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TMI Blog2018 (12) TMI 1992X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) TMI 698 - BOMBAY HIGH COURT ] dealt with the scope of Section 269 observing that Section confers special powers of the Court to interfere with the protection of property till probate is granted provides the deceased was not a Hindu, Mahomedam, Buddhist, Sikh, Jaina or an Indian christian. Ione following the excluded persons. In the present case the administrator has been appointed and we are concerned with an application seeking ordering an investigation pursuant to the appointment of the administrator. In effect, it is an application to assist or further empower the administrator. Post the appointment of an administrator, the question to be considered is whether the Court is required to by judicial orders to empower the administrator to adopt appropriate proceedings - It is not as if the remedy of the suit is ousted by the application or vice versa. If the remedy of the suit was not ousted one of the aspects to be considered is whether there is justification in the instant case for ordering an enquiry or investigation. In the case at hand, there are no doubt that the defendant/notices have been non-cooperative and such behaviour, despite appointment of the Administrator is ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigating agency to seek appropriate directions from this court time to time should the need so arise. It is necessary to ensure that the enquiry is conducted in a focused and purposive manner. The administrator will therefore be required to provide all necessary support - The resistance to an enquiry does not appear justified in view of the first defendants contention that the administrator may if he so desires file complaints. The Administrator appointed by this Court shall draw up a complaint to be filed and provide the draft complaint to the Prothonotary and Senior Master within a period of four weeks from today - Upon the draft complaint being lodged and subject to scrutiny of its contents the Prothonotary and Senior Master shall forward the complaint on behalf of the Administrator to the Commissioner of Police, Mumbai who shall nominate a suitable team of officers to initiate an investigation into the complaint and the affairs of deceased Purvez Burjor Dalal. The progress of the investigation after it commences shall be reported to the Prothonotary and Senior Master on a fortnightly basis - This Report shall be listed for further hearing after eight weeks. - Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and particulars relating to certain accounts received by the said company from an account opened by defendant no. 1 in the name of deceased testator with KMBL Account; (e) a direction to the defendant no. 1 and Amoha to pay over to the administrator a sum of Rs. 17,08,147/- received by Amoha from KMBL Account with interest thereon from 24th March, 2012 till payment; (f) to direct defendant no. 1 and trustees of one Avabai Hormasji Charitable Trust and Bai Avabai Hormusji Tata Trust to deliver to the administrator true copies of documents relating to a sum of Rs. 15 lakhs received by Avabai Hormasji Charitable Trust on 11th April, 2012 from KMBL Account as also correspondence relating thereto; (g) a direction to defendant no. 1 and trustees (the Trusts) to pay over to the administrator a sum of Rs. 15 lakhs along with interest thereon; and (h) a direction to one B.J. Dhoodmal to provide the administrator with details of bank accounts in the joint names of the deceased and/or late Jamshed Dalal and the said Dhoodmal including accounts to which amounts have been transferred from the HSBC account standing in the names of Jamshed, Purvez and Dhoodmal and defendant no. 1. 3. A Supple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It was claimed to be a donation by defendant no. 1. The name of the trust has been described differently at different stages. It was initially said to have been called Bai Avabai Hormusjee Charitable Trust. The defendant no. 1 claimed that the trust was set up by the industrialist Naval Tata in the year 1954 in memory of his mother and that donations to the trust would qualify for exemption under section 80G of the Income Tax Act. The trust was allegedly used to siphon away funds from the estate. According to the plaintiffs and the administrator, funds transferred to the trust are required to be returned with interest and in this respect, prayer clause (g) of the administrator's report seeks such relief. The donation is said to have been made by defendant no. 1 to the trust but this is in violation of terms of the 2011 Will because the 2011 Will provides for utilizing the estate funds for meeting other expenses other than for obsequies and income tax and other liabilities only after obtaining probate. 7. Mr. Khambata therefore submitted that the estate could not have been made the donation to the trust. In this behalf, it is submitted that upon enquiry made as a result of nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an affidavit of October 2011 the said Lam himself states that the declaration of the trust is the document creating and governing the affairs of the trust. He affirms the date of formation of the trust as 3rd March, 1943. In a letter dated 10th November, 2016 addressed by Mr. Lam to the Administrator he had referred to the trust deed dated 3rd March, 1943. The house of Tatas has denied any connection with the Bai Avabai Trust. In support of this contention Mr. Khambata invited my attention to the plaintiffs affidavit dated 17th January, 2017. It is therefore submitted that the receipt relied upon by defendant no. 1 is not genuine and the defendant no. 1 along with trustees have sought to exploit the trust for their own benefit and deliberately, by creating a letterhead bearing the wrong name of the trust. Such a letterhead was allegedly created for the purpose of this litigation. Mr. Khambata submitted that the trustees of the said trust have withheld details and documents from this Court for deliberately causing confusion as to their correct name till they were compelled to disclose the same by the Court. Furthermore, in the letter dated 10th November, 2016, Mr. Lam had described ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 2009. On 28th January, 2012 a resolution was purportedly passed to authorise Mr. Lam to apply for a duplicate registration certificate of the trust. The resolution did not mention the then office bearers. In the application made the name of the trust is wrongly mentioned and on 11th April, 2012 a donation is said to have been made to the trust from the funds of the estate and the cheque was encashed. 