TaxTMI 
TaxTMI 
2018 (12) TMI 1992
X X X X Extracts X X X X
X X X X Extracts X X X X
....cember, 2013 the Administrator was directed to file the proceedings for recovery of properties and to engage Advocates and seek directions from this Court as and when necessary. The Administrator has since opened a bank account with the Central Bank of India, Mahatma Gandhi Road, Mumbai (Administrative Account). The reference as to plaintiffs and defendants in this order shall mean reference to the parties to Testamentary Suit no. 29 of 2012. 2. In this report, the administrator has sought the following reliefs: (a) direct the defendant no. 1 to make available to the administrator of document pertaining to flat no. 8, Al-Karim Manzil, including papers pertaining to litigation in respect of the said flat; (b) direct HSBC to furnish to the administrator copies of statements of accounts, details of account holders and authorized signatory relating to bank accounts in the joint names of testator late Purvez Burjor Dalal and/or late Jamshed Burjor Dalal, brother of the testator and one B.J. Dhoodmal including the particulars of bank account to which certain sums of money had been transferred from the account held in the HSBC by Jamshed and Purvez Dalal; (c) a direction to Kotak M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Charitable Objects (the Trust). 5. It is the case of the applicant that Amoha along with one Jamsheed Minocher Panday have conspired with defendant no. 1 to siphon funds from the estate of the deceased. In the course of hearing of this Report, numerous orders have been passed by this Court leading to disclosures from time to time. It is contended that these disclosures prima facie reveal that the siphoning of monies probably involved other persons/entities such as one Safe Securities Services, Sarvashri Dady Lam, Jamshed Panday, Asfandiar Daroowalla who are suspected of playing a systematic fraud on the Court appointed administrator and the plaintiff. Mr. Khambata submitted that defendant no. 1 had opened an account with Kotak Mahindra Bank in the name of deceased but failed to provide bank statements and the account opening form. The administrator procured these and then learnt that another account had been opened by the defendant in Yes Bank. The account in Yes Bank had not been disclosed earlier although the defendant no. 1 was duty bound to disclose it. The said Panday is said to be married to Feroza, a cousin of the defendant no. 1. Although Mr. Panday's real name is Ja....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tax Act; (iv) Accounts of the trust prior to 2008; (v) Certificate under Section 12A dated 25th September, 2012 and connected papers and the statement which refers to the name of trustee in an order dated 28th August, 2017 passed by this Court. According to Mr. Khambata these are documents which find reference in the records and there may be other documents, existence of which is not apparent today. The plaintiffs have also contended that the defendant has engaged in fabrication of documents and an attempt to mislead the Court that in the affidavit in reply dated 14th July, 2017 in response to the administrator's report, the defendant no. 1 contended that the trust was set up as a public charitable trust by Mr. Naval Tata. According to the plaintiffs, defendant no. 1 had made false statements. The documents revealed that the declaration of trust is dated 3rd March, 1943 and although the trust contained reference to the name Tata it was not set up by Naval Tata and Avabai Tata was not the mother of Naval Tata as incorrectly contended by defendant no. 1 who has tried to pass off the trust as being associated with the well known house of Tatas. Defendant no. 1 has omitted to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eference is made to correspondence with the banks. The so called certificate under Section 80G of the Income Tax Act has still not been disclosed although defendant no. 1 continues to contend that the donations, made to the trust were entitled for tax benefits. The trust was compelled by this Court to disclose their bank accounts which revealed payments made to defendant no. 1. It is now sought to be contended that the amounts were being returned to defendant no. 1. Some of the amounts are said to be paid for medical treatment of one Mr. Waghmare who is obviously not from the Parsi community. The name of the trustees were also suppressed and it is only after the challenge in the Supreme Court was rejected that these names were forthcoming. Till then the names of the trustees were suppressed. It is submitted that the trust had stopped since functioning by 2008 and since the relevant Will was to be executed in 2011 the trust was sought to be revived. 10. Mr. Khambata submitted that several events establish that the trust was sought to be revived for the purpose of fraudulent activities. In October 2011 Mr. Lam, the trustee affirmed an affidavit in support of his change report to add....