Testamentary Suit No. 2 of 1986 In Testamentary Petition No. 824 of 1981. Case: Smt. Rujuta Pradeep Mhatre Vs Smt. Smita Harihar Parelkar. High Court of Bombay (India)
| Case Number | Testamentary Suit No. 2 of 1986 In Testamentary Petition No. 824 of 1981 |
| Counsel | For petition: H. C. Mehta, i/b Ms. Mehta and Co., Advs. and For Respondents: Sanjay Jain, i/b Johair and Co., Advs. |
| Judges | G. S. Patel, J. |
| Issue | Succession Act (39 of 1925) - Section 218 |
| Citation | AIR 2015 BOM 183 |
| Judgement Date | March 30, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
1. This is a petition for Letters of Administration to the estate, property and credits of one Shankarrao H. Parelkar ("Shankarrao"), who died on 8th November, 1979. Shankarrao was survived by his widow Sitabai; his sons Manohar, Yeshwant and Harihar; and a daughter, Sarojini Bhatte. Shankarrao died intestate; none have propounded any Will or testamentary writing. His estate would, therefore, devolve as on intestacy, with a 1/5th or 20% share in his estate going to his widow and four children respectively. This is not disputed.
2. At the time of his death, Shankarrao was a 50% partner in a firm known as M/s. Parelkar and Dallas. This was a firm of architects of some considerable repute and standing among architects and in the construction industry in Mumbai. It had considerable business, revenue and goodwill. The firm continues today, though, as we shall see, in considerably changed circumstances. The firm was first established on 19th October, 1948 and has been in practice since then. Vinay Manohar Parelkar, Shankarrao's grandson (Mahonar's son) claims that he entered into partnership with the other 50% partner Mr. Dallas with effect from the date of Shankarrao's death. He claims to have been inducted into this partnership, but does not show that he paid any consideration for this either to Shankarrao's estate or to Mr. Dallas.
3. On 20th October, 1981, Manohar, Shankarrao's eldest son, filed the present Petition No. 825 of 1981 for Letters of Administration to Shankarrao's estate, property and credits. The petition includes a schedule of assets. Of the very many assets listed, there are also certain immovable properties, one of which is a land with building known as Sita Sadan at Plot No. 75, Keluskar Road, Shivaji Park, Dadar. There are other immovable properties too and there is also his interest in the partnership firm of Parelkar and Dallas. The petition, however, as originally brought showed Shankarrao's interest in this firm as being of the value of only Rs. 3167.10.1
1. Item 7 of the schedule of the estates to the Petition.
4. Following the filing of this Petition, many of the lineal descendants of Shankarrao and their own heirs passed away. The petition has been amended several times to reflect these changes. For convenience, a family tree showing the relations between the parties is appended to this judgment.
5. On 14th December, 1981, Shankarrao's second son Yeshwant passed away. He was survived by his widow, Sandhya; the couple had no children.
6. Even at this time, the petition for Letters of Administration, though pending, had not been contested.
7. Sometime in 1984, Harihar, Shankarrao's younger son, filed Suit No. 8009 of 1984 in the Bombay City Civil Court at Bombay seeking reliefs in relation to the firm of M/s. Parelkar and Dallas in his capacity as one of Shankarrao's heirs. To this suit, Manohar's son Vinay (Harihar's nephew) was joined as Defendant No. 2(b). Shankarrao's other heirs were also party Defendants, as was Mr. Dallas, the remaining 50% partner in the firm. Subsequently, Vinay's wife, Neelam, was also joined as Defendant No. 6 to this partnership suit. Many of the heirs joined to this suit supported Vinay.
8. On 21st December, 1985, Harihar (Shankarrao's third son and the Plaintiff in the Bombay City Civil Court partnership action) filed a Caveat and an Affidavit in Support in the present petition for Letters of Administration. The petition was then renumbered as Suit No. 2 of 1986.
