In Goods of Josephine Diewty Mehra (Dec) Vs. David Mehera Shullai - Court Judgment

SooperKanoon Citationsooperkanoon.com/31744
CourtKolkata High Court
Decided OnJan-14-2015
JudgeAniruddha Bose
AppellantIn Goods of Josephine Diewty Mehra (Dec)
RespondentDavid Mehera Shullai
Excerpt:
order sheet in the high court at calcutta testamentary & intestate jurisdiction original side ga3746of 2000 ga3070of 2006 pla229of 1998 in goods of josephine diewty mehra (dec) versus david mehera shullai before: the hon'ble justice aniruddha bose date : 14th january, 2015. appearance : mr.s.dasgupta, advocate with mr.s.majumdar, advocate for gloria mehra walker. mr.sanjib kumar mal, advocate with mr.atanu roychowdhury, advocate and mr.pushan majumdar, advocate for lily morant the court : the instant application ga3070of 2006 is for vacation or recalling an order passed by an hon’ble single judge of this court in ga3746of 2000. there are certain other reliefs prayed for in this application but in cours.of hearing, learned counsel for the applicant/petitioner confined the prayer for recalling the order passed in ga3746of 2000 only. this proceeding as also ga3746of 2000 arises out of an application for probate, being pla no.229 of 1998. the subject of that proceeding is the will of one josephine diewty mehra, which had been registered on 15th january, 1998. the testatrix passed away on 28th of march, 1998. initially, probate was granted treating the application as a non-contentious cause, but subsequently one of the sons of the testatrix, victor mehra sought to recall the order by which probate was granted. the application to that effect was registered as ga no.4061 of 1999. that application was dismissed on contest by an hon’ble single judge of this court on 17th april, 2000. an appeal was preferred against the order by which ga no.4061 of 1999 was dismissed and this appeal was registered as apot no.204 of 2001. the appeal was also subsequently dismissed with costs by a judgement delivered by a division bench of this court on 21st august, 2001. so far as this proceeding is concerned, the dispute remains confined to the application which was registered as ga no.3746 of 2000. victor mehra, being the son of the testatrix and lili morant one of the testatrix as also harsha sandhu have also been represented by their respective counsel and were heard. it is submitted on behalf of lili morant that she was also granted probate in terms of section 224 of the indian succession act, 1925 in respect of the same will. similar submission is made on behalf of victor mehra. thus, the validity of the will stands established and none of the parties have raised any question on that aspect, through on behalf of gloria mehra walker, it has been urged that the will, on the basis of which lili morant and victor mehra were granted probate was not authentic. but in this proceeding, that question does not require to be addressed. in ga no.3746 of 2000, applicants are shown to be mrs.gloria mehra walker and mrs.sheila mehra sandhu. this application has been signed by one harvindar singh sandhu, representing himself to be the constituted attorney of the two applicants. an affidavit has also been affirmed by said harvindar singh sandhu on 11th september, 2000 in the same capacity. in that application following prayers were made; “a) to direct all banks both in calcutta and shillong more particularly named in the schedule of the affidavit of assets being annexure ‘b’ to this application, and to pay all the money with accrued interest to the petitioners being executrics in any manner or forms deposited by the deceased mrs.g.d.mehra of 59a, park street, calcutta – 16 without any delay. b) to restrain the above banks by order of injunction from making any payment to the respondent no.1, 2, 3. c) for directing the registrar, original side to sale all the immovable properties specify in the will as well as in the affidavit of assets either by public auction or by private treaty after making due reference for the same. d) to direct the state bank of india, shillong main branch to furnish the particular about the fixed deposit no.and/or stdr no.with the amount which was deposited by the deceased mrs.g.d.mehra with her daughter mrs.shila mehra sandhu as per provision contained in the will of the said deceased with accrued interest expeditiously. e) leave may be granted to serve the copy of this application by speed post to the respective banks and to file the affidavit of service accordingly. f) ad-interim order in terms of prayer ‘a’ and ‘b’ of this application. g) such further or other order or orders and direction may be given by this hon’ble court which will be beneficial for carrying out the direction given in the will by the petitioners being executrics.” this application has been disposed of with the following direction by an hon’ble single judge on 25th april, 2001. “34. in the result this application succeeds. let there be an order in terms of prayer (a).(b).(d) and (c).the registrar shall sell the property in accordance with law and shall comply with all statutory requirements. it is open to the respondents to take appropriate steps, if they are so advised, in terms of the decision dated 20th february, 2001 in g.a.no.2275 of 2000 and 2836 of 2000 which liberty would be equally available to the respondent no.3 as well. let it be noted that i have not entered into the merits of the respective claims with regard to the entitlement of the respective beneficiaries under the will and the administration of the estate by the executrix in terms of the will. all points are kept open to be agitated by the parties in appropriate manner before the appropriate forum. the petition no.3746 of 2000 is thus allowed and is accordingly disposed of. the petition no.3423 of 2000 is dismissed as withdrawn with liberty as recorded above.”35. the cost of g.a.no.3746 of 2000 shall be borne within the estate of the deceased in terms of the grant of probate in favour of the executrix.” mrs.gloria mehra walker at this stage in ga no.3070 of 2006 is the surviving petitioner as this court is informed by the learned counsel appearing for the parties that the other