9911796707
TMI Blog2004 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... her heirs as if in intestacy; ( iv )One of the executors of her will, her son, Pratapsinh Morarji, filed a Petition in this Court, being Testamentary Petition being No. 233 of 1969 in order to obtain probate of the said will. The original will being in Gujarati, the said Pratapsinh Morarji annexed to the probate petition, an official translation of the will dated 17th December, 1968, duly authenticated by the Prothonotary and Senior Master of this Court. Clause 8 of the said official translation of the will is as under: "Subject to the above-mentioned clause 6, I direct that out of the shares of Dharamsi Morarji Chemical Co. Ltd. that may remain in my name, 150 shares shall be given to my grand daughter Chi. Ben Avantika Pratapsinh Morarji and another 150 shares shall be given to Chi. Bhai Arvind son of my daughter-in-law Malikabai, and in the very same manner 150 shares shall be given to my grand-daughter Chi. Ben Jamini Dhairyasinh Morarji and further 150 shares shall be given to my grandson Chi. Bhai Kirti Dhairyasinh Morarji. And I direct that if, after distributing 600 shares in all in this manner, there remain any shares of the said company in my name then subject to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. ( x )In or about 1996, the Company sold its stake in its subsidiary, the said MDS Switchgears Ltd. for a total consideration of Rs. 26 crores. In order to derive the benefit of section 54EA of the Income-tax Act, part of the sale proceeds amounting to approximately Rs. 17 crores was invested for a period of 3 years with DSP Merill Lynch Mutual Fund. The said 3 years period was to expire in May, 2000; ( xi )Upon learning that a large sum of money, i.e., Rs. 17 crores was due to be received by the company in May, 2000, the Respondent devised a strategy to stake a claim to a substantial portion of the said funds. This was on the strength of the said 182 shares which continued to remain in the name of the deceased and in respect of which no steps had been taken by the executors or heirs of the deceased for the past 31 years; According to the Applicants the modus operandi adopted by the Respondents/Original Plaintiff was dishonest and they rely on following circumstances to say that ( a )The Respondent filed a Petition in this Hon ble Court being Testamentary Petition No. 589 of 1999, to have the estate administered in accordance with the will on the footing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent has tried to pass the same off as being an official translation carried out by one S.S. Trivedi, the Chief Translator, Bombay High Court. It is inconceivable that the said S.S. Trivedi who had carried out the original genuine translation on the 17th December, 1968 (and which was annexed to Pratapsinh Morarji s petition for probate of the will could have carried out the said translation on 17th December, 1998 annexed to the Plaintiff s petition, since the said S.S. Trivedi retired some time in 1991; ( f )Relying upon these documents and without joining the other heirs of the deceased to the petition, the Plaintiff succeeded in obtaining an ex parte order on 4th November, 1999 granting him Letters of Administration based on the aforesaid purported will of the deceased. The Defendants/Applicants crave leave to refer to the papers and proceedings and the order dated 4th November, 1999 passed in the said petition of Letters of Administration, when produced. ( g )In order to further the dishonest game plan, the Respondent, thereafter, succeeded in having the said 182 shares transmitted to his own name on the strength of a copy of the order dated 4th November, 1999 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent order on 11th May, 2000. ( k )Although in the affidavit in reply to the Notice of Motion filed by the Respondent in the above suit, the Applicants did contend that the said 182 shares did not form part of the Will and the said shares would therefore have to devolve on the heirs directly in accordance with intestate succession, the Applicants were not aware of the fraudulent design of the Respondent and his fabrication of documents. The Applicants became aware of the same only when in the course of the hearing of the said Notice of Motion on 15th February, 2001, the learned Single Judge called for the papers of both the Testamentary Petitions, namely the petition for probate filed by Pratapsinh Morarji and the Petition filed by the Respondent for Letters of Administration, in order to find out what if any, was the real intend and desire of the deceased in respect of the said 182 shares and to examine whether the same formed part of the Will of the deceased or not. Upon examining a copy of the original Will in Gujarati as also the two translations in English, the Applicants discovered the true position and thus brought this to the notice of this Hon ble Court. The Respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Motion. Therefore, in the absence of any denial, the averments made in the affidavit filed in support of the Notice of Motion, will have to be accepted at their face value. 4. The learned Counsel appearing for the Defendants/Applicants relies on the judgment of the learned Single Judge of this Court in Aviat Chemicals (P.) Ltd. v. Jagmohandingh Arora [Judge s Summons No. 244 of 1999 dated 24-1-2000], in support of their claim that as the claim made by the Plaintiff in the suit which has been withdrawn was fraudulent, the Defendants are entitled to damages. The learned Counsel also relies on the judgment of the learned Single Judge of this court in the case of Haji Abdul Rehman Haji Mahomed Kadwani v. Munjibhai Khatao Co. 1925 BLR 1077. It may also be pointed out here that while permitting the Plaintiff to withdraw the suit as also the Notice of Motion, the Court has not made any order in relation to costs. On behalf of the Defendant relying on the judgment of this Court in the case of Khimchand v. Sobhagchand 1925 BLR 242, it is submitted that the Defendant would be entitled to the costs of the suit as also the Notice of Motion. There were some submissions made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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