11. Thus, Mr. Khambata submitted that the trust was sought to be activated only the for purposes of siphoning away the funds of the estate. The defendant no. 1 and the trustees have fabricated and used false evidence by creating a letterhead of a non-existent trust for the purposes of the litigation and in an attempt to make it difficult to trace the whereabouts of the Trust. Mr. Khambata further submitted that although the Trust is sought to be represented by Advocates, it cannot because the trust is not a legal entity and therefore the trustees are put to notice that they cannot hereafter contend that they were not represented. The matter has nevertheless been contested on behalf of the said Mr. Lam and others despite being put to notice of this fact. 12. As far as Amoha Traders i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all material times and in this view of the matter both Amoha and defendant no. 1 are jointly and severally liable to repay the amount. I may observe here that although I have heard the learned counsel appearing for the defendants and the respondents including Amoha at no time was any offer made to repay the said sum of Rs. 10,84,000/-. 14. Mr. Khambata further submitted that Amoha was a loss making company and it owes Rs. 2.68 crores to a company known as Kratos Energy and Infrastructure and the loss is reflected in balance sheet of Amoha. For the period 2011-12, 2012-13 and 2013-14 the average loss was 4.60 lakhs across these years. The balance sheets do not reflect any loans or advances given to any party and the only loan shown in the Directors report of Amoha is to one Vaseem Kapadia and Jaya S. Pai wife of Sudhakar Pai trustee of the Bai Avabai Trust and a friend and business associate of the said Panday. This is clearly indicative of the fact that defendant no. 1 had made a wrong statement on oath to the effect that loans were given by Amoha to the estate to the extent of Rs. 27,92,147/-. Referring to documents relied upon by Amoha in the affidavit dated 7th August, 2017, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re addressed by Mr. Panday himself and not at the request of defendant no. 1. Mr. Khambata stated that the said Panday and Amoha were receiving updates from Kotak Mahindra on a daily basis. 16. On 15th March, 2012 defendant no. 1 is stated to have made an inventory at the residence of the deceased. Panday along with Dhoodhmal and Irfan Khan were present. Panday is believed to have acted for the estate even in September 2014 viz. even after the injunction order and the appointment of the administrator. This according to Mr. Khambata appears from the letter dated 22nd June, 2015 addressed to the administrator by one Rohit Shinde a person who said to be a tenant of a bungalow belonging to the estate of the deceased named Lovedale . The telephone number provided in the said communication is standing in the name of Amoha Traders having its office at 31-C, 3rd floor, Rajabahadur Mansion, 32 Ambalal Doshi Marg, Fort, Mumbai-4000 001, which address is also used by El Dorado Guarantee, the promoter of Kratos Energy (Kratos). Mr. Panday is or has been a Director of El Dorado Guarantee. There are also references made to one Gheewala in the letter and also the initials PG in numerous documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered that Canos Trading Ltd., was used as a means for creating liability in the name of the estate and to siphon away the estate funds. This is sought to be established by Mr. Khambata by submitting that defendant no. 1 along with three others are shareholders in Canos Trading hold one percent. Defendant no. 1 holds one percent as a shareholder of Canos along with three others. Amoha Traders is one of the older shareholders in Canos holding 10%. One Ms. Firozi Patel who is stated to be the wife of Irfan Khan holds 50% of shares in Amoha and is a Director in Canos Trading. The balance 39% is said to be held by one Nikhil Shah. The registered office of Canos Trading is at 2B Hamam House and which address was used by the trust and which the trustee Mr. Lam proposed as a new address of the Bai Avabai Trust. Canos Trading also has its correspondence address at Rajabahaur Mansion address which is also shared by Amoha Traders. Mr. Khambata states that that in the Directors Report of Canos Trading for the period ended 31st March, 2015, item no. 16 records that during the year the company advanced a loan of Rs. 69,60,577/- to Mr. Purvez Dalal who had incidentally died in December 2011. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,147/- said to have been spent by Amoha which amounts have been given by defendant no. 1 out of the funds of the estate. Incidentally the certificate issued by J.C. Desai Co. is issued upon verification of books of accounts and other relevant records as produced before the Chartered Accountants by Canos Trading and on the basis of verification and explanation provided by the company. No documents which are said to have been verified have been referred to. It was further submitted that defendant no. 1 has stated that he has annual income of Rs. 5 to 10 lakhs in his affidavit dated 17th January, 2017 and it is inconceivable that Canos could give a loan of Rs. 1.17 crores to defendant no. 1 who admittedly was a man of moderate means of which this makes it obvious that defendant no. 1 was creating liabilities in the name of late testator and siphoning the amounts in cahoots with others even when the property is custodia legis. 