petitioner mrs.sheila mehra sandhu passed away on 20th december, 2006. case of the petitioner is that the said application was filed without instruction from the petitioners and no power of attorney was executed in favour of harvindar singh sandhu, who had signed the petition and affirmed the affidavit on behalf of the petitioners.this has been pleaded in paragraph 11 of the application, which specifies as follows: “11. the said application being g.a.no.3746 of 2000 was without any authority from the petitioners and illegally drawn up with some ulterior motive for wrongful gain in convenience with others in a joint criminal conspiracy with a view to frustrating the authority of the executrices after obtaining the grant of the probate in their favour.” harvindar singh sandhu has filed an affidavit affirmed on 4th october, 2007 disclosing his capacity and status to sign the petition or affirm the affidavit. in this affidavit, he has stated that he was induced to sign the petition which was registered as ga no.3746 of 2000. the background which led to signing of the petition has also been stated in that affidavit of harvindar singh sandhu, but it is not necessary to deal into that aspect in this order. said harvindar singh sandhu is present in court when this order is being dictated. this court enquired from him through mr.dasgupta, learned advocate who is representing mrs.gloria mehra walker as to whether any valid power of attorney was executed in his favour by mrs.gloria mehra walker and mrs.sheila mehra sandhu. his answer was in the negative. so far as this court is concerned, in view of his own affidavit, it was not felt that any further examination of mr.harvindar singh sandhu would be necessary. i enquired from the learned advocates appearing for the parties as to whether they would like to examine sr.harvindar singh sandhu any further and this court was informed that it is not necessary to examine him by the learned counsel appearing for the parties. none of the parties has raised the contrary plea that said harvindar singh sandhu had proper power of authority to sign the petition, which was registered as g.a.no.3746 of 2000, or affirm the supporting affidavit. no power of attorney executed in favour of harvindar singh sandhu is available in the records. mrs.gloria mehra walker herself through her learned advocate apprised this court that she did not execute any power of attorney in favour of harvindar singh sandhu. in this backdrop, i am of the view that the application being ga no.3746 of 2000 was misconceived and any order passed in pursuance of that application would be a nullity considering the fact that the deponent of the affidavit affirmed in support of the said application had no power or authority to institute or maintain that proceeding. there is an application being g.a.no.262 of 2007 in which one hars.sandhu, son of sheila mehra sandhu, has made a prayer for being brought on record as the sole person entitled to represent the estate of her mother in the proceeding arising out pla no.229 of 1998. it has also been pleaded therein that the said hars.sandhu should be appointed as executor of the last will and testament of josephine dwetty mehra to act jointly with other executors functioning in respect of the estate of josephine diewty mehra. there are other prayers also in the application concerning the estate of the testatrix josephine dwetty mehra. but so far as the present proceeding is concerned, i do not think there is any necessity to substitute hars.sandhu as i am satisfied that the application being g.a.no.3746 of 2000 itself had been initiated without the power or authority of any of the executors of the will of josephine diewty mehra and there is a specific pleading to that effect in the petition registered as g.a.no.3070 of 2006, which has been signed and supported by affidavits affirmed by both gloria mehra walker and sheila mehra sandhu. i make it clear, however, that in this application i.e.ga no.3070 of 2000, none of the allegations made against any other beneficiaries or executors of the will shall be deemed to have been admitted. i also make it clear that i have confined my enquiry in this proceeding only on the question as to whether harvinder sandhu had the authority to sign the petition, affirm the affidavit and take other actions which culminated in passing of the order in g.a.no.3746 of 2000. i also make it clear that i have not made any observation as regards selling of the movable and immovable assets of the estate in pursuance of order of the learned single judge dated 25th april, 2001. none of the parties has specifically brought to the notice of this court in cours.of hearing specific instances of actual sale of any asset of the estate of the testatrix which might have been effected in pursuance of the order passed by this court on 25th april, 2001 in g.a.no.3746 of 2000. that aspect shall be examined at a later date. parties are given liberty to bring to action as may be permissible in law if any such sale has taken place, so that appropriate direction can be issued by this court. there are various other applications pending on the question of sale of immovable assets forming part of the estate in question. these applications are required to be examined before sale of assets of the estate of the testatrix can be permitted, as any unilateral sale by the executrix is resisted by the parties who claim to have obtained probate in respect of the same will under section 224 of the indian succession act, 1925. in this order i have not dealt with nor discussed the rights and obligations of the beneficiaries of the subject will. whatever the claims of the individual beneficiaries may be in respect of the estate of josephine diewty mehra, the same shall be addressed when the applications of such beneficiaries are taken up for hearing. the order passed on april 25, 2001 is recalled. the application being g.a.no.3070 of 2006 is disposed of in the above terms.urgent certified photocopies of this order, if applied for, be supplied to the parties subject to their compliance with all the requisite formalities. (aniruddha bose, j.) msen/cs/tk
Judgment:

