TaxTMI 
TaxTMI 
2019 (4) TMI 2154
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...., and the appellant herein was, inter-alia, directed to handover the possession of the assets in his custody including M/s. Hotel Amardeep, Lodging Boarding and Restaurant and Bar, run by the appellant. 3. The appeal presents a usual feature of a man rising in life, with hard work and dedication, and leaving behind substantial property with near and dear ones and a legacy of litigation. 4. The facts leading to the appeal can be stated in brief as under:- (a) The father of the testator Sujan Singh Chadha had started the business of M/s. Hotel Amardeep in 1946. Davinder Kaur, the respondent herein is the wife of testator Amardeep Singh Chadha. The testator and the respondent were blessed with a son-Inderjeet Singh-the appellant herein, and a daughter, Gogi. The appellant married Parmeet and has two children: Hansmeet Kaur and Gurumair Singh. The testator was endowed with a number of properties, including:- (1) Hotel Amardeep situate at 12A Evergreen Building, 3rd Road, Khar (W), Mumbai - 400052; (2) Unit No. 5, Vinay House, Sector 19, Vashi, New Bombay; (3) Flats No. 301, 302, 3rd Floor, Pritika Apartment, Saraswati Road, Santacruz (W), Mumbai - 400054, (4) Flat No. 101, ....
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....fraud, got executed a gift deed from the respondent thereby purporting to gift flat No. 101, in Kusum Villa, in favour of her grand daughter Hansmeet Kaur, and, another instrument whereby Flat No. 302, in Preetika Apartment, was shown to have been gifted to Parmeet by the respondent on 18th March 2017 itself, and thereby attempted to usurp the entire estate. 9. The respondent filed caveat in Probate Petition No. 2458 of 2017. The respondent also presented petition for letters of administration No. TPL No. 971 OF 2018 in respect of the registered Will executed by the testator on 29th January 2014, whereby all the properties were bequeathed in favour of the respondent. 10. In the said Testamentary Petition No. 971 of 2018, the respondent preferred the instant Misc. Petition (L.) No. 2 of 2018 purportedly under Section 247 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') for her appointment as Administrator pendente lite in respect of the estate of the testator. In the said application, it was alleged, inter-alia, that the appellant with malicious intention was trying to usurp the entire estate of the deceased. The appellant was interfering with the ....
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....r of the appellant, Hansmeet Kaur, and Mrs. Parmeet Kaur, the first wife of the appellant, respectively, were taken note of by the learned Single Judge. Lastly, the learned Single Judge found that the decree of divorce between the appellant and Mrs. Parmeet Kaur, whereunder an amount of Rs. 7 lakhs per month was agreed to be paid to Mrs. Parmeet Kaur, towards maintenance, was claimed to be a paper decree by both the appellant and Mrs. Parmeet Kaur. In contrast, the appellant categorically declined to pay even a reasonable amount to the respondent despite substantial income from the hotel business. These factors weighed with the learned Single Judge to pass the impugned order. Being aggrieved, the appellant has came in appeal. 14. We have heard Shri P.K. Dhakephalkar, the learned Senior Counsel for the appellant, and Mrs. Veena Thadani, the learned counsel for respondent at considerable length. 15. The learned senior counsel Shri Dhakephalekar for the appellant assailed the impugned order by raising a slew of challenges. Firstly, according to the learned senior counsel, the learned Single Judge committed a manifest error in expanding the scope of the testamentary proceedings. The ....
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....n, was vehemently pressed into service on behalf of the appellant, we deem it appropriate to deal with the said challenge, at the outset. The edifice of the challenge was sought to be built on the premise that it is a settled position in law that the testamentary court is concerned with the question as to whether the document propounded as the last Will and testament of a deceased person, was duly executed and attested in accordance with law, and whether at the time of said execution, the testator was in a sound and disposing state of mind. The learned counsel for the appellant, to lend support to the aforesaid submission, banked upon two judgments of this Court. 19. One rendered by the learned Judge of this Court in the case of Rupali Mehta Vs. Smt. Tina Narinder Sain Mehta AIR 2007 BOMBAY 62 wherein it was enunciated that in a testamentary suit, the property which is mentioned in the Will or property which may be or may not be left behind by the deceased is not the subject matter of the testamentary suit, and, therefore, in exercise of its power under Civil Procedure Code, the testamentary Court would not be entitled to make any interim order in relation to protection of the pro....