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ffidavit dated 24th April, 2018 defendant no. 1 had stated that Amoha had acted as the introducer of the bank account and that he was not operating any email account. He further contended that he had provided to the bank his contact details as that of Amoha since Amoha maintained a running office and communications could be received from the bank. 13. Mr. Khambata further submitted that so called loans amounting to Rs. 27,92,147/- were given by Amoha, despite the contest to the Will, to meet its expenses of the estate through a nominated entity. Mr. Daroowala is said to be involved in the grant of the alleged loan although he shown to be a minor shareholder of Amoha. Although it is contended that defendant no. 1 had repaid a sum of Rs. 17,08,147/- on behalf of the estate it would still leave a sum of Rs. 10,84,000/- due, Amoha had not claimed this amount despite filing of the affidavits and had avoided service of letters issued by the administrator. Mr. Khambata submitted that the reason for Amoha not asserting its claim is obviously because these amounts were not shown as loans or advances in its balance sheets. It is further submitted that the repayment of such funds in itself w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed as Amoha had incurred Rs. 17,08,147/- on behalf of the estate and had received reimbursement thereof. The certificate is issued on the basis of alleged "verification of books and information and explanation provided by the representative of the company" but the name of the representative is conspicuous by its absence. The information and explanations referred to by the Chartered Accountant has also not been disclosed in the affidavits filed by Amoha. 15. Mr. Khambata submits that Amoha is owned and controlled by said Panday who along with his wife and nominees hold stakes in companies known as Great Western Finance and Leasing Ltd. and Lakshmi Vijayam Investments Pvt. Ltd. and owned about 75% issued shares of Amoha Traders. The fact that Paowalla acts as an authorised representative is admitted by him in an order passed by the Securities Exchange Board of India and forming part of the plaintiffs affidavit dated 12th October, 2017. Mr. Khambata submitted that within a fortnight of the demise of the testator, the said Panday has signed as a witness in a purported letter of possession dated 21st December, 2011 by which defendant no. 1 is believed to have handed over possession of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ersons are clearly contemplated under Section 303 and 304 of the Succession Act and all these persons are accountable to the estate, to the administrator of this Court. Mr. Khambata submitted that Amoha's contention that it has not inter-meddled with the estate because it did not possess any asset of the estate is incorrect since it had taken money from the estate funds. He submitted that an inter-meddler is any one who dabbles with the estate of the deceased and that the claim of bills being raised in the name of Amoha and Amoha paid them directly is sufficient to constitute Amoha an inter-meddler. In this behalf, Mr. Khambata referred to the decision of Sudama Devi and Ors. V/s. Jogendra Choudhary and ors. AIR 1987 Patna 239(FB). He further submitted that Panday in collusion with others had conspired to siphon of the estate and interfered with the estate and dealt with it illegally when the property was in medio and even after this Court had passed the order of injunction. He submitted that defendant no. 1 is closely connected with said Panday and the companies in question and defendant no. 1 had committed forgery by stating that he had no nexus with Panday or Amoha Traders. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e disclosed to the administrator or to the Court and the defendant no. 1 who would have been recipient of the Director's Report would certainly have been aware that loans were shown in the name of the deceased testator. It is submitted by Mr. Khambata that these facts have now been discovered upon a search being carried out by the plaintiffs and none of these aspects have been denied by the defendant no. 1 or the respondents or dealt with while making submissions. 18. Mr. Khambata submitted that in the plaintiffs affidavit dated 17th January, 2017 it was pointed out that defendant no. 1 was a shareholder of Canos and had filed an affidavit in reply dated 24th April, 2018 wherein, while dealing with paragraph 44 defendant no. 1 contended that he was not aware of the contents and hence did not comment upon the same. Defendant no. 1 had filed an affidavit dated 19th June, 2018 in which he has admitted that he holds shares in Canos and that he had received Rs. 1,17,22,959/- who claims to have received as a personal loan and has attempted to explain away the Director's Report as "incorrect" and an "error" relying upon the purported Chartered Accountants certificate. No explanat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rado Guarantee. Another common link is the email id which bears the prefix "[email protected]" is used by Amoha, Canos, Arma, Allanzers Securities, El Dorado Residences and Alpic BBK Finance Ltd. which is since in liquidation. The email address "[email protected]" is thus used by Arma, El Dorado Securities, Pirojsha Consultants, El Dorado Guarantee, Great Oaks Holdings, Lakshmi Vijayam Investments and Great Western Finance and Leasing. These facts have been gathered from the plaintiffs affidavit dated 16th May, 2018. The Defendant no. 1 or the others have not disputed these statements in the plaintiffs affidavit. 