ORDER

SHEET IN THE HIGH COURT AT CALCUTTA Testamentary & Intestate Jurisdiction ORIGINAL SIDE GA3746of 2000 GA3070of 2006 PLA229of 1998 IN GOODS OF JOSEPHINE DIEWTY MEHRA (DEC) versus DAVID MEHERA SHULLAI BEFORE: The Hon'ble JUSTICE ANIRUDDHA BOSE Date : 14th January, 2015.

Appearance : Mr.S.Dasgupta, Advocate with Mr.S.Majumdar, Advocate for Gloria Mehra Walker.

Mr.Sanjib Kumar Mal, Advocate with Mr.Atanu Roychowdhury, Advocate and Mr.Pushan Majumdar, Advocate for Lily Morant The Court : The instant application GA3070of 2006 is for vacation or recalling an order passed by an Hon’ble Single Judge of this Court in GA3746of 2000.

There are certain other reliefs prayed for in this application but in couRs.of hearing, learned counsel for the applicant/petitioner confined the prayer for recalling the order passed in GA3746of 2000 only.

This proceeding as also GA3746of 2000 arises out of an application for probate, being PLA No.229 of 1998.

The subject of that proceeding is the Will of one Josephine Diewty Mehra, which had been registered on 15th January, 1998.

The Testatrix passed away on 28th of March, 1998.

Initially, probate was granted treating the application as a non-contentious cause, but subsequently one of the sons of the testatrix, Victor Mehra sought to recall the order by which probate was granted.

The application to that effect was registered as GA No.4061 of 1999.

That application was dismissed on contest by an Hon’ble Single Judge of this Court on 17th April, 2000.

An appeal was preferred against the order by which GA No.4061 of 1999 was dismissed and this appeal was registered as APOT No.204 of 2001.

The appeal was also subsequently dismissed with costs by a judgement delivered by a Division Bench of this Court on 21st August, 2001.

So far as this proceeding is concerned, the dispute remains confined to the application which was registered as GA No.3746 of 2000.

Victor Mehra, being the son of the testatrix and Lili Morant one of the testatrix as also Harsha Sandhu have also been represented by their respective counsel and were heard.

It is submitted on behalf of Lili Morant that she was also granted probate in terms of Section 224 of the Indian Succession Act, 1925 in respect of the same Will.

