Abha Dastane-Rao and Another Vs. Prabhakar Deolankar and Others - Court Judgment

Excerpt:
indian succession act, 1925 section 301 removal of executor petitioner sought to remove first respondent as executor of will said to have been left by deceased - court held there seems to be no doubt that except for cash or monetary bequests, all other bequests under will viz., jewellery and immovable property, were distributed and received in accordance with terms of that will first respondent claims he received original probate in his hands and before he received probate, asked various beneficiaries to execute surety bonds , where petitioners refused to do so first petitioner has also received benefits under will that now she wants to remove executor one of bequests in will is that first petitioner be provided with expenses for her travel to and from united states and these expenses have admittedly been provided to her periodically none of these expenses could possibly been reimbursed but for provisions in will it does not see how petitioners can assail either probated will or seek removal of executor appointed under that will without first committing to bringing back all those testamentary benefits hence, it is not able to find any substance in allegations against first respondent, certainly none as would warrant his removal petition dismissed. (paras 9, 10, 39, 40) cases referred: 1. jnan kumar das v ram kumar das and ors., air 1940 cal 264 2. mihir kumar gooha v registrar of trade unions, air 1961 cal 165 3. sambandam v n. natarajan, (1969) 2 mlj 473 4. f.c.s. amalnathan and ors. v j.s. victor brasco, air 1995 kant 258 5. pandurang shamrao laud v dwarkadas kalliandas, air 1933 bom 342 : 1933 (35) bom lr 700; amalnathan 6. dhana bakkiyammal v thangevelu mudaliar, ilr 50 mad 965; shanti devi v yadvinder thakur and anr., (2006) 143 plr 799). 7. mukesh ramanlal gokal and anr. v ashok jagjivan gokal and ors. comparative citations: 2016 (2) air(bom) r 596, 2016 (3) bcr 421, 2016 aircc 1390, 1. this is a petition under section 301 of indian succession act, 1925 ( the succession act ; the isa ). it seeks the removal of the 1st respondent, one prabhakar deolankar ( deolankar ) as the executor of a will dated 25th april 2006 said to have been left by one dr. narayan ganesh dastane ( dr dastane ). the 2nd petitioner, sucheta, is dr. dastane s widow. the 1st petitioner and respondents nos. 2 and 3 are their three daughters. deolankar is dr. dastane s brother-in-law. the 4th respondent is the maharashtra executor and trustee company pvt ltd ( metco ), a company that provides, inter alia, executorship and trusteeship services and for which it charges fees. on 18th june 2007, deolankar obtained probate to dr. dastane s will from the district court. in this litigation, respondents nos. 2 and 3 support their sister, petitioner no.1, and their mother, petitioner no.2. together, i refer to them in this judgment as the dastane family . where necessary, i have referred to them by their first names. this is only for convenience and no disrespect is intended. 2. the matter is considerably complicated by a series of subsequent events, and the onset of disputes between the dastane family on the one hand and deolankar on the other. these are all events of the five-year period from 2007 to 2012, and they seem to have caused parties on both sides to adopt utterly intractable positions. between the time of the probate application and today, there are or have been as many as twelve or thirteen legal proceedings of various description, ranging from writ petitions to miscellaneous applications and contempt petitions. of immediate concern are two petitions filed under section 263 of the succession for revocation of the probate: the first of these, m.a. 21 of 2008 is filed by shubhada; and it appears that there is yet another revocation petition no. 1187 of 2013 filed by sucheta, dr. dastane s widow. the latter was once dismissed on the ground of delay; a review petition was also dismissed; but the delay seems to have been condoned in a writ petition by this court. in those revocation petitions, as indeed also in the present petition for deolankar s removal, the dastane family contends that the will of which probate was obtained was not, in fact, his last will; that it is forged; and that there was an earlier will, never revoked, dated 21st march 2006. while no relief in that regard (i.e., as to the genuineness of the two wills) can be examined in the present miscellaneous petition, yet the pendency of the revocation petitions before the district court is of consequence because of the cast of the prayers in the present miscellaneous petition for deolankar s removal. prayers (a) and (b) of the present miscellaneous petition read: (a) that by an appropriate order or direction of this hon ble court, to suspend, remove or discharge the executor, i.e., the respondent no.1, i.e., mr. prabhakar narsingh deolankar, appointed under the probate petition no. m.a. 359 of 2006 as the executor of the last will of the deceased dr. narayan ganesh dastane ; (b) that by an appropriate order or direction of this hon ble court appoint the petitioner no.1 as the executor of dr. narayan ganesh dastane to administer the estate of the deceased dr. narayan ganesh dastane. 3. on the face of it, these reliefs are inconsistent with the probate revocation application and the assertions that the probated will dated 25th april 2006 is not genuine. copies of both the probated will dated 25th april 2006 and the previous one dated 21st march 2006 are annexed to the petition. in both, deolankar was ppointed an executor. the present prayer (a) is clearly incorrectly worded: deolankar was not appointed an executor by the probate court, but under the will itself. further, in this petition there is no prayer for revocation (as there could not be, that jurisdiction lying solely with the district court). consequently, if the relief is granted, deolankar would stand removed as the executor of the probated will dated 25th april 2006 and the 1st petitioner would be an executor in his place. she could not then impeach the very will of which she, on her own application, sought to be appointed executor. her revocation application would necessarily fail. conversely, the fact that she has impeached the probated will (or is supporting an application for revocation of that probate) clearly disentitles her from seeking appointment as an executor. 4. this issue was addressed early in the hearings. i asked mr. damle for the petitioners to take instructions; specifically, to ascertain if the petitioners wished to elect to prosecute the revocation application or the present application for removal. the petitioners contended that they desired to do both. that cannot possibly be corrected. i have considered, too, the short note submitted by the petitioners arguing that there is no inconsistency between the application for revocation of the probate and the application for removal of the executor. those arguments are unconvincing and misdirected. they confuse and conflate distinct concepts of administratorship and executorship in testamentary law. the prayer today is not, and cannot be, for the appointment of an administrator; that is not the wording of the prayer and no application has ever been moved for amendment despite repeated opportunities. prayer (b) follows on prayer (a) and that can only mean that the relief sought is to appoint the 1st petitioner in place and stead of deolankar as an executor of the probated will dated 25th april 2006. 5. i have heard counsel for the parties at some length. mr. damle for the petitioners and mr. chandrachood for the 1st respondent have placed authorities and notes of arguments. i have considered these as well. the petitioners submissions contain a lengthy litany of woes and complaints against deolankar. his response, as presented by mr. chandrachood, is firstly that there are crucial elisions and omissions in the petitions, none of which could be inadvertent or accidental, and these show that most, and perhaps all, of the petitioners grievances cannot be accepted simply because at the relevant time the petitioners consented to those acts. the petitioners also received benefit from the estate under the very will they now dispute and as a direct result of deolankar s administration. many of the accusations, mr. chandrachood says, relate to no more than errors of judgment or of having acted on suboptimal advice. there is a single solitary instance of a distribution being made to other beneficiaries, all related to deolankar, but even his, mr. chandrachood submits, is inconsequential; for the only reason that the dastane family too did not receive their benefits is because they refused to execute the necessary indemnities and documents. mr. damle s case is that all this is an oversimplification. he is, he says, in a position to demonstrate widespread devastation to dr. dastane s estate and the clear and unambiguous favouring of deolankar s family as beneficiaries over the dastane family. deolankar has, mr. damle says, not merely intermeddled with the estate to his own benefit; he is a trustee de son tort, guilty of the most egregious acts of commission and omission. 6. dr. dastane died on 26th april 2006. it seems that he left a quite considerable estate. he left a will, handwritten in marathi (ex. a, pp. 71-75; english translation at ex.a-1, pp. 76-88). this will bears no date, but it seems to be accepted (on the basis of the affidavits of the attesting witnesses filed later) that the date of the will is 25th april 2006, i.e., just a day before his demise. clause 6 of this will appoints deolankar as the sole executor, and clause 8 revokes a previous will said to have been made about a month earlier on 21st march 2006. the estate included two houses in pune, one a five-bedroom apartment with a garage at navi peth and another six room house at parvati; bank deposits; and jewellery. the dispositions are set out in a list below clause 4. from this it appears that deolankar s son rajendra and his family received the lion s share, including a cash bequest of rs.1 crore and the navi peth house. abha was to receive rs.25 lakhs and the parvati house. sucheta was given all the jewellery. shubhada was bequeathed rs.50 lakhs and vibha was bequeathed rs.25 lakhs. but there were also other cash bequests to other members of the deolankar family in the amounts of rs. 25 lakhs, rs.20 lakhs and rs.20 lakhs. these actual dispositions are not immediately material, except to note that the will makes quite substantial provisions for deolankar s family. 7. on 26th may 2006, deolankar, who lives overseas, executed a power of attorney in favour of metco. it seems that the appointment of metco was at that time not seriously disputed. indeed, in one of his affidavits (dated 12th may 2015, paragraph 4, p. 396)deolankar says that, living overseas, he did not even know of entities like metco, and that it was abha who set up a meeting at deolankar s son s house with one of her relatives, one divekar, and insisted on a power of attorney being given to metco. all this is, of course, now denied, but there seems to be no dispute that the dastane family accepted metco s engagement in the matter, and that abha herself delivered several securities to metco at about the same time. deolankar sought and obtained consent from dr. dastane s heirs to the appointment of metco for advice and assistance in the execution of dr. dastane s will (ex.r-6, p. 370).on 5th june 2006, deolankar applied for probate. the dastane family members were served with citations and seem to have appeared through their respective lawyers. they consented to the grant of probate, which was finally ordered to be issued on 18th june 2007. 