20. Mr. Khambata submitted that the denials in the affidavits filed on behalf of the Amoha to the Administrator Report contained vague and evasive denials and only in the affidavit dated 8th May, 2018 few of the allegations have been briefly dealt with on merits and there is little or no denial. Mr. Khambata submitted that an evasive denial or a failure to deny constitutes an admission. He relied upon the decision of the Supreme Court in the case of Jaspal Kaur Cheema v/s. Industrial Trade Links (2017) 8 SCC 592 and Express Newspapers Pvt. Ltd. V/s. Union of India and oth....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... pending does not prevent compliance with the order. In this behalf, Mr. Khambata referred to the judgment of the Supreme Court in State of Uttar Pradesh v/s. Mohd. Noor AIR 1958 SC 86. He further submitted that the appeal Court had not stayed the judgment holding the defendant no. 1 in contempt but has merely suspended the sentence. The order of the Division Bench dated 24th February, 2017 had observed that the plaintiffs have a right to find out if the said trust was being used as a front to siphon off the estate. Furthermore it is submitted that attempts made by the administrator from time to time calling for information and documents is made to which no response was forthcoming as evident from the administrators report. The administrator is therefore facing serious difficulties in ascertaining the information to the extent of the estate. Apart from the matter siphoning away of the estate funds, third parties have continued to exploit and interfere with the estate when it is in medio and have indulged in fabrication of documents and that the administrator is not been able to discover and recover the assets without the assistance of this Court. 22. In any event, Mr. Khamba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eing punishable under Section 209 forgery under Section 463, 464, 471 as also section 467 there being a conspiracy that has been purported by the alleged conspirators. He relied upon the decision in the case of R.K. Dalmia v/s. Delhi Administration AIR 1962 SCC 1821 and that the defendant no. 1 with the assistance of the alleged conspirators committed contempt of Court. The identities and the roles if any played by these persons requires to be looked into. He submitted that defendant no. 1 and the respondents cannot question the power of Court to consider the relief sought. Their contention is that the testamentary Court's jurisdiction can not be invoked to grant reliefs for refund of monies and that refund of monies, if any, can only be sought in appropriate proceedings when defendant no. 1 would have fullest opportunity to defend the case. He submitted that although whilst granting or refusing probate, the Court does not concern itself with the title to or existence of the property bequeathed, the testamentary Court continues to be the High Court with all its jurisdictions and authority and powers since the Court would be enforcing of its order dated 21st June, 2012 and other....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that although the Court may feel that the administrator required to file appropriate proceedings to recover amounts that can only depend on the pleadings and proof placed before the Court and this is observed by the Supreme Court in Anthoney C Leo v/s. Nandlal Balkrishnan & Ors. 1996) 11 SCC 376 and Usha Harshadkumar Dalal v/s. ORG Systems & Ors. 2001 SCC 742 He submitted that summary proceedings did not diminish the power of the Court and even complicated questions can be considered as observed by the Supreme Court in Mohan Lal v/s. Kartar Singh 1995 Suppl. (4) SCC 684 and Sanjeev Kumar Mittal v/s. The State 174 DLT 214. This aspect has been considered at length and that Court monitoring investigation was justified prior to launching the complaint under Section 340 of Cr.P.C. In the matter of ordering an investigation, it was submitted that a high ranking officer may conduct the investigation as considered in the case of Vijay Enterprises v/s. Gopinath Mahade Koli and others 2006(4) BCR 701 as also Sita Ram v/s. Balbir alias Bali 2017 (2) SCC 456 (**). Reference was also invited to the decision of the Supreme Court in the case of Pritish v/s. The State of Maharashtra (2002) 1 SC....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t where upon a death of person there is a litigation in the probate Court touching the executorships to the deceased and since during the context none can act as executor. The probate court may grant administration to another pending the suit. The administrator may collect the effects sue, if necessary since it is the part of his office to recover and get the debts of the deceased. The Calcutta High Court followed the judgment in Bellew v. Bellew (1865-4 Sw & Tr 58) to the effect that the probate court may grant administration of the estate pendente lite and that the Court of Chancery would appoint a receiver when the property was in medio. That the estate being in the enjoyment of no one, it is in the common interest of all parties that the Court should prevent a scramble and in such situations receivers are appointed and the charges are made against the executor named in the Will. The Executor who is mixed up in the case as executor should not be appointed the Administrator pendente lite] 28. In S.K. Gupta (supra), the Supreme Court was considering a case of a company in an action under Section 392(2) of the Companies Act and while dealing with the case it observed that the Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t to apply but not absolute right and there are limitation. 