{"id":152541,"date":"2010-12-15T00:00:00","date_gmt":"2010-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ferani-hotels-pvt-ltd-vs-nusli-neville-wadia-on-15-december-2010"},"modified":"2018-09-26T07:19:22","modified_gmt":"2018-09-26T01:49:22","slug":"ferani-hotels-pvt-ltd-vs-nusli-neville-wadia-on-15-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ferani-hotels-pvt-ltd-vs-nusli-neville-wadia-on-15-december-2010","title":{"rendered":"Ferani Hotels Pvt. Ltd vs Nusli Neville Wadia on 15 December, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ferani Hotels Pvt. Ltd vs Nusli Neville Wadia on 15 December, 2010<\/div>\n
Bench: R. S. Dalvi<\/div>\n
                               1                            MISC. PTN. 70\/2010\n\nPGK\/MNM\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                         \n            TESTAMENTARY AND INTESTATE JURISDICTION\n\n\n\n\n                                                 \n             Miscellaneous Petition No.70 of 2010\n\n\nFerani Hotels Pvt. Ltd.            ..                 ..       Petitioner\n\n\n\n\n                                                \n        V\/s.\nNusli Neville Wadia                ..                 ..       Respondent\n\n\nDr.A.M. Singhvi, Sr. Advocate  with Mr.T.N. Subramanian,\n\n\n\n\n                                       \nSr. Advocate, Mr.Ashok Gupta, Mr.Zubin Behramkamdin,\nMr.Vivek Vashi Sushma Nagraj, Ms.Anusha Jegadeesh and\n                           \nMr.Ameesh Patnair for i\/by M\/s.Bharucha &   Partners for\nPetitioner.\n                          \nMr.F.S. Nariman, Sr. Advocate with Mr.N.H. Seervai, Sr.\nAdvocate, Mr.V.R. Dhond, Mr.Rohan Kelkar, Mr.S.V. Doijode,\nMr.P.A. Kabadi and Ms.F.J. Thakkar i\/by M\/s.Doijode\nAssociates for Respondent.\n             \n\n             ------\n          \n\n\n\n                               CORAM : SMT.ROSHAN DALVI, J.\nDate of reserving the judgment :         18th October, 2010\nDate of pronouncing the judgment :15th December, 2010\n\n\n\n\n\nJUDGMENT :\n<\/pre>\n
    1. This Petition was filed for revocation and annulment<\/p>\n
      of the order dated 20th November 2003 authorising and
\n      permitting    the    Respondent    to    continue           to       act       as
\n      Administrator of the estate of one Eduljee Framroze
\n      Dinshaw passed in Miscellaneous Petition No.41 of 2003,
\n      to   remove    the    Respondent        from     the         office            of<\/p>\n
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\n                                         2                           MISC. PTN. 70\/2010<\/p>\n
         Administrator of the estate of the deceased and to
\n         appoint     a    fit     and       proper   person,        including              the<\/p>\n
         Petitioner as such Administrator, for disclosure of the
\n         estate of the deceased and accounts.\n<\/p>\n
    2.    The   deceased        died    in    New    York,   United          States          of<\/p>\n
         America (U.S.A.) on 14th March 1970 leaving behind his
\n         last Will and Testament dated 4th February 1970 (the
\n         Will). Under Clause IV of the Will, the deceased (the<\/p>\n
         testator)bequeathed a life interest in the net income
\n         of   his    properties    ig   in     India    to     his        sister           one
\n         Mrs.Bachoobai Woronzow Dashkow (Bachoobai) and upon her
\n         death to two charitable institutions in the U.S.                                  the<\/p>\n
         Salvation       Army    and    the       American    Society           for        the
\n         Prevention      of     Cruelty      to   Animals    (U.S.         Charities).\n<\/p>\n
         Clause IV reads thus:\n<\/p>\n
                     In the event that at the time of my death I
\n                    shall own outright and free from any trust any
\n                    real or personal property physically located<\/p>\n
                    in the Republic of India, then and in such
\n                    event, I give, devise and bequeath the same to
\n                    my Trustees, hereinafter named, IN TRUST
\n                    NEVERTHELESS, to hold, invest and re-invest
\n                    the same and to collect and receive the rents,<\/p>\n
                    interest, issues and income therefrom and to
\n                    pay the net income thereof at such times as my
\n                    said Trustees may consider appropriate, but
\n                    not less frequently than quarter annually to,
\n                    or apply the same for the benefit of my
\n                    sister, BACHOO WORONZOW, for life if she
\n                    survives me and upon the death of my said<\/p>\n
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\n                                    3                            MISC. PTN. 70\/2010<\/p>\n
                  sister, BACHOO WORONZOW or upon my death if
\n                  she shall predecease me, I give, devise and
\n                  bequeath the then principal of said trust fund<\/p>\n
                  together with any accrued income thereon, in
\n                  equal shares to THE SALVATION ARMY, New York,<\/p>\n
                  New York and THE AMERICAN SOCIETY FOR THE
\n                  PREVENTION OF CRUELTY TO ANIMALS, New York,
\n                  New York for their general uses and purposes.\n<\/p><\/blockquote>\n
      Under Clause V of the Will, he granted the residue of
\n      his estate to his            sister Bachoobai. Clause V reads
\n      thus:\n<\/p>\n
               I give, devise and bequeath all the rest,
\n              residue and remainder of my estate, both real
\n              and personal to my sister, BACHOO WORONZOW, if<\/p>\n
              she survives me or, if she shall predecease me,
\n              in equal shares, to THE SALVATION ARMY, New York
\n              and THE AMERICAN SOCIETY FOR THE PREVENTION OF
\n              CRUELTY TO ANIMALS, New York, New York, for<\/p>\n
              their general uses and purposes.\n<\/p><\/blockquote>\n
      Bachoobai had not predeceased the deceased.                         Hence she
\n      would take the remainder of the estate of the deceased<\/p>\n
      after the U.S. Charities were bequeathed the principal
\n      of the Trust fund and the accrued interest in the real
\n      and    personal   properties        of   the   deceased,             including
\n      properties in India.\n<\/p>\n
    3. Under Clause VIII of the Will, he appointed                         Bachoobai
\n      as    the   executrix   of    his   Will   and     certain           other         as
\n      successor executor in the event that she predeceased<\/p>\n
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\n                                      4                              MISC. PTN. 70\/2010<\/p>\n
         him, failed to qualify or ceased to act for any reason.
\n         He authorised them to designate another individual to<\/p>\n
         act on their behalf if they could not act in a foreign
\n         jurisdiction.       The relevant part of Clause VIII of the<\/p>\n
         Will runs thus:-\n<\/p>\n
                       I nominate, constitute and appoint my sister,
\n                      BACHOO WORONZOW, to be Executrix of this my
\n                      Will and in the event that she shall
\n                      predecease me, fail to qualify or cease to act
\n                      for any reason, I nominate, constitute and<\/p>\n
                      appoint as successor such then partner of
\n                      Coudert Brothers as shall be designated by any<\/p>\n
                      three then partners. Should any executor be
\n                      unable for whatever reason to exercise her or
\n                      his functions in a jurisdiction outside the<\/p>\n
                      United States of America, I hereby authorize
\n                      her or him by written instrument, duly
\n                      acknowledged, to designate an individual or a
\n                      bank to act on her or his behalf in respect to<\/p>\n
                      property located in such foreign jurisdiction.
\n                      I nominate, constitute and appoint ALEXIS C.\n<\/p><\/blockquote>\n
                      COUDERT and JEHANGIR B. DUBASH to be the
\n                      trustees under this my Will.\n<\/p><\/blockquote>\n
    4.        The    executrix,    the    trustees       and        the        successor<\/p>\n
         executors      or   trustees     were     given        full        power          and
\n         authority to retain, manage and administer the estate
\n         of    the    deceased    under   Clause    IX     of      the       Will.         The<\/p>\n
         relevant part of Clause IX runs thus:\n<\/p>\n
                     I hereby grant to my Executrix and Trustees and
\n                    any of their successors full power and authority
\n                    to retain, manage and administer my estate as
\n                    freely as I could handle my own affairs if<\/p>\n
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\n                              5                     MISC. PTN. 70\/2010<\/p>\n
           living. Without limiting the foregoing, and
\n           irrespective of any legal restrictions otherwise
\n           applying to the powers of executors or trustees<\/p>\n
           in any jurisdiction, I hereby specifically
\n           empower my Executrix and Trustees and any of<\/p>\n
           their successors, with respect to both principal
\n           and income, as follows:\n<\/p><\/blockquote>\n
           (a) Without obligation to diversify, to retain<\/p>\n
           any shares of stock of any corporate trustee,
\n           shares of stock in closely held corporations,
\n           shares of stock of corporation in which I own
\n           all or the greater part of the shares, any any
\n           other stocks, bonds, mortgages, real estate or<\/p>\n
           other form of property or investment which I may
\n           leave at the time of my death or which may<\/p>\n
           subsequently be received or held by my estate or
\n           any trust hereunder as a result of the exercise
\n           of any powers herein granted, or otherwise.\n<\/p>\n
           (b)   . . . . .\n<\/p>\n
           (c)   For any purpose, to sell for cash or on<\/p>\n
           credit, exchange, lease for any term of years
\n           (including a term of more than ten years),
\n           mortgage, or extend or modify the terms of
\n           mortgages on, any real or personal property or<\/p>\n
           interest or estate therein at any time forming a
\n           part of my estate or any trust created by this
\n           my Will, and to execute such instruments as may
\n           be necessary or advisable.\n<\/p>\n
    5. The Will, as any other document, is required to be
\n     read as a whole and every part given effect to. No part
\n     can be rendered otiose upon its construction.                        The<\/p>\n
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\n                                        6                              MISC. PTN. 70\/2010<\/p>\n
         judgment relied upon by the Petitioner in the case of
\n         Bhura   vs.    Kashi    Ram,<\/a>       (1994)    2   SCC      111       makes         this<\/p>\n
         position clear. As emphasised by Mr.Nariman on behalf
\n         of the Respondent, this would require consideration of<\/p>\n
         the entire Clause IX of the Will to see the power given
\n         to Bachoobai as the executrix to deal with the real<\/p>\n
         property of the deceased during her lifetime. How she
\n         exercised that power shall be seen presently.\n<\/p>\n
         Bachoobai      survived       the        deceased.        Bachoobai               also
\n         qualified to be the executrix. She applied for probate<\/p>\n
         of   the   Will   in    the       competent      Court      which         was       the
\n         Surrogate’s Court of the County of New York (New York<\/p>\n
         County Court).       The only named executrix in the Will is
\n         the testator s sister Bachoobai who also has a life<\/p>\n
         interest and the residuary interest. There is no other
\n         named executor in the Will directed or authorised to<\/p>\n
         administer     the     estate       of    the    deceased           along         with
\n         Bachoobai. It is only upon happening of a contingency<\/p>\n
         specified in Clause 8 of the Will, by which Bachoobai
\n         would   no    longer    remain      executrix,        that        a     successor
\n         executor is directed to take charge.                         Such successor
\n         executor would be a partner nominated by any three<\/p>\n
         partners of the Firm of Coudert Brothers.\n<\/p>\n
    6.    Bachoobai, therefore, had to act singly until she
\n         ceased to act for any reason.               She was accordingly the<\/p>\n
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\n                                          7                                MISC. PTN. 70\/2010<\/p>\n
      sole     executrix       to        administer        the         estate           of       the
\n      deceased. The successor of the executrix cannot act<\/p>\n
      along with the executrix.                         He must necessarily act
\n      after her death or after she ceases to act for any<\/p>\n
      reason    by    virtue        of       his    designation            as        successor
\n      executor . Hence only if Bachoobai ceased to act for<\/p>\n
      any reason, a successor executor, as nominated under
\n      the Will, would require to be appointed.                                       Bachoobai
\n      continued as the executrix until she died.\n<\/p>\n
    7. Since     Bachoobai did not cease to act for any reason<\/p>\n
      during    her    lifetime          but       continued       as      the       executrix
\n      until    her    death,    it       is    contended          on      behalf          of     the<\/p>\n
      Respondent that Clause VIII of the Will would not come
\n      into    effect    with        regard         to    the     nomination              of      any<\/p>\n
      successor executor upon the death of                            Bachoobai. It is
\n      contended on behalf of the Petitioner that by virtue of<\/p>\n
      her death she would cease to act and by reason of her
\n      death a successor executor would have to be appointed<\/p>\n
      as per the directions contained in Clause VIII of the
\n      Will.\n<\/p>\n
    8. It would have to be seen whether upon her death also a<\/p>\n
      successor       executor       as        directed         in       the        Will         was
\n      imperatively to be appointed on the premise that she
\n      ceased to act as such executrix by reason of her death.<\/p>\n
\n      Similarly it would have to be seen whether                                  ceasing to\n\n\n\n\n                                                               ::: Downloaded on - 09\/06\/2013 16:41:57 :::<\/span>\n                                         8                               MISC. PTN. 70\/2010\n\n<\/pre>\n
         act   implied a contingency that arose upon a voluntary
\n         act of an individual during her lifetime or also an<\/p>\n
         involuntary      act    such       as    death.    Since       it      is      made       a
\n         contentious      issue,    it       would      then     have        to      be      seen<\/p>\n
         whether, in the facts of this case, that would make any
\n         difference.\n<\/p>\n
    9.     Cease    is defined in Black s Law Dictionary, Eighth
\n         Edition, page 237 as to stop, forfeit, suspend or bring<\/p>\n
         to an end.\n<\/p>\n
         It is defined in Advanced Law Lexicon, Vol.I, page 722
\n         as to put an end to; to put a stop to; to come to an<\/p>\n
         end; to stop doing.\n<\/p>\n
          Cease    to    act     has        not    been    defined.              Cease           is
\n         different from         cease to act .             The above meanings of<\/p>\n
          cease     require a voluntary act; it is specifically
\n         inconsistent with an involuntary act. The expression<\/p>\n
          cease to act         as also       cease to exist , or                     cease to
\n         be , on the other hand, would imply an involuntary act
\n         and would, therefore, include                    death . (Ref : Kishore
\n         Kumar Birla vs. Rajendra Sing Lodha,<\/a> (2008) 4 SCC 300)<\/p>\n
         The term       cease to act             is often used in testamentary
\n         dispositions      along    with          the     expressions              fails         to
\n         qualify, dies, resigns             etc.<\/p>\n
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\n                                    9                                MISC. PTN. 70\/2010<\/p>\n
    10. Stocker and Rikoons on Drawings, Wills and Trusts in<\/p>\n
      the Chapter on Fiduciaries and Administrative Powers
\n      sets out these expressions in paragraph 6:1:3.                                    With<\/p>\n
      regard    to   designation       of    successor          beneficiary,                it
\n      specifically enjoins that in the contingency that an<\/p>\n
      executor    or    trustee    may      refuse   to        act      or      may       not
\n      qualify for some other reason or may seek to resign
\n      after qualification, or may die before closing of the<\/p>\n
      estate or termination of the trust should be considered
\n      and provided for. What would be the situation requiring<\/p>\n
      an application to be made to Court for appointment of
\n      an administrator or a substitute trustee is considered<\/p>\n
      thus :\n<\/p>\n
                  The contingencies that an executor or trustee
\n                 may refuse to act or may not qualify for some<\/p>\n
                 other reason, or may seek to resign, after
\n                 qualification, or may die before the closing
\n                 of the estate or the termination of the trust,
\n                 should be considered and provided for.\n<\/p><\/blockquote>\n
    11. This denotes that contingency of death is different
\n      from the contingency of ceasing to act as trustee.
\n      Whereas    the    executor       or   executrix          in      his        or      her<\/p>\n
      lifetime would discontinue to act or put an end to
\n      their work of administration or to bring an end such
\n      work of administration themselves, the administration
\n      ipso   facto     would   come    to    an   end     upon        their         death,<\/p>\n
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\n                                         10                                    MISC. PTN. 70\/2010<\/p>\n
      premature or otherwise.\n<\/p>\n
    12.     The     expression          cease         to      act           came          up       for
\n      consideration before the Supreme Court of Canada in the<\/p>\n
      case    of    Reginald        Hayes       And     Maude         Edwards            Mayhood,
\n      (1959)      S.C.R.     568.         In    that       case,         certain           mineral<\/p>\n
      rights in the lands of the testator were bequeathed to
\n      the beneficiaries.             This remained in the hands of the
\n      executrix       for        nearly        twenty       years           unadministered<\/p>\n
      because       the    executrix         did      not     act         to       compel          the
\n      concurrence of a dissenting beneficiary to dispose of<\/p>\n
      the    mineral       rights.           Upon       the       contention               of      the
\n      beneficiaries that it should have been vested in them<\/p>\n
      during the period that it remained unapplied because of
\n      the    inaction       on    the   part       of      the     executrix,               it     was<\/p>\n
      argued      that     the    executrix        had      ceased          to      act       as     an
\n      executrix and was merely a bare trustee of the mineral<\/p>\n
      rights on behalf of the beneficiaries.                                The contention
\n      was rejected.              It was held that delayed application<\/p>\n
      made by the executrix was properly made at the time she
\n      applied to Court and she should not be precluded from
\n      making an application on the ground of delay.<\/p>\n
\n\n\n\n\n\n    13. The expression            cease to act for any reason                               in the\n      Will     of    the     testator          should,        therefore,                be       read\n      alongside the expressions                 pre-deceased me                    and       failed\n      to     qualify .       These        are       the       three            eventualities\n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 16:41:57 :::<\/span>\n                                       11                                  MISC. PTN. 70\/2010\n\n<\/pre>\n
      specified in Clause VIII of the Will in which event the
\n      nomination of the successor is made.                              It, therefore,<\/p>\n
      implies a situation when she could not act because she
\n      predeceased the testator and after the death of the<\/p>\n
      testator if she failed to qualify to become executrix
\n      or    if     she     failed          to     act        herself.            In        those<\/p>\n
      eventualities,           the     estate         could         not        have          been
\n      administered because she was, at the relevant time, the
\n      only named executrix.            Consequently, if she had earlier<\/p>\n
      died or if though living, she could not become the
\n      executrix or if after becoming an executrix, she did<\/p>\n
      not act as such for whatever reason, another executor
\n      would      have    had    to    act.       If    she     had       acted         as      the<\/p>\n
      executrix and administered the estate of the testator
\n      no   other    executor         would       have    been        required            to      be<\/p>\n
      appointed. Hence until she died if she had not ceased
\n      to   act    as     executrix         and   had     continued             to      act       as<\/p>\n
      executrix, the nomination of the successor would not
\n      take effect.\n<\/p>\n
    14.    The    Petitioner         has    relied       upon         the       fact         that
\n      citations have been issued in 1970 upon the successor
\n      executors named in the Will.                    Issue of citation showing<\/p>\n
      the names of various partners of Coudert Brothers as
\n      successor executors does not show that they or any of
\n      them were to act as executors along with Bachoobai. The
\n      very expression           successor executor , referred to by<\/p>\n
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\n                                          12                                 MISC. PTN. 70\/2010<\/p>\n
    Dr. Singhvi on behalf of the Petitioner, shows that he
\n    would succeed Bachoobai as executor of the estate of<\/p>\n
    the testator. The citation is a notice issued by the
\n    Court    upon       the    person          concerned         interested             in      the<\/p>\n
    estate of the deceased testator to invite or inform the
\n    beneficiaries or the executors about a bequest made<\/p>\n
    under the Will or the authority or power granted under
\n    the     Will    to    act       as        per    the     directions             contained
\n    therein. If a beneficiary is granted a legacy, which<\/p>\n
    would take effect upon a contingency or after a period
\n    of time, all that the citation would do is to inform<\/p>\n
    him of such bequest. Similarly if the executor has to
\n    act as such upon a contingency or after a period of<\/p>\n
    time, he would be informed of the directions in the
\n    Will     to    that       end.            Neither      the     bequest            nor       the<\/p>\n
    executorship would come into effect so soon as the
\n    citation       is     served.               Service          of     the         citation,<\/p>\n
    therefore,      does       not       show       that    any       one     or      some        of
\n    persons mentioned therein became executors.                                     Similarly<\/p>\n
    if the citation is served upon the two charities named
\n    in the Will, who are the ultimate beneficiaries of the
\n    trust fund of the entire real property of the deceased
\n    in India, they would only know that after the death of<\/p>\n
    Bachoobai,      who       had    life           interest,         their       beneficial
\n    interest would be effectuated.                         Service of the citation
\n    cannot accelerate such interest.\n<\/p>\n
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                                         13                              MISC. PTN. 70\/2010\n\n\n\n    15.It   is    contended        by   Dr.Singhvi         that      the       expression\n\n\n\n\n                                                                                   \n       ceased to act for any reason                  would include ceasing to\n      act by death.         The term         successor implies the executor\n\n\n\n\n                                                           \n      succeeding her.            In every case of an executor dying, an\n<\/pre>\n
      administrator or executor would have to be appointed by<\/p>\n
      the Court.           The provision for a successor executor
\n      would      require     a    Court      to    appoint       the       executor            so
\n      designated or nominated by the deceased himself.                                         To<\/p>\n
      that extent, of course, a successor executor would have
\n      to be appointed if the estate remained unadministered.\n<\/p>\n
    16. The property of the deceased in India bequeathed<\/p>\n
      under Clause IV of the Will, by which                       Bachoobai was to
\n      enjoy the benefit for her lifetime and after which it<\/p>\n
      would vest in the U.S. Charities, would have to be
\n      administered during the lifetime of                       Bachoobai as well<\/p>\n
      as thereafter.         Upon her death,             Bachoobai would cease
\n      to    be   the   executrix         but      upon   her     death,          the       U.S.\n<\/p>\n
      Charities would become the beneficiaries under the Will
\n      and the estate of the deceased would be required to be
\n      administered for vesting them in the U.S. Charities.
