TMI Blog1991 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... te Suresh C. Mahindra is very large and of considerable value and the bulk of it is in the State of Karnataka, but lessor and some what more considerable assets in the estate are situated in the State of Tamilnadu and Maharashtra. 3. It is averred that the 1st respondent has contended against the Will and six Codicils as being bogus. He arrogated himself as the authority on the ground that he being the eldest son of the deceased Suresh C. Mahindra seeking the estate to be divided in accordance with Hindu Law of succession as on intestacy. 3.1. It is further averred that the 1st respondent, on the III-advice, is interfering with the properties of the deceased. He has also attempted to make forcible entry into properties to make unlawful gain by taking away the moveables and documents of business affairs without any reference to or in consultation with those entitled under the Will and six Codicils. 3.2. Further, it is averred that the 1st respondent is trying to dispose of the properties and even worse he has sought to handle the business affairs of the deceased, in respect of which he has not acquired knowledge and experience. 3.3. It is also averred that there are 169 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint any administrator pendente lite. 5. It is well settled law that Administrator pendente lite, could be appointed provided that there is a lis and the question of validity of the Will is pending in the Court in the Probate proceedings and the preservation of property until the dispute as to the validity of the existence of Will itself is decided. 6. In this case Probate proceedings is pending and the Will has been produced into the Court. The Will and six Codicils, prima facie, show that it is established that the Will and six Codicils were executed by late Suresh C. Mahindra. The bulk of the estate is situated in M/s. Broadacres Stud Farm, is within the jurisdiction of this Court. As per the Will, the 1st petitioner and her two minor children are the beneficiaries along with one married daughter of late Suresh C. Mahindra and the 1st respondent, his son. The 1st petitioner filed and application for grant of Letters of Administration in view of the executors mentioned therein, namely, Keshub Mahindra and Harish Mahindra, the brothers of the deceased, under the Will, have renounced and the renunciation has also been communicated. 7. The 1st respondent has disputed the Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal affidavit specifically stating that certain horses belonging to his father late Suresh C. Mahindra came to be in the premises of M/s. Broadacres Stud Farm. 10. The learned Counsel for the respondents has also referred to the Income Tax Authorities order dated 25-11-1985 which shows that the authorities have recognised the 1st respondent as owner of M/s. Broad-acres Stud Farm which is based on the statement given by late Suresh C. Mahindra. 11. The 1st petitioner in her counter had, by referring to the document, namely, sale deed dated 16-7-1974, pointed out that the entire M/s. Broadacres Stud Farm, the building and the adjacent land were purchased by the late Suresh C. Mahindra. In the said deed there is no reference to the effect that the same was purchased by him on behalf of his son. She has also produced the order of the Deputy Commissioner of Income Tax dated 31-10-1990. The Income Tax Authorities has observed on the facts of the case, that in the particulars given relating to the assessment year 1976-77 the assessee Mr. Suresh C. Mahindra had purchased M/s. Broadacres Stud Farm. 11.1. At para-4 of the assessment order it is stated thus: The facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to by the either party do not substantially prove that what is claimed by the 1st respondent was exclusively owned and possessed by himself. It is a matter to be decided in the Court after trial suffice to say that the properties claimed by the respondent as his own. M/s. Broadacre Stud Farm is included in the Will and Codicils bequeathing it to the legatees among other items mentioned therein. 14. The respondent's Counsel submitted that the matter is seized by the High Court of Bombay and this Court should not exercise any powers under Section 247 of the Indian Succession Act, for it would come into conflict with the decision if any in the suit and the propriety demands that this Court should stay its hands. The petitioners' Counsel urged that the High Court of Bombay cannot be said to have seized of the matter covered under the Probate proceedings as the suit is based on inheritance as on intestacy especially with the disclosure of the Will and Codicils upon which this Court has required jurisdiction, would have pronounced on the validity or otherwise of testamentary documents. It is only after the Will and Codicils are discounted by any remote possibility an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator under the Will have sent in their renunciation letter dated 6-6-1990. 20. It is the case of the petitioners that large number of Race Horses which were to be protected and the affairs of the Race Horses business shall be managed by the professional man and the best trainer in the field, Mr. Rashid Byramji, who was the close friend and advisor to late Sri Suresh C. Mahindra. 