33. Section 193 has three prerequisites. Firstly an examination on oath, a further inquiry and person in possession must have no legal title. He invited my attention to the statement of objects and reasons in Succession Act. He submitted that section 193 applies to both movable and immovable properties and there is no prejudice caused to the plaintiff if the relief sought are declined. Mr. Thacker then submitted considering the provision of section 208 and 209 that the application is premature considering the summary provisions till a final view is taken, today it is time barred due to section 205 in which the six months period commence in 2014 when the Kotak Mahindra Bank amount was received, the present application is filed only in the year 2016 and that the plaintiff has not been diligent. 34. Furthermore the plaintiff is seeking independent relief beyond the scope of Chapter VII of Part IX. He made reference to the Act 90 of 1841 which was an act for protection of movable and immovable property against wrongful possession in cases of succession and referred to provisions of that Act. In support of his contention that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y case, Mr. Thacker submitted that the only relief that can be granted was under part VII and under section 269. He submitted with reference to the Administrator's Report, that all documents were already disclosed in the contempt petition and they were also provided to the Administrator on 7th October, 2016. He referred to the letter dated 10th April, 2015 addressed by the administrator to the then Advocate for defendant no. 1 in response to the letter dated 26th December, 2014 and 12th December, 2014 and submitted that copies of all documents received from Kotak Mahindra Bank were provided. He further submitted that all invoices were also provided and it is material to note that the administrator has not contended that the documents or any of them were fabricated. Referring to the chart at page 739 he submitted that the deceased had no cash, chart was prepared by defendant no. 1 and as executed by defendant no. 1 was authorised to make disbursement. This was necessary and for the benefit of the estate. Mr. Thacker submitted the affidavit filed by defendant no. 1 dated 21st November, 2012 in notice of motion no. 138 of 2012, all disclosures had been made (see Exhibit 55) and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aled that the signature of the testator on the will is forged. Lastly he submitted that the balance of convenience favours the defendant no. 1. He submitted that the deceased had transactions with various parties as seen from the Bank statement received from HSBC. 39. Although these aspects has not been pleaded it is evident from the record it is submitted that the deceased had himself given a loan to Kratos as of 2013. He submitted that the loan to Kratos was given in 2013. The Directors report showed that monies had been borrowed. However this is incorrect since it is clearly an error. He submitted that there are no Government securities to the knowledge of Defendant no. 1. The family of deceased did not have any Government securities and reference to Government securities is only to be found in the Will of the deceased brother. 40. Mr. Thacker relied upon the following judgments: 1) Mt. Azimunnisa Begum v/s. Sirdar Ali Khan and Others AIR 1927 Bom. 387; 2) Bai Panbai vs. Morarji Kanji AIR 1927 Bom. 438; 3) Premraj Mundra v/s. Md. Maneck Gazi & Ors. AIR 1951 Cal. 156; 4) Raman Tech & Process Engg. Co. and Anr. V/s. Solanki Traders (2008) 2 SCC 302; 5) FGP Ltd. v/s Sal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... culled out the following guiding principles (1) that an order can be issued under Rule 5 & 6 of Order 38 only if circumstances contemplated in Order 38 exist and (2) whether such circumstances exist or not is a question of fact which has to be proved to the satisfaction of the Act. (3) The Court may not be justified in issuing an order of attachment before judgment merely because it thinks that no harm will be done or the defendants would not be prejudiced. (4) Furthermore, the affidavits supporting such contention of a applicant must not be vague and properly verified. (5) The affidavit in support must be true to knowledge, information or belief and it must state which portion is true to knowledge of the person making the affidavit. (6) The fact that a party is insolvent by itself would not justify passing of an order of attachment. Mr. Thacker submitted that in view of these guidelines that found in favour with the Court and if all these guidelines are put to used in the present case, the facts would not justify grant of an order directing investigation. He submitted that the decision of Premraj Mundra has been approved by the Supreme Court. 44. In the case of Raman Tech (supra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ues of title or existence of the property and therefore cannot enter upon the controversy in the present case and therefore this Court cannot grant relief in the case at hand. He relied upon paragraph 14 and 15 of the judgment which dealt with Section 273 declares conclusiveness of the probate which are conclusive as to the representative title against the debtors of the deceased and all persons holding property which belonging to him and affords indemnity to all debtors and by operation of Section 211(1) the executor of a deceased person is his legal representative for all purposes and all the property of the deceased person vests in him. The judgment also considered the decision of Ishwardeo Narain Singh (supra) reiterating that the probate court is only concerned with the issue of the documents to be forward as a last Will in testament. 