\n      Consequently, by way of necessity of administration of<\/p>\n
      the     estate    of       the     deceased        after       the        death          of
\n      Bachoobai, having a life interest in the properties of
\n      the   deceased,       an     executor        would    be     required            to      be
\n      appointed.       Clause VIII of the Will sets out who such<\/p>\n
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\n                                     14                                MISC. PTN. 70\/2010<\/p>\n
      executor    would     be   and      how     such     executor            would         be
\n      appointed.\n<\/p>\n
    17.   The   aforesaid    Will        was    probated      by      the      New       York<\/p>\n
      County Court on 2nd April 1970. A notice came to be
\n      issued by the New York County Court inter alia to the<\/p>\n
      beneficiaries       mentioned            under   the       Will,           trustees
\n      nominated under the Will and the successor executors
\n      mentioned in Clause VIII of the Will.                         This successor<\/p>\n
      executor was to be a partner of the Firm of Coudert
\n      Brothers to be designated by any of the three partners<\/p>\n
      of the firm at the relevant time.                    Hence citation was
\n      served upon all the partners of the firm also.\n<\/p>\n
    18.Since a large part of the real and personal property<\/p>\n
      of the deceased was in India and provision was made in
\n      respect of the administration of those properties in<\/p>\n
      Clause IV of the Will,               Bachoobai, as the executrix,
\n      was required to, authorised to and did execute a Power<\/p>\n
      of Attorney for enabling Letters of Administration to
\n      be granted for the properties of the deceased within
\n      India to her as an absent executor for her use and
\n      benefit    until    she    obtained          probate         or      Letters           of<\/p>\n
      Administration herself.\n<\/p>\n
    19. The Power of Attorney of                  Bachoobai dated 16th June
\n      1970 sought to appoint one of the trustees mentioned in<\/p>\n
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\n                                    15                               MISC. PTN. 70\/2010<\/p>\n
      the Will itself, one Jehangir B. Dubash (Dubash), to
\n      act in her name and on her behalf to obtain Letters of<\/p>\n
      Administration with the copy of the Will annexed from
\n      the competent Court in India and to realise all monies,<\/p>\n
      estate,    properties       and     effects        belonging              to       the
\n      deceased upon obtaining such Letters of Administration.\n<\/p>\n
      Pursuant to the Power of Attorney, the said Dubash
\n      applied    for   being    granted    Letters         of     Administration
\n      with the Will annexed of the deceased under Petition<\/p>\n
      No.671 of 1971 on 27th August 1970 in the Testamentary
\n      and   Intestate     Jurisdiction
\n                             ig              of    this      Court.          The       said
\n      application was made under Section 241 of the Indian
\n      Succession Act, 1925 (the IS Act) for grant of Letters<\/p>\n
      of Administration for the use and benefit of                           Bachoobai
\n      limited    until    she     obtained    probate           or       Letters           of<\/p>\n
      Administration herself.\n<\/p>\n
    20. The said Dubash was issued Letters of Administration
\n      with the Will of the deceased annexed thereto on 12th<\/p>\n
      November 1971 as the Constituted Attorney of Bachoobai,
\n      the sole executrix named in the Will for her use and
\n      benefit as such executrix limited as aforesaid upon the
\n      undertaking of the said Dubash to administer the same<\/p>\n
      and to make the full and true inventory of the property
\n      and credits of the deceased within six months thereof
\n      and   to   render    true    account        to   this        Court         in      its
\n      Testamentary and Intestate Jurisdiction.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:41:57 :::<\/span><\/p>\n
                                    16                             MISC. PTN. 70\/2010<\/p>\n
    21. Soon thereafter on 1st December 1972, the said Dubash<\/p>\n
      expressed his willingness to retire and to be relieved
\n      of the administratorship of the estate of the deceased.\n<\/p>\n
      Bachoobai executed another Power of Attorney in favour
\n      of the Respondent. Bachoobai nominated, constituted and<\/p>\n
      appointed the Respondent to apply for discharge of the
\n      said Dubash as the executor and legal representative in
\n      his favour as the successor of the said Dubash to the<\/p>\n
      properties and credits of the deceased remaining to be
\n      administered and also to apply for and obtain an order<\/p>\n
      vesting in him the properties and credits which had
\n      vested in Dubash as the administrator of the estate of<\/p>\n
      the deceased in India. This was apparently done by
\n      Bachoobai     under    the    power     granted       to      her        by      the<\/p>\n
      aforesaid Clause IX of the Will, which power was not
\n      exercised by her in the appointment of Dubash earlier.\n<\/p>\n
    22. Miscellaneous Petition No.29 of 1972 came to be filed<\/p>\n
      on   20th   December   1972       by   the    said     Dubash          and       the
\n      Respondent.     Under a Judge s Order signed by the then
\n      Testamentary Judge of this Court on 21st December 1972,
\n      the said Dubash was discharged as Administrator of the<\/p>\n
      estate of the deceased and the Respondent was appointed
\n      as Administrator of the estate of the deceased in the
\n      place   and    stead    of    the      said   Dubash.          Further           the
\n      property and the estate of the deceased mentioned in<\/p>\n
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\n                                     17                              MISC. PTN. 70\/2010<\/p>\n
      the    schedule       to    the     grant       of    the         Letters            of
\n      Administration dated 12th November 1971 was by the said<\/p>\n
      Judge s     Order          vested     in        the       Respondent                 as
\n      Administrator.        Whereas the Petition appointing Dubash<\/p>\n
      was filed under Section 241 of the IS Act, the Petition
\n      appointing the Respondent was filed under Section 301<\/p>\n
      of the IS Act. It is contended by Mr.Nariman on behalf
\n      of the Respondent that he has not been appointed under
\n      Section 241 of the IS Act, but he has been appointed<\/p>\n
      under Section 301. The order of discharge of the said
\n      Dubash    and   the    appointment
\n                              ig                 of   the     Respondent               was,
\n      therefore, passed under Section 301 of the IS Act.                                 The
\n      properties of the deceased came to be vested in the<\/p>\n
      Respondent as such Administrator.\n<\/p>\n
    23. Sections 241 and 301 of the IS Act run thus:\n<\/p>\n
             241.   Administration,   with  will  annexed,   to
\n            attorney of absent executor.-When any executor is
\n            absent from the State in which application is<\/p>\n
            made, and there is no executor within the State
\n            willing to act, letters of administration, with
\n            the will annexed, may be granted to the attorney
\n            or agent of the absent executor, for the use and
\n            benefit of his principal, limited until he shall<\/p>\n
            obtain   probate   or   letters  of  administration
\n            granted to himself.\n<\/p><\/blockquote>\n
             301. Removal of executor or administrator and
\n            provision for successor.-The High Court may , on
\n            application made to it, suspend, remove or
\n            discharge any private executor or administrator<\/p>\n
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\n                                          18                                   MISC. PTN. 70\/2010<\/p>\n
            and provide for the succession of another person
\n            to   the   office   of   any such  executor   or
\n            administrator who may cease to hold office, and<\/p>\n
            the vesting in such successor of any property
\n            belonging to the estate.\n<\/p><\/blockquote>\n
    24. Whereas Section 241 of the IS Act grants limited
\n      Letters of Administration to the attorney or agent of<\/p>\n
      an absent executor, Section 301 removes an executor or
\n      administrator           already         appointed           and         provides             for
\n      his\/her successor. Consequently, there is no vesting of<\/p>\n
      any   property        in     the        administrator             appointed              under
\n      Section    241     of      the
\n                                  ig    IS     Act       under     the        limited          grant
\n      granted    by      the     Court.            The    property            vests        in      the
\n      successor executor appointed by the Court upon removal<\/p>\n
      of an executor already appointed under a Will or by the
\n      Court.\n<\/p>\n
    25.   Section     301      contemplates              removal         of      an      executor<\/p>\n
      appointed by the Court but not an administrator of an
\n      absent executor appointed by the Court.                                   Section 301,<\/p>\n
      therefore,       contemplates            a     case    for         removal           of      the
\n      executor      to    be     made     out        so    that        the       Court         would
\n      suspend,      remove        or      discharge              such         executor             and
\n      thereupon     appoint        a      successor          vesting              in     him       the<\/p>\n
      property.       Section 301, therefore, presupposes that the
\n      property of the deceased had vested in the previous
\n      executor who was removed by an order of the Court under
\n      that section.            If the property had not vested in the<\/p>\n
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\n                                     19                             MISC. PTN. 70\/2010<\/p>\n
      earlier executor, none could be vested in the successor
\n      executor     simpliciter.           If   only   limited             Letters         of<\/p>\n
      Administration were granted to an attorney of an absent
\n      executor, there would be no vesting of the property of<\/p>\n
      the deceased in him. The grant being limited per se
\n      until    the   executor    obtained        probate        or        Letters         of<\/p>\n
      Administration himself or herself, no property could
\n      vest in such attorney.             A reading of the section makes
\n      it clear by the absence of the term                   executor             in the<\/p>\n
      attorney or the agent who is given the limited grant
\n      whilst   the    executorig    remains     absent      from          the     state.
\n      Similarly      the   executor       sought   to     be      removed           under
\n      Section 301 is not, and at least necessarily not, an<\/p>\n
      executor appointed under Section 241 of the IS Act,
\n      though an executor appointed under Section 241 of the<\/p>\n
      IS Act may also be removed in a given case.                             Assuming
\n      that such an executor is removed and another one is<\/p>\n
      appointed as a successor, he would necessarily be a
\n      successor executor under Section 241 of the IS Act.\n<\/p>\n
      He   would     not   obtain    higher     rights        as      a     permanent
\n      executor under Section 301 of the IS Act, except if he
\n      is sought to be so appointed by the executor named in
\n      the Will, who had the power to administer the estate of<\/p>\n
      the testator irrespective of any legal restrictions as
\n      did Bachoobai under Clause IX of the Will.<\/p>\n
\n\n\n    26. The Power of Attorney executed by                Bachoobai dated 1st\n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 16:41:57 :::<\/span>\n                                      20                                MISC. PTN. 70\/2010\n\n      December    1972,        however,        sought         to        appoint             the\n<\/pre>\n
      Respondent as succecssor of the said Dubash and also to<\/p>\n
      apply for vesting in him the property which was earlier
\n      vested in the said Dubash.              Under the Power of Attorney<\/p>\n
      executed by      Bachoobai in favour of the said Dubash, no
\n      property of the deceased had vested in him.                                The said<\/p>\n
      Dubash was to only apply and obtain limited Letters of
\n      Administration      and        thereafter          realise           the        money,
\n      estate,    property      and        effects    of     the       deceased.             The<\/p>\n
      Letters    of    Administration         obtained          by      the       deceased
\n      Dubash dated 12th November 1971 were also limited until<\/p>\n
      Bachoobai obtained probate of the said Will and under
\n      that    grant,   the     said       Dubash    was     to      administer              the<\/p>\n
      estate of the deceased, make full inventory of the
\n      property and credit and render an account thereof. The<\/p>\n
      Letters of Administration were not separately granted
\n      to the Respondent.         Instead in the Petition taken out<\/p>\n
      by the said Dubash and the Respondent, the Respondent
\n      was    appointed   administrator             and    was     vested          as      such<\/p>\n
      administrator      the    properties          of    the       estate          of      the
\n      deceased in India.\n<\/p>\n
    27. The two Powers of Attorney are distinctly different.\n<\/p>\n
      These powers are granted upon the power she was herself
\n      given under Clause IX of the Will. Consequently, the
\n      two orders of the Court dated 12th November 1971 in
\n      Miscellaneous      Petition          No.671    o    1976        in      favour          of<\/p>\n
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\n                                      21                                 MISC. PTN. 70\/2010<\/p>\n
      Dubash    and    the     order       dated    21st       December            1972        in
\n      Miscellaneous Petition No.29 of 1972 in favour of the<\/p>\n
      Respondent       are    also     different         and      under          different
\n      provisions       of     the    law       relating          to        testamentary<\/p>\n
      succession contained in Sections 241 and 301 of the IS
\n      Act.\n<\/p>\n
    28. The order of this Court dated 21st December 1972 has
\n      not been challenged.                The Petitioner as well as the<\/p>\n
      Respondent have acted pursuant to the said order. That
\n      was the grant which has not been sought to be revoked.\n<\/p>\n
    29. Certain properties of the deceased came to be agreed<\/p>\n
      to be developed by the Petitioner as the project co-
\n      ordinator of the said properties under an Agreement<\/p>\n
      dated    2nd   January    1995       executed      by      and       between           the
\n      Petitioner and the Respondent. The parties relied upon<\/p>\n
      and    recited    about       the    Will,     the       administration                  by
\n      Bachoobai       under    the     Will,       the   appointment                 by      her<\/p>\n
      initially of the said Dubash and later the Respondent
\n      upon the powers conferred on her under Clause XI of the
\n      said Will, her interest and legal rights thereunder in
\n      various recitals, more specially recitals a, b, c, g,<\/p>\n
      h, i, j, w and y which run thus:\n<\/p>\n
                (a) One Eduljee Framroze Dinshaw (son of the
\n               late F.E. Dinshaw, being one of the two children
\n               of the said F.E. Dinshaw, the other child being<\/p>\n
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\n                     22                        MISC. PTN. 70\/2010<\/p>\n
     Mrs.Bachoobai Woronzaw Dashkow) was in his own
\n     right entitled to a vast estate partly located
\n     in India and partly located abroad.\n<\/p><\/blockquote>\n
     (b)   The    said   Eduljee    Framroze  Dinshaw<\/p>\n
     (hereinafter referred to as the said deceased )
\n     died in New York on 14th March 1970 leaving his
\n     last Will and Testament dated 4th February, 1970
\n     under which he appointed his sister, the said<\/p>\n
     Bachoobai, as the sole Executrix of the said
\n     Will and of his entire estate.\n<\/p>\n
     (c)Under his said Will, the said deceased
\n     empowered and authorised his sister, the said<\/p>\n
     Bachoobai (as such Executrix) to sell or
\n     otherwise alienate, dispose off or deal with his<\/p>\n
     entire estate and she was to be the sole life-
\n     beneficiary of the estate of the said deceased
\n     and on and after her death, the residuary estate<\/p>\n
     of the said deceased to be held in trust, by the
\n     Trustees named in the said Will, for the objects
\n     as specified in the said Will but subject to the
\n     directions that may be given by the said<\/p>\n
     Bachoobai during her lifetime.\n<\/p>\n
     (g) One Jehangir Behram Dubash (hereinafter
\n     referred to as      the said Dubash ) at the
\n     instance and by the direction of the said
\n     Bachoobai, (being the sole Executrix under the<\/p>\n
     Will and of the estate of her said deceased
\n     brother, the said Eduljee) applied to the Bombay
\n     High Court and obtained grant of Letters of
\n     Administration (with exemplification of Probate
\n     of Will annexed thereto of the estate of the<\/p>\n
     said deceased Edulji F. Dinshaw, in India) by
\n     and under such Letters of Administration dated
\n     12th November 1971.\n<\/p>\n
     (h) By Judge s Order dated 21st December 1972
\n     passed in Misc. Petition No.29 of 1972, the
\n     Bombay High Court, in its Testamentary and<\/p>\n
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\n                     23                         MISC. PTN. 70\/2010<\/p>\n
     Intestate jurisdiction, appointed the Owner [the
\n     Respondent   herein  was   described   as   such]
\n     abovenamed as such Administrator of the estate<\/p>\n
     in India of the said deceased Eduljee in place
\n     and stead of the said Jehangir Behram Dubash.\n<\/p>\n
     This Order was passed and the Owner became such
\n     Administrator   at  the   request  and   by   the
\n     direction of the said Bachoobai (being the sole
\n     executrix of the Will and of the estate and<\/p>\n
     effects of the said deceased Eduljee and being
\n     the sole life beneficiary of such estate).\n<\/p>\n
     (i) In these circumstances the Owner has ever
\n     since the date of the said Judge s Order, that<\/p>\n
     is, ever since 21st December 1972 functioned as
\n     the sole Administrator of the estate in India of<\/p>\n
     the said deceased Eduljee.\n<\/p>\n
     (j) In the year 1984-85 the above named Nusli N.\n<\/p>\n
     Wadia and three others (hereinafter referred to
\n     as the said Trustees ) were and even now are
\n     functioning as the Trustees of the public
\n     charitable trust named      F.E. Dinshaw Trust<\/p>\n
     which was so created by the said Bachoobai by
\n     and under the said Deed of Trust dated 28th<\/p>\n
     December 1973 and which said Trustees owned and
\n     held, on such trust, as undivided half share
\n     right, title and interest interalia in the said
\n     lands which had belonged to the said F.E.\n<\/p>\n
     Dinshaw and which had formed part of his estate
\n     and in which one half share had belonged to the
\n     said deceased Eduljee having been so transferred
\n     to the joint names of the said Bachoobai and the
\n     said Eduljee by and under the said Deed of<\/p>\n
     Transfer dated 18th December 1969.\n<\/p>\n
     (w) In the altered situation and conditions
\n     prevailing in Bombay, and with a view to improve
\n     the investment potential of the estate of the
\n     said deceased Eduljee so held by the Owner
\n     (including with a view to avoid the possibility<\/p>\n
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\n                                 24                              MISC. PTN. 70\/2010<\/p>\n
             of further encroachment on the said lands
\n             described in the First, the Second and the Third
\n             Schedules hereunder written and also litigation<\/p>\n
             in respect thereof), with the consent and
\n             concurrence and by the direction of the said<\/p>\n
             Bachoobai (which is given by her in writing
\n             signed by her), the Owner desires that the said
\n             lands described in the First, Second and Third
\n             Schedules hereunder written be developed by an<\/p>\n
             experienced   and   capable   party   and   such
\n             development by such party would be on its own
\n             account and at its own risk, since the Owner
\n             does not have either the expertise or the infra-
\n             structure to carry out such development.\n<\/p>\n
             (y) This Agreement sets out the terms and<\/p>\n
             conditions of such development so mutually
\n             agreed upon by and between the Company and the
\n             Owner (with the consent and concurrence of the<\/p>\n
             said Bachoobai as aforesaid).\n<\/p>\n
                         (Underlining and box bracket supplied)<\/p>\n
     Further, it appears from a reading of Recital (d) of<\/p>\n
    the Agreement that the estate of the deceased comprised
\n    his   undivided     half    share   in   the     lands         at      villages
\n    Kanheri, Goregaon, Malad, Borivali, etc. and the other<\/p>\n
    undivided half share belonged to           Bachoobai who was his
\n    sister.      They    both    had    inherited       their          respective
\n    shares    from    their     deceased     father         and       which          was<\/p>\n
    transferred to them under a Deed of Transfer dated 28th
\n    September 1969 pursuant to their father s Will dated
\n    23rd July 1934.\n<\/p>\n
      It appears from a reading of Recital (e) to the said<\/p>\n
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\n                                       25                              MISC. PTN. 70\/2010<\/p>\n
      Agreement      that       Bachoobai        had    created        a     registered
\n      Trust dated 28th December 1973 for her undivided half<\/p>\n
      share in the lands inherited and transferred to her.
\n      The other undivided half share was the estate of the<\/p>\n
      deceased      in    respect        of     which    the      Respondent               was
\n      appointed administrator and vested those properties and<\/p>\n
      which    he    sought      to   have      developed        under         the       said
\n      Agreement      dated      2nd   January     1995     executed            with        the
\n      Petitioner.\n<\/p>\n
           Recital (j) to the said Agreement shows that the<\/p>\n
      Respondent functioned as one of the trustees of the
\n      Trust created by            Bachoobai under the Deed of Trust<\/p>\n
      dated 28th December 1973.\n<\/p>\n
           Recital (l) to the said Agreement shows that the
\n      aforesaid lands came to be partitioned under an Award<\/p>\n
      dated 25th October 1985 of Justice Hidayatullah as the
\n      Sole Arbitrator so that the estate of the deceased<\/p>\n
      formed a half portion and the other properties were the
\n      part    of    the     Trust     created      by       Bachoobai              of      the
\n      properties which devolved upon her from her father and
\n      transferred to her as aforesaid.<\/p>\n
\n\n\n\n\n\n    30.    Hence    the   parties     took      Bachoobai       to      be     the       sole\n      executrix      of   the     Will     of    the    deceased           and     of      his\n          entire estate .       The parties took Bachoobai to be the\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 16:41:57 :::<\/span>\n                                      26                                  MISC. PTN. 70\/2010\n\n    sole life         beneficiary of the estate as well as the\n<\/pre>\n
    residuary legatee of the estate of the deceased to be<\/p>\n
    held in trust by the trustees mentioned in the Will for
\n    the objects specified in the Will but subject to her<\/p>\n
    directions during her lifetime.                       The parties were aware
\n    of   the     contents     of     the      Will    and     powers          granted           to<\/p>\n
    Bachoobai thereunder. The parties accepted the Will.
