“The will to contest”

A division bench of the Bombay High Court (BHC) has upheld the appointment of an administrator to safeguard the estate valued at Rs 200 crores of the late Purvez Dalal who expired in December 2011. Justices V. M. Kanade and A. K. Menon on August 8, 2014 while upholding the order of a single judge of the BHC stated non-disclosure of "certain properties… by the appellant (Manek Dara Sukhadwalla)… certainly justify the appointment of an administrator… more so when both the parties are of the view that the estate is to enure to charitable purposes.”
Sukhadwalla’s submission that this litigation "is intended to maneuver in a manner that the respondents (Shernaz Faroukh Lawyer, Villie Pirojsha Avasia and other) take control of the estate seems inherently flawed inasmuch as the respondents seek to have the appellant ousted only with the intention of having a court appointed officer to administer the estate,” noted the justices.
The bitterly contested dispute between the two parties pertains to two wills purportedly made by Dalal. Both parties claimed to be the executors of the duly executed wills. Sukhadwalla, who claims to have been an employee of Dalal, admittedly became known to him only in the last few months of his life. He alleged that Villie Avasia had obtained blank papers from Dalal, bearing his signature, which were filled up to create a will (see "The will to contest,” Events and Personalities, Parsiana, July 21, 2014).
The Avasias contend that "during lifetime of the deceased, one Burjor Doodhmal began visiting the deceased and began interfering in the affairs of the deceased and introduced two persons one Jamshed Pandey and (Sukhadwalla) to the deceased…
"Apparently, (Sukhadwalla) started staying with the deceased and under the guise of assisting the deceased and along with Doodhmal and Pandey… began controlling the property and credits of the deceased.”
The Avasias further allege that Sukhadwalla "handed over possession of flat No. 8, Al-Karim Manzil Building, Crawford Market, Bombay to one Vaseem Kapadia on December 21, 2011 though the said flat had been described in the schedule to the petition filed by the appellant as ‘self-occupied and no income fetched.’ According to the respondents, the handing over of possession of this flat to Vaseem Kapadia was in wilful disobedience of the order passed by this court by back dating documents…
"On November 21, 2013 the learned single judge… appointed an advocate of this court as administrator to administer the estate of the deceased.”
Sukhadwalla contends that "the allegations that (he) was residing with the deceased and had taken charge and control of the person and properties of the deceased and then procured a will are denied on the basis that the 2011 will was prepared by family lawyers to whom fees were paid by the deceased and was then registered. (Sukhadwalla) has denied the allegations against Doodhmal and Pandey. Specific stress is laid on the fact that the appellant is not a beneficiary of the 2011 will which bequeaths the estate to charity. It is submitted that the appellant seeks that this Court may decide the identities of the charitable trusts so as to avoid any controversy.”
Sukhadwalla’s lawyer Fereshte Sethna contended "that the 2010 will being unregistered and the bequest to the former sister-in-law whose marriage with the deceased’s brother was annulled 55 years ago rendered the 2010 will questionable.”
Advocate General Darius Khambata representing the Avasias claimed Sukhadwalla "is guilty of suppression and non-disclosure of assets in spite of an ad interim order. That the land and factory at Bachav known as Bharat Bone Mills was not disclosed in the schedule of the testamentary petition. The shops and hotels of Andheri and Vile Parle were also not disclosed. So also particulars of the bank accounts, mutual funds, shares and investments in government sector were not provided. The disclosure if at all made was incomplete…
"The alleged bequest to charity is an eyewash. It is alleged that the estate would be easily and unlawfully usurped by the appellant since many charitable organizations take donations and recycle them back to the donor thereby benefiting both the donor and the donee.
"Creation of tenancy in Al-Karim Manzil and non-disclosure of assets despite orders and suppression of legal heirs and subsequent admission and procuring and filing false affidavits, are indicative that an order of injunction would not suffice.”
The judges noted, "It must be borne in mind that the appellant was, admittedly, familiar with the deceased for only a few months before his demise.
"It seems unlikely that (Sukhadwalla) could be so certain that the 2010 will was fabricated by persons who admittedly knew the deceased for very many years that it actually prompted him to file a criminal complaint. In the present case, it cannot be said that the case of the (Avasias) is frivolous and that the 2010 will is fabricated…
"The bitter dispute between the parties notwithstanding, it is inherent in the nature of the dispute that the estate of the deceased must be protected. In the facts and circumstances of the case, the existence of a bona fide dispute and conduct of the appellant and others clearly demonstrates the necessity of safeguarding the estate and an injunction will not suffice...”