The Delhi High Court addressed disputes over the validity of a Will and estate management of a testator suffering from dementia, directing continuation of guardianship and safeguarding of assets pending probate proceedings.
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TEST.CAS. 1/2022 HIGH COURT OF DELHI
JUDGMENT
reserved on: 24 August 2023
Judgment pronounced on: 20 November 2023
TEST.CAS. 1/2022 KANCHANA RAI ..... Petitioner Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. D. Abhinav, Adv.
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents Through: Mr. Divyam Nandrajog and Mr. Mayank Kamra, Advs. for R-1. Mr. Mahesh Jethmalani, Sr. Adv. with Mr. Ravi Sharma, Mr. Anjani Kumar, Ms. Madhulika, Advs. for R-2. Mr. K.K. Rai, Sr. Adv. with Mr. Anshul Rai, Ms. Medha Tandon and Mr. Ujjwal Sharma, Advs. for R-3b. Mr. B. Shravanth Shankar, Adv. for R-4. Mr. Rajeev Nayar, Sr. Adv. with Mr. Rishi, Ms. Niyati, Mr. Pratham, Ms. Manavi, Advs. for R-5 & 6. Ms. Aparna Jha, Adv. for R-7. Mr. Vikas Singh, Sr. Adv. with Mr. Varun, Ms. Kajal S. Gupta, Ms. Alankriti, Advs. for Applicant in IA No. 12353/2022.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
JUDGMENT
YASHWANT VARMA, J. I.A. 12353/2022
1. The present application has been moved by the third respondent (as per the amended memo of parties submitted on 5 April 2023) for the appointment of an Administrator pendente lite and pending disposal of the probate case in question. For purposes of uniformity and consistency with the judgments rendered in the previous rounds of litigation as well as to protect the identity of personages, the parties shall, hereinafter, be referred to as: Party Abbreviation Testator DMP Applicant (Respondent No.3) RS Petitioner KR Erstwhile wife of the Testator SD Late son of the Testator/ Husband of the Petitioner DR Brother of the Petitioner US Respondent No. 2 RA Respondent No. 4 UD Respondent No. 5 AR Respondent No.6 AC Respondent No. 7 MB
2. The probate petition came to be instituted in respect of the last Will and Testament of DMP stated to have been executed on 18 July. The said Will stands duly registered in the office of the Sub- No. 533 at pages 156-166. It is stated to be attested by two independent witnesses. The testator, DMP, and the late SD are stated to have been married and bore three children out of wedlock- RA, the respondent no.2 stated to be the eldest son, the late DR who predeceased the testator and was the husband of the petitioner, and the late RS, the applicant herein, whose interest is now represented by Respondent nos. 3(a), 3(b) and 3(c) being his wife and two sons.
3. It is further borne out from the record that the fourth respondent, UD, was shown as the wife of the testator in various official documents including his passport and Aadhar card. There is a dispute between parties with respect to the actual status of UD with it being claimed by one side that she was the wife whereas some parties contend that it was the late SD who was the legally wedded wife of the testator. It is, however, not disputed that UD was a companion of the testator for many decades. The testator was elected as a Member of Parliament to the Lok Sabha for the first time in 1980. He was thereafter elected and nominated to the Rajya Sabha on multiple occasions commencing from 1986 till upto his sixth term as a Member of that House in 2018.
4. The petitioner, who is the named executor under the last Will of DMP, married the late DR on 21 May 1998. Two children, AR and AC, were born out of that union and are arrayed in these proceedings as respondent nos. 5 & 6. The husband of the petitioner is stated to
1 Will have passed away on 21 May 2011. It is the case of the petitioner that the testator officially disowned his two sons, RA and RS, by way of sworn affidavits and newspaper publications which date back to 2016 and 2017. It is asserted by the respondents that in September, 2019 the testator was for the first time diagnosed with fronto-temporal dementia and thus liable to recognised as being mentally incapacitated for many years.
5. The institution of the present probate proceedings was preceded by litigation instituted by parties both before this Court as well as in terms of proceedings lodged before different Metropolitan Magistrates in terms of numerous criminal complaints filed in different parts of the country. The record would further bear out that prior to the filing of the present application, the late SD had also filed IA No. 577/2022 seeking appointment of an interim Administrator over the estate of the testator. The aforesaid application ultimately came to be dismissed as having abated upon the demise of late SD on 12 June 2022. The third and youngest son of DMP, who is the applicant herein, and who was arrayed as respondent no.3 passed away on 2 March 2023 and thus evidently during the pendency of the instant application. As noted hereinbefore, his legal heirs stand duly impleaded on the record.
6. The reliefs which are claimed in the instant application are fundamentally premised on the following allegations. It is firstly submitted that the Division Bench while seized of a habeas corpus petition, being W.P. (Crl.) 2255/2019, had an occasion to notice in some detail the disputes and discord amongst various family members of DMP. The habeas corpus petition had been instituted by the late RS alleging illegal and wrongful confinement of the late SD by DMP as well as UD. During the consideration of the aforenoted habeas corpus petition, the Division Bench of the Court had an occasion to interact with parties including DMP as well as SD. On 19 August 2019 the Court after holding personal interactions proceeded to pass the following order: ― Though the present matter was mentioned in the morning by Mr. Amit Sibal, learned senior counsel for Smt. Satula Devi seeking dispensation of her personal appearance, yet keeping in view the categorical direction in our last order dated 14th August, 2019, Mr. Amit Sibal agreed that Smt. Satula Devi shall be personally present post lunch. He, however, prayed that Ms. Satula Devi be examined by the Court in Chambers, to which we agreed. On our oral direction, petitioner, respondent no. 2 and Smt. Satula Devi personally appeared in Court at about 3.30 p.m. We spoke to the aforesaid three individuals in our Chambers. While Smt. Satula Devi was hard of hearing and it was difficult to communicate with her, we found that respondent NO. 2 (Dr. Mahendra Prasad) did not recognize either the petitioner (his son) or Smt. Satula Devi (his wife). He, in fact, told us that Smt. Satula Devi was his mother and the petitioner‘s name was Aradhya and not Ranjit. Respondent no. 2 repeated ad nauseam that he had travelled to all the countries of the world. Enquiry from the staff who accompanied Smt. Satula Devi and respondent no. 2 revealed that respondent no. 2‘s younger brother was managing the business empire. Keeping in view the gravity of the situation, we requested the three learned senior counsel, Mr. Sidharth Luthra, Mr. K.K. Rai and Mr. Amit Sibal as well as learned standing counsel, Mr. Rahul Mehra to suggest to this Court a mutually agreed future course of action.‖
7. The petition thereafter came to be finally heard and disposed of by the Court in terms of an order dated 20 September 2019. Since the aforesaid order would have some bearing on the issues which were canvassed even on this application and also compendiously records the various proceedings which were taken thereon, we deem it expedient to extract the aforesaid order in its entirety hereinbelow: ―1. Present writ of habeas corpus had been filed by the petitioner-son Mr. R.S. seeking a declaration that his mother- Mrs. S.D. had been detained/confined by respondent no.2-father D.M.P. as well as respondent no.3-Ms. U.D. and by their agents/representatives. The petitioner-son also sought custody of his mother-Mrs. S.D.
2. On 14th August, 2019, this Court had directed petitioner‘s mother- Mrs. S.D.to be personally present before this Court on 19th August, 2019.
3. On the said date, petitioner-son Mr. R.S. as well as his mother-Mrs. S.D. and respondent no.2-father D.M.P. appeared before this Court. During our meeting with the parties in our chamber, we realised that both respondent no.2-father D.M.P. as well as petitioner‘s mother-Mrs. S.D. needed care and protection. However, keeping in view the status as well as close relationship of the parties and the lack of clarity with regard to the medical problems of the parties, we requested the three learned senior counsel to suggest a future course of action. The order dated 19th August, 2019 reads as under:- ―Though the present matter was mentioned in the morning by Mr. Amit Sibal, learned senior counsel for Smt. S.D. seeking dispensation of her personal appearance, yet keeping in view the categorical direction in our last order dated 14th August, 2019, Mr. Amit Sibal agreed that Smt. S.D. shall be personally present post lunch. He, however, prayed that Ms. S.D. be examined by the Court in Chambers, to which we agreed. On our oral direction, petitioner, respondent no.2 and Smt. S.D. personally appeared in Court at about 3.30 p.m. We spoke to the aforesaid three individuals in our Chambers. While Smt. S.D. was hard of hearing and it was difficult to communicate with her, we found that respondent no.2 (D.M.P.) did not recognize either the petitioner (his son) or Smt. S.D. (his wife). He, in fact, told us that Smt. S.D. was his mother and the petitioner’s name was A. and not R.S. Respondent NO. 2 repeated ad nauseam that he had travelled to all the countries of the world. Enquiry from the staff who accompanied Smt. S.D. and respondent no. 2 revealed that respondent no. 2’s younger brother was managing the business empire. Keeping in view the gravity of the situation, we requested the three learned senior counsel, Mr. Sidharth Luthra, Mr. K.K. Rai and Mr. Amit Sibal as well as learned standing counsel, Mr. Rahul Mehra to suggest to this Court a mutually agreed future course of action. At the request of learned senior counsel for parties, list on 27th August, 2019 at 4.00 p.m.‖
4. Thereafter an application being Crl.M.A.No.33943/2019 was filed by respondent no.2-father D.M.P. seeking recall of the order dated 19th August, 2019 to the extent we had recorded the conduct of the parties after meeting them in our chamber. In the said application it was averred that the thyroid levels of respondent-2-father D.M.P. had shot up and the sodium levels were highly depleted due to which there was inaccuracy in his speech and diction. A copy of the medical report dated 01st July, 2019 was enclosed. However, when the application was listed for hearing before the Court, learned counsel for respondent no.2-father D.M.P. sought an adjournment.
5. On 27th August, 2019, there was no consensus with regard to the future course of action. Consequently, this Court transferred the investigation to the Crime Branch and parties were directed to maintain confidentiality. The order dated 27th August, 2019 is reproduced hereinbelow:- ―Keeping in view the nature of the allegations in the present petition as well as the earlier order dated 19.08.2019, the investigation of the present case is transferred to Crime Branch forthwith. Let a status report be filed on or before the next date of hearing under the signature of Mr. Joy Tirkey, DCP (Crime). The parties are directed not to publicise or disclose either the order or the proceedings to any third party. List on 05.09.2019. The registry is directed not to upload the present order on the portal of Delhi High Court till the next date of hearing. Order dasti under the signature of the Court Master.‖
6. Thereafter, a status report dated 03rd September, 2019 was filed by the DCP, Crime Branch. The relevant portion of the said status report reads as under:- ―Discussion of evidence In the enquiry conducted so far, the following issues have emerged.
1. That Smt. S.D. is the lawfully wedded wife of D.M.P., whereas, Smt U.D. has been living with D.M.P. as his wife since 1973. Smt. S.D. is an illiterate lady while Smt. U.D. is a Science Graduate from Maitreyi College, Delhi University.
2. That Smt. S.D. and Smt. R.D. have been living together since long. They were staying at Harit Nilaya Farm House, Dera Village, New Delhi for about the past one year and had shifted to Kothi No.4, Safdarjung Lane, Delhi about a month ago.
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3. That Smt. S.D. had not been able to meet her son, Sh. R.S. (petitioner) for quite some time. She desired to meet her son R.S., her daughter in law G. and her grandson A.
4. That D.M.P. calls Smt. U.D. as his wife but does not accord the same status to his lawfully wedded wife Smt. S.D. 5. That D.M.P. has disowned his son Sh. R.S. in the year 2016 and does not want to either talk to him or to let him enter his house.
6. That Smt. U.D. holds a Diplomatic Passport stating that she is.DM.P.’s wife.
7. That two ex-employees have stated that Smt. S.D. and Smt. R.D. were kept in confinement and not allowed to go out.
8. That neither Smt. S.D. nor Smt. R.D. have stated that they had been confined or beaten by anyone.
9. That none of the servants who are presently employed with D.M.P. have corroborated the allegation of confinement or physical torture. Findings During the enquiry conducted so far, it is apparent that both Smt. S.D. and Smt. R.D. are estranged from their husbands. They live together and are totally dependent on D.M.P. and Smt. U.D. for everything. Due to old age, D.M.P. is also suffering from some memory loss. During enquiry, no female attendant was found to be looking after the two ladies.‖
7. Keeping in view the aforesaid report which revealed that even petitioner‘s aunt (Chachi)-Mrs. R.D. needed care and protection as well as Mr. Rahul Mehra learned standing counsel for the State‘s allegation that investigation was being sought to be impeded by representatives of the respondents, this Court vide order dated 05th September, 2019 directed petitioner‘s mother- Mrs. S.D.as well as petitioner‘s aunt-Mrs. R.D. to shift to C- 1/21, Vasant Vihar, the property owned by respondent no.2father D.M.P. On the said date, Mr.Siddharth Luthra, learned senior counsel for respondent no.2-father D.M.P. voluntarily stated that respondent no. 2 would get himself admitted in AIIMS. The said order reads as under:- ―Today Mr.Rahul Mehra, learned standing counsel for the State has handed over a detailed status report. The same is taken on record. A photocopy of the same has been supplied to learned counsel for the parties. After hearing the matter at some length, Mr.Siddharth Luthra, learned senior counsel for respondent no.2 –D.M.P. states that his client would move an application before Mr.Joy Tirkey, DCP (Crime) today itself to get himself admitted in AIIMS. Mr.Siddharth Luthra states that D.M.P. would abide by any directions given by the doctors. The Director, AIIMS is directed to constitute a medical board to examine and take care of D.M.P. A status report is directed to be filed by AIIMS in a sealed cover, at least one day prior to the next date of hearing. Copies of the orders passed today as well as on 19th August, 2019 and the status report filed by the DCP (Crime) shall be forwarded to the Director, AIIMS. It is further agreed between the parties that Smt. S.D. as well as Smt. R.D. shall be shifted tomorrow i.e. 06th September, 2019 to Bungalow No.C-1/21, Vasant Vihar – the property owned by D.M.P. Before Smt. S.D. and Smt. R.D. are shifted to the said house, the Police shall sanitise the house and ensure that neither the petitioner nor his family members or the family members of D.M.P. have access to the said house or to Smt. S.D. as well as Smt. R.D. The existing staff of Smt. S.D. as well as Smt. R.D. would abide by any directions given by Mr.Joy Tirkey, DCP (Crime). Mr.Luthra further agrees that, as recommended by Mr.Joy Tirkey, DCP (Crime), two lady nurses shall be employed at D.M.P.’s expense either from a hospital or any reputed agency. The Police is directed to continue its investigation and file a fresh status report a day prior to the next date of hearing. The interim order dated 27th August, 2019 with regard to confidentiality and non-uploading of the order on the official website of this Court shall continue till the next date of hearing. List on 19th September, 2019. Order dasti under the signature of the Court Master.‖
8. In pursuance to the order dated 05th September, 2019, the medical report dated 12th September, 2019 has been received from the AIIMS. A copy of the same has been handed over to Mr.Siddharth Luthra, learned senior counsel for respondent no.2-father D.M.P. The said medical report dated 12th September, 2019 reads as under:- Subject: Report of the Medical Board/ Committee at AIIMS (CNC) constituted for medical examination and status report of D.M.P., an existing Hon’ble M.P. (Rajya Sabha) as directed by the Hon’ble Delhi High Court Order dated 05.09.2019 in Writ Petition Criminal No. 2255/2019 in the matter of R.S. Versus State. * * * * * * * * * * * * * * The meeting of the medical board held under the Chairmanship of Dr. Achal Kumar Srivastava, Professor, Deptt. of Neurology on 12.09.2019 (Thursday) at 3:00 PM in Room No. 13 (VIP Room), MS Office wing, Old Pvt. Ward, AIIMS, New Delhi. The following members were present in the meeting:
1. Dr. Achal Kumar Srivastava Chairperson Professor, Deptt. of Neurology
2. Dr. Sanjay Wadhwa Co-opted Member Professor, Deptt. of PMR
3. Dr. Vinay Goyal Co-opted Member Professor, Deptt. of Neurology
4. Dr. Mamta Sood Co-opted Member Professor, Psychiatry
5. Dr. Biraj Chandra paul Member Secretary Duty Officer, CNC
6. Dr. Ashok Chauhan Observer Duty Officer, CNC Report: D.M.P., an existing Hon’ble M.P. (Rajya Sabha) was examined in detail. His all available relevant investigation reports were evaluated. The Medical Board is of the opinion that D.M.P. is suffering from dementia (frontotemporal dementia).‖
9. Yesterday, a fresh status report dated 19th September, 2019 was handed over by learned standing counsel for the State. The relevant portion of the said status report reads as under:- ―Discussion of evidence In the further enquiry conducted in the matter, the following issues have emerged.