48. In Ramapati Tewari (supra) Mr. Thacker relied upon the observation of a single Judge of the Allahabad High Court that the District Judge had not recorded any finding as to whether any material prejudice would be caused to the applicant if he invokes the ordinary remedy of the suit and as to whether the application was bonafide. Both these we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stigation into the affairs of the estate by outside agencies. He submitted that the administrator is fully empowered to take whatever steps are required under law. He relied upon an affidavit of the defendant no. 1 dated 21st November, 2012 and the exhibits to the said affidavit on behalf of defendant no. 1 he denied that defendant no. 1 was at fault and adopted the contents of the affidavit to the exception relevant. He submitted that the expenses incurred on behalf of the estate were necessary expenses and were being paid even earlier during the lifetime of the deceased. He relied upon Exhibit 10 to the affidavit of Mr. Sukhadwalla to which recorded that there was a incidence of trespassing in the flat owned by the deceased. He submitted that the appointment of security guards was therefore necessitated. He relied upon a letter dated 8th September, 2011 Exhibit 14 to the said affidavits wherein the deceased had himself recorded that he had discontinued a services of his personal physician and had consulted Dr. Rumi K. Unwala instead of Dr. L.S. Ballani whose integrity the deceased had doubted even during his lifetime. Mr. Thacker submitted that there was no occasion to doubt the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct cannot be sought that the notice concerned was responding to an administrator's report and the plaintiff cannot make enquiries against other persons who are not claiming the estate. He submitted that no order can be passed in terms of paragraph 24(e) of the report directing Amoha to handover and pay to the administrator a sum of Rs. 17 lakhs paid to Amoha on 24th March, 2012 out of the KMBL bank account without a proper investigation into the claim is made. He referred to the decision in Rupali Mehta (supra) and Ramchandra Hande (supra) and submitted that those were cases involved questions of title and in the present case there is no question of a dispute on title. These judgments were not helpful to the plaintiffs or the administrator. It is submitted that as far as Amoha is concerned, the claim against Amoha is restricted to Rs. 17 lakhs and that balance sum of Rs. 10 lakhs is paid over by defendant no. 1 who has spent Rs. 27 lakhs for protecting the estate. He submitted that Article 215 of the Constitution of India cannot be invoked in the facts of the present case since the testamentary and intestate jurisdiction is unique and the High Court's empowerment under Arti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....strator referring to paragraph 827 he submitted that the administrator can file appropriate proceedings for recovery of properties. He submitted that in view of this specific direction there was no occasion to pass any further orders on the report. Referring to paragraph 77 of the order of the learned single Judge appointing the administrator, he submitted that the learned single Judge had observed that in respect of tenanted properties forming part of the estate, steps will have to be taken for recovery of possession or rent and for which appropriate proceedings will have to be filed. He submitted that this observation supports his contention that it is for the administrator to adopt the appropriate proceedings. Mr. Apte further submitted that as evident from the order dated 23rd June, 2017 passed by appellant and in paragraph 4 thereof, the property is not clearly a subject matter of the testamentary suit or probate proceedings and that only prohibitory orders can be granted. In the present case monies are donated before the appointment of the administrator. This money was used for the objects of the trust and although payments were made to non-parsis it was legitimately made use....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n that case the deceased was Hindu and therefore Section 269 was not available. This Court held that the very fact that the legislature had made a special provision under Section 269 of the Act giving power to the Court to make orders for protection of property during the pendency of the probate petition or the petition for letters of administration and restricted that category of persons would indicate two things firstly in order to enable the testamentary Court to make an interim order in relation to the properties during the pending of probate petition or a petition for letters of administration, the legislature has to enact a provision, secondly, the legislature did not intend to confer such a power on the testamentary Court in relation to the persons who are in the category mentioned in Section 269(2) of the Act. So far as the Act is concerned, there is one more provision which gives power to the Court to make orders for protection and that is contained under Section 192 and 193. Section 192 provides of a situation where an order of the protection of the