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....an administrator in the case of Shernaz Faroukh Lawer & Anr. Vs. Manek Dara Sukhadwalla & Anr. (Supra), was warranted by the peculiar facts, wherein it was shown that the attitude and acts of the first defendant therein were prejudicial to the interest of estate; which, according to the learned counsel for the appellant, is not the case at hand. 22. Indisputably, the testamentary Court is required to determine the questions as to the genuineness and validity of the Will propounded. In a testamentary proceedings, the Court can not adjudicate the question of title to the property, under bequest, or even the existence of the property. The Court has only to determine whether the Will, allegedly executed by the testator, is of his free will and volition, and it fulfills the requirements as to execution and attestation. 23. Undoubtedly, the pronouncements, on which reliance is placed by the learned counsel for the appellant, enunciate the legal position that the testamentary Court is not empowered to pass interim orders de hors the jurisdiction conferred upon it by the provisions of the Act, as if it is a Civil Court which deals with the proprietary claims to the property. There is no ....
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....e lite. There is no apparent prohibition for appointment of a party to the testamentary proceedings as an administrator pendente lite. However, the provision expressly puts two limitations on the powers of the administrator pendente lite: (i) he has no right to distribute the estate; and (ii) he is subject to the immediate control of the Court and shall act under its direction. 26. The learned senior counsel for the appellant urged that the recourse to the provisions contained in Section 247 by the respondent was a ploy to get over the limits on the jurisdiction of the testamentary Court. Since the testamentary Court could not have passed an interim order, the respondent has invoked the provisions of Section 247 so as to oust the appellant from the business of M/s. Hotel Amardeep, which is being run by the appellant alone since long. 27. This submission, in a sense, revolves around the justifiability of the appointment of an administrator pendente lite rather than the jurisdiction of the testamentary Court to appoint an administrator. In view of the express provision, which empowers the testamentary Court to appoint an administrator to the estate of the testator, pending adjudica....
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.... two gift deeds from the respondent. Under the first deed, the respondent was shown to have gifted Flat No. 101 in Kusum Villa Khar to her grand-daughter Hansmeet Kaur. Under the second deed, the respondent is shown to have gifted Flat No. 302 in Preetika Apartment in favour of Parmeet Kaur. The respondent has alleged that after the said fraud was unearthed, she instituted a suit bearing No. 539 of 2018, questioning the validity of both the gift deeds. On a Notice of Motion filed therein, an order of status-quo has been passed by this Court on 21st April 2018. The second set of proceedings is the petition of probate instituted by the appellant propounding the Will, allegedly executed by the testator on 12th April 2017, being Probate Petition No. 2458 of 2017. The other is the petition for letters of administration being TP(L.) No. 917 of 2018 filed by the respondent in respect of the Will, allegedly executed by the deceased on 29th January 2014. In view of the caveats filed in the rival testamentary petitions, the said petitions are being tried as contested suits. 32. At this juncture, a brief reference to the dispositions in the alleged Wills propounded by the appellant and the r....
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....on thereunder without electing to forego benefit which he derives under the said Will. 35. Assailing the impugned order, it was submitted that there was no foundation in the application regarding the waste of the estate of the testator. It was urged that the fact that the appellant was siphoning off the income from the business of M/s. Hotel Amardeep, especially that the appellant was giving a large amount of money to Parmeet Kaur and thereby causing loss to the estate of the testator, was nowhere pleaded in the application. On the contrary, in the application, an endeavour was made to show that during the lifetime of the testator, the respondent was looking after the business of the said hotel alongwith the deceased and even after the demise of the testator, the said business was being run by the respondent through manager and staff. However, the appellant, taking undue advantage of the condition of the respondent, interfered with the said business and siphoned off the money therefrom. 36. Evidently, the application contains averments to the effect that the appellant has been siphoning off money from the income of M/s. Hotel Amardeep. It is true that the application does not fin....
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.... mere factum of the appellant and Mrs. Parmeet Kaur allegedly residing together despite a decree of divorce. Nor is it restricted to the personal marital life of the appellant and Mrs. Parmeet Kaur. The circumstances in which registered documents have been allegedly got executed whereby the respondent is shown to have gifted the properties to not only her grand-daughter but also to Parmeet Kaur, the divorced wife of the appellant, cannot be said to be insignificant or inconsequential. As indicated earlier, as a part of settlement of marital dispute, under the decree of divorce, three immovable properties were transferred in favour of Mrs. Parmeet Kaur by the appellant. The two immovable properties, which stood in the name of the respondent, were shown to have been gifted away by the respondent by the gift deeds dated 18th March 2017. 41. The flurry of activities in close proximity to the death of the deceased, i.e., 27th April 2017, namely (i) a decree of divorce between the appellant and Parmeet Kaur dated 30th January 2017; (ii) the marriage of the appellant and Sonu Pandey on 14th February 2017; (iii) the execution of the two gift deeds by the respondent on 18th March 2017, (iv....