1. That Smt. S.D. and Smt. R.D. have alleged beating and confinement by Smt. U.D. and some servants on her behest. Both the ladies do not remember dates but shared their experience as per incidents.
2. That Smt. S.D. and Smt. R.D. want to live at C- 1/21, Vasant Vihar, New Delhi.
3. That they do not want to meet D.M.P. and Smt. U.D. but Smt. S.D. wants to meet her son R.S., her daughter in law and her grandson. Smt. R.D. wants to meet and live with her husband.
4. That Smt. R.D. has alleged that when she was living at the farm house, one servant named S. used to make obscene gestures at her and made fun of her. He would also lock her up inside the bathroom and not let her come outside and would keep standing outside the bathroom.
5. That Smt. R.D. has alleged that Smt. U.D. has taken away all the gold items belonging to her and S.D.
6. That two ex-employees of the Company have stated that D.M.P. has been having memory related issues and that the company is now being controlled by his erstwhile Secretary, Smt. U.D.
7. That Director, AIIMS had been directed by the Hon’ble Court to constitute a Medical Board to examine and take care of D.M.P.and file a Status Report in this regard a day before the next date of hearing i.e. 19.9.19. Request in this regard was sent to the Medical Superintendent, AIIMS on 06.09.19. Findings
1. During the enquiry conducted so far, both Smt. S.D. and Smt. R.D. have alleged confinement and physical abuse.
2. Smt. R.D. has alleged that a servant S. used to make obscene gestures at her and used to lock her up in the bathroom at the farm house.
3. Smt. R.D. has further alleged that Smt. U.D. has taken away gold items belonging to her and Smt. S.D. In view of the above submission made therein, the undersigned is ready and willing to abide by any directions of this Hon’ble Court. Dr. Joy N. Tirkey Dy. Commissioner of Police AHTU, Crime Branch, Delhi.‖
10. We met the parties once again yesterday. The petitioner‘s mother- Mrs. S.D. and petitioner‘s aunt-Mrs. R.D. expressed satisfaction at the arrangement made by this Court for their stay vide order dated 05th September, 2019. We found that in comparison to the previous meetings, petitioner‘s mother-Mrs. S.D. was far more confident, self-assured, relaxed, calm and composed.
11. When we met respondent no.3-Ms. U.D. in our chamber, she vehemently denied the allegations made by petitioner‘s mother- Mrs. S.D.as well as by her former employees–as detailed in the status reports. She emphasised that respondent no.2-D.M.P. had shown her as his legally wedded wife in the official records. She stated that she had been taking care of respondent no.2-D.M.P. and his family for the last 45 years. She also stated that she had brought up petitioner-Mr. R.S. as her own son. She contended that allegations had been made against her in pursuance to a well orchestrated conspiracy.
12. The respondent no.2-father D.M.P. could still not recollect the names of any of his family members except respondent no.3- Ms.U.D. He kept on repeating ad nauseam that he had travelled to all the countries of the world except Somalia.
13. Mr. Siddharth Luthra, submitted yesterday that by virtue of Section 3(5) of the Mental Healthcare Act, 2017 (hereinafter referred to as the ‗Act, 2017‘), the determination of a person‘s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court. We agree with this submission.
14. While Mr. Rahul Mehra, learned standing counsel for the State, on instructions of the DCP Mr. Joy N. Tirkey, contended that it would be impossible to proceed further with the investigation into allegations of illegal confinement of petitioner‘s mother and aunt if respondent no.3-Ms. U.D. continued to reside with respondent no.2-D.M.P., learned counsel for respondent no.3-Ms. U.D. stated that if she is directed to live separately from respondent no.2-D.M.P., her health as well as that of respondent no.2, shall deteriorate. Mr. Siddharth Luthra, learned senior counsel for respondent no.2father D.M.P. suggested that respondent no.3-Ms. U.D. be allowed to meet respondent no.2 for a few hours every day. Mr. Rahul Mehra, learned standing counsel for the State also prayed that respondent no.3-Ms. U.D. be restrained from travelling abroad. As the hearing was inconclusive yesterday, the matter was adjourned.
15. Today, learned counsel for the parties voluntarily state that they are agreeable to the following consensual order:- (a) The petitioner‘s mother-Mrs. S.D. and petitioner‘s aunt-Mrs. R.D. would continue to stay, as long as they want, at C-1/21, Vasant Vihar. Two lady nurses from Apollo Hospital employed at the expense of respondent no.2-father D.M.P. shall continue to look after them. In the event, the said nurses have to be replaced and/or are not available, the replacement shall be procured from the same hospital. (b) The petitioner‘s mother-Mrs. S.D. will be free to meet anyone she wants including the petitioner and his family members as well as the respondent no.2-D.M.P.
(c) Mr. Joy N. Tirkey, DCP, Crime Branch assures this Court that, after interrogating respondent no.3-Ms. U.D. and other relevant witnesses, he would conclude the investigation within four weeks.
(d) Mr. Siddharth Luthra, on instructions, undertakes that respondent no.2-father D.M.P. shall voluntarily undergo an assessment of his mental health by filing an appropriate application under Section 102(1)(a) read with Sections 3, 4 and 5 of the Act, 2017 before a Magistrate within a week. (e) Learned counsel for respondent no.3-Ms. U.D. states that Ms. U.D. shall voluntarily deposit her passport with the Registry of this Court forthwith. He further states that respondent no.3- Ms. U.D. has no objection if the DCP issues a Look Out Circular (LOC) against her to prevent her from travelling.
16. The statements, undertakings and assurances given by Mr.Siddharth Luthra, learned senior counsel, on instructions of respondent no.2-father D.M.P. as well as Mr. B. Sharvanth Shanker, Advocate for respondent no.3- Ms. U.D., are accepted by this Court and their clients are held bound by the same. Respondent no.3-Ms. U.D. is directed to deposit her passport for a period of four weeks with the Registry of this Court on or before 24th September, 2019.
17. Further the statement made by DCP Joy N.Tirkey with regard to completion of the investigation is accepted by this Court. He is directed to take steps in accordance with the law upon conclusion of his investigation/enquiry. In fact, the consensual understanding between the parties is accepted by this Court and the same shall be treated as binding directions of this Court.
18. However, there is no consensus between the parties as to whether respondent no.3-Ms. U.D. should be allowed to meet and/or stay with respondent no.2-D.M.P. The parties pray that the said issue be decided by this Court.
19. Keeping in view the serious allegations of theft, physical abuse and illegal confinement against respondent no.3-Ms. U.D. by Mrs. S.D.-petitioner‘s mother and the allegation by former employees and the police that respondent no.3-Ms. U.D. was using her proximity to respondent no.2-D.M.P. to control his entire house, staff and company as well as to get documents executed, this Court, erring on the side of caution, directs Ms. U.D. to live separately from respondent no.2-father till conclusion of investigation i.e. for a period of four weeks.
20. We are also of the prima facie view that an attempt was made to conceal the exact medical condition of respondent no.2father D.M.P. till we accidently discovered it in our meeting on 19th August, 2019. Even the learned senior counsel for respondent no.2-father D.M.P. was surprised by the extent of the medical problem of his client. Further, till we received the report of AIIMS, we were being constantly told that respondent no.2father D.M.P.‘s problem was minor, age related and easily treatable by medicines. Neither counsel for respondent no.3-Ms. U.D. nor respondent no.2‘s younger brother who interacted with us on 19th August, 2019 informed us that he was suffering from a serious ailment.
21. Till the conclusion of the investigation, respondent no.2father D.M.P. is directed to be taken care of by the wife of deceased brother of the petitioner i.e. Ms. K.R. as well as two male nurses to be employed by DCP Joy N.Tirkey. In the event of any emergency, the DCP shall be at liberty to allow respondent no.3-Ms. U.D. to meet respondent no.2-father D.M.P.
22. Lastly, keeping in view the Right to Confidentiality and Restriction on release of information in respect of mental illness enshrined under Sections 23 and 24 of the Act, 2017, this Court directs the Registry to redact the name of the parties from this order as well as the quotations therein, while uploading the judgment. This Court may clarify that it has mentioned the full name of the parties in the order as certain directions have to be implemented by judicial officers and the police and if their full names are not mentioned in the order there is a possibility of confusion creeping in.
23. The parties are given liberty to mention the matter in the event of any necessity/emergency.
24. With the aforesaid directions, present criminal writ petition and pending applications stand disposed of.
25. Order dasti under the signature of the Court Master.‖
8. Subsequent thereto, SD came to petition this Court by way of WP(C) No. 1271/2020 for the appointment of a guardian of DMP based on various allegations including him having been kept captive by his long time companion UD. The Court while considering the aforesaid petition by a detailed judgment dated 29 October 2021 put in place a detailed mechanism for the care of DMP and for the preservation of his financial assets. In terms of the aforesaid judgment a Guardianship Committee headed by a Supervising Guardian, Justice Rajiv Sahai Endlaw, a retired Judge of this Court was appointed. The directions which came to be drawn and issued by the Court in terms of the said judgment are reproduced hereinbelow: ―271. In the above legal and factual background, this Court holds that the present case is one which reveals exceptional circumstances for exercise of parens patriae jurisdiction as also jurisdiction under the RPWD-2016 and MHA-2017. Under Section 14(1) proviso of the RPWD-2016, total support would have to be provided considering that Mr.DMP is unable to take any decisions for his own welfare whatsoever. Under the MHA- 2017, nominated representative has to also be appointed for taking decisions for medical care and treatment of Mr. DMP.
272. Moreover, the nominated representative or the guardian need not always be a single individual. Especially in the present case, the movable and immovable assets and financial affairs of Mr. DMP are vast; it would be physically impossible for any particular individual to be able to exercise control and judgment, or to take proper decisions in respect of Mr. DMP‘s healthcare. Accordingly, this Court is of the opinion that a Guardianship Committee would deserve to be appointed for the purpose of taking care of Mr. DMP and his financial affairs. In the above circumstances, the following directions are issued: a) A Guardianship Committee of Mrs. SD, Mr. RS and Mr. US, i.e. the wife, son and brother, related by blood and marriage (as given in the order of precedence under both the MHA-2017 and RPWD-2016), is constituted for the purposes for acting both as a nominated representative committee under the MHA-2017 and for providing total support under the RPWD-2016. The said Committee shall take unanimous decisions in respect of all affairs of Mr. DMP including medical treatment, healthcare decisions qua daily living, financial affairs dealing with movable and immovable assets, decisions qua the shareholding of Mr. DMP etc. The said Guardianship Committee shall consult with Mr. DMP to the extent possible. The said Guardianship Committee shall also be entitled to operate the bank accounts and deal with the investments of Mr. DMP. However, all decisions of the Guardianship Committee have to be unanimous. b) If a unanimous decision is not possible on any aspect and there is disagreement among members of the Guardianship Committee, such aspects shall be referred to Justice Rajiv Sahai Endlaw (Retd.), who was already appointed as the interim guardian vide order of this Court dated 8th September, 2021, who shall now act as the `Supervising Guardian‘. On such aspects, where there is divergence or disagreement, the decisions of the Supervising Guardian, shall be final and binding on all parties. c) All banks, financial institutions, companies, hospitals, doctors, etc. shall be bound by and shall give effect to the directions issued in paragraphs (a) and (b) above. d) Insofar as medical treatment and daily living is concerned, Ms. UD and Mrs. KR can give their suggestions and recommendations to the Guardianship Committee. However, it would be for the Committee to take the final decision. e) Mr. DMP shall continue to reside in his official residence. Mrs. SD and any one female family member i.e., Mr. DMP‘s daughter-in-law, are entitled to and are accordingly, permitted to reside in the official residence of Mr. DMP, if they choose to. The residence of Mr. DMP, shall be an ‗open house‘ for free ingress and egress of all close family members including both his sons, daughters-in-law, grandchildren and their families, brothers and his family and any other close relatives, as may be permitted by the Committee. f) Ms. UD can continue to live in the official residence, if she so chooses, but shall not prevent any family member, as directed above, from visiting or residing in the said residence of Mr. DMP. g) It is also directed that the DCP (Crime Branch), Mr. Joy Tirkey, who had earlier conducted the investigation pursuant to orders of the Ld. Division Bench in the Habeas Corpus petition, shall pay periodic visits at least once a week, to ensure Mr. DMP is comfortable at the residence, in the company of his family members. Any family member who causes any breach of peace and tranquillity can be barred, by the Committee by unanimous decision from visiting the residence of Mr. DMP. If the Supervising Guardian receives any complaint from any family member or Ms. UD or Mrs. KR regarding any commotion or breach of peace, at the residence, he would also be empowered to pass orders barring entry of any individual into the official residence. h) The Guardianship Committee shall have access to all documents and records relating to the finances, properties, shareholding, investments, etc., of Mr. DMP to enable the Committee to take decisions, keeping in mind the will and preferences of Mr. DMP. To this end, access shall be provided by both Mr. T.R. Narayanan and Mr. Shrinath Banerjee– Secretaries of Mr. DMP, to the accounts and all records of Mr. DMP. i) The Medical Board constituted by this Court consisting of following three members: i. Dr. M.V. Padma, Professor & HOD, Neurology, Chief – Neuroscience Centre, AIIMS, New Delhi. Email: vasanthapadma123@gmail.com (981081916[7]); ii. Dr. Achal Srivastava, Professor Department of Neurology, AIIMS, New Delhi. Email: achalsrivastava@hotmail.com (9811178784); and iii. Dr. Nitish Naik, Professor, Department of Cardiology, AIIMS, New Delhi. Email: nitishnaik@yahoo.co.in (9810416170); would examine Mr. DMP every month at least once a month, which shall be facilitated by the Guardianship Committee. The chair of this Medical Board shall continue to be Dr. M.V. Padma. The monthly reports, after examination, shall be submitted to the Supervising Guardian. If any emergency medical decision is to be taken and all members of the Committee are not available, any one of the members of the Guardianship Committee would be entitled to take the decision of hospitalization, in consultation with the above doctor, which shall then be telephonically communicated to the other two members of the Committee. j) The Committee would also be empowered to delegate everyday chores in the household to a person whom the Committee trusts, for a specific purpose, but who shall be accountable to the Guardianship Committee. The decisions taken by the Guardianship Committee shall be continuously informed to the Supervising Guardian - Justice Rajiv Sahai Endlaw (Retd.), on a fortnightly basis. The above arrangement at this stage, shall continue at least, for a period of three years, which is also the time period contemplated under the RPWD (Delhi) Rules- 2018, for limited guardianship. A status report shall be submitted at the end of every six months, by the Supervising Guardian to the Court, to review the present arrangement of guardianship, if required. If there is any improvement of Mr. DMP‘s health condition, including his mental condition, modification of the above arrangement can be sought by moving an application in the present petition. k) There are various videos and photographs etc., filed by the parties and by the Local Commissioner. All this electronic data shall be preserved and saved, along with the electronic record of this petition with a #hash value so that it is not tampered with, in any manner and is available for future reference. The IT Department, High Court of Delhi shall take requisite steps in this regard.‖
9. Post the aforesaid judgment being rendered, SD is stated to have moved applications seeking further directions with regard to the preservation of the assets of DMP consequent to his passing away on 27 December 2021. It was alleged by SD that despite the directions of the Court, crucial bank statements and documents were being withheld from the scrutiny of the Supervising Guardian and that the Guardianship Committee had also not been allowed access to the various bank accounts and financial records of DMP. On due consideration of the various contentious issues that were raised, the Court by way of a detailed order ultimately proceeded to frame the following operative directions: ―18. In this view of the matter and the continuing animosity between the parties, to ensure that Mr. DMP‘s last rites are carried out in a dignified and peaceful manner, the following directions are issued in respect of the last rites of Mr. DMP:
(i) All the last rites, shradh ceremony and any other ceremonies which have to be conducted in accordance with the customs and traditions for Mr. DMP, shall be conducted by Mr. RS, being the eldest son of Mr. DMP, with the cooperation of all the family members concerned and in their presence. Further directions, if required, may be given by Justice Endlaw (Retd.), in this regard.
(ii) There shall be no impediment or obstacle created by anyone in any manner whatsoever in the entry and exit of the family members and grandchildren, near and dear ones and relatives of Mr. DMP. Family members, relatives, personal, professional and political acquaintances, employees and associates of Mr. DMP shall be permitted to attend and pay respects, in the ceremonies which are to conclude on 8th January 2022, in a dignified and graceful manner.
(iii) Mr. Joy Tirkey, DCP (Crime Branch), shall ensure that any third parties who have been engaged by any person/s, who are present at the Safdarjung house of Mr. DMP, shall not create any hindrance whatsoever in implementation of the above directions. Mr. Tirkey to also ensure that the last rites and all other ceremonies are conducted without any impediment, from anyone.