property under Part VII of the Act is made by the Court in a summary proceeding and the Court can make such an order when th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mr. Apte relied upon the fact that the Probate Court is not concerned with the questions relating to the property itself. The Division Bench in Ramchandra Hande had considered their express provisions contained in Section 269(2) to the effect that there could be no recourse to the exercise of the inherent powers of the Civil Court and this would not preclude recourse to a Civil Suit for obtaining necessary relief for protection of the property. We are not concerned in the present case with issues of title or ownership but ascertaining the extent and misuse of the estate. The Division Bench had also considered the judgment of the single Judge of this court in P.S. Laud (supra) which according to the Division Bench did not dealt with the issues arising in Ramchandra Hande (supra). 61. The Division Bench in Ramchandra Hande (supra) held that the words "all matters connected therewith" in Section 266 of the Act must receive the interpretation in the context in which they are used and in the context of jurisdiction of the probate court. It is a well settled principle of law that the Court cannot go into questions regarding title or as to an existence of a property bequeathed by the dec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... probate court. The notice of motion was therefore dismissed. Submissions in rejoinder 64. Mr. Khambata in rejoinder reiterated that the Succession Act is a code in itself. In the present case there is a lis between the administrator and defendant no. 1. No evidence has been led by defendant no. 1. Mr. Khambata recapitulated the defence that the Court cannot order in investigation and that even if a sum of Rs. 32 lakhs has been siphoned off from the estate, the testamentary Court cannot pass orders in relation to bringing it back. He submitted that Section 247 of the Succession Act gives immediate control to the Court over the estate through the administrator and since the administrator is subject to the control of the Court and is to act under the direction of the Court. Under Section 269 the Court has power over all the parties concerned in the present litigation, powers of the Court are extremely wide as contemplated in Section 266 in relation to all matters connected with and in relation to grant of probate, powers of the Judge under Chapter IV of Part IX are all encompassing before any civil suit or proceeding pending in the Court of the concerned Judge, that under Section 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment of the Division Bench dated 8th August 2015 in case of the deceased P.B. Dalal to which I was a party, Mr. Khambata submitted that in the Birla case an injunction had been granted and this aspect has been considered by the Division Bench in paragraph 68, 69, 73 of the judgment. Furthermore, in paragraph 75 the propositions in Rupali Mehta(supra) have also been considered. He further submitted that payments made to Amoha and Safe Security Services were not disclosed on affidavit. He submitted that the case of Ramchandra Hande (supra) and Rupali Mehta (supra) do not apply. Firstly because they do not consider a case whether the estate is in medio. They did not consider that it was the High Court exercising its powers and this was not raised before the Single Judge or the Division Bench. In the decision of Ramchandra Hande (supra) in paragraph 14 the inconsistency between Section 269(1) of the Succession Act and Section 151 of the CPC was gone into which is not relevant in the case at hand since the deceased was a Parsi. He further submitted that once an administrator is appointed, he is like a receiver and as if the property is custody legis and in the present case defendant no.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mare. It was contended that the payment was made to defendant no. 1 on behalf of Waghmare who was an in-patient and amounts paid by Waghmare were reimbursed by the defendant no. 1. No account books were produced and there is nothing to co-relate the amount of Rs. 15 lakhs of the expenses from the date of receipt of the amount till the money was spent. 68. Mr. Thacker on behalf of defendant no. 1 had submitted in this respect that Waghmare did not have funds. Defendant no. 1 paid the hospital and he received reimbursement. On the judgments cited by Mr. Khambata, Mr. Thacker submitted that the same were not relevant and that judgment was in relation to suit by a person who gave a loan. In the present case, defendant no. 1 took money was taken from the executor and the case against the estate is not relevant. 69. In J.P. Srivastava and Sons (P) Ltd. and Others v/s Gwalior Sugar Co. Ltd. and Others (2005) 1 SCC 172 the Supreme court observed that substance must take precedence over form. There are some rules which are vital and cannot be broken and some were non-compliance may be compensated or dispensed with and if there is substantial compliance with the rules read as a whole, no p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the advantage gained by breach of the order. 