residing at 201/502, ) 2 Shree Sadan, Panchayatan CHS Ltd., ) Borivli (West), Mumbai – 400 103. ).. Respondents (No.1 Org.Respdt No.1 & No.2 Org. Petitioner) -- Mrs. Uma G. Wagle for the Applicants. Shri R.V. Govilkar for Respondent No.1. Mrs. R.P. Phadke for Respondent No.1. -- CORAM : A.S. OKA, J DATE ON WHICH THE SUBMISSIONS ARE HEARD : 19TH DECEMBER, 2009 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 27TH JANUARY, 2010. JUDGMENT : 1. The present Notice of Motion has been taken out by the Original Respondent Nos.2 and 3 in Misc. Petition No.42 of 1991. The 2nd Respondent is the Petitioner in the said Petition. The 2nd Respondent had taken out a Notice of Motion No.1644 of 1999 in the said Misc. Petition. By an order dated 9th June, 1999 passed in the said Notice of Motion, ad-interim relief was granted. By the said order, the 1st Respondent herein ( the Administrator General of Maharashtra ) was directed to take inventory of the assets in possession of the 2nd to 4th Respondents to the said Notice of Motion without giving notice to the said Respondents. The 3rd Respondent 3 and the 4th Respondents to the said Notice of Motion are the Applicants who have taken out the present Notice of Motion. Accordingly, an inventory was taken by the learned Administrator General. On 23rd June, 2006, the Misc Petition No.42 of 1999 came up before this Court. After perusal of the inventory and the report submitted by the learned Administrator General, this Court made the said Petition absolute in terms of prayer clauses (a) and (b), which read thus:- “(a) that this Hon’ble Court be pleased to appoint the Administration General of Maharashtra, being the 1st Respondent herein, as the Administrator of the estate of late Vimala Janardhan Gadre being the deceased herein, with all necessary powers (including the powers to collect and take possession of the assets and liabilities of the said estate), to administer and distribute the said estate in accordance with the provisions of law and as per the Letters of Administration dated 21/6/1995, and as per the orders and directions of this Hon’ble Court. (b) that this Hon’ble Court be pleased to ordeer and direct the 1st Respondent as this Hon’ble Court may deem fit as the Administrator of the said estate to hold, deposit and realise, sell or invest the properties and credits of the said estate in accordance with the provisions in law and under the directions of this Hon’ble Court.” 2. As per the said order, on 17th October, 2006, the learned Administrator General took charge of a tenanted flat situated at 3/101, Shivaji Park, Mumbai – 400 028 together with furnitures and 4 articles therein. The Applicants were found to be staying in the said flat and the Applicants were permitted to stay in the said flat as care takers. The deceased was holding a property in the Village – Kihim, Taluka – Alibag, District – Raigad, which is as an agricultural land having houses thereon. 3. The prayer in the present Notice of Motion relates to another property held by the deceased which is an agricultural land situated at Village Agarsure, Taluka – Alibag, District – Raigad. The 1st prayer in the Notice of Motion is for a direction to the learned Administrator General to partition the said agricultural land at Village Agarsure. A prayer for interim relief is for stopping the sale of the said land at Village Agarsure by the 1st Respondent. 4. The Notice of Motion is contested by the 2nd Respondent. In the reply, it is contended that the 2nd Respondent has 50% shares in the estate of the deceased. In reply, it is contended that right from June, 2006, the Applicants have been regularly attending the meetings called by the learned Administrator General and it was contended that by consent of the parties, the said land at Village Agarsure was decided to be sold. 5. The 1st Respondent – the learned Administrator General has also filed a Reply to the said Notice of Motion. Various 5 allegations made in the affidavit-in-support of the Notice of Motion have been denied by him in the said Reply. He relied upon the Minutes of the Meetings held on 20th August, 2009, 27th August, 2009 and 11th September, 2009. It is contended that on the request made by the Applicants on 11th September, 2009, his Office had informed the Applicants about publication of a public notice of sale. There is a rejoinder filed by the Applicants. The 2nd Respondent has filed an additional affidavit. It is pointed out that the property held by the deceased at Kihim was sold as per the suggestion of the Applicants. It is submitted that the sale is proceeded with in view of the consent of the Applicants. 6. As per the directions issued by this Court, the learned Administrator General has filed a detailed report about the steps taken by him on the basis of the order passed in the said Misc. Petition. 7. Learned counsel appearing for the Applicants in support of the Notice of Motion submitted that the learned Administrator General cannot insist on selling the properties of the deceased. She submitted that the Applicants desire to retain the property at village Agarsure and therefore, partition of the property will have to be effected by the learned Administrator General. She submitted that there are other properties held by the deceased and equities can be 6 adjusted while effecting partition. The prayer made by the Applicants in the Notice of Motion has been opposed by the learned counsel appearing for the 2nd Respondent. She submitted that the property in question was put to sale as per the express consent of the Applicants and, only after commencement of process of sale, the present Notice of Motion has been taken out. She submitted that the learned Administrator General initiated the process of sale in view of the consent of the parties and now the Applicants cannot back out. She submitted that the material facts have been suppressed by the Applicants. 