8. on that day, 18th june 2007, the immovable assets were distributed in terms of the will. on 13th july 2007, the jewellery from dr. dastane s locker or vault was given to sucheta, his widow. deolankar consented to this. his son rajendra deolankar ( rajendra ) was present, as were deolankar s lawyer, representatives of metco and abha. 9. there seems to be no doubt that except for the cash or monetary bequests, all other bequests under the will (viz., jewellery and immovable property) were distributed and received in accordance with the terms of that will. 10. deolankar claims he received the original probate in his hands only on 14th december 2007. it seems that shortly before he received the probate, deolankar asked the various beneficiaries to execute surety bonds . rajendra and one dr ravindra shivram lohokare (also a beneficiary) executed these bonds. the dastane family refused to do so (ex.g, pp. 119-121; ex. h, pp. 122-124). 11. there is on record a copy of an email of 30th december 2007 from deolankar to abha (ex. j, p. 140).in this, he says that the probate was obtained because rajan and ravi (i.e., rajendra and dr ravindra lohokare) had decided to be sureties. deolankar confirms that he is bound to take up the distribution to all the beneficiaries immediately and that he proposes to do so at the same time. he then says the sureties have stuck their neck out and may be liable for lifelong if a new claimant shows up, so not sure if we need to keep some money in a charitable trust for protection. we can decide about the leftover later with your consultation, legally i should hold the distribution of money to the beneficiaries any longer. 12. the petitioners claim this to be an instance of misconduct on deolankar s part, and evidence of his wanting to favour his own son and near relative. it is difficult to see this email as suggesting anything of the sort. deolankar, who lived overseas and was getting on in years, was perhaps being overly cautious. what the petitioners allegations overlook is his unequivocal commitment, mentioned not once but twice, to effect a distribution of the monetary bequests, and to do so simultaneously to all beneficiaries to avoid any issues between them inter se. 13. at any rate, the dastane family seems to have taken a very great deal of umbrage to this. there is no material on record to show that any of them attempted to obtain a clarification from deolankar as to what it was exactly that he was proposing, or why he felt this necessary. on 3rd january 2008, just a few days after this email, shubhada and vibha filed m.a. 21 of 2008 before the district court for revocation of the probate. on 5th january 2008, an ex parte ad-interim injunction seems to have obtained restraining metco from handing over any securities to deolankar. on 4th april 2008, the order appears to have been slightly varied, allowing metco to continue routine matters relating to the estate (ex. q, pp. 204-205).this state of affairs seems to have continued for the next four years. in that time, the revocation petition was hotly contested. a very large number of documents and exhibits were placed on record before the district court. 14. ultimately, on 29th november 2012, the ad-interim injunction was vacated by the civil judge senior division then hearing the matter (ex. l, pp. 155-186, from pp. 162-185).the order is reasoned. it says it was pronounced in open court. there does not seem to have been any application for stay or for continuation of the previous ad-interim order. 15. what followed in the next few weeks appears to provide a very great deal of grist to the dastane family s mill. deolankar, as the executor of dr. dastane s will, was no longer under a restraint. he had in his hands a validly obtained probate. except for the dastane family, the other beneficiaries executed documents of a combined discharge and indemnity in favour of metco. this does not seem to have been an unreasonable or outrageous requirement, given metco s role in the matter. the petitioners make much of the fact that the discharge-cum-indemnity documents were executed by the other beneficiaries, all of whom are related to deolankar. to suggest, from this, that the dastane family was prevented from doing the same thing is, i think, stretching it too far. it is to be remembered that at no point had deolankar denied distribution. in fact, he seems to have wanted to close it at the earliest; and he had, in fact, rapidly allowed the distribution of jewellery to sucheta and, as and when required, the disbursement of funds to abha for her travel to and from america, another specific bequest in the will. it is accepted as a matter of record that the very same documents of discharge and indemnity, in identical terms, were requested from the dastane family too. 16. following the execution of these discharge and indemnity documents, cheques for the cash bequests were issued to the executants by mid-december 2012. in the third week of december 2012, two things happened simultaneously. first, shubhada and other members of the dastane family filed applications before the civil judge, senior division at pune inter alia to stay the order of 29th november 2012 and to continue the previous ad-interim order. the basis of the application seems to have been that deolankar had begun distributing the estate (ex. m, pp. 187-188).the application in question is dated 21st december 2012. a handwritten endorsement in response is to be found on it. on that very day, 21st december 2012, the application was allowed. the execution and operation of the order dated 29th november 2012 was stayed till 15th january 2013 (ex. m, at p. 194).in the meantime, the cheques issued to the beneficiaries were already being processed through clearing, and these cheques were in fact cleared by 24th december 2012. 17. on 16th january 2013, shubhada and vibha filed m.a. no. 225 of 2013 under section 192 of the indian succession act. that application was rejected on 12th august 2013. their writ petition no. 11594 of 2013 against that order was dismissed on 4th february 2014. 18. according to abha, she took inspection of the probate proceedings some time in october 2013 and noticed several illegalities . on 16th november 2013, shubhada and vibha filed another application ( ex. 276 ) seeking deolankar s removal as an executor. abha and sucheta are parties to this application. on 17th november 2013, abha filed m.a. 1187 of 2013 for revocation of probate. this was accompanied by an application for condonation of delay. that application was rejected on 20th march 2014. she filed a review application no. m.a. 362 of 2014. this, too, was rejected on 24th july 2014. she then filed writ petition no. 2730 of 2015, and this was allowed on 10th february 2015. in the meantime, on 20th january 2015, abha filed the present miscellaneous petition. on 14th september 2015, abha resurrected her revocation action in the district court by filing m.a. 893 of 2015 following the order in her writ petition no.2730 of 2015. 19. there are, therefore, now a raft of at least 13 proceedings in the district court and in this court, the most salient ones of which are these: (a) m.a. no. 21 of 2008 , filed by shubhada and vibha for revocation of the probate. abha and sucheta are supporting respondents to this action. the matter is pending. (b) misc civil appeal no. 519 of 2012 , filed by shubhada and another against the order of 29th november 2012 vacating the ad-interim injunction in m.a. 21 of 2008. this is also pending. (c) review petition stamp no. 33456 of 2016 , filed by shubhada and another in regard to an order in writ petition no.5349 of 2013, which sought a direction to metco to produce some documents said to be missing. the review petition was shown at the preadmission stage at the time of arguments. (d) c.a.o.s.t no. 33457 of 2013 is a delay condonation application by shubhada and another related to the review petition mentioned earlier. it is also pending. (e) writ petition no. 5341 of 2013 , filed by shubhada against an order of 17th december 2012 directing metco to provide some information, is admitted and is said to pending. (f) writ petition no. 7222 of 2015 is also filed by shubhada and another against an order dated 4th january 2014 of the civil judge, senior division on an application to appoint abha as an administrator pendente lite. this was said to be at the pre-admission stage at the time of arguments in the present matter. (g) writ petition no. 3768 of 2015 filed by shubhada and another to quash and set aside an order dated 24th july 2014 in an application for distributions to the dastane family, seeking reimbursement, and other residual bequests without insisting on a discharge and indemnity. this was also said to be at the preadmission stage at the time of arguments in the present matter. it seems that in this matter some allegations have been made against a sitting judge of this court inter alia for not taking up this matter and writ petition no. 7222 of 2015. (h) contempt petition no. 149 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by shubhada and another. (i) contempt petition no. 150 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by shubhada and another. (j) contempt petition no. 151 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by shubhada and another. (k) contempt petition no. 152 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by shubhada and another. (l) contempt petition stamp no. 289 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by abha. (m) the present miscellaneous petition. 20. in addition there are a large number of disposed matters. there is, too, a petition by metco regarding its charges (writ petition no. 1561 of 2013) that is pending. 21. mr. chandrachood s preliminary objection on the question of jurisdiction presents no difficulty. the present petition is brought under section 301 of the indian succession act, 1925, and that in terms confers jurisdiction on the high court. the authorities mr. damle cites on the issue are appropriate (jnan kumar das v ram kumar das and ors., air 1940 cal 264; mihir kumar gooha v registrar of trade unions, air 1961 cal 165; v.). 22. what is it exactly of which deolankar stands accused? mr. damle has tendered a number of charts and compilations. one of these is a tabulation tendered on 9th october 2015 captioned points to ponder for removal of executor u/s. 301 of succession act in mptl 98 of2015: illegalities by prabhakar deolankar on the hon ble court and the legal heirs of late dr. n. g. dastane . a word first about the repeated use of this expression the legal heirs . in fairness to mr. damle, i will proceed on the assumption that this is used only to distinguish the dastane family (viz., dr. dastane s widow and three daughters) from his other legatees. in this chart, there are six broad headings: (1) regarding submission of periodic inventories, render accounts and to keep the court indemnified be answerable as a trustee to the estate forever ; (2) regarding treating all beneficiaries fairly without picking favourites for making speedy disbursals ... without misappropriating funds, etc. (3) regarding acting personally and not through metco as deolankar s constituted attorney; (4) regarding preservation and protection of the estate; (5) regarding paying the dues of the estate and avoiding penalty and losses; (6) regarding abiding by the law at all times. sambandam v n. natarajan, (1969) 2 mlj 473; 23. against each of these headings, there are various allegations made and cross-references to the pleadings and the documents. again, in fairness, mr. damle agreed that not all of these allegations stood on an equal footing. some, he submitted, were indeed serious and, on instructions, and as an officer of the court, he focussed on these. in his submission, the following constituted acts of negligence or dereliction or illegality sufficient to warrant deolankar s removal: (a) the appointment of metco; (b) default in tax liabilities; (c) no letting out the parvati property to earn rent; (d) making a unilateral distribution of the monetary bequest between the time the ad-interim order was vacated on 29th november 2012 and before it was reinstated on 21st december 2012; (e) recouping litigation costs from the estate; (f) keeping out of the estate funds or investments of which deolankar s own sons were nominees. 