BETTY SURESH MAHINDRA v. MARTHAND SINGH MAHINDRA — 1990 DIGILAW 660 (KAR)

K. JAGANNATLIA SHETTY, J. ( 1 ) THE petitioners have tiled this Application under Section 247 of the Indian succession Act, 1925, for appointment of an Administrator pending disposal of the main proceedings touching the validity of the Will and six Codicils of the deceased suresh C. Mahindra for grant of Letters of Administration of the Will and six codicils annexed with, such Administrator being delegated with all the power and rights of general administration other than the rights of distributing such assets of the deceased subject to the immediate and absolute control of this Court. ( 2 ) IN support of the application 1st petitioner has filed an affidavit where in shehas averred that she together with and on behalf of her two minor children have filed a petition for grant of Letters of Administration with the Will and six Codicils. The estate oflate Suresh C. Mahindra is very large and of considerable value and the bulk of it is in the State of Karnataka, but lesser and somewhat more considerable assets in the estate arc situated in the State of Tamil Nadu and Maharashtra. ( 3 ) IT is averred that the 1st respondent has contended against the Will and six Codicils as being bogus. He arrogated himself as the authority on the ground that he being the eldest son of the deceased Suresh C. Mahindra seeking the estate to be divided in accordance with Hindu Law of Succession as on intestacy. 3. 1. It is further averred that the 1st respondent, on the ill-advise, is interferning with the properties of the deceased. He has also attempted to make forcible entry into properties to make unlawful gain by taking away the moveables and documents of business affairs without any reference to or in consultation with those entitled under the Will and six Codicils. 3. 2. Further, it is averred that the 1st respondent is trying to dispose of the properties and even worse he has sought to handle the business affairs of the deceased, in respect of which he has not acquired knowledge and experience. 3. 3. It is also averred that there are 169 Horses of considerable value which would otherwise, in the hands of the 1st respondent, be liable to incalculable loss, in addition to that already caused, depriving the 1st petitioner and her children of their legitimate entitlements. 3. 4. 3. 3. It is also averred that there are 169 Horses of considerable value which would otherwise, in the hands of the 1st respondent, be liable to incalculable loss, in addition to that already caused, depriving the 1st petitioner and her children of their legitimate entitlements. 3. 4. It is further stated that the deceased has left behind very large racing establishment comprising large number of horses of which about 52 valuable horses of the deceased and some are best known of race horses of imported breed and heritage are included in the stable; the majority of which are with Mr. Rashid byramji, a reputed Race Horse Trainer, who is second to none in the profession and has to his credit that no other similar professional can compare and best trainer in the country. Mr. Rashid Byramji was an intimate friend of late Suresh C. Mahindra, confidante and Adviser to him in all matters concerning his affairs and the establishment which is known as the business of "broad-acres Stud Farm. " 3. 5. It is stated that after the death of late Sri Suresh C. Mahindra, due to interference by the 1st respondent, all the properties and affairs of the deceased are in disarray. In fact, it is averred that due to illegal assumption of authority by the 1st respondent considerable loss and damage is caused to the estate and therefore the 1st petitioner requests that Mr. Rashid Byramji or any other professional man be appointed as Administrator pendente lite. ( 4 ) THE 1st respondent objected to the appointment of Administrator pendente lite in respect of the estate of the deceased late Sri Suresh C. Mahindra, namely, the business establishment of M/s. Broad-acres Stud Farm. The learned counsel for 1st respondent submitted that the alleged Will and six Codicils are bogus one and they were all got up documents. He, being the eldest son of the deceased Suresh C. Mahindra, is entitled to administer the estate and to divide the residue in accordance with law of succession as on intestacy. Further, he submitted that the 1st respondent has already filed a suit in the High Court of Bombay claiming the administration of the estate of the deceased under a Hindu Succession Act. Further, he submitted that the 1st respondent has already filed a suit in the High Court of Bombay claiming the administration of the estate of the deceased under a Hindu Succession Act. He has been managing the affairs of the estate during the life time of his late father, Suresh C. Mahindra; and even alter his death, he is managing the affairs of the said estate. He submitted that, under these circumstances, it is not just and proper to appoint any Administrator pendente lite. ( 5 ) IT is well settled law that Administrator, pendente lite, could he appointed provided that there is a Us and the question of validity of the Will is pending in the court in the Probate proceedings for the preservation of property until the dispute as to the validity or the existence of Will itself is decided. ( 6 ) IN this case probate proceedings is pending and the