Similar submission is made on behalf of Victor Mehra.

Thus, the validity of the Will stands established and none of the parties have raised any question on that aspect, through on behalf of Gloria Mehra Walker, it has been urged that the will, on the basis of which Lili Morant and Victor Mehra were granted probate was not authentic.

But in this proceeding, that question does not require to be addressed.

In GA No.3746 of 2000, applicants are shown to be MRS.Gloria Mehra Walker and MRS.Sheila Mehra Sandhu.

This application has been signed by one Harvindar Singh Sandhu, representing himself to be the constituted attorney of the two applicants.

An affidavit has also been affirmed by said Harvindar Singh Sandhu on 11th September, 2000 in the same capacity.

In that application following prayers were made; “a) To direct all Banks both in Calcutta and Shillong more particularly named in the schedule of the affidavit of assets being annexure ‘B’ to this application, and to pay all the money with accrued interest to the petitioners being Executrics in any manner or forms deposited by the deceased MRS.G.D.Mehra of 59A, Park Street, Calcutta – 16 without any delay.

b) To restrain the above Banks by order of injunction from making any payment to the Respondent No.1, 2, 3.

c) For directing the Registrar, Original Side to sale all the immovable properties specify in the will as well as in the affidavit of assets either by public auction or by private treaty after making due reference for the same.

d) To direct the State Bank of India, Shillong Main Branch to furnish the particular about the fixed deposit No.and/or STDR No.with the amount which was deposited by the deceased MRS.G.D.Mehra with her daughter MRS.Shila Mehra Sandhu as per provision contained in the will of the said deceased with accrued interest expeditiously.

e) Leave may be granted to serve the copy of this application by Speed Post to the Respective Banks and to file the affidavit of service accordingly.

f) Ad-Interim Order in terms of prayer ‘a’ and ‘b’ of this application.

g) Such further or other order or orders and direction may be given by this Hon’ble Court which will be beneficial for carrying out the direction given in the will by the petitioners being executrics.” This application has been disposed of with the following direction by an Hon’ble Single Judge on 25th April, 2001.

“34.

In the result this application succeeds.

Let there be an order in terms of prayer (a).(b).(d) and (c).The Registrar shall sell the property in accordance with law and shall comply with all statutory requirements.

It is open to the respondents to take appropriate steps, if they are so advised, in terms of the decision dated 20th February, 2001 in G.A.No.2275 of 2000 and 2836 of 2000 which liberty would be equally available to the respondent no.3 as well.

Let it be noted that I have not entered into the merits of the respective claims with regard to the entitlement of the respective beneficiaries under the will and the administration of the estate by the executrix in terms of the will.

All points are kept open to be agitated by the parties in appropriate manner before the appropriate forum.

The petition no.3746 of 2000 is thus allowed and is accordingly disposed of.

The petition No.3423 of 2000 is dismissed as withdrawn with liberty as recorded above.”

35. The cost of G.A.No.3746 of 2000 shall be borne within the estate of the deceased in terms of the grant of probate in favour of the executrix.” MRS.Gloria Mehra Walker at this stage in GA No.3070 of 2006 is the surviving petitioner as this Court is informed by the learned counsel appearing for the parties that the other petitioner MRS.Sheila Mehra Sandhu passed away on 20th December, 2006.

Case of the petitioner is that the said application was filed without instruction from the petitioners and no power of attorney was executed in favour of Harvindar Singh Sandhu, who had signed the petition and affirmed the affidavit on behalf of the petitioneRs.This has been pleaded in paragraph 11 of the application, which specifies as follows: “11.

The said application being G.A.No.3746 of 2000 was without any authority from the petitioners and illegally drawn up with some ulterior motive for wrongful gain in convenience with others in a Joint Criminal conspiracy with a view to frustrating the authority of the executrices after obtaining the grant of the Probate in their favour.” Harvindar Singh Sandhu has filed an affidavit affirmed on 4th October, 2007 disclosing his capacity and status to sign the petition or affirm the affidavit.

In this affidavit, he has stated that he was induced to sign the petition which was registered as GA No.3746 of 2000.

The background which led to signing of the petition has also been stated in that affidavit of Harvindar Singh Sandhu, but it is not necessary to deal into that aspect in this order.

