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TMI Blog2020 (2) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of land ad-measuring 2227 sq. mtrs. and from creating third party interest therein; (ii) permanent injunction restraining the defendants, from changing the shareholding of JKPL by increasing the authorized share capital of JKPL and from issuing additional or subscribing un-issued 800 shares from authorized share capital of 2000, of JKPL; and, (iii) mandatory injunction directing the defendants to transfer 300 shares of JKPL from MMK to Natasha. 2. CS(OS) No.1321/2006 came up first before this Court on 19th June, 2006 when, while issuing summons thereof, vide ex partead- interim order, the defendants were restrained from dispossessing Natasha from property no.15A, Amrita Shergill Marg, New Delhi and the parties directed to maintain status quo qua the title and occupancy of the property.Vide subsequent order dated 21 st April, 2010, the applications for interim relief were disposed of directing, that (i) Natasha continues living in the guest annexeof the property and not interfere in the main building where MMK and Rishab Kohli (Rishab), sonof Natasha and MMK,were living except that Natasha could go to Rishab‟sbed room and stay with him as per the wishes of Rishaband Risha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as guardian ad litem of MMK. 7. Else, suffice it is to record that applications have been filed from time to time and CS(OS) No.1321/2006 has been languishing at that stage, with part evidence only of Natasha being recorded therein. 8. CS(OS) No.1435/2006 has been filed by Rishab against his father MMK for partition, of (i) property no.15A, Amrita Shergill Marg, New Delhi; (ii) Printers House Pvt. Ltd. (PHPL); and, (iii) eight acres of land in District Tehri Garwal, village Singtali Patti, Dogee, Tehsil and Pargana Narendrapur, Uttaranchal, equally between Rishab and MMK. 9. It is the case of Rishab in CS(OS) No.1435/2006, that (i) he was born on 11th May, 1997 and at the time of institution of the suit was still a minor and acting through his mother Natasha; (ii) MMK and Natasha were married on 14th November, 1994; (iii) MMK is the head of Hindu Undivided Family (HUF) comprising of MMK and Rishab; (iv) the parties belong to an established business family, patriarch whereof was Late Sh. Krishan Dass Kohli; Krishan Dass Kohli had three children, Ms. Vijay Kohli, who died a spinster, MMK and Joginder; (v) the said family was carrying on business of manufacturing and trading of pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le only members of the Kohli family had shares in PHPL, JKPL, Sun Flower Enterprise and M/s Kohli Graphics Systems, the respective shares were distinct and independent and from self-acquired income held by individual members separately; (ii) only 160 shares of PHPL belong to the HUF of which MMK was the Karta and the remaining shares held by him were in his individual capacity; (iii) MMK had been meeting the expenses of Rishab; (iv) PHPL, JKPL, Sun Flower Enterprises and M/s Kohli Graphics Systems were not part of any HUF and MMK had paid consideration for acquisition of shares in these entities and hence the rights and interests in these entities were personal self-acquired properties of MMK; (v) the land at Uttaranchal was the sole and exclusive property of MMK who had purchased the same from his own means; rather the adjoining land had been purchased by Natasha; (vi) there was no partition of HUFs in the Memorandum of Family Settlement dated 16th October, 1995; the said Memorandum of Family Settlement was executed only to ensure that MMK and Joginder obtain full control over separate business so as to enable them to individually conduct their respective business without involvem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in shareholding or affect any change in the Board of Directors (save for re-appointment of the Directors who were eligible therefor) or sell, transfer or encumber in any manner any immovable property or make any borrowing (except for the purpose of business and from banks and financial institutions from which it already had arrangement in this respect)or affect any change in the Memorandum / Articles; and, (iii) the PHPL shall serve notice on Natasha, in CS(OS) No.1137/2014, of any AGM / Extraordinary General Meeting, in accordance with law.Though CS(OS) No.1137/2014 was disposed of in terms of common consent order dated 25th April, 2014, but IA No.15431/2015 of Rishab for modification of the order dated 25th April, 2014 is pending and the said application in the said suit is being taken up along with other pending litigations. 16. At this stage, it is also apposite to take up CS(OS) No.2161/2015. 