19. Insofar as the allegations relating to the medical treatment of Mr. DMP are concerned, considering the fact that Mr. DMP has passed away in Apollo Hospital where he was also being treated earlier, this Court is not inclined to go into the said allegations.
20. Insofar as the incidents of violence between the grandchildren and other family members are concerned, the Court has perused the photographs which have been placed on record which show an unfortunate situation where the young grandsons of Mr. DMP appear to have entered into a scuffle. Accordingly, the said allegations would be examined, if required, after a reply to this application, is filed by the Respondents.
21. In so far as the issue of assets, fixed deposits, bank accounts, immovable/movable assets, any investments, shares etc. are concerned, since Mr. DMP is no more, the Court has been informed that a probate petition being TEST. CAS. 1/2022 has been filed by Mrs. KR, who claims to be the executor of the Will stated to have been executed by Mr. DMP and whose children are claimed to be the beneficiaries of the Will. The same is stated to be pending before the Original Side of this Court.
22. Considering the fact that this Court had appointed the Guardianship Committee and Supervising Guardian vide its previous order dated 29th October, 2021, in order to safeguard the movable and immovable assets of Mr. DMP, considering his demise and the continuous disputes between the family members brought to the notice of this Court today, it is clear that the Guardianship Committee cannot effectively function. Moreover, since Mr. DMP has passed away, the members of the Guardianship Committee may possibly also have claims in the estate of Mr. DMP and would be conflicted in taking decisions. There is also a need to safeguard and secure the assets so that the same, which run into thousands of crores, are not frittered away or misused in any manner. In view of the same, the following directions are issued:
(i) In view of the fact that Mr. DMP is no more, the
Guardianship Committee shall stand disbanded and Justice Rajiv Sahai Endlaw (Retd.), shall act as the Sole Guardian for the estate and all assets of Mr. DMP henceforth. He shall exercise the same powers mutatis mutandis, as those of the Supervising Guardian and the Guardianship Committee, in terms of order dated 29th October, 2021. Mr. T.R. Narayanan and Mr. Shrinath Banerjee, Personal Assistants of Mr. DMP, and all parties, shall now proceed strictly in accordance with the instructions given by the Sole Guardian in respect of the assets of Mr. DMP.
(ii) A report shall be placed before this Court, by Justice
Endlaw (Retd.), within a period of two weeks, in respect of the following aspects: (a) Whether the various directions concerning Mr. DMP and his assets, passed by this Court have been complied with directions given by him? (b) The minutes of proceedings containing the directions issued by him from time to time shall be placed on record along with the report.
(c) Current status of the movable and immovable assets of Mr. DMP, including his bank accounts, fixed deposits, shares and any other investments.
(d) Any further documents/actions which may be required in order to safeguard the moveable and immovable assets of Mr. DMP.
(iii) Since the probate of the alleged Will of Mr. DMP has now been filed and there is a need to secure all the moveable and immoveable assets of Mr. DMP, the status quo order passed previously shall continue. No withdrawals/transfers shall be made from any of the bank accounts of Mr. DMP, including the fixed deposit accounts and other investments/holdings of Mr. DMP, held solely by him or in a joint account with any other person. However, the inward remittance into these accounts shall continue as before, including the interest accrued on the various deposits, income from investments or any other sources, dividends received from various companies, etc. Upon such remittances being made or received into these accounts, the concerned parties/banks shall give an intimation to the Sole Guardian about the same.
(iv) The status quo order which was earlier granted in respect of the immovable properties of Mr. DMP, on 4th June, 2021, shall continue. No party shall take any action to create any third party interest in the said properties/assets or diminish the same in any manner. The said order was passed in the following terms: ―6. There are two accounts of the DMP, having substantial amounts, in which Ms. Uma Devi is stated to be a joint account holder and a cosignatory. On a query from the Court as to since when Mrs. Uma Devi is a joint account holder Mr. Abhinav Rao, ld. counsel has fairly submitted to the Court that she has been a joint account holder since November 2019. The Court notes that by November 2019, the DMP had already been detected with `fronto- temporal dementia’, in writ proceedings before the Ld. Division Bench of this Court being W.P.(CRL) 2255/2019 R.S. v. State & Ors as noted in the judgment dated 20th September,
2019.
7. In this background, since the DMP’s assets (movable and immovable) are substantial and run into thousands of crores, without listing out the same, it is deemed appropriate to accept the voluntary statement made by Ms. Kanchana Rai and Ms. Uma Devi in reply to the application being CM 4396/2020 where it is stated as under: ―That, in view of the fact that the answering Respondent and the Respondent No.5 have voluntarily offered to maintain status-quo till the disposal of the present writ petition, the present Application seeking maintaining of status-quo of DMPs property has become infructuous.‖ Thus, it is directed that status quo shall be maintained in respect of all moveable and immoveable assets of the DMP by both Mrs. Uma Devi and Ms. Kanchana Rai/her family.
17. In so far as the DMP’s bank accounts are concerned, the current position is that he is suffering from dementia and is unable to operate his own bank accounts. From the submissions made, it appears that Ms. Uma Devi and the Secretary of the DMP are operating his accounts or spending therefrom. Accordingly, the status quo, as volunteered above, shall apply to all the bank accounts of the DMP. If any amounts are withdrawn, spent or transferred from the accounts of the DMP for living needs and other expenses, a statement of such amounts and expenses incurred every month along with the bank statements of the bank accounts of the DMP shall be filed, for the perusal of the Court in a sealed cover.‖ The above direction to maintain status quo shall now be binding upon all the parties, including Mr. US and his family who has been heard as an Intervenor, in this petition. They shall also not permit any third party to deal with the estate of Mr. DMP in any manner whatsoever, without prior permission of the Sole Guardian.
(v) Any payments which are to be made to any authorities including the tax authorities, other governmental bodies, or other expenditure including the residence expenditure, or the expenditure of Mrs. SD‘s residence, or approved expenditure by Justice Endlaw (Retd.), including for conduct of all final rites as per customs and traditions, shall be made only after the prior approval of the Sole Guardian.
(vi) All banks, financial institutions, companies and other authorities shall ensure strict compliance of today‘s directions. No amounts/assets shall be released to/transferred by any of the parties or any third party, without the prior approval of the Sole Guardian. Similarly, no account of Mr. DMP shall be permitted to be operated by any persons, without the prior approval of the Sole Guardian, which is to be obtained in respect of each such transaction.
(vii) The Sole guardian may issue directions to any person to ensure compliance of these directions.
(viii) This Court also notes that the remuneration of Justice
Endlaw (Retd.) had been fixed in terms of the order dated 8th September, 2021, confirmed by the order dated 29th October, 2021 in the following terms: ―274. Remuneration of the Supervising Guardian - Justice Rajiv Sahai Endlaw (Retd.) is fixed in terms of order dated 8th September, 2021 in the following terms: ―iii) The interim guardian shall be paid an honorarium of Rs.[3] lakhs per month exclusive of secretarial, travelling and other expenses which shall be borne from the DMP’s accounts. iv) The interim guardian may appoint a Manager to assist him in carrying out his functions and also fix a reasonable remuneration of the said Manager.‖‖ xxxx xxxx xxxx
24. Coming to the other specific prayers in the present application, this Court is of the prima facie opinion that the relief of partition sought through prayer (b) would not be maintainable in these proceedings. Insofar as prayer (a) is concerned, since the Guardianship Committee and the Supervising Guardian were already taking care of the estate of Mr. DMP under the orders passed by this Court, till the final report of Justice Endlaw (Retd.) is received, the above directions are issued in order to ensure that there is no third-party interest that is created in the immovable properties and there is no diminution of the assets of Mr. DMP.
25. It is clarified that the above directions are being issued in order to safeguard the assets of Mr. DMP and shall be subject to any directions which may be passed by the Court dealing with the testamentary case being TEST. CAS. 1/2022 or in any other proceedings concerning Mr. DMP‘s estate. Any further directions, if required shall be considered, post the receipt of the report of Justice Endlaw (Retd.) and post the filing of the replies to the present application by the Respondents.‖
10. The matter was again called before the learned Judge on 11 July
2022. Upon due consideration of the miscellaneous applications which had been moved, the Court closed the proceedings on the aforenoted writ petition by passing the following order: ― 3. The present application being CM APPL. 697/2022, had been filed alleging various violations of the directions issued by the ld. (then) Supervising Guardian and a reply had been directed to be filed by this Court vide order dated 6th January,
2022. However, today it is submitted by all the parties that the following proceedings have been filed and are pending between the parties:
(i) TEST CASE 1/2022 titled Kanchana Rai v. State of NCT of
(ii) CS(OS) 203/2022 titled Smt Satula Devi v. Rajeev Sharma & Ors.
(iii) CONT. CAS. 693/2022 titled Mr. Ranjit Sharma v.
(iv) LPA No. 209/2021 titled Smt Uma Devi v. Satula Devi &
(v) LPA No. 219/2021 titled Smt Kanchana Rai v. Satula Devi & Ors.
(vi) LPA No. 221/2021 titled Uma Devi v. Satula Devi & Ors.
(vii) LPA No. 223/2021 titled Smt Uma Devi v. Satula Devi &
(viii) LPA No. 224/2021 titled Smt Uma Devi v. Satula Devi &
(ix) LPA No. 429/2021 titled Uma Devi v. Satula Devi & Ors.
(x) LPA No. 430/2021 titled Kanchana Rai v. Satula Devi &
(xiii) LPA No. 52/2022 titled Kanchana Rai v. Satula Devi &
4. Since the present writ petition has already been disposed of and the application being CM APPL. 697/2022 which has been moved is in respect of allegations raised qua the directions issued by the (then) Supervising Guardian and qua orders of this Court, it is deemed appropriate to dispose of the present application with the direction that if any violations of orders passed by this Court or directions issued by the ld. (then) Supervising/ (now) Sole Guardian are alleged, the same may be agitated by the parties, seeking appropriate remedies in accordance with law. All the directions from the order dated 6th January, 2022 above, as also the directions issued by Justice (Retd.) Rajiv Sahai Endlaw from time to time shall continue and shall now be subject to further orders in any of the above proceedings.
5. In so far as CM APPL. 9891/2022 is concerned, the said application has been filed informing the Court that the Petitioner-Mrs. Satula Devi has, unfortunately, passed away on 12th June, 2022 and the present application seeks transposing of her two sons and some other legal heirs of the Petitioner, as Petitioners in the present petition. Since in this writ petition all the children of Mrs. Satula Devi are already Respondents before this Court, and the writ petition itself has been disposed of, this Court takes on record the fact that Mrs. Satula Devi has passed away. The application being CM APPL. 697/2022, which was pending in the present petition and in which notice was issued is also being disposed of as above. Thus, this Court is of the opinion that no further orders need to be passed transposing any of the parties as Petitioner(s) in the present case. Accordingly, CM APPL. 9891/2022 is disposed of. It is made clear that the contentions of all parties are left open.
6. At this stage, counsels for the parties have made some submissions regarding the continued supervision of Mr. DMP‘s affairs by the Sole Guardian.
7. Mr. Vikas Singh, ld. Sr. Counsel for the Petitioner, relies upon Section 41(4) of the Guardians and Wards Act, 1890 (hereinafter ―GWA‖) to argue that even upon the demise of the ward, till the report of the guardian is received by the Court, the guardian need not be discharged.
8. Mr. Sandeep Sethi, ld. Sr. Counsel for Mr. US, submits that the appointment made by the Court of the Sole Guardian was not under the GWA, therefore the same cannot apply in this situation. He further submits that Section 41(4) of the GWA no longer has any applicability, in view of the fact that the report has been submitted by the Sole Guardian.
9. Upon being queried by the Court, both counsels have submitted that some proceedings are still continuing before the Sole Guardian and there are certain orders that have been reserved by Justice Endlaw (Retd). This Court is clearly of the view that Mr. DMP and his wife Mrs. Satula Devi having passed away, all the legal heirs are embroiled in a succession battle over assets worth thousands of crores. Under such circumstances if the Sole Guardian is discharged or any of the above directions are modified, there is every likelihood that the assets may be frittered away by one faction or the other. Thus, all the above directions shall continue to operate and the Sole Guardian shall continue to function, until discharged by a competent Court. The terms and remuneration of the Sole Guardian shall be as are prevalent today. Accordingly, in the spirit of the order dated 6th January, 2022, and safeguarding all the movable and immovable assets of Mr. DMP which run into several thousand crores of rupees, the Sole Guardian shall continue to remain the Sole Guardian, until and unless his authority is either modified or cancelled by Court of competent jurisdiction in any of the proceedings mentioned above. In this regard, detailed directions which were issued vide order dated 6th January, 2022, regarding the Sole Guardian and safeguarding of Mr. DMP‘s assets - as extracted above- shall also continue until and unless they are modified by any Court of competent jurisdiction.
10. Both the applications are disposed of. The present writ petition need not be listed further. official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.‖
11. Undisputedly, the Sole Guardian who had been appointed by the Court and the orders passed in that respect continue to hold the field even today. However, and as was noted by the learned Judge while passing the order of 06 January 2022, it was clearly observed that the appointment of the Guardian would be without prejudice to the rights and contentions of parties and subject to any directions which may be passed by the appropriate court dealing with the instant testamentary case.
12. Appearing in support of the instant application Mr. Vikas Singh learned senior counsel, addressed the following submissions. According to Mr. Singh an interim Administrator in terms as envisaged under Section 247 of the Indian Succession Act, 1925[2] is mandated when there be a bona fide dispute regarding the validity of
2 Act the Will, the necessity for making such an arrangement and the fitness of the Administrator. Insofar as a bona fide dispute relating to the Will is concerned Mr. Singh laid stress on the fact that the DMP was suffering from mental issues right from 1997. It was pointed out that his health started deteriorating further post 2011 and, therefore, it was improbable that DMP would have been in a position to execute or draw up a Will with full mental capacity on 18 July 2011. It was the submission of Mr. Singh that the complete exclusion of late SD and her four grandsons, who were the natural legal heirs, without any justification is an aspect which casts a serious doubt upon the validity of the Will. Mr. Singh also pointed that that the genuineness of the alleged Will is presently subject matter of challenge in Civil Suit NO. 203/2022.