24. for his part, mr. chandrachood contests each one of these submissions. he tendered a brief note of submissions on 21st october 2015. from the petitioners narrative, two incidents seemed to have been tipping points. the first was deolankar s email of 30th december 2007 (extracted earlier) suggesting that some amount be sequestered separately to meet any future claims. this appears to have been the immediate trigger for a revocation application that followed a few days later. the second determinative point is, of course, deolankar s disbursal of monetary bequests during that brief hiatus between the vacating of the ad-interim injunction on 29th november 2012 and its reinstatement on 21st december 2012. 25. the first of these, deolankar s email of 30th december 2007, does not seem to me to have suggested anything nefarious or untoward at all. indeed, read as a whole, it simply suggests caution, perhaps abundant caution. it certainly does not reflect any intention on deolankar s part to withhold any part of the distribution to any particular beneficiary. to the contrary: deolankar plainly says that his intention is to effect an administration of the estate without delay. why this suggestion could not have been met with a query for a clearer understanding of his proposal, or a civil discussion on a way forward, is never explained. all we know is that within a few days of this email, an application for revocation of the probate was filed, and continues to be pending in the district court to this day. 26. the second point, about the disbursal during the period when the ad-interim injunction was not in place, is one that mr. chandrachood very seriously contests. he points out that the dastane family obtained an ex parte ad-interim order on 5th january 2008, and this lasted for nearly five years (four years and 10 months). during that time, the entire process of administration of the estate was stymied. the ad-interim injunction finally stood vacated on 29th november 2012. at that time, the applicants made no request for a continuance of the ad-interim injunction or a stay of the order vacating it. that happened only several weeks later on 21st december 2012, very late that evening. by that time, around 13th december 2012, cheques for the monetary bequests had been issued. there was no injunction operating at the time these were issued. mr. chandrachood insists that abha s emails and communications to metco delayed the delivery of the cheques. further, he points out that nothing prevented the dastane family from collecting their own cheques either. they, like all other beneficiaries, were asked to submit a discharge and indemnity document. for whatever reason, they refused to do so; the others did furnish these documents. to accuse deolankar of having done something illegal, improper or illicit during this interregnum is, i think, hardly correct or fair. this accusation, like many of the others, elides the dastane family s own conduct over the several years since probate was obtained. 27. the charge relating to non-payment of tax is more serious. deolankar admits that, as an executor, he was responsible for tax payments from the estate from 2007-2008. however, he points to an email dated 8th august 2006 (additional compilation, p. 375)from abha herself to, among others, deolankar and one mrs. sovani (presumably of metco) in which she says that we have already decided that we will not be filing the income tax this year due to incomplete information. what is curious is that nowhere in the present petition do the petitioners allude to this. the allegation simply is that taxes were not paid before disbursement of the estate commenced. that is surely an over simplification. mr. chandrachood says that the return of income for the assessment years 2008-2009 to 2013-2014 was paid in three instalments on 10th june 2013, 20th june 2013 and 24th june 2013, and that thereafter tax was paid in the regular course. this is also not alluded to by the petitioners. therefore, the only year in question appears to be the first, 2007-2008; and for this, there is an email from abha herself. 28. there is a broad allegation about loss to the estate. this is not something that can be said to have been unequivocally or conclusively established. i cannot lose sight of the fact that the testamentary bequests in cash to the dastane family aggregate to rs.1 crore. in addition, of course, there are bequests of jewellery and the parvati property. the jewellery bequest has been effected, as i have noted. for the rest, deolankar claims that the parvati property is intact, and as to the cash available, even after the other distributions, over rs. 5 crores are still available in the estate on account of returns on investments and accretions. deolankar confirms on oath and mr. chandrachood reiterates this on instructions (including in his written submissions) that deolankar is even now ready and willing to effect all distributions required in terms of the will to the dastane family against limited indemnities and without prejudice to all their rights and contentions. why the dastane family does not wish this to happen is not satisfactorily explained. 29. as to the appointment of metco, perhaps the less said of this the better. the general impression from the petition is that this was a unilateral act by deolankar, never consented to by the dastane family. the record indicates otherwise. similarly, the petition is replete with allegations about the will itself, alleging that it is not a genuine document. but this, too, overlooks the fact that it is a matter of record in the district court that the dastane family consented to the grant of probate for this very will, and did not oppose it. i find, too, that in the petition the allegation made in paragraph iii(bb) is that metco volunteered its services to deolankar or deolankar s son, and that the petitioners had no role to play in this. prima facie this is difficult to accept. there is categorical statement in paragraph 4 of the affidavit in reply (at p. 396)that abha was instrumental in getting metco involved in the administration process in the first place. the allegation is that abha insisted on a power of attorney being given by deolankar to metco. deolankar says that, living abroad, he did not even know of metco or indeed of any such entities that provided such services. this paragraph is traversed in paragraph 4 (at pp. 415-417)of the affidavit in rejoinder dated 16th june 2015. here i find no denial at all of the specific allegation that it was abha who suggested that a power of attorney be given to metco. on the contrary, the statement made is the rejoinder is most curious: (i have added the names of respondent no.1 and respondent no. 4 in the extract, for clarity) it was agreed from the beginning between the parties that there would be open, 3-way communication between me, respondent no. 1 [deolankar] and respondent no.4 [metco], with proposals made and actions being taken by consensus. 30. this is at a very distant remove from the allegations in paragraph iii(bb) of the petition. it is a clear statement that far from being a unilateral and one-sided act, as suggested in the petition, the appointment of metco, at least in its acceptance and inception, was something that the dastane family supported. 31. the additional affidavit in reply contains a comprehensive traverse of the petition. some of the contents of this affidavit are worth noting. in paragraphs a and a1 , (at pp. 394-395)deolankar points out that before the probate court both petitioners were represented and consented to the grant. the district court recorded a finding that the will was proved in its solemn form. in paragraph (c), (at p. 395) deolankar states that the jewellery in the lockers was given to the 2nd petitioner, sucheta, on 14th december 2007. as i have noted earlier, the application for revocation was filed shortly thereafter on 3rd january 2008. in paragraph 8,17 deolankar once again reiterates that the only reason for the non-disbursal of the remaining bequests is because the dastane family refused to submit a discharge and indemnity bond. this was required by metco and also by deolankar. i find nothing unreasonable in this. the fact that the 2nd petitioner received the jewellery bequest and that the dastane family consented to the grant of probate is not denied at all. there are also other allegations made in the petition that the estate has suffered due to a low rate of interest, less than optimal returns and so on. these allegations are not even seriously pressed by mr. damle. i do not think that alleging a sub-optimal return on an investment made on advice can be said to be a sufficient ground for removal of an executor. it must be borne in mind that one of the reliefs that abha seeks today is that she be appointed as an administrator. i very much doubt whether she can give any assurance, undertaking or absolute guarantee that, should she be so appointed, she would undoubtedly be able, without any doubts ever being raised, to obtain the most optimal rates of return. these allegations have been dealt with in paragraphs (h) to (k) of the additional reply (at pages 404-406).i find that the averments in the additional affidavit in reply have met with little more than unfocused outpouring of further allegations in a further additional affidavit in rejoinder. 32. in the present petition, i find that there are also several allegations made regarding the will itself, and to the probate of which the dastane family consented. they seek now to revive the previous will dated 21st march 2006, one that is said to have been expressly revoked by the present will. it is neither necessary nor appropriate to examine these allegations in the present petition. these are the subject matter of the pending revocation application. however, it only needs to be noted, for the purposes of the present petition, that even in the previous will of 21st march 2006, dr. dastane appointed deolankar as his sole executor. this tells us that it is deolankar in whom dr. dastane had faith and confidence. this is a matter of consequence while considering the decided cases on the subject. but this is in itself a piquant situation: the petition is full of averments about the validity of the previous will. if that be so, and then previous will is to be accepted, then it must be accepted as a whole, and that necessarily means that deolankar should continue to function as an executor. this is yet another conflict that is never fully reconciled. 33. section 301 of the succession act says: section 301. removal of executor or administrator and provision for successor the high court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate. (emphasis added) 34. the use of the word may indicates that the high court s power is clearly discretionary. it is not every application that must, on its being made, be granted. as a general rule, the court will respect a person s appointment as an executor for it shows that the testator reposed in that person a special confidence (f.c.s. amalnathan and ors. v j.s. victor brasco, air 1995 kant 258).the court must give full weight to that expression of confidence. in the present case, that expression of confidence is seen not once, but twice: it is to be found in the previous will, too, which the dastane family seeks to revive by dislodging the present will. unless gross misconduct, serious mismanagement, misuse or misapplication of the estate are shown, the court will not readily remove an executor who has appointed probate, nor appoint a receiver of the estate in his hands (pandurang shamrao laud v dwarkadas kalliandas, air 1933 bom 342 : 1933 (35) bom lr 700; amalnathan, supra).the principles that would apply to a case for appointment of a receiver must apply a fortiori to an application for removal. there must be clear evidence that the executor s continuance qua executor is detrimental or injurious to the estate and will frustrate the will, with the administration of which he is charged in law and by the testamentary writing. minor lapses, errors of judgment or less than perfect handling of matters is not sufficient reason to substitute the testator s expression of confidence. a proper case must be made out (dhana bakkiyammal v thangevelu mudaliar, ilr 50 mad 965; shanti devi v yadvinder thakur and anr., (2006) 143 plr 799).the present application may be styled as one under section 301, but that is surely an over simplification. the tenor of the allegations fall more properly for devastation to the estate within section 368 and chapter xiii of the succession act. even in matters of devastavit the law is well settled, and the cardinal principles that govern are, first, that courts are extremely liberal in making every possible allowance and will be cautious not to hold executors and administrators liable upon slight grounds, because that would deter persons from undertaking these offices or discharging the confidence reposed in them; and second, that care must be taken to guard against an abuse of their trust. 