Will has been produced in to the Court. The Will and six Codicils, prima facie, show that it is established that the Will and six Codicils were executed by late Suresh C. Mahindra. The bulk of the estate is situated in M/s. Broad-acres Stud Farm, is within the jurisdiction of this court. As per the Will, the 1st petitioner and her two minor children are the beneficiaries along with one married daughter of late Suresh C. Mahindra and the 1st respondent, his son. The 1st petitioner filed and application for grant of Letters of administration in view of the executors mentioned therein, namely, Keshub mahindra and Harish Mahindra, the brothers of the deceased, under the Will, have renounced and the renunciation has also been communicated. ( 7 ) THE 1st respondent has disputed the Will alleging that the Will and Codicils arcbogus and got up and they are not valid. Further, it is contended that the 1st respondent is the sole proprietor of M/s. Broad-acres Stud Farm. It is also contended that M/s. Broad-acres Stud Farm owned by him and got the same, from his father late suresh C. Mahindra by a release deed dated 25-3-1977. However he contends that the house by name 'the Gallop' is situated in M/s. Broad-acres Stud Farm, and forms part and parcel of M/s. Broad-acres Stud Farm. It is also contended that M/s. Broad-acres Stud Farm owned by him and got the same, from his father late suresh C. Mahindra by a release deed dated 25-3-1977. However he contends that the house by name 'the Gallop' is situated in M/s. Broad-acres Stud Farm, and forms part and parcel of M/s. Broad-acres Stud Farm. ( 8 ) IN the additional affidavit filed by him he has staled that during the year 1978 an indenture of licence was executed by M/s. Broad-acres Stud Farm in favour of m/s. Green-acres Slud and Agricultural Farm where under Green-acres Stud Farm was permitted to utili/e the facilities and assets of M/s. Broad-acres Stud Farm for a period of nine years on a licence fee of Rs. 5,000/- per month. This is how the part of assets including horses belonging to late, Suresh C. Mahindra. came to be in the premises of M/s. Broad-acres Slud Farm. Further, he stated that the said Mr. Byramji is a partisan and is siding with the first petitioner and he cannot be trusted with and he is not all that competent to be entrusted with the management of M/s. Broad-acres stud Farm. He has further averred that a suit has already been filed (in suit No. 1965/1990) in Bombay High Court in which Mr. Byramji has filed an affidavit. Further, he has staled that in the suit filed in Bombay High Court, he filed an application for appointment of receiver and got the order of appointment of receiver to make a true and proper inventory of the estate of the deceased and therefore there is no need to appoint an interim Administrator. ( 9 ) THE learned Counsel for the respondent has taken me through the plaint filed in the Bombay High Court and the order obtained therein as well as the alleged release deed dated 25-3-1977. As far the release deed only the immovable properties mentioned therein arc said to have been given to the 1st respondent by his father and except that there is nothing to show that large number of horses came to be in M/s. Broad-acres Stud Farm arc given by his lather to the 1st respondent. It may be seen that as per the Will certain share in the Testator estate is given to the petitioner and the respondent. It may be seen that as per the Will certain share in the Testator estate is given to the petitioner and the respondent. It is relevant to note that the 1st respondent has filed additional affidavit specifically slating that certain horses belonging to his father late Surendra c. Mahindra came to be in the premises of M/s. Broad-acres Stud Farm. ( 10 ) THE learned Counsel for the respondents has also referred to the Income Tax Authorities, order dated 25-11-1985 which shows that the authorities have recognized the 1st respondent as owner of M/s. Broad-acres Stud Farm which is based on the statement given by late Suresh C. Mahindra. ( 11 ) THE 1st petitioner in her counter had, by referring to the document, namely,sale deed dated 16-7-1974, pointed out that the entire M/s. Broad-acres Stud Farm, the building and the adjacent land were purchased by the late Surendra C. Mahindra. In the said deed there is no reference to the effect that the same was purchased by him on behalf of his son. She has also produced the order of the Deputy commissioner of Income Tax dated 31-10-1990. The Income Tax Authorities has observed on the facts of the case, that in the particulars given relating to the assessment year 1976-77 the assessee Mr. Suresh C. Mahindra had purchased M/s. Broad-acres Stud Farm. 11. 1. At para 4 of the assessment order it is stated thus: "the facts of the case are that in the previous year relevant to the assessment year 1976-77 the assessee had purchased a Stud Farm with a residential bungalow situated within the Stud Farm. The purchase deed was executed and registered at Bangalore on 31-1-1974. In the purchase deed the name of the vendee was clearly mentioned as "mr. Suresh Mahindra". In view of the above sale-deed and particularly in view of the fact that the payments were made by the assessee, the income from the above Stud Farm was considered to be assessable in the hands of the assessee. " 11. 