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2014 DIGILAW 1865 (BOM)

Mohammed Tanweer Ahmad v. Dominic Francis Pereira

2014-08-25

REVATI MOHITE DERE, S.J.VAZIFDAR

body2014
Judgment S.J. Vazifdar, J. 1. This is an appeal against the order of a learned Single Judge dated 20th March, 2013 rejecting the appellant's application to be impleaded as a plaintiff in the above suit on the ground that the suit was a personal action by the original plaintiff which had come to an end upon his death and that accordingly, the suit had abated. 2. One Augustin Pereira died on 29th December, 1942 leaving behind two sons Dominic and Joseph. Dominic had one son Thierry, who died on 2nd September, 1992. Joseph had three sons; Reynold, Horace and Dugal, who are respondent Nos. 3, 4 and 5. Augustin Pereira died, leaving behind a will dated 27th March, 1939. According to respondent Nos. 3, 4 and 5, under Augustin Pereira's will, Dominic and Joseph had a life interest in the estate of Augustin Pereira. Further, according to them, under the will, upon the death of Dominic and Joseph, their respective branches were entitled to a moiety in the estate. Respondent Nos. 3, 4 and 5, however, contend that in view of Dominic's son Thierry having pre-deceased Dominic, upon the death of Dominic, they alone were entitled to the entire estate of Augustin. The other parties to this appeal deny the same. For the purpose of this appeal, we are not concerned with the rival contentions regarding the extent or mode of inheritance. 3. Dominic filed the above suit on 15th April, 1989 for a declaration that Joseph was not entitled to act as an executor and trustee of the estate of Augustin Pereira; for the removal of Joseph as an executor and trustee and for the appointment of any other fit and proper person in his place and for a permanent injunction restraining Joseph and his three sons (respondent Nos. 3, 4 and 5), his sister Flossy and his son Thierry from receiving any amount from Vipkon Property Development Services Pvt. Ltd. or receiving possession of certain properties belonging to the estate. By an amendment, Dominic sought a declaration setting aside the sale of certain properties belonging to the estate and in the alternative, an order directing Joseph and his son to pay his sister Flossy, his son Thierry and to himself their share as per the provisions of the will of Augustin Pereira. By an amendment, Dominic sought a declaration setting aside the sale of certain properties belonging to the estate and in the alternative, an order directing Joseph and his son to pay his sister Flossy, his son Thierry and to himself their share as per the provisions of the will of Augustin Pereira. There was also a prayer for a declaration that an assignment and/or gift of one of the properties by Joseph to his children is bad in law and for an order setting aside the same. Lastly, he sought a declaration that an agreement of sale by Joseph in favour of Vipkon Property Development Services Pvt. Ltd. was bad in law and sought an order setting aside the same. 4. Thierry died shortly thereafter on 2nd September, 1992, leaving behind a will dated 7th August, 1992 bequeathing his share in the estate to his parents Dominic and Suzzane. 5. Dominic is alleged to have assigned a part of his share in the estate to respondent No.9 by a deed of assignment dated 26th December, 1994. By an order dated 24th March, 2014, a Division Bench, to which one of us (Justice S. J. Vazifdar), was a party, directed respondent No. 9 to be impleaded. 6. Thereafter, on 4th April, 1994, Dominic and his wife Suzzane filed another suit being Suit No. 2422/1994 against Joseph, Joseph’s three sons (respondent Nos. 3, 4 and 5), his sister Flossy for a declaration that they had half a share in the suit properties i.e. the estate of Augustin Pereira and for a partition thereof by metes and bounds and for consequential reliefs and for accounts. 