19. Apropos the connection between defendant no. 1, the said Panday and his various companies under his control and the trust, Mr. Khambata pointed out that 2B Hamam House, Hamam Street has been the office of Amoha Traders, Jamsheed Panday, Canos Trading, El Dora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilation to indicate the involvement of Panday by reference to the orders of the Madras High Court and orders dated 7th July, 2014 and 26th October, 2015. Mr. Khambata took me through the said orders. These orders refer to the said Panday described as Jimmy Panday and it appears that Panday was adjudicated insolvent is reflected in order dated 3rd February, 2009 of the Madras High Court. 21. Mr. Khambata also submitted that Kotak Mahindra Bank in its account statement shows large sums of money having which spent by the defendant no. 1 all of which appear to be the sums of money siphoned away from the estate through the conduits of Amoha Traders, Safe Security Services and Bai Avabai Trust. Mr. Khambata also submitted that the Succession Act does not permit the executor to borrow money and there was no justification in the defendant no. 1 binding the estate by borrowing funds. Furthermore, he had no power or right to act as executor either to borrow or to donate funds. The donation to trust and the repayment to Amoha and other monies said to have been paid to Safe Security Services and legal fees were liable to be paid over to the administrator and the fact justify an order of invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts in cash on behalf of the estate but has failed to deposit the same in the bank account that there was apparently one or more accounts that had been opened in the name of estate and not disclosed which aspect has been dealt with in an order dated 9th January, 2017 passed in Testamentary Suit no. 29 of 2012 in Testamentary Petition no. 341 of 2012. It must be ascertained whether any amounts of the estate have been deposited into personal bank account of defendant no. 1 or that of his associates Panday and others. It is not understood why Canos Trading would consent for giving loans to the testator after his demise. It is necessary to consider these aspects. 23. Revival of the Bai Avabai Trust and fabrication of letter heads and receipts leads one to believe that the trust is being used for the purposes of receiving kick backs and the true nature of the trust has to be ascertained. There are immovable properties in Manmad, Bachav and Nasik some of them having machinery. There are also hotel properties in Andheri and Vile Parle. There are government securities forming part of the estate. Defendant no. 1 has been collecting cash amounts on behalf of the estate and not depositin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court are held to be undiminished and in exercising its jurisdiction in the manner and in terms of the assistance now sought from the Court would not involve exercise of any special jurisdiction under Article 215 of the Constitution. Every High Court as a court of record has power to punish the contempt of itself. The inherent powers of Court are unlimited and set out in Pritam Pal v/s. High Court of Madhya Pradesh through Registrar 1993 Suppl. 1 SCC 529. It is observed that the powers of the High Court under Section 215 cannot be restricted or trammeled upon by any ordinary legislation and that the inherent power of the High Court are elastic, unfettered and not subjected to any limit. He further submitted that in H.P.S. Chawla v/s. N.P.S. Chawla AIR 2006 Del 53 the Delhi High Court has observed that even while sitting in its testamentary jurisdiction and in the absence of statutory prohibition the High Court does not cease to be a court of equity. Steps must be taken to ascertain the extent of inter-meddling by the conspirators including defendant no. 1. He relied upon Maria Margarida Sequeira Fernandes v/s. Erasmo Jack De Sequeira 2011 (5) SCC 370 which held that courts u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this Court has held that proceedings for applications under Section 340 of the Cr.P.C. are independent and that for such proceedings. The power under the Code of Criminal Procedure can be enjoyed by the Civil Court. An SLP filed from this judgment is stated to have been withdrawn as recorded in an order dated 18th September, 2016. It is the contention of the plaintiffs that the High Court always can order an investigation under its plenary and inherent powers and the Court is in any event does not lack the power to order of investigation in its testamentary jurisdiction or on the administrator's report, the jurisdiction and powers of the Court are unaltered. 25. Mr. Khambata also relied on the following judgments: 1) M.V. Elisabeth and others v/s. Harwan Investment and Trading Pvt. Ltd.; 2) Sudhirendra Nath Mitter v/s. Arunendra Nath Mitter and others 3) S.K. Gupta and another v/s. K.P. Jain and another; 26. In M.V. Elisabeth (supra), the Court was considering the competence of the appropriate Indian Court to deal in accordance with the general principles of maritime law with things and persons within their jurisdiction. The Supreme Court held that the power is plenary and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he situation about which called for the court's intervention is not relevant and would not invalidate the action on that ground. Submissions of Mr. Thacker for Defendant No. 1. 