2. In the purchase deed the name of the vendee was clearly mentioned as "mr. Suresh Mahindra". In view of the above sale-deed and particularly in view of the fact that the payments were made by the assessee, the income from the above Stud Farm was considered to be assessable in the hands of the assessee. " 11. 2. The order of the I. T. A. T. , dated 4-12-1985 had concluded that, keeping in view the facts of the case and also because the assessee is a well to do man, who was properly advised by the Chartered Accountants and Advocates, it was difficult to believe that if he had the intention to purchase the Stud Farm for and on behalf of his minor son, he would have clearly mentioned this fact either in the agreement or in the sale deed or in the, guarantee bonds executed by him. It is further stated in the order that the facts existing and the order passed thereon for the assessment year 1976-77 wherein they had given a finding that the assessee sri Surendra C. Mahindra was the real owner of M/s. Broad-acres Stud Farm including the residential house situated therein and the plea that the some was bought on behalf of his minor son Master Marlhand Singh Mahindra was only an after though in view of the amendment to Section 10 (27) made by the Finance act, 1975. ( 12 ) THE petitioners' Counsel drew my attention to the Will and the Codicil sexecuted by late Suresh C. Mahindra on 8-2-1985, 28-10-1985, 29-10-1985, 24-2-1986, 27-8-1986, 6-1-1987 and 8-9-1987 respectively. He has bequeathed Stud farm along with other assets, i. e. , moveables and immoveables including residential house "the Gallop" mentioned therein under the Will and the Codicils the named legatees. The legatees include Mrs. Betty Mahindra (1st petitioner), her minor children and married daughter of late Suresh C. Mahindra and his son first respondent. Then the relevant question that arises that: If late Suresh C. Mahindra is not the owner, how he would have executed the Will bequeathing the properties mentioned therein? ( 13 ) FROM the foregoing it is clear that the property claimed by the 1st respondent was exclusively owned by him is seriously disputed. Then the relevant question that arises that: If late Suresh C. Mahindra is not the owner, how he would have executed the Will bequeathing the properties mentioned therein? ( 13 ) FROM the foregoing it is clear that the property claimed by the 1st respondent was exclusively owned by him is seriously disputed. The document referred to by the either party do not substantially prove that what is claimed by the 1st respondent was exclusively owned and possessed by himself. It is a matter to be decided in the Court after trial suffice to say that the properties claimed by the respondent as his own. M/s. Broad-acres Stud Farm is included in the Will and Codicils bequeathing it to the legatees among other items mentioned therein. ( 14 ) THE respondents' Counsel submitted that the matter is seized by the High Court of Bombay and this Court should not exercise any powers under Section 247 of the Indian Succession Act, for it would come into conflict with the decision if any in the suit and the propriety demands that this Court should stay its hands. The petitioners' counsel urged that the High Court of Bombay cannot be said to have seized of the matter covered under the probate proceedings as the suit is based on inheritance as on intestacy especially with the disclosure of the Will and Codicils upon which this Court has required jurisdiction, would have pronounced on the validity or otherwise of testamentary documents. It is only after the Will and Codicils are discounted by any remote possibility and held void, then only the claim on the basis as on intestacy in the matter of the suit for administration lies. In all testamentary disposition as per Section 104 of the Indian Succession Act, all legatees under the Will aforesaid will get properties mentioned therein on the death of the testator. ( 15 ) THE contention of the respondents that in view of the suit filed in Bombay High Court no order appointing administrator could be passed in the Probate proceedings in this Court is unsustainable and the same cannot be accepted. ( 15 ) THE contention of the respondents that in view of the suit filed in Bombay High Court no order appointing administrator could be passed in the Probate proceedings in this Court is unsustainable and the same cannot be accepted. ( 16 ) THE learned counsel for the respondents contended that the Court before allowing or refusing the prayer for appointment of Administrator, though ordinarily would not enter into the question of title and, in a special circumstances particularly there is likelihood of dispossession of property, it should consider the question of title and in that event refuse to grain prayer for appointment of Administrator in respect of such properly. He relied on the decision of the Calcutta High Court in shailesh Chandra Mustafi v Animal Chandra Mustafi and Another, AIR 1958 calcutta 701. The ratio of the said decision is that whenever there is likelihood of dispossession of the property by appointment of Administrator, then the Court should consider the question of title to the property claimed by the party outside the Will. ( 17 ) IN this case such a question of dispossession of the property does not arise for firstly the property for which this Administrator is going to be appointed is not outside the Will, moreover there