35. mr. damle placed a great deal of reliance on the decision of a learned single judge of this court (r. d. dhanuka j) in mukesh ramanlal gokal and anr. v ashok jagjivan gokal and ors (miscellaneous petition no. 66 of 2013, decided on 11th october 2013).that was also a petition under, inter alia, section 301 of the succession act. the 1st and 2nd respondents were sought to be removed as executors and trustees appointed under a will dated 25th january 2005. the allegations against them were indeed serious: of collusion with the 5th respondent to deprive the petitioners of their bequest; of setting up front companies to occupy certain premises; keeping dues to the port trust unpaid; misappropriation; and fraud in obtaining the probate itself. the court in gokal had before it a situation where the two respondents were both executors and trustees, not merely executors; and it found as a matter of fact that there was a diversion of estate property to their personal benefit. in paragraphs 42 to 44, dhanuka j said: 42. in my view, an executor who is not a beneficiary cannot be permitted to continue to act as executor and trustees under the will and codicil and as per the provisions of the indian succession act and when such executor and trustee himself claims some right in the property which is stated to be forming part of the estate adverse to the title of the deceased and claim of the beneficiaries as is apparent from the schedule amended by respondent no. 1 himself. 43. in my view, if beneficiaries have lost confidence in the executors, such executors or trustees cannot be allowed to foist themselves upon the beneficiaries/legatees to act on their behalf as executors and trustees. respondent nos. 1 and 2 are facing serious allegations made by the beneficiaries/legatees including allegations of fraud and adverse claim having been put up by the executors against the estate of the deceased. in my view, in this case there is clear conflict of duty and obligation of executors towards beneficiaries and rival claims put up by them against the beneficiaries in respect of the properties stated to be forming part of the estate. punjab and haryana high court in the case of smt. shantidevi (supra), has held that the conduct of the executor must be for the welfare of the beneficiaries and to advance the aims and objects of the trust and if the conduct of the executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised. i am in complete agreement with the principles laid down above by the punjab and haryana high court in the said judgment. punjab and haryana high court has considered the judgment in the case of shrinivasan in which it was held that if the executor put forth right which is absolutely untenable and is in conflict with the rights of the beneficiaries, it is sufficient for the high court to exercise powers vested in it under section 301 of the indian succession act. 44. in my view, this court cannot go into the issue of title of the deceased in respect of any property which is stated to be forming part of the estate of the said deceased in testamentary proceedings. however, this court is entitled to ascertain whether such claim put up by the executor and trustee would be in conflict with the interest of the beneficiaries and legates and if so, whether such executors and trustees can be allowed to act as executors and trustees. in my view, in such a situation, the executors have to first step down from their position as executors and trustees and then can make their rival claims against the beneficiary in respect of the property stated to be forming part of the estate. a person cannot be allowed to act as executor and trustee for the benefit of beneficiaries and at the same time to set up his own title which may be adverse to the title of the said deceased which would be in conflict with the welfare and interest of the beneficiaries at the same time. (emphasis added) 36. thus, this was a case where the executors had set up in respect of some property a title hostile to that of the estate and the beneficiaries. this can hardly be an authority for any generalized proposition, nor can the ratio of this decision be applied to every case brought under section 301. each such case will turn on its facts; for in each case, the conduct of the executor will be examined, as will the truthfulness of the allegations against him. 37. i find it difficult to ignore, too, the fact that prima facie this petition appears to be a second attempt at obtaining the same relief. abha has, on substantially the same material, brought an action for being appointed as an administrator pendente lite. that was declined by the district court. she filed writ petition no. 7222 of 2015 against that order, and this is even today pending admission (at the stage of pre-admission, scheduled for 9th march 2015 as on the date of this order and judgment).i am unable to find even a passing reference to this in the petition. indeed, the present petition may actually be the third attempt to acquire seizin over the estate. shubhada herself filed m.a. no. 225 of 2015 under section 192 of the succession act on the basis that the estate property was in wrongful possession. this action was dismissed on 12th august 2013. a writ petition no. 11594 of 2013 against this order was dismissed by r. m. savant, j on 2nd april 2014. a review petition no. 6 of 2015 was also dismissed on 14th january 2015. the present petition, filed 14th january 2015 only mentions the filing of the m.a. no. 225 of 2015, but not its dismissal or the dismissal of the writ petition. there is no explanation for this omission either. 38. in an application such as this, the court must, taking an overall view of the matter, assess whether a case has been made out showing that the executor has obstructed the administration of the estate; has made claims adverse to that estate; is shown to guilty of gross mismanagement and not minor lapses; and whether he has, in sum and substance, perverted the disposition of the estate in accordance with the terms of the will. i do not think any of this can be said of deolankar. the delay in distribution is demonstrably due to the constant and incessant litigation by the dastane family in piling one application on top of another, and in making all kinds of allegations with what appears to be the scantiest regard for matters of record. there is material misdirection in regard to the appointment of metco. there is an almost complete disavowal or, at any rate, a slurring over of the fact that the petitioners have received benefit under the will. there are the critical omissions in the pleadings about previous and pending litigations. there is a constant repetition that cash disbursements were made after the ad-interim order was vacated despite a stay order , an allegation that is demonstrably incorrect. there is the complete suppression of the fact that one of the petitioners herself agreed that tax was not to be paid for a particular assessment year, despite which allegations of non payment of tax for that very year are now made. 39. there is also the question of the consequences of the dastane family s own actions. this is not immaterial or inconsequential. first, at least one if not both of the petitioners have received some testamentary bequests. i must note also that apart from anything else the 1st petitioner, abha, has also received benefits under the will that now she contests and the executor of which, deolankar, she wants to be removed. one of the bequests in the will is that abha be provided with expenses for her travel to and from the united states. these expenses have admittedly been provided to her periodically. none of these expenses could possibly been reimbursed but for the provisions in the will. this is not a matter that can be overlooked. none of this can be disputed. i do not see how the petitioners can assail either the probated will or seek removal of an executor appointed under that will without first committing to bringing back all those testamentary benefits. if the present will fails, there is no assurance that the previous one will succeed. if that happens, and the devolution is ultimately on intestacy, neither of the petitioners can claim exclusivity to the legacies that they have taken. second, as i have earlier noted, there are inherent conflicts in their stands. there seems to be at least one pending application for distribution of the monetary legacies (writ petition no.3768 of 2015 and its underlying applications) but without an insistence on an indemnity or a discharge. that application posits an acceptance of the current will and, therefore, an acceptance of deolankar as the executor. finally, there is the question with which i began, viz., the conflict between the prayers in this miscellaneous application and the application for revocation. these are not just inconsistent. they are mutually destructive. 40. i have not been able to find any substance in the allegations against deolankar, certainly none as would warrant his removal. the petition is dismissed. there will be no order as to costs. 41. throughout the hearing of this matter, on not one but multiple occasions, i asked mr. damle to take instructions from the 1st petitioner whether she pressed this petition. at that time, i had reservations about the maintainability of such an application. i had not then addressed myself to the merits. mr. damle took instructions and stated that these were to press the petition. i therefore allowed all counsel to complete their arguments and reserved the matters for orders. in considering the material, and as i formed my opinion, i felt that it would still be necessary to give the petitioners an option of not taking a judgment, not because i found merit in the petition but because of the pendency of other proceedings and the likely impact of observations in this judgment on those. on friday, 5th february 2016, this matter was listed for pronouncement of judgment. mr. damle and mr. chandrachood were both present in court. the 1st petitioner, abha, was not. i indicated to mr. damle the substance of this order, and that i had not found for the petitioner. to allow the petitioners one final opportunity to consider their position and instruct mr. damle, i stood the matter for pronouncement over to 10th february 2016. on that day, the petitioners sought further time. they also made other requests. by a separate order, i granted time till today but rejected the other requests. since i am told that the petitioners even now do not wish to withdraw the petition, i have proceeded to deliver judgment. it is, i think, necessary to state this only to indicate that every opportunity has been given to the petitioners to reconsider their position. if they have chosen not to do so, the consequences are of their own making.