8. When a query was made by this Court as to whether the Applicants are willing to purchase the share of the 2nd Respondent at a market value, the learned counsel appearing for the Applicants on instructions expressed inability to do so. She submitted that as the Applicants have undivided share in the property and as they do not desire that the property should be sold, the learned Administrator General is duty bound to partition the property. The learned counsel appearing for the learned Administrator General assisted the Court and has shown the records. 9. I have given careful consideration to the submissions. The learned counsel appearing for the Applicants is right in contending that in every case, the learned Administrator General who 7 is appointed under Section 10 of the Administrators General Act, 1963 ( hereinafter referred to as “the said Act of 1963”) cannot insist on sale of the property. There are wide power vesting in the Administrator General including the power under Section 23 of the said Act of 1963 to distribute the assets of a deceased. 10. The question is whether the Court should interfere with the process of sale of the property which is initiated by the Administrator General. 11. In the affidavit in support of the Notice of Motion, the Applicants have stated that a public notice was brought to the notice of the Applicants by a well wisher on 6th October, 2009 and that is how the Applicants came to know that the property at Village Agarsurve is to be sold. This is the averment made in Paragraph 2 of the affidavit in support of the Notice of Motion. In Paragraph 3 of the said affidavit in support, the Applicants have stated that they had already intimated to the Respondents that they were not interested in selling the property. It is contended that the Applicants want to enjoy their ½ share in the property. In the affidavit in support there is no reference to any proceeding before the Learned Administrator General and there is no reference to any meeting held by the learned Administrator General. It must be noted here that the annexures to the affidavit in support of the Notice of Motion show that the notice of 8 sale was published by the learned Administrator General on 23rd September, 2009. 12. A reply has been filed by the 2nd Respondent. Reliance is placed on minutes of the meetings held before the Learned Administrator General and it is contended that with the express consent of the Applicants, the process of the sale of the property was commenced. Copies of the minutes of the meetings held on 20th August, 2009, 27th August, 2009 and 11th September, 2009 have been annexed to the said affidavit. In the affidavit in reply filed by the learned Administrator General, reliance is placed on the said minutes of the meetings which record agreement of the Applicants for sale of the property. There is a rejoinder filed by the 2nd Applicant. In Paragraph 5 thereof, it is stated that a prejudicial treatment was given by the learned Administrator General to the Applicants during all the meetings. It is stated that on all the occasions, the learned Administrator General used to first call the 2nd Respondent and subsequently he used to call the Applicants. It is alleged that thereafter the 1st Respondent- learned Administrator General used to ask the Applicants to leave and used to continue the meeting with 2nd Respondent. It is alleged that the signatures on the minutes of the meetings were used to be taken by the learned Administrator General in the haste and the minutes were never read over to the Applicants. It is alleged that the meetings dated 20th August, 2009 and 27th 9 August, 2009 were attended by the Applicants and an impression given to the Applicants was that a general inquiry regarding valuation of the suit property is being conducted and the Applicants were not to put to the notice about the proposed public notice for sale. It was contended that the minutes of the meetings dated 11th September, 2009 were not shown to the Applicants and they had not signed the same. It is contended that the minutes were fabricated. In the same paragraph, a portion has been added by hand that after taking out the Notice of Motion, a copy of the said minutes was sent to the Applicants along with a covering letter. There is an additional reply filed by the 2nd Respondent to the Notice of Motion. In the said affidavit, a reliance has been placed on a Sale Deed executed on 2nd December, 2004 by the Applicants and the 2nd Respondent in respect of a property at village Kihim in District Raigad held by the deceased. A copy of the Sale Deed has been annexed. It is pointed out that the sale has been effected during the pendency of the miscellaneous petition. 