29. On behalf of defendant no. 1 Mr. Thacker learned counsel referred to the background of the dispute and contended that the Will propounded by the defendant no. 1 provided that the estate was to enure for charitable purpose. He submitted that particulars of donation paid vide letter dated 10th April, 2012 was sent to the Administrator and vide disclosure letter dated 7th October, 2016 copy of which is to be found at page 365 Exhibit-T. 30. The first submission of Mr. Thacker is that there is no lis between the administrator and defendant no. 1 as on date and therefore the plaintiff cannot seek any relief in the Administrator's Report. A suit would have to be filed. The plaintiff was entitled to file his own proceeding and so was the administrator. No relief can be sought by means of this report. 31. Secondly, he submitted that even assuming the plaintiff can seek relief, the relief sought would have to be within the scope of the probate proceedings which were parent proceeding in relation to the Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here under. He made specific reference to section 208. He submitted section 208 contemplated that there was no impediment in bringing the suit hitherto by the party on whose behalf an application is rejected before or after summoning the party in possession or by the party who may have been evicted from possession under part VII of the Act. Likewise the decision of the District Judge in summary proceeding under part VII shall have no effect other than settling the actual position, but such decision will be final and is not subject to appeal or review. These two sections are to be read with conjunction to section 207 which provides for possession by Court of Ward of any property and in the light of these provisions of section 207 that section 208 and 209 met reliefs. 35. Part VII deals with protection of property of the deceased and largely based on the 1841 Act to which my attention has been drawn. According to Mr. Thakker, save and except for Part VII of the Succession Act, no other provisions can be invoked. Inviting my attention to provisions of section 269 of the Act, he submitted that the Court may only appoint an officer to take and keep possession of the property. He submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revealed that sum of Rs. 89,416/- was paid on 2nd November, 2011 to Safe Security Service in Notice of Motion 138 of 2012. He further submitted that monies were borrowed from Amoha before the order of injunction and property was then vested in defendant no. 1 who was duty bound to protect the property. He submitted that upon demise of the testator the property stood vested and therefore defendant no. 1 was fully empowered to deal with it. 37. Referring to provision of section 307, 320 and 321 he submitted that the power of the executor is absolute as far as disposal of property is concerned subject to the restrictions in sub-section (2) that under section 320 and 321 after payment of final expenses, medical expenses boarding and lodging] Payment of expenses were also permitted and whether such expenses incurred in fraudulent manner can only be established at the trial and the Court cannot direct repayment in the Administrator's Report. He submitted that defendant no. 1 was always entitled to assume office as executor and dealt with the estate and the proceedings now contemplated are premature. Furthermore if probate is granted to the defendant no. 1 all acts of the defendant no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Will was ab-initio void, not because it was a forgery or it was obtained by fraud, coercion or undue influence but because all the provisions of the will are invalid under the Mahomedan law and therefore the executor had no power to act or bind the parties. The Court found that in terms of Section 4 of the Probate and Administration Act all property of the deceased person were since execute and if the executor abused his powers in respect of the property, the only remedy can only be a personal remedy. Outsiders who have dealt with the executor on the faith of the property having vested in him must be protected and authorities have held that while the property is vested with the executor although it may be found later that the properties were wrongly vested as in the case of forged will, all acts of the executor in respect of such property the bonafide purchasers are concerned must be regarded as valid. 42. In Bai Panbai (supra) while dealing with the provisions of Section 317 of the Succession Act the Court held that an executor or administrator may be compelled to exhibit an inventory and render an account of his administration of the personal estate of the testator. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 46 and 47 inasmuch as the Supreme Court had discussed the difference between Section 211 and 213 of the Succession Act. Under Section 211 the executor or administrator of a deceased person is his legal representative for all purposes and property of the deceased vests in him the expression legal representative would have the same meaning given in Section 2(11) of the Code of Civil Procedure legal representative means a person who in law represents the estate of the deceased and it includes person who inter-meddles with the estate of the deceased. That vesting of a property is dealt with in Section 211 and not Section 213 and such vesting does not takes place as a result of the probate. On the executors accepting his office, the property vests on him and the executor derives is title from the will and becomes the representative of the deceased even without grant of probate and the probate only confirms his title. 