13. Doubting the validity of the alleged testamentary disposition stated to have been made by DMP, Mr. Singh pointed out that the probate petitioner gives no details regarding the date on which the alleged Will was discovered. It was further highlighted that the original probate petition itself came to be filed without the original Will or a certified copy thereof being annexed. Mr. Singh also referred to the apparent discrepancies between the so called original of the Will which was placed on the record when compared with a photocopy thereof which was also filed by the petitioner. These discrepancies have been duly highlighted in paragraphs 7 (e), (f), (g), (h) (i), (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t) and (u) of the application and are reproduced hereinbelow: DISCREPANCIES IN THE ALLEGED WILL e. That the probate petition suffers from non-disclosure of the date on which the alleged will was discovered by the Petitioner. It is submitted that entire probate petition is silent on the date on which the propounder gained knowledge of the alleged will. In fact, in a connected proceeding i.e., before the Ld. Sole Guardian, it was admitted by the counsel for the Petitioner that the date of knowledge of the alleged will is unknown to the propounder. The relevant proceedings took place on 27.12.2021, that is the date on which Testator died and there was huge protest from the lawyer of Ms. Uma Devi and the Petitioner that the last rites should be conducted by the sons of Petitioner and not the elder brother of the Applicant, based on the wish of Testator as per the alleged will. During the said proceedings, a question was asked to the Petitioner regarding the date on which the Petitioner gained knowledge of the alleged will and it was plainly denied by the Petitioner stating that they were unaware about the date on which the alleged will came to her knowledge. Further, it is trite law that where a propounder of a will is appointed as an executor under a will, the same will be considered a suspicious circumstance. f. That the Petitioner has filed the present probate petition without annexing the original will or the certified copy of the original will in contravention of section 276 of the Indian Succession Act, 1925 as well as a decision of the Hon‘ble High Court of Calcutta in Madhav Prasad Birla (D) AIR 2005 Cal 1 wherein it was held that an application seeking probate of a will could not be entertained without receiving the original copy of the will. That on objecting to the same by the Answering Respondent, a very frivolous excuse was given by the Petitioner that the original will was not submitted due to an apprehension that it might get misplaced, casting aspersions on the functioning of this Hon‘ble Court. However, vide Order dated 25.01.2022, this Hon‘ble Court directed the Petitioner to place the alleged original will on record. That the Petitioner‘s hesitance to place the alleged original will for perusal by this Hon‘ble Court as well as the contesting Respondents raises grave suspicion as to the authenticity of the alleged will. g. It is also pertinent to mention that before the Rajya Sabha it has been recently discovered that the signatures of the Testator varied from the year 2000 to 2021 and therefore all his signatures are being verified by the expert appointed by the Rajya Sabha. It has also been suggested by the Rajya Sabha that signature of his erstwhile secretary, who is also the attesting witness, Mr T. R. Narayanan is also being examined by the Rajya Sabha. True copy of the Letter dated 04.01.2022 of the Forensic Science Laboratory is annexed herewith and marked as DOCUMENT-4. h. That pursuant to the order dated 25.01.2022 of this Hon‘ble Court in Test Case no. 1 of 2022, the counsel of the answering respondent inspected the alleged original will and various discrepancies were found in it. A comparison of the two would establish that the alleged will is certified copy of another will, as there is no consistency between the alleged original will and the photocopy filed before this Court. It is submitted that the discrepancies in the copy of the alleged will annexed with the instant probate petition are as under: i. On page 6 of the alleged original will filed in sealed cover a number ‗T-13190‘ which is handwritten is on the right side whereas in the copy of the alleged will it is on the left side. j. There is a double cross mark on the photo of the Testator and below the photo there are three lines in the alleged copy of the will filed in the petition which are not there in the alleged original will. k. Signature of the Testator at the bottom of the alleged will filed before the court is not matching with the alleged original will. The letter ‗d‘ in Mahendra and Prasad are different in alleged original will from the signature shown in the alleged copy of the will filed before the Court. l. The first page of the alleged original will has a stamp which is not there in the alleged copy of the will filed before the court. m. At page 6-9, there is also a displacement in the thumb impression as well as signatures between the alleged original will filed and the will filed before the court. n. At page 7, in the alleged will filed before the court, SD/- is written above the signature of registrar whereas in the alleged original will the said signature is blank. Further, the signature at the bottom of the page is at a different place than in the copy of the will. The finger print at the bottom of the page is missing from the original will. o. Further again, at page 8, on comparing the alleged original will and the alleged will filed in the probate petition the signatures of the Testator do not match. p. Additionally, at page 14, the signatures of TR Narayan do not match. Also, there is a tick below the signature of TR Narayan in the alleged will filed in the probate petition which is not there in the alleged original will. q. There is a tick below the signature of Sudhir Bachan in the alleged will filed in the probate petition however the same is not there in the alleged original will. r. At pages 9, 11,13,15 there is no stamp in the alleged original will while the alleged copy of the will filed in the probate petition has a stamp. s. The alleged original copy of the will and the photograph of the Testator on the will are new and fresh which clearly indicates that the alleged will is not of 2011 and has been recently doctored. t. That there are numerous empty pages with stamp in the alleged original will and the same are not present in the photocopy filed before this Hon‘ble Court. u. That the alleged will has a vague and uncertain clause which states that the TDRs which are worth 3400 crores and RBI bonds would be transferred in the favour of the nominee, without disclosing the name of the nominee/beneficiary. That the Petitioner along with Ms. Uma Devi, in spite of the interim orders dated 26.02.2020 and 04.06.2021 in W.P. (c) No. 1271 of 2020 of maintaining status quo w.r.t. the assets of the Testator, have got money transferred from one account to another to get more TDRs issued without disclosing the nominee/beneficiary till date and have changed nominees and created FDRs wherein their own nominees have been added, when clearly Dr. Prasad was in no position to change the nominees. It is further relevant to note that as per the directions of the Hon‘ble Court in W.P. (C) 1271 of 2020, even for creating new FDRs the courts permission was required. True copy of orders dated 26.02.2020 in W.P. (c) No. 1271 of 2020 passed by this Hon‘ble Court is annexed herewith and marked as DOCUMENT – 5.” Mr. Singh also alluded to the discrepancies in the signature of the testator and the variations which came about during the year 2000 to 2021 and which aspect is presently being verified by an expert appointed by the Rajya Sabha.
14. Proceeding then to impress upon the Court the necessity and imperatives for the appointment of an Administrator, Mr. Singh addressed the following submissions. It was firstly asserted that the petitioner who is the named executor of the testament of DMP was one of the key conspirators who had been found to have suppressed the mental condition of DMP even when it continued to deteriorate over a period of time. It was argued by Mr. Singh that both the Division Bench in the habeas corpus petition as well as the learned Judge dealing with the writ petition for appointment of a Guardian of DMP, had been constrained to adversely comment upon the lack of care extended by the petitioner to DMP while his mental health continued to worsen.
15. It was further urged that the petitioner had with mala fide intent added herself as a joint account holder in the Syndicate Bank account of the late SD and without her knowledge or consent transferred INR 25 crores to her personal account on the very next day. Our attention was drawn to the various allegations made in FIR No. 27/2021 registered against the petitioner and which apart from the allegations aforenoted, also alludes to various other instances of the assets of DMP being siphoned away once he started losing his mental capacity.
16. It was also pointed out that even UD had got herself appointed as the joint account holder in the accounts of DMP in November 2019 and thus evidently at a time when DMP had become mentally incapacitated and was in no position to make an informed decision. It was pointed out that due to the complex situation prevailing with respect to the management of the assets of DMP in light of his failing mental condition, this Court had been constrained to transfer the investigation to the Crime Branch requiring it to file periodical status reports. It was pointed out that based on the investigation so carried out, the Crime Branch came to register FIR No. 279/2019 against UD herself.
17. It was further submitted by Mr. Singh that during the pendency of the proceedings before the Division Bench, and as would be evident from the orders dated 26 February 2020 and 4 June 2021, notwithstanding an order of status quo prevailing, a total of 69 nominations appear to have been made in favour of AC and 68 nominations in favour of the petitioner. It was further asserted that in 2021, a further 42 nominations were made in favour of AC and 4 in favour of AR. It was submitted that the aforesaid nominations clearly appear to be manipulated since the Court in terms of its order dated 20 September 2019, passed in the habeas corpus petition, had itself found that DMP had been diagnosed as suffering from dementia.
18. According to Mr. Singh funds amounting to almost Rs. 900 crores appear to have been siphoned away without the consent of the Sole Guardian, the Guardianship Committee and without appropriate permissions being sought from this Court. Reference in this respect was also made to various medical reports which according to Mr. Singh date back to 1990 and which would indicate that DMP had started showing mild symptoms of cognitive impairment and which ultimately came to be authoritatively diagnosed and recorded in a medical opinion of 1997.
19. Mr. Singh further submitted that the late SD was undisputedly the lawfully wedded wife of DMP and that union had come to be solemnized in 1960. It was submitted that DMP belonged to a family of humble means and was working as a school teacher at the time of his marriage to the late SD. Mr. Singh pointed out that in contrast to the above, the late SD came from an extremely affluent family and had at the time of marriage brought large amounts of gold which constituted the corpus enabling DMP to incorporate and establish his pharmaceutical business in the name of M/s Aristo Pharmaceuticals Pvt. Ltd. It was pointed out that it was for this reason that DMP had given 70% of the shareholding of his companies to the late SD.
20. It was also asserted and urged by Mr. Singh that UD initially came in contact of DMP while tutoring his children for the first time in 1974. It is alleged that soon thereafter, UD became the principal companion of DMP and started residing with the family. However, Mr. Singh pointed out that during his lifetime, DMP never conferred the status of a wife on UD. It was further alleged that UD exercising undue influence upon DMP conspired to get the entire shareholding of the late SD and her sons diluted and transferred. Mr. Singh has also referred to the various alleged fraudulent transfers made by KR from the account of the late SD without her knowledge and taking undue advantage of her lack of education.
21. Mr. Singh also referred to a General Power of Attorney[3] which is stated to have been executed by DMP in favour of KR in January 2020, evidently at a time when he was in no mental condition to make an independent decision and on the basis of which a lease deed came to be executed in clear violation of the order of status quo that had been passed on 04 June 2021 and held the field. It was also the submission of Mr. Singh that the Sole Guardian appointed by the 3 GPA Court is undoubtedly a respected and renowned retired Judge of this Court and it would thus be in the fitness of things that he be appointed as an Administrator pendente lite.
22. Insofar as the legal position and the circumstances where appointment of an interim Administrator may be warranted, Mr. Singh drew our attention to the following decisions and the principles enunciated therein. Drawing our attention to the judgment rendered by a learned Judge of the Bombay High Court in Shernaz Faroukh Lawyer vs Manek Dara[4], Mr. Singh sought to rely upon the following passages as appearing in the report:
“61. This Court in case of Pandurang Shyamrao Laud (supra) has held that all allegations pertaining to the execution of Will and counter-allegations will have to be gone into at the hearing of the testamentary suit and any finding and/or observation of the Court at the stage of considering application for appointment of Court Receiver or administrator by the parties in respect of their contentions at the hearing. It is held that before granting administration pendente lite, the Court has to be satisfied in the first place that there is a bona fide suit pending touching the validity of the Will of the deceased. It is held that discretion to appoint an administrator has to be exercised judicially and not arbitrarily. Court has to be satisfied as to the necessity of such an administration and as to the fitness of the proposed administration and where it is just and proper under the circumstances of the case to appoint a administrator before subjecting the estate to the cost of such administration. Such an appointment cannot be claimed as a right merely because the proceedings are contested, but whenever there is bona fide dispute and a case of necessity has been made out, the Court in its discretion generally makes the grant. 62. This Court has held that if an executor before he proves the Will is unable to do almost all acts which are incidental to his office except those relating to suits in connection with the estate and when he has filed his petition for probate and the petition is turned into a suit and when suit is pending, there is no one
4 2015 (2) Mh. L.J. 917 legally entitled to receive or hold the assets or give valid discharges. This Court has held in the said Judgment that under section 213 of the Indian Succession Act, no right as executor can be established in any Court of justice without inter alia a grant of probate. In the said Judgment, this Court has considered a situation that representation of the estate of the deceased was in contest and without saying anything with regard to the merits of the allegations and counter-allegations made in the suit, there was no doubt that a bona fide litigation is pending between the parties. The defendants had filed caveats and had made affidavit in support thereof with a result the petition had been turned into testamentary suit. There were allegations of fraudulent conspiracy against the parties and of exercise of undue influence, coercion and that the Will was void and of no effect. This Court considered that in that matter where the estate was of considerable value. Various suits were pending in respect of the estate of the deceased. Various interests, rents, dividends were recovered and were to be recovered. This Court held that since the appointment of executor was questioned and their title was in dispute because the Will itself was challenged on various grounds, administration pendente lite was granted.
63. High Court of Travancore-Cochin in case of Thayammal (supra) has held that insofar as allegation made by the parties whether Will was a genuine document or not, such question can be properly decided only after the parties have adduced all their evidence and after a due consideration of all such evidence in the light of all the attendant circumstances and probabilities. It is held that the possession of the executor cannot be said to be lawful possession unless and until it is established that the Will propounded by the executor is not genuine and the rights of the parties are as provided in the earlier Will and that he had obtained possession as a matter of right in peaceful manner. It is held that when the Court is satisfied that neither of the contesting parties can be said to be in lawful and undisputed possession of the property and that there is a ‗bona fide‘ dispute as to the right to the present possession of the property, it has to be taken that a case of necessity has been made out for the exercise of the Court's discretion in favour of the appointment of a receiver or administrator. The Tranvancore-Cochin High Court appointed a receiver and issued various directions so as to safeguard the estate of the deceased.
64. This Court in case of Smt. Prachi Prakash Pandit v. Sou. Pushpa Sharad Ranade, in Appeal From Order No. 854 and 903 of 2004, has held that it is only where a bona fide dispute and the case of necessity is made out that the Court in its discretion could grant appointment of receiver. Unless the Court is of the view that the property is being wasted or that the estate of the deceased is being depleted and this extreme step is the only appropriate means to protect the property, administrator would be normally not appointed. In that matter the trial Court had observed that the property was not being wasted or damaged and there was no danger to the same and thus there was no need to appoint the Court Receiver. Considering the facts of that case, this Court has held that no purpose would be served by appointing Court Receiver and granted injunction in respect of the property of the estate of the deceased.
65. The question that arises for consideration of this Court in this notice of motion thus is whether the bona fide litigation is pending between the parties relating to the estate of the said deceased, right to represent the estate of the deceased by both the parties propounding different Will and Testament of the deceased is in issue and whether a case is made out for grant of administration pendente lite.
