Case: Parmanand Patel (D) Th. Lrs.  Vs. Sudha A.Chowgule

lot of controversy between the parties. There is also a lot of bad blood.19. The High Court in its impugned judgment proceeded on the premise that prima facie late Parmanand Patel had a desire to settle the properties in favour of his two daughters in equal shares. He made a meticulous plan therefor which would be tax efficient. To the aforementioned extent, 1st respondents case appears to have been supported by Dr. Hemant Patel, brother of Indu Patel herself. But, with respect, what was not taken into consideration by the Division Bench of the High Court was that admittedly two sets of papers were prepared - one on the basis that the 2nd appellant would surrender her 5% share in the company. Late Parmanand Patel even signed the first set of papers. She, however, refused to part with her share in the company. It was then the second set of documents were executed which not only included the undated Will but also the two letters addressed to Sudha and Jaya respectively. The said letters prima facie had been drafted in a manner which would ultimately be beneficial to the interest of Sudha alone. Presumably, at that point of time the 2nd appellant expressed her stray resent in relation to the whole affair. Rightly or wrongly, she was not ad idem with her husband. It gave rise to execution of a third set of document which was signed not only by late Parmanand Patel but also the appellant no.2 conferring a power of review upon Shirish Patel. It was also attested by R.A. Shah. We have been given to understand that the said Shirish Patel alone was helping late Parmanand Patel in running the business. It is in the aforementioned context that letter dated 26th August 2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as under : "Further to my letter dated 25th August 2005, I wish to confirm that all the documents purported to have been executed on January 23, 2005 by Parmanandkaka dealing with his assets and the acts of Sudha pursuant thereto are detrimental to the interest of Parmanandkaka and therefore he should not be bound by the same." The Will and the letters of gift as evidenced by the two letters dated 23rd January 2005 were subject to review by Shirish Patel. He having opined that the arrangement being detrimental to the interest of Parmanand Patel, in our opinion, should be given primacy at this stage. We would, however, refrain ourselves from making any comment upon the correctness or otherwise of the one set of reports submitted by the medical experts in preference to another. The case of the 1st respondent may or may not be correct. It is possible, as has been contended by her, that late Parmanand Patel had a desire to divide the property in equal shares between her two daughters. However, for the purpose of passing an interlocutory order, we may proceed on the premise that the rights of the parties would have to be considered in terms of the provisions of the Hindu Succession Act, 1956, that is, on the assumption that Parmanand Patel died intestate in which event share of each of his heirs would be one third. Distribution of property amongst the children by the parents, however, may be found to be desirable if the mother wants to retain her share and deal with the same on her own. No exception can be taken thereto. Ordinarily, a Court shall presume the existence of a right in the property of the deceased in favour of the 2nd appellant herein unless a strong prima facie case is made out that she had been deprived therefrom. It is not for the court to consider as to whether her stand is fair to one of her daughters or not. Even if it be held that the Will and the letters had been executed by late Parmanand Patel in sound disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be accompanying her father to various parts of the country as also abroad to see that Parmanand Patel received best of the treatment, but then Jaya had also been residing in the same bungalow with her father despite her marriage in 1979. Above all, 2nd appellant had also not only been looking after her husband but also accompanying him for his treatment wherever it was found to be necessary. We, as at present advised, do not wish to comment upon the contentions raised before us that the Will was not only unnatural but was surrounded by a large number of suspicious circumstances. Such a question would fall for consideration of the High Court in the suit.20. We, therefore, having taken into consideration all aspects of the matter, are of the opinion that it is a fit case where the High Court should have appointed a receiver and/or an administrator with suitable directions. We have, to the aforementioned extent, intend to interfere with the order of the High Court as Sudha alone had been given exclusive powers not only to execute documents but also induct tenants. The aforementioned job, in our opinion, keeping in view the relationship between the parties should better be left with an officer of the Court who would be subject to directions as may be issued by the High Court from time to time. We leave the matter relating to imposition of conditions and/or appointment of chartered accountant or others to assist the receiver completely at the hands of the High Court. In a case of this nature, however, the official receiver himself may not be appointed as receiver.21. Before parting with this case, however, we may place on record that Mr. Hemant Choudhari, learned counsel appearing for respondent no.6- Bank submitted that appellants and the respondent-companies owned by appellants and the first respondent even borrowed a sum of about Rs.5 crore. The High Court may consider desirability of protecting the interest of the bank also.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. Although, the learned counsel for the parties have addressed us at great length and in fact we have been taken through the minutest details of the relevant and important documents filed and relied on by the parties, we are of the opinion that it would not be prudent on our part to discuss the same in great details.A receiver, having regard to the provisions contained in O.40 R.1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so.Appointment of a receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a receiver would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant.16. 