SAMEER RAMESH VASHI Vs. RAKESH RAMESH VASHI

JUDGEMENT

(1.) By this Notice of Motion, the applicant, who is a Caveator and defendant No.1 in Testamentary Suit No.16 of 2014 seeks appointment of an interim administrator under section 247 of the Indian Succession Act, 1925 in respect of estate of his deceased father Late Ramesh Vashi, who died on 6th November, 2013. The plaintiff - Sameer Ramesh Vashi is the elder brother of the applicant and has been appointed as an Executor of last Will and testament of Shri Ramesh Vashi. Relief is sought by the applicant on the basis that the plaintiff along with his wife are co-trustees "in respect of testamentary trust mandated by the deceased in his Will" for benefit of the son of the applicant - Siddharth Vashi, who was then a minor.

(2.) According to the applicant, the plaintiff and his wife (hereinafter collectively referred as "plaintiff" wherever the context so requires) in collusion with other two named Executors are interfering with the administration of estate and are usurping the estate by fraudulent means. The applicant has appeared in person before the Committee of Registrars and the Committee of the Registrars have suggested that the applicant would be able to assist the Court. Accordingly, I have heard the applicant in person. Apart from oral submissions made, the applicant has also filed written submissions dated 17th October, 2018 and 31st October, 2018

(3.) It is case of the plaintiff that the assets and properties of several partnership firms are being dealt with contrary to intention of the testator. According to the applicant, the rival contentions are whether the assets/properties of partnership firms are that of individual partners to extent of their respective shares or whether the assets/properties are partnership assets and they form stock in trade. Mr.Vashi submitted that a partnership firm not being an independent legal entity, the real owners of the assets of the partnership firm are partners and the assets of the partnership belong to and are owned by partners and each partner is owner of the assets to extent of his share in the partnership. It is contended that unlike a company registered under the Companies Act, a partnership firm is not a separate legal entity. According to Mr.Vashi, it is not disputed that some properties forming part of the partnership firms were personal assets of the deceased and the said properties were bequeathed to the grandson Siddharth, who was not a partner in the firms and was a minor at the material time. According to the applicant, the Will mandated that these properties be put in a Trust for benefit of the minor and appointed continuing partners as the Executors of Will of the deceased. Mr.Vashi submitted that the plaintiff was "entrusted" by the deceased with the properties and the plaintiff was responsible to ensure that the properties were protected and preserved for benefit of his son and the plaintiff was to expeditiously seek probate of the Will for the sake of the beneficiaries including his son and to formally establish a trust for his son. The plaintiff was required to establish a trust after obtaining orders of the Competent Court, maintain accounts of the trust and seek opinion, advice or direction of the Court in respect of management of the trust and also pay for education of the minor, his maintenance and advancement in life. He submitted that nothing adverse to the interest of beneficiaries could be done and trust properties certainly could not be used for benefit of the plaintiff. According to the applicant if the plaintiff was desirous of selling properties from the estate, it can only be dealt with after obtaining probate, forming a trust and upon seeking further permission and consent of the appropriate Court, whereas the plaintiff in breach of trust and by manipulation had diverted and dealt with 140 valuable properties.