66. This Court in case of Pandurang Shamrao Laud (supra) has held that the authority of the executor who was alleged to have been appointed by the said deceased was questioned by the defendant by filing caveat and affidavit in support. It is held that there was a bona fide dispute between the parties.‖
23. Mr. Singh also cited for our consideration the judgment of the Bombay High Court in Pandurang Shamrao Laud & Ors. vs Dwarkadas Kalliandas & Ors.[5] where the following pertinent observations were made: ―3. In other words, the position of an administrator pendente lite is similar to that of a receiver, with this distinction that the administrator pendente lite represents the estate of the deceased for all purposes except distribution. Before granting administration pendente lite the Court has to be satisfied in the first place that there is a bona fide suit pending, touching the validity of the will of the deceased. In England proceedings on a caveat do not constitute an action, but here we are governed by Rule 632 of the High Court Rules which provides that upon the affidavit in support of the caveat being filed, the petitioner for probate shall be called upon by notice to take out a summons, and the proceedings shall be turned into a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. The caveat having been filed in this case and also an affidavit in support thereof, there can be no doubt that there is a Us pendens in this Court. Secondly, the Court, before exercising its jurisdiction to grant administration pendente lite, has also to be satisfied whether there is a necessity for such a grant. In Rendall v. Rendall (1841) 1 Hare 152 it was held by the Vice Chancellor that where no probate or administration had been granted, a receiver was appointed as a matter of course pending a bona fide litigation in the Ecclessiastial Courts to determine the right to probate or administration unless a special case for not doing so had been made out. In Bellew v. Bellew (1865) 34 L.J.P.M. & A. 125, s. c. 4 Sw. & Tr. 58 Sir J.P. Wilde intimated that he would not in future follow the established practice of requiring a case of necessity before making a grant of administration pendente lite, but would make it whenever the Chancery Court would have appointed a receiver, and that he would in future appoint an administrator pendente lite where a bona fide suit was pending irrespective of the property of the deceased being in any particular danger. We are, however, governed by Section 247 of the Indian Succession Act, and the appointment is purely discretionary, as the word "may" in the section clearly indicates, but that discretion has to be exercised judicially and not arbitrarily. In my opinion the Court has to be satisfied as to the necessity of such an administration and as to the fitness of the proposed administration, and it must also be satisfied that it is just and proper under the circumstances of the case to appoint an administrator before subjecting the estate to the cost of such administration. The Court has, apart from the Indian Succession Act, general jurisdiction to appoint a receiver in any case in which it may appear just and convenient to do so. Such an appointment cannot be claimed as of right merely because the proceedings are contested, but whenever there is a bona fide dispute and a case of necessity has been made out, the Court in its discretion generally makes the grant, Counsel for the plaintiffs relied on a Calcutta decision in Jogendra Lal Chowdhury v. Atindra Lal Chowdhury (1909) 13 C.L.J. 34. In that case the District Judge appointed an administrator pendente lite, but his order was set aside by the High Court of Calcutta. According to the facts of that case the caveator, who was the grandson of the testator, had raised no objection in the probate proceedings to the appointment of the appellant who was the son of the testator as an executor, nor did he raise any objection to the son acting in his capacity as executor, nor did he for more than one year between the death of the testator and the application for probate take any objection to the estate of the deceased remaining in the hands of the executor, nor did he object for four months even after the application for probate had been made. Various charges were made against the executor.‖
24. Our attention was also invited to a judgment rendered by the Madras High Court in T. Krishnaswamy Chetty vs C. Thangavelu Chetty & Ors.[6] where the following principles were enunciated:
“13. The principles which, guide English Courts in regard to cases in which the appointment is made to preserve property can be culled out from the standard English text books and the case law on the subject as follows : "the appointment is made to preserve property pending litigation to decide the rights of the parties, or to prevent a scramble among these entitled, as where a receiver is appointed pending a grant of probate or administration, or to preserve property of persons under disability, or where there is danger of the property being damaged or dissipated by these with the legal title, such as executors or trustees, or tenants for life, or by persons with a partial interest, such as partners, or by the persons in control, as where directors of a company with equal powers are at variance." 14. In all these cases, it is necessary to allege and prove some peril to the property; the appointment then rests on the sound discretion of the Court. "In exercising its discretion the Court proceeds with caution, and is governed by a view of all the circumstances. No positive or unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were 'in medio', in the enjoyment of no one, it is the common interest of all parties that the Court should prevent a scramble, and a receiver will readily be appointed: as, for instance, over
the property of a deceased person pending a litigation as to the right to probate or administration. But where the object of the plaintiff is to assert a right to property of which the defendant is in enjoyment, the case presents more difficulty; The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. (See -- 'Marshall v. Charteris', 1920-1 Ch 520 (I)). Where the evidence on which the Court is to act is very clear in favour of the plaintiff, then the risk of eventual injury to the defendant is very small, and the Court does not hesitate to interfere. Where there is more of doubt, there is, of course, more of difficulty. The question is one of degree, as to which, therefore, it is impossible to lay down any precise or unvarying rule. (-- 'Owen v. Roman', (1853) 4 HLC 997 at p. 1032 (J), per Lord Cranworth,) If the Court is satisfied upon the materials it has before it that the party who makes the application has established a good prima facie title, and that the property the subject-matter of the proceedings will be in danger if left the trial in the possession or under the control (-- 'Cummins v. Perkins', (1899) 1 Ch 16 (K); -- 'Leney & Sons, Ltd. v. Callingham', (1908) 1 KB 79 (L) of the party against whom the receiver is asked for (-- 'Evans v. Coventry', (1854) 5 Do G M & G 911 at p. 918 (M)) or, at least, that there is reason to apprehend that the party who makes the application will be in a worse situation if the appointment of a receier be delayed (-- 'Aberdeen v. Chitty', (1838) 3 Y & C 379 at p. 382 (N); -- 'Thomas v. Davies, (1847) 11 Beav 29 (O) ), the appointment of a receiver is almost a matter of course (See -- "Middleton v. Dodswell', (1800) 13 Ves Jun 260 (P); -- 'Old-field v. Cobbett', (1835) 4 LJ Ch 271 (Q); --'Heal and Personal Advance Co. v. Macarthy, (1879) 27 WR 706 (R)). If there is no danger to the property, and no fact is in evidence to show the necessity or expediency of appointing a receiver, a receiver will not be appointed, unless there be some other urgent reason for making the appointment (See -- 'Whitworth v. Whyddon', (1850) 2 Mac & G 52 (S); -- 'Wright v. Vernon', (1855) 3 Drew 112 (T); -- 'Micklethwait v. Micklethwait', (1S57) 1 De G & J 504 (U)) "The duty of the Court upon a motion for a receiver is merely to protect the property for the benefit of the person or persons to whom the Court, when it has all the materials necessary for a determination, shall think it properly belongs (-- 'Blakeney v. Dufaur', (1851)
15 Beav 40 (V)). On a motion for a receiver the Court will not prejudice the action (-- 'Huguenin v. Baseley', (1806) 13 Ves Jun 105 at p. 107 (W)), or say what view it will take at: the trial (--'Fripp v. Chard. Rly. Co., (1853) 11 Hare 241 at p. 264 (X); -- 'Skinners' Co. v. Irish Society', (1836) 1 My & Cr 162 at p. 164 (Y)). Indeed, the Court will not appoint a receiver at the instance of a person whose right is disputed, where the effect of the order would be to establish the right, even if the Court be satisfied that the person against whom the demand is made is fencing off the claim (-- 'Greville v. Fleming", (1845; 2 Jo & Lat 335 (Z); (1920) 1 Ch 520 (1)). Nor will the appointment be made where it might affect legal rights; a receiver will not, for instance, be appointed merely to prevent an executor exercising his right of retainer (-- 'Re. Wells Molony v. Brooke', (1890)
45 Ch D 569 (Z[1]))" The Court, on the application for a receiver, always looks to the conduct of the party who makes the application, and will usually refuse to interfere unless his conduct has been free from blame (See -- 'Baxter v. West', (1858) 28 LJ Ch 169 (Z[2]); -- 'Cf. Wood. Hitchings', (1840) 2 Beav 289 at p. 297 (Z[3])). Parties who have acquiesced in property being enjoyed against their own alleged rights cannot except in special circumstances come to the Court for a receiver (-- 'Gray v. Chaplin', (1826) 2. Russ 126 at p. 147 (Z[4]); (1836) 1 My & Cr 162 (Y)) (Kerr on Receivers 12th edition pp. 5 to 7)".‖
25. Mr. Singh also submitted that a Will that purports to exclude natural heirs and close family members is to be viewed with suspicion and which principle has been duly reiterated by the Supreme Court in Kavita Kanwar vs Pamela Mehta & Ors[7]. Mr. Singh drew our attention to the following observations as appearing in that decision:
―29.2. In the given set-up, a basic question immediately crops up as to what could be the reason for the testatrix being desirous of providing unequal distribution of her assets by giving major share to the appellant in preference to her other two children. The appellant has suggested that the parents had special affection towards her. Even if this suggestion is taken on its face value, it is difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same mother. Even if the parents had special liking and affection towards the appellant, as could be argued with reference to the gift made by the father in her favour of the ground floor of the property in question, it would be too far stretched and unnatural to assume that by the reason of such special affection towards appellant, the mother drifted far away from the other children, including the widowed daughter who was residing on the upper floor of the same house and who was taking her care. In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special love and affection towards one, maybe blue-eyed, child would also result in a person leaving the serving and needy child in lurch. As noticed, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance. The appellant has failed to assign even a wee bit reason for which the testatrix would have thought it proper to leave her widowed daughter in the heap of uncertainty as emanating from the Will in question. Equally, the suggestion about want of thickness of relations between the testatrix and her son (respondent No.2) is not supported by the evidence on record. The facts about the testatrix sending good wishes on birthday to her son and joining family functions with him, even if not establishing a very great bond between the mother and her son, they at least belie the suggestion about any strain in their relations. Be that as it may, even if the matter relating to the son of testatrix is not expanded further, it remains inexplicable as to why the testatrix would not have been interested in making adequate and concrete provision for the purpose of her widowed daughter (respondent No.1).‖
26. Reference in this regard was also made to another decision of the Supreme Court in Jaswant Kaur v. Amrit Kaur & Ors[8]. where while dealing with the aforesaid aspect, the Supreme Court observed as follows: ―10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions:--
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has.been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coer- cion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execu- tion' of the will may raise a doubt as to whether the testa- tor was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasona- ble doubts in the matter. xxxx xxxx xxxx
21. The will is unnatural and unfair in more than one re- spect. At the time that the will is alleged to have been made, the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter-in-law Joginder Kaur, being the widow of the testator's predeceased son Gurbachan Singh who was also born of Dalip Kaur. Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur. The will contains not even a fleeting reference either to the testator's daughter or the widowed daughter-in-law or to the grand- daughter Palvinder Kaur. It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them. If that be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who also, it is common ground, has been married happily.‖
27. Mr. Singh further argued that mere registration of a Will would not be sufficient to dispel suspicious circumstances. It was his submission that bearing in mind the startling facts which came to be noticed both by the Division Bench in the habeas corpus petition as well as the learned Judge who was considering the petition for appointment of a Guardian over the affairs of DMP, a case has been clearly made out for this Court appointing an administrator pendente lite by invoking its powers conferred by Section 247 of the Act.
28. Appearing for the petitioner KR, Mr. Sethi firstly urged that the application is clearly not maintainable bearing in mind the statutory structure of the Act and the Court, in any case, not being legally justified in invoking its powers conferred by Section 247 of the Act in the absence of an order removing the named executor having been made. Elaborating upon the aforesaid submission Mr. Sethi firstly drew our attention to Section 2(a) of the Act which defines the word ‗administrator‘ in the following terms: ―2. Definitions. – In this Act, unless there is anything repugnant in the subject or context – (a) ―administrator‖ means a person appointed by competent authority to administer the estate of a deceased person when there is no executor;‖
29. Mr. Sethi laid emphasis on the aforesaid provision and commended us to read that provision as contemplating the appointment of an Administrator only ―….when there is no executor…‖. The suggestion was that the Act contemplates the appointment of an Administrator only where no executor has been named. Our attention was also invited to Section 222 of the Act which prescribes that probate shall only be granted to an executor appointed under the Will and thus reinforcing the submission of the petitioner that as long as an executor exists, no Administrator can be appointed. It was further submitted that as long as the executor is not removed with the Court invoking its power conferred by Section 301, the question of appointment of an Administrator in the interim would not arise at all. Since the aforesaid submission proceeded in the content of Sections 247 and 301 of the Act, those provisions are extracted hereinbelow: ―247. Administration pendente lite.—Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every suet. administrator shall be subject to the immediate control of the Court and shall act under its direction.
301. Removal of executor or administrator and provision for successor.—The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any' such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.‖
30. Mr. Sethi also sought to draw sustenance in support of the aforesaid submission from Section 211 of the Act laying stress on the statutory recognition of an executor being the legal representative of the deceased for all purposes and for all property ultimately coming to vest in the executor. Insofar as the power of a Court to appoint an Administrator pendente lite was concerned, reliance was also placed on the judgment of the Bombay High Court in Subhada Mithilsh v. Prabhakar[9] and to paragraph 39 of the report, which is extracted hereinbelow: “39. At this stage, it may also be stated that respondent NO. 32 herein, has also filed Application at Exh. 37 in M.A. No. 21 of 2008 for her appointment as Administrator pendente lite under section 247 of the Indian Succession Act, 1925. It was filed again on the same allegations as discussed above. Her application was also considered by the trial Court at length and thereafter by detailed order, the said application also came to be rejected on 11-10-2017, categorically observing in paragraph No. 13 that, ―unless and until at the first instance, Executor is removed by the competent Court under the law under section 301 of the Act, the question of appointing Administrator pendente lite would not arise. However, in the present case, as application for removal of the Executor is already dismissed by this Court in Miscellaneous Petition (L) No. 98 of 2015 by order dated 17th February, 206, such prayer for appointment of respondent NO. 32 as Administrator pendente lite cannot be considered‖.
31. Mr. Sethi also drew our attention to the decision handed down by the Karnataka High Court in F.C.S. Amalnathan v. J.S. Victor Basco10 and where the following principles were laid down: “6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.
7. Section 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not 9 2018 (2) Mh.LJ. 211 renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executorship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannot assert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301. Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.‖
32. Proceeding further, it was the submission of Mr. Sethi that undisputedly the disposition was made by DMP by virtue of a Will dated 18 July 2011 which stood duly registered in the office of the Sub-Registrar. It was his submission that there is a general presumption that stands attached to a testamentary document once it comes to be registered, and which as a consequence of registration, is liable to be prima facie viewed as being valid in law. It was further submitted that the very right of making a testamentary disposition includes the right to overcome the natural line of succession. In this context, Mr. Sethi relied on the decision of the Supreme Court in Rabindra Nath Mukeherjee vs Panchana Banerjee (Dead) by Lrs & ors.11 “4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.‖ as well as Prem Singh vs. Birbal & Ors.12: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.‖
33. Mr. Sethi also submitted that the allegations of DMP not being in a fit mental condition to make the testamentary disposition are concocted. Mr. Sethi drew our attention to the fact that DMP was first elected to the Lok Sabha in 1980 and continued to be a member of the Rajya Sabha for continuous terms commencing from 1986. He also drew our attention to the special portfolios which were held by DMP right from 2006. It was submitted that the allegations of mental incapacity are thus clearly liable to be denounced.
34. It was then submitted that since the Will was executed in Delhi, their existed no statutory pre-condition for a probate being obtained. This submission was addressed in the backdrop of NCT of Delhi not being one of the Presidency Towns as recognised and thus being freed from the rigors of Section 211 of the Act. In support of the aforesaid proposition Mr. Sethi placed reliance upon the judgment rendered by the Supreme Court in Kanta Yadav v. Om Prakash Yadav13 where the following pertinent observations came to be made: “11. The statutory provisions are clear that the Act is applicable to wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay — [clause (a) of Section 57 of the Ac]. Secondly, it is applicable to all wills and codicils made outside those territories and limits so far as relates to immovable property within the territories aforementioned, clause (b) of Section 57. Clause (c) of Section 57 of the Act relates to the wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which provisions are not applied by clauses (a) and (b). However, sub-section (2) of Section 213 of the Act applies only to wills made by Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in clauses (a) or (b) of Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act.
12. In view thereof, the wills and codicils in respect of the persons who are subject to the Lieutenant Governor of Bengal or who are within the local limits of ordinary original civil jurisdiction of the High Court of Madras or Bombay and in respect of the immovable properties situated in the above three areas. Such is the view taken in the number of judgments referred to above in the States of Punjab and Haryana as well as in Delhi as also by this Court in Clarence Pais [Clarence
Pais v. Union of India, (2001) 4 SCC 325].‖
35. It was then submitted that Courts have consistently held that the last will and testament of the deceased must be accorded due respect and thus the wish of DMP for KR to act as the executor should be affirmed and, in any case, would not warrant any modification. While the aforesaid proposition is well-settled, we deem it apposite to extract the following passages from the judgement of the Bombay High Court in Abha Dasatane vs Prabhakar14, a decision which was cited for our consideration in this respect:- “34. The use of the word ‗may‘ indicates that the High Court's power is clearly discretionary. It is not every application that must, on its being made, be granted. As a general rule, the Court will respect a person's appointment as an executor for it shows that the testator reposed in that person a special confidence.19 The Court must give full weight to that expression of confidence. In the present case, that ‗expression of confidence‘ is seen not once, but twice: it is to be found in the previous will, too, which the Dastane Family seeks to revive by dislodging the present Will. Unless gross misconduct, serious mismanagement, misuse or misapplication of the estate are shown, the Court will not readily remove an executor who has appointed probate, nor appoint a Receiver of the estate in his hands.20 The principles that would apply to a case for appointment of a Receiver must apply a fortiori to an application for removal. There must be clear evidence that the Executor's continuance qua executor is detrimental or injurious to the estate and will frustrate the Will, with the administration of which he is charged in law and by the testamentary writing. Minor lapses, errors of judgment or less than perfect handling of matters is not sufficient reason to substitute the testator's expression of confidence. A proper case must be made out.21 The present application may be styled as one under Section 301, but that is surely an over simplification. The tenor of the allegations fall more properly for devastation to the estate within Section 368 and Chapter XIII of the Succession Act. Even in matters of devastavit the law is well settled, and the cardinal principles that govern are, first, that Courts are extremely liberal in making every possible allowance and will be cautious not to hold executors and administrators liable upon slight grounds, because that would deter persons from undertaking these offices or discharging the confidence reposed in them; and second, that care must be taken to guard against an abuse of their trust.‖
36. It was submitted that the properties of the testator were admittedly self-acquired and, therefore, liable to devolve as per his wishes as embodied in the Will. It was contended that the bequest was made in favour of the grand-children of the testator and whose mother, KR was appointed as the sole executor. Mr. Sethi also underlined the fact that the Will stood duly registered and had been attested by two independent witnesses who had also filed their affidavits of proof in support of the due execution and making of the Will in question.
37. Proceeding then to deal with the merits of the allegations leveled, Mr. Sethi submitted that the petitioner, who is the named executor, was the daughter-in-law of DMP and whose husband was the predeceased son of the testator. It was pointed out that upon the demise of her husband, KR had continued to take care of DMP and had also attended to all requirements of her children who were minors at a time when their father passed away on 21 May 2011. Reliance was also placed on the orders passed by the Division Bench in terms of which KR was appointed as the principal caregiver and which function she diligently performed right from September, 2019.
38. It was his submission that KR along with UD had jointly been taking care of the testator for decades prior to his ultimate demise on 27 December 2021. It was then submitted that no case of necessity stands established since, and as would be evident from a perusal of Schedules (a) to (e) of properties attached to the main probate petition, it would be evident that the estate of the testator has been prudently managed and preserved.
39. It was submitted that the Aristo Group of Companies15 have shown exceptional growth having achieved an average growth of 30% and the turnover of profits having increased by more than 400% since 15 AGC FY 2010-11. These aspects were sought to be highlighted in terms of a chart which formed part of an affidavit filed by the petitioner and is reproduced hereinbelow: ARISTO PHARMACEUTICALS PRIVATE LIMITED Financial Year Turnover Other income Total Revenue Net Profit (Rs. In Crores) (Rs. In Crores) (Rs. In Crores) Rs. In Crores) 2010-11 1062.98 67.01 1129.99 258.25 2011-12 1143.10 71.87 1214.97 269.72 2012-13 1284.61 83.02 1367.63 293.02 2013-14 1420.06 92.25 1512.31 323.02 2014-15 1420.06 97.73 1730.76 409.23 2015-16 1633.03 107.74 2000.94 446.99 2016-17 1893.20 107.80 2391.99 533.30 2017-18 2284.19 119.47 2462.45 602.29 2018-19 2342.98 127.49 2727.75 612.44 2019-20 2600.26 135.58 3160.98 723.50 2020-21 3025.40 150.09 3166.82 901.22 2021-22 3016.73 166.78 4265.46 1244.18
40. It was further submitted that all companies forming part of AGC are being professionally managed by a Board of Directors and that the present Managing Director is the real brother of the testator who has held that position for the past more than 40 years. Mr. Sethi also doubted the competence of an Administrator appointed by the Court being in a position to professionally manage business entities. In fact, according to Mr. Sethi, alteration of the status quo would adversely impact the functioning of the companies itself and thus resulting in a possible diminution in the value of the estate. Reliance in this respect was placed on the following observations as rendered by the Calcutta High Court in Rajendera Singh Lodha v. Ajay Kumar Newar16 ―37.In another decision reported in AIR 1995 Kant 258 (F. C. S. Amalnathan & Ors. vs. J. S. Victor Basco) it appears that ordinarily the desire of the testatrix as to who should administer her Estate and execute her Will, will have to be respected and an Executor appointed by the testator should not be removed unless there is clear evidence that his continuance as an Executor would be detrimental to the Estates of the deceased and frustrate the Will of the deceased. Some minor lapses here and there cannot be a ground to remove the named Executor. Bearing in mind this principle it has to be seen whether the respondents have established sufficient grounds to remove the petitioners from Executorship.