Judgment:

1. This is a Petition under Section 301 of Indian Succession Act, 1925 ( the Succession Act ; the ISA ). It seeks the removal of the 1st Respondent, one Prabhakar Deolankar ( Deolankar ) as the executor of a Will dated 25th April 2006 said to have been left by one Dr. Narayan Ganesh Dastane ( Dr Dastane ). The 2^nd Petitioner, Sucheta, is Dr. Dastane s widow. The 1st Petitioner and Respondents Nos. 2 and 3 are their three daughters. Deolankar is Dr. Dastane s brother-in-law. The 4th Respondent is the Maharashtra Executor and Trustee Company Pvt Ltd ( METCO ), a company that provides, inter alia, executorship and trusteeship services and for which it charges fees. On 18th June 2007, Deolankar obtained probate to Dr. Dastane s Will from the District Court. In this litigation, Respondents Nos. 2 and 3 support their sister, Petitioner No.1, and their mother, Petitioner No.2. Together, I refer to them in this judgment as the Dastane Family . Where necessary, I have referred to them by their first names. This is only for convenience and no disrespect is intended.

2. The matter is considerably complicated by a series of subsequent events, and the onset of disputes between the Dastane Family on the one hand and Deolankar on the other. These are all events of the five-year period from 2007 to 2012, and they seem to have caused parties on both sides to adopt utterly intractable positions. Between the time of the probate application and today, there are or have been as many as twelve or thirteen legal proceedings of various description, ranging from writ petitions to miscellaneous applications and contempt petitions. Of immediate concern are two petitions filed under Section 263 of the Succession for revocation of the probate: the first of these, M.A. 21 of 2008 is filed by Shubhada; and it appears that there is yet another revocation petition No. 1187 of 2013 filed by Sucheta, Dr. Dastane s widow. The latter was once dismissed on the ground of delay; a review petition was also dismissed; but the delay seems to have been condoned in a writ petition by this Court. In those revocation petitions, as indeed also in the present petition for Deolankar s removal, the Dastane Family contends that the will of which probate was obtained was not, in fact, his last Will; that it is forged; and that there was an earlier Will, never revoked, dated 21st March 2006. While no relief in that regard (i.e., as to the genuineness of the two wills) can be examined in the present Miscellaneous Petition, yet the pendency of the revocation petitions before the District Court is of consequence because of the cast of the prayers in the present Miscellaneous Petition for Deolankar s removal. Prayers (a) and (b) of the present Miscellaneous Petition read:

(a) That by an appropriate order or direction of this Hon ble Court, to suspend, remove or discharge the Executor, i.e., the Respondent No.1, i.e., Mr. Prabhakar Narsingh Deolankar, appointed under the Probate Petition No. M.A. 359 of 2006 as the Executor of the last Will of the deceased Dr. Narayan Ganesh Dastane ;

(b) That by an appropriate order or direction of this Hon ble Court appoint the Petitioner No.1 as the executor of Dr. Narayan Ganesh Dastane to administer the estate of the deceased Dr. Narayan Ganesh Dastane.

3. On the face of it, these reliefs are inconsistent with the probate revocation application and the assertions that the probated Will dated 25th April 2006 is not genuine. Copies of both the probated Will dated 25th April 2006 and the previous one dated 21^st March 2006 are annexed to the Petition. In both, Deolankar was ppointed an executor. The present prayer (a) is clearly incorrectly worded: Deolankar was not appointed an executor by the probate court, but under the Will itself. Further, in this Petition there is no prayer for revocation (as there could not be, that jurisdiction lying solely with the District Court). Consequently, if the relief is granted, Deolankar would stand removed as the executor of the probated Will dated 25th April 2006 and the 1st Petitioner would be an executor in his place. She could not then impeach the very Will of which she, on her own application, sought to be appointed executor. Her revocation application would necessarily fail. Conversely, the fact that she has impeached the probated Will (or is supporting an application for revocation of that probate) clearly disentitles her from seeking appointment as an executor.

4. This issue was addressed early in the hearings. I asked Mr. Damle for the Petitioners to take instructions; specifically, to ascertain if the Petitioners wished to elect to prosecute the revocation application or the present application for removal. The Petitioners contended that they desired to do both. That cannot possibly be corrected. I have considered, too, the short note submitted by the Petitioners arguing that there is no inconsistency between the application for revocation of the probate and the application for removal of the executor. Those arguments are unconvincing and misdirected. They confuse and conflate distinct concepts of administratorship and executorship in testamentary law. The prayer today is not, and cannot be, for the appointment of an administrator; that is not the wording of the prayer and no application has ever been moved for amendment despite repeated opportunities. Prayer (b) follows on prayer (a) and that can only mean that the relief sought is to appoint the 1st Petitioner in place and stead of Deolankar as an executor of the probated Will dated 25th April 2006.

5. I have heard counsel for the parties at some length. Mr. Damle for the Petitioners and Mr. Chandrachood for the 1^st Respondent have placed authorities and notes of arguments. I have considered these as well. The Petitioners submissions contain a lengthy litany of woes and complaints against Deolankar. His response, as presented by Mr. Chandrachood, is firstly that there are crucial elisions and omissions in the Petitions, none of which could be inadvertent or accidental, and these show that most, and perhaps all, of the Petitioners grievances cannot be accepted simply because at the relevant time the Petitioners consented to those acts. The Petitioners also received benefit from the estate under the very Will they now dispute and as a direct result of Deolankar s administration. Many of the accusations, Mr. Chandrachood says, relate to no more than errors of judgment or of having acted on suboptimal advice. There is a single solitary instance of a distribution being made to other beneficiaries, all related to Deolankar, but even his, Mr. Chandrachood submits, is inconsequential; for the only reason that the Dastane Family too did not receive their benefits is because they refused to execute the necessary indemnities and documents. Mr. Damle s case is that all this is an oversimplification. He is, he says, in a position to demonstrate widespread devastation to Dr. Dastane s estate and the clear and unambiguous favouring of Deolankar s family as beneficiaries over the Dastane Family. Deolankar has, Mr. Damle says, not merely intermeddled with the estate to his own benefit; he is a trustee de son tort, guilty of the most egregious acts of commission and omission.

6. Dr. Dastane died on 26th April 2006. It seems that he left a quite considerable estate. He left a Will, handwritten in Marathi (Ex. A, pp. 71-75; English translation at Ex.A-1, pp. 76-88). This Will bears no date, but it seems to be accepted (on the basis of the affidavits of the attesting witnesses filed later) that the date of the Will is 25th April 2006, i.e., just a day before his demise. Clause 6 of this Will appoints Deolankar as the Sole Executor, and clause 8 revokes a previous Will said to have been made about a month earlier on 21st March 2006. The estate included two houses in Pune, one a five-bedroom apartment with a garage at Navi Peth and another six room house at Parvati; bank deposits; and jewellery. The dispositions are set out in a list below clause 4. From this it appears that Deolankar s son Rajendra and his family received the lion s share, including a cash bequest of Rs.1 crore and the Navi Peth house. Abha was to receive Rs.25 lakhs and the Parvati house. Sucheta was given all the jewellery. Shubhada was bequeathed Rs.50 lakhs and Vibha was bequeathed Rs.25 lakhs. But there were also other cash bequests to other members of the Deolankar family in the amounts of Rs. 25 lakhs, Rs.20 lakhs and Rs.20 lakhs. These actual dispositions are not immediately material, except to note that the Will makes quite substantial provisions for Deolankar s family.

7. On 26th May 2006, Deolankar, who lives overseas, executed a power of attorney in favour of METCO. It seems that the appointment of METCO was at that time not seriously disputed. Indeed, in one of his Affidavits (Dated 12th May 2015, paragraph 4, p. 396)Deolankar says that, living overseas, he did not even know of entities like METCO, and that it was Abha who set up a meeting at Deolankar s son s house with one of her relatives, one Divekar, and insisted on a Power of Attorney being given to METCO. All this is, of course, now denied, but there seems to be no dispute that the Dastane Family accepted METCO s engagement in the matter, and that Abha herself delivered several securities to METCO at about the same time. Deolankar sought and obtained consent from Dr. Dastane s heirs to the appointment of METCO for advice and assistance in the execution of Dr. Dastane s Will (Ex.R-6, p. 370).On 5th June 2006, Deolankar applied for probate. The Dastane Family members were served with citations and seem to have appeared through their respective lawyers. They consented to the grant of Probate, which was finally ordered to be issued on 18^th June 2007.

8. On that day, 18th June 2007, the immovable assets were distributed in terms of the Will. On 13th July 2007, the jewellery from Dr. Dastane s locker or vault was given to Sucheta, his widow. Deolankar consented to this. His son Rajendra Deolankar ( Rajendra ) was present, as were Deolankar s lawyer, representatives of METCO and Abha.

9. There seems to be no doubt that except for the cash or monetary bequests, all other bequests under the Will (viz., jewellery and immovable property) were distributed and received in accordance with the terms of that Will.

10. Deolankar claims he received the original Probate in his hands only on 14th December 2007. It seems that shortly before he received the Probate, Deolankar asked the various beneficiaries to execute surety bonds . Rajendra and one Dr Ravindra Shivram Lohokare (also a beneficiary) executed these bonds. The Dastane Family refused to do so (Ex.G, pp. 119-121; Ex. H, pp. 122-124).

11. There is on record a copy of an email of 30th December 2007 from Deolankar to Abha (Ex. J, p. 140).In this, he says that the Probate was obtained because Rajan and Ravi (i.e., Rajendra and Dr Ravindra Lohokare) had decided to be sureties. Deolankar confirms that he is bound to take up the distribution to all the beneficiaries immediately and that he proposes to do so at the same time. He then says The sureties have stuck their neck out and may be liable for lifelong if a new claimant shows up, so not sure if we need to keep some money in a charitable trust for protection. We can decide about the leftover later with your consultation, legally I should hold the distribution of money to the beneficiaries any longer.