\n    The parties interpreted it as to describe                               Bachoobai as
\n    the sole executrix thereunder.                          Bachoobai was indeed<\/p>\n
    the only named executrix under the Will during her
\n    lifetime. She never ceased to act as such executrix<\/p>\n
    during her lifetime. Bachoobai was granted, as such
\n    executrix, full power and authority to retain, manage<\/p>\n
    and administer the estate of the deceased as freely as
\n    he would have done if he was living under Clause IX of<\/p>\n
    the Will. She was specifically empowered with respect
\n    to     the     principal        as    well       as     the      income           of      the<\/p>\n
    properties of the Will of the deceased to inter alia
\n     diversify       the    real estate          or other form of property<\/p>\n
    under sub-clause (a) thereof and also to sell or lease
\n    any property or interest or the estate of the deceased
\n    under sub-clauses (b) and (c) thereof and to execute
\n    such instruments as would be necessary or advisable.\n<\/p>\n
    This     was     sought     to       be    done       under        the        aforesaid
\n    Agreement       dated     2nd    January         1995     by      the       Respondent
\n    describing himself as the owner upon the property of
\n    the deceased having been vested in him pursuant to the<\/p>\n
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\n                                      27                              MISC. PTN. 70\/2010<\/p>\n
      order dated 21st December 1972. This was accepted by
\n      the Petitioner who accepted the said Will and entered<\/p>\n
      into the said Agreement.                 The Respondent functioned as
\n      the sole administrator of the estate of the deceased in<\/p>\n
      India as per the order dated 21st December 1972 which
\n      came to be incorporated in Recital (i) of the said<\/p>\n
      Agreement.\n<\/p>\n
    31. The Petitioner thus obtained specific knowledge about<\/p>\n
      the execution of the aforesaid Powers of Attorney of
\n      Bachoobai and the aforesaid orders of this Court in its<\/p>\n
      testamentary         jurisdiction.                Consequently,                     the
\n      Respondent, described as the owner therein, was the<\/p>\n
      sole administrator of the estate of the deceased since
\n      21st December 1972 and functioned as such known to and<\/p>\n
      accepted by the Petitioner.\n<\/p>\n
    32. Hence with the consent and concurrence of Bachoobai,
\n      exercising her powers under Clause IX of the Will, the<\/p>\n
      Respondent,      described          as     the   owner        in       the        said
\n      Agreement, desired to have the lands developed by the
\n      Petitioner.    Bachoobai            has,    in   fact,       confirmed              the
\n      contents of the agreement and declared that it was<\/p>\n
      entered   into      by   the        Respondent     with        her        consent,
\n      concurrence and as per her directions and that it would
\n      be   binding   on    the   estate          of    the    deceased.                 This
\n      declaration has been got made in the U.S.A. where she<\/p>\n
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\n                                  28                            MISC. PTN. 70\/2010<\/p>\n
      resided and has been endorsed and identified by the
\n      relevant authority in the State of Florida, U.S.A.\n<\/p>\n
    33. Under the said Agreement, the Respondent was to lease<\/p>\n
      the immovable property belonging to the testator to the
\n      Petitioner for five years commencing from 12th January<\/p>\n
      1995 in consideration of receiving 12% of the gross
\n      receipts and realisations (proceeds) from the property
\n      under   Clause    12(a)    of   the   Agreement         subject           to      a<\/p>\n
      minimum guarantee of Rs.75 Lakhs under Clause 12A of
\n      the Agreement.      The development of the property by the<\/p>\n
      Petitioner was to be in control of the members of the
\n      Raheja family under Clause 12B of the Agreement.                              The<\/p>\n
      12% share of the Respondent was to be paid into his
\n      designated   Bank    Account     under   Clause         16(e)         of      the<\/p>\n
      Agreement. Under Clause 18(b) of the Agreement, the
\n      Petitioner declared and confirmed, that it had made all<\/p>\n
      inquiries    on   its     own   and   had    entered           into         that
\n      Agreement after familiarising itself in all respects<\/p>\n
      factually that the status of the lands in the Agreement
\n      devolved upon the Respondent.\n<\/p>\n
    34. The Petitioner, therefore, had knowledge and must be<\/p>\n
      taken to have had knowledge of the entire aforesaid
\n      chronology of events that transpired since the death of
\n      the deceased.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:41:57 :::<\/span><\/p>\n
                                          29                                MISC. PTN. 70\/2010<\/p>\n
    35. The Respondent also executed a Power of Attorney in<\/p>\n
      favour of the Petitioner empowering him to develop the
\n      property and carry out acts and deeds incidental to<\/p>\n
      such development.\n<\/p>\n
    36. The parties have fallen out.                      The Agreement and the
\n      Power     of     Attorney          have      been       terminated               by       the
\n      Respondent.          A suit in that behalf has been filed on<\/p>\n
      13th   May     2008       being    O.O.C.J.       Suit      No.1628           of       2008.
\n      Certain order of injunction has been obtained by the<\/p>\n
      Respondent on 17th June 2010 from this Court in its
\n      Ordinary       Original       Civil        Jurisdiction            in       Notice          of<\/p>\n
      Motion No.1863 of 2008 in Suit No.1628 of 2008.                                           The
\n      said     order    is       challenged        in     Appeal         filed          by      the<\/p>\n
      Petitioner.\n<\/p>\n
    37. This Petition has been filed on 11th June 2010. The
\n      Petition seeks to revoke, not the initial grant, but an<\/p>\n
      order     dated       20th        November       2003      obtained              by       the
\n      Respondent authorising and permitting him to continue
\n      as the administrator of the estate of the deceased upon
\n      the death of              Bachoobai.            Bachoobai expired on 12 th<\/p>\n
      August       2003.         About        three     months       thereafter,                the
\n      aforesaid order was obtained by the Respondent from
\n      this     Court       in     its     testamentary           jurisdiction.                  The
\n      Respondent was the administrator of the estate of the<\/p>\n
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\n                                    30                              MISC. PTN. 70\/2010<\/p>\n
      deceased appointed under the order dated 21st December
\n      1972.     He was appointed administrator of the property<\/p>\n
      and credits of the deceased as successor of the said
\n      Dubash for the property and credits remaining to be<\/p>\n
      realised and administered and also for vesting in him
\n      the said property.          The order of his appointment does<\/p>\n
      not mention an application made under Section 241 of
\n      the IS Act but under Section 301 of the IS Act.\n<\/p>\n
    38.   It   is   contended     by     Dr.Singhvi     on      behalf          of      the
\n      Petitioner that it matters not under what provision of<\/p>\n
      law the application was made; the Court has to see the
\n      substance     of    the    right     of   the    Applicant              and       the<\/p>\n
      application        made.    The      Respondent          could          act         as
\n      administrator essentially and only under Section 241 of<\/p>\n
      the IS Act.         He was appointed administrator in the
\n      place and stead of the said Dubash, who was appointed<\/p>\n
      administrator under the limited grant issued by this
\n      Court. Under such limited grant, the said Dubash and<\/p>\n
      later the Respondent as the attorney of                    Bachoobai, the
\n      executrix under the Will, were to administer the estate
\n      of the deceased. Consequently, they administered the
\n      estate    under     the    Power    of    Attorney        issued          by      the<\/p>\n
      Bachoobai and the authority as administrator came to an
\n      end when      Bachoobai died because the Power of Attorney
\n      came to be terminated on her death under Section 201 of
\n      the Indian Contract Act.\n<\/p>\n
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                                        31                                 MISC. PTN. 70\/2010<\/p>\n
    39. Neither the said Dubash nor the Respondent acted<\/p>\n
      under the Power of Attorney of Bachoobai simpliciter.
\n      Pursuant     to     the    power       granted       by       Bachoobai,              they<\/p>\n
      obtained the order of the Court. Those orders of the
\n      Court were under Sections 241 and 301 of the IS Act,<\/p>\n
      respectively. It is true that the Respondent stepped
\n      into shoes of the said Dubash and the said Dubash was
\n      appointed        under     Section      241    of     the      IS     Act.            That<\/p>\n
      appointment was as an attorney or agent of                                  Bachoobai
\n      but   not        under     the
\n                                  ig   Power        of     Attorney          granted            by
\n      Bachoobai         alone.         The    said          Bachoobai              and        the
\n      Respondent could have been appointed attorney or agent<\/p>\n
      of    Bachoobai           even   without       the        Power       of      Attorney
\n      executed     by      Bachoobai.           They       could       have       been        the<\/p>\n
      agents      of       Bachoobai,         the        absent      executrix.               The
\n      execution of a Power of Attorney is merely a mode of<\/p>\n
      appointment        generally          made.    Their         appointment                is,
\n      therefore, by an order of the Court and not only upon<\/p>\n
      execution of the Power of Attorney. The order of the
\n      Court under Section 241 of the IS Act would come to an
\n      end   for    the     limited       grant      granted        thereunder               when
\n      probate would be obtained by the absent executrix.                                        If<\/p>\n
      the probate is not obtained by the absent executrix,
\n      the grant would not come to an end.\n<\/p>\n
    40. The Petitioner knew the status of the Respondent in<\/p>\n
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\n                                         32                                 MISC. PTN. 70\/2010<\/p>\n
      the   lands    under       the     agreement          entered         into        by      the
\n      Petitioner.      The       Petitioner            knew     of       the        aforesaid<\/p>\n
      chronology of events recited in the agreement.                                            The
\n      Petitioner also knew of the execution of the Will and<\/p>\n
      the distinct orders obtained by the two Administrators.
\n      Hence   the     contention             of   the       Petitioner             that         the<\/p>\n
      Respondent     acted       as     a     mere     Constituted            Attorney            of
\n      Bachoobai,      who    had        confirmed        the        contents            of      the
\n      agreement and with whose consent and concurrence and<\/p>\n
      under whose directions the agreement was entered into,
\n      cannot be accepted.\n<\/p>\n
    41. The Petitioner, as a prudent developer and litigator,<\/p>\n
      must be taken to have kept note of the lifetime of
\n      Bachoobai.      Bachoobai expired on 12th August 2003.                                      If<\/p>\n
      the   authority       of    the        Respondent        as     her       Constituted
\n      Attorney      came    to     an       end   on    12th      August          2003,         the<\/p>\n
      Petitioner      was        required         to    have        called           off        the
\n      agreement soon thereafter. The Petitioner continued the<\/p>\n
      development through the years.                     It is the case of the
\n      Petitioner that some 2000 flats have been constructed
\n      in 33 buildings and the development is continuing.                                          In
\n      fact,    the     Petitioner              strenuously              contested               the<\/p>\n
      Respondent s         suit        seeking         to      injunct            him         from
\n      developing     the     properties           under       the     agreement              which
\n      formed a part of the estate of the deceased in the suit
\n      filed by the Respondent in 2008 and in the Interim<\/p>\n
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\n                                       33                               MISC. PTN. 70\/2010<\/p>\n
      Application prosecuted by the Respondent in 2010.\n<\/p>\n
    42. It may further be stated that the Petitioner has also
\n      sought    to    develop       the    property     under         the       aforesaid<\/p>\n
      Agreement dated 2nd January 1995 coupled with the Power
\n      of Attorney executed by the Respondent in his favour.\n<\/p>\n
      If the power of the Respondent ceased, it need hardly
\n      be stated that the power of the Petitioner also ceased
\n      at the same time.\n<\/p>\n
    43. The order challenged in this Petition is the order<\/p>\n
      obtained       by    the    Respondent     from      this       Court         in      its
\n      testamentary jurisdiction permitting him to continue as<\/p>\n
      the administrator of the estate of the deceased after
\n      the    death    of         Bachoobai    and   not     the       initial           grant<\/p>\n
      itself.      Assuming that the authority of the Respondent
\n      came    to   an      end,    the     Respondent     sought          to      have        it<\/p>\n
      continued by an order of the Court in a Petition filed
\n      by him which came to be granted on 20th November 2003.\n<\/p>\n
      The order enured for the benefit of the Petitioner and
\n      the Respondent alike. The order allowing the Respondent
\n      to    continue       as    administrator,        impliedly          allowed           the
\n      Petitioner          to    continue    as   the    project           co-ordinator<\/p>\n
      under the Development Agreement dated 2nd January 1995.\n<\/p>\n
    44. It is intriguing to note the timing of the Petition.
\n      This Petition has been filed six and half years after<\/p>\n
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\n                                          34                                MISC. PTN. 70\/2010<\/p>\n
      the    order     was       obtained       and    soon     after         the       interim
\n      application in the suit of the Respondent was passed.\n<\/p>\n
    45. It is contended by the Respondent that the Petitioner<\/p>\n
      knew of the order being passed, acted in unison with
\n      the Respondent and was privy thereto since the order<\/p>\n
      was passed by way of abundant caution to continue the
\n      legal title and right which the Respondent had as an
\n      executor of the estate of the testator under the order<\/p>\n
      dated    21st     December         1972     in    the        interest             of      the
\n      Petitioner itself.           ig  It is contended on behalf of the
\n      Petitioner that the Petitioner only came to know of the
\n      said order being obtained by the Respondent when a<\/p>\n
      statement to that effect was made for the first time in
\n      the Affidavit of the Respondent in Sur-Sur-Rejoinder<\/p>\n
      filed    in     the    Interim          Application        taken         out      by      the
\n      Respondent in the suit filed by him, terminating the<\/p>\n
      Agreement and the Power of Attorney.\n<\/p>\n
    46.     Paragraph       5     of     the     said    Affidavit               shows          the
\n      continuance           of     the        Respondent          as        administrator
\n      notwithstanding the death of                     Bachoobai and paragraphs
\n      6 and 7 of the said Affidavit show the filing of the<\/p>\n
      Miscellaneous Petition, the contents of the Petition
\n      and the order obtained therein.                    Petition No.41 of 2003
\n      filed by the Petitioner shows the recitation of the
\n      devolution       of        the   estate     of     the       testator             and       of<\/p>\n
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\n                                 35                           MISC. PTN. 70\/2010<\/p>\n
      Bachoobai,    the     development   of    the      estate           of      the
\n      testator, the beneficial interest of U.S. Charities and<\/p>\n
      the effect of the legacy to such charities determined
\n      and adjudicated by this Court in an originating summons<\/p>\n
      in   its   original    jurisdiction,     the    execution             of      an
\n      Indenture by    Bachoobai on 26th September 2001 and the<\/p>\n
      death of     Bachoobai, all of which shall be considered
\n      presently.     The     Respondent    contended            that           since
\n      Bachoobai was the sole executrix under the Will of the<\/p>\n
      deceased of which probate was granted by the New York
\n      County Court in the U.S.A., the Petitioner was advised<\/p>\n
      to obtain order permitting him to continue with the
\n      administration of the estate of the deceased.\n<\/p>\n
    47. The Affidavit-in-sur-sur-rejoinder came to be filed<\/p>\n
      by the Respondent on 26th April 2010.                The Petitioner
\n      claims to have applied for and obtained inspection of<\/p>\n
      the records of Miscellaneous Petition No.41 of 2003. It
\n      claims knowledge of the said order from the date of<\/p>\n
      such inspection. It contends that the Petition is not
\n      barred by limitation but is promptly filed to revoke
\n      the order passed therein and to remove the Respondent
\n      as the executor.\n<\/p>\n
    48. The transactions that transpired after the execution
\n      of the Agreement dated 2nd January 1995 and prior to
\n      the filing of Miscellaneous Petition No.41 of 2003 have<\/p>\n
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\n                                     36                                 MISC. PTN. 70\/2010<\/p>\n
      been recited in the said Petition and of which the
\n      Petitioner        claims    ignorance.         Indeed,        the       Petitioner<\/p>\n
      cannot       otherwise       be        imputed     knowledge              of        what
\n      transpired between Bachoobai and the Respondent after<\/p>\n
      the    execution     of     the    Agreement       unless           specifically
\n      shown by the Respondent. Nevertheless it would be too<\/p>\n
      gullible for the Court to accept that the Petitioner,
\n      who    would      essentially          benefit    from      lapsing           of      the
\n      legacies to the U.S. Charities or from the specific<\/p>\n
      transfer in favour of the Respondent by Bachoobai of
\n      the properties which were being developed, can be taken<\/p>\n
      not    to     have    been        at     all     concerned           with         those
\n      transactions.        It is contended by the Respondent that<\/p>\n
      the Petitioner not only knew of those transactions and
\n      not only consented to those transactions but actively<\/p>\n
      participated in them and has benefited from them.                                     The
\n      import       of   those     transactions          shall        be       considered<\/p>\n
      presently.\n<\/p>\n
    49. Since it is contended by the Petitioner that it came
\n      to know of the filing of Miscellaneous Petition No.41
\n      of    2003    only   upon    reading       the    Affidavit-in-sur-sur-
\n      rejoinder of the Petitioner dated 24th April 2010 in<\/p>\n
      the Notice of Motion taken out in Suit No.1628 of 2008
\n      and since it is contended by the Respondent that the
\n      Petitioner knew of the Petition and has sought to show
\n      by circumstantial evidence such knowledge, the case of<\/p>\n
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\n                                           37                                  MISC. PTN. 70\/2010<\/p>\n
      lack    of    knowledge         of       the    Petitioner           must        be      first
\n      considered for its veracity.\n<\/p>\n
    50. The Petitioner knew about execution of the Will, the<\/p>\n
      bequest      to        U.S.    Charities,          the       life         interest             of
\n      Bachoobai,        the     power       of   Bachoobai           as      the       executrix<\/p>\n
      under the Will to sell, lease or mortgage the property
\n      of the deceased under the Will, the appointment by
\n      Bachoobai         of    her    attorney         and     agent        to      obtain          the<\/p>\n
      limited grant in India whilst she lived in the U.S.,
\n      the full power to manage and administer the properties<\/p>\n
      of the testator irrespective of any legal restrictions
\n      and specifically the grant obtained by the Petitioner<\/p>\n
      under   the       order       dated      21st    December          1972        consequent
\n      upon such unfettered powers.\n<\/p>\n
    51. If the Petitioner contends that Bachoobai had limited<\/p>\n
      power and interest which would terminate on her death,
\n      the Petitioner, as a prudent business Company, would<\/p>\n
      keep    abreast         of    the    lifetime         of     Bachoobai             who       had
\n      granted power to the Petitioner to develop the property
\n      and after whose lifetime it would cease. Bachoobai was
\n      a   lady     of    advanced         age    residing         in      the       U.S.           The<\/p>\n
      Petitioner would know of her impending death. Bachoobai
\n      died in August 2003.                     The Respondent has stated in
\n      paragraph 3(b) of his Affidavit-in-reply that after he
\n      returned      from       the    U.S.A.          after      attending             obsequial<\/p>\n
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\n                                 38                          MISC. PTN. 70\/2010<\/p>\n
      ceremonies of Bachoobai, the Petitioner s main Director
\n      Gopal Raheja called on him to offer his condolences.\n<\/p>\n
      He and the Respondent discussed what would be done
\n      since the Agreement may be in jeopardy. Though denied<\/p>\n
      by the Petitioner, this oral statement, prima facie,
\n      stands to reason if the Petitioner s director came to<\/p>\n
      know of the death of Bachoobai.          If that was so, the
\n      Petitioner would have discussed in 2003 the steps to be
\n      taken to allow the development to continue which would<\/p>\n
      have been in progress and which the Petitioner has
\n      always wanted to continue and see through the end given<\/p>\n
      its strenuous defences to the Respondent s suit also.\n<\/p>\n
    52. In paragraph 23 of the Affidavit-in-rejoinder of the
\n      Director of the Petitioner in reply to the aforesaid<\/p>\n
      paragraph 3(b) of the Respondent s Affidavit-in-reply,
\n      the Director has stated that he became aware of the<\/p>\n
      death of Bachoobai       very much after her death                 and had
\n      been informed by the Respondent that her death did not<\/p>\n
      affect   his   appointment     as   administrator.           Very        much
\n      after her death, there would be no specific occasion
\n      for   the   Respondent    to   inform   the     Petitioner               that
\n      Bachoobai s death did not affect his appointment. None<\/p>\n
      is shown. Besides, the Petitioner s Director has not
\n      stated precisely when that important event took place
\n      which would change the course of his development. It is
\n      not known even approximately how much after her death<\/p>\n
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\n                                  39                            MISC. PTN. 70\/2010<\/p>\n
      he would have come to know of that event.                    She died in
\n      2003. Disputes between the parties arose after 2005.\n<\/p>\n
      The suit came to be filed in 2008.              The Affidavits-in-
\n      reply to the Notice of Motion have essentially been<\/p>\n
      filed    in    2010   followed    by     this     Petition.                   The
\n      Petitioner has not stated anywhere when it came to know<\/p>\n
      the death of Bachoobai.         Bachoobai died at the advanced
\n      age of 89 years.      She would have been 95 years old when
\n      the suit came to be filed.            The Petitioner claims that<\/p>\n
      it did not know of her death well past the filing of
\n      the suit by the Respondent against the Petitioner.\n<\/p>\n
                             ig                                                       It\n      cannot    be   accepted   that    the    Petitioner           never         even\n<\/pre>\n
      inquired about the state of health of a woman in such<\/p>\n
      dotage when everything depended upon her life and her
\n      life interest in the estate of the deceased.                      Hence the<\/p>\n
      statement of the Petitioner that it came to know of
\n      Bachoobai s death       very much after her death                    is seen<\/p>\n
      to be discernibly left vague.\n<\/p>\n
    53. To understand and appreciate the knowledge on the
\n      part of the Petitioner of what transpired prior to the
\n      filing of Miscellaneous Petition No.41 of 2003 not only
\n      such    visualisation     but   the    intrinsic       circumstantial<\/p>\n
      evidence that would be a pointer to such knowledge must
\n      be appreciated.\n<\/p>\n
    54. The Respondent s Attorneys for obtaining the initial<\/p>\n
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\n                                        40                              MISC. PTN. 70\/2010<\/p>\n
      grant in 1972 were Little & Company. The Attorneys of
\n      the parties in the Agreement of Development were A.H.\n<\/p>\n
      Parpia & Company. The Respondent s Attorneys in the
\n      suit     filed     by     him        were    Doijode       Associates.                The<\/p>\n
      Respondent s       Attorneys          in    the   aforesaid           Originating
\n      Summons,     the        Appeal        therefrom     and        the        aforesaid<\/p>\n
      Miscellaneous Petition No.41 of 2003 were Maneksha &
\n      Sethna.          Maneksha        &     Sethna     were       admittedly               the
\n      Attorneys of the Petitioner and\/or its Director Gopal<\/p>\n
      Raheja since 1974. The statement of the Respondent in
\n      paragraph 3(e) of the Affidavit-in-reply in that behalf<\/p>\n
      is not denied by the Petitioner. The partner of the
\n      said firm refused to divulge certain information called<\/p>\n
      for    by   the    Respondent           as    constituting             breach           of
\n      confidence on his part to disclose anything concerning<\/p>\n
       Rahejas .        That has been accepted as correct by the
\n      Petitioner s Director in paragraph 28 of its Affidavit-\n<\/p>\n
      in-rejoinder.\n<\/p>\n
    55. It is intriguing how and why the Respondent would be
\n      represented by the Attorneys of the Petitioner and\/or
\n      its    Director     only    in        the    Originating          Summons,            the
\n      Appeal      therefrom       (including            the    execution               of       a<\/p>\n
      Memorandum of Settlement in and consequent upon the
\n      said appeal) and the aforesaid Miscellaneous Petition
\n      No.41 of 2003.\n<\/p>\n
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                                          41                                 MISC. PTN. 70\/2010<\/p>\n
    56. The Respondent has sought to show that the Petitioner<\/p>\n
      actively       participated             in       certain      negotiations                 for
\n      settlement with the U.S. Charities. These came about in<\/p>\n
      an    Originating         Summons        (which         shall      be      dealt         with
\n      presently) taken out by the Respondent herein in which<\/p>\n
      the     U.S.        Charities           were       party       Respondents                 and
\n      separately represented.                  The order on the Originating
\n      Summons has been obtained by the Respondent from the<\/p>\n
      learned Single Judge of this Court in its original
\n      jurisdiction holding that the bequest to charity has<\/p>\n
      failed since the provisions of Section 118 of the IS
\n      Act,    which        deal        with     bequests         to       religious              and<\/p>\n
      charitable usage, did not apply to the Will of the
\n      deceased.          The U.S. Charities challenged that decision<\/p>\n
      in Appeal. The U.S. Charities withdrew the Appeal and
\n      recorded       a    settlement.              A   Memorandum          of      Settlement<\/p>\n
      (MOS)    came        to     be     executed         immediately               upon         the
\n      withdrawal         of   the      Appeal.           In    that      MOS       also,         the<\/p>\n
      Respondent was represented by Maneksha & Sethna as his
\n      Attorneys. It is stated that the U.S. Charities were to
\n      be paid Rs.3.89 Crores in full and final settlement of
\n      the bequest under the Will of the deceased to them. The<\/p>\n
      Respondent has sought to contend that the Petitioner as
\n      also the Companies of his brothers, who are also to
\n      develop part of the properties of the deceased, were to
\n      reimburse the Respondent their respective proportionate<\/p>\n
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\n                                             42                                  MISC. PTN. 70\/2010<\/p>\n
      shares in the said settlement.                                The Respondent has
\n      shown       letters           written      by     the     two      brothers            of      the<\/p>\n
      aforesaid Director of the Petitioner as Directors of
\n      other      Companies           honouring          their      oral        Agreement             and<\/p>\n
      remitting a cheque towards reimbursement in respect of
\n      their proportionate share.                      The Petitioner is stated to<\/p>\n
      have       defaulted            and        failed       to      honour           the         oral
\n      commitments made by its Director Gopal Raheja.                                                 The
\n      letters dated 25th July 2003 addressed by one Suresh<\/p>\n
      Raheja on behalf of K. Raheja Universal Private Limited
\n      and     on     behalf          of
\n                                      ig    Radhakrishna            Properties               Private
\n      Limited in respect of the Agreement dated 2nd January
\n      1995 entered into by the Respondent with the Petitioner<\/p>\n
      as also by one Chandru Raheja on behalf of one Ivory
\n      Properties and Hotels Private Limited have been annexed<\/p>\n
      to    the     Affidavit-in-reply                  filed      by      the       Respondent.