13. It is not in dispute that various meetings fixed by the learned Administrator General were attended by the Applicants. On the record, there is a letter dated 5th February, 2007 addressed by the Applicants to the learned Administrator General in which it is stated that by the sale of the property of the deceased, certain amount has been credited to the learned Administrator General. By the said letter, 10 the Applicants offered to dispose of the flat of the deceased at Shivaji Park at Mumbai and to deposit ½ share in the price with the learned Administrator General. The record shows that a meeting was held by the learned Administrator General on 31st July, 2008 when the first Applicant was present. The minutes of the meeting record that the hearing was fixed by the learned Administrator General for discussion regarding disposal of the said property at Village Agarsurve. The 1st Applicant sought time. Thereafter, a meeting was convened on 20th August, 2009 by the 1st Respondent (the learned Administrator General ). The notice of the said meeting was issued on 17th August, 2009 which clearly records that a meeting has been convened for discussion regarding sale of the property of the deceased at Village Agarsurve. In the said meeting, the minutes have been recorded which are signed by the Applicants. In the minutes recorded by the learned Administrator General it is stated that the Applicants and the 2nd Respondent principally agreed for the sale of the said property. The minutes record that for the sale of the property at Village Agarsurve, a public notice will be published and the meeting was adjourned to 27th August, 2009 for finalizing the draft. The minutes of the meeting dated 27th August, 2009 are again signed by the Applicants. The minutes record that the draft public notice was approved by the parties including the Applicants and the meeting was adjourned to fix minimum costs of the property. At this stage, it must be noted that the Applicants have signed both the said minutes. 11 In the affidavit in support of the Notice of Motion, there is no challenge to what is recorded in the minutes of the meetings held on 20th August, 2009 and 27th August, 2009. In the subsequent affidavit filed by the 2nd Applicant on 13th November, 2009 a case is made out that the signatures of the Applicants on the minutes of the meetings were obtained in haste. However, the Applicants never challenged the minutes recorded in the said meetings. It is not in dispute that copies of the minutes of the said meetings were supplied to the Applicants. If the grievance of the Applicants was that the minutes were not properly recorded, the said grievance ought to have been made in the affidavit in support of the Notice of Motion. The grievance made by filing a subsequent affidavit is clearly an after thought. The Applicants have not disputed that they have attended the meetings held on 20th August, 2009 and 27th August, 2009 as well as 11th September, 2009. Therefore, nothing prevented the Applicants from challenging the contents of the minutes of the meetings and especially the minutes of the meetings dated 20th August, 2009 and 27th August, 2009. The Notice of Motion was filed on 8th October, 2009. It is not disputed that the Applicants attended the subsequent meeting dated 11th September, 2009 which record that the Applicants suggested that minimum cost should be Rs.70,000/- per guntha. Accordingly, the learned Administrator General fixed the said minimum price. In fact, it is noted that the Advocate for the 2nd Respondent pointed out that the 2nd Respondent had objected to the 12 said price and if no bids or offers are received at the minimum price of Rs.70,000/- per guntha, the 2nd Respondent will not bear the costs of the publication of the 2nd notice. In the minutes, the learned Administrator General has recorded that the Applicants agreed to the said condition imposed by the 2nd Respondent and they accepted that in case the property was required to be re- advertised, they will bear charges of publication. A grievance has been made that a copy of the minutes of the meetings is served to the Applicants after the Notice of Motion was taken out. 14. As stated earlier, the Applicants have not even referred to the minutes of the meetings dated 20th August, 2009 and 27th August, 2009 in the affidavit in support. Admittedly, the Applicants attended the meeting held on 11th September, 2009. As per the decision recorded in the minutes of the meeting held on the same date, the advertisement for sale was agreed to be published up to 25th September, 2009. In the affidavit in support of the Notice of Motion, the Applicants ought to have disclosed as to what transpired in the said meetings. Admittedly, there were earlier meetings for discussing the same issue of sale of the said property. As pointed out in the report, one of the properties held by the deceased at Village Kihim in District – Raigad was jointly sold by the Applicants and the 2nd Respondent during the pendency of the Petition. 13 15. Looking to the said conduct of the Applicants, the grievance made in the subsequent affidavit dated 13th November, 2009s appears to be completely an afterthought. It is not possible to accept that what is recorded in the minutes by the learned Administrator General is incorrect or wrong. It is obvious that on the express consent of the Applicants, the process of sale was commenced by the learned Administrator General. Hence, no interference can be made by this Court with the process of sale initiated on the basis of the express consent of the Applicants. Hence, no interference is called for. However, it is always open for the Applicants to purchase ½ share of the 2nd Respondent at the market value. 16. Hence, I pass the following order. The Notice of Motion is dismissed. The sale shall not be effected for a period of six weeks from today. (A.S.OKA,J)