12. The Petitioners claim this to be an instance of misconduct on Deolankar s part, and evidence of his wanting to favour his own son and near relative. It is difficult to see this email as suggesting anything of the sort. Deolankar, who lived overseas and was getting on in years, was perhaps being overly cautious. What the Petitioners allegations overlook is his unequivocal commitment, mentioned not once but twice, to effect a distribution of the monetary bequests, and to do so simultaneously to all beneficiaries to avoid any issues between them inter se.

13. At any rate, the Dastane Family seems to have taken a very great deal of umbrage to this. There is no material on record to show that any of them attempted to obtain a clarification from Deolankar as to what it was exactly that he was proposing, or why he felt this necessary. On 3rd January 2008, just a few days after this email, Shubhada and Vibha filed M.A. 21 of 2008 before the District Court for revocation of the probate. On 5th January 2008, an ex parte ad-interim injunction seems to have obtained restraining METCO from handing over any securities to Deolankar. On 4th April 2008, the order appears to have been slightly varied, allowing METCO to continue routine matters relating to the estate (Ex. Q, pp. 204-205).This state of affairs seems to have continued for the next four years. In that time, the revocation petition was hotly contested. A very large number of documents and exhibits were placed on record before the District Court.

14. Ultimately, on 29th November 2012, the ad-interim injunction was vacated by the Civil Judge Senior Division then hearing the matter (Ex. L, pp. 155-186, from pp. 162-185).The order is reasoned. It says it was pronounced in open Court. There does not seem to have been any application for stay or for continuation of the previous ad-interim order.

15. What followed in the next few weeks appears to provide a very great deal of grist to the Dastane Family s mill. Deolankar, as the executor of Dr. Dastane s Will, was no longer under a restraint. He had in his hands a validly obtained Probate. Except for the Dastane Family, the other beneficiaries executed documents of a combined discharge and indemnity in favour of METCO. This does not seem to have been an unreasonable or outrageous requirement, given METCO s role in the matter. The Petitioners make much of the fact that the discharge-cum-indemnity documents were executed by the other beneficiaries, all of whom are related to Deolankar. To suggest, from this, that the Dastane Family was prevented from doing the same thing is, I think, stretching it too far. It is to be remembered that at no point had Deolankar denied distribution. In fact, he seems to have wanted to close it at the earliest; and he had, in fact, rapidly allowed the distribution of jewellery to Sucheta and, as and when required, the disbursement of funds to Abha for her travel to and from America, another specific bequest in the Will. It is accepted as a matter of record that the very same documents of discharge and indemnity, in identical terms, were requested from the Dastane Family too.

16. Following the execution of these discharge and indemnity documents, cheques for the cash bequests were issued to the executants by mid-December 2012. In the third week of December 2012, two things happened simultaneously. First, Shubhada and other members of the Dastane Family filed applications before the Civil Judge, Senior Division at Pune inter alia to stay the order of 29th November 2012 and to continue the previous ad-interim order. The basis of the application seems to have been that Deolankar had begun distributing the estate (Ex. M, pp. 187-188).The application in question is dated 21st December 2012. A handwritten endorsement in response is to be found on it. On that very day, 21st December 2012, the application was allowed. The execution and operation of the order dated 29th November 2012 was stayed till 15th January 2013 (Ex. M, at p. 194).In the meantime, the cheques issued to the beneficiaries were already being processed through clearing, and these cheques were in fact cleared by 24th December 2012.

17. On 16th January 2013, Shubhada and Vibha filed M.A. No. 225 of 2013 under Section 192 of the Indian Succession Act. That application was rejected on 12th August 2013. Their Writ Petition No. 11594 of 2013 against that order was dismissed on 4th February 2014.

18. According to Abha, she took inspection of the probate proceedings some time in October 2013 and noticed several illegalities . On 16th November 2013, Shubhada and Vibha filed another application ( Ex. 276 ) seeking Deolankar s removal as an executor. Abha and Sucheta are parties to this application. On 17^th November 2013, Abha filed M.A. 1187 of 2013 for revocation of probate. This was accompanied by an application for condonation of delay. That application was rejected on 20th March 2014. She filed a review application No. M.A. 362 of 2014. This, too, was rejected on 24th July 2014. She then filed Writ Petition No. 2730 of 2015, and this was allowed on 10th February 2015. In the meantime, on 20^th January 2015, Abha filed the present Miscellaneous Petition. On 14th September 2015, Abha resurrected her revocation action in the District Court by filing M.A. 893 of 2015 following the order in her Writ Petition No.2730 of 2015.

19. There are, therefore, now a raft of at least 13 proceedings in the District Court and in this Court, the most salient ones of which are these:

(a) M.A. No. 21 of 2008 , filed by Shubhada and Vibha for revocation of the probate. Abha and Sucheta are supporting respondents to this action. The matter is pending.

(b) Misc Civil Appeal No. 519 of 2012 , filed by Shubhada and another against the order of 29th November 2012 vacating the ad-interim injunction in M.A. 21 of 2008. This is also pending.

(c) Review Petition Stamp No. 33456 of 2016 , filed by Shubhada and another in regard to an order in Writ Petition No.5349 of 2013, which sought a direction to METCO to produce some documents said to be missing. The Review Petition was shown at the preadmission stage at the time of arguments.

(d) C.A.O.S.T No. 33457 of 2013 is a delay condonation application by Shubhada and another related to the Review Petition mentioned earlier. It is also pending.

(e) Writ Petition No. 5341 of 2013 , filed by Shubhada against an order of 17th December 2012 directing METCO to provide some information, is admitted and is said to pending.

(f) Writ Petition No. 7222 of 2015 is also filed by Shubhada and another against an order dated 4^th January 2014 of the Civil Judge, Senior Division on an application to appoint Abha as an administrator pendente lite. This was said to be at the pre-admission stage at the time of arguments in the present matter.

(g) Writ Petition No. 3768 of 2015 filed by Shubhada and another to quash and set aside an order dated 24th July 2014 in an application for distributions to the Dastane Family, seeking reimbursement, and other residual bequests without insisting on a discharge and indemnity. This was also said to be at the preadmission stage at the time of arguments in the present matter. It seems that in this matter some allegations have been made against a sitting Judge of this Court inter alia for not taking up this matter and Writ Petition No. 7222 of 2015.

(h) Contempt Petition No. 149 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by Shubhada and another.

(i) Contempt Petition No. 150 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by Shubhada and another.

(j) Contempt Petition No. 151 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by Shubhada and another.

(k) Contempt Petition No. 152 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by Shubhada and another.

(l) Contempt Petition Stamp No. 289 of 2014 (also said to have been at the pre-admission stage at the time of arguments) filed by Abha.

(m) The present Miscellaneous Petition.

20. In addition there are a large number of disposed matters.

There is, too, a petition by METCO regarding its charges (Writ Petition No. 1561 of 2013) that is pending.

21. Mr. Chandrachood s preliminary objection on the question of jurisdiction presents no difficulty. The present Petition is brought under Section 301 of the Indian Succession Act, 1925, and that in terms confers jurisdiction on the High Court. The authorities Mr. Damle cites on the issue are appropriate (Jnan Kumar Das v Ram Kumar Das and Ors., AIR 1940 Cal 264; Mihir Kumar Gooha v Registrar of Trade Unions, AIR 1961 Cal 165; V.).

22. What is it exactly of which Deolankar stands accused? Mr. Damle has tendered a number of charts and compilations. One of these is a tabulation tendered on 9th October 2015 captioned Points to Ponder for Removal of Executor u/s. 301 of Succession Act in MPTL 98 of2015: Illegalities by Prabhakar Deolankar on the Hon ble Court and the Legal Heirs of Late Dr. N. G. Dastane . A word first about the repeated use of this expression the Legal Heirs . In fairness to Mr. Damle, I will proceed on the assumption that this is used only to distinguish the Dastane Family (viz., Dr. Dastane s widow and three daughters) from his other legatees. In this chart, there are six broad headings:

(1) Regarding submission of periodic inventories, render accounts and to keep the Court indemnified be answerable as a trustee to the estate forever ;

(2) Regarding treating all beneficiaries fairly without picking favourites for making speedy disbursals ... without misappropriating funds, etc.

(3) Regarding acting personally and not through METCO as Deolankar s constituted attorney;

(4) Regarding preservation and protection of the estate;

(5) Regarding paying the dues of the estate and avoiding penalty and losses;

(6) Regarding abiding by the law at all times.

Sambandam v N. Natarajan, (1969) 2 MLJ 473;

23. Against each of these headings, there are various allegations made and cross-references to the pleadings and the documents. Again, in fairness, Mr. Damle agreed that not all of these allegations stood on an equal footing. Some, he submitted, were indeed serious and, on instructions, and as an officer of the Court, he focussed on these. In his submission, the following constituted acts of negligence or dereliction or illegality sufficient to warrant Deolankar s removal:

(a) The appointment of METCO;

(b) Default in tax liabilities;

(c) No letting out the Parvati property to earn rent;

(d) Making a unilateral distribution of the monetary bequest between the time the ad-interim order was vacated on 29th November 2012 and before it was reinstated on 21st December 2012;

(e) Recouping litigation costs from the estate;

(f) Keeping out of the estate funds or investments of which Deolankar s own sons were nominees.

