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TMI Blog2019 (4) TMI 2154X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of Mrs. Parmeet Kaur by the appellant. The two immovable properties, which stood in the name of the respondent, were shown to have been gifted away by the respondent by the gift deeds dated 18th March 2017. The flurry of activities in close proximity to the death of the deceased, i.e., 27th April 2017, namely (i) a decree of divorce between the appellant and Parmeet Kaur dated 30th January 2017; (ii) the marriage of the appellant and Sonu Pandey on 14th February 2017; (iii) the execution of the two gift deeds by the respondent on 18th March 2017, (iv) the execution of the alleged Will by the testator in favour of the appellant on 12th April 2017 tell a different story and indicate an urgency of purpose. They cannot be brushed aside as mere coincidences. There is material to indicate that the respondent was sought to be divested of all the immovable properties and they were tried to be settled upon first wife and the daughter of the appellant. Undoubtedly, the validity or otherwise of the gift deeds whereby the respondent is shown to have gifted the properties in favour of Parmeet Kaur and Hansmeet Kaur is a matter of trial. Nonetheless, taking an overall view of the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House No. 50, at Village Khandale, Survey No. 109, Alibaug, District Raigad; and (7) Flat No. 2, Sunrise Society, Ground Floor, 5th Road, Khar, Mumbai - 400052. 5. The appellant allegedly ill-treated the deceased testator and the respondent. It is alleged that the appellant fell in bad company and was given in to vices. As the appellant allegedly misappropriated the assets to the detriment of the interest of the testator, the testator and the respondent filed a Suit No. 423 of 2014 against the appellant and sought injunction against him. Things came to such a pass that the respondent was constrained to lodge a report against the appellant with the police. 6. As the relations between the testator and the respondent, on one hand, and the appellant, on the other hand, were thus strained, the testator allegedly executed a registered Will, dated 29th January 2014, bequeathing all his properties, except M/s. Hotel Chenna Garden, which was already transferred to daughter Gogi by the testator in his lifetime, to the respondent. The testator thereby disinherited the appellant. 7. In the year 2015, the appellant and his wife Parmeet separated. On 27th May 2016, the appellant executed a gift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant resisted the application by filing an affidavit in reply. The substance of the resistance put forth by the appellant was that the Will dated 12th April 2017 propounded by the appellant was the last Will and testament of the deceased testator. The respondent has levelled false allegations against the appellant at the behest of his married sister Gogi and her husband. The appellant has all along been continuously carrying on the business of M/s. Hotel Amardeep and neither the respondent was ever managing the business of M/s. Hotel Amardeep, nor she is in a condition to manage the affairs of the said business. It was pointed out that M/s. Hotel Amardeep is an ancestral property, having been acquired by the late grandfather of the appellant and it could not have been bequeathed by the testator. The allegations of siphoning off income and waste of the property attributed to the appellant were denied. 12. The learned Single Judge, after hearing the parties, was persuaded to hold that it was necessary to appoint the respondent as an Administrator pendente lite in respect of the estate of the testator with the rights and powers of a general administrator and subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled for. Thirdly, the respondent-applicant had not made out a case which warranted the exercise of the jurisdiction to appoint an administrator pendente lite. Fourthly, the learned Judge did not properly appreciate the material placed on record and was swayed by the fact that the appellant was paying certain money to Parmeet for house-hold expenses and did not accede to the suggestion of the Court to pay a reasonable amount to the respondent. These factors, however, according to the learned counsel for the appellant, do not justify the exercise of the extra-ordinary power under Section 247 of the Act to appoint as an Administrator pendente lite by ousting the appellant from M/s. Hotel Amardeep. 16. In opposition to this, the learned counsel for the respondent would urge that the circumstances brought on record unmistakably indicate that the appellant has left no stone unturned to completely divest the respondent of all the immovable properties left behind by the testator. The sequence of events leading to the institution of present proceedings, according to the learned counsel for the respondent, leads to an inescapable inference that the appellant has been making systematic effo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment is of a Division Bench of this Court in the case of Ramchandra Ganpatrao Hande alias Handege Vs. Vithalrao Hande Ors. 2014 (4) All. Mr. 189 wherein the correctness of the aforesaid ruling in the case of Rupali Mehta Vs. Smt. Tina Narinder Sain Mehta (Supra) was examined. In the case of Ramchandra Ganpatrao Hande alias Handege Vs. Vithalrao Hande Ors. (Supra), after a survey of the authorities governing the nature of the jurisdiction exercised by the testamentary Court, it was observed as under:- 14. .............. It would not be permissible, in the face of the specific provision of sub-section (2) of Section 269 to read into the provisions of Sections 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Single Judge has not passed an interim order, like the facts of the cases in which the aforesaid pronouncements were rendered. 