Dilip D. Chowdhari & Anr vs Maharshtra Executor &Trustee; &Ors;

2) The facts of the case in brief are as follows:

Suryakant, Ashok, Dilip (appellant) and Bapu. In addition to that the testator had one married daughter. Ashok got married in 1968. The appellant got married on 29.1.1974. Bapu was a problem child and remained a bachelor. On the ground floor there are two tenants. On the first floor there are two tenants. On the second floor there are two independent flats given out to Suryakant and his wife and Ashok and his wife respectively. The third floor was occupied by the deceased testator along with his wife Smt. Mainabai and the appellant. Bapu, who was the problem child was also given a separate room. 2

4) Due to service exigencies, the appellant was required to shift to RBI official quarters at Byculla with his family. Meanwhile a second son, Kaustubh was born to the appellant on 23.11.1981. After three months, the appellant's family came back and stayed at the suit property on the third floor. The testator executed his last Will, by which right of residence was given to his wife and right of occupation was given to his four sons. Suryakant and Ashok were given an independent flat each in the second floor. One room in the third floor was given to Bapu. The rest of the third floor was kept for occupation of the testator, his wife and the appellant.

5) The Will was duly probated by the executors namely, Maharashtra Executors and Trustees Company Limited, a company formed under the Companies Act, 1956, having its registered office at Lok Mangal, 1501, Shivaji Nagar, Pune having its branch office at Bombay, (respondent no.1). According to the contents of the Will, the wife of the testator will have the right of residence in the house till her life time. In addition to that she will be entitled to 30% of 3 the income of the movable property of the testator.

6) Shri Dattatraya Raghunath Chowdhari - the testator died on 23.02.1982. On 30.06.1997, Ojas, Appellant's son, who was born on 30.06.1976, attained 21 years of age and, accordingly, the trusteeship came to an end. As there was a dispute between the respondents and the appellants regarding the occupation of the suit building, the executors of the Will filed Originating Summons No. 871 of 1999 under Rule 238 of the High Court (Original Side) Rules. The appellant was arrayed as defendant no.5 in the said Originating Summons. The widow of the testator was 4 arrayed as defendant no.1, whereas Suryakant, Bapu and Ashok were arrayed as defendants nos. 2, 3 and 4 respectively. The grandchildren of the testator, namely, Rajesh, Arjun, Vikram and Ojas were arrayed as defendants nos. 6, 7, 8 and 9 respectively. The daughter of the deceased, Kumudini was arrayed as defendant no. 10. The executors sought interpretation of certain covenants of the aforesaid Will and the determination of certain questions that had arisen in the administration of the Will. The executors/plaintiff stated that till 1998, there were no differences and disputes between the defendants in respect of the use and enjoyment of the property as administered by the plaintiff from time to time. The plaintiff further contended that defendant no.5 who had sometime in the year 1976, had left the suit building and gone to stay in the RBI staff quarters and upon returning insisted upon occupying and staying in the entire 3rd floor except for one room allotted to defendant no.3, wherein disputes arose between the widow of the testator and the two sons as to who should be in the exclusive and/or joint possession and enjoyment of different portions comprised in the 3rd floor. Disputes according to the 5 plaintiff also arose on the attainment of 21 years of age by Ojas, whereby the grand children would now become entitled to partition and division of the suit building. The plaintiff also contended that certain correspondence had ensued between defendants nos. 1, 3 and 5 on the one hand and the plaintiff on the other as the defendants nos. 1, 3 and 5 have been interpreting the clauses in the said Will in the manner suited to each one of them. The plaintiff essentially contended that disputes as between the legatees have also arisen pertaining to the scope and interpretation of the clauses of the said Will such as the sharing of the income of and from the movables, the rights of the ultimate beneficiaries regarding the partition of the property by metes and bounds and the transfer and conveyance of the said property or in terms of partition by metes and bounds to be followed by such transfer and conveyance, the period for which the defendants nos. 2 to 5 would be entitled to occupy the tenements on the 2nd and 3rd floors and the ultimate beneficial vesting of the movables. Several questions were framed for determination by the High Court. But for disposal of the appeal, it is sufficient to notice only question 6 No. ( C ) in the Originating Summons. It is as under

8) The appellant is mainly aggrieved by answer in the judgment to the question `C' part (a)

(ii) whereby the appellant's right to use and occupy the third floor of the suit building in terms of the Will of the testator was restricted to only one right hand side last room with a right to jointly use with the wife of the testator, Ms. Meenabai Dattatraya Chowdhari, the bath and toilet. Being aggrieved by the aforesaid order of the learned Single Judge, the appellant preferred Appeal No. 326 of 2000 before the Division Bench of the High Court of the Judicature at Bombay. The Division Bench dismissed the appeal.

13) With the above observation and direction, the appeal is allowed. In the facts and 11 circumstances of the case, parties are directed to bear their own costs.