could be no dispossession of any property by the appointment of Administrator pendente lite to manage the property without the right to alienate. ( 18 ) SECTION 247 of the Indian Succession Act authorizes the Court during the pendency of the Probate proceedings, to appoint an administrator pendente lite and provides that such Administrator shall have all rights and power of general administrator except the right to distribute the estate, and that, every Administrator shall be subject to the immediate control of the High Court and under the direction of the High Court. The decision relied upon by Mr. Holla is of no assistant to him. ( 19 ) THUS, there is a lis, and the Will is disputed, and the question of validity orexistence of the Will, will have to be decided by the Court. It is also seen that the executors appointed by the testator under the Will have sent in their renunciation letter dated 6-6-1990. Holla is of no assistant to him. ( 19 ) THUS, there is a lis, and the Will is disputed, and the question of validity orexistence of the Will, will have to be decided by the Court. It is also seen that the executors appointed by the testator under the Will have sent in their renunciation letter dated 6-6-1990. ( 20 ) IT is the case of the petitioners that large number of race-horses which were to be protected and the affairs of the race-horses business shall be managed by the professional man and the best trainer in the field, Mr. Rashid Byramji, who was the close friend and advisor to late Sri Suresh C. Mahindra. ( 21 ) THE business establishment of M/s. Broad-acres Stud Farm will have to beprotected and the same is required to be managed by a professional man without which there is likelihood of loss and damage to the valuable properties of the deceased. Moreover, the persons named as executors in the Will renounced and after their renunciation as executors there is no competent person to discharge that function of an Administrator. ( 22 ) WE are no doubt governed by the provisions of Section 247 of the Indian Succession Act, and the appointment of the Administrator is purely discretionary. In my view, the Court has to be satisfied as to the necessity of such an Administrator and as to the fitness of the proposed Administrator and it must also be satisfied that it is just and proper, under the circumstances, to appoint an Administrator before subjecting the estate of the deceased to his hands. Apart from Indian Succession Act, the Court has general jurisdiction to appoint an Administrator in any case in which it may appear to be just and convenient. The Court generally makes appointment whenever there is a bona fide dispute and the case of necessity is made out. ( 23 ) THE question which then arises is whether the necessity for appointment of Administrator has been made out, and if it is, who should be appointed as admin is trator/s. In this case representation to the estate of the deceased is in contest and, without saying anything on the merits of the counter allegations and counter claims in the suits, there can be no doubt that a bona fide litigation is pending between the parties. The applicant has, in her statement, given details of valuable race horses, and if proper protection and care is not given to these race-horses by appointing an expert in the field there is every likelihood they may also be met with same fate as those Horses died. ( 24 ) THE respondents filed detailed objections statement and contended that the death of horses arc normal and even in earlier years prior to the death of Sri Surcsh c. Mahindra number of horses died and that would be no ground for appointment of administrator. But the fact remains that even subsequent to the year 1989, after the death of Sri Surcsh C. Mahindra, number of very valuable horses died due to improper maintenance for which Mr. Holla, learned Counsel for respondents, stated that the 1st respondent was moving between Bangalore and Bombay other places and as such there were lapses and that cannot be attributed for the death of horses, for the death of horses are normal in any stud farm. I am not convinced with the said explanation. ( 25 ) MR. Holla strongly urged that the Bombay High Court has seized of the matter and there is likelihood of appointment of receiver and in that event the propriety demands that Court shall not proceed with the matter of appointment of administrator. Such appointment of receiver is analogus to the appointment of administrator. This submission does not detain this Court from proceeding with the matter for no appointment of receiver has yet been made by the Bombay High Court for the estate of the deceased, except to take inventory of the moveables and immoveables of the deceased. That appointment of receiver is not analogus to the appointment of Administrator within the meaning of Section 247 of the Indian succession Act. Even if the appointment of receiver is made in that suit, this Probate court can appoint an Administrator pendente lite if it is just and proper to do so, although a receiver may be appointed in any of the two suits between the same parties and in respect of the same property. ( 26 ) THE estate is of considerable value and for safeguarding the same and for the protection of race-horses of the deceased, in my opinion, some arrangement has to be made. ( 26 ) THE estate is of considerable value and for safeguarding