1st respondent did not question that part of the order of the Division Bench whereby an Official Receiver of the High Court has been appointed as receiver in respect of the suit properties. We would, therefore, proceed on the premise that a strong prima facie case has been found in favour of the appellants.Parties hereto have brought out medical reports in respect of late Parmanent Patel which give us different pictures about his mental condition at the relevant time. It is no doubt true that the relevant date for determining the mental faculty of late Parmanand Patel would be 23rd January 2005, but for arriving at the said conclusion his mental condition, both prior thereto and later, would be relevant. Prima facie, appellant no.2 was compelled to file a suit in order to protect the interest of her husband. Suit was entertained and interim order was passed. The Division Bench, in order to satisfy itself, called late Patel in their chamber. He was found to be totally confused and incoherent. It is in the aforementioned situation, a panel of doctors was constituted for examining him. We have noticed the report of the said panel of doctors.17. The property in suit is worth more than Rs.1000 crores. There are several companies. Respondentherein own huge properties. There are twobuildings which are occupied by a large number of tenants. Each of the heirs and legal representatives of late Parmanand Patel, in the event he is found to have died intestate, would have 1/3rd share. Appellant no.2 does not claim exclusive interest in respect of the flats purported to have been gifted in her favour by her late husband. A statement has also been made on her behalf of the first respondent herein that she would have no objection to share the entire property half and half between herself and appellant no.2.18. We may also place on record that several attempts have been made for reconciliation between the parties. At the instance of the learned senior counsel appearing on behalf of the parties, the dispute was referred to a learned mediator. Parties, however, for reasons best known to them and despite the fact that for all intent and purport the dispute hinges on a narrow pedestal, have not been able to settle their disputes. It, therefore, appears that there is a lot of controversy between the parties. There is also a lot of bad blood.19. The High Court in its impugned judgment proceeded on the premise that prima facie late Parmanand Patel had a desire to settle the properties in favour of his two daughters in equal shares. He made a meticulous plan therefor which would be tax efficient. To the aforementioned extent, 1st respondents case appears to have been supported by Dr. Hemant Patel, brother of Indu Patel herself. But, with respect, what was not taken into consideration by the Division Bench of the High Court was that admittedly two sets of papers were preparedone on the basis that the 2nd appellant would surrender her 5% share in the company. Late Parmanand Patel even signed the first set of papers. She, however, refused to part with her share in the company. It was then the second set of documents were executed which not only included the undated Will but also the two letters addressed to Sudha and Jaya respectively. The said letters prima facie had been drafted in a manner which would ultimately be beneficial to the interest of Sudha alone. Presumably, at that point of time the 2nd appellant expressed her stray resent in relation to the whole affair. Rightly or wrongly, she was not ad idem with her husband. It gave rise to execution of a third set of document which was signed not only by late Parmanand Patel but also the appellant no.2 conferring a power of review upon Shirish Patel. It was also attested by R.A. Shah. We have been given to understand that the said Shirish Patel alone was helping late Parmanand Patel in running the business. It is in the aforementioned context that letter dated 26th August 2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as underto my letter dated 25th August 2005, I wish to confirm that all the documents purported to have been executed on January 23, 2005 by Parmanandkaka dealing with his assets and the acts of Sudha pursuant thereto are detrimental to the interest of Parmanandkaka and therefore he should not be bound by theWill and the letters of gift as evidenced by the two letters dated 23rd January 2005 were subject to review by Shirish Patel. He having opined that the arrangement being detrimental to the interest of Parmanand Patel, in our opinion, should be given primacy at this stage. We would, however, refrain ourselves from making any comment upon the correctness or otherwise of the one set of reports submitted by the medical experts in preference to another. The case of the 1st respondent may or may not be correct. It is possible, as has been contended by her, that late Parmanand Patel had a desire to divide the property in equal shares between her two daughters. However, for the purpose of passing an interlocutory order, we may proceed on the premise that the rights of the parties would have to be considered in terms of the provisions of the Hindu Succession Act, 1956, that is, on the assumption that Parmanand Patel died intestate in which event share of each of his heirs would be one third. Distribution of property amongst the children by the parents, however, may be found to be desirable if the mother wants to retain her share and deal with the same on her own. No exception can be taken thereto. Ordinarily, a Court shall presume the existence of a right in the property of the deceased in favour of the 2nd appellant herein unless a strong prima facie case is made out that she had been deprived therefrom. It is not for the court to consider as to whether her stand is fair to one of her daughters or not. Even if it be held that the Will and the letters had been executed by late Parmanand Patel in sound disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be accompanying her father to various parts of the country as also abroad to see that Parmanand Patel received best of the treatment, but then Jaya had also been residing in the same bungalow with her father despite her marriage in 1979. Above all, 2nd appellant had also not only been looking after her husband but also accompanying him for his treatment wherever it was found to be necessary. We, as at present advised, do not wish to comment upon the contentions raised before us that the Will was not only unnatural but was surrounded by a large number of suspicious circumstances. Such a question would fall for consideration of the High Court in the suit.20. We, therefore, having taken into consideration all aspects of the matter, are of the opinion that it is a fit case where the High Court should have appointed a receiver and/or an administrator with suitable directions. We have, to the aforementioned extent, intend to interfere with the order of the High Court as Sudha alone had been given exclusive powers not only to execute documents but also induct tenants. The aforementioned job, in our opinion, keeping in view the relationship between the parties should better be left with an officer of the Court who would be subject to directions as may be issued by the High Court from time toleave the matter relating to imposition of conditions and/or appointment of chartered accountant or others to assist the receiver completely at the hands of the High Court. In a case of this nature, however, the official receiver himself may not be appointed as receiver.21. Before parting with this case, however, we may place on record that Mr. Hemant Choudhari, learned counsel appearing for respondent no.6Bank submitted that appellants and theowned by appellants and the first respondent even borrowed a sum of about Rs.5 crore. The High Court may consider desirability of protecting the interest of the bank also.