17. CS(OS) No.2161/2015 has been filed by Kumkum, Vinay and MMK, against Natasha and Rishab, seeking, (a) appointment as guardian of person and property of MMK; and, (b) perpetual injunction restraining Natasha and Rishab from obstructing Kumkum and Vinay from acting as guardian of MMK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HUF propertiesand whether the plaintiff has a share in the said properties? If so, to what extent? OPP (iii) Whether the suit properties are the self-acquired properties of the defendant? OPD (iv) Whether the suit as filed is not maintainable? OPD (v) Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD (vi) Whether the plaintiff is entitled to a preliminary decree and/orfinal decree of partition dividing the properties (i) 15A, Amrita Shergill Marg, New Delhi (ii) Printers House Ltd., 10, ScindiaHouse,Connaught Place, New Delhi, (iii) Eight acres of land in District TehriGarwal, Village Singtali Patti, Dogee, Tehsil and Pargana Narendrapur,Uttaranchal? If so, to what share would the plaintiff and the defendantbe entitled? OPP (vii) Relief." 25. Vide common order dated 17th January, 2017 in all the four suits, finding, that the entire emphasis of the parties and the counsels had been and continued to be on applications, with further proceedings in the suits being neglected, attempt was made to understand as to how the suits could be expedited and on hearing the counsels, it transpired that the subject matter of all the suits we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute as to who should be the guardian of person and of the properties of MMK, still remains for adjudication; (ii) Natasha was not a fit person to be entrusted with such guardianship of MMK as there were / are disputes between Natasha and MMK; (iii) even Rishab had instituted a suit, claiming adversely to the rights of MMK in property no.15A, Amrita Shergill Marg, New Delhi and thus was also not a proper person to be appointed as the guardian of person and properties of MMK till his demise or till his health continued as it has been since July, 2013; (iv) though vide the Will dated 13th September, 2006 MMK bequeathed his estate for the benefit of Rishab, but in three trustees until Rishab reached his 30 th birthday; (v) Rishab, for this reason also was not a fit person to be appointed as guardian of person and properties of MMK inasmuch as he would not get the estate even on demise of MMK, till attaining 30 years of age; and, (vi) that Arvind Chadha and Vimal Chandra Hoon, who were the erstwhile Directors of PHPL and were also named as trustees under the undisputed Will of MMK, had shown unwillingness to act as trustees. 30. On 13th March, 2019, the counsel for Rishab also stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edge between him and me. A complete breakdown in our relationship took place when she filed a series of legal proceedings without any provocation, and without cause and without any warning or discussion and obtained an ex parte restraining order. In meeting her every wish and providing her every conceivable luxury, I know that I did not heed the advice of my elders and my well-wishers and this inevitably lead to a reverse effect - her wanting more and more. It is now clear to me that she wants nothing but my wealth and my assets. After careful consideration of the above and other circumstances which I have mulled over for several weeks and after discussions with my friends, I have decided to make this will. 5. I hereby declare and direct that no part of my estate or any benefit therefrom will go to Natasha. I inserted Natasha‟s name as my nominee in my life insurance policies and in order places such as bank accounts, mutual funds, etc. I hereby declare that notwithstanding the said nominations, Natasha will not inherit or receive any of the said assets or any other wherever found. 6. As stated above, Natasha has been carrying on a proprietary business of furniture making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st funds in such manner in their discretion as they think fit for education, upkeep, upbringing, marriage and all expenses that they in their wisdom think appropriate to incur for Rishab. As far as possible they will use only the interest or earnings. However, I place no restrictions on them and my trustees will have the power to use the capital asset and income as they think appropriate. The trustees will have the power to invest the funds in appropriate assets securities including land and building and will do everything that I or any prudent person would have done for the protection of the estate. 