78. The Hon'ble First Court also held that admittedly no mismanagement by Lodha has surfaced but there is always possibility of jeopardy arising in future (see page 59 of the impugned judgment). Mr. Mitra submitted on this point that the finding militates against appointment of an Administrator. The person in whom a testator reposed confidence and who is not shown to have betrayed confidence should not be replaced. The performance of manufacturing companies have substantially improved and value of shares were increased.
263. In the decision reported in AIR 1933 Bom 342 (supra) at page 346 the Court held that their appointment itself shows that the testator had confidence in them, and the Court gives effect to the expression of the confidence reposed in parties by one who knew them best. It has also been held that the Court refuses to appoint an Administrator Pendente Lite where there is a person named in the Will as executor whose appointment is not questioned and who can discharge the functions of an administrator pendente lite.‖
41. Insofar as various criminal actions initiated by the respondents are concerned, Mr. Sethi pointed out that the same came to be initiated only to harass KR and that in most of those cases on due investigation 16 (2007) 2 ILR (Cal) 377 either cancellation reports have been submitted or matters closed. It was further argued that mere exclusion of legal heirs cannot invariably lead to a court viewing a registered testamentary disposition with suspicion. According to Mr. Sethi the very purpose of the right of a testator to execute a Will is to alter the normal mode of succession. In view of the above, he submitted that the aforesaid circumstance would also not justify the appointment of an Administrator.
42. In support of the general proposition of the right of a testator to alter the mode of succession, Mr. Sethi laid stress on the following observations as appearing in the judgment of the Supreme Court in Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande17
“8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664 : AIR 1995 SC 1852] it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291 : AIR 1972 SC 2492] it has been held that if the propounder succeeds in removing the suspicious circumstance, the court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut
off wholly or in part the near relations. In Rabindra Nath Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed.‖
43. Reliance was also placed on the decision of Ved Mitra Verma v. Dharam Deo Verma18
“8. The exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the testator that has to prevail.‖
44. Mr. Sethi also questioned the competence of RS and RA as well as the Sole Guardian to be appointed as the Administrator pendente lite on the following grounds. It was submitted that insofar as RS and RA are concerned, they are the estranged sons who had been disowned by the testator during his lifetime. According to Mr. Sethi, their appointment as Administrators would be in clear violation of the intent of the testator as embodied in his Will and in terms of which and for reasons set forth therein, DMP chose to specifically exclude them from either inheriting any of his movable and immovable properties or staking a claim on his estate.
45. It was further pointed out that RS and RA had also consciously been excluded by the testator from the management of AGC and that they are neither shareholders nor Directors in any of the companies forming part of the group. It was also pointed out that RS was in fact removed as a Director in 2011 and was assigned no role in the family business thereafter. RA, Mr. Sethi pointed out, was removed as a Director in 2018 and was thus not included or accorded any role in the companies.
46. Insofar as the prayer made in the Application for the Sole Guardian being appointed as an Administrator by the Court is concerned, it was pointed out that his appointment itself was subject matter of challenge in LPA Nos. 430/2021, LPA 52/2022 and LPA 464/2022. Our attention was also drawn to the following orders passed in LPA 52 of 2022 and other connected matters where the following observations came to be made: LPA 52/2022 At the outset, Mr. Vikas Singh, learned Senior Counsel appearing on behalf of Mr. Ranjit Sharma/ respondent no. 2 herein, states that, they shall not place reliance on the impugned judgment dated 29.10.2021, assailed in the present proceedings, in Test Case No. 1/ 2022, pending adjudication before the learned Single Judge, and shall argue the latter proceedings on its own merits. LPA 430/2021 judgment dated 06.01.2022, assailed in the present proceedings, in Test Case No. 1/ 2022, pending adjudication before the learned Single Judge, and shall argue the latter proceedings on its own merit. LPA 464/2022 judgment, dated11.07.2022, in Test Case No. 1/ 2022, pending adjudication before the learned Single Judge, and shall argue the latter proceedings on its own merits.
47. Mr. Sethi also relied upon certain interim orders passed by the Division Bench in those appeals and which had restrained the Sole Guardian from interfering in the operation and management of the AGC. According to Mr. Sethi notwithstanding the eminence of the Sole Guardian, he is clearly unsuited to be appointed as an Administrator and thus being burdened with running a large pharmaceutical company which employs over 15000 employees and has a turnover of Rs. 4000 crores.
48. Reliance was additionally placed on Commr. v. Mohan Krishan Abrol:19 and the following principles which came to be enunciated therein: -
“10. A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v. Karam Chand Soni [AIR 1938 Cal 714 : 43 CWN 5] it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty [(1916) 43 IA 113 : AIR 1916 PC 202] the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an
executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. (See Cherichi v. Ittianam [AIR 2001 Ker 184: (2001) 1 Ker LT 415].) Therefore, on the demise of the testatrix, the said property vested in the executors. The question which arises for determination on the facts of this case is whether the executors assented to the vesting of the said property in the Hospital in terms of Section 336 of the 1925 Act. In this case, the facts show that the executors never objected to the vesting of the said property in the Hospital. Three executors were appointed under the Will. They never objected to the legacy. Several meetings of the executors had taken place both before the death of the testatrix on 26-11-1962 and even thereafter for updating the accounts and to obtain probate and at no stage they objected to the vesting of the property in the Hospital. Although application for probate was made, the State was not a party-respondent. In fact, mutation was made in favour of the Hospital as far back as 2-4-1970 to which the executors never objected. In the circumstances, the executors had assented to the legacy in favour of the Hospital. Looking to the terms of clause 2 of the Will, we hold that the Hospital was not a beneficiary, but a full owner of the property; that on the demise of the testatrix the property vested in the executors who assented by their conduct to the legacy of the demised premises in the Hospital and consequently, the eviction proceedings were maintainable under the 1973 Act.‖
49. Mr. Sethi also brought to our attention the decision of the Supreme Court in the case of Crystal Developers v. Asha Lata Ghosh20 and more particularly to the following observations made therein:
(I) Effect of revocation of the probate on the disposition(s)
27. The Indian Succession Act, 1925 is enacted to consolidate the law applicable to intestate and testamentary succession. Section 2(f) defines the word ―probate‖ to mean the copy of a will certified under the seal of a court of a competent jurisdiction with a grant of administration to the estate of the testator. Section 2(h) defines the word ―will‖ to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Part VI deals with testamentary succession. Section 59 refers to persons capable of making wills. Section 61 inter alia states that a will obtained by fraud, coercion or undue influence which takes away the volition of a free and capable testator, is void. Under Section 63, every will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will.
28. Section 211 falls in Part VIII which deals with representative title to the property of the deceased on succession. Section 211(1) declares that the executor or the administrator, as the case may be, of a deceased person is his legal representative for all purposes and that all the property of the deceased vests in him, as such. Under Section 212, it is inter alia provided that no right to any property of a person who has died intestate can be established in any court, unless letters of administration are granted by a probate court. Under Section 213, no right as an executor or a legatee can be established in any court, unless probate of the will is granted, by the probate court, under which the right is claimed. Similarly, no right as executor or legatee can be established in any court unless the competent court grants letters of administration with the will annexed thereto. Sections 211, 212 and 213 bring out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the court. Section 214 states inter alia that no debt owing to a deceased testator can be recovered through the court except by the holder of probate or letters of administration or succession certificate. Section 216 inter alia lays down that after any grant of probate or letters of administration, no person other than such grantee shall have power to sue or otherwise act as a representative of the deceased, until such probate or letters of administration is recalled or revoked. Part IX of the Act deals with probate, letters of administration and administration of assets of the deceased. Under Section 218(1), if the deceased is a Hindu, having died intestate, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable to such deceased, would be entitled to. Under Section 218(2), when several such persons apply for letters of administration, it shall be in the discretion of the court to grant letters of administration to any one or more of such persons. Section 220 refers to effect of letters of administration. It inter alia states that letters of administration entitle the administrator to all rights belonging to the intestate. Section 221 inter alia states that letters of administration shall not render valid any intermediate acts of the administrator which acts diminish or damage the estate of the intestate. Sections 218, 219, 220 and 221 are relevant in the present case as they indicate that nothing prevented the intestate heirs of Balai Chand to apply for letters of administration, particularly when they alleged that Balai Chand died without making a will. Moreover, Section 221 indicates that intermediate acts of the administrator which damage or diminish the estate are not validated. This section brings out the difference between letters of administration and probate. Section 221 expressly states that certain intermediate acts of the administrator are not protected as the authority of the administrator flows from the grant by the competent court unlike vesting of the property in the executor under the will (see Section 211). Section 222 states that probate shall be granted only to an executor appointed by the will. Section 227 deals with effect of probate. It lays down that probate of a will when granted establishes the will from the date of the death of the testator and renders valid all intermediate acts of the executor. Section 227 is, therefore, different from Section
221. As stated above, in the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. Further, Section 227 states that a probate proves the will right from the date of the death of the testator and consequently all intermediate acts are rendered valid. It indicates that probate operates prospectively. It protects all intermediate acts of the executor as long as they are compatible with the administration of the estate. Therefore, Section 221 read with Section 227 brings out the distinction between the executor and holder of letters of administration; that the executor is a creature of the will; that he derives his authority from the will whereas the administrator derives his authority only from the date of the grant in his favour by the court. Section 235 inter alia states that letters of administration with the will annexed shall not be granted to any legatee, other than universal or residuary legatee, until a citation has been issued and published calling on the next of kin to accept or refuse letters of administration. Such provision is not there in respect of grant of probate. In the circumstances, the judgment in the case of Debendra Nath Dutt v. Administrator General of Bengal [ILR (1906) 33 Cal 713: 10 CWN 673] will not apply to the present case. ****
33. In S. Parthasarathy Aiyar v. M. Subbaraya Gramany [AIR 1924 Mad 67] it has been held: (AIR p. 70) ―It is not right, as has been suggested in some cases, to treat a will of which probate has not been granted as non-existent and the property passing by intestacy. On the contrary, the will is a perfectly valid document. The executor under it can deal with the property and give a perfectly good title though it may be that to complete that title it requires probate to be taken out at a later date.‖
35. In Cherichi v. Ittianam [AIR 2001 Ker 184] it has been held that the prohibition under Section 213 of the Indian Succession Act is regarding establishing any right under the will without probate and that section cannot be understood as one by which the vesting of right as per the provisions of the will is postponed until the obtaining of probate or letters of administration. The will takes effect on the death of the testator and what Section 213 says is that the right as executor or legatee can be established in any court only if probate is obtained. Therefore, Section 213(1) does not prohibit the use of will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. Therefore, the requirement of obtaining probate becomes relevant at the time when the establishment of right as executor or legatee is sought to be made on the basis of a will in a court of justice.‖
50. Appearing for the sons of the petitioner AR and AC, Mr. Nayyar, learned senior counsel addressed the following submissions. Mr. Nayyar at the outset adopted and reiterated the submissions addressed by Mr. Sethi resting on a conjoint reading of Sections 2(a), 211 and 301 of the Act and contended that unless an executor is removed, the question of appointment of an Administrator pendente lite would not arise.
51. Mr. Nayyar also took exception to the maintainability of the application at the instance of RS in light of the public and open disownment that was made by the testator during his lifetime. It was further submitted that neither RA nor RS are shareholders or Directors in any of the companies forming part of the AGC. In view of the above, it was his submission that the Court would be justified in holding them disentitled to address any prayers for appointment of an Administrator. Mr. Nayyar also reiterated a submission which was addressed at the behest of the petitioner, namely, that of the absence of necessity and which alone would have justified the appointment of an Administrator in the interim by the Court. Mr. Nayar also referred to the cautionary note as struck in Rajendera Singh Lodha where the Court had referred to the lack of capability of an Administrator or a Receiver taking over a running business.
52. Mr. Nayyar further submitted that the appointment of an Administrator pendente lite would, in any case, be against the wish of the testator and would clearly frustrate the terms of the Will itself. Mr. Nayyar also questioned the prudence of continuing or extending the powers of the Sole Guardian to run a conglomerate of corporate entities which were otherwise being professionally managed and administered.
53. Seeking to explain the special position in which an executor of a Will stands placed, Mr. Nayyar referred for our consideration the following passages as appearing in the judgment rendered by the Karnataka High Court in F.C.S. Amalnathan v. J.S. Victor Basco21:- “6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.
7. Section 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executorship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannot assert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301. Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.‖
54. Mr. Nayyar also placed reliance upon the following passages as appearing in the judgment of Swapnil Gupta and Anr. v. Govt. of NCT of Delhi and Ors.22, a decision handed down by a learned Judge of our Court: - “35. It is trite law that the testator's wish regarding as to who will be the executor of his estate and carry out his Will must typically be respected, and an executor named by the testator should not be removed from his office unless, there is convincing proof that his continued appointment would be harmful to the estates of the deceased and frustrate the testator's Will. The named executor cannot be removed for a few isolated minor mistakes. This concept must be considered when determining whether the petitioners have provided enough evidence to have the executor removed from his/her role.
36. According to Section 211 of the Act, the executor of a deceased's will serves as the deceased's legal representative for all purposes and becomes the owner of the deceased's property as soon as the Testator passes away. It is a reasonably wellestablished legal principle that the executor may exercise his authority and carry out the conditions of the will even if probate is not granted. In fact, one of the key differences between an executor and administrator is that the former may act even before obtaining probate, whilst the latter cannot act until he has been awarded letters of administration. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.
38. In this context, it is important to reproduce Sections 247 and 301 of the Act. ―247. Administration pendente lite.—Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.
301. Removal of executor or administrator and provision for successor.—The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.‖
39. It is important to observe that these Sections do not highlight any guidelines for the removal of any private executor or administrator. While exercising power under Section 301 of the Indian Succession Act, the Court must ensure that no malicious or misconceived grounds are raised to throttle the intentions of the testator by way of an application to remove the Testator. If the Court is of the opinion that the Executor has acted or is acting improperly qua the Estate; or is acting in contravention to the intention of the Testator then, it shall be justified in exercising its jurisdiction under Section 301 of the Act in removing the executor and succeeding him by another. The main test which must guide the Court in reaching this conclusion is the best interests of the beneficiary. Even want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity could justify an order under this section directing removal of the executor.
40. In view of the above-said principles, I am unable to agree with the contentions raised by the learned senior counsel that a case has been made out for the appointment of an administrator pendent lite more so, as in the instant case, no application has been moved under Section 301 of the Act to remove the incumbent Executor and provide for the succession of another person to such an office. Learned senior counsel for the Respondent No. 4 has submitted that it is not necessary to move an application under Section 301 before moving an application under Section 247 of the Act and has relied on a judgment of Bombay High Court in Radhika Bhargava (supra) to contend that an application under Section 301 for removal of the Executor can only be maintained by one who accepts the Will as otherwise it would tantamount to blowing hot and cold at the same time, and therefore, the Respondent No. 4 cannot be asked to bring forth an application under Section 301 of the Act.
46. Therefore, the issue of naming an administrator pendente lite would not come up unless and until the Executor is initially removed by the appropriate Court in accordance with section 301 of the Act.‖
55. Taking strong exception to the various allegations levelled of siphoning of funds, Mr. Nayyar pointed out that the Action Taken Reports which were submitted in Criminal Revision No. 52/2021 had found that the signatures of SD as appearing on the share transfer forms and bank documents were genuine. According to Mr. Nayyar, the allegation that the petitioner with ulterior motives got herself added as a joint holder in the Syndicate Bank account and transferred Rs.25 crores is thus clearly scurrilous and devoid of substance. Mr. Nayar also drew our attention to the fact that closure reports had come to be submitted in respect of the said information. Proceeding then to the GPA which was executed by DMP in favour of KR, Mr. Nayyar submitted that the said instrument has not been declared to be illegal or void by any court of law. Similar was his contention with respect to the complaint lodged with the Economic Offence Wing23 in respect of an illegal transfer of shares.
56. Proceeding then to controvert the allegations with respect to nominations and changes made in various FDRs‘, Mr. Nayyar submitted that none of the existing FDRs were disturbed and nor were any amounts transferred from the account of DMP. It was submitted that the fresh FDRs‘ which were created were in the name of DMP and were so drawn based on the standing instructions given by him and which had been consistently followed over the years.