73. In Pritam Pal v/s. High Court of Madhya Pradesh, Jabalpur through Registrar 1993 Supp (1) SCC 529 the Court considered the nature and scope of contempt power of the Supreme court and High Courts held that power is not restricted to any ordinary legislation including the Contempt of Courts Act and the Code of Criminal Procedure and that the procedure in exercise of this power being summary in nature should be fair and a reasonable opportunity should be granted to the defendants as contemnor should be made aware of the charge against him so that he could defend himself. The defendant no. 1 has already been held in contempt. Despite that he continues to be obstructive despite opportunities to come clean. Although we are not presently considering contumacious conduct, the fact remains that he has had sufficient opportunity. 74. In Sita Ram (supra), the Supreme Court directed the Central Bureau of Investigation to nominate a senior officer to conduct an inquiry into the circumstances in which the respondent therein was admitted to private hospital. This was a case of Contempt of Court wherein the hospital authorities knowingly assisted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not be known and thus in Sanjeev Kumar Mittal, the Court ordered an enquiry. The decision of Sanjeev Kumar Mittal had also taken into account in decision of this Court in Vijay Enterprises (supra). Conclusions 76. Having dealt with broad framework of law as canvassed by the counsel, it would now be appropriate to consider the jurisdictional aspect as to whether this Court can in its testamentary and intestate jurisdiction on a report of a administrator order an inquiry as sought. The scope of Section 247 of the Succession Act empowers the Court to appoint an administrator with rights and powers of general administration excluding the right to distribute the estate. The administrator in question shall be subject to the immediate control of the Court and shall act under the directions of the Court. Needless to mention, administration as contemplated in Section is pendente lite. There is now no doubt that in the facts of the present case the appointment of the administrator was justified inasmuch as it is now final, with all challenges to his appointment having been repelled. When we consider the rights and powers of administrator it would no doubt encompass the aspect of administra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e respondent, almost in chorus, is that the administrator should be relegated to file suits or complaints. One of the reasons why such proceedings will be adopted is that there is no justification for the administrator to avail of any special benefits by the Court order in investigation under Section 340 of Cr.P.C. and that filing of in proceedings just like any other litigant would suffice. In my view, filing of criminal complaint would also involve engaging State machinery. The filing of a complaints by the Administrator would not still save the involvement of State machinery. Thus, under Section 194 the Court could summon the defaulting party and determine summarily, the right of possession. No doubt the focus in Chapter VII is on possession and Section 194 is subject to the provisions of filing a suit. A suit is contemplated under Section 208. In fact Section 208 saves the right of filing a suit, should the application under Section 194 be rejected. Thus, it is clear from the Scheme of the Act that rejection of an application for protection of property under Section 192 to 193 will not bar the filing of a suit. The Court in that case observed that the Act itself contains no pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Vimla Rajani(supra), Mr. Apte had contended that the probate court cannot consider whether a bequest is good or bad. The Court could not issue directions to deposit monies in Court and therefore submitted that there is no power to order any enquiry that the administrator can take such action as permitted in law. The decision in Vimla Rajani (supra) however, did consider the distinction between the Court having power to do a thing and the exercise of a power for good and valid reasons. It observes that the Court cannot exercise the power arbitrarily. This observation came in the context of appointment of an administrator. However, once appointed, the question is whether the administrator should be left to fend for himself or is entitled to support, so to speak, from the Court. The decision in Vimla Rajani (supra) considered only the appointment of an administrator and nothing beyond. Interestingly, in Ramapati Tewari (supra), it is observed that the District Judge had invoked powers under Section 192. The District Judge had not recorded any finding as to whether any material prejudice would be caused to the applicant if he invokes ordinary remedy of a suit and whether the applicatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uiry to investigation to be conducted in the facts leading up to the controversy which has led the testamentary Court to appoint an Administrator. 81. This aspect of jurisdiction was once again considered in the context of the Succession Act in the case of Chiranjilal Shrilal Goenka (supra) which held that the Court of probate has exclusive jurisdiction and that the civil Court cannot confer jurisdiction to adjudicate upon proof of a Will and unless the grant of probate is revoked it operates as a judgment in rem. The Probate Court does not decide any question of title or the existence of the property itself. In doing so, the Court considered this aspect of jurisdiction if any. It would be appropriate to consider how courts have approached the situation which is identical or similar to the one that the parties are placed in today. In this behalf, it would also be useful to consider the observations of the Supreme Court in the Fuerst Day Lawson Ltd. (supra) which made reference to the decision in P.S. Sathappan v/s. Andhra Bank Ltd. 2004 (11) SCC 672 holding that the Arbitration Act 1940 from its inception and till 2004 was a self contained code and the finding that the Arbitration....