10. The quorum for the trust will be two. In the event that any of the trustees is not able to act by reason of his non-availability, death or incapacity, the remaining trustees will choose another trustee immediately, so that at all times, there are three trustees. In the event of a trustee wishing to resign, he will join the other trustees in naming his successor trustee. All decisions shall be taken and approved by a majority of trustees. 11. For removal of any doubt, I declare that my property No.15, Amrita Shergill Marg, New Delhi is not an HUF property. It has never been decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hartered accountants etc. as may be necessary and will pay them out of the trust fund. They will also be entitled to debit to my estate any reasonable fee or expenses that they may incur in discharge of their duties." 34. The senior counsel for Natasha and Rishab informed that besides the aforesaid litigations, the following other litigations / proceedings are pending between the parties: (i) Petition filed by MMK seeking nullity of his marriage with Natasha on the ground that Natasha was already married to one Mr. Kai Boccagna at the time of her marriage with MMK. (ii) Criminal complaint filed by MMK against Natasha of the offence of bigamy. (iii) Criminal complaint filed by MMK against Natasha of the offence of trespass. (iv) Petition filed by Natasha against the order of the Family Court on her application under Section 24 of the Hindu Marriage Act, 1955, denying her maintenance. (v) Criminal complaint filed by Natasha against the PHPL and others with respect to illegal transfer of shares from various charitable trusts to MMK. (vi) Special Leave Petition (SLP) preferred by Natasha against the order dated 28th March, 2014 in Execution Petition No.30/2007. (vii) Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Kohli (being the sister of MMK and Joginder) of the first part, MMK and Natasha of the second part and Joginder, his wife and son of the third part, 600 shares representing 50% of the issued and subscribed share capital of JKPL were in the name of MMK and the other 600 shares representing the balance 50% of the share capital of JKPL were in the control of Joginder; the 600 shares held by MMK in JKPL were simultaneously transferred to Monat Developers Pvt. Ltd., in which MMK and Natasha are the only shareholders; (b) the aforesaid Memorandum of Family Settlement dated 16th October, 1995 was incorporated in the decree in Suit No.857/1993, then pending between the parties to the Memorandum of Family Settlement; (c) under the aforesaid Memorandum of Family Settlement dated 16thOctober, 1995, MMK and Natasha have joint rights in property no.15A, Amrita Shergill Marg, New Delhi; (d) Natasha, to finish off the litigations, is willing to give her said rights in the property in favour of Rishab, subject to having a right of residence in the property in her lifetime; (e) the order dated 24th September, 2010 in FAO(OS) No.303-306/2010 aforesaid (arising from order dated 21st April, 2010 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amrita Shergill Marg, New Delhi, to satisfy themselves of the well being of MMK and also to take him to family functions; (s) a provision can be made from the home care facility of Apollo Hospital or Max Hospital, to take care of medical and health needs of MMK; (t) Dr. Hazooria, General Physician of MMK and his family can continue to attend MMK in property no.15A, Amrita Shergill Marg, New Delhi; (u) Rishab is 22 years of age and has graduated in Business Management and can look after the affairs of the PHPL, which over the years, from a hugely successful profit making company is incurring losses; (v) Rishab is the only person most interested in the financial health of the PHPL, being the ultimate beneficiary thereof; and, (w) at present there are no Directors of the PHPL. 37. The senior counsel for Kumkum and Vinay in their personal capacity as well as guardian ad litem, contended/referred (i) to Suchita Srivastava Vs. Chandigarh Administration (2009) 9 SCC 1 and Jai Prakash Goel Vs. State AIR 2005 Del 83 to contend that "substituted judgment test" is to be applied for taking any decision for MMK and which requires this Court to step into the shoes of the person who is consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng expenses towards upkeep, medical care, legal expenses, rental etc. from the monies of PHPL; the sum of Rs. 1 lac per month was for buying the day-to-day needs of MMK; (xiii) that expenses of MMK having been borne by the PHPL, a company of MMK himself, Natasha and Rishab have no locus to make a grievance with respect thereto; (xiv) attention was drawn to the report dated 18 th October, 2015 of the retired Judge of this Court appointed as Observer as aforesaid, to the effect that there were