57. Mr. Nayyar also placed reliance on the following findings as appearing in an interim report which was submitted by the Sole Guardian: - ―4.As far as clause (a) of para 22(ii) of the order dated 06.01.2022 is concerned, I have, in the proceedings held from time to time and as recorded therein, cautioned all concerned including Mr. T.R. Narayanan, Ms. Uma Devi and Ms. Umesh Sharma who appeared to be familiar with the assets of DMP and who, immediately before my appointment as interim/supervising/sole guardian had been dealing therewith, that none of the assets belonging to DMP should be dealt with and that there should not be any withdrawals from any of the bank accounts or fixed deposits of DMP save under authority from the undersigned. No violations of any of the said directions has been brought to my notice yet. *****
7. After the demise of DMP, proceedings were conducted on 21 and 26 January 2022 and directions were issued for preservation of the estate. Nothing has been brought to my notice, that any of the said directions have not been complied with by anyone.‖ 23 EOW
58. Insofar as the orders passed in Complaint Case No. 9831/2020 were concerned, it was submitted that despite the findings in favour of the petitioner as contained in the FSL report, the concerned Magistrate had erroneously directed the registration of a FIR by an order of 09 February 2021. The said order, it was pointed out by Mr. Nayyar, had in any case been placed in abeyance by the Additional Sessions Judge in terms of an order dated 10 February 2021 passed in Criminal Revision No. 52 of 2021.
59. Appearing for RA, Mr. Jethmalani, learned senior counsel addressed the following submissions. Mr. Jethmalani pointed out that a bare reading of the alleged Will would indicate that it completely excludes the two sons, wife (now deceased) and five grandchildren of the testator and that the disposition is clearly one sided and made to favour the executor, KR and her two sons. According to Mr. Jethmalani, the aforesaid disposition is wholly unnatural when one bears in mind the following irrefutable facts.
60. It was submitted by learned senior counsel that in 1983, as soon as RA attained the age of 20, he was made a Director in Aristo Pharmaceuticals and was also accorded the authority to operate bank accounts of the company. Again in 1985 when a new company, M/s Mapra Laboratories was established, RA was appointed as a Director in the said company also. It was further pointed out by Mr. Jethmalani that in 1987, RA was made a Director in charge of the affairs of M/s Mapra Laboratories and continued in that position till September
2018. Mr. Jethmalani also laid stress on the testator having appointed all his sons as Directors in various companies. It was in this connection submitted that while DR was made a Director in 1986, the youngest brother RS was appointed in 1993 and was made Joint Managing Director of Aristo Pharmaceuticals Pvt. Ltd. in the year
2006. It was also his submission that DMP had during his lifetime ensured that all household expenses of his three sons, their respective wives and children were borne by Aristo Pharmaceuticals. It was further pointed out by Mr. Jethmalani that the affection of DMP for his children and grandchildren is also evidenced from his eldest grandson being appointed as an executive in Aristo Pharmaceuticals Pvt. Ltd on his 18th birthday and a similar course being adopted with respect to the second grandson in 2019. According to Mr. Jethmalani, all of the aforesaid facts would establish that DMP had immense love for all his three sons and their families and the Will propounded is unnatural and contrary to all of the above.
61. Mr. Jethmalani also alluded to the purchase of flats in Mumbai almost four months after the execution of the alleged Will by DMP and thus clearly casting grave suspicion on the execution of the Will. Learned senior counsel also alluded to the fragile mental condition of DMP, which according to him stands evidenced from the medical reports which form part of the record with the earliest being of 1997 of Lilavati Hospital. According to Mr. Jethmalani, it is this report which would evidence DMP being first diagnosed with mild atrophia of the frontal lobe.
62. It was Mr. Jethmalani‘s submission that KR, along with UD, taking undue advantage of the deteriorating mental capacity of DMP, commenced an elaborate exercise of misappropriating his assets and with that motive fabricated various documents to oust the sons of the testators. Mr. Jethmalani also referred to the torture and confinement of late SD and the various acts of omission and commission committed in the name of DMP to the disadvantage of his immediate family members. Mr. Jethmalani in this connection adverted to the transfer of funds from the joint account maintained by DMP along with the late SD as also the actions taken to remove RA from the Directorship in different companies and the transfer of shares held by him in M/s Mapra Laboratories.
63. According to Mr. Jethmalani, the sinister design of KR and UD came to the fore only during the course of proceedings which were taken on the habeas corpus petitions and wherein the Court was constrained to observe that but for its interaction, the deteriorating mental condition of DMP would have never come to light. According to learned senior counsel, it was on an overall consideration of all of the above that the learned Single Judge was constrained to constitute a Guardianship Committee in terms of the order of 29 October 2021. In light of the aforesaid conduct of the parties, it was the submission of Mr. Jethmalani that KR is unsuitable to discharge the fiduciary functions which stand attached to the office of an executor and the various obligations that are liable to be discharged.
64. Learned senior counsel submitted that the circumstances surrounding the production of the Will under which the petitioner claims a large benefit for herself and her sons itself raises serious questions with respect to it having been validly executed. According to learned senior counsel, the overwhelming suspicious circumstances clearly warrants the executor being removed and an Administrator pendente lite being appointed.
65. Drawing our attention to the foundational principles which must inform the aspect of proof and interpretation of Wills, Mr. Jethmalani referred to the following passages as appearing in the decision of the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma24: “18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression ―a person of sound mind‖ in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word ―conscience‖ in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.‖
66. In order to buttress his submissions with respect to the appointment of an interim Administrator, Mr. Jethmalani referred the following passages as appearing in the decision of the Bombay High Court in Pandurang Shamrao Laud v. Dwarkadas Kalliandas25 for our consideration: - ―8. Interest is also due by other mortgagors. Bents have also to be recovered, and the testatrix and plaintiff 3 having been appointed joint receivers, plaintiff 3, in the absence of a fresh order appointing him sole receiver, is not in law entitled to recover the rents which, according to the affidavits, amount to about Rs. 6,000 per month. It is also alleged that dividends have not been recovered. It is further alleged that books of account are in the plaintiffs' possession. It was also contended that if suits were filed by the executors no decrees could be passed pending the grant of probate. There is no dispute that various suits are pending, and that suits may have to be filed and interest and rents and dividends recovered, and there is also a large residue in favour of charity. The estate is of considerable value and extent, and for the safeguarding and preservation of it proper arrangements ought, in my opinion, to be made especially when very wide discretionary powers have been given to the executors under a will which if challenged by parties who are interested in the estate.
9. The next question is what arrangement should be made. The general principle is that the Court does not as a rule appoint a receiver as against executors whenever they have obtained probate, unless there is gross misconduct or mismanagement and waste on their part. If they are rightly in possession and there is no dispute as to their title they will not be replaced by the Court receiver except on very strong grounds. Their appointment itself shows that the testator had confidence in them, and the Court gives effect to the expression of the confidence reposed in parties by one who knew them best. It has also been held that the Court refuses to appoint an administrator pendente lite where there is a person named in the will as executor whose appointment is not questioned and who can discharge the functions of an administrator: see Mortimer v. Paull [(1870) 2 P. & D 85: 39 LJP 47: 18 WR 901: 22 LT 631.]. In this case however the appointment of the executors is questioned, and their title is in dispute because the will itself is challenged on various grounds. Under the circumstances there should be, in my opinion, a grant of administration pendente lite. The last question is who should be the administrator or administrators pendente lite? I have to be satisfied as to the fitness of such an administrator or such administrators. Plaintiff 1 is a solicitor of this Court and has prepared the will, and if he was the sole executor the Court would appoint a receiver of the estate as was done in Hamilton v. Girdleston [(1876) WN 202.]. There are however co-executors along with plaintiff 1. But nevertheless plaintiff 1 is a debtor to the estate of the deceased. He claims a large sum of costs against the estate and says in his affidavit that he inform, ed the testatrix that he would claim his professional costs even if he acted as exeoutor which he would be entitled to. It has however been held by the Privy Council in Bai Gungabai v. Bhug wandas Valji [(1905) 29 Bom 530: 32 IA 142: 8 Sar 813 (PC).], that the insertion of a clause that the solicitor-executor should charge for his professional work hardly raises any suspicion about the genuineness of the will. In view however of the position in which plaintiff 1 stands to the estate, his interests are to a large extent in conflict with his duties. Plaintiff 2, it is alleged, was a share broker and an estate broker, and though at present he is in affluent circumstances the allegation against him is that he is a friend of the other plaintiffs and has helped them in getting the testatrix to execute the will. This of course is an allegation which will have to be substantiated at the time of the hearing. Plaintiff 4 is a young man of about twenty to twenty-five years and is the son of plaintiff 3 and lives with his father, and plaintiff 4 gets a legacy of between twelve to fifteen lakhs of rupees under the will.‖
67. Appearing for MB, the granddaughter of DMP, Ms. Jha, learned counsel submitted that signs of the onset of mental illness of DMP were evident right from the 1990s‘. This, according to Ms. Jha, is evident from the medical reports drawn up by All India Institute of Medical Sciences26, Delhi dated 18 July 1993 and 04 June 1997. According to learned counsel, the diagnosis as evidenced in the AIIMS report, was further fortified by the Lilavati Hospital Report dated 09 May 1997. Ms. Jha also referred to the Status Report dated 19 September 2019 filed in the habeas corpus petition to submit that 26 AIIMS DMP was under the complete influence and control of UD and KR, both of whom connived together to deprive the other legal heirs of their rightful dues from his estate. It was further pointed out that the suspicious circumstances clouding the Will is evident from the complete exclusion of MB with respect to whom DMP, along with his predeceased son DR, fought one of the longest and most expensive custody battles in India.
68. Another circumstance which casts a doubt on the validity of the Will, according to Ms. Jha, is its execution a mere 58 days after the death of DR. According to learned counsel, the death of a son would normally draw a 71 year old father closer to his surviving children. However, and in this case, UD acted contrary to the above and made all efforts to draw a wedge between DMP and his surviving sons and denied access to his natural heirs. It was also asserted by MB that during his lifetime, DMP had never entrusted any official or administrative responsibilities upon KR. Learned counsel urged that it is thus surprising that DMP would have found her competent to act as an executor of an estate worth more than thousands of crores. It was further asserted by Ms. Jha that the mental illness of DMP was a secret which was closely guarded by KR along with UD and US and who had feigned complete ignorance of his deteriorating condition even before the Division Bench of this Court. It was the submission of MB that the Will is the handiwork of the KR, UD and US to capture and take over the estate of DMP.
69. Ms. Jha also referred for our consideration the statement of various witnesses as appearing in the Status Report of 19 September 2019 placed on the record of the habeas corpus Petition and who had alluded to UD misusing her proximity to manipulate the decisions of DMP. Ms. Jha further submitted that while ordinarily courts would respect the decision of a testator when an executor is named and appointed, the same would clearly have no application where it is found that the executor is acting dishonestly and siphoning off huge funds from the estates of the deceased.
70. Insofar as the presumption that may operate in respect of a registered document, it was the submission of Ms. Jha that the said presumption would have to be evaluated alongside the state of mind of the testator and his mental capacity at the time when the Will was executed. Ms. Jha joined the submissions of Mr. Jethmalani and Mr. Singh when it came to the suspicious circumstances surrounding the execution of the alleged Will.
71. Ms. Jha also placed reliance on the following observations as appearing in Jaswant Kaur: “9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.‖
72. Having noticed the long-protracted litigation which ensued during the life time of DMP and which has continued unabated even after his demise, the copious submissions addressed on the instant application, the Court notes that the principal issue which arises for consideration is whether circumstances warrant an independent Administrator being appointed to manage the estate of the testator in place of the named executor. The issue attains an additional degree of complexity in light of the fact that a Sole Guardian appointed by the Court already stands charged with discharging that obligation. The Court is thus called upon to consider, whether in light of the facts as pleaded and the submissions addressed, it would be expedient to set in place a novel system for the administration of the estate of DMP and substitute the existing structure of administration. However and before we proceed to evaluate the aforesaid aspect, it would at the outset be apposite to deal with the objection with respect to maintainability of the present application as raised at the behest of KR and respondents AR and AC.
73. To recall, it was contended by Mr. Sethi and Mr. Nayyar, learned senior counsels that the application referable to Section 247 is not maintainable and should not be entertained till such time as the Court comes to order the removal of the named executor. The aforesaid submission was addressed without prejudice to their contentions on merits of circumstances even otherwise not warranting the appointment of an Administrator pendente lite. The submissions on this score had proceeded along the following lines.
74. Learned senior counsels had firstly referred to the definition of the word ―administrator‖ as appearing in the Act and which according to them would evidence the legislative intent to be an Administrator being appointed only when no executor stood named.
75. The correctness of that submission would have to be answered in the backdrop of the provisions made in Sections 247 and 301 of the Act. It must at the outset be noted that the power to appoint an Administrator stands conferred upon a court to be exercised during the pendency of any suit in which either the validity of the Will is assailed or in proceedings initiated for ―obtaining‖ or ―revoking‖ any probate or letters of administration. Section 247 thus encompasses contingencies where either a petition for grant of probate may have been made or where proceedings would have been instituted for the grant of letters of administration. In terms of the scheme of the Act, a petition for probate would necessarily be laid before a court in a case where an executor has been duly named. A petition for grant of letter of administration on the other hand would be preferred either where the deceased dies intestate or where even though a Will has been drawn, no executor has been named. It would thus be evident that in either of the aforenoted situations, a party may petition the Court for appointment of an Administrator in the interim. The question which, however, stands raised is whether a named executor is liable to be removed before an Administrator may be appointed or whether the powers conferred by Section 247 could be invoked even at a stage where the executor is yet to be removed or discharged.
76. We note that Section 301 empowers the High Court to either suspend, remove or discharge an executor or an Administrator and provide for the succession of another person to that office. In case the court were to suspend, remove or discharge an executor or Administrator, the person appointed as a consequence thereof would undoubtedly step into the shoes of the named executor or Administrator as the case may be since in terms of the orders passed by the court the named executor or Administrator would cease to hold office. The cessation would as a consequence also override the vesting that may have occurred and the successor taking over the position of the executor or Administrator.
77. However, and as is manifest from a plain reading of Section 301 while the title of that provision speaks of removal of an executor alone, the text of that provision enables the High Court to even ―suspend‖ the appointment of an executor or Administrator. It is evident from the usage of the expressions ―removed‖ or ―discharged‖ as appearing in that provision as being referable to orders which would have attributes of finality and thus amount to a permanent removal of the named executor or Administrator. However, Section 301 also enables the High Court to suspend the appointment of an executor. Suspension, as a concept, is clearly liable to be accorded a connotation distinct from acts of removal and discharge. The word suspension would be akin to the appointment of an executor being placed in abeyance or suspended animation. Placing the appointment of an executor in suspension would not result in either removal or discharge nor would it amount to an effacement of the expressed wish of the testator. It would merely disable the executor from taking such steps as would have otherwise been permissible in terms of the various provisions of the Act till such time as an order of suspension were to operate.
78. While it is true that since the Will was executed in the NCT, a grant of probate would not be a mandatory precondition for the testament to take effect, the Court notes that in light of Section 211 of the Act, the executor could, in any event, proceed in accordance with the provisions of the disposition awaiting a grant of probate. However, and in the considered opinion of the Court, the vesting in terms of Section 211 is clearly not an irreversible event. The vesting of the estate in the executor is not an occurrence which cannot be interdicted by a court in exercise of the powers otherwise conferred by the Act. This clearly since courts stand empowered statutorily to appoint an Administrator pendente lite where circumstances merit such a course being adopted. The acceptance of a submission to the contrary would amount to depriving courts of a salutary power which stands conferred and which is aimed at preservation of the estate of the testator itself. It would thus be incorrect on first principles to accede to the submission that the power of the court to appoint an interim Administrator can be exercised only once an executor has been removed or discharged.
79. In the considered opinion of this Court, Section 247 would have to be read conjointly with Section 301 and both provisions would thus appear to move parallelly at least in a situation where a court comes to the conclusion that the appointment of the executor has to be placed in abeyance. Once such an appointment comes to be suspended, it would be incumbent upon the court considering the appointment of a person who may look after the estate of the deceased in the interregnum. The statute thus clearly does not contemplate a vacuum nor does it remain silent on this aspect.
80. A symbiotic reading of Sections 247 and 301 would lead one to the irresistible conclusion that both provisions constitute a larger scheme designed to vest courts with adequate authority to adopt appropriate measures for preservation of the estate of the deceased. Both provisions are thus concomitant and are intended to move contemporaneously to deal with a situation where the court is constrained to suspend the appointment of a named executor. If the submission addressed by Mr. Sethi and Mr. Nayyar were to be accepted it would clearly deprive and denude Section 247 of all content and authority which is otherwise sought to be conferred upon a court.