\n      Similarly the letters dated 15th September 2003 and 22nd<\/p>\n
      October 2003 of Ivory Properties and Hotels Private
\n      Limited       show       reimbursement            of     Rs.1      Crore         and       Rs.60<\/p>\n
      Lakhs        made        by     the     said      Companies             towards            their
\n      proportionate share in the legal costs incurred for the
\n      out-of-Court             settlement          in     the      Originating               Summons
\n      taken      out      by    the       Respondent          herein       which         are       also<\/p>\n
      annexed to the Affidavit-in-reply of the Respondent.\n<\/p>\n
    57.    The     letters          of    Suresh      Raheja,         enclosing            the       two
\n      cheques for such reimbursement were issued four days<\/p>\n
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\n                                      43                                 MISC. PTN. 70\/2010<\/p>\n
      before    the    Appeal      came    to   be    withdrawn             and       a    week
\n      before the actual Memorandum of Settlement was executed<\/p>\n
      between the Attorneys of the parties. The letters of
\n      Chandru      Raheja     followed      close     on      the      heels         of      the<\/p>\n
      settlement      on    15th   September     2003        and       22nd      September
\n      2003, enclosing the cheques for reimbursement towards<\/p>\n
      the costs of the Appeal and the Court settlement.\n<\/p>\n
    58. These letters make interesting reading. The letters<\/p>\n
      of    K.Raheja     Universal        Private     Limited            relate           inter
\n      alia to the aforesaid Agreement dated 2nd January 1995.\n<\/p>\n
      They make reference to                our share therein                     and        our
\n      proportionate share . They also make a reference to<\/p>\n
       agreed shares .             The subject matter of the letter
\n      makes    a   specific        reference     to    the        Petitioner.                The<\/p>\n
      amounts      are      sent     by     cheque.         They         are         towards
\n      reimbursement of the High Court Appeal No.155 of 2002<\/p>\n
      (which was filed by the U.S. Charities) in Suit No.5034
\n      of 2000 (in which the Originating Summons was taken out<\/p>\n
      by the Respondent represented by Maneksha & Sethna).
\n      The   letters      of   Ivory       Properties       and       Hotels          Private
\n      Limited are similar and refer to the reimbursement of
\n      the costs of settlement. That settlement was with the<\/p>\n
      U.S. Charities.         These letters show a C.C. being marked
\n      to one Rajesh Batra of M\/s.Proline Sportswear.\n<\/p>\n
    59. The Agreement dated 2nd January 1995 made a specific<\/p>\n
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\n                                        44                               MISC. PTN. 70\/2010<\/p>\n
      declaration         in     paragraph          12B   that        the        immovable
\n      property to be developed would be in control of the<\/p>\n
      Raheja family           whichever be the Company (controlled by
\n      the     Raheja         family)        actually       carrying              out         the<\/p>\n
      development .\n<\/p>\n
    60.The Petitioner has not explained in its Rejoinder how
\n      such letters could have been sent by the Companies of
\n      the Rajeja Group or how reference to the name of the<\/p>\n
      Petitioner came to be made in the letter dated 25th
\n      July 2003 of K. Raheja Universal Private Limited. Of<\/p>\n
      course,       the      Petitioner       has    contended          that         such        a
\n      transaction would be against the public policy being<\/p>\n
      against the intention of the deceased.\n<\/p>\n
    61.     The   Petitioner          has   sought        to    brush         aside          the
\n      contributions made by the brothers of its Directors who<\/p>\n
      are Directors of the other Companies of the Raheja
\n      family on the ground that they had separated from the<\/p>\n
      family earlier. Whilst this Petition is not concerned
\n      with the inter se disputes                    with the family members,
\n      the    fact    remains         that   development          of      the       property
\n      albeit by the brothers separately after partition was<\/p>\n
      to    be    the     development       of      the   Raheja         family          under
\n      Section 12B of the Agreement dated 2nd January 1995.<\/p>\n
\n      The     contention         of     the      Petitioner           regarding              the\n      partition         in     the    Raheja        family,       the        independent\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 16:41:58 :::<\/span>\n                                45                             MISC. PTN. 70\/2010\n\n<\/pre>\n
     businesses of Suresh and Chandru Raheja as Directors of
\n     the aforesaid Companies and their resignation from the<\/p>\n
     Petitioner are really of no consequence in view of the
\n     fact that the development of the deceased s property<\/p>\n
     was to be by the Raheja family no matter which brother
\n     was on the Board of any Company.                All of them would,<\/p>\n
     therefore, be equally affected by the bequests under
\n     the Will. Consequently, the total lack of explanation
\n     by the Petitioner of the reference to the Petitioner in<\/p>\n
     the aforesaid letter dated 25th July 2003 is rather
\n     telling.      These letters are intrinsic circumstantial<\/p>\n
     evidence reflecting the knowledge of the Petitioner in
\n     the entire transaction.\n<\/p>\n
    62. Similarly a reference to one Rajesh Batra in the<\/p>\n
     letter dated 15th September 2003 of Ivory Properties
\n     and Hotels Private Limited (also Raheja Company) gets<\/p>\n
     corroborated in an E-mail stated to have been received
\n     by the Respondent from Rajesh Batra relating to the<\/p>\n
     oral Agreement with regard to the settlement of the
\n     claim of the U.S. Charities upon the offer which came
\n     from their Attorneys Singh & Gorthi Trilegal annexed to
\n     the   Affidavit-in-sur-rejoinder           of     the         Respondent.\n<\/p>\n
     However,     the   contents    of   the   E-mail      are       completely
\n     hearsay and otherwise inadmissible in evidence until
\n     the   said   Rajesh   Batra    is    examined      and      may       not       be
\n     considered upon Affidavits.\n<\/p>\n
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                                      46                               MISC. PTN. 70\/2010<\/p>\n
    63. To counter the case of knowledge of the Petitioner of<\/p>\n
      the    claim    and    the    settlement      of    the       claim        of      U.S.
\n      Charities, the Petitioner relies upon a letter written<\/p>\n
      by it to the Respondent on 10th May 2008, requiring the
\n      disputes       between       the    parties      to      be       referred             to<\/p>\n
      arbitration joining U.S. Charities as the beneficiaries
\n      under the Will. The letter was addressed a mere three
\n      days before filing Suit No.1628 of 2008.                               It is not<\/p>\n
      shown when it was received by the Respondent.                                        The
\n      complaint      that    it ig  has    not   been       responded              by      the
\n      Respondent need hardly be considered; it is not shown
\n      to be a part of this proceeding requiring a reply.                                     Of<\/p>\n
      course,       the     Petitioner      contended           that          the        U.S.
\n      Charities were necessary parties to the suit in the<\/p>\n
      Affidavit-in-reply           filed    by   the      Petitioner               in      the
\n      Interim Application taken out in that suit. That may<\/p>\n
      not    have    been    responded      by   the        Respondent             in      the
\n      Interim Application which dealt with the acts of the<\/p>\n
      parties to the suit alone for the grant of the reliefs
\n      claimed. The later statement of the Respondent that
\n      U.S.    Charities      were    no    longer    beneficiaries                 in      the
\n      Affidavit-in-rejoinder to that application must also be<\/p>\n
      taken to be an ancillary statement not germane to the
\n      main reliefs pressed in that Application which dealt
\n      with only the acts of the parties to the suit for the
\n      grant of the reliefs in the Interim Application. It<\/p>\n
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\n                                     47                                MISC. PTN. 70\/2010<\/p>\n
      need hardly be stated that a party who is an insider
\n      having knowledge of particular facts could always feign<\/p>\n
      ignorance of those facts to raise disputes in the suit.
\n      Such     raising    of   disputes         is   not      evidence             of      the<\/p>\n
      knowledge or the lack of knowledge of that party; only
\n      the    circumstantial     evidence         would     be.       The       aforesaid<\/p>\n
      events    show     not   only      that    the     Petitioner              must        be
\n      imputed knowledge of what transpired and in fact must
\n      be taken to be at least a partner architect of the<\/p>\n
      entire scheme of releasing the property to be developed
\n      by them from the lawful interest of the U.S. Charities<\/p>\n
      therein.\n<\/p>\n
    64. Marshalling the aforesaid intrinsic circumstantial,
\n      corroborative documentary evidence must lead to at an<\/p>\n
      unmistakable conclusion that the Petitioner, given its
\n      position in the business world and in developing the<\/p>\n
      property of the testator, had knowledge of an insider
\n      and had taken an active role in removing the only cloud<\/p>\n
      upon the property.\n<\/p>\n
    65. The Respondent applied to Court for its opinion in
\n      interpreting       the   bequest     to    charity         made        under         the<\/p>\n
      aforesaid Will by the deceased under Clause IV recited
\n      above.     The Will was executed on 4th February 1970; the
\n      deceased    expired      on   14th   March       1970,       about         40      days
\n      after the execution of the Will.                 The bequest would be<\/p>\n
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\n                                48                                MISC. PTN. 70\/2010<\/p>\n
    governed    by   Section   118    of     the    IS     Act,       which         runs
\n    thus:-\n<\/p>\n
              118. Bequest to religious or charitable uses.-\n<\/p><\/blockquote>\n
             No man having a nephew or niece or any nearer
\n             relative shall have power to bequeath any
\n             property to religious or charitable uses, except
\n             by a will executed not less than twelve months<\/p>\n
             before his death, and deposited within six
\n             months form its execution in some place provided
\n             by law for the safe custody of the wills of
\n             living persons:<\/p><\/blockquote>\n
             [Provided that nothing           in    this        section           shall<\/p>\n
             apply to a Parsi.]<\/p>\n
    The bequest would require the testator not to have any<\/p>\n
    near relative such as his sister to obtain the power to
\n    bequeath his property to charity, failing which the<\/p>\n
    testator would be required to execute his Will at least
\n    12 months before his death.              It was contended by the<\/p>\n
    Respondent in the Originating Summons, and on which an
\n    opinion    of    the   Court    was    sought,       that       because           the<\/p>\n
    testator died within a year of making the Will the
\n    bequest to charity would fail.                  It was held in the
\n    order on the Originating Summons by this Court dated
\n    22nd   October    2001   that    since    the     deceased            left        his<\/p>\n
    sister and died within 12 months of making his Will, he
\n    did not have the power to bequeath the property to
\n    religious or charitable use.\n<\/p>\n
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                                 49                             MISC. PTN. 70\/2010<\/p>\n
    66. The statement of objects and reasons brought to my<\/p>\n
      attention by Dr.Singhvi on behalf of the Petitioner in
\n      respect of Section 118 runs thus:\n<\/p>\n
             3.Further, under section 118 of the Act, a
\n            testator, if he has a nephew, niece or a nearer<\/p>\n
            relative, cannot bequeath any of his property to
\n            religious or charitable purposes or uses except in
\n            the manner and within the time limit provided in
\n            that section.   The Parsi community would like to<\/p>\n
            be exempted from such a provision so that a Parsi
\n            can    bequeath   his    property   without    any
\n            restrictions.\n<\/p><\/blockquote>\n
      The Amending Act of 1991, aside from bringing about the
\n      gender     equality    and         eliminating            the           gender
\n      discrimination that prevailed for succession amongst<\/p>\n
      parsis in Chapter III of the Indian Succession Act,<\/p>\n
      which dealt with special rules for Parsi intestates,
\n      added the aforesaid proviso to Section 118.\n<\/p>\n
    67. It is contended on behalf of the Petitioner that the
\n      application was blasphemous inasmuch as the executor of
\n      the Will has himself sought to challenge the bequest<\/p>\n
      made under the Will.      It is also contended on behalf of
\n      the Petitioner that the Respondent has not challenged
\n      the bequest but has sought to have it interpreted and
\n      opined by the Court. It is also contended on behalf of
\n      the   Petitioner   that        prior   to   the       order          on       the<\/p>\n
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\n                                          50                               MISC. PTN. 70\/2010<\/p>\n
      Originating           Summons     the     section      was      declared             ultra
\n      vires the Constitution of India by the Kerala High<\/p>\n
      Court in the case of Preman vs. Union of India, AIR
\n      1999 Kerala 93. This judgment was not brought to the<\/p>\n
      notice of the learned Judge answering the Originating
\n      Summons.\n<\/p>\n
    68. The U.S. Charities filed an Appeal and pending the
\n      Appeal, in the case of John Vallamattom vs. UOI, AIR<\/p>\n
      2003    SC         2902   the   Supreme     Court        declared            the       said
\n      section        ultra      vires
\n                                   ig     the    Constitution             of       India         as
\n      discriminatory,            it     being     then       applicable             only         to
\n      Christians.           Besides,     Section       118     did       not       apply         to<\/p>\n
      Parsis since the amending Act of 1991.                          It is contended
\n      by     the     Respondent         that     the     Act       could          not        have<\/p>\n
      retrospective operation and hence did not apply to a
\n      Will which took effect in 1970, though it may apply to<\/p>\n
      Wills executed after the amendment.\n<\/p>\n
    69. It was under these state of affairs that the U.S.
\n      Charities           settled     their     claim       under       Memorandum               of
\n      Settlement (MOS) executed by and between the Attorneys
\n      of the Respondent, Bachoobai and the U.S. Charities<\/p>\n
      dated        1st     August     2003.      It    is      contended              by       the
\n      Petitioner that the               MOS was not personally executed by
\n      any of these parties and hence would be of no effect.
\n      The MOS was executed, 11 days before Bachoobai s death.\n<\/p>\n
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                                         51                                   MISC. PTN. 70\/2010<\/p>\n
      A death certificate, to which my specific attention has
\n      been drawn, shows that Bachoobai was hospitalised from<\/p>\n
      19th July 2003 in New York. It is, therefore, unlikely
\n      that she would have or could have given instructions<\/p>\n
      for     settlement        with        the    U.S.        Charities            which         was
\n      carried out by her Attorneys on the date the MOS was<\/p>\n
      executed. The Appeal of the U.S. Charities came to be
\n      withdrawn on 29th July 2003.                      The MOS has been executed
\n      three    days    thereafter.                The    MOS        shows      that        it     was<\/p>\n
      executed in the Appeal itself. Though it is contended
\n      that Bachoobai was extremely old and ill and could not<\/p>\n
      have    known    of       the    MOS,       the    authority           given         to     her
\n      Attorneys in the Originating Summons, of which she was<\/p>\n
      fully    aware       as    can    be    seen           from    the      Indenture             of
\n      Transfer     executed           by     her        on    17th        September           2001,<\/p>\n
      continued in Appeal and the MOS was executed in Appeal.
\n      Hence though Bachoobai was hospitalised from 19th July<\/p>\n
      2003 until her death and though the MOS was executed in
\n      the     interregnum,            her     authority             to     her        Attorneys<\/p>\n
      continued. Similarly the authority given by the U.S.