rival camps amongst the higher staff of the PHPL with lack of cooperation and to two photographs of MMK with Kumkum and Vinay and their family members to contend that he had started responding and was on the mend and expressed happiness in his surrounding; (xv) attention was invited to the report dated 29th August, 2016 of the retired Judge of this Court appointed as Observer aforesaid with respect to the visit to MMK at A-4/3, Vasant Vihar, New Delhi on 27th August, 2006 to know about his health and conditions of living and reporting that MMK was looked after by his two sisters and servants provided by the company and that the flat which he was exclusively occupying was a four bed room top flo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the letter dated 10th August, 2015 of the PHPL to ICICI Bank Ltd. signed by Rishab as Director, to contend that Rishab was misrepresenting himself to be the Director; (xxviii) attention is invited to the certificate dated 9th December, 2013 of SGRH with respect to MMK, opining that "such patient recovers much faster in familiar surrounding like their own home"; (xxix) that it is therefore incumbent that the present state should continue and be not disturbed; (xxx) that as per the admitted Will of MMK, Natasha has no right to reside in propertyno.15A, Amrita Shergill Marg, New Delhi; (xxxi) Natasha cannot take benefit of residing in the property without performing her obligations as wife; (xxxii) that the admitted Will of MMK in any case has not taken effect; (xxxiii) that the Will rather shows that MMK had no trust in Rishab till he attained the age of 30 years; and, (xxxiv) that Kumkum and Vinay, as sisters of MMK, are only interested in his well being and not interested in his business. 38. The senior counsel for Natasha and Rishab, in rejoinder contended that (a) though Kumkum is living in a 800 sq. yds. house in Vasant Vihar but did not keep MMK in her own house and rather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting using MMK‟s money, to prevent Rishab from having a say in the PHPL; (m) Rishab, on attaining majority has withdrawn one of the suits filed on his behalf during his minority; (n) Kumkum and Vinay have been wanting lumpsum amounts instead of actual expenses incurred and have even asked for a new car although two cars of PHPL have been provided for MMK; (o) Kumkum and Vinay have also not been safeguarding the income tax affairs of MMK and for which steps have been taken by Rishab; (p) of the four bed rooms stated to be in the flat in occupation of MMK, three are occupied by servants and are unfurnished; (q) the medical records of SGRH also show that MMK was got discharged on relatives risk under the signatures of the servant; (r) exorbitant rent of Rs. 2 lacs per month is being paid for the second floor flat in occupation of MMK, when similar flats are available at a rent of Rs. 70,000/- per month; (s) though the Observer appointed by this Court has reported that MMK is being taken care of by two servants only, Kumkum and Vinay are charging Rs. 2 lacs per month towards salary of 17 servants; (t) the salary of the two drivers provided to MMK is being borne by the PHPL; (u) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r; (vi) it is proposed that all litigations be ordered to be kept in abeyance and living expenses of MMK be reduced from Rs. 2 crores per annum to at about Rs. 50 lacs to Rs. 60 lacs and MMK be allowed to continue as he has been residing, as the said arrangement has worked well for him till now; (vii) MMK is close to his sisters and the love and affection of the sisters is working as therapy for him; (viii) Kumkum and Vinay won‟t have access to property no.15A, Amrita Shergill Marg, New Delhi; (ix) the interest of Natasha and Rishabare intertwined; (x) Kumkum and Vinay do not feel secure at property no.15A, Amrita Shergill Marg, New Delhi; (xi) there is a huge trust deficit; (xii) arrangement be made for protection of the estate of MMK and the Observer presently appointed to continue overseeing; (xiii) no full control of MMK can be given to Rishab; (xiv) approximately Rs. 12 lacs to 15 lacs is being expended by MMK per month and accounts thereof have been filed from time to time and scrutinized; (xv) all litigations can be put to a standstill; (xvi) Kumkum and Vinay continue to incur expenses irrespective whether the monies as per common order are released or not; and, (xvii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... felt that in view of the present mental state of mind of MMK and as long as the same continues and in view of the offer of Natasha and Rishab, the cause of action for the litigations have disappeared. 