46. In Fuerst Day Lawson Limited (supra) Mr. Thacker had placed reliance on paragraph 89 which considered the fact that the Arbitration Act 1940 from its inception was held to be a self-contained code and if that were so the Arbitration Act, 1996 which consolidates, am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion they were decided by a common judgment. The Court after hearing the revisional petitioners remanded the matter to the lower Court to re-assess the evidence under Section 193 of the Succession Act was dealt with which require the District Judge to examine the applicant on oath and make further inquiries that he may think necessary to ascertain whether there is a sufficient ground to believe that the party in possession or taking forcible means for seizing possession has no lawful title and that the application was made bonafide. Finding that the District Judge has not recorded any finding as to material prejudiced, the matter came to be remanded. 49. In the case of Haji Mahamadbhai Peerbhai (supra) decided in November 1923, Mr. Thacker had relied upon the scheme of the 1841 Act under Section 3, 4 and 5 thereof and held that all proceedings where under interlocutory depending upon the filing of an application for relief asking the Court to determine who has a right to possession pending the final determination of the rights of parties in a regular suit. The Court held that considering the wide powers given to the Courts to make interlocutory orders in suits, that an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments relating to flat no. 8 at Al-Karim Manzil, papers pertaining to litigation filed during the lifetime of the deceased in relation to the flat, disclosure of the HSBC Bank statements of accounts in relation to the bank accounts in the joint names of the deceased Pervez Dalal and/or Jamsheed Dalal and one Dhoodhmal. The further orders of disclosure sought against KMBL is what concerns his clients that the disclosure sought in prayer clause (d) and (e) seeking a direction to furnish copies and details of a sum of Rs. 17,08,147/- received by Amoha Traders on or about 24th March, 2012 out of the bank account opened in KMBL and also direction to his clients to pay over the administrator the said amount along with interest to be fixed by this Court. Further disclosures sought in the report do not concern Amoha. 53. Thus effectively as far as Mr. Dani's clients are concerned, he submitted that the petitioners seek disclosure of payment of monies received by Amoha. He submitted that the relief prayed in report no. 1 of 2018 prayer clause (e) cannot be granted in the testamentary jurisdiction of this Court that it is not a plenary jurisdiction that the Court is exercising and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of hospital expenses, security costs and medical expenses. He submitted that documents compiled from page 792 to 1127 disclosed such expenses and whether the funds were spent and to what extent they were spent will have to be gone into. Mr. Dani submitted that payments have been made to defendant no. 1. Apropos the operating of the bank account he said that there is an explanation in paragraph 14 of the affidavit filed on behalf of Amoha and these are all questions of fact which have to be gone into. Mr. Dani further submitted that it is not the administrators case that Amoha had withdrawn funds. He submitted that no case had made out for the Court to order any investigation and nothing prevented the administrator from filing a first information report or a private complaint. In this light of the matter he submitted that no case is made out against notice no. 2. Mr. Dani relied upon the decisions of this court in Rupali Mehta (Supra) and Ramchandra v/s Vithalrao 2011 (4) Mh LJ 50 in support of his aforesaid contentions. Submissions of Mr. Apte for the Trust 55. On behalf of Avabai Trust, Mr. Apte adopted that all the legal submissions made by Mr. Dani he invited my attention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra Hande (supra). Mr. Apte submitted that after the appointment of an administrator, only protective reliefs can be sought and granted if mandatory reliefs are required to be granted, such orders can be passed only in a suit and the administrator will have to file appropriate proceedings with the leave of the Court. 57. He invited my attention to the chart appearing at pages 901-908 of the compilation which he submitted that provided all details of the money spent. He submitted that the issue as far as the trust is concerned is a matter of principle and that the Court may not pass a mandatory order. If at all, the donation was paid without the right to do so the amount must be recovered from the executors. In the course of submissions, I called upon Mr. Apte to seek instructions whether the money can be deposited in the Court to which Mr. Apte said that he has no instructions to make that statement. In other words the trust is unwilling to deposit the money in Court on its own. Mr. Apte then relied upon Section 368 and 369 of the Succession Act and contended that in the light of these provisions, the money cannot be recovered from the trust. The amount was used for charity and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of noticee submitted that in the proceedings for grant of probate or letters of administration, the Division Bench had observed that the Court exercising testamentary jurisdiction was not concerned with the title to the property. In determining whether probate should be granted, the Court determines only the genuineness and due execution of the Will and determination of matters of title are alien to probate proceedings. He submitted that this principle was reiterated by the Supreme Court even earlier in Ishwardeo Narain Singh v/s. Kamta Devi AIR 1954 SCC 280 and reiterated in Chiranjilal Shrilal Goenka v/s. Jasjit Singh (1993) 2 SCC 507 while Mr. Apte referred to the observations in Ramchandra Hande (supra) and in the context of Ishwardeo N. Singh (supra), Mr. Khambata had submitted that as held in Chiranjilal Goenka (supra) the Succession Act is a self-contained code in so far as the question of making an application for probate is concerned or an appeal against the decision of grant or refusal of probate or an appeal carried against the decision of the probate court, this is clearly manifested in the provisions of the Act. Probate proceedings are conducted by the Probate Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Institution 2012(2) Mh. L.J. 683, Mr. Apte had relied upon the observation of the Single Judge on a notice of motion taken out under Section 247 of the Succession Act for appointment of an administrator. The issue was whether two different persons can be appointed separately as executors for different parts of the property and the issue had come up for consideration before the Division Bench of Gujarat High Court. 