24. In the case at hand, the testamentary Court has expressly resorted to the provisions contained in Section 247 of the Act which empowers the Court to appoint an administrator of the estate of the testator. Section 247 of the Act reads as under:- 247. Administration, pendente lite.--Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction. 25. From the phraseology of the aforesaid Section, it becomes evident that it incorporates an enabling provision and invests the testamentary Court with power to appoint an administrator pendente lite. The text of aforesaid section does not, in terms, spell out the circumstances in which an administrato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it may be apposite, to make a brief reference to the facts of the case, especially in the context of three sets of proceedings. Firstly, the proceedings initiated by the testator and the respondent against the appellant during the lifetime of the testator. Secondly, the matrimonial proceedings between the appellant and Mrs. Parmeet. Thirdly, the proceedings initiated after the demise of the testator. 29. It is incontestable that the deceased and the respondent had instituted the Suit bearing No. 423 of 2014 seeking injunction against the respondent from interfering with the business of M/s. Hotel Amardeep, and otherwise interfering with the possession and enjoyment of the other immovable properties. In the said suit, it was averred that though Flat No. 301 in Preetika Apartment, stood in the name of the appellant, it was purchased by the testator. The tenor of the suit was that the appellant herein has been interfering with the management and the affairs of the business of M/s. Hotel Amardeep and wasting the estate by acts of omission and commission. 30. Irrefutably, the appellant and his first wife Parmeet Kaur, filed a joint petition for divorce by mutual consent, bearing Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, the disposition of the property is made principally in favour of the respondent. Whereas, in the Will propounded by the appellant, the testator proposes to bequeath all his properties, whether movable or immovable, to the respondent absolutely forever and, in the event of her demise, the appellant shall have the power to deal with or dispose of the said properties. The said Will further records that the appellant conducts and manages the affairs of the M/s. Hotel Amardeep and whole income generated in the said hotel shall belong to the appellant who should look after the hotel expenses and expenditure. 33. Laying emphasis upon the aforesaid nature of the disposition under the Will, propounded by the appellant, it was strenuously urged on behalf of the appellant that, genuineness of the Will propounded by the appellant is borne out by the fact that the properties have been bequeathed to the respondent, albeit for her life time. Had the appellant prepared the Will, as alleged by the respondent, the appellant would have seen to it that the respondent is totally disinherited from the property. Instead the appellant has propounded the Will which directs that the respondent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is incontestable that the marriage between the appellant and Parmeet Kaur came to be dissolved by a decree of divorce by mutual consent. It is not in dispute that the appellant had agreed to pay maintenance @ Rs. 7 lakhs per month to Parmeet Kaur. Documents in the form of statement of accounts were placed on record to show that large sum of money was paid to Parmeet Kaur Chadha out the income generated from M/s. Hotel Amardeep. Upon perusal of the said statement of accounts we found that, with regular frequency, even daily or on an alternate day, a definite sum was paid to Parmeet Kaur Chadha. 37. The statement of accounts thus fortifies the stand of the respondent that from out of the income generated in the M/s. Hotel Amardeep, substantial amounts were paid to Parmeet Kaur. In addition, there are entries which indicate that payments were made to other entities which have the connection with the firms floated by the appellant. 38. In this context, the learned counsel for the respondent submitted that the said aspect of payment of maintenance and transfer of the immovable properties in the name of Parmeet Kaur Chadha is required to be appreciated in the backdrop of the admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of M/s. Hotel Amardeep to Pameet Kaur by urging two points. One, the amount was paid for house-hold expenses. Two, the statements of accounts indicate that a substantial amount, i.e., Rs. 14,64,000/- was paid during the very same period, from April 2016 to November 2016, to the respondent; during which period, an amount of Rs. 37,22,810 was paid to Parmeet Kaur. A criticism was made regarding the observations in the impugned order, that it could not be shown that any amount has been paid by the appellant to the respondent from the income generated from the said hotel business. 43. On the first count, the claim of the appellant that amount was paid to Parmeet Kaur for the household expenses is belied by the entries in the statement of accounts. We endeavoured to ascertain the significance of the payment of varying amounts in the range of Rs. 20,000/- to 23,000/-. On close scrutiny, we found that the explanation is furnished by an entry, dated 2nd November 2016 which shows that Parmeet Kaur Chadha was paid a sum of Rs. 23,333/- per day by dividing the monthly maintenance of Rs. 7 lakhs by 30 days. 44. On the second count, it is true that from the statement of accounts, it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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