2013(3) ALL MR 281
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. DALVI, J.

Dilip Chhaganlal Dave (Deceased) Through Kalpana Dilip Dave Vs. Pramila @ Pista Chhaganlal Dave

Testamentary Suit No. 31 of 2005,Testamentary Petition No. 172 of 2004

24th January, 2013

Petitioner Counsel: Ms. Kalpana Trivedi
Respondent Counsel: Mr. S.M. Khaire

(A) Succession Act (1925), S.218 - Letters of administration - Evidence shows that plaintiff wife was living with deceased husband till his death - Plaintiff wife was thrown out of house after death of her husband is acceptable case - Deceased had nominated plaintiff to receive gratuity, PF, insurance amount - Said amount is retained by plaintiff - Plaintiff receiving pension for herself and for her minor daughter - However defendant mother-in-law continue to live in flat which is most valuable estate of deceased - Plaintiff has 1/3rd share in flat and defendants have 2/3rd share in post death benefits of deceased - Plaintiff has not received her share in estate of deceased - Plaintiff is not being maintained out of estate of deceased - Plaintiff is fit to act as Administrator of estate of deceased.

Evidence shows that plaintiff wife thrown out of house before 12th day of death her husband. Case of mother-in-law that plaintiff left house of her husband. Further Daughter was taken care of by grandparents. Evidence shows case of mother-in-law unacceptable as plaintiff was living separately with husband. Mother-in-law never lived with deceased son. Daughter who is 6 years old admitted that, state of affairs deposed by her was learnt from her grandparents. Deceased husband did not change nomination of his wife on his gratuity, PF, Insurance is evidence of relationship of spouses till death of husband. Though plaintiff got death benefits and pension for herself and daughter, most valuable asset i.e flat of her husband in which she has 1/3 share is in enjoyed by mother-in-law and daughter. Plaintiff is not being maintained out of property of deceased. Plaintiff who is widow of pre deceased son is not being maintained by her father in law as per Hindu Law. Plaintiff is not unfit to become administrator of estate of deceased. [Para 29,32,33,37,38]

(B) Succession Act (1925), S.218 - Letter of Administration - Plaintiff's husband died intestate - Plaintiff driven out of house - Flat occupied by plaintiff and her husband, other immovable properties were acquired by father-in-law of plaintiff - Father-in-law expired - Plaintiff is heir of father-in-law representing estate of her deceased husband as widow of predeceased son of her father-in-law - Plaintiff would be entitled to half share which her husband would have been entitled to in estate of his father - Denial to plaintiff's rights and share upon such admitted facts is incorrect - Plaintiff would be entitled to be issued Letters of administration in respect of properties at item no.5, 7, 9A. (Paras 39 to 44)

JUDGMENT

JUDGMENT :- The plaintiff is the wife of the deceased one Dilip Chhaganlal Dave who died intestate on 28th August, 2001 leaving behind the plaintiff as his widow as also his mother and daughter. The petition is for issue of Letters of Administration of his estate. Letters of Administration would have to be granted to one of the parties to the suit. The defendants have not applied for issue of Letters of Administration.

2. All the three heirs including the plaintiff are entitled to receive 1/3rd share of the above estate, comprising movable as well as immovable properties.

3. The entire estate is not admitted belonging to the deceased. What is the admitted estate and what constitutes the entire estate of the deceased shall have to be seen.

4. The admitted estate comprises one flat purchased by the deceased upon taking a loan of Rs.5.5 lakhs from the HDFC Bank, the death dues payable to the deceased in the company where he served consisting of gratuity, provident fund and employees deposit link insurance scheme, certain bank accounts and shares in certain companies.

5. The deceased had nominated his wife, the plaintiff herein, in his Provident Fund Account and other death dues. The plaintiff has withdrawn the death dues of the deceased consequent upon her nomination.

6. Certain amounts under LIC policies of the deceased have been received under certain interim orders passed in this petition and each of the three above heirs have received their respective 1/3rd share therein. Rs.80,000/- and odd are lying deposited in this Court.