24. For his part, Mr. Chandrachood contests each one of these submissions. He tendered a brief note of submissions on 21^st October 2015. From the Petitioners narrative, two incidents seemed to have been tipping points. The first was Deolankar s email of 30th December 2007 (extracted earlier) suggesting that some amount be sequestered separately to meet any future claims. This appears to have been the immediate trigger for a revocation application that followed a few days later. The second determinative point is, of course, Deolankar s disbursal of monetary bequests during that brief hiatus between the vacating of the ad-interim injunction on 29th November 2012 and its reinstatement on 21^st December 2012.

25. The first of these, Deolankar s email of 30th December 2007, does not seem to me to have suggested anything nefarious or untoward at all. Indeed, read as a whole, it simply suggests caution, perhaps abundant caution. It certainly does not reflect any intention on Deolankar s part to withhold any part of the distribution to any particular beneficiary. To the contrary: Deolankar plainly says that his intention is to effect an administration of the estate without delay. Why this suggestion could not have been met with a query for a clearer understanding of his proposal, or a civil discussion on a way forward, is never explained. All we know is that within a few days of this email, an application for revocation of the probate was filed, and continues to be pending in the District Court to this day.

26. The second point, about the disbursal during the period when the ad-interim injunction was not in place, is one that Mr. Chandrachood very seriously contests. He points out that the Dastane Family obtained an ex parte ad-interim order on 5th January 2008, and this lasted for nearly five years (four years and 10 months). During that time, the entire process of administration of the estate was stymied. The ad-interim injunction finally stood vacated on 29th November 2012. At that time, the applicants made no request for a continuance of the ad-interim injunction or a stay of the order vacating it. That happened only several weeks later on 21^st December 2012, very late that evening. By that time, around 13^th December 2012, cheques for the monetary bequests had been issued. There was no injunction operating at the time these were issued. Mr. Chandrachood insists that Abha s emails and communications to METCO delayed the delivery of the cheques. Further, he points out that nothing prevented the Dastane Family from collecting their own cheques either. They, like all other beneficiaries, were asked to submit a discharge and indemnity document. For whatever reason, they refused to do so; the others did furnish these documents. To accuse Deolankar of having done something illegal, improper or illicit during this interregnum is, I think, hardly correct or fair. This accusation, like many of the others, elides the Dastane Family s own conduct over the several years since probate was obtained.

27. The charge relating to non-payment of tax is more serious. Deolankar admits that, as an executor, he was responsible for tax payments from the estate from 2007-2008. However, he points to an email dated 8th August 2006 (Additional Compilation, p. 375)from Abha herself to, among others, Deolankar and one Mrs. Sovani (presumably of METCO) in which she says that we have already decided that we will not be filing the income tax this year due to incomplete information. What is curious is that nowhere in the present Petition do the Petitioners allude to this. The allegation simply is that taxes were not paid before disbursement of the estate commenced. That is surely an over simplification. Mr. Chandrachood says that the return of income for the Assessment Years 2008-2009 to 2013-2014 was paid in three instalments on 10th June 2013, 20th June 2013 and 24^th June 2013, and that thereafter tax was paid in the regular course. This is also not alluded to by the Petitioners. Therefore, the only year in question appears to be the first, 2007-2008; and for this, there is an email from Abha herself.

28. There is a broad allegation about loss to the estate. This is not something that can be said to have been unequivocally or conclusively established. I cannot lose sight of the fact that the testamentary bequests in cash to the Dastane Family aggregate to Rs.1 crore. In addition, of course, there are bequests of jewellery and the Parvati property. The jewellery bequest has been effected, as I have noted. For the rest, Deolankar claims that the Parvati property is intact, and as to the cash available, even after the other distributions, over Rs. 5 crores are still available in the estate on account of returns on investments and accretions. Deolankar confirms on oath and Mr. Chandrachood reiterates this on instructions (including in his written submissions) that Deolankar is even now ready and willing to effect all distributions required in terms of the Will to the Dastane Family against limited indemnities and without prejudice to all their rights and contentions. Why the Dastane Family does not wish this to happen is not satisfactorily explained.

29. As to the appointment of METCO, perhaps the less said of this the better. The general impression from the Petition is that this was a unilateral act by Deolankar, never consented to by the Dastane Family. The record indicates otherwise. Similarly, the Petition is replete with allegations about the Will itself, alleging that it is not a genuine document. But this, too, overlooks the fact that it is a matter of record in the District Court that the Dastane Family consented to the grant of Probate for this very Will, and did not oppose it. I find, too, that in the Petition the allegation made in paragraph III(bb) is that METCO volunteered its services to Deolankar or Deolankar s son, and that the Petitioners had no role to play in this. Prima facie this is difficult to accept. There is categorical statement in paragraph 4 of the Affidavit in Reply (At p. 396)that Abha was instrumental in getting METCO involved in the administration process in the first place. The allegation is that Abha insisted on a power of attorney being given by Deolankar to METCO. Deolankar says that, living abroad, he did not even know of METCO or indeed of any such entities that provided such services. This paragraph is traversed in paragraph 4 (At pp. 415-417)of the Affidavit in Rejoinder dated 16th June 2015. Here I find no denial at all of the specific allegation that it was Abha who suggested that a Power of Attorney be given to METCO. On the contrary, the statement made is the rejoinder is most curious: (I have added the names of Respondent No.1 and Respondent No. 4 in the extract, for clarity) It was agreed from the beginning between the parties that there would be open, 3-way communication between me, Respondent No. 1 [Deolankar] and Respondent No.4 [METCO], with proposals made and actions being taken by consensus.

30. This is at a very distant remove from the allegations in paragraph III(bb) of the Petition. It is a clear statement that far from being a unilateral and one-sided act, as suggested in the Petition, the appointment of METCO, at least in its acceptance and inception, was something that the Dastane Family supported.

31. The Additional Affidavit in Reply contains a comprehensive traverse of the Petition. Some of the contents of this Affidavit are worth noting. In paragraphs A and A1 , (At pp. 394-395)Deolankar points out that before the Probate Court both Petitioners were represented and consented to the grant. The District Court recorded a finding that the Will was proved in its solemn form. In paragraph (C), (At p. 395) Deolankar states that the jewellery in the lockers was given to the 2nd Petitioner, Sucheta, on 14th December 2007. As I have noted earlier, the application for revocation was filed shortly thereafter on 3rd January 2008. In paragraph 8,17 Deolankar once again reiterates that the only reason for the non-disbursal of the remaining bequests is because the Dastane Family refused to submit a Discharge and Indemnity Bond. This was required by METCO and also by Deolankar. I find nothing unreasonable in this. The fact that the 2^nd Petitioner received the jewellery bequest and that the Dastane Family consented to the grant of probate is not denied at all. There are also other allegations made in the Petition that the estate has suffered due to a low rate of interest, less than optimal returns and so on. These allegations are not even seriously pressed by Mr. Damle. I do not think that alleging a sub-optimal return on an investment made on advice can be said to be a sufficient ground for removal of an Executor. It must be borne in mind that one of the reliefs that Abha seeks today is that she be appointed as an Administrator. I very much doubt whether she can give any assurance, undertaking or absolute guarantee that, should she be so appointed, she would undoubtedly be able, without any doubts ever being raised, to obtain the most optimal rates of return. These allegations have been dealt with in paragraphs (H) to (K) of the Additional Reply (At pages 404-406).I find that the averments in the Additional Affidavit in Reply have met with little more than unfocused outpouring of further allegations in a Further Additional Affidavit in Rejoinder.

32. In the present Petition, I find that there are also several allegations made regarding the Will itself, and to the probate of which the Dastane Family consented. They seek now to revive the previous Will dated 21st March 2006, one that is said to have been expressly revoked by the present Will. It is neither necessary nor appropriate to examine these allegations in the present Petition. These are the subject matter of the pending revocation application. However, it only needs to be noted, for the purposes of the present Petition, that even in the previous Will of 21st March 2006, Dr. Dastane appointed Deolankar as his Sole Executor. This tells us that it is Deolankar in whom Dr. Dastane had faith and confidence. This is a matter of consequence while considering the decided cases on the subject. But this is in itself a piquant situation: the Petition is full of averments about the validity of the previous Will. If that be so, and then previous Will is to be accepted, then it must be accepted as a whole, and that necessarily means that Deolankar should continue to function as an executor. This is yet another conflict that is never fully reconciled.

33. Section 301 of the Succession Act says:

Section 301. Removal of executor or administrator and provision for successor

The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.