\n      Charities       to        their       respective              Attorneys            in       the
\n      Originating      Summons          was       continued          in    Appeal.          It      is
\n      under that authority that the MOS is executed.\n<\/p>\n
    70. The authority of Attorneys implicitly includes the
\n      authority to settle. The implied authority of Counsel
\n      to compromise on behalf of the client even without the<\/p>\n
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\n                                     52                                MISC. PTN. 70\/2010<\/p>\n
    consent     of      the    client       came    up      for       consideration
\n    initially      in    the   case        of   Sourendra        Nath        Mitra         Vs.<\/p>\n
    Tarubala Desi AIR 1930 Privy Council 158 followed in
\n    the case of (Babu) Sheonandan Prasad Singh Vs. Hakim<\/p>\n
    Abdul Fateh Mohammad Reza AIR 1935 Privy Council 119;
\n    and     Smt.     Jamilabai           Abdul     Kadar         Vs.         Shankarlal<\/p>\n
    Gulabchand & Ors. AIR 1975 Supreme Court 2202 upon the
\n    authority of the Pleader under Order 3 Rule 1 read with
\n    Order 3 Rule 4 of the C.P.C. It was held that the<\/p>\n
    authority of the Pleader implied in itself the act of
\n    compromising a case without the specific consent of his<\/p>\n
    client subject only to he acting in good faith and for
\n    the benefit of his client not against any specific<\/p>\n
    instruction to the contrary. When, therefore, there was
\n    no mala fide action imputed upon the Pleader and his<\/p>\n
    conduct   was       seen   to     be    motivated       for       good       for       his
\n    client, it was observed that his implied authority was<\/p>\n
    not abused.\n<\/p>\n
     In Sourendra s case it was held, per Lord Justice
\n    Atkin that the implied authority of Counsel to settle
\n    matters in the interest of their clients even without
\n    the client s consent, as prevalent in the U.K applied<\/p>\n
    in equal measure in India.                  The act of the Advocate in
\n    India    would      bind    his      client,    even         if      she       were        a
\n    pardanashin lady, as in that case.                           Considering the
\n    general principles of                formation of contracts, as the<\/p>\n
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\n                                 53                               MISC. PTN. 70\/2010<\/p>\n
    contract between an Advocate and client was, the actual
\n    and obstensible as also the apparent authority                                  were<\/p>\n
    considered.      It was reasoned that the implied authority
\n    was     necessary    to   effectuate      the      relations              between<\/p>\n
    Advocate and client to make possible his duties.                                  The
\n    skill and understanding of the Advocate to take a final<\/p>\n
    decision upon various aspects of his work (eg., to take
\n    or give up a point of argument) as also to accept an
\n    offer of settlement or to               receive or pay something<\/p>\n
    less than the full claim            was held to be within the
\n    purview of his brief.      ig    Often such a decision must be
\n    taken at once so that a valuable opportunity is not
\n    lost to his client, provided only that inconsistent<\/p>\n
    instructions were not received.\n<\/p>\n
     This     was    followed   in    the    case     of      Byram         Pestonji
\n    Gariwala Vs. Union Bank of India AIR 1991 Supreme Court<\/p>\n
    2234.      That was after the amendment of 1976 of the
\n    C.P.C concerning compromises. It was observed that the<\/p>\n
    relationship between Counsel as the recognized agent of
\n    his principal (the client) was a matter of contract
\n    with     which      the   legislature      would          not         generally
\n    interfere except if it was against public policy. Hence<\/p>\n
    it cannot be presumed that the legislature disallowed
\n    the parties to enter into compromise by Counsel in the
\n    course of their duty as authorized agents (much as
\n    their constituted attorneys).             This legislative intent<\/p>\n
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\n                                       54                                 MISC. PTN. 70\/2010<\/p>\n
    was observed in view of the object of the amendment in
\n    attaining         quick      reduction       of    arrears           in       Court         by<\/p>\n
    elimination        of     uncertainties           and   enlargement                of     the
\n    scope of compromises.                  This was specifically observed<\/p>\n
    to be true in case of non-resident persons. It was
\n    observed that if a constituted attorney could enter<\/p>\n
    into compromise on behalf of his Principal, so can
\n    Counsel possessing of the requisite authorisation by
\n    Vakalatnama,            on      behalf      of      his         client.                   The<\/p>\n
    authorisation under the Vakalatnama of Bachoobai given
\n    in the Originating Summons continued in the Appeal and<\/p>\n
    consequently, in the compromise which was entered into
\n    in the appeal as reflected by its title.\n<\/p>\n
         In para 9 of the judgment the role of Counsel in<\/p>\n
    Courts in England as described in Halsbury s Laws of
\n    England 4th Edition, Vol. 3 paras 1181 and 1183 came to<\/p>\n
    be   considered.          The    Counsel s        authority           included            the
\n    authority to compromise. The observation inter alia is:\n<\/p>\n
     thus if, in Court, in the absence of the client, the
\n    compromise or settlement is entered into by the Counsel
\n    whose authority has not been expressly limited, the
\n    client is bound .\n<\/p>\n
          Of    course,       no    Counsel      would        have        authority             to
\n    enter      into    compromise          on   collateral          matters           in      the
\n    absence of express authority and a compromise would be<\/p>\n
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\n                                 55                               MISC. PTN. 70\/2010<\/p>\n
    set aside in circumstances which would invalidate the
\n    agreements between the parties.                  That provision has<\/p>\n
    been specifically made under Order 23 Rule 3 of the
\n    C.P.C.    Hence, if the compromise can be avoided on the<\/p>\n
    ground that it would be voidable, the party himself or
\n    herself may avoid it.             There is nothing to show or<\/p>\n
    suggest that the stranger to the compromise could avoid
\n    the compromise. In this case neither Bachoobai nor her
\n    estate has sought to avoid it.\n<\/p>\n
        In para 19 the observation of Lord Justice Atkin<\/p>\n
    in Sourendra s case (supra), that it is implied in the
\n    interest of the client, to give the fullest beneficial<\/p>\n
    effect to the employment of his Advocate, has led the
\n    Supreme Court to hold that after the amendment of the<\/p>\n
    C.P.C    Counsel s   role        in   a    compromise         decree          would
\n    extend also to matters collateral to the suit.\n<\/p>\n
        It would, therefore, be in vain to question the<\/p>\n
    authority    of   Bachoobai s             attorneys       who        were         her
\n    recognized legal agents, pursuant to her Vakalatnama in
\n    the Originating Summons, to continue to act on her
\n    behalf and to compromise the claim made by the U.S.\n<\/p>\n
    Charities upon which she, as a residual legatee, came
\n    to be a full owner capable of bequeathing the property
\n    of the deceased in India herself as she did. The same
\n    holds true of the U.S. Charities.               It can be challenged<\/p>\n
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\n                                     56                            MISC. PTN. 70\/2010<\/p>\n
      only   by    the     party   giving    the    authority            if      it      is
\n      exceeded or by his\/her representative-in-interest. It<\/p>\n
      can hardly be challenged or questioned by a stranger to
\n      the settlement.\n<\/p>\n
    71. It is contended by Dr.Singhvi that it is astounding<\/p>\n
      that the MOS mentions that the judgment of the Supreme
\n      Court does not apply to Parsis and hence to the case of
\n      the deceased; the judgment only declares the section<\/p>\n
      ultra vires and its effect would be that the section
\n      would not be on the Statute Book.\n<\/p>\n
                                 ig                 Be that so, the U.S.\n      Charities          have      settled       their         disputes                for\n      consideration.        The Respondent paid both the Attorneys\n                               \n<\/pre>\n
      of the U.S. Charities Rs.18.95 million each (Rs.1.8
\n      Crores each) aggregating a total of Rs.3.79 Crores in<\/p>\n
      full   and    final       settlement   of    their        claim          and       in
\n      consideration of their withdrawing the Appeal.                                   The<\/p>\n
      Attorneys of the U.S. Charities undertook to hold the
\n      said amount and deal with it subject to the Foreign<\/p>\n
      Exchange      Management       Act,    1999        and       the         Foreign
\n      Contribution         Regulation     Act,     1976.         They          further
\n      undertook to remit the said amount or such amount as is
\n      permitted by the Reserve Bank of India to the U.S.\n<\/p>\n
      Charities      and    if     not   permitted       to       a      Charitable
\n      Organisation in India which had permission under the
\n      Foreign      Contribution      Regulation      Act,         1976         at      the
\n      directions of the U.S. Charities.             It was recorded that<\/p>\n
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\n                                      57                                MISC. PTN. 70\/2010<\/p>\n
      the   Respondent        paid        the     costs      incurred              in       the
\n      Originating      Summons       as    well    as     the       Appeal          to      the<\/p>\n
      Attorneys of the U.S. Charities out of the estate of
\n      the Testator.\n<\/p>\n
    72. It is, therefore, demonstrated that the acts of the<\/p>\n
      Respondent      resulted    in      removing        the     cloud         upon        the
\n      estate    and    its     development         by     the      Petitioner               and
\n      resulted in its benefit.              Similarly, therefore, it is<\/p>\n
      manifest that the action by the Petitioner is motivated
\n      and filed as a counterblast to the suit filed by the<\/p>\n
      Respondent against the Petitioner.                      It is, however, a
\n      counterproductive counterblast.                   If the Respondent is<\/p>\n
      held to have no authority to deal with the property of
\n      the   testator     after        the       death     of       Bachoobai,               the<\/p>\n
      authority given by the Respondent to the Petitioner to
\n      develop   the     properties         of    the    testator            would         also<\/p>\n
      similarly fall. The contract to develop the lands would
\n      get   frustrated       since    it    would       become        impossible              of<\/p>\n
      performance     and    unlawful       to    perform         consequent              upon
\n      Bachoobai s      death     under      Section        56      of       the       Indian
\n      Contract Act, the relevant part of which runs thus:\n<\/p>\n
                 56. Agreement to do impossible act.- An
\n                agreement to do an act impossible in itself is
\n                void.\n<\/p><\/blockquote>\n
                Contract to do act afterwards becoming or
\n                unlawful.-A contract to do an act which, after<\/p>\n
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\n                                 58                              MISC. PTN. 70\/2010<\/p>\n
                 the contract is made, becomes impossible, or,
\n                 by reason of some event which the promisor
\n                 could not prevent, unlawful, becomes void when<\/p>\n
                 the act becomes impossible or unlawful.\n<\/p><\/blockquote>\n
    73.   Similarly    it   would    have   to    be    seen       whether           the
\n      Agreement dated 2nd January 1995 entered into by the
\n      parties would become impossible of performance upon and<\/p>\n
      in view of the judgment of the Supreme Court in the
\n      case of John Vallamattom (supra) declaring Section 118
\n      of the IS Act to be ultra vires the Constitution of<\/p>\n
      India.     As aforesaid, though the Will of the testator<\/p>\n
      as well as the two grants in favour of the said Dubash
\n      as well as the Respondent have been recited in the<\/p>\n
      agreement,      the   bequest    to   the        U.S.     Charities              is
\n      conspicuous by its absence. Both the parties knew of it
\n      very well.      Both the parties knew of its consequences.\n<\/p>\n
      Both the parties knew that it would take effect on the<\/p>\n
      death of Bachoobai whatever agreement that was entered
\n      into and whatever development that came to be made
\n      pursuant     thereupon    with    consent,         confirmation                and<\/p>\n
      concurrence of Bachoobai whilst she had life interest
\n      therein.     Even if the agreement were to continue after
\n      her death and when the charitable bequest took effect,<\/p>\n
      it could only have been with a similar confirmation,
\n      consent and concurrence of the legatees who were given
\n      absolute bequests.       Hence even if this Court held that
\n      the bequest failed because the testator did not live
\n      for more than 12 months after the execution of the<\/p>\n
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\n                                        59                               MISC. PTN. 70\/2010<\/p>\n
      Will, in view of the judgment of the Supreme Court in
\n      the case of John Vallamattom (supra), the bequest would<\/p>\n
      be valid and the agreement, as entered into and without
\n      the     confirmation           of     the     legatees,            would           stand<\/p>\n
      frustrated;     the      judgment          itself    was     the       supervening
\n      impossibility.\n<\/p>\n
    74. In the case of Satyabrata Ghose vs. Mugneeram Bangur,
\n      AIR<\/a>    1954    SC    44,   it        has    been    held       that        the       word<\/p>\n
       impossible         in Section 56 of the Indian Contract Act
\n      would not only mean physical or literal impossibility.\n<\/p>\n
      The     impossibility          may    be     only    impracticability                    or
\n      uselessness of the contract such that the object and<\/p>\n
      performance which the parties had in view would get
\n      upset by an untoward event or change of circumstances<\/p>\n
      and which would totally upset the very foundation upon
\n      which the parties rested their bargaining so that the<\/p>\n
      promisor would find it impossible to do the act which
\n      he promised to do.              It was observed in that judgment<\/p>\n
      that     the    changed          circumstances           which           make          the
\n      performance         of   the    contract       impossible            absolve           the
\n      parties from further performance of it as they did not
\n      promise to perform an impossibility.                       The contract will<\/p>\n
      stand     discharged           by     reason        of     the         supervening
\n      impossibility or illegality of the act agreed to be
\n      done and hence will stand frustrated upon being hit by
\n      Section 56 of the Indian Contract Act.\n<\/p>\n
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                                      60                                  MISC. PTN. 70\/2010<\/p>\n
       It was observed that the doctrine of frustration<\/p>\n
    would    apply     when    the        terms       in    the       contract,             upon
\n    implied      or    express       construction               would       require           the<\/p>\n
    contract to be discharged on the happening of certain
\n    circumstances when the contract will stand dissolved<\/p>\n
    but the relief could also be given by the Court even if
\n    there was no such term of the contract on the ground of
\n    subsequent        impossibility            when    the       Court        finds         that<\/p>\n
    whole purpose and basis of the contract was frustrated
\n    by the inclusion or occurrence of an unexpected event<\/p>\n
    or change of circumstances which was beyond what was
\n    contemplated by the parties at the time they entered<\/p>\n
    into the agreement. If such a change of circumstance
\n    was so fundamental as to be regarded as striking at the<\/p>\n
    root    of   the    contract          as    a     whole,      the       Court         could
\n    pronounce that contract as frustrated and at an end. It<\/p>\n
    is observed that the Court would require to examine the
\n    contract and the circumstances under which it was made.\n<\/p>\n
    The belief, knowledge and intention of the parties are
\n    evidence upon which the Court would form its conclusion
\n    whether      the     changed          circumstances               destroyed               the
\n    contract altogether.\n<\/p>\n
       In     that     case,     a    land       was       to    be     developed             for
\n    residential purpose. The development was to take place
\n    during the second world war.                      Requisition orders were<\/p>\n
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\n                                    61                                   MISC. PTN. 70\/2010<\/p>\n
     usually passed during the period.                       There was scarcity
\n     of building material and the Government restrictions in<\/p>\n
     respect of them.         Taking into account the evidence in
\n     that    case,    including         the    fact        that       there          was       no<\/p>\n
     stipulated period during which the development was to
\n     be completed and war conditions prevailing at the time<\/p>\n
     of     the     development,         it     was        observed            that          the
\n     requisition      order      under    the    Defence           of      India         Rules
\n     could    not    be    taken    to        have    vitally           affected             the<\/p>\n
     contract or made its performance impossible so as to
\n     frustrate the contract. ig          Under those circumstances, the
\n     applicability of doctrine of frustration to a contract
\n     was laid down.\n<\/p>\n
    75. This case was followed in the case of The Naihati<\/p>\n
     Jute Mills Ltd. vs. Khyaliram Jagannath, AIR<\/a> 1968 SC\n<\/p>\n
     522. It was held that the Court would grant relief on<\/p>\n
     the ground of subsequent impossibility when it finds
\n     that the whole purpose or the basis of the contract was<\/p>\n
     frustrated       by   the     inclusion          or     occurrence                on      an
\n     unexpected event or change of circumstances which was
\n     not contemplated by the parties at the date of the
\n     contract.       It was observed that in such a case there<\/p>\n
     would be no question of finding out an implied term
\n     agreed to by the parties embodying a provision for
\n     discharge affirming the view in the case of                               Satyabrata
\n     Ghose (supra). It was further held that when an event<\/p>\n
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\n                                       62                                   MISC. PTN. 70\/2010<\/p>\n
    or    a   change     of    circumstances             so     fundamental               as      to
\n    strike at the root of the contract occurred, the Court<\/p>\n
    could pronounce the contract to be frustrated and at an
\n    end.       It was held that that was the positive rule<\/p>\n
    enacted in Section 56 of the Indian Contract Act and in
\n    those cases the doctrine of frustration applied.\n<\/p>\n
         In that case the parties entered into a contract to
\n    sell goods under the form prescribed by the Indian Jute<\/p>\n
    Mills      Association          for    importing          jute        from        Pakistan
\n    under the import licence obtained by the buyer.\n<\/p>\n
                                ig                                                        During
\n    the subsistence of the contract, there was a change in
\n    the policy of the Government which the parties could<\/p>\n
    not foresee when they entered into the contract.                                              It
\n    was observed that impossibility of performance would<\/p>\n
    have to be inferred by the Courts from the nature of
\n    the       contract        and     the        surrounding                circumstances<\/p>\n
    considering that parties would have made their bargain
\n    upon the basis that that particular thing or state of<\/p>\n
    thing      would   continue            to    exist    and         because           of      the
\n    altered circumstances the bargain should no longer be
\n    held      binding.        The     Courts        would          infer           that         the
\n    foundation of the contract had disappeared either by<\/p>\n
    the destruction of the subject-matter or by reason of
\n    interruption         or    delay        in    performance.                    The       Court
\n    considered the bounden duty of the contracting parties
\n    to     perform     their        obligations          undertaken               under         the<\/p>\n
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\n                                  63                            MISC. PTN. 70\/2010<\/p>\n
    contract which could not be excused except when such
\n    performance was made impossible by intervening causes,<\/p>\n
    over which the parties had no control. Referring to the
\n    case of Davis Contractors vs. Fareham U.D.C., 1956 AC<\/p>\n
    696, it was quoted thus :\n<\/p>\n
                Frustration    occurs    whenever   the    law
\n               recognises that without default of either
\n               party a contractual obligation has become
\n               incapable of being performed because the
\n               circumstances in which performance is called<\/p>\n
               for   would   render   it  a   thing  radically
\n               different from that which was undertaken by<\/p>\n
               the contract.\n<\/p>\n
     It was observed that it was not only hardship or
\n    inconvenience or material loss which brought about the
\n    frustration    of    the     contract   but    the      change          in      the<\/p>\n
    significance    of    the    obligation,      which       if      performed,<\/p>\n
    would be different from that which was contracted for.\n<\/p>\n
     In that case what was to be considered was whether the<\/p>\n
    change in the policy of Government of India brought out
\n    the total prohibition of import of Pakistan jute which
\n    was not envisaged by the parties which intervened at<\/p>\n
    the time of performance of the contract and which made
\n    the performance impossible. The evidence showed that
\n    there were circulars issued since March 1958 showing
\n    warnings of the Government of India that import of
\n    Pakistan    jute     would    be   permitted       to      the        absolute<\/p>\n
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\n                                        64                                 MISC. PTN. 70\/2010<\/p>\n
      minimum and that the Jute Mills should satisfy their
\n      needs by purchasing Indian jutes. The licence to import<\/p>\n
      jute was granted in the ratio of 5:1 to the importer
\n      upon producing evidence of purchase of five times the<\/p>\n
      Indian     jute     for    being      able     to    import         one      time        the
\n      Pakistan jute.            The Indian Jute Mills Association had<\/p>\n
      issued a circular showing the said policy. Further the
\n      evidence of the parties with regard to the import of
\n      jute showed that there was a complete embargo on the<\/p>\n
      import of jute placed by the Government.                            The licencing
\n      authority was to scrutinise each case on merits.\n<\/p>\n
                                  ig                                                             It
\n      was observed that the parties were aware that licences
\n      were not freely issued.               The contract made a provision<\/p>\n
      for the shipment period to be extended if the import
\n      licence was not obtained.                      Damages were provided in<\/p>\n
      respect of failure to furnish the licence. The contract
\n      indicated         that    the    parties        were       conscious             of      the<\/p>\n
      difficulty        of     obtaining       the    licence        knowing           of      the
\n      damages they would incur upon refusal to accept licence<\/p>\n
      and hence there was no question of the performance
\n      becoming impossible by reason of the Government policy.
\n      Under      such    cases,       therefore,          the    contract            did       not
\n      become impossible of performance and was held not void<\/p>\n
      on the ground that it was frustrated.\n<\/p>\n
    76. The aforesaid two judgments, therefore, lay down that
\n      if   the    parties       knew     not    about       an     occurrence               which<\/p>\n
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\n                                        65                                MISC. PTN. 70\/2010<\/p>\n
    actually happened after the contract was entered into
\n    but    which     made    the       contract         void,       it     would         stand<\/p>\n
    frustrated.\n<\/p>\n
         In this case, the parties had no inkling that the
\n    Supreme Court would hold Section 118 ultra vires the<\/p>\n
    Constitution       but       it    was     so      held.        If     the       parties
\n    contemplated       that       the       bequest      to    charity           could         be
\n    avoided        and they appeared to have so contemplated as<\/p>\n
    they had gone on to sign the contract of development
\n    which would span a number of years and may outlive the<\/p>\n
    life interest of Bachoobai                     they would be bound by the
\n    judgment    and     would         have        to   honour       the      bequest           to<\/p>\n
    charity.       Their contract was, therefore, subject to
\n    such    absolute    bequest.             It    could      not    have        continued<\/p>\n
    except with the permission of such absolute legatees.
\n    Upon the judgment of the Supreme Court, the Respondent<\/p>\n
    could have thrown up his hands, his 12% share in the
\n    proceeds notwithstanding, and claimed the contract as<\/p>\n
    having been frustrated. The Petitioner would have been
\n    none the safer. Of course, both the parties would want
\n    the    contract         to    continue.            They     would           brook          no
\n    interference from the U.S. Charities but they had to<\/p>\n
    contend with the U.S. Charities.                          It is inconceivable
\n    that the Petitioner, an adroit litigator, would have
\n    left that stone unturned and not cared about buying off
\n    or    settling    with       the        U.S.    Charities       to      be     able        to<\/p>\n
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\n                                   66                               MISC. PTN. 70\/2010<\/p>\n
      continue    his    project       as    the     project          co-ordinator
\n      uninterrupted        by     the       claims    of       those          absolute<\/p>\n
      legatees.\n<\/p>\n
    77. This circumstance itself lends enough credence to the
\n      fact that the Petitioner at least tacitly and behind<\/p>\n
      the   curtain     aided    and    assisted       the        Respondent              in
\n      settling    with   the     U.S.       Charities.       Of      course,            the
\n      Petitioner had no right or direct interest to do so<\/p>\n
      directly and positively. But having regard to its 88%
\n      stake in the proceeds, which the Respondent was not<\/p>\n
      likely to grant him on a platter and free of cost, he
\n      would have been constrained, even if he was not himself<\/p>\n
      interested, in settling with the U.S. Charities.\n<\/p>\n
    78.   The   charitable      bequest,      which     was       sought          to      be
\n      effectuated     under     the    MOS    for    paying       off       the       U.S.\n<\/p>\n
      Charities was subject to the permission of the Reserve
\n      Bank of India being obtained for transferring the funds<\/p>\n
      out of India.      If the permission was not obtained, it
\n      was for the administrator of the estate to apply to
\n      Court for necessary directions to otherwise effectuate
\n      the estate. The MOS itself sets out the alternative<\/p>\n
      mode of payment to a charitable organisation in India.\n<\/p>\n
    79. This is in consonance with the doctrine of cy-pres
\n      applied in England. In the case of White s Will Trusts<\/p>\n
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\n                                       67                                MISC. PTN. 70\/2010<\/p>\n
    Barrow vs. Gillard, (1955) Chancery Division 188, the
\n    testatrix provided for two cottages to be missioinary<\/p>\n
    homes    in     her    Will.         The    cottages       were        occupied            by
\n    tenants who were protected under the Rent Restriction<\/p>\n
    Acts.     The homes were not free from effectuating the
\n    charitable bequest. It was held, considering the case<\/p>\n
    of Attorney General vs. Bishop of Chester, (1785) 1
\n    Bro.     C.C.    444     and      Sinnett        vs.    Herbert,             (1872)          7<\/span>
\n    Chancery 232, that there was a valid charitable gift.\n<\/p>\n
    It was observed that there was no particular charitable
\n    purpose of the testatrix which could not be carried out<\/p>\n
    so as to have the gifts failed since it was held that
\n    existing       body    was     willing      to    take      over        one       of     the<\/p>\n
    cottages occupied by tenants and use it for the purpose
\n    mentioned in the testamentary document when they can<\/p>\n
    obtain possession. That was allowed to be effectuated.