9. About two years later, on 10th November, 1987, Harihar executed a Release Deed in respect of one of the properties included in Shankarrao's estate. Harihar reserved his rights in other properties and the remaining estate of Shankarrao and then agreed, in that Release Deed, one to which I will turn presently, to withdraw his Caveat. Harihar later claimed that he did not in fact ever withdraw that Caveat since the commitments made to him were not fulfilled. In any case, the fact remains that Manohar, the Plaintiff in the testamentary action, made no application for discharge of the Caveat on the basis of this Release Deed or for enforcement of Harihar's obligations under it.
10. On 20th April, 1988, Shankarrao's widow, Sitabai, passed away. She was survived by her two sons Manohar and Harihar, her daughter Sarojini and her second son, Yeshwant's, widow, Sandhya.
11. On 27th June, 1989, Neelam Parelkar, Vinay's wife and the daughter-in-law of Manohar, Shankarrao's elder son, claimed that she had been inducted as partner of M/s. Parelkar and Dallas. She also claimed that Mr. Dallas had retired. She, too, did not claim to have paid any consideration whatsoever into Shankarrao's estate.
12. On 10th January, 1992, Manohar, Shankarrao's elder son, passed away. He was survived by his wife, Shalini, son Vinay and his daughter Padmaja Goregaonkar. Shalini, Vinay and Padmaja were later added as party Plaintiffs to the present action.
13. After Manohar passed away, Harihar, who had filed a Caveat and was the original Defendant in the suit filed Chamber Summons No. 608 of 1992 seeking that he be transposed as a Plaintiff. This application was opposed by the other heirs who filed a counter Chamber Summons No. 736 of 1992. The affidavit in support of that second Chamber Summons was affirmed by Vinay, Manohar's son. On 11th September, 1992, Chamber Summons No. 736 of 1992 was allowed. The Court held that the other heirs (i.e., the Applicants in the Chamber Summons) had a higher and superior right in Shankarrao's estate as compared with Harihar, the original Defendant. Thus, those heirs were joined as party Plaintiffs and Harihar continued as a Defendant. The plaint was amended thus: Shankarrao's only daughter Sarojini Bhatte was joined as Petitioner No.1; Yashwant's widow (Shankarrao's daughter-in-law, the widow of his second son) was joined as Petitioner No. 2; Shalini, Manohar's widow was joined as Petitioner No. 3; Vinay, Manohar's son was joined as Petitioner No. 4; and Padmaja Goregaonkar, Manohar and Shalini's daughter was joined as Petitioner No. 5.
14. On 8th November, 1992, Harihar filed an additional affidavit in support of the Caveat. The Plaintiffs' case was conducted till this time by Vinay, Manohar's son, Plaintiff No. 4.
15. On 6th August, 2001, Harihar's partnership suit was decreed. At that time, Harihar had a 25% share in Shankarrao's estate. Vinay and his wife Neelam were ordered to pay Harihar 25% of Shankarrao's 50% share in the profits of the firm from the date of Shan-karrao's death (8th November, 1979) till payment. This judgment and decree was carried in Appeal by Vinay in First Appeal No. 94 of 2003. This is pending and there appears to be no stay of the decree. It has not been satisfied either.
16. On 22nd August, 2003, Sarojini Bhatte, Shankarrao and Sitabai's only daughter, passed away. She was survived by her three daughters, Rujuta Mhatre, Neeta Madgulkar and Preeta Bhatte, who are now joined as Plaintiff Nos. 1(a) to 1(c).
17. On 28th July, 2002, Harihar Parelkar passed away. His heirs are Defendant Nos. 1 to 3, his wife, son and daughter respectively.
18. On 8th February, 2008, Shalini, the original Plaintiff No.3 (Manohar Parelkar's widow) passed away. She was survived by Plaintiff Nos. 4 and 5 viz. Vinay Parelkar and Padmaja Goregaonkar.
19. On 11th December, 2010, the 2nd Petitioner Sandhya, viz., the widow of Shankar-rao's second son...
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