(Emphasis added)

34. The use of the word may indicates that the High Court s power is clearly discretionary. It is not every application that must, on its being made, be granted. As a general rule, the Court will respect a person s appointment as an executor for it shows that the testator reposed in that person a special confidence (F.C.S. Amalnathan and Ors. v J.S. Victor Brasco, AIR 1995 Kant 258).The Court must give full weight to that expression of confidence. In the present case, that expression of confidence is seen not once, but twice: it is to be found in the previous will, too, which the Dastane Family seeks to revive by dislodging the present Will. Unless gross misconduct, serious mismanagement, misuse or misapplication of the estate are shown, the Court will not readily remove an executor who has appointed probate, nor appoint a Receiver of the estate in his hands (Pandurang Shamrao Laud v Dwarkadas Kalliandas, AIR 1933 Bom 342 : 1933 (35) Bom LR 700; Amalnathan, supra).The principles that would apply to a case for appointment of a Receiver must apply a fortiori to an application for removal. There must be clear evidence that the Executor s continuance qua executor is detrimental or injurious to the estate and will frustrate the Will, with the administration of which he is charged in law and by the testamentary writing. Minor lapses, errors of judgment or less than perfect handling of matters is not sufficient reason to substitute the testator s expression of confidence. A proper case must be made out (Dhana Bakkiyammal v Thangevelu Mudaliar, ILR 50 Mad 965; Shanti Devi v Yadvinder Thakur and Anr., (2006) 143 PLR 799).The present application may be styled as one under Section 301, but that is surely an over simplification. The tenor of the allegations fall more properly for devastation to the estate within Section 368 and Chapter XIII of the Succession Act. Even in matters of devastavit the law is well settled, and the cardinal principles that govern are, first, that Courts are extremely liberal in making every possible allowance and will be cautious not to hold executors and administrators liable upon slight grounds, because that would deter persons from undertaking these offices or discharging the confidence reposed in them; and second, that care must be taken to guard against an abuse of their trust.

35. Mr. Damle placed a great deal of reliance on the decision of a learned single Judge of this Court (R. D. Dhanuka J) in Mukesh Ramanlal Gokal and Anr. v Ashok Jagjivan Gokal and Ors (Miscellaneous Petition No. 66 of 2013, decided on 11th October 2013).That was also a petition under, inter alia, Section 301 of the Succession Act. The 1st and 2nd Respondents were sought to be removed as Executors and Trustees appointed under a Will dated 25th January 2005. The allegations against them were indeed serious: of collusion with the 5th Respondent to deprive the Petitioners of their bequest; of setting up front companies to occupy certain premises; keeping dues to the Port Trust unpaid; misappropriation; and fraud in obtaining the probate itself. The Court in Gokal had before it a situation where the two respondents were both executors and trustees, not merely executors; and it found as a matter of fact that there was a diversion of estate property to their personal benefit. In paragraphs 42 to 44, Dhanuka J said:

42. In my view, an executor who is not a beneficiary cannot be permitted to continue to act as executor and trustees under the Will and codicil and as per the provisions of the Indian Succession Act and when such executor and trustee himself claims some right in the property which is stated to be forming part of the estate adverse to the title of the deceased and claim of the beneficiaries as is apparent from the schedule amended by respondent no. 1 himself.

43. In my view, if beneficiaries have lost confidence in the executors, such executors or trustees cannot be allowed to foist themselves upon the beneficiaries/legatees to act on their behalf as executors and trustees. Respondent Nos. 1 and 2 are facing serious allegations made by the beneficiaries/legatees including allegations of fraud and adverse claim having been put up by the executors against the estate of the deceased. In my view, in this case there is clear conflict of duty and obligation of executors towards beneficiaries and rival claims put up by them against the beneficiaries in respect of the properties stated to be forming part of the estate. Punjab and Haryana High Court in the case of Smt. Shantidevi (supra), has held that the conduct of the executor must be for the welfare of the beneficiaries and to advance the aims and objects of the trust and if the conduct of the executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised. I am in complete agreement with the principles laid down above by the Punjab and Haryana High Court in the said judgment. Punjab and Haryana High Court has considered the judgment in the case of Shrinivasan in which it was held that if the executor put forth right which is absolutely untenable and is in conflict with the rights of the beneficiaries, it is sufficient for the High Court to exercise powers vested in it under section 301 of the Indian Succession Act.

44. In my view, this court cannot go into the issue of title of the deceased in respect of any property which is stated to be forming part of the estate of the said deceased in testamentary proceedings. However, this court is entitled to ascertain whether such claim put up by the executor and trustee would be in conflict with the interest of the beneficiaries and legates and if so, whether such executors and trustees can be allowed to act as executors and trustees. In my view, in such a situation, the executors have to first step down from their position as executors and trustees and then can make their rival claims against the beneficiary in respect of the property stated to be forming part of the estate. A person cannot be allowed to act as executor and trustee for the benefit of beneficiaries and at the same time to set up his own title which may be adverse to the title of the said deceased which would be in conflict with the welfare and interest of the beneficiaries at the same time.

(Emphasis added)

36. Thus, this was a case where the executors had set up in respect of some property a title hostile to that of the estate and the beneficiaries. This can hardly be an authority for any generalized proposition, nor can the ratio of this decision be applied to every case brought under Section 301. Each such case will turn on its facts; for in each case, the conduct of the executor will be examined, as will the truthfulness of the allegations against him.

37. I find it difficult to ignore, too, the fact that prima facie this Petition appears to be a second attempt at obtaining the same relief. Abha has, on substantially the same material, brought an action for being appointed as an administrator pendente lite. That was declined by the District Court. She filed Writ Petition No. 7222 of 2015 against that order, and this is even today pending admission (At the stage of pre-admission, scheduled for 9th March 2015 as on the date of this order and judgment).I am unable to find even a passing reference to this in the Petition. Indeed, the present Petition may actually be the third attempt to acquire seizin over the estate. Shubhada herself filed M.A. No. 225 of 2015 under Section 192 of the Succession Act on the basis that the estate property was in wrongful possession. This action was dismissed on 12th August 2013. A Writ Petition No. 11594 of 2013 against this order was dismissed by R. M. Savant, J on 2nd April 2014. A Review Petition No. 6 of 2015 was also dismissed on 14^th January 2015. The present Petition, filed 14th January 2015 only mentions the filing of the M.A. No. 225 of 2015, but not its dismissal or the dismissal of the Writ Petition. There is no explanation for this omission either.

38. In an application such as this, the Court must, taking an overall view of the matter, assess whether a case has been made out showing that the executor has obstructed the administration of the estate; has made claims adverse to that estate; is shown to guilty of gross mismanagement and not minor lapses; and whether he has, in sum and substance, perverted the disposition of the estate in accordance with the terms of the Will. I do not think any of this can be said of Deolankar. The delay in distribution is demonstrably due to the constant and incessant litigation by the Dastane Family in piling one application on top of another, and in making all kinds of allegations with what appears to be the scantiest regard for matters of record. There is material misdirection in regard to the appointment of METCO. There is an almost complete disavowal or, at any rate, a slurring over of the fact that the Petitioners have received benefit under the Will. There are the critical omissions in the pleadings about previous and pending litigations. There is a constant repetition that cash disbursements were made after the ad-interim order was vacated despite a stay order , an allegation that is demonstrably incorrect. There is the complete suppression of the fact that one of the Petitioners herself agreed that tax was not to be paid for a particular assessment year, despite which allegations of non payment of tax for that very year are now made.

39. There is also the question of the consequences of the Dastane Family s own actions. This is not immaterial or inconsequential. First, at least one if not both of the Petitioners have received some testamentary bequests. I must note also that apart from anything else the 1st Petitioner, Abha, has also received benefits under the Will that now she contests and the Executor of which, Deolankar, she wants to be removed. One of the bequests in the Will is that Abha be provided with expenses for her travel to and from the United States. These expenses have admittedly been provided to her periodically. None of these expenses could possibly been reimbursed but for the provisions in the Will. This is not a matter that can be overlooked. None of this can be disputed. I do not see how the Petitioners can assail either the probated Will or seek removal of an executor appointed under that Will without first committing to bringing back all those testamentary benefits. If the present Will fails, there is no assurance that the previous one will succeed. If that happens, and the devolution is ultimately on intestacy, neither of the Petitioners can claim exclusivity to the legacies that they have taken. Second, as I have earlier noted, there are inherent conflicts in their stands. There seems to be at least one pending application for distribution of the monetary legacies (Writ Petition No.3768 of 2015 and its underlying applications) but without an insistence on an indemnity or a discharge. That application posits an acceptance of the current Will and, therefore, an acceptance of Deolankar as the executor. Finally, there is the question with which I began, viz., the conflict between the prayers in this Miscellaneous Application and the application for revocation. These are not just inconsistent. They are mutually destructive.

40. I have not been able to find any substance in the allegations against Deolankar, certainly none as would warrant his removal. The Petition is dismissed. There will be no order as to costs.

41. Throughout the hearing of this matter, on not one but multiple occasions, I asked Mr. Damle to take instructions from the 1st Petitioner whether she pressed this Petition. At that time, I had reservations about the maintainability of such an application. I had not then addressed myself to the merits. Mr. Damle took instructions and stated that these were to press the Petition. I therefore allowed all counsel to complete their arguments and reserved the matters for orders. In considering the material, and as I formed my opinion, I felt that it would still be necessary to give the Petitioners an option of not taking a judgment, not because I found merit in the Petition but because of the pendency of other proceedings and the likely impact of observations in this judgment on those. On Friday, 5th February 2016, this matter was listed for pronouncement of judgment. Mr. Damle and Mr. Chandrachood were both present in Court. The 1st Petitioner, Abha, was not. I indicated to Mr. Damle the substance of this order, and that I had not found for the Petitioner. To allow the Petitioners one final opportunity to consider their position and instruct Mr. Damle, I stood the matter for pronouncement over to 10th February 2016. On that day, the Petitioners sought further time. They also made other requests. By a separate order, I granted time till today but rejected the other requests. Since I am told that the Petitioners even now do not wish to withdraw the Petition, I have proceeded to deliver judgment. It is, I think, necessary to state this only to indicate that every opportunity has been given to the Petitioners to reconsider their position. If they have chosen not to do so, the consequences are of their own making.