63. In H.H. Maharani Vijaykunverba Saheb v/s. Commissioner of Income Tax (1982) 136 ITR 18, the Court held that it is permissible to make Wills or Codicils for different part of his property and it is also permissible for him to appoint different executors for different properties under different Wills or Codicils or for that matter to appoint two or more different executors in respect of different parts of his properties under a single will. This decision in the case of H.H. Maharani Vijaykunverba Saheb (supra) found in favour to this Court which held that Section 247 of the Succession Act undoubtedly confers a power on the Court including a testamentary Court to appoint an administrator pending decision of a suit touching the validity of the Will of a deceased pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in cases not provided for under the Rule in relation to the Succession Act by the CPC a Judge that may pass orders following the procedure of the High Court of Justice in England to the extent applicable. In this connection he invited my attention to Section 94(c) and Section 151 of the CPC. Section 94 provides for supplemental proceedings and sub-section(c) of Section 94 empowers the Court to make such other concurrent orders as may appeared in the code to be just and convenient of proving the ends of justice from being defeated. Further under Section 151 the inherent powers of the Court are unaffected to make such orders and maybe necessary for the ends of justice merely the code is not exhaustible and hence in such situations that warrant to exercise of inherent jurisdiction. (I am of the view that this may be exercised only in the ends of justice). In the circumstances and as contended by Mr. Khambata the Court is not powerless to pass appropriate orders. He submitted that the High Court does not cease to be the High Court in testamentary matters. 65. In HPS Chawla v/s. Dr. NPS Chawla (supra), it was observed that the testamentary Court was not without jurisdiction to expung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 1 would be liable since he may be a person who intermeddles with the estate of the deceased where there is no rightful executor. He makes himself an executor of his own wrong. The only exception being intermeddling with the goods of the deceased for the purpose of preserving them or providing for immediate necessities of family or property and dealing in the ordinary course of business with the goods of the deceased received from another. 66. An executor who was acted of his own wrong is liable to the rightful executor of Administrator. One can proceed on the basis that the defendant no. 1 is an executor of his own wrong in the facts of the present case even before a decision as arrived at in a suit. In response to the argument that the relief sought is premature, Mr. Khambata submitted that Section 227 will normally validate all actions but in the instant case considering the illegalities, validation under Section 227 is not possible. As far as defendant no. 1 is concerned, he is in the control of Panday and the Trustees De Son-tort. The trustees themselves are executors de son-tort. He submitted that in Part VII of the Act reference to Section 192 and the Act of 1841 it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyes of law. 70. In Express Newspapers, the Court had occasion to consider how allegations of malafides are to be dealt with. It observed that vague allegations are not enough to dislodge the burden vesting on a person who makes the allegations although what is required is not absolute proof and that definite allegations of malafides are required to be made with sufficient particulars. It is necessary that person against whom the allegations are made should come forward with an answer refuting or denying such allegations as otherwise the allegation would remain unrebutted and the Court would be constrained to vest the allegations remaining in unrebutted on the subject to the test of probability. The defendant and notices have failed this test. 71. In this behalf, the Supreme Court had relied upon its own decision in the case of Diary and Chemicals Ltd. V/s. Company Law Board 1966 Suppl. SCR 311. In Manindra Chandra v/s. Sudir Krishna Banerjee and Ors. AIR 1932 Cal 182 a Division Bench of the Calcutta High Court while considering an appeal under the Succession Act observed that under Section 307 to 315 of the Succession Act the estate vests in the executor only for discharging dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior officer to conduct an enquiry. 