7. The pension amount was payable to the wife and separately to her daughter. The plaintiff wife has received her pension amount. She has also received the amount of pension payable to the daughter. She has not refunded the amount to the daughter.

8. The defendants reside in the above flat. The plaintiff resides in her parental home.

9. The defendants have disputed item Nos.1, 2, 5, 6A, 7, 9A, 15, 16, 21, 22, 26 & 29 of the schedule to the petition. Item Nos. 1 & 2 are not known to the defendants. Item No.5 is the flat of the father of the deceased. Item No.6A is the jewellery. Item Nos. 7 & 9A are the ancestral property of the family in their native village in Rajasthan. Item Nos.15, 16, 21, 22, 26 & 29 are the shares of limited companies stated to be belonging to the brother of the deceased. The father of the deceased has expired after the deceased. His heirs are his widow who is the mother-in-law of the plaintiff, his living son or sons and the plaintiff and her daughter as the heirs of the predeceased son of that deceased. Hence the plaintiff, having a share in his estate has included his estate also.

10. The defendants contended that the plaintiff is not entitled to be issued Letters of Administration even with regard to the admitted estate because she has disqualified herself upon her conduct. They claim that the plaintiff is not a fit and proper person to be issued any Letters of Administration. Upon their caveat, the petition has been converted into the above Testamentary Suit.

11. This has been shown upon a premise that the plaintiff was separated from her husband during the life time of her husband. She was residing at her parental home. She did not have or claim custody of her daughter also. The daughter was maintained and educated initially by the deceased and later by her grandparents. They learnt that the plaintiff wife had withdrawn the entire amount of gratuity, provident fund and employees deposit link insurance amount from the company where the deceased served as she was the nominee. She has not given the 1/3rd share of her daughter as also her mother-in-law to them. They also claim that the deceased had purchased a flat upon taking a loan. They have lived in the flat after the death of the deceased. They have repaid the loan of the bank partly from the insurance amount of the deceased received by defendant No.1 and partly after taking a friendly loan. The plaintiff has not paid off the loan amount. Based upon the aforesaid cases Justice S.C. Dharmadhikari framed issues on 16th January, 2009 as follows which are answered as follows:

ISSUES

1 Whether plaintiff is a fit and proper person to be entitled to Letters of Administration to the property and credits of the deceased Dilip Chaganlal Dave.

Yes

2 Whether the plaintiff is entitled to Letters of Administration in respect of properties stated at Item Nos. 5, 7 and 9A of Schedule - 1 of the petition.

Yes

 

3 What order ?

As per final order

12. Since the defendants claimed that the plaintiff was unfit to be issued Letters of Administration, the onus lied upon them to prove the issue raised. The defendants, therefore, had the right to begin the evidence. They were directed to file their affidavit of evidence. Both the defendants being the mother-in-law and the daughter of the plaintiff have filed their respective affidavits of evidence and have been cross examined. The plaintiff has also led evidence.

13. Issue No.1:

The largest estate of the deceased is his residential flat. The oral evidence of the parties with regard to the residence of the plaintiff as the wife of the deceased will have to be seen. The plaintiff has claimed that she was thrown out of the matrimonial home before the 12th and 13th day ceremony of her deceased husband by her in-laws who kept the custody of her daughter. The defendants have claimed that the plaintiff did not have good relations with the deceased and had left the matrimonial home during his life time. She had also left the daughter in the matrimonial home who was cared for by the deceased.

14. The plaintiff's examination-in-chief has shown good relations between the spouses as also her and her in-laws during the life time of the deceased. The plaintiff would be expected to live in her matrimonial home on the date of the death of the deceased under those circumstances.

15. Her cross examination shows that she tried to get back to the matrimonial home, but was not allowed. She has deposed that her in-laws never kept contact with her after the death of her husband and never even visited her. She was not called at the time of the funeral of her father-in-law. The plaintiff had not lodged any police complaint or any application for custody of her child.

