Full Text
Ajay / H. H. Sawant
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO. 210 OF 2019
IN
TESTAMENTARY SUIT NO. 113 OF 2017
Sukumar Bhoja Shetty .. Applicant
IN THE MATTER BETWEEN:
Sukumar Bhoja Shetty .. Plaintiff
..
Defendant /
Respondent ....................
Ms. Smita Vora, Advocate for Applicant / Plaintiff.
Mr. Vishal Kanade a/w. Mr. Satish Raut, Advocate for Defendant /
Respondent. ...................
JUDGMENT
1. This Notice of Motion is filed for seeking the following reliefs:- “a. That pending the hearing and final disposal of the above Suit the Defendant abovenamed be restrained by Order and Direction of this Hon’ble Court not to proceed further with the proceedings in Execution Application No.151 of 2018 now pending before the Learned Court Commissioner for Taking Accounts, of this Hon’ble Court for partition of the residential flat No. 7, in Sapna Building, New Asha Nagar Corporative Housing Society Ltd., Road No.3 Chembur, Mumbai – 400 089, and for taking Accounts of Swagat Lunch Home, Shop No. 10 & 11 & Room No.68 in Amar Mahal Building Mumbai, as mentioned in the said Decree dated 6th May, 2017 passed by The Bombay City Civil Court in L.C. Suit NO. 5256 of 2007 till the hearing and Final Disposal of the above Testamentary Suit. 1 of 11 b. The Learned Commissioner for taking Accounts of this Hon’ble Court be requested not to proceed further in the said Execution Application proceedings in the said City Civil Court Suit pending before him till the hearing and final disposal of the above Testamentary Suit.”
2. Applicant in the Notice of Motion is the Plaintiff in Testamentary Suit No.113 of 2017. It is contended by Applicant that in view of pendency of Testamentary Suit in this Court, Defendant ought to be restrained by an order of injunction from proceeding further in Execution Application No.151 of 2018 before the learned Court Commissioner for Taking Accounts, Bombay High Court, inter alia, for partition of residential flat No.7 in Sapna Building, New Asha Nagar CHS, Chembur, Mumbai and for Taking Accounts of Swagat Lunch Home situated in Amar Mahal Building, Chembur, Mumbai. In effect, Applicant prays for stay of execution proceedings filed pursuant to a decree dated 06.05.2017 passed by the Bombay City Civil Court in L.C. Suit No.5256 of 2007 (between the same parties) until the hearing and disposal of Testamentary Suit No.113 of 2017.
3. Before I advert to the submissions made by the learned Advocates, it would be opposite to refer to such of the relevant facts which are necessary for adjudication of the present Notice of Motion.
3.1. Name of the deceased is Bhoja Kanthappa Shetty. He has two sons i.e. Applicant (Plaintiff) and Respondent (Defendant). After his demise on 17.03.2004, Respondent (Defendant) filed Suit being 2 of 11 L.C. Suit No.1845 of 2007 for Administration and Partition of the estate of the deceased in this Court. The immovable properties in the said Suit proceedings were the Chembur flat and Swagat Lunch Home, as broadly described.
3.2. On 02.10.2012, Suit was transferred to the Bombay City Civil Court and renumbered as L.C. Suit No.5256 of 2007. The said Suit was contested by the Applicant (Plaintiff) in the Bombay City Civil Court. Evidence was led by parties. Trial took place which culminated in the disposal of the Suit by a final Judgment and decree dated 06.05.2017. By the said decree, the learned City Civil Court held that the Applicant (Plaintiff) and Respondent (Defendant) were entitled for partition of the residential flat by metes and bounds and also appointed the Court Commissioner, High Court Bombay for Taking Accounts of the Swagat restaurant business of the deceased which was in the hands of the Applicant (Plaintiff).
3.3. Admittedly the decree dated 06.05.2017 has not been challenged by the Applicant (Plaintiff) and has thus became absolute and final.
3.4. It is contended by Applicant (Plaintiff) that just before the decree was passed on 06.05.2017, Applicant (Plaintiff) filed Testamentary Petition No.1585 of 2016 propounding a Will of 2003 of the deceased. Respondent (Defendant) filed Caveat and Affidavit-in- 3 of 11 support thereof resulting in the Testamentary Petition being converted into the present Testamentary Suit No.113 of 2017.