81. When Section 247 speaks of a suit having been instituted for obtaining a probate, it clearly envisages proceedings having been initiated in respect of a Will which appoints an executor for administration of the estate of the deceased. It is only in the aforesaid contingency that a petition for grant of probate may come to be laid before a Court. Section 247 then speaks of a suit questioning the validity of a testamentary disposition. It thus clearly extends to contentious matters and where a petition brought by an executor is questioned and challenged by heirs of the testator. It thus clearly stands placed in the statute to address a contingency where the conduct of an executor, during the pendency of suit proceedings relating to the grant of a probate, is questioned before a court and it comes to the conclusion that circumstances warrant the named executor being substituted.
82. Similar would be the position which would prevail where the court may be moved for revocation of probate or grant of letters of administration. Both of those contingencies would contemplate authority having already been conferred upon an executor or an Administrator. During the pendency of such proceedings, and if circumstances so warrant, a court would stand empowered to consider the suspension of the executor or the Administrator as the case may be. It would thus necessarily be faced with a situation where the administration of the estate would be left rudderless till such time as probate is either revoked or the letters of administration cancelled. That clearly cannot be recognized to be the intent or import of Section
247.
83. We may only reiterate that the submissions to the contrary as addressed clearly falter and fall when we view Sections 247 and 301 as being supplemental and collaborative. The argument advanced on this score, in any event, appear to proceed in ignorance of Section 301 not being confined to a power of removal or discharge alone but also extending to suspension. The Court is thus of the considered opinion that the submissions addressed on this issue are liable to be negated for reasons aforenoted.
84. While closing the discussion on this issue, it would be apposite to briefly notice the decision rendered by a learned Judge of this Court in Swapnil Gupta. Suffice it to note that in the said decision, the applicant seeking appointment of an Administrator was a beneficiary under the Will. Quite apart from the above, we find that parties do not appear to have brought to the attention of the Court the existence of the expression ―suspend‖ in Section 301 and thus contemplating the appointment of an Administrator being placed in abeyance as a pro tem measure and such a power being available to be exercised pending an action for removal or discharge. We also note that the learned Judge caveats his conclusion in this respect using the phrase ―….. until the Executor is initially removed by the appropriate Court in accordance with Section 301……‖. The expression ―initially removed‖ would necessarily include a suspension of the named executor. As noticed hereinabove, a removal of the executor could be either an order having attributes of finality as well as one which may be passed in the interim. Thus, we find ourselves unable to read Swapnil Gupta as being an authority for the proposition that an Administrator pendente lite cannot be appointed till such time as the named executor has either been removed or discharged. In any case, according such an interpretation would go against the plain language of Section 301.
85. The Court also finds itself unable to read Section 2 (a) as being liable to be read as evidence of a legislative intent for an Administrator being appointed only where no executor is named. We note that Section 2 (a) speaks of a contingency, namely, ―…..when there is no executor;‖ as opposed to one ―when there is no executor named‖. The former situation could very well come to hold the field where a named executor is either removed or discharged as well as where the appointment is placed under suspension. In either of the three contingencies the court would be faced with a situation where no executor exists. It is such an eventuality which is sought to be addressed and provisioned for by Section 247. The Court thus finds itself unable to countenance the submissions that were founded on Section 2(a) of the Act.
86. Then that takes the Court to consider whether circumstances warrant an Administrator being appointed in the interim notwithstanding KR having been named as the executor in the last testament of DMP. We note that in Shernaz Faroukh Lawyer the Bombay High Court had alluded to the circumstances which would warrant an Administrator being appointed in the interim. It spoke of the existence of a bona fide dispute touching the validity of a Will and situations where litigation between the heirs of the deceased were likely to impact the estate of the testator. In Shernaz Faroukh Lawyer the Bombay High Court spoke of the power of appointment of an Administrator pendente lite being warranted where allegations were made of the estate being wasted or depleted. It was pertinently observed that while the substitution of a named executor would be an extreme step, it would nonetheless be merited where the court be of the opinion that emergent steps are liable to be taken in order to protect the estate of the testator. Shernaz Faroukh Lawyer also spoke of such a measure being available to be adopted where a serious and bona fide dispute comes to be laid before a court or where it is called upon to consider the validity of a testamentary disposition and a substantial dispute with respect to either the lawful execution of the Will or the disposition and distribution of the assets itself being questioned on the grounds of capacity of the testator.
87. We further found a more elaborate consideration of this issue in a lucid judgment penned by a learned Judge of the Bombay High Court in Pandurang Shamrao Laud & Ors. vs Dwarkadas Kalliandas & Ors. The Court on that occasion had spoken of the necessity of such a measure being adopted as well as the fitness of the proposed Administrator. It was further observed that for such an extreme measure being taken, the Court would have to be satisfied that circumstances so warranted and it would be just and proper for an Administrator pendente lite being appointed.
88. In T. Krishnaswamy Chetty the Madras High Court adopted the principles enunciated by courts and which have been recognized as being relevant when it come to the appointment of a receiver over properties. Tracing the various principles which must inform and guide the appointment of a receiver, the Madras High Court in T. Krishnaswamy Chetty spoke of situations where it may be found that the property was in peril or was likely to be dissipated or frittered away.
89. We would thus view the power of appointment of an Administrator in the interim being warranted and justified where the estate is in jeopardy, there are serious allegations of the assets of the testator being alienated, encumbered or disposed of, as also where there be a serious dispute clouding the validity of the Will itself. It must, however, be observed that in case the allegation be the latter, the burden of proving the Will being tainted by suspicious circumstances or of its valid execution would clearly have to meet a high pedestal bearing in mind the stage of the proceedings when such an application may be made. Abuse of position, dissipation of assets, the estate being encumbered or where there be allegations of mismanagement and neglect against the named executor may also constitute sufficient grounds to warrant the court considering the appointment of an Administrator. Ultimately the appointment of an Administrator would be guided by the imperative need to protect and preserve the estate of the deceased especially where warring factions of the testator be asserting a right to possess or take over control of the assets.
90. The stage thus stands set for the Court to proceed to evaluate the prayer made in the application itself independent of the working of the Sole Guardian in terms of the orders passed by the learned Single Judge in the writ proceedings.
91. The record would bear out that the estate of DMP has been under the control and supervision of guardians appointed by the Court right from October 2021. The Court takes note of the order of 29 October 2021 in terms of which a Guardianship Committee came to be constituted by the Court during the lifetime of DMP. The remit of the Guardianship Committee extended not only to taking care of the affairs of DMP, his medical treatment, health related decisions, but also to all financial affairs including his movable and immovable assets as well as his shareholding in the corporate entities forming part of the Aristo Group.
92. The Court had also provisioned for an eventuality where in case the Guardianship Committee be unable to reach a unanimous decision, such a situation of deadlock being ultimately resolved by Justice Endlaw (Retd.) who had been appointed as the interim Guardian in terms of an order dated 08 September 2021 and was to, post the order of 29 October 2021, act as the Supervising Guardian. The order of the said date further provided that in case of disagreement amongst members of the Guardianship Committee, the decision of the Supervising Guardian would be final and binding on all parties. The Court further bound all banks, financial institutions, companies, hospitals, doctors and other entities to directions that may be taken by the Guardianship Committee from time to time.
93. Equally significant were the directions framed by the learned Judge at that stage and which had accorded the Guardianship Committee access to all documents and records relating to the finances, properties, shareholding, investments etc. of DMP and for the said Committee to take appropriate decisions bearing in mind the will and preferences of DMP.
94. When the matter was taken up for review post the demise of DMP, taking cognizance of the inter se disputes amongst his heirs, and the allegations leveled with respect to the handling of assets, Justice Endlaw (Retd.) came to be appointed as the Sole Guardian and the Committee which had been earlier constituted was disbanded. Taking note of the eminent requirement of safeguarding and securing the assets of DMP, Justice Endlaw (Retd.) acting as the Sole Guardian was charged with the task of looking after the entire estate and assets of DMP. The Court also assigned the Sole Guardian with the obligation of placing detailed reports relating to compliance with directions issued by the Court from time to time, apprising it periodically of the current status of the movable and immovable assets forming part of the estate as well as to take such further steps as may be merited to safeguard the estate of DMP.
95. The Court, in terms of that order, further extended the injunction of status quo and provided that no withdrawals or transfers would be made from the bank accounts of DMP including his fixed deposits and other investments. The order of status quo which operated upon his immovable assets on 04 June 2021 was also extended. The Court also provided that no party would take any action which may result in the creation of third-party interests in and over the estate of DMP. The injunction was further provided to extend to all the bank accounts of DMP with the Court further observing that any amount withdrawn, spent or transferred in the interregnum would have to be duly chronicled and detailed statements placed before the Court in sealed cover. Similar to the provisions made on 29 October 2021, the Court reiterated the obligation of all banks, financial institutions, companies and other authorities to act in accordance with the directions so framed.
96. The order of 06 January 2022 further restrained parties from releasing or transferring any amount or assets of DMP without the prior approval of the Sole Guardian. A similar restraint was also placed upon the operation of his bank accounts. On 11 July 2022, the Court further took into consideration the litigation initiated by parties including the present testamentary case as well as the Letters Patent Appeals which had been instituted against the orders passed by the learned Judge on the writ petition. On a due consideration of the above, the proceedings were brought to a close on 11 July 2022 with the Court leaving it open to parties to take appropriate remedies if it be alleged that any direction of the Court or directives of the Sole Guardian were not being adhered to. While closing proceedings, the Court provided for the continuance of the Sole Guardian subject to his authority being either modified or varied by a court of competent jurisdiction in any proceedings including the present probate petition.
97. The Court also bears in mind the statement which was made on behalf of the present applicant in LPA No. 52/2022 with it being submitted that no reliance would be placed on the judgment dated 29 October 2021 in the present testamentary case. It also bears in consideration the order of 27 May 2022 passed on a batch of LPAs‘ with the lead matter being LPA No. 52/2022 in which the Division Bench of the Court restrained the Sole Guardian from passing any orders in relation to the operation and management of the AGC or from taking any steps to change the composition of the Board of Directors.
98. As was noticed hereinbefore, it is this arrangement which has held the field for the past three years. When petitioned by the applicants for appointment of an interim Administrator, the first issue which arises for the consideration of the Court is whether it would be prudent to substitute or modify the arrangement which already stands put in place and thus unsettle the working of the Sole Guardian.
99. We note that the remit of the Sole Guardian is not stated to be either constricted or inadequate for the purposes of preservation of the estate of DMP. Even though allegations and counter allegations have been leveled by parties, the Court bears in mind the fact that the majority of the allegations so leveled relate to a period prior to the constitution of the Guardianship Committee and a time prior to the Sole Guardian taking the estate under its control. Neither the applicant nor the other parties who joined the prayer for the appointment of an Administrator pendente lite could invite our attention to any instance or event which may have warranted another Guardian or Administrator being appointed or which may have justified the removal of Justice Endlaw (Retd.).
100. As would be evident from a reading of the directions as formulated and embodied in the orders dated 29 October 2021, 06 January 2022 and 11 July 2022, the Sole Guardian stands sufficiently empowered to take appropriate steps and initiate action so as to secure and preserve the estate of DMP. There would thus principally appear to be no justification for either unsettling the aforesaid arrangement or framing independent directions for the appointment of an Administrator pendente lite. The prayer as addressed on the instant application would have merited acceptance if it were shown that the arrangement which has held the field since 2021 was either proving to be insufficient or had failed to secure the estate of DMP. Even the reports which have been submitted by the Sole Guardian from time to time does not lead this Court to conclude that a change in the status quo is warranted. Allegations of the orders of the Court being violated or directions of the Sole Guardian not being adhered to would, in any case, have to be tested in appropriate proceedings. In fact, that liberty stands additionally accorded to parties. The Court also takes note of the pendency of various contempt petitions which have come to be instituted in the meanwhile in this regard and on which notices have already been issued.
101. Insofar as the allegations pertaining to the management of the various group companies is concerned, the Court bears in mind the financials of those companies which were disclosed by the petitioner. Bearing in mind the growth in turnover and the consistent profits which are alluded to, there would clearly appear to be no justification for changing the management structure of those companies. Such a course would in any case be interdicted by the order of 27 May 2022 operating upon LPA No. 52/2022.
102. More fundamentally, the Court notes that none of the companies are parties to the probate proceedings. The appointment of an Administrator for taking over control of the voting rights and management of those companies has been rightly described by Mr. Sethi as amounting to a ―virtual takeover‖ and the control of separate juristic bodies being transferred from the current management. The Court in this regard also bears in mind the cautionary note which was struck in Rajendra Singh Lodha by the Calcutta High Court and which had taken note of the complexities involved in the running of large corporate entities.
103. The Court also bears in consideration the statement which was made by Mr. Sethi who had submitted that the petitioner remains bound to maintain the status quo, effect no transfer of shares, the fixed deposits being maintained, interest accrued thereon being reinvested or being used solely for the purposes of meeting the liabilities of the estate.
104. The Court is also mindful of the possible conflict and clash that may arise in case it were to independently appoint an Administrator pendente lite. The learned Single Judge while passing the orders dated 06 January 2022 and 11 July 2022 had continued the appointment of the Sole Guardian subject to any orders being passed varying or modifying those directions in appropriate proceedings including the present testamentary repetition. Ultimately, the Court is called upon to weigh and balance the maintenance of the status quo on one side of the scale and whether circumstances warrant a modification or variation of that arrangement on the other.
105. Presently and based on the material existing on the record, this Court is unconvinced that the latter course of action would be either prudent or is otherwise merited for the following reasons. While the petitioner is the named executor, the control of the estate, virtually and for all practical purposes, is subject to the oversight and supervisory powers vested in the Sole Guardian. The power of administration and control conferred upon the Sole Guardian is all pervasive and stretches across all facets relating to the assets of DMP. On due consideration of the issues that were flagged by the applicant, the Court is unconvinced that the powers conferred upon the Sole Guardian are proving to be either ineffective or inadequate. The Court would have found it expedient to independently invoke its powers conferred by Section 247 of the Act provided it was persuaded to come to the conclusion that the system laid in place was proving to be ineffectual or where the Sole Guardian was found to be remiss in the discharge of his duties and obligations.
106. The power conferred upon a court by virtue of Section 247 is not intended to be invoked for the purposes of a mere reiteration of an appointment already made and which has effectively restrained the executor from having complete and unfettered control over the estate of DMP. The appointment of an Administrator independently by the Court in these proceedings would have been warranted provided a perceivable breach or lacuna had existed. That, however, is not a situation which has been shown to exist.
107. Quite apart from the above, is the possibility and specter of conflict, friction and inconsistency that may possibly emerge in case an independent appointment were to be made by this Court and thus disturb the status quo which has prevailed and has come to hold the field post the appointment of the Sole Guardian. It is this aspect which has weighed upon the Court more than the legal aspects which were canvassed. The adoption of such a course leading to a festering of disputes, embroiling parties in further litigation persuades the Court of the imperative of being circumspect when being asked to invoke its powers under Section 247 of the Act independently. The Court cannot remain oblivious of the numerous Letters Patent Appeals and contempt petitions which continue to remain pending on the board of this Court. Those petitions not only assail the appointment of a Sole Guardian but also extend to allegations of our directions issued in the past having been flouted or not being complied with. Those are issues which would have to be independently examined and evaluated in those proceedings.
108. Ultimately, the Court finds that the conferral of a status of Administrator upon the Sole Guardian would neither reinforce nor buttress the arrangement which has existed. The anointment of the Sole Guardian as an Administrator under Section 247 of the Act would also not clothe him with added authority. As noted above, it is also not the case of the parties that the Sole Guardian is not sufficiently empowered to administer the estate in the interim. On an overall conspectus of all of the above, the Court finds no justification to independently invoke its powers conferred by Section 247 of the Act.
109. On an overall consideration of all of the above, the Court is of the considered opinion that circumstances do not merit the substitution of the system already laid in place and which has prevailed for the past many years. There also appears to be no justification to additionally anoint the Sole Guardian as an Administrator in terms as contemplated under Section 247 of the Act. The Court would thus be inclined to reject the application as made at this stage.
110. This would, though needless to state, be subject to any orders that may be passed in the pending LPAs‘. If the appointment of the Sole Guardian were to be either varied, modified or set aside in those appeals, the prayer for appointment of an Administrator by this Court independently and by recourse to Section 247 would be open to be revived. Presently and as matters rest today, there appears to be no justification for the Court to invoke its Section 247 power.
111. Subject to the observations made hereinabove, IA 12353/2022 shall stand dismissed.
112. List before the Roster Bench on 11.12.2023.
YASHWANT VARMA, J. NOVEMBER 20, 2023
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