45. It is accordingly ordered: A. CS(OS) No.1321/2006 is dismissed as withdrawn with liberty to Natasha to sue afresh if a fresh cause of action arises. B. CS(OS) No.1435/2006 is dismissed as withdrawn with liberty to Rishab to sue afresh if cause of action arises. C. There is no need for modification of the order dated 25th April, 2014 disposing of CS(OS) No.1137/2014 and the applications filed therefor are also disposed of. D. CS(OS) No.2161/2015 is disposed of in terms of the order hereinbelow, with liberty to the parties to from time to time apply for modification of the order passed hereinbelow and for further directions. E. The proceedings initiated by MMK for declaration of nullity of his marriage with Natasha be withdrawn by Kumkum and Vinay with liberty to MMK to revive the same in the event of his mental condition being restored to pre July, 2013 state. F. The criminal complaint of offences under Sections 494 and 495 of the Indian Penal Code, 1860 against Natash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , I am of the view that: (i) At present it is in the best interest of MMK to continue living as he has been living for the past sometime and for the said status to continue. I have however met Kumkum and Rishab in Chamber and counseled them to independently of animosity between Natasha on the one hand and Kumkum and Vinay on the other hand, builda relationship in the best interest of MMK. It is not in dispute that Rishab is the son of brother of Kumkum and Vinay and there is no reason why Rishab, now having attained majority, should not make all possible attempts to forge a relationship anew with his paternal aunts and their families, forgetting the past acrimony between his mother Natasha and his paternal aunts. A cordial relationship between Rishab, Kumkum and Vinay will be the best therapy and medicine for MMK and I sincerely hope that all of them,claiming to be concerned of the well being of MMK, forgetting the past will make attempts in that direction. (ii) Rishab shall have unlimited access to MMK and all decision regarding best care of MMK shall be taken jointly by Rishab, Kumkum and Vinay, without squabbling about annas and paise. (iii) As far as the living expenses o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, the findings of the Observer in this regard shall bind the parties and the liberty hereinafter granted to the parties to apply to this Court shall not extend to such matters. (xi) The electricity bills for the accommodation in occupation of MMK shall be submitted to PHPL and be paid directly by PHPL, ensuring that there is no disconnection of electric supply. (xii) One car equivalent to Ford / Octavia Superb, in a good running condition, shall continue to be provided by PHPL for use of MMK along with a driver. If the vehicle has any breakdown incapable of rectification in a day or two, causing inconvenience to MMK, the said car shall be replaced. Similarly, on the day when the driver so assigned to MMK is on leave or otherwise not available, alternate driver shall be provided. (xiii) The rent as may be assessed by the Observer shall be re- considered every three years and the requirement of number of caregivers shall be re-considered annually by the Observer, save when change of circumstances requires immediate reconsideration thereof. (xiv) All the expenses so determined by the Observer shall be defrayed directly by the PHPL and Rishab is personally bound down to ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b qua the same and Rishab to, with the consent of Mr. Arun Kathpalia, effect such change. (c) Rishab,along with other directors of PHPL, to conduct the affairs of PHPL and manage the business of PHPL, in the best interest of its shareholders and with liabilities as guardian appointed by this Court of interest of MMK in PHPL. (d) The fixed deposits of PHPL / MMK to be continued and renewed to yield the maximum returns, to be reinvested, if not required to meet expenses of MMK in terms of above and no monies be withdrawn therefrom for any other purpose. The other restraints in force in these proceedings with respect thereto, to continue. (e) The monies in the mutual funds be reinvested again in the best interest of MMK and to yield maximum returns and Rishab is again made liable as guardian appointed by this Court of MMK therefor. The restraints with respect thereto under orders of the Court, to continue. (f) All other decisions with respect to business and financial affairs of PHPL be taken by Rishab with consent in writing of Mr. Arun Kathpalia, Senior Advocate with Rishab being liable therefor as Court appointed guardian of MMK for the said purpose. (g) Mr. Arun Kathpali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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