\n    The     case    of     Wallis      vs.      Solicitor-General                  for       New<\/p>\n
    Zealand, (1903) A.C. 173 was referred to. In that case
\n    an    express     gift       of   land      and    money         for       particular<\/p>\n
    purposes was held not invalidated by the fact that
\n    particular application directed would not necessarily
\n    take place within any definite time and might never do
\n    so and the doctrine of cy-pres applied. It was also<\/p>\n
    observed that there were many cases where funds were
\n    paid    into     Court       until     it   was    seen        whether           or      not
\n    certain purpose became practicable citing the case on
\n    Bishop of Chester (supra).                  It was observed that if the<\/p>\n
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\n                                        68                               MISC. PTN. 70\/2010<\/p>\n
      intention      of    the    testatrix         was     practicable                to      be
\n      carried out at some time in future also, it could be so<\/p>\n
      allowed.\n<\/p>\n
    80. In the case of Woodhams, deceased Lloyds Bank Ltd.
\n      vs. London College of Music, (1981) Weekly Law Reports,<\/p>\n
      493, also the doctrine of cy-pres was applied.                                 In that
\n      case a charitable bequest was made to the school of
\n      music    by   way    of     a    scholarship         meant         for       absolute<\/p>\n
      orphans coming from two named homes. The college felt
\n      that creation of a scholarship strictly in accordance<\/p>\n
      with    the   conditions          of    the    testatrix s             Will        would
\n      create   problems         which       would   more     than        outweigh            any<\/p>\n
      practicable benefit which might be derived from it.
\n      Considering the case of the college and its curriculum<\/p>\n
      and activities and other cases of similar bequests and
\n      interpreting        the    clause       relating       to      the       charitable<\/p>\n
      bequest setting out the scheme for foundation of the
\n      scholarship,        it     was        held    that     intention              of       the<\/p>\n
      testatrix was to further musical education by founding
\n      scholarship at colleges which valued such education.
\n      The testatrix chose absolute orphans from homes run by
\n      well-known      charities         as    those    most        likely          to       need<\/p>\n
      assistance.         But it was observed that there was no
\n      specific      requirement         in    the    essential           part        of      the
\n      scheme that scholarship should be so restricted and
\n      hence it was held that the part of the scheme or the<\/p>\n
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\n                                          69                                  MISC. PTN. 70\/2010<\/p>\n
      mode of achieving charitable purpose can be modified
\n      without frustrating the intention of the testatrix.                                           It<\/p>\n
      was, therefore, held that the Trust did not fail. The
\n      Trust      could      have     been          carried        into       effect           by      a<\/p>\n
      modification of the Trust of each moiety deleting the
\n      restriction to absolute orphans from the named homes.\n<\/p>\n
      Consequently, a settlement of a scheme was directed.
\n      The doctrine of cy-pres was accordingly used.\n<\/p>\n
           In this case, the parties themselves have provided
\n      for the doctrine of cy-pres. If the agreed amounts<\/p>\n
      could not be transmitted to the U.S.A. for want of
\n      permission       of    the     Reserve         Bank       of     India,         the       said<\/p>\n
      amounts       were     to     be    donated          to     an     Indian           charity
\n      nominated       by     the     U.S.          Charities.               It       is       seen,<\/p>\n
      therefore, that the parties expressly provided so as
\n      not     to     have     their           agreement         frustrated               by        any<\/p>\n
      supervening impossibility.                     It is, therefore, required
\n      to    be     carried    out.            If    that     is      carried          out,         the<\/p>\n
      administrator          will    have          complied       with        his       duty        as
\n      administrator; if not the U.S. Charities who would be
\n      interested in such a grant as compromised by them under
\n      the MOS would be the               party who could apply for removal<\/p>\n
      of the executor or for revocation of the grant.\n<\/p>\n
    81. It is contended on behalf of the Petitioner that what
\n      was to be paid to the U.S. Charities was a pittance out<\/p>\n
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\n                                     70                             MISC. PTN. 70\/2010<\/p>\n
      of the estate valued at more than Rs.150 Crores. Though
\n      a contract with consideration cannot be challenged on<\/p>\n
      the ground of inadequacy of consideration, in view of
\n      the fact that pursuant to the judgment of the Supreme<\/p>\n
      Court,     the   U.S.    Charities         alone     would         have         been
\n      entitled    to   the    entire       bequest,      it   would         beat        the<\/p>\n
      conscience of any Court to turn a Nelson s eye to such
\n      a transaction. The Respondent had not mentioned in his
\n      Affidavits how the Agreement was pursued to satisfy the<\/p>\n
      Court how the U.S. Charities or any other charitable
\n      organisation in India directed by the U.S. Charities<\/p>\n
      were ultimately paid off.                The Respondent only showed
\n      the Court the acts behind the scenes of the Petitioner<\/p>\n
      by the evidence of the Companies of the other family
\n      members of the Raheja family also developing the said<\/p>\n
      properties       reimbursing             the       Respondent                 their
\n      proportionate share not only in the settlement but also<\/p>\n
      in the costs of the litigation to be paid and incurred
\n      by the Respondent from the estate of the Testator to<\/p>\n
      the U.S. Charities through their Attorneys, Trilegal.\n<\/p>\n
    82.The Court in its, discretion, required the Respondent
\n      to show the Court for its satisfaction the amounts<\/p>\n
      actually    received     by        the   U.S.   Charities           under         the
\n      settlement by them. The Respondent has got produced,
\n      through the firm of Trilegal, the correspondence with
\n      the U.S. Charities showing remittance by Telegraphic<\/p>\n
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\n                                          71                                   MISC. PTN. 70\/2010<\/p>\n
      Transfers (TTs) made to both the charities in a sum of
\n      Rs.1,87,26,500\/-            each        on     27th       December          2003         after<\/p>\n
      deduction of the costs incurred by them in a sum of Rs.
\n      2,23,500\/- each authorised and accepted in writing by<\/p>\n
      the   U.S.      Charities.         The        Petitioner s             Attorneys,              in
\n      their        reply    to     the        Respondent s              Attorney s               note<\/p>\n
      annexing        the        aforesaid          documents            raised            fishing
\n      inquiries about further details not sought by the Court
\n      and questioned the transactions as                              gift .          The doubt<\/p>\n
      expressed is perhaps upon ignorance of the procedural
\n      requirements of TTs.         ig     The forms required to be filled
\n      in,     under        RBI     guidelines             for     TTs,          require            the
\n      transmittor          to     tick    one        of     the       reasons            for       the<\/p>\n
      transfer.           Personal       gifts         and       donations                is       the
\n      applicable       column       in        the    form        to     be       ticked.           The<\/p>\n
      consequent banking transaction is rightly described as
\n       gift .        The MOS was executed in the appeal (see its<\/p>\n
      title).        Hence the U.S. Charities have rightly given
\n      the reference of the Appeal.                          That would set at rest<\/p>\n
      any     of    the     Court s           doubts        about       the        transaction
\n      reflected in the receipts.                       Any further questions or
\n      doubts by the Petitioner would be completely outside
\n      the scope of the inquiry by the Court and its purport.\n<\/p>\n
    83. It is, therefore, true that the anomalies in the MOS
\n      or any play upon words resulting in any mis-statement
\n      or    misrepresentation             to        the     U.S.        Charities              would<\/p>\n
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\n                                      72                             MISC. PTN. 70\/2010<\/p>\n
      require the Court to reach out to them. It is true that
\n      Courts must hear those who cannot speak; listen to<\/p>\n
      those    who    cannot    shout.         The    U.S.     Charities             being
\n      uninformed       of   this      litigation           would        require          the<\/p>\n
      positive act of the Court in that behalf. However, the
\n      Court can be, at best, a watchdog; not a bloodhound.\n<\/p>\n
    84. Once it is seen that the U.S. Charities have received
\n      the amounts agreed upon in the MOS, they are seen to<\/p>\n
      have obtained full access to justice. They had been
\n      represented by their Attorneys and Counsel. They had<\/p>\n
      the    advice    of   Indian        Lawyers    for    the     law      that        had
\n      applied,       however,    strange       their       interpretation                may<\/p>\n
      sound to the Petitioner. They are taken to have waived
\n      the consequences of litigating in India and dealing<\/p>\n
      with the developers who had been litigating previously
\n      with the administrator in India. They must also be<\/p>\n
      taken to have exercised an informed choice of washing
\n      their hands off their onerous bequest requiring them to<\/p>\n
      take     and     keep     accounts        which        would                 entail
\n      infrastructural       costs     and     may    result        in    a     negative
\n      cost-benefit      ratio,     they      being     mere       charities            ill-
\n      equipped to be as litigious as the Petitioner whom they<\/p>\n
      might be required to contend with. Once, therefore, it
\n      is seen that the U.S. Charities or their nominees in
\n      India    have    received      the     full    share     agreed          by      them
\n      pursuant to the withdrawal of their Appeal, which would<\/p>\n
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\n                                   73                              MISC. PTN. 70\/2010<\/p>\n
      in turn result in withdrawal of their grounds of Appeal
\n      or any allegations made by them or surprises expressed<\/p>\n
      by them in the Memo of Appeal, consequent upon their
\n      constraint in receiving the amounts agreed to be paid<\/p>\n
      to   them    under    the   Foreign    Exchange          Regulations               in
\n      India, neither the Petitioner nor the Court can go<\/p>\n
      further.\n<\/p>\n
    85. Consequently, the contention of Dr. Singhvi that the<\/p>\n
      Indenture of Transfer as well as the MOS are bad as
\n      unregistered and unstamped and\/or inadequately stamped<\/p>\n
      documents, though correct on first principle, may lead
\n      the Petitioner no further.\n<\/p>\n
    86.    Ergo,    the    Petitioner       must     show         its        interest<\/p>\n
      prejudicially affected.(See: Parimal Kr. Das vs. Prasun
\n      Kr. Das, (2004) 1 Cal LT 621 para 6). The prejudice, if<\/p>\n
      any, suffered must be shown to be derogatory to the
\n      interest of the estate and the beneficiaries who would<\/p>\n
      claim the estate pursuant to the administration of the
\n      estate in which the Petitioner s interest is adversely
\n      affected.     It     must   show   how       the    estate           suffered,
\n      sustained or underwent any loss by the administration.\n<\/p>\n
      The prejudice suffered is not the loss incurred, the
\n      nuisance borne, the supervision endured, the accounts
\n      withstood, the proceeds partaken or even the litigation
\n      met by an outsider to the estate or a third party that<\/p>\n
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\n                                           74                              MISC. PTN. 70\/2010<\/p>\n
      the     estate          would     have   to   contend         with         and        whose
\n      interests are diametrically different from the interest<\/p>\n
      of the estate, such as are of the Petitioner.                                       It is
\n      not for the Petitioner to show how any other party<\/p>\n
      could       be     at     the     receiving     end.          The        Petitioner,
\n      therefore, cannot merely show its woes or travails at<\/p>\n
      the hands of the Respondent who sought to administer
\n      the estate in the best interests of the estate.                                          The
\n      prejudice        shown       by    the   Petitioner          to      claim         locus,<\/p>\n
      therefore, itself               militates against the reliefs                          that
\n      could be granted to the Petitioner to do away with the<\/p>\n
      Respondent whom it has to withstand and contend.                                      (See:
\n      Dwarika N. Addya vs. Jogabandhu D. Poddar, (1896) ILR<\/p>\n
      23 Calcutta 446).\n<\/p>\n
    87. Rather than showing how any of those acts have caused
\n      prejudice to the Petitioner, it is only made clear to<\/p>\n
      Court       that    those       acts,    even    if      undertaken              by      the
\n      Respondent individually and singly and without even the<\/p>\n
      tacit participation of the Petitioner, enured for the
\n      benefit of the Petitioner the most.                               The Petitioner
\n      would continue to reap the benefits of its capital
\n      investments             in   the    estate      of    the       testator              being<\/p>\n
      developed by him to the extent of 88% of the proceeds.\n<\/p>\n
    88.     The    Petitioner,           however,     contends            that         if      the
\n      Respondent is removed as administrator, the Petitioner<\/p>\n
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\n                                          75                               MISC. PTN. 70\/2010<\/p>\n
      would be required to pay the U.S. Charities 12% of the
\n      profits made by the Petitioner instead and hence his<\/p>\n
      development would not be, in any way, altered. It is
\n      contended by Dr.Singhvi that the Petitioner has a right<\/p>\n
      to pay the profits arising out of the estate of the
\n      deceased      to    a    legitimate        estate        holder          and       not       a<\/p>\n
      pretender      as       the    Respondent.        If      that        is       so,       the
\n      Petitioner has suffered no prejudice by the grant or
\n      the    continuance            of   the    grant     to        the        Respondent.\n<\/p>\n
      Consequently, the Petitioner would not be entitled to
\n      maintain an action for removal of the Respondent.\n<\/p>\n
    89. The Petitioner has challenged the order dated 20th<\/p>\n
      November 2003 and prayed for its revocation alleging
\n      mala fides on the part of the Respondent.                                 The order,<\/p>\n
      as    aforesaid,        has    been      obtained      about         three         months
\n      after the death of Bachoobai.                   It is an order to allow<\/p>\n
      the Respondent to continue to be the administrator of
\n      the estate of the deceased under the power granted by<\/p>\n
      Bachoobai.     Bachoobai           having      expired,          her       power         had
\n      terminated.         The grant, however, is contended to be
\n      made    not   under       Section        241   limited         until         Bachoobai
\n      herself obtained probate but under Section 301 of the<\/p>\n
      IS Act, which deals with appointment of an executor
\n      upon the removal of the earlier executor and which does
\n      not    deal    with       any      limited      grant         or       appointment.
\n      Nevertheless, the Respondent applied for continuation<\/p>\n
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\n                                      76                                MISC. PTN. 70\/2010<\/p>\n
      to act as an administrator. It is contended by the
\n      Petitioner that this itself shows that the Respondent<\/p>\n
      believed that his power to act as administrator would
\n      have otherwise ended but for the permission to continue<\/p>\n
      by the Court.\n<\/p>\n
    90.     To   appreciate        the    mala     fides        alleged            by       the
\n      Petitioner, what was the position of the parties in
\n      November      2003      must,        therefore,           be        appreciated.\n<\/p>\n
      Bachoobai had died. The Power of Attorney had come to
\n      an end.       The Grant was pursuant to the said Power of<\/p>\n
      Attorney.      The Petitioner as well as the Respondent had
\n      acted upon the Grant. Bachoobai had exercised her power<\/p>\n
      as    executor      under    Clause     IX    of    the        Will.        She       had
\n      consented      to     the    property       being      developed              by      the<\/p>\n
      Petitioner.         The Petitioner had put in enormous capital
\n      in    developing      the    property.       The    Respondent,               as      the<\/p>\n
      administrator, was receiving 12% of the proceeds.                                     The
\n      Petitioner was receiving the commensurate 88%. There<\/p>\n
      was none else to administer the property. The U.S.
\n      Charities had been paid off upon the settlement reached
\n      with them. There were no other beneficiaries under the
\n      Will. Bachoobai having been a residuary legatee became<\/p>\n
      the absolute owner of the properties of the testator in
\n      India which were developed by the Petitioner. Bachoobai
\n      had    left   the     Will    in    which    she    bequeathed              all       her
\n      properties       to    the    Respondent s          sons         as      the        only<\/p>\n
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\n                                        77                                 MISC. PTN. 70\/2010<\/p>\n
      beneficiaries         and    appointed      the     Respondent               her       sole
\n      executor. The clock turned full circle.\n<\/p>\n
    91.     If     the     Respondent       was     not       to        continue,              the<\/p>\n
      development          would     come    to     a    premature              halt.          The
\n      Petitioner would have to call it a day.                           The Petitioner<\/p>\n
      would have been most adversely affected. The Respondent
\n      had        the     authority     as    well       as       the        title          under
\n      Bachoobai s Will as an executor thereunder. There was<\/p>\n
      no party to whom the estate of the deceased would have
\n      vested who was not brought to light or whose claim was<\/p>\n
      suppressed.          In a case such as that, this Court in its
\n      testamentary jurisdiction would exercise its inherent<\/p>\n
      and discretionary power to continue the administration
\n      once granted in the hands of the same administrator who<\/p>\n
      had until then administered the estate.                                 If however,
\n      there would be any party who had a legitimate claim to<\/p>\n
      the    estate        of   the    testator         but       whose         claim          was
\n      suppressed, he\/she could have come to Court to have the<\/p>\n
      permission of the Court granted to the Respondent to
\n      continue as an administrator set aside.\n<\/p>\n
    92. The Petitioner has sought to do that.                           The Petitioner<\/p>\n
      is not the beneficiary of the estate of the testator or
\n      even of Bachoobai.             The only interest of the Petitioner
\n      is in developing the property. It is contended on his
\n      behalf that the authority given to the Petitioner to<\/p>\n
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\n                                           78                                MISC. PTN. 70\/2010<\/p>\n
      develop       the      property           would        continue           even         after
\n      Bachoobai s death; only 12% share in the proceeds could<\/p>\n
      be given to another person or another administrator.
\n      That    would      simpliciter           not     give    the       Petitioner              the<\/p>\n
      cause of action to have the administrator changed or to
\n      revoke    the       permission           of    the     Court     granted           to      the<\/p>\n
      administrator          to    continue          in     administration,               if     the
\n      administrator did not go well with the Petitioner.\n<\/p>\n
    93. The Petitioner has questioned the mode of applying
\n      for such continuance also. My attention is drawn to<\/p>\n
      certain objections that the office of the Prothonotary
\n      and Senior Master of this Court had raised, including<\/p>\n
      questioning         why     the         Petition       was      filed         when         the
\n      Petitioner was already appointed administrator under<\/p>\n
      the     order      dated         21st    December        1972.        This,          though
\n      assured       to      be    mentioned            to     the      Judge          for        his<\/p>\n
      satisfaction, is not shown to have been questioned or
\n      mentioned. My attention is also drawn to the fact that<\/p>\n
      the documents upon which the Respondent craves leave to
\n      refer    to     and    rely       upon        were    filed     in     the       separate
\n      compilation and were not present to the mind of the
\n      Court when the order came to be passed.                              The Petitioner<\/p>\n
      contends        that       the     aforesaid          objections            show         that
\n      material facts were suppressed. Dr.Singhvi contended
\n      that the cryptic order passed so soon after the filing
\n      of the Petition shows that the Respondent was in an<\/p>\n
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\n                                          79                               MISC. PTN. 70\/2010<\/p>\n
      indecent hurry. The Petition has been filed on 12th
\n      November    2003.       It    was       brought       up    on     Board         on      20th<\/p>\n
      November     2003.           It     was       accepted,       made         returnable
\n      forthwith and disposed of in terms of the Judge s Order<\/p>\n
      which    allowed        the       Petitioner       to       continue             as      the
\n      administrator.\n<\/p>\n
    94. The two orders granted in favour of the Respondent by
\n      the same Court in respect of the same Will must fairly<\/p>\n
      be compared to appreciate this contention of ill-gotten
\n      order.     The order dated 21st December 1972 was passed<\/p>\n
      in Misc. Petition No.29 of 1972.                            That Petition was
\n      filed a day before – on 20th December 1972. That order,<\/p>\n
      obtained     on    the       very       next     day       after       filing          that
\n      Petition,    is        accepted         and    acted       upon      by      both        the<\/p>\n
      parties. It is not challenged. It is the source of
\n      authority     of       the        Petitioner       as       developer.                Misc.\n<\/p>\n
      Petition No.41 of 2003 was filed on 12th November 2003.
\n      The order\/directions for continuing the grant to the<\/p>\n
      Respondent        as     administrator             was        passed           8       days
\n      thereafter.       It    was       passed      under     similar          uncontested
\n      circumstances. Yet it is challenged because the tables
\n      have turned.\n<\/p>\n
    95. So much for two like orders reflective of similar
\n      situations of instant justice!<\/p>\n
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\n                                      80                             MISC. PTN. 70\/2010<\/p>\n
    96. Misc. Petition No.41 of 2003 was not for application<\/p>\n
      of the grant.       The grant had earlier been applied for.
\n      The    Petitioner       was    already    an    administrator.                     The<\/p>\n
      Petition     was,        therefore,       only        for          directions.
\n      Directions       were    not    against        the    interest             of      any<\/p>\n
      beneficiary named in the Will who was not paid off or
\n      whose legacy remained to be effectuated.                      There were no
\n      contestants. It was, by its nature, for ministerial<\/p>\n
      directions of continuing the work of administration.
\n      The only work to continue was the development of the<\/p>\n
      property by the Petitioner as the project co-ordinator
\n      as also the other firms of the Raheja family similarly.\n<\/p>\n
      A Judge s Order, in such a Petition, suffices under the
\n      procedure, by which this Court is governed under the<\/p>\n
      rules framed by this Court on its Original Side.                                 Such
\n      directions are necessarily obtained ex-parte, upon mere<\/p>\n
      application on a Judge s Order. Of course, if any party
\n      is prejudiced by any misrepresentation or fraud, the<\/p>\n
      order would stand vitiated upon an application made in
\n      that    behalf    in    accordance       with    law       and       procedure.
\n      Though, therefore, the Petition was filed, the Will and
\n      the other documents were annexed thereto as well as in<\/p>\n
      a compilation as per the requirement in the objections
\n      of the Prothonotary & Senior Master s office, it would
\n      be understandable that they were neither referred to
\n      nor shown to the Court, unless required by Court.                                    In<\/p>\n
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\n                                     81                               MISC. PTN. 70\/2010<\/p>\n
      an    uncontested      case   such    as    this,       it     would         not      be
\n      required as there would be no reason for the Court to<\/p>\n
      doubt the bona fides of the claim. The Petition makes a
\n      reference to the facts that transpired prior to the<\/p>\n
      Petition, including the efforts of the administrator
\n      with regard to the development of the property of the<\/p>\n
      deceased, the question relating to the failing of the
\n      legacy, the transfer of Bachoobai s interest to the
\n      administrator and her ultimate demise.\n<\/p>\n
    97.    The    grant    was   obtained\n                                  ig         by   the     Respondent              on      27th\n<\/pre>\n
      December 1972. The order dated 27th December 1972 is
\n      not sought to be revoked. That is the order under which<\/p>\n
      the Respondent, as the administrator, sought to allow
\n      the Petitioner to develop the property. The order dated<\/p>\n
      20th November 2003 is alone sought to be revoked. That
\n      is the order passing directions to continue the grant.\n<\/p>\n
      Though Petition No.41 of 2003 does not show a specific
\n      section of the Indian Succession Act, under which it<\/p>\n
      came       to   be   filed,   Mr.     Nariman      on        behalf         of      the
\n      Respondent stated that it was only for directions to an
\n      administrator under Section 302 of the IS Act.                              Section
\n      302 runs thus:-\n<\/p>\n
                  302. Directions to executor or administrator.-
\n                 Where probate or letters of administration in
\n                 respect of any estate has or have been granted
\n                 under   this Act,   the High   Court may, on
\n                 application made to it, give to the executor or<\/p>\n
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\n                                        82                                MISC. PTN. 70\/2010<\/p>\n
              administrator any general or special directions
\n              in regard to the estate or in regard to the
\n              administration thereof.\n<\/p><\/blockquote>\n
    98.    Dr.Singhvi      argued           that    the    continuation               of      the<\/p>\n
      Respondent    as     administrator             of     the      estate           of      the
\n      testator     in    India         militates          against          the        express<\/p>\n
      provision    made     by    the           testator    for       appointment               of
\n      successor     executor          in        Clause     VIII       of       the         Will.