the same and for the protection of race-horses of the deceased, in my opinion, some arrangement has to be made. In this case, on account of the renunciation of the executors appointed under the Will, the execution of the Will has been challenged on various grounds. Under the circumstances there should be, in my opinion, grant of Administrator pendente lite. The last question is who should be the Administrator pendente lite ? I have to be satisfied with fitness of such an Administrator. The applicant has suggested the name of Mr. Rashid Byramji, an expert and second to none in the field of management, care, and protection of race-horses in the Country. He was intimately associated for the last few years in the advise and help in breeding and training of race-horses and also in the management of affairs of the estate of the deceased Suresh C. Mahindra up to the moment of his death. Further, the applicant has attached the affidavits of men of distinction and achievement in several fields, especially knowledgeable in the field of breeding and care of horses. They arc Major Pradecp K. Merha, Mr. A. S. Brar Shivendra Singh Doaba, and General P. O. Kumaramangalam. They have stated that Mr. Rashid Byramji is one of the finest and best trainer in the history of horses. His expertise in the management of the estate and advise is well known both in matters of horse racing and horse breeding, apart from his ability. He is a man of integrity and reputation and a complete gentleman. I have carefully considered whether Mr. Rashid Byramji could be appointed as Administrator. Thus, in my opinion and in the interest of all the parties, he can be appointed as Administrator, who is a impartial person and man of integrity and honesty apart from he being an expert in the field of training, breeding and maintenance of race-horses. That apart he is a person well versed in "ashwashastra". ( 27 ) THE respondents' Counsel strongly opposed the appointment of Mr. Rashidbyramji as an Administrator. It is alleged that Mr. Byramji has filed an affidavit in the suit proceeding in the High Court of Bombay and he is very much interested in supporting this applicant. I have perused the affidavit filed by Mr. Byramji in the above referred suit. ( 27 ) THE respondents' Counsel strongly opposed the appointment of Mr. Rashidbyramji as an Administrator. It is alleged that Mr. Byramji has filed an affidavit in the suit proceeding in the High Court of Bombay and he is very much interested in supporting this applicant. I have perused the affidavit filed by Mr. Byramji in the above referred suit. The respondent has made him a party in the Suit and in answer to certain statement, he filed the affidavit which do not disclose that he is claiming any interest in the estate. Except he has been helping as trainer of horses during the life time of testator. The other allegation that he would be working against the interest of the deceased is a mere allegation which has not been substantiated. The respondents' counsel has pointed out that the 1st petitioner has taken the stand in the application filed in Court on 23-11-1990 that she has no objection the respondent Marthand singh Mahindra is being appointed along with Mr. Rashid Byramji as co-Administrator. The Applicant/petitioner Counsel submitted that it is true provided the 1st respondent gives his consent to appoint Mr. Rashid Byramji as administrator. In other words it is -suggested that the 1st respondent could be appointed as Co-Administrator provided the appointment of Mr. Rashid Byramji is accepted by the 1st respondent. The 1st respondent has filed an affidavit on 23-11-1990 in which he has given his consent for the appointment of Mr. Rashid byramji as Administrator along with him. Since the parties have consented Mr. Rashid Byramji and Mr. Marthand Singh Mahindra could be appointed as administrator and Co-Administrator respectively to the estate of the deceased covered in the Will, the Court will have no difficulty to appoint them as administrator and Co-Administrator to manage the affairs of the estate of the deceased covered in the Will. ( 28 ) IN the circumstances, in exercise of the powers under Section 247 of the Indian Succession Act, 1925, this Court doeth appoint Mr. Rashid Byramji and Mr. Marthand Singh Mahindra as Administrators pendente lite with all the powers and rights on behalf of the business establishment of M/s. Broad-acres Stud Farm except the right to distribute such estate and shall be subject to the immediate and absolute control of this Court and to act under its directions. Rashid Byramji and Mr. Marthand Singh Mahindra as Administrators pendente lite with all the powers and rights on behalf of the business establishment of M/s. Broad-acres Stud Farm except the right to distribute such estate and shall be subject to the immediate and absolute control of this Court and to act under its directions. ( 29 ) I further direct that the Administrators shall not disturb the applicant inpossession of the house 'the Gallop' situated in M/s. Broad-acres Stud Farm in which the applicant is living with her two minor daughters and she is entitled to all the facilities as she was enjoying prior to the death of Sri Suresh C. Mahindra and continue to such facilities till the disposal of the suit. ( 30 ) ACCORDINGLY, Administrators pendente lite are appointed. The application is allowed. --- *** --- .