Said Harvindar Singh Sandhu is present in Court when this order is being dictated.

This Court enquired from him through Mr.Dasgupta, learned Advocate who is representing MRS.Gloria Mehra Walker as to whether any valid power of attorney was executed in his favour by MRS.Gloria Mehra Walker and MRS.Sheila Mehra Sandhu.

His answer was in the negative.

So far as this Court is concerned, in view of his own affidavit, it was not felt that any further examination of Mr.Harvindar Singh Sandhu would be necessary.

I enquired from the learned Advocates appearing for the parties as to whether they would like to examine Sr.Harvindar Singh Sandhu any further and this Court was informed that it is not necessary to examine him by the learned Counsel appearing for the parties.

None of the parties has raised the contrary plea that said Harvindar Singh Sandhu had proper power of authority to sign the petition, which was registered as G.A.No.3746 of 2000, or affirm the supporting affidavit.

No power of attorney executed in favour of Harvindar Singh Sandhu is available in the records.

MRS.Gloria Mehra Walker herself through her learned Advocate apprised this Court that she did not execute any power of attorney in favour of Harvindar Singh Sandhu.

In this backdrop, I am of the view that the application being GA No.3746 of 2000 was misconceived and any order passed in pursuance of that application would be a nullity considering the fact that the deponent of the affidavit affirmed in support of the said application had no power or authority to institute or maintain that proceeding.

There is an application being G.A.No.262 of 2007 in which one HaRs.Sandhu, son of Sheila Mehra Sandhu, has made a prayer for being brought on record as the sole person entitled to represent the estate of her mother in the proceeding arising out PLA NO.229 of 1998.

It has also been pleaded therein that the said HaRs.Sandhu should be appointed as executor of the last will and testament of Josephine Dwetty Mehra to act jointly with other executors functioning in respect of the estate of Josephine Diewty Mehra.

There are other prayers also in the application concerning the estate of the testatrix Josephine Dwetty Mehra.

But so far as the present proceeding is concerned, I do not think there is any necessity to substitute HaRs.Sandhu as I am satisfied that the application being G.A.No.3746 of 2000 itself had been initiated without the power or authority of any of the executors of the will of Josephine Diewty Mehra and there is a specific pleading to that effect in the petition registered as G.A.No.3070 of 2006, which has been signed and supported by affidavits affirmed by both Gloria Mehra Walker and Sheila Mehra Sandhu.

I make it clear, however, that in this application i.e.GA No.3070 of 2000, none of the allegations made against any other beneficiaries or executors of the will shall be deemed to have been admitted.

I also make it clear that I have confined my enquiry in this proceeding only on the question as to whether Harvinder Sandhu had the authority to sign the petition, affirm the affidavit and take other actions which culminated in passing of the order in G.A.No.3746 of 2000.

I also make it clear that I have not made any observation as regards selling of the movable and immovable assets of the estate in pursuance of order of the learned Single Judge dated 25th April, 2001.

None of the parties has specifically brought to the notice of this Court in couRs.of hearing specific instances of actual sale of any asset of the estate of the testatrix which might have been effected in pursuance of the order passed by this Court on 25th April, 2001 in G.A.No.3746 of 2000.

That aspect shall be examined at a later date.

Parties are given liberty to bring to action as may be permissible in law if any such sale has taken place, so that appropriate direction can be issued by this Court.

There are various other applications pending on the question of sale of immovable assets forming part of the estate in question.

These applications are required to be examined before sale of assets of the estate of the testatrix can be permitted, as any unilateral sale by the executrix is resisted by the parties who claim to have obtained probate in respect of the same will under Section 224 of the Indian Succession Act, 1925.

In this order I have not dealt with nor discussed the rights and obligations of the beneficiaries of the subject will.

Whatever the claims of the individual beneficiaries may be in respect of the estate of Josephine Diewty Mehra, the same shall be addressed when the applications of such beneficiaries are taken up for hearing.

The order passed on April 25, 2001 is recalled.

The application being G.A.No.3070 of 2006 is disposed of in the above terMs.Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to their compliance with all the requisite formalities.

(ANIRUDDHA BOSE, J.) msen/cs/tk