\n      Bachoobai had a life interest under Clause V of the<\/p>\n
      Will. The U.S. Charities had the absolute beneficial
\n      interest under Clause IV of the Will. After the death<\/p>\n
      of    Bachoobai,    the     successor          executor         would         have        to
\n      apply the estate of the deceased for the benefit of the<\/p>\n
      U.S. Charities and administer the estate such as to
\n      transfer the estate of the deceased to them.\n<\/p>\n
    99. A reference was made by Dr.Singhvi to the case of C.\n<\/p>\n
      Masilemani        Mudaliar            &     ors.     vs.        Idol          of        Sri
\n      Swaminathswami Thirukorl & ors., 1996 8 SCC 529 to<\/p>\n
      contend that life interest could never be converted
\n      into    absolute      interest              except      when          specifically
\n      provided     by    law     as     in        Section     14       of      the         Hindu
\n      Succession Act under which a Hindu widow in possession<\/p>\n
      of property in lieu of her right of maintenance (which
\n      includes residence) would be entitled to full interest
\n      thereunder    so    that     her          possession       would        ripen         into
\n      ownership     which        can        devolve        upon       her        heirs          by<\/p>\n
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\n                                    83                           MISC. PTN. 70\/2010<\/p>\n
      testamentary        and   intestate     succession.        However,            the
\n      Respondent never sought substantive rights under the<\/p>\n
      order dated 20th November 2003.\n<\/p>\n
    100.Since the U.S. Charities had already settled their
\n      interest and claim and\/or were paid off prior to the<\/p>\n
      death of Bachoobai, that beneficial interest had itself
\n      been accelerated. Bachoobai was the residuary legatee.
\n      Once the beneficial interest in the properties of the<\/p>\n
      deceased      was    settled,     the   remainder       would          be      the
\n      residuary bequest going only to Bachoobai. The entire<\/p>\n
      of the remainder of the property of the deceased was
\n      the property which was being developed in India. No<\/p>\n
      part of that property then had to be administered to be
\n      paid over to the U.S. Charities in the U.S.A.                                  The<\/p>\n
      successor executor was the partner of Coudert Brothers
\n      who would be designated by three of the partners of<\/p>\n
      that firm. He was the executor in the U.S.A. He would
\n      be required to administer the property of the deceased<\/p>\n
      in   India.    He    would   be   required    to     administer              that
\n      property for Bachoobai (as the residuary                    legatee) and
\n      not for U.S. Charities.           He was authorised to designate
\n      an individual or a Bank to act on his behalf in India.\n<\/p>\n
      It is technically correct to say that such successor
\n      executor should have been appointed by the competent
\n      Court in New York, U.S.A. from amongst the partners of
\n      Coudert Brothers. Such executor would then designate an<\/p>\n
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\n                                    84                                MISC. PTN. 70\/2010<\/p>\n
    individual or a Bank in India to administer the estate.
\n    If   that     is    not    done,     the     person      prejudiced               would<\/p>\n
    certainly      obtain      orders     of     the     Court        to      get       that
\n    appointment made.            If the ultimate beneficiaries were<\/p>\n
    paid off, no one other than Bachoobai, who was then the
\n    residuary      legatee       would      be     the       beneficiary.                 The<\/p>\n
    Respondent was appointed administrator by this Court
\n    pursuant to the Power of Attorney of Bachoobai herself.
\n    For the lifetime of Bachoobai or until she revoked her<\/p>\n
    power, the Respondent had the authority to continue to
\n    administer the estate. Until then the nomination of the<\/p>\n
    deceased had not ripened.                  If the successor executor
\n    nominated by the deceased had to be appointed, it could<\/p>\n
    have   been    only       after     Bachoobai s       death.           Instead          of
\n    having      that      successor         executor           appointed,                 the<\/p>\n
    Respondent sought to continue to act as administrator
\n    under the order obtained in Miscellaneous Petition No.<\/p>\n
    41 of 2003. Upon the death of Bachoobai, there was no
\n    beneficial     interest       under     the    Will       of      the       deceased<\/p>\n
    which remained to be paid off and hence none could have
\n    applied     under     the    Will     of     the    deceased            either          to
\n    appoint the nominated successor as the executor or to
\n    challenge the continuation of the Respondent as the<\/p>\n
    administrator.        This    was,     therefore,          a    matter          wholly
\n    uncontentious.        Hence       nothing     but     directions              of      the
\n    Court under Section 302 were required to be passed for
\n    allowing      the     Respondent        to     continue             to       act        as<\/p>\n
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\n                                     85                                 MISC. PTN. 70\/2010<\/p>\n
      administrator of the estate of the deceased.\n<\/p>\n
    101. In the judgments relied upon by Dr.Singhvi himself,
\n      this position is made absolutely clear.                         In the case of<\/p>\n
      Provas Chandrar Sinha vs. Ashutosh Mukherji, AIR 1930
\n      Calcutta    258,    it   has       been      held     that        the       disputed<\/p>\n
      questions    of    title   could         not    be      determined              in      an
\n      application under Section 302 where the jurisdiction of
\n      the Court is confined to the issue of directions to the<\/p>\n
      executor    relating     to        the   management           of      the       estate
\n      alone.\n<\/p>\n
    102. In the case of Akshoy K. Ghose, deceased AIR (36)<\/p>\n
      1949 Calcutta 462, it has been held that the directions
\n      required to be passed in an application under Section<\/p>\n
      302 involving no substantial rights for adjudication or
\n      determination were only to help the executor in the<\/p>\n
      difficulties      in   respect          of   practical          management              or
\n      administration where no disputed questions of title or<\/p>\n
      difficult   questions      of       construction           of      the      Will        or
\n      complicated       questions        of    law    were       involved.              Those
\n      orders are necessarily ex-parte but do not give final
\n      protection to the executors, if on a subsequent inquiry<\/p>\n
      it was found that they had acted improperly.                                Hence if
\n      the U.S. Charities were not paid, the executors will be
\n      seen to have acted improperly.                 After the order came to
\n      be passed on 20th November 2003 allowing the Respondent<\/p>\n
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\n                                      86                               MISC. PTN. 70\/2010<\/p>\n
      to continue as an administrator, nothing further was
\n      done or had to be done for paying off any beneficiary<\/p>\n
      under the Will of the deceased.                  The administrator had
\n      to     take   only       accounts    of    the    development                of      the<\/p>\n
      property in India which, by then having been vested in
\n      Bachoobai, was bequeathed to his sons in a separate<\/p>\n
      testament of which also he was an executor.\n<\/p>\n
    103. The moot questions that would be the test of the<\/p>\n
      Petition are : Would it prejudice the Petitioner ?                                     If
\n      the order of continuance of the administrator was not<\/p>\n
      granted, would it have then prejudiced the development
\n      of the Petitioner ?            Was it, in fact, for the benefit<\/p>\n
      of the Petitioner ?                 Needless to state that only a
\n      party having an interest in the estate of the deceased<\/p>\n
      which would be detrimentally affected by passing of
\n      such     order      could    have    it    set    aside,           restored            or<\/p>\n
      annulled, be it merely a direction.\n<\/p>\n
    104. The Petitioner also contends that the order dated
\n      20th November 2003 requires to be revoked as it was
\n      obtained fraudulently by the Respondent, making a false
\n      suggestion         and    concealing      from    the       Court          material<\/p>\n
      aspects.      The Petitioner also contends that grant was
\n      obtained      by    mentioning       untrue      allegations             of       facts
\n      essential in point of law to justify the grant .                                     The
\n      case     of    the       Petitioner       of     suggestio            falsi          and<\/p>\n
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\n                                      87                             MISC. PTN. 70\/2010<\/p>\n
      suppressio veri is upon the fact that :\n<\/p>\n
      (i) Bachoobai has been claimed to be the sole executrix
\n      which she was not;\n<\/p>\n
      (ii)    the   bequest     to    charity    has     been        shown         to      be<\/p>\n
      frustrated which was not; and<\/p>\n
      (iii) the indenture made by            Bachoobai in favour of the<\/p>\n
      Respondent and his Companies was a fraud for want of
\n      adequate consideration that passed thereunder.\n<\/p>\n
      These    three    aspects      are,   therefore,         required            to      be<\/p>\n
      separately considered thus :\n<\/p>\n
    105.(i) It is contended by Dr.Singhvi that since there
\n      were successor executors mentioned in the Will even the<\/p>\n
      nomenclature       of     Bachoobai       as     sole        executrix               is
\n      fraudulent and fraught with mischief.                     It is argued on<\/p>\n
      behalf     of     the     Petitioner       that        the         expressions
\n       successor       and    any executor      in Clause VIII show that
\n      Bachoobai was not the sole executrix.                       The contention
\n      is incorrect as Clause VIII begins thus:-\n<\/p>\n
                I nominate, constitute and appoint my sister,
\n             Bachoo Woronzow, to be the executrix of this my
\n             will and in the event that she shall predeceased
\n             me, fail to quality or cease to act for any reason
\n             I nominate, constitute and appoint as successor<\/p>\n
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\n                                88                              MISC. PTN. 70\/2010<\/p>\n
          such then partner of Coudert Brothers. …….\n<\/p><\/blockquote>\n
      The expression     executrix    in first part of Clause VIII<\/p>\n
      of the Will shows clearly that she was the only named<\/p>\n
      executrix. There was none to act along with her.\n<\/p>\n
    106. In fact the boot is on the other foot.                        It may be<\/p>\n
      mentioned   that   Bachoobai    was      described         as     the       sole
\n      executrix as well as the sole beneficiary under the
\n      Will of the testator in Miscellaneous Petition No.29 of<\/p>\n
      1972 itself, under which the Respondent obtained his
\n      initial grant from this Court. The Petition filed as<\/p>\n
      well as the grant obtained have been recited in the
\n      Agreement of the Respondent with the Petitioner dated<\/p>\n
      2nd January 1995. The Petitioner knew about the said
\n      description since 1995 since the execution of the Will<\/p>\n
      itself came to be recited in the said Agreement and the
\n      Petitioner knew and must be taken to have known the<\/p>\n
      contents thereof.      Even the bequest to charity was
\n      known to the Petitioner from the contents of the Will.\n<\/p>\n
      It is only in view of the bequest to charity that
\n      Bachoobai would have a life interest albeit with the
\n      powers   conferred   upon     her   in    her     capacity            as      the
\n      executrix in Clause IX of the Will.\n<\/p>\n
    107. Of course, the Will mentions how successor executors
\n      would be appointed. They would be partners of the U.S.
\n      Attorneys firm of Coudert Brothers. Those partners have<\/p>\n
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\n                                   89                                MISC. PTN. 70\/2010<\/p>\n
    been mentioned in the citation along with the trustees
\n    named in the Will as also the executrix mentioned in<\/p>\n
    the   Will.    They       would    be    certainly         required            to      be
\n    notified      of    the    death    of     Bachoobai,           if       her       life<\/p>\n
    interest came to an end.                The Respondent would be duty
\n    bound to notify the same; they were not to call upon<\/p>\n
    the Respondent to perform their obligation as executor
\n    as claimed by him. However, that duty would come into
\n    play if the life interest came to an end without any<\/p>\n
    other interest having ripened.               If the U.S. Charities,
\n    who were the beneficiaries under the Will, no longer<\/p>\n
    had   any   beneficial       interest       under       the      Will        and       if
\n    Bachoobai,      as    a    residuary       legatee,         would          get       the<\/p>\n
    remainder of the estate of the testator there would be
\n    nothing left in the Will to execute by the successor<\/p>\n
    executor for the beneficiaries mentioned in the Will.
\n    In such an event alone, they would not be required to<\/p>\n
    be informed of their position and obligations by the
\n    Respondent.         The beneficial interest of Bachoobai in<\/p>\n
    the   properties      of     the    deceased       in      India         could         be
\n    continued      to    be    administered       by      the       administrator
\n    appointed in India. Consequently, much ado that was
\n    made about the successor executors not being informed<\/p>\n
    by the administrator in India, who sought to continue
\n    to act, comes to nothing, at least when it is not so
\n    contended by the only beneficiaries who would have an
\n    interest in the administration of the estate of the<\/p>\n
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\n                                        90                              MISC. PTN. 70\/2010<\/p>\n
      deceased     the U.S. Charities.\n<\/p>\n
       (ii) The Respondent had applied for an opinion of this
\n      Court in Originating Summons No.1504 of 2000 in Suit<\/p>\n
      No.5034 of 2000 (O.S.) filed by him that the bequest to
\n      charities had failed. This led to an appeal by the U.S.\n<\/p>\n
      Charities    and       ended      in    a   settlement          as      aforesaid.
\n      Pending disposal of the Originating Summons and prior
\n      to the order passed therein, an indenture came to be<\/p>\n
      executed by Bachoobai.\n<\/p>\n
    108.(iii) The Indenture executed by Bachoobai is indeed
\n      rather strange.            This was during the time she only had<\/p>\n
      a life interest. She could not have transferred the
\n      entire    property         of    the    deceased      to      the       Respondent<\/p>\n
      unless she came to own the said property pursuant to a
\n      full and absolute bequest. Yet it is contended that the<\/p>\n
      Indenture is a transfer of the properties under the
\n      Will of the testator to the Respondent and certain four<\/p>\n
      Companies of the Respondent for a consideration of only
\n      Rs.20    Lakhs    when      the       properties    were        worth         several
\n      crores    going       by   the    consideration         mentioned             in      the
\n      Agreement for development of the said property dated<\/p>\n
      2nd January 1995. That consideration is not at all as
\n      propagated       by    Dr.Singhvi.          The    Indenture           dated          26th
\n      September    2001       was     pursuant     to    Bachoobai            being         the
\n      residuary legatee under Clause V, though she had a life<\/p>\n
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\n                                          91                            MISC. PTN. 70\/2010<\/p>\n
      interest in the properties sought to be transferred.
\n      The Indenture interpreted Section 118 of the IS Act<\/p>\n
      showing its inapplicability to the Will to render the
\n      charitable bequest void as contended in the Originating<\/p>\n
      Summons and showed the intention of Bachoobai to sell
\n      her right, title and interest in the corpus of the<\/p>\n
      property of the deceased in India contingent upon the
\n      High Court decision that that property vested in her.
\n      The consideration of Rs.20 Lakhs payable thereunder was<\/p>\n
      subject to her right to receive the income of that
\n      property during her lifetime and down to her death and<\/p>\n
      also subject to the donation of Rs.10 Crores to the
\n      corpus of another Trust under the Deed of Settlement<\/p>\n
      settled by her on 28th December 1973 being F.E. Dinshaw
\n      Trust.\n<\/p>\n
    109. The transfer has merged in Bachoobai s Will dated<\/p>\n
      17th    October       2001,    which      came    into     effect         upon her
\n      death     on    12th    August          2003,    under     which          also        her<\/p>\n
      property       came    to     be    bequeathed     to     the      Respondent s
\n      sons.\n<\/p>\n
    110. Hence though this indenture came to be executed<\/p>\n
      between        Bachoobai       and       the    Respondent           whilst           she
\n      continued to have the only life interest and whilst the
\n      legacy to the U.S. Charities were known to have been
\n      made and not held to have failed or lapsed, it is seen<\/p>\n
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\n                                    92                               MISC. PTN. 70\/2010<\/p>\n
     to have been executed by Bachoobai under the vast,
\n     unfettered powers inter alia to sell the properties of<\/p>\n
     the testator given to her under Clause IX of the Will
\n     recited above         the power to manage the estate of the<\/p>\n
     testator irrespective of any legal restrictions.\n<\/p>\n
    111. The transfer by Bachoobai of all the properties
\n     under the Will to the Respondent would confer upon him
\n     a clear title subject only to the claim of the U.S.\n<\/p>\n
     Charities     thereon.        There       is    none      other          who        can
\n     challenge the transfer, however unique that transaction<\/p>\n
     would be. Yet the transfer would enure for the benefit
\n     of the Petitioner even more; whereas the Respondent<\/p>\n
     would have a clear 12% of the gross proceeds from the
\n     development;        the     Petitioner         would     be      entitled             to<\/p>\n
     appropriate 88% of it.               Similarly if the bequest to
\n     U.S.    Charities     failed        and    if    Bachoobai,             upon        her<\/p>\n
     residuary interest, became the sole beneficiary and is
\n     bequeathed    that        property    absolutely,          aside        from        the<\/p>\n
     Respondent,    who        claims     through     Bachoobai            under         the
\n     aforesaid transfer, the Petitioner would benefit from
\n     being freed of the only encumbrance on that property
\n     which   was    of    the     U.S.     Charities.         Pertinently                and<\/p>\n
     interestingly, there is no mention of the only cloud of
\n     the U.S. Charities upon the rights of the Petitioner as
\n     well as the Respondent in the Development Agreement.
\n     Nonetheless, they could not be wished away. They had to<\/p>\n
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\n                                        93                              MISC. PTN. 70\/2010<\/p>\n
      be dealt with. It is impossible to accept that the
\n      Petitioner, who is an astute business Company in the<\/p>\n
      business of development, would not have its hand in
\n      such dealing. Hence, the entire transaction is either<\/p>\n
      not fraudulent from the inception or it was an attempt
\n      to    deceive    which      failed      to    deceive       or      defraud           the<\/p>\n
      Petitioner.\n<\/p>\n
    112.Of course, following up Derry Vs. Peak (1889) 14 AC<\/p>\n
      337 fraud vitiates any transaction. (See : Yeshwant
\n      Deorao vs. Walchand Ramchand, AIR<\/a> (38) 1951 SC 16;\n<\/p>\n
      Punjab Mercantile Bank Ltd. Sardar Kishan Singh, AIR
\n      1963 Punjab 230;           Shrisht Dhawan vs. M\/s.Shaw Brothers,<\/a><\/p>\n
      (1992) 1 SCC 534; Devu Veerabhadra Rao Vs. Gollapalli
\n      Latchanna       2002(3)     ALT       608;    Ram    Chandra            Singh         vs.<\/p>\n
      Savitri Devi,<\/a> (2003) 8 SCC 319;                     A.V. Papayya Sastry
\n      vs. Govt. of A.P.,<\/a> (2007) 4 SCC 221 and                            Meghmala vs.<\/p>\n
      G. Narasimha Reddy,<\/a> (2010) 8 SCC 383).\n<\/p>\n
    113. However, a contract vitiated by fraud is not a void
\n      contract. It is voidable at the instance of the party
\n      defrauded or injured; (See Sarala Sundari Dassya Vs.
\n      Dinabandhu      Roy    Brajaraf        Saha    (Firm),        AIR       (31)        1944<\/p>\n
      Privy Council 11; (which was held to be a fraud by
\n      which the applicant would be affected adversely by the
\n      grant of probate per Atkin LJ) it is not voidable at
\n      the    instance       of   the    party       benefited.          If      the       U.S.\n<\/p>\n
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                                   94                                MISC. PTN. 70\/2010\n\n      Charities     are   seen    to    be     defrauded,        the       Respondent\n<\/pre>\n
      could expect no cover from the Court no matter that the<\/p>\n
      U.S.   Charities      did        not     file     the        Petition              but
\n      nevertheless, thanks to the Petitioner, the fraud came<\/p>\n
      to   light.    If   however,       the    U.S.     Charities             are       not
\n      defrauded, the Petitioner would not be entitled to the<\/p>\n
      cover of the Court.\n<\/p>\n
    114. Dr.Singhvi has drawn my attention to Section 310 of<\/p>\n
      the Indian Succession Act which runs thus:\n<\/p>\n
                 310. Purchase by executor or administrator of
\n                deceased s   property.-If  any   executor   or<\/p>\n
                administrator purchases, either directly or
\n                indirectly, any part of the property of the
\n                deceased, the sale is voidable at the instance
\n                of any other person interested in the property<\/p>\n
                sold.\n<\/p><\/blockquote>\n
      The Respondent, as the administrator of the property of
\n      the deceased, did purchase it from the holder of the<\/p>\n
      life interest before the ultimate bequest could take
\n      effect.     The purchase would be voidable at the instance
\n      of the other person interested in the property. But for<\/p>\n
      the settlement, the U.S. Charities would be the only
\n      persons interested in the property and consequently,
\n      the transfer to the Respondent could be voidable at
\n      their instance alone.            They having been stated to have
\n      been   paid   off   under    the       settlement,         they        would         no<\/p>\n
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\n                                   95                                  MISC. PTN. 70\/2010<\/p>\n
      longer be interested in the property sold, except if
\n      the settlement itself failed.              The Petitioner, who has<\/p>\n
      questioned the Indenture dated 26th September 2010 is
\n      not the person interested in the property sold pursuant<\/p>\n
      to being a developer thereof.              It is a mere developer.