75. In Sanjeev Kumar Mittal (supra), the Delhi High Court has considered at length the case law on ordering investigation by the police and if considered an order of the Division Bench of the Delhi High Court in Manjit Kaur v/s. J.P. Sharma in FAO (OS) no. 152/1994 in which the Court observed that prima facie a case of fraud had come to light and the order of investigation by the Director of the CBI himself or through a senior officer to go through himself and submit a report. In Davendra Singh v/s. Subroto Ghosh in FAO (OS) no. 52/1996 the Division Bench of the Delhi High Court felt it necessary that there should be an independent enquiry into certain aspect of execution of documents in favour of some of the defendants and also whether he was the person who had executed a general power of attorney and the person who applied to the Municipal Corporation of Delhi for mutation in its record. In that case as well, the Director of the CBI was required to appoint a senior officer to go into the facts and submit a report to the Court. The Court concluded that it was well empowered to direct the police to investigate and file a report and such power h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erving that Section confers special powers of the Court to interfere with the protection of property till probate is granted provides the deceased was not a Hindu, Mahomedam, Buddhist, Sikh, Jaina or an Indian christian. Ione following the excluded persons. 77. In this case, the deceased was a Parsi and is therefore subject to the provisions of Section 269. Reference was made to Sections 192 and 193 of the Act. These sections fall under Part VII which deals exclusively protection of property of the deceased which empowers the Court to pass orders in summary proceedings. Section 192 and 193 however can be availed of to prevent the person without rights taking possession including to prevent persons from taking forcible possession. Any agent or relatives or near friend or Court of wards upon taking cognizance can make an application. In my view, an administrator would certainly be entitled to derive powers of making such an application. Upon an application being made Section 193 it requires the Court to examine the applicant on oath and make further enquiries as to whether there is sufficient ground to believe that a party in possession or taking forcible possession has no title and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no jurisdiction to go into the question of title and the subject matter is not a property that is left behind by the deceased. The Court also held that it has no inherent power to pass suitable interim orders for protection of property in a probate petition. In that case the Notice of Motion sought appointment of a receiver but that request was rejected. The Division Bench of this Court once again held in Ramchandra Hande (supra) that issues of title are alien to probate the suits. Mr. Apte had canvassed to propose that in a petition for grant of probate, the court is not concerned with the title. On the other hand, Mr. Khambata had contended that the Succession Act being a self-contained code, the Division Bench considered Section 269 and 273 of the Act and the earlier decisions on the subject including the case of Thrity Sam Shroff (supra) and although it was Mr. Apte's contention that a probate court is not concerned with question of property itself, the Court had held that in view of Section 269 there is no inherent power in the Court to grant interlocutory relief. This being so and in view of the fact that the probate court is only concerned with the question whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed one of the aspects to be considered is whether there is justification in the instant case for ordering an enquiry or investigation. In the case at hand, I have no doubt that the defendant/notices have been non-cooperative and such behaviour, despite appointment of the Administrator is causing material prejudice to the estate and the administration of justice. 80. One of the aspects that would be appropriate to consider is whether this Court is coram non-judis given the fact that the Succession Act is considered a code in itself with its limitations. As observed by the Supreme Court in the case of A R Antulay v/s. R.S. Nayak 1988 (2) SCC 602, the jurisdiction of Court is capable of being created or enlarged by legislation. The Supreme Court observed that jurisdiction comes solely from the law of land and cannot be exercised otherwise, that jurisdiction may be exercised by the Court as provided for the constitution or in laws made by the legislature and a power of the Court to deal with the matter or make an order carrying binding force in the facts of a particular case that a code cannot confer jurisdiction on itself if it is not provided in law. In his opinion, Venkatachaliah, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The conclusion in Fuerst Day Lawson Ltd. (supra) of course was to the effect that no letters patent appeal would lie against an order which is not appealable under Section 50 of the Arbitration and Conciliation Act. The Succession Act being treated as a code in itself would therefore require me to consider whether grant of reliefs prayed for would be hit by a negative import. One must also consider whether it is possible to limit the exercise of jurisdiction within the confines of the Succession Act or whether it is possible to exercise inherent powers where statutes such as Succession Act do not contain such enabling provisions. In this behalf it is appropriate to refer to the observations of the Supreme Court in M.V. Elisabeth (supra) wherein the Supreme Court observed that where statutes are silent and remedy has to be sought by the courts to basic principles, it is the duty of the Court to devise procedural rules by analogy and expediency . This observation of the Supreme Court came in relation to procedure to overcome difficulty of personal service upon a defendant by compelling him to enter appearance, service of summons, to ensure furnishing of security in the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trator must be suitably equipped. 