16. The evidence of the mother-in-law of the plaintiff shows that the relations between the deceased and the plaintiff were strained, she looked after and educated the daughter of the deceased and that the daughter has been residing with her since birth "and" at the aforesaid flat in Pritisagar and that she never resided with the plaintiff. She has deposed that the plaintiff has been residing at her parental home since the last 18 years. (The affidavit of evidence is filed in July, 2011. Hence that would be since about 1993).

17. Her cross examination shows that the spouses lived together for one year in their matrimonial home which was in Pritisagar building. She had noticed that the relations were not cordial " because if one was inside the house the other would go out of the house". Her cross examination shows that the plaintiff's daughter was with her only for 3 months and that she has not driven the plaintiff out of the house. Her cross examination also shows that she herself was residing with her husband at another premises being Tulsirunda Society prior to the death of her deceased son.

18. Hence after the death of the deceased she has shifted to the matrimonial home of the plaintiff with her husband. After her husband's death she has continued to live in that premises with the plaintiff's daughter. Admittedly the plaintiff has not lived in that premises after the death of her husband.

19. The evidence of the daughter of the plaintiff shows that she was born on 6th November, 1993. In para 3 of her evidence she has deposed that since her birth she lived with her grandparents in Pritisagar and her mother lived in her parental home. She has also deposed that since her birth her father and her grandparents looked after her. In para 10 of her evidence she has deposed that she never resided with the plaintiff who never cared for her.

20. Her cross examination shows a volte face. She has admitted that initially the family lived in Tulsirunda Society as a joint family. Her parents had gone to the new house which was acquired, but her parents did not stay together until the death of her father. She had volunteered to state that when she was in pre-school and in first standard her mother was not living with them, but was residing with her parents. She has also deposed that she hardly stayed with her mother, but always stayed with her grandmother.

21. A reading of the aforesaid 3 depositions together clearly shows that the deceased initially lived with his parents, wife and child. Thereafter the deceased his wife and child lived in their own premises separately from his parents. The spouses had not separated or divorced. The plaintiff continued to be his wife. The deceased had nominated her for his death/retiral benefits. The deceased continued the nomination. It was not changed. Besides, after the birth of the daughter also the spouses lived together. The daughter would attend Jr. Kg when she would be about 4 years old. Until then her mother, who moved to the new flat purchased by her father to live separately from his parents, is not stated to have left the matrimonial house. It is inconceivable why the deceased would have acquired a new flat to live separately from his parents if his relations with his wife were so strained that his wife had separated and gone to her parental home leaving behind a newly born child. The evidence of the daughter in her cross examination showing that once the "family" lived together in Tulsirunda Society and later her parents had "gone to the new house" falsifies the entire evidence of the mother-in-law as well as of the daughter that the plaintiff left the matrimonial house 18 years before the evidence was recorded or that she never cared for her child or that her daughter was always cared for by her grandparents.

22. There is no evidence of the grandparents having moved in with the deceased in his new house prior to his death. They had their own premises. If the plaintiff did not care for her daughter, and went to her parental home, her daughter would have lived only with the deceased during his lifetime. Her evidence does not show or suggest that the grandmother moved in her father's house to care for her during his lifetime in the absence of her mother, the plaintiff. Even the evidence of the mother-in-law of the plaintiff does not show that she had moved into the flat of the deceased to fill in any gap left by the plaintiff as the mother of her child before the death of her son. Her description of how she realised that the relations between the spouses was not cordial is was upon what she had "noticed" about one of the spouses going out of the house, when the other came in. This evidence is a pointer to the fact that she lived in her own previous house and only visited her son's house.

23. The deceased continued to live in his new house with his wife and daughter. He continued his nomination in favour of his wife. The daughter continued to live with the deceased. The grandmother visited their house. The mother, under such circumstances, is not expected to have abandoned her daughter to live with her parents.

