ILA VIPIN PANDYA Vs. SMITA AMBALAL PATEL

JUDGEMENT

(1.) This appeal by special leave is directed against the order dated 25th August, 2004 of the Division Bench of the Bombay High Court in notice of motion No. 1207 of 2004 in Testamentary Suit No. 17 of 1996 whereby the order of the learned Single Judge dismissing the notice of motion by order dated 29th July, 2004 has been confirmed.

(2.) The facts as taken from the appeal and relevant to its disposal are as under:

(3.) The appellant Ila Vipin Pandya was married to Vipin Dalsukhram Pandya on 15th December, 1966. The couple, however, divorced on 24th May, 1985 but performed a remarriage on 15th January, 1987 with the remarriage being registered before the Registrar of Marriages, on 10th February, 1987. Vipin Pandya aforesaid died as an intestate on 4th November, 1995 on which a testamentary petition was filed by his widow Ila Vipin Pandya on 9th February, 1996 praying for the grant of letters of administration for the estate of the deceased. The respondent-Smita Ambalal Patel, however, filed a Caveat on 7th March, 1996 opposing the grant and also filed an affidavit on 13th March, 1996 denying that the deceased had died intestate and pointing out that he had executed a Will which had been deposited by him with an Advocate and Solicitor Markand Gandhi and further that the appellant was not the widow of the deceased as no remarriage had taken place as alleged. As the testamentary petition came to be contested by the Caveat it was converted into Testamentary Suit No. 17 of 1996. The appellant thereafter took out Chamber Summons No. 990 of 1996 praying for the dismissal of the caveat on the plea inter alia that no caveatable interest had been disclosed in the affidavit and that she as the widow of the deceased was his only heir. The respondent filed an affidavit on 29th October, 1996 in reply to the Chamber Summons for the first time disclosing that she was a creditor of the estate of the deceased. The matter came up before a learned Single Judge of the Bombay High Court (Dr. (Mrs.) Upasani, J.) who, in her judgment dated 23rd December, 1996, observed that the Caveatrix had disclosed her "interest in the estate of the deceased by stating that she was a creditor of Vipin Pandya to the knowledge of the petitioner-Ila" and that the deceased had apparently executed a Will which had probably been deposited with Markand Gandhi, Advocate. It was also observed that creditors of a deceased could not be said to have any interest in the estate left by him and the interest was limited to ensuring that the assets of the estate were sufficient to pay the debts of the deceased and that the remedy of a creditor of a deceased under normal circumstances was to file a suit against the person in whose favour the grant of probate or letters of administration had been made, but having so held, further observed that in the peculiar facts of the case an outright dismissal of the caveat would not be justified. The challenge made to this order before the Division Bench of the Bombay High Court and before the Honble Supreme Court by way of Special Leave Petition also failed as both matters were dismissed vides orders dated 4th March, 1997 and 28th April, 1997 respectively. Respondent Smita Patel thereafter filed Suit No. 4892 of 1998 on 18th September, 1998 before the Bombay High Court impleading Ila Pandya as defendant No. 1, the brothers of her deceased husband as respondent Nos. 2, 3, 4 and several other respondents as well, alleging that the deceased had left behind huge properties which were being misappropriated by one or the other of the respondents and that the deceased was at the time of his death indebted to her with respect to large sums of money and that an arbitration attempted between them at one stage had proved to be unsuccessful. Along with the plaint she appended a letter dated 25th September, 1995 addressed by Vipin Pandya to her acknowledging his liability to pay a sum of Rs. 20 lacs which apparently was due to her and also undertaking to deposit a sum of Rs. 1 crore to her account and in addition casting aspersions on the appellant and his brothers and further stating that he had made a Will and had got it registered and had deposited it with Markand Gandhi. She further pleaded that even after Vipin Pandyas death efforts at an informal mediation by Justice S.K. Desai, a former Judge of the Bombay High Court had been made, but again without success. It was further pleaded that an attempt was being made to dispose of the huge properties left by the deceased in a surreptitious manner so that the money could be embezzled by the so-called heirs of the deceased. It was accordingly prayed inter alia that as she was a creditor of the estate of the deceased in the sum of Rs. 1,84,80,000/-, this amount along with interest @ 21% p.a. from the date of the suit till the payment was released to her and such other sums as were due to other creditors be also paid to them or secured in such manner as was deemed appropriate and that to secure the safety of the assets, a Court Receiver be appointed as well. The appellant thereupon took out the present Notice of Motion (No. 1207 of 2004) seeking leave of the court to deposit to the credit of Suit No. 4892 of 1998 an amount of Rs.1,20,00,000/- or any amount that the court may determine, or in the alternative to furnish a bank guarantee, for the said amount. The respondent in her affidavit in reply dated 16th June, 2004 pointed out inter alia that the Chamber Summons had been taken out to delay the hearing of the testamentary suit which was posted for the recording of evidence and that the claim preferred by her in the civil suit was not time barred. She also filed an additional affidavit deposing that the present notice of motion was similar in terms to Notice of Motion No. 816 of 2004 which had earlier been taken in suit No. 4892 of 1998. By an order dated 29th July, 2004 the learned Single Judge of Bombay High Court dismissed the notice of motion holding that as Chamber Summons No. 990 of 1996 had already been rejected by the learned Single Judge which order had been confirmed by the Division Bench of the Bombay High Court on 4th March, 1997 and the Special Leave Petition which had filed in the Supreme Court had also been dismissed and that the issue as to whether Smita Patel had any caveatable interest had been deleted by the Court vide order dated 16th August, 2001 in Chamber Summons No. 241 of 2001, the question or otherwise of her caveatable interest was no longer in dispute. The learned Single Judge then noticed the offer of the present appellant who was a defendant in Civil Suit No. 4892 of 1998 to deposit not only a sum of Rs. 1,84,20,000/- as claimed in Civil Suit No. 4892 of 1998 but in fact to make a deposit of Rs.2,40,00,000/- which would cover the claim calculating interest @ 18% p.a. on the principal sum of Rs. 1,20,00,000/- till date, but as no deposit had actually been made nor any bank guarantee furnished, the notice of motion could not be allowed.