83. One other aspect that needs to be considered is whether the High Court in its testamentary jurisdiction can act suo moto or only on the application of a party as contemplated under the Succession Act. This aspect is required to be separately dealt with, however, in its jurisdiction under the Companies Act we have the benefit of the Supreme Court ruling in S.K. Gupta (supra) wherein while interpreting Section 392 of the Companies Act, 1956 it is observed that the Court could act suo moto or on the application of a person interested in the affairs of the company. 84. Section 340 of the Cr.P.C. provides for decisions in cases mentioned in Section 195 of the Code. Section 195 of the code provides for prosecution for offences against public justice and for offences relating to documents given in evidence. Section 195 provides inter alia that no court shall take cognizance of any offence punishable under the specified sections of the IPC namely 193 to 196, 199, 200, 205 to 211 and 228 when such offence alleged to have committed in relation to a proceeding in court or any offence described in section 463 or punishable under sections 471, 475 and 476 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 340 is to institute an enquiry and ascertain whether any offence affecting administration of justice has been committed in relation to any document produced and given as evidence in Court. Section 340 of the Code has been held to be applicable to all proceedings in all Courts in criminal cases or civil cases irrespective of the fact that whether the matter in court is one involving an offence mentioned in Section 195. [see (2002) Cri.L.J. 3405 (AP) K. Rajagopala Rao v/s. P. Radhakrishna Murthy] Section 340 provides that inquiry is held when a complaint is lodged by one of the parties to litigation after taking precautions to ensure that a false and frivolous complaint is not initiated. It is permissible for the Court to act suo moto on a complaint to initiate an enquiry under section 340. It is for the Court to decide whether it is necessary and it is expedient and in the interest of justice that an enquiry should be made or complaint filed, absent such satisfaction could not be appropriate to initiate an enquiry. 86. S.K. Gupta (supra) also held that it is immaterial as to who draws the attention of the Court to a situation which required the Courts intervention and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the views that I have expressed in this judgment, I am of the opinion that this Court was not powerless in the matter of ordering an inquiry although the Succession Act read as a whole does not contain any specific power to initiate such enquiries. That having been said and be conscious of the limitations of the code, I am of the view that the negative import attaching to the code does not prohibit the ordering of an enquiry. More so, because the Court found it fit to appoint an administrator and an administrator must be sufficiently equipped to carry out the tasks expected of him. I am conscious of the fact and as canvassed by the respondents' successor that if the administrator so desires, he can file a complaint by himself and need not seek assistance of this Court under normal circumstances. It may be appropriate that the administrator approaches the Courts of law on his own. However, given the factual background of the present case, it appears that the parties involved, not having faithfully disclosed the extent of their involvement and have undoubtedly held back in making a full and proper disclosure and have been engaged in deceitful conduct. 89. In these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is not been produced by the trust. The statements made by the trustees including Mr. Lam have turned out to be incorrect. The trust has withheld documents and particulars. It has provided incomplete addresses from time to time the use of funds for charitable purposes has not been established, the payments made for medical treatment of non parsis is also suspect. Nothing disclosed so far indicates that the trust has in fact used funds for the benefit of the Parsi community. The involvement of Mr. Jamshed Pandey and defendant no. 1's proximity to Mr. Pandey's and his companies and the involvement of various other persons. 91. Furthermore, certifications by Chartered Accountant(s) in respect of the payments made have also not been satisfactorily explained. The fact that defendant no. 1 is a shareholder in Kratos Energy and Canos Trading and that Kratos Energy and Amoha Traders use a common telephone number which stands in the name of one Jimmy Panday and the fact that defendant no. 1 being one of the four shareholders of Canos Trading and have attempted to create liabilities in the name of the estate has not been properly explained. The fact that Amoha Traders is one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear to be interfering with the affairs of the estate through the defendant no. 1 whether it is by virtue of the conscious participation of defendant no. 1 or whether such conduct is imposed upon him by others is also to be ascertained. I find it difficult to appreciate the contention of the defendant no. 1 in his affidavit dated 24th April, 2018 and the telephone numbers and email id of Amoha since Amoha had a running office. This is to be tested in the light of the fact that mobile number given is not of defendant no. 1. The defendant no. 1 had not furnished any of his own mobile numbers or contact details. Thus, admittedly he would be unaware of any updates sent by the bank. In my view this is not indicative of normal behaviour of a person who claims to be an executor of the estate and which estate is to be intended to fund the charitable purposes. I must not lose sight of the fact that under Section 317 of the Indian Succession Act, the administrator is required to ensure that a full and true estimate of all property and credits and debts are made up. It is therefore necessary that the administrator appointed is supported in all respects. The conduct of defendant no. 1 is und ..... 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