24. The deceased prematurely expired leaving behind a young widow and a small child of 6 years.

25. It is then that the plaintiff claims that she was thrown out of her matrimonial home and her daughter was kept therein. The grandparents were the only persons then who could have done so. It is at this juncture that admittedly the grandparents moved in their son's house. The 6 year old child was in that house. She would hardly understand the undercurrents of the relationship between her young widowed mother and her grandparents. She continued to live as before. At age 6 she would have been in Standard I. The evidence, which is not venomous but betrays betrayal is that her mother left her when she was in pre-school/ Standard I. She is not expected to clearly know or remember when exactly her mother purportedly left her and went to her parents' home. Her evidence does not even show that fact. It does not show any cause of leaving the house, more specially her. Further neither her evidence, nor her grandmother's evidence shows any gap of time when she was left bereft of care by virtue of being orphaned and abandoned.

26. The evidence shows that even before dust had settled on the void left by her father's death, the grandparents had moved in her father's flat. They would have come and remained there from the date of his death itself. They would be expected to continue to live there during the first 12 days from the funeral as per social norms.

27. It is exactly then that the plaintiff claims that she was thrown out of her matrimonial home. The plaintiff is not shown to be a career person. She would have been only a home-maker. It needs some depth and visualisation of the social position of a woman of the kind that the plaintiff was to accept or reject the respective cases of the parties upon their evidence. A woman/widow, her young husband having expired, would be in a fragile situation. She cannot prevent the entry of her parents-in-law in her home. She cannot take charge and control of her life at such a sudden misfortune. She is very likely to be thrown out of her home as she has deposed. She has nowhere except her parental home to go to. She may or may not be able to strike back. She knew that her daughter is not alone. She chose not to complain of the action or claim custody of her child. What was the support that she would have in her parent's house and the care that her daughter would have there is not known because the plaintiff has at no time raised any dispute. Perhaps that has been her sacrifice as a mother. She has since been bereft of her husband as well as her only child.

28. Reading the evidence as a whole, the plaintiff's case of being thrown out of her home before the 12th day of the death of her husband is seen to be in expectations of the norms of our society and hence would have to be accepted as correct. The case of her mother-in-law is seen to be unacceptable upon the circumstantial evidence of her admittedly moving into the flat of her deceased son after his death and not before. The evidence of the daughter is indeed of a child with blurred memory. She has deposed about not being with her mother for more than 3 months. She has also deposed that her mother left her when she was in pre-school/ Standard I which would be when she was at least 4 - 6 years old. She would be 6 years of age in Standard I. Her father expired when she was 6 years old. That fits in with the time her mother is stated to have been thrown out of her matrimonial home. She has also deposed about the fact that her parents had moved to a new flat. She has not deposed that the grandmother had lived with her father, in the absence of her mother to care for her even during the lifetime of her own husband. She has admitted the state of affairs deposed by her is from what she learnt from her grandparents. Her generalised evidence of how she was cared for by her father and her grandparents aside from being inadmissible as hearsay, is wholly unacceptable as false.

29. The Court must appreciate the evidence accounting for the ground realities of life in case of social human relations. The Court must approach the evidence with empathy and sensitivity (sentipathy). The Court cannot bypass or ignore the underlined though not apparent factualities. Proverbially speaking, the Court must "hear those who cannot shout; listen to those who cannot speak". This case must be considered on the evidence recorded herein only. The evidence shows that the plaintiff was thrown out of her home within 12 days of the death of her husband. The plaintiff mother-in-law has had a smooth transition from her own house to her deceased son's house. Hence the later evidence of the plaintiff that she was not allowed to get back into her home stands to reason. The child would not know if and how her mother may have tried to get back into her husband's house, but was not allowed by her grandparents. She has been left where she was, uninterrupted, undisturbed and unobstructed. It may be unfortunate that she considers that she was abandoned by her mother. This is only in the light of later events.

30. The matrimonial home in Pritisagar was the estate of the deceased. He had purchased it upon taking a loan of Rs.5.5 lakhs from the HDFC Bank. The mother-in-law has paid off that loan from the amount received from the maturity of the insurance policy of the deceased and upon taking personal loan. That was the liability of the deceased which has been discharged by the plaintiff's mother-in-law. The mother-in-law and the daughter continued to live in the premises to the exclusion of the plaintiff who has a 1/3rd share therein. Naturally they would have to pay off the loan and pay the society's charges.

