ARCHANA ARUN PALAV Vs. JENIFER MICHAEL

JUDGEMENT

(1.) By this petition, the petitioner seeks revocation of grant of Letters of Administration issued to the 1st respondent by this court on 12th March, 2012 in Testamentary Petition No. 900 of 2011. Some of the relevant facts for the purpose of deciding this petition are as under:- Petitioner is the sister of the deceased Kirankumar Gorjibhai Bhatia (hereinafter referred to as the said deceased). Respondent no. 2 is widow of the said deceased. Respondent nos. 1 and 3 are daughters of the said deceased. There was matrimonial dispute between the 2nd respondent and the said deceased filed before the Family Court at Bandra, Mumbai. In the said matrimonial proceedings, respondent no. 2 had applied for interim injunction in respect of the flat situated at E/8, 3rd Floor, New Trishul Co-operative Housing Society Ltd., Bhawani Nagar, Marol Maroshi Road, Andheri (East), Mumbai 400 059 which was a matrimonial home of the 2nd respondent. By an order dated 1st April, 2003, Family Court passed order of status quo. It is the case of the petitioner that by an agreement for sale dated 8th April, 2003, the said deceased sold the said flat in favour of the petitioner. It is the case of the petitioner that the petitioner was not aware of the said ad-interim order of status quo granted by the Family Court. On the basis of the said agreement for sale dated 8th April, 2003, the petitioner applied for transfer of share certificate and for membership of the society. On 21st April, 2003, the society informed the petitioner about the status quo order passed by the Family Court. It is not in dispute that the society refused to transfer the flat and to grant membership in favour of the petitioner. Being aggrieved by the said order, the petitioner filed appeal before the Deputy Registrar, Co-operative Societies, K-East, Mumbai under section 23(2) of the Maharashtra Co-operative Societies Act, 1960. By an order dated 24th July, 2008, the Deputy Registrar dismissed the said appeal on the ground that there was title dispute in respect of the said flat which could not be decided by the Deputy Registrar under section 23(2) of the Maharashtra Cooperative Societies Act, 1960. The petitioner filed Revision Application (44 of 2009) before the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai under section 154 of the said Act. The Divisional Joint Registrar by an order dated 5th September, 2012 dismissed the said revision application. The Divisional Joint Registrar held that the title dispute could not be gone into by the authority appointed under the provisions of Maharashtra Cooperative Societies Act. Being aggrieved by the said order, the petitioner filed a writ petition in this court (74 of 2013). By an order dated 30th April, 2013, Ranjit More, J. dismissed the said writ petition. It is held by this court that the petitioner was claiming title to the said flat on the basis of sale deed which was executed in breach of status quo order. This court also took cognizance of the fact that Letters of Administration has been granted by this court in favour of the respondent no. 1 herein. This court held that the Registrar was not expected to decide the title issue between the parties and the parties must approach the court of competent jurisdiction and get the dispute decided. Learned counsel appearing on behalf of the petitioner submits that Special Leave Petition filed by the petitioner against the said order dated 30th April, 2013 passed by this court is dismissed.

(2.) Learned counsel appearing for the petitioner states that the said deceased who transferred the said flat in favour of the petitioner expired on 13th April, 2007 and therefore matrimonial proceedings filed by respondent no. 2 before Family Court against the said deceased stood abated. It is the case of the petitioner that since respondent no. 2 took forcible possession of the said flat, petitioner filed complaint before the Court of Metropolitan Magistrate. Process was issued by the Metropolitan Magistrate. Respondent no. 2 filed a criminal writ petition in this court for quashing of the process. By an order dated 5th May, 2011, this court dismissed the said criminal writ petition (2944 of 2010). Special Leave Petition impugning the said order passed by this court in Criminal writ petition also came to be dismissed. It is submitted that respondent no. 1 who filed petition for Letters of Administration who was fully aware of the title claimed by the petitioner and suppressed the same from this court. Learned counsel placed reliance on section 263(b) in support of his submission that the 1st respondent concealed from this court that the petitioner had claimed title in respect of the flat which was subject matter of the said petition. It is submitted that in view of such concealment, petitioner has made out just cause setout in section 263(b) of the Indian Succession Act and is entitled to revocation of the grant issued by this court.

(3.) Learned counsel appearing for the petitioner also invited my attention to the order passed by this court in Writ Petition No. 473 of 2009 filed by respondent no. 2, against National Aviation Company of India Ltd. and others delivered on 22nd April, 2009. Learned counsel would submit that this court has held by the said order that the said deceased was governed by the provisions of Hindu Law and his mother was also a Class I heir as per section 8 of the Hindu Succession Act. It is submitted that considering the provisions of Hindu Succession Act, this court directed the respondent no. 2 (petitioner to the said writ petition) to distribute 25% of the dues of the said deceased recoverable from the employer to the mother of the said deceased, she being Class I heir as per section 8 of the Hindu Succession Act. Relying upon this judgment, learned counsel would submit that on demise of the mother who was entitled to 25% share in the estate of the said deceased, the petitioner also would get share in the estate of the deceased mother. It is submitted that if the deceased mother would have been cited in the petition filed by the 1st respondent, on her demise, citation would have been served upon the petitioner also who could have challenged issuance of grant in favour of the 1st respondent. It is submitted that since mother of the said deceased was not cited in the said petition, there is willful suppression on the part of the 1st respondent who was petitioner to the said petition and the petitioner is thus entitled to apply for revocation of the grant under section 263(2). It is submitted that this court has held by the said order dated 22nd April, 2009 that parties were governed by Hindu Succession Act and thus mother was required to cited in the testamentary petition.