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... India are superior courts of record. They have inherent and plenary powers and unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Court have unlimited jurisdiction including the jurisdiction to determine their own powers. In this behalf, the reference was made to the decision of the Supreme Court in Naresh Shridhar Mirajkar v/s. State of Maharashtra 1966 (3) SCR 744. No doubt if the observation of the Supreme Court was the matter pertaining to the admiralty jurisdiction exercised by the High Court. However, but while culling out the essence so to speak of the powers of the High Court I am of the view that unless it is expressly barred by statute, the High Court in its testamentary jurisdiction would be able to exercise powers to enforce its own orders and to that extent monitor the effect of its own orders. The appointment of an Administrator by the High Court being final, it is appropriate that the Court ensure that the appointment of the administrator and the steps taken by the administrator in exercise of his duties are not frustrated or defeated by the machinations of parties that the Administrator is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....95, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court mak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at he is entitled to from the defendant no. 1 and other persons inter-meddling with the estate. This fact therefore would be relevant. 87. In the present case, if I come to the conclusion that the facts narrated in the pleadings, the report and as canvassed by the parties justify the commencement of an enquiry, there must be sufficient material to justify initiation of the enquiry. In this respect, Sections 193 of the IPC provides for punishment for giving false evidence. Section 194 provides for giving or fabricating such evidence. It is intended to procure conviction of capital offence. Section 195 concerns intention to procure conviction for life imprisonment. Sections 196 and 199 contemplates offence when false evidence and false statements is given if the party knew to be false. Likewise Section 200 deals with use of any declaration knowing it to be false. Section 205 to 211 deals with aspects of false personation, fraudulent removal and concealment of property and dishonesty in making a claim in Court knowingly to be false. In this behalf, Section 209 reads as follows; "S. 209. Dishonestly making false claim in Court. - Whoever fraudulently or dishonestly, or with intent t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... highlighted by a single Judge of this Court in his order dated 24th December, 2013. A clear finding was recorded that the defendant no. 1 had suppressed true or correct facts in the report and that he had inter-meddled with the estate. One must not forget that the estate is in medio and all parties are since proceeding on that basis. Even considering the involvement of Amoha Traders there are far too many connections with the defendant no. 1, the estate of the deceased and the numerous financial transactions that require closer scrutiny and such scrutiny is not possible if the defendants/notices concerned are not forthcoming, truthful and volunteer necessary information as and when such information is sought, failing which the only alternative left is to initiate an inquiry. In my view, leaving it to the administrator to file a suit may be appropriate and in normal cases the rule, the Court directing the filing of a complaint may be the exception. Given the factual matrix and the complex machinations now revealed, I am inclined to believe that directing an Officer of this Court to file an appropriate complaints would be the correct course of action. 90. In particular the involvem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tated that he held shares in Canos and that he received a sum of Rs. 1,17,22,959/- he however, accepts the statements in the Directors' report as "incorrect" and an obvious error and relies upon a Chartered Accountants Certificate. The Chartered Accountant is common to Amoha Traders and Canos Trading. Furthermore, the certificate relied upon by the defendant no. 1 to claim that there was an error in the Directors' report reveals that the certificate was issued after verification of books of account and other relevant records produced before the firm of Chartered Accountants by Canos Trading for the financial year ended 31st March, 2016 and on the basis of "verification" and "explanations" provided by the company. It does not contain mention of any documents verified. Furthermore, the defendant no. 1 does not produce any certificate from his own accountant. One fact clearly emerges, that there are wheels within wheels and the questions that arises indicate influences that defendant no. 1 is subjected to self invited or imposed upon him by persons unknown. If that be so, it is necessary to identify the persons responsible for these developments because the estate has been tar....