\n      It has to develop the property, appropriate 88% of the<\/p>\n
      proceeds of the property of development and pay 12% to
\n      the   estate   of    the   testator.         It    hardly          behoves           the
\n      Petitioner,    therefore,        to   question         the       indenture             of<\/p>\n
      transfer of the property when it cannot and has not
\n      even avoided it in a separate civil suit.\n<\/p>\n
    115. Dr.Singhvi contended that Section 310 of the IS Act<\/p>\n
      is analogous to Section 53 of the Indian Trust Act and
\n      Section 91 of the Probate and Administration Act, which<\/p>\n
      enjoins trustees not to purchase the interest of the
\n      beneficiaries with court permission and to indemnify<\/p>\n
      the   transferor     respectively.         He      contended             that        the
\n      Respondent, as the administrator, was in the position<\/p>\n
      of    a   trustee      because        he     was        in       a       fiduciary
\n      relationship.       This   relationship           was        also        with        the
\n      ultimate beneficiary. The Respondent herein is himself
\n      the ultimate beneficiary, individually or along with<\/p>\n
      his   sons.    Hence       though      the        argument            is       rather
\n      attractive, it is also only academic.                     (See :           Laxmidas
\n      G. Dossa vs. Ismail G. Kassum,<\/a> (1926) 28 BLR 1262;
\n      Baroda P. Banerji vs. Gajendra N. Banerji, I IC 289;\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span><\/p>\n
                                       96                              MISC. PTN. 70\/2010<\/p>\n
     Manohar Mukherjii Vs. Raja Peary Mohan Mukherjee 54 IC
\n     6 and 1921 LR 48 IA 258 in appeal to Privy Council from<\/p>\n
     Calcutta High Court and Hari Narain vs. Badri Das, AIR<\/a>
\n     1963   SC    1558     which      related      to    the     relationship                of<\/p>\n
     landlord and tenant only).\n<\/p>\n
    116. It is contended, and upon a plain reading of the
\n     Indenture     dated       26th    September        2001     would         stand         to
\n     reason,     that     the    Respondent,        as    the       administrator,<\/p>\n
     buying      over    the    property      in    administration                 in      his
\n     personal capacity was hit by the doctrine of conflict<\/p>\n
     of interest as he was a fiduciary. (See :                                James, Ex
\n     parte,      Court    of     Chancery,      (1803)         Vol.32.           ER      385;\n<\/p>\n
     Manohar Mookerjee vs. Raja Peary Mohan Mookerjee, 54
\n     I.C 6 and          1921 LR 48 1A in appeal to Privy Council<\/p>\n
     from Calcutta High Court; Pandurang Shamrao Laud vs.
\n     Kalliandas, AIR<\/a> 1933 Bombay 342;                   Brijkishore Singh vs.<\/p>\n
     Smt.Nazuk      Bai,       AIR    1948    Calcutta         19       and            Regal
\n     (Hastings) Ltd. vs. Gulliver, House of Lords, (1967) 2<\/p>\n
     A.C. 134 which is an authority for acts of Directors of
\n     a Limited Company as trustees of the Company).                                      This
\n     proposition of law would have attracted the embargo
\n     under Section 310 of the IS Act, if a person interested<\/p>\n
     in   the    estate     of       the   deceased      whose         interest            was
\n     affected      by    such    transfer       would      have        applied.            The
\n     Petitioner is not interested in the property sold and
\n     its interest is not affected by such transfer. In fact,<\/p>\n
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\n                                      97                                 MISC. PTN. 70\/2010<\/p>\n
      its interest is safeguarded under such transfer.\n<\/p>\n
    117.    Dr.Singhvi       contended      that      the      Petitioner,               as      a
\n      developer,       is     bound        to   agitate           its        rights            of<\/p>\n
      development of the estate of the deceased upon even a
\n      bare possibility of an interest in the estate of the<\/p>\n
      Testator as a purchaser or transferee from an heir of
\n      the deceased or a contingent interest. (See:                                   Kipping
\n      and Barlow vs. Ash (1845) 163 E.R. 1035; Muddun Mohun<\/p>\n
      Sircar vs. Kali Churn Dey, 1892 (Vol.XX)ILR Calcutta
\n      37;     Lalit   Mohan       Bhuttacharjee
\n                                   ig                  vs.        Navadip            Chandra
\n      Kaparia,        1901        (Vol.XXVIII)         ILR          Calcutta               587;
\n      Mokashadayini         Dassi    vs.    Karnadhar          Mandal,           AIR       1915<\/p>\n
      Calcutta 421;         A.P. Ismail Rowther vs. Mynoon Bivi, AIR<\/a>
\n      1966 Madras 84 and Inox Air Products Ltd. vs. Harshita<\/p>\n
      Ltd., MANU\/DE\/1923\/2010 (which are cases for setting
\n      aside    a   sale      in    execution     by    a      judgment             debtor);\n<\/p>\n
      Banwarilal Shriniwas vs. Kumari Kusum Bai, AIR 1973
\n      Madhya Pradesh 69; Elizabeth Antony vs. Michel Charles<\/p>\n
      John Chown Lengera, AIR<\/a> 1990 SC 1576 (holding that a
\n      party can apply even without caveatble interest) which
\n      was followed in Krishna Kumar Birla Vs. Rajendra Singh
\n      Lodha 2008 4 SCC 300 (for contingent interest).\n<\/p>\n
    118. Dr.Singhvi drew my attention to the case of Tara
\n      Chand Sharma vs. Uma Aggarwal, Punjab & Haryana                                      High
\n      Court, AIR<\/a> 2010 P & H page 30 para 29 in which it was<\/p>\n
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\n                                      98                                MISC. PTN. 70\/2010<\/p>\n
      observed that though the Petitioner must come to Court
\n      with clean hands and his conduct has to be above board,<\/p>\n
      the     jurisdiction       under     Section        301      to       remove          the
\n      executor for misconduct has to be exercised by the<\/p>\n
      Court upon taking an overall view of the matter.                                      The
\n      Court    cannot     shut    its     eyes       to   the     conduct           of      the<\/p>\n
      executor      and      allow        the        executor           to        continue
\n      irrespective      of    his    work       to    the     detriment             of      the
\n      property bequeathed merely because the complainant s<\/p>\n
      conduct was not above board.                   It is gratifying to note
\n      how   Dr.Singhvi       fairly
\n                              ig          conceded        the     conduct           of      the
\n      Petitioner.       In    fact,       it     has        not      come          up       for
\n      consideration except for challenging bona fides of the<\/p>\n
      Petitioner. In this Petition, it is not for the Court
\n      to see the acts of the Petitioner in development of the<\/p>\n
      testator s property             that would be seen in the suit
\n      filed by the Respondent. The misconduct of the executor<\/p>\n
      would certainly be seen by the Court and would never be
\n      countenanced.       It must, however, be misconduct such as<\/p>\n
      to prejudicially affect the party interested in the
\n      estate, which would be such that the party interested
\n      would not get its due share upon the administration by
\n      the executor. That party, in this case, would be the<\/p>\n
      only U.S. Charities and no other                    not by any count the
\n      Petitioner.\n<\/p>\n
    119. Similarly in the case of Maj. Gen. Jonathan Reuben<\/p>\n
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\n                                      99                              MISC. PTN. 70\/2010<\/p>\n
      Samson vs. Zillah Solomon, AIR<\/a> 1991 Bombay 222 para 35
\n      also this Court has observed that motive of filing the<\/p>\n
      Petition under Sections 263 and 301 is irrelevant and
\n      if   the   grounds       for        removal      of    administrator                  or<\/p>\n
      revocation    of   the    grant       are     proved,       the       Petitioner
\n      would be entitled to those reliefs. That, of course,<\/p>\n
      would be the Petitioner whose interest in the estate of
\n      the deceased would be prejudicially affected by the
\n      grant itself or by the acts of the administrator and<\/p>\n
      not a Petitioner whose interest would be, in fact,
\n      protected by such administrator.\n<\/p>\n
    120. The only effect of the said order allowing him to<\/p>\n
      continue was to take accounts of the development of the
\n      property to obtain 12% of the proceeds thereof under<\/p>\n
      the Agreement signed by him as the executor and to
\n      allow the development to go on smoothly so that the<\/p>\n
      ultimate     transfer      of       the     properties,            which          were
\n      developed, could be made to the ultimate purchasers of<\/p>\n
      those developed properties. Of course, if the 12% share
\n      in the estate of the deceased which the Respondent had
\n      to   administer      was        not        received,          the         ultimate
\n      beneficiaries would be entitled to apply to set aside<\/p>\n
      that order or to remove him as executor. Those ultimate
\n      beneficiaries      are   the        sons    of   the     Respondent.                The
\n      Petitioner is nowhere a contender.\n<\/p>\n
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                                     100                               MISC. PTN. 70\/2010<\/p>\n
    121. The various legally sound and correct arguments of<\/p>\n
      Dr.Singhvi,         though         a     gratification             for          one s
\n      intellectual appetite, remain purely academic, thanks<\/p>\n
      to the total lack of any beneficial interest of the
\n      Petitioner in the estate of the testator and the total<\/p>\n
      lack of prejudice suffered by him as also each event
\n      having a kinetic effect that transpired to put the
\n      Respondent at the helm.\n<\/p>\n
    122.It has been urged on behalf of the Respondent that<\/p>\n
      the Petitioner has no locus to file a Petition for
\n      revocation of the grant or even the order continuing<\/p>\n
      the grant and that the Petition filed for ulterior
\n      reason must be dismissed.                Other than any stranger or<\/p>\n
      an interloper any party with even a minor interest in
\n      the estate would be entitled to maintain an application<\/p>\n
      for   revocation      of     the       grant   (See     :     Perviz          Sarosh
\n      Batliwalla vs. Mrs.Viloo Plumber,<\/a> 2000(3) Maharashtra<\/p>\n
      Law     Journal     39;      Pirojshah         Bhikaji        vs.         Pestonji
\n      Merwanji,<\/a> 1910 (Vol.XII) Bombay Law Reporter; Dwarika
\n      N.    Addya   Vs.    Jogabandhu          D.    Poddar       (1896)          ILR       23
\n      Calcutta 446).\n<\/p>\n
    123. The Respondent has also contended that the Petition
\n      is barred by limitation because it is filed more than
\n      three    years    after      the       order   came   to      be      passed          in<\/p>\n
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\n                                      101                              MISC. PTN. 70\/2010<\/p>\n
    Miscellaneous Petition No.41 of 2003 which is sought to
\n    be revoked. That contention speaks of the law without<\/p>\n
    considering       the        exception.     The        Petition          would          be
\n    barred, if on the Petitioner s own showing it came to<\/p>\n
    Court to revoke the order more than three years after
\n    it received knowledge of the order. In the alternative,<\/p>\n
    the bar could be considered if the Respondent showed a
\n    precise date on which the Petitioner derived knowledge
\n    of   the    filing      of     Petition     No.41\/1993          to      start         the<\/p>\n
    period of limitation.             The precise date when limitation
\n    began      to   run      is
\n                              ig    not    shown      by     the        Petitioner s
\n    knowledge.        Mere        delay    or    even       knowledge               cannot
\n    constitute a bar. (See : Manorama Chowdhurani vs. Shiva<\/p>\n
    Sundari Mozumdar, 1914 (Vol.XLII) Indian Law Reports
\n    Calcutta 480). In the absence of oral evidence in that<\/p>\n
    behalf and upon only the circumstantial evidence of the
\n    knowledge that the Petitioner is imputed the Petition<\/p>\n
    by itself cannot be taken to be barred. Dr. Singhvi
\n    relied upon the principle in                   A.P.Ismail Rowther vs.<\/p>\n
    Mynoon     Bivi   &   ors.,      AIR    1966   Mad       84      (which          is     an
\n    execution application); Ram Chandra Singh vs. Savitri
\n    Devi,<\/a> (2003) 8 SCC 319 (which is a partition suit); and
\n    Shrisht Dhawan vs. M\/s.Shaw Brothers,<\/a> (1992) 1 SCC 534<\/p>\n
    para 20. Consequently, the judgments relied upon by
\n    Mr.Nariman on behalf of the Respondent with regard to
\n    the requirement of filing the Petition within three
\n    years or the explanation of delay would not come into<\/p>\n
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\n                                    102                           MISC. PTN. 70\/2010<\/p>\n
      play in this case. (See Hari Narain (deceased) vs.
\n      Subhash Chander, AIR 1985 Punjab & Haryana 211 and<\/p>\n
      Ramesh     Nivrutti     Bhagwat     vs.   Dr.Surendra                  Manohar
\n      Parakhe, AIR<\/a> 2001 Bombay 461).\n<\/p>\n
    124. The Petitioner contends that this Petition is filed<\/p>\n
      under Section 263 of the IS Act.                  Section 263 runs
\n      thus:\n<\/p>\n
                263.Revocation or annulment for just cause.-The
\n               grant of probate or letters of administration<\/p>\n
               may be revoked or annulled for just cause.\n<\/p><\/blockquote>\n
      Under     Section     263,   the   Letters      of      Administration<\/p>\n
      granted    to   the   Respondent    can   be     revoked           for       just
\n      cause. This Petition does not seek to revoke the grant.\n<\/p>\n
      It seeks only to revoke the order of continuation of
\n      the grant. The order was not even an ancillary grant.\n<\/p>\n
      Probate was obtained in the New York County Court in
\n      1970.     A limited grant was obtained from this Court in<\/p>\n
      1972.     The limited probate had become final.                         A mere
\n      direction to continue the grant in India cannot be
\n      challenged when the initial grant in the U.S as well as
\n      the limited grant in India is in force.                 In the case of<\/p>\n
      Ramesh Nivrutti Bhagwat Vs. Dr. Surendra Mandar Parkhe
\n      A 2001 Bom 461 it was held that when the grant of the
\n      Superior Court in California, which was a judgment in
\n      rem was in force, the ancillary grant also could not be<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span>
\n                                      103                                 MISC. PTN. 70\/2010<\/p>\n
      revoked.\n<\/p>\n
    125.    Dr.Singhvi      argued    that     the       grounds         showing           just
\n      cause for revocation of the grant under Section 263 of<\/p>\n
      the IS Act were not exhaustive.                          He relied upon a
\n      number of judgments to show different facts situations<\/p>\n
      when the grant was revoked. (See :                           Ganeshammal vs.
\n      Arunachalam, AIR 2002 Madras 417;                        V.Arunachalam, In
\n      re.,    (2002)    2   M.L.J.     407;         R.    Ramachandran                vs.      G.\n<\/p>\n
      Hariharan, (2001) 2 Mad.L.J. 417;                         N.Saroja vs. Sri
\n      Vidya Chits and Finance (P) Ltd., Karur, (1996) The<\/p>\n
      Madras Law Journal Reports 74;                     Gita alias Gita Ravi
\n      vs.    Mary   Jenet    James     alias        M.J.     James,          (1995)          The<\/p>\n
      Madras Law Journal Reports 467;                    G. Shanmugham Chetti
\n      vs. Chinnammal, AIR 1978 Madras 304;                        Dhanabakkiyammal<\/p>\n
      vs. Thangavelu Mudaliar, AIR 1927 Madras 994 = (1927)
\n      53 MLJ 644;        F.C.S. Amalnathan vs. J.S. Victor Basco,<\/p>\n
      AIR<\/a> 1995 Karnataka 258; Uday Chand Vs. Shankar Lal AIR
\n      1978 Supreme Court 765 (which related to revocation of<\/p>\n
      leave in a SLP); and G. Gopal Vs. G. Nagarathinam, AIR
\n      2007 Madras 28). The Respondent would argue otherwise.
\n      (See: Sharad S. Mane vs. Ashabai Shripati Mane, AIR<\/a>
\n      1997     Bombay       275;     Annoda         Prasad         Chatterjee                Vs.<\/p>\n
      Kalikrishna      Chatterjee          (1896)    XXIV      ILR       Calcutta.             95
\n      (relating to the analogous provision in S.50 of the
\n      Probate and Administration Act, 1881; Pramode Kumar Roy
\n      Vs. Sephalika Dutta AIR 1957 Calcutta. 631, Anil Behari<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span>
\n                                   104                                MISC. PTN. 70\/2010<\/p>\n
      Ghosh Vs. Latika Bala Dassi, AIR 1955 Supreme Court
\n      566; Bal Gangadhar Tilak Vs. Sakwarbai Maharaj, (1902)<\/p>\n
      IV Bombay Law Rreporter 637)               The facts in all these
\n      cases are different and need not be enumerated.\n<\/p>\n
    126. The other prayer in the Petition is for removal of<\/p>\n
      the Respondent as the administrator. An administrator
\n      can be removed under Section 301 of the IS Act.                                    The
\n      Petitioner would require to make out a case for such<\/p>\n
      removal. The case that the Petitioner has sought to
\n      make out is that the Respondent has sought to brush<\/p>\n
      aside the U.S. Charities by paying them a pittance of
\n      their legacy, and has sought to get the transfer of the<\/p>\n
      interest of Bachoobai in the property of the deceased
\n      to   himself    and   his   Companies.           Those         acts,         though<\/p>\n
      appearing to be of doubtful repute, do not adversely
\n      affect the Petitioner or development of its property.\n<\/p>\n
      Those acts, in fact, facilitate such development and
\n      the consequent profits by the Petitioner. It is only<\/p>\n
      the U.S. Charities who would have a legitimate right to
\n      challenge the acts of the Petitioner as administrator
\n      because only their interest may be prejudiced. That
\n      would have been the case but for the settlement.                                     It<\/p>\n
      may still be the case if the settlement sought to be
\n      reflected      in   the   MOS    dated    1st    August        2003        is      not
\n      effectuated. If that Agreement is not effectuated and
\n      stands      frustrated          because     of        any          supervening<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span>
\n                                    105                            MISC. PTN. 70\/2010<\/p>\n
      impossibility in executing it despite the doctrine of
\n      cy-pres resorted to by the Respondent and is rendered<\/p>\n
      void, the claim of the U.S. Charities would hold good.
\n      In view of the Supreme Court judgment in the case of<\/p>\n
      John Vallamattom (supra), the U.S. Charities would be
\n      the only party whose legal interest in the properties<\/p>\n
      of the deceased would continue. If the MOS fails, not
\n      the Petitioner but, the U.S. Charities would obtain the
\n      entire interest in the properties of the deceased and<\/p>\n
      the Petitioner s development would come, in the words
\n      of   the       Respondent,
\n                               ig    to    a   grinding          halt .            These
\n      attractive propositions of law cannot, therefore, come
\n      to the aid of the Petitioner.\n<\/p>\n
    127. Dr.Singhvi has brought out the inherent distinction<\/p>\n
      between the two sections; the former revoking the grant
\n      itself but the latter removing only the executor for<\/p>\n
      his wrongful acts or his misconduct whilst continuing
\n      the grant are seen to be mischievously though artfully<\/p>\n
      applied.        Though prayer (a) of the Petition is under
\n      Section    263,    it   is   seen    that    the    Petitioner               would
\n      rather continue the initial grant dated 12th December
\n      1972 in the interest of the Petitioner itself. If that<\/p>\n
      grant     is    revoked,     the    entire    development               of      the
\n      Petitioner would ipso facto fall through.\n<\/p>\n
    128. The application for removal of the Respondent as<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span>
\n                                          106                                 MISC. PTN. 70\/2010<\/p>\n
      executor      can      be     entertained         only       upon        showing           his
\n      misconduct         in       administration              which         prejudicially<\/p>\n
      affects the Petitioner and which is not shown. The hope
\n      of the Petitioner to continue the grant upon doing away<\/p>\n
      with the Respondent can, therefore, only be duped.\n<\/p>\n
    129.     Surprisingly,           the       Petitioner          claims           that         the
\n      Respondent has not provided accounts relating to the
\n      estate      of    the       deceased.       The     Respondent               was       never<\/p>\n
      required to provide accounts to the Petitioner. The
\n      estate of the deceased has never claimed accounts or<\/p>\n
      made    a    complaint        of     its   non-receipt.              In      fact,         the
\n      Respondent has claimed accounts from the Petitioner in<\/p>\n
      respect of the development of the testator s property
\n      under       the    Agreement         dated        2nd    January            1995.          The<\/p>\n
      Respondent is the most apt, if not the best, person to
\n      be able to demand, receive and evaluate the accounts.\n<\/p>\n
      In fact, that is the moot reason why the Petitioner
\n      would be safe to do away with the Respondent and to<\/p>\n
      substitute him by another administrator who would not,
\n      for lack of knowledge of the facts of the case alone,
\n      be as well equipped to receive the accounts submitted
\n      by the Petitioner as the Respondent would be.\n<\/p>\n
    130. The Respondent, who was abreast of the estate of the
\n      deceased         and    who    was       shown      to     be       acting           as      an
\n      administrator          until       then,    could        have      been        the        only<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span>
\n                               107                            MISC. PTN. 70\/2010<\/p>\n
      person directed to continue as administrator in the
\n      interest of the estate.\n<\/p>\n
    131. On considering the intrinsic merits of the case, the<\/p>\n
      application of the Petitioner is seen to be accentuated
\n      by mala fides and as a counterblast to the suit of the<\/p>\n
      Respondent.\n<\/p>\n
    132.Hence   none   of   the     reliefs   prayed         for        by       the<\/p>\n
      Petitioner can be granted. The Petition is dismissed
\n      with costs.\n<\/p>\n
                                        (SMT.ROSHAN DALVI, J.)<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 16:42:00 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ferani Hotels Pvt. Ltd vs Nusli Neville Wadia on 15 December, 2010 Bench: R. S. Dalvi 1 MISC. PTN. 70\/2010 PGK\/MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION Miscellaneous Petition No.70 of 2010 Ferani Hotels Pvt. Ltd. .. .. Petitioner V\/s. Nusli Neville Wadia .. .. Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-152541","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nFerani Hotels Pvt. 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