21. The business establishment of M/s. Broadacres Stud Farm will have to be protected and the same is required to be managed by a professional man without which there is likelihood of loss and damage to the valuable properties of the deceased. Moreover, the persons named as executors in the Will renounced and after their renunciation as executors as there is no competent person to discharge that function of an Administrator. 22. We are no doubt governed by the provisions of Section 247 of the Indian Succession Act, and the appointment of the Administrator is purely discretionary. In my view, the Court has to be satisfied as to the necessity of such an Administrator and as to the fitness of the proposed Administrator and it must also be satisfied that it is just and proper, under the circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat appointment of receiver is not analogous to the appointment of Administrator within the meaning of Section 247 of the Indian Succession Act. Even if the appointment of receiver is made in that suit, this Probate Court can appoint an Administrator pendente lite if it is just and proper to do so, although a receiver may be appointed in any of the two suits between the same parties and in respect of the same property, 26. The estate is of considerable value and for safeguarding the same and for the protection of racehorses of the deceased, in my opinion, some arrangement has to be made. In this case, on account of the renunciation of the executors appointed under the Will, the execution of the Will has been challenged on various grounds. Under the circumstances there should be, in my opinion, grant of Administrator pendente lite. The last question is who should be the Administrator pendente lite? I have to be satisfied with fitness of such an Administrator. The appellant has suggested the name of Mr. Rashid Byramji an expert and second to none in the field of management, care, and protection of race-horses in the Country. He was intimately associated for the last few years in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st respondent could be appointed as Co-Administrator provided the appointment of Mr. Rashid Byramji is accepted by the 1st Respondent. The 1st respondent has filed an affidavit on 23-11-1990 in which he has given his consent for the appointment of Mr. Rashid Byramji as Administrator along with him. Since the parties have consented Mr. Rashid Byramji and Mr. Marthand Singh Mahindra could be appointed as Administrator and Co-Administrator respectively to the estate of the deceased covered in the Will, the Court will have no difficulty to appoint them as Administrator and Co-Administrator to manage the affairs of the estate of the deceased covered in the Will. 28. In the circumstances, in exercise of the powers under Section 247 of the Indian Succession Act, 1925, this Court doth appoint Mr. Rashid Byramji and Mr. Marthand Singh Mahindra as Administrators pendente lite with all the powers and rights on behalf of the business establishment of M/s. Broadacres Stud Farm except the right to distribute such estate and shall be subject to the immediate and absolute control of this Court and to act under its directions. 29. I further direct that the Administrators shall not disturb th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the filing of the Probate proceedings in this Court and the issue involved in the said proceedings is also directly and substantially the same as in the Probate proceedings in this Court, it is proper and necessary to stay the Probate proceedings as otherwise grave and irreparable injury would be caused to the applicant. 6. The petitioners have stoutly opposed the application mainly on the ground that it is misconceived and is not maintainable. It is submitted that the application has deliberately been made with a view to prevent the petitioners from obtaining any order of appointment of the Administrator pendente lite. It is further submitted that the issue involved in the suit is neither directly nor substantially the same in the Probate proceedings, pending in this Court. 7. Let me examine briefly the contentions of the parties to find out whether the application is maintainable or whether the issue involved in the suit is directly and substantially the same as in the Probate proceedings. The law on this point is well settled. No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us suit and the subject-matter in both the suits are same. 14. I have perused the plaint filed by the applicant in the Suit in Bombay High Court and the petition by the Petitioners/Respondents in the Probate proceedings in the High Court of Karnataka. It prima facie gives the full focus of the issues involved in both suits. The suit in Bombay High Court filed by the applicant is an Administrative suit to administer under Hindu Succession Act, whereas the Probate proceedings filed by the respondent is one for grant of probate under Indian Succession Act, 1925. The issues involved in the Probate proceedings are distinct and different and the relief claimed is different from what is claimed in the suit in the Bombay High Court. The very nature of suit and the relief claimed therein and in the Probate proceedings in this Court are not the same, though parties are same. In either of the suit the trial has not commenced. The Probate proceedings is in the stage of interlocutory proceedings such as appointment of receiver or appointment of Administrator. Likewise the suit in Bombay High Court also in the same stage, and any decision in the Probate proceedings may have some bearing on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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