7. Respondent No. 9 claims a part of the estate of Augustin Pereira coming to the hands of Dominic under an assignment dated 2nd February, 2001 executed by Dominic. Thereafter, Dominic died on 10th October, 2009 leaving behind his last will and testament dated 12th April, 2010. The appellant claims various properties under this will. The will itself is disputed by respondent Nos. 3, 4 and 5 i.e. the sons of Joseph. The appellant claims only the properties mentioned in paragraph 3 of the will dated 12th April, 2010 of Dominic. Similarly, respondent No. 9 states that it has no claim in respect of the property specified in paragraph 3 of the said will dated 12th April, 2010. Respondent Nos. 3, 4 and 5 i.e. the sons of Joseph. The appellant claims only the properties mentioned in paragraph 3 of the will dated 12th April, 2010 of Dominic. Similarly, respondent No. 9 states that it has no claim in respect of the property specified in paragraph 3 of the said will dated 12th April, 2010. Respondent Nos. 3, 4 and 5, however, deny the claims of the appellant and of respondent No.9. 8. There are, therefore, broadly three sets of claimants to the estate of Augustin Pereira namely the appellant under Dominic's alleged will dated 12th April, 2010; respondent No. 9 under the alleged assignment dated 2nd February, 2001 and respondent Nos. 3, 4 and 5, who claim to be the only legatees in respect of the estate of Augustin Pereira. 9. In this appeal, the rights and contentions of the parties regarding inheritance and the assignment are not relevant. The only question before us is as to the proceedings in which these rival contentions can be adjudicated. The proceedings thus far have caused considerable difficulties in this regard. 10. Respondent No. 9 had filed Chamber Summons No. 1829/2010 in Suit No. 2422/1994 seeking to be impleaded as the plaintiff therein. That Chamber Summons was allowed by an order dated 19th April, 2012. That order was challenged by the respondent No.3 by filing Appeal (L) No. 292/2012. The same was disposed of by an order of a Division Bench dated 20th June, 2012. The appeal was dismissed but all the rights and contentions of the parties were kept open. Thus, as on date, respondent No. 9 is the plaintiff in Suit No. 2422/1994. 11. Respondent No. 9 had also filed Chamber Summons No. 1828/2010 seeking to be impleaded in the above suit being Suit No. 1240/1989. That Chamber Summons was also disposed of by the same order dated 19th April, 2012. This Chamber Summons, however, was dismissed on the same ground, on which the order impugned in this appeal has been passed namely that the cause of action was personal to the plaintiff and that the suit had abated upon the death of the original plaintiff. Respondent No.9, however, did not challenge that order dismissing Chamber Summons No. 1828/2010 seeking to be impleaded in the above suit. Respondent No.9, however, did not challenge that order dismissing Chamber Summons No. 1828/2010 seeking to be impleaded in the above suit. By the impugned order dated 20th March, 2013, the learned Judge dismissed the appellant’s application seeking to be impleaded in the above suit on the same ground namely that the cause of action was personal to the original plaintiff and that upon his death, the suit stands abated. 12. In our opinion, it is not necessary to set-aside the impugned order, as the rights of all the parties to have their claims adjudicated can be safeguarded and decided in suit No. 2422/1994. Suit No. 2422/1994 is essentially one for the administration of the estate even assuming certain reliefs necessary in an administration suit may not have been sought as yet. Dominic Pereira, the original plaintiff has sought a declaration regarding his half share in the estate of Augustin Pereira. In respect thereof, we have the rival claims of the appellant, respondent No.9 and respondent Nos. 3, 4 and 5. Respondent Nos. 3, 4, 5 and 9 are already parties to the suit. None of them have any objection to the respondent No. 8 i.e. Vipkon Property Development Services Pvt. Ltd. being impleaded in the said Suit. The parties also do not have any objection to implead the appellant herein as a defendant in Suit No. 2422/1994. The parties shall be entitled to seek additional reliefs as well as amendments of their pleadings before the trial Judge. In this manner, each of the parties claiming an interest in the estate of Augustin Pereira would be entitled to agitate their claims to the estate of Augustin Pereira. 13. The rights of the parties to adjudicate the rival claims would be protected in this matter in Suit No. 2422/1994. No orders on this appeal are required. Needless to add that the parties are at liberty in other proceedings as well. 14. Appeal disposed of accordingly.