31. The plaintiff has appropriated to herself the gratuity, provident fund and employees deposit link insurance amount of Rs.88,247/-, Rs.1,60,826/- and Rs.56,992/-. That was allowed because the deceased had nominated her to receive such amount. The deceased had not changed his nomination. This is the largest single circumstantial evidence of the relationship of the spouses until the death of the deceased.

32. The plaintiff is entitled to pension herself. Her daughter is entitled separately to the pension amount. The plaintiff has opened the bank account of her daughter as her guardian showing the daughter as a minor. The amounts of pension received under that account has been withdrawn. The daughter has not received the pension amount.

33. It is upon these facts that her unfitness is contended. Whilst the appropriation of the largest property of the deceased by the mother-in-law and the daughter is sought to be explained by the falsity which has been demonstrably exposed in the cross-examination of the daughter, much is made about the lesser part of the estate being appropriated by the plaintiff.

34. Though the plaintiff has not shared the proceeds of the gratuity, provident fund and employees deposit link insurance scheme amount as also the pension of her daughter, the defendants have not given the share of the plaintiff in the flat of the deceased to the plaintiff. All are admittedly entitled to a 1/3rd share atleast in the above admitted estate of the deceased.

35. The issues relating to the unfitness of the plaintiff would have to be decided in that light. Both the parties have come out in the same light. The plaintiff has appropriated only the death dues of her husband. The defendants have appropriated to themselves his entire flat.

36. The withdrawal of the nominated amounts of the death dues by the plaintiff is not illegal. No other could have withdrawn it. Of course, the plaintiff is seen to have withdrawn the pension amounts of the daughter also as reflected in the bank passbook of the daughter's pension account which she would be entitled to operate as her guardian. That is a paltry amount. The employer is entitled to pay off the entire dues to the nominee. The nominee is a trustee for the estate. The plaintiff was left stranded upon the death of her husband. The plaintiff's only source of support was gone. She had no means of income. She was legally bound to be maintained by her father-in-law as the Hindu widowed daughter-in-law, being the wife of a predeceased son under Section 19 of Hindu Adoptions and Maintenance Act, 1956. Instead she was shown the door. She had to rely upon her parents for support. It was under those circumstances that she appropriated the death dues of her husband. In fact the defendants have excluded the plaintiff from the flat. They have not contended even in their evidence that the plaintiff is welcome in her own matrimonial home. Merely by residing in the flat of the deceased, the mother-in-law and the daughter alone cannot claim title. The plaintiff's right and title is not excluded. The plaintiff has not even claimed such statutory legal right just as she had not claimed her daughter's custody. She could, therefore, appropriate to herself only a lesser part of the estate towards payment of her share. The defendants are required to pay off a larger part of the estate as the plaintiff's share. The defendants would have to pay the plaintiff 1/3rd of the value of the flat. That would be running into lakhs of rupees. The plaintiff would have to pay 2/3rd of the death dues to the defendants. That would be to the extent of about Rs.1 lakh each. Even if the plaintiff has not demonstrated an impeccable act, the defendants have not shown any exemplary conduct. The defendants continue to live in the suit flat and continue to enjoy the most valuable estate of the deceased. In fact, there are other properties also in which the plaintiff's right is denied or not granted. It is seen that whatever be the conduct of the plaintiff, she has not received her share in the estate of the deceased since she has not lived in her matrimonial home. She has also not been maintained out of the estate of the deceased though as a Hindu daughter-in-law she is entitled to be maintained even by her father-in-law as the widow of his predeceased son.

37. Hence the plaintiff's unfitness to act as Administrator of the estate is not seen. Hence issue No.1 is answered in the affirmative.

38. Issue No.2:

Certain items in the schedule to the petition are admitted to be the estate of the deceased. Certain other items are stated not to be known by the defendants, but not denied. Certain other items are stated to be the shares