3.5. In the meanwhile, Respondent (Defendant) filed Execution Application No.151 of 2018 for execution of the decree dated 06.05.2017. By order dated 26.06.2019, Respondent (Defendant) was directed to approach the Court Commissioner for Taking Accounts, Bombay High Court.
3.6. Having been done so by letter dated 06.07.2019, the Court Commissioner for Taking Accounts, Bombay High Court called upon parties and fixed a joint meeting for issuaning directions. Three meetings were held between the Court Commissioner and the parties.
3.7. By the present Notice of Motion, it is now contended by Applicant (Plaintiff) that in view of pendency of Testamentary Suit filed by Applicant (Plaintiff) propounding existence of a Will of the deceased dated 23.06.2003, allegedly bequeathing his entire properties to Applicant (Plaintiff), Execution proceedings in respect of execution of decree dated 06.05.2017 should be stayed.
3.8. Hence, the present Notice of Motion.
4. Ms. Vora, learned Advocate appearing for Applicant (Plaintiff) would submit that Applicant (Plaintiff) has filed Testamentary Suit No.113 of 2017, inter alia, claiming legacy to the 4 of 11 entire estate of the deceased on the basis of the Will dated 23.06.2003 propounded by the Applicant (Plaintiff). She would submit that even at the trial of the Partition Suit, Applicant (Plaintiff) led evidence of one of the attesting witness to the Will, despite which the decree came to be passed in the Partition Suit. She would submit that at the time of trial in the Partition Suit, since the Will was not probated, it was not admitted in evidence. Next she would submit, considering that Testamentary Petition has been filed prior to passing of the decree by the City Civil Court in the Partition Suit, execution proceedings in respect of the said decree be stayed by this Court under the provisions of Section 10 of the Code of Civil Procedure, 1908 (for short “CPC”) read with the provisions of Order XXI Rule 29 of the CPC. On the basis of the above submissions, she would urge the Court to make the Notice of Motion absolute.
5. PER-CONTRA, Mr. Kanade, learned Advocate appearing for Respondent (Defendant) would at the outset submit that the decree dated 06.05.2017 passed by the City Civil Court in Partition Suit No.5256 of 2007 has become absolute and final, in view of the fact that Applicant (Plaintiff) has not challenged the said decree in Appeal and has not obtained any orders from the Appellate Court in respect thereof and therefore the present Notice of Motion is not maintainable. He would submit that decree passed by the City Civil Court in the 5 of 11 Partition Suit has declared both Applicant (Plaintiff) and Respondent (Defendant) being entitled to Partition by metes and bounds to the Suit property and directed Applicant (Plaintiff) to give complete accounts of the Swagat restaurant business from October 2005 till its closure.
5.1. Next he would submit that after undergoing a trial and leading evidence in the Administration and Partition Suit, after much delay of almost 13 years after the demise of Shri. Bhoja Kanthappa Shetty (father of the parties), Applicant (Plaintiff) propounded the Will dated 23.06.2003 from his custody. He would submit that conduct of Applicant (Plaintiff) is thus questionable in disclosure of the Will only in the year 2017 and not earlier. He would submit that nothing prevented the Applicant (Plaintiff) to have approached this Court after the demise of their father in the year 2004 for seeking a probate to claim legacy to the estate of the deceased on the strength of the alleged Will. He would submit that after undergoing a complete trial and a decree for partition in favour of all five legal heirs of the deceased, it is a complete afterthought on the part of the Applicant (Plaintiff) to now propound the alleged Will and seek claim to the entire 100% estate of the deceased to the exclusion of the Respondent (Defendant) and their three sisters. 6 of 11
5.2. He has drawn my attention to the Affidavit-in-Reply filed on behalf of Respondent (Defendant) dated 05.11.2019 and would contend that Applicant (Plaintiff) has not approached this Court with clean hands. He would submit that despite injunctive and disclosure reliefs having been granted by the City Civil Court in the Partition Suit as far back as on 11.07.2017 directing the Applicant (Plaintiff) not to create any third party interest in the properties or transfer tenancy rights and maintain accounts in respect of the Swagat Restaurant business and to furnish copy of accounts to the Advocate of the Respondent (Defendant) on or before 15th January and 15th July of each year, the Applicant (Plaintiff) has failed to provide the accounts of the restaurant business till date.
5.3. Next he has drawn my attention to the averments made in the Affidavit-in-Reply wherein it is stated that during pendency of the Partition Suit before the City Civil Court, Applicant (Plaintiff) did not furnish the original copy of the Will in Court. Next he has drawn my attention to paragraph No.11 of the Affidavit-in-Reply which mentions that deceased father of Applicant was diagnosed in the year 2000 with Alzheimer disease and dementia due to Parkinsons’ disease resulting in loss of memory and a chronic Neurodegenerative disease resulting in problems with language, disorientation and was not able to manage his self care. 7 of 11
5.4. Next he would submit that prima facie reading of the alleged Will would itself show that there is a mistake with respect to the nomenclature of the properties belonging to the deceased. That apart, from the alterations and additions on the Will which are not authenticated by the deceased and by any of the attesting witnesses, the alleged Will is a concocted document propounded by Applicant (Plaintiff) only to defeat the decree and claim of Respondent (Defendant) and the three sisters which has been decreed by the City Civil Court in the Partition Suit. Hence, he would submit that the present Notice of Motion be dismissed with exemplary costs.
6. I have heard Ms. Vora, learned Advocate for the Applicant (Plaintiff) and Mr. Kanade, learned Advocate for Respondent (Defendant) and with their able assistance perused the pleadings in the present case. Submissions made by Advocates have received due consideration of this Court.
7. It is seen that in the present case admittedly the Bombay City Civil Court has passed a substantive decree dated 06.05.2017 decreeing L.C. Suit No.5256 of 2007 which was filed by Respondent (Defendant) before me. By the said decree, Administration and Partition of the Suit properties belonging to deceased have been directed to be effected in equal shares to the five legal heirs of the deceased. This Suit was filed in the year 2007 and was prosecuted by 8 of 11 Applicant (Plaintiff). Record clearly indicates that the Applicant (Plaintiff) had also referred to the alleged Will which is propounded in Testamentary Suit No.113 of 2017 and had also led evidence of one of the attesting witnesses thereto. The learned Trial Court however rejected case of the Applicant (Plaintiff) who was the Defendant in the Partition Suit on the ground that the alleged Will which was referred to by the Applicant (Plaintiff) was not probated.
8. It is pertinent to note that nothing prevented the Applicant (Plaintiff) to have sought probate of the alleged Will of the deceased pursuant to his demise in the year 2004. Record further admittedly shows that Applicant (Plaintiff) at the then time was running the restaurant business namely Swagat Lunch Home after demise of his deceased father. It is clear that Applicant (Plaintiff) waited all along for determination of the Partition Suit filed by Respondent (Defendant) in the Bombay City Civil Court and only immediately before the decree came to be passed instituted the present Testamentary Petition / Suit. This clearly shows that the Applicant (Plaintiff) took his chance by waiting for determination of the Partition Suit and only after the said Suit was decreed, being unhappy with the decree instituted the present proceedings. Admittedly, the Applicant has not challenged the said decree in the Appellate Court. 9 of 11
9. Be that as it may, what is pertinent to note at this juncture is that the final Judgment and decree dated 06.05.2017 has become absolute and final. Applicant (Plaintiff) has not challenged the same in the Appellate Court in First Appeal. In that view of the matter, the present Notice of Motion effectively attempts to revisit the same issues and seek an embargo. This cannot be countenanced by the Court, especially in the facts and circumstances of the present case which are alluded to hereinabove. Applicant (Plaintiff) cannot be permitted to choose the forum before which he desires to agitate his grievance as found convenient by him. Considering the fact that the Applicant (Plaintiff) has chosen not to challenge the decree dated 06.05.2017, the present Notice of Motion and the reliefs sought therein are clearly not maintainable. It is clear that Applicant (Plaintiff) has filed the present Notice of Motion only to defeat the injunctive and disclosure orders passed by the Bombay City Civil Court in the Partition Suit as far as back as on 11.07.2017 and the Executing Court. It is pertinent to note that if the original Will has been propounded by Applicant (Plaintiff) in the present proceedings now, it was also open for the Applicant (Plaintiff) to have produced the original Will during the trial before the Bombay City Civil Court which was infact not done by the Applicant (Plaintiff). 10 of 11
10. I am not detaining myself by referring to the other submissions advanced by Advocate Mr. Kanade, inter alia, on the status of the alleged Will, as I find that the present Notice of Motion is not maintainable due to the reasons stated hereinabove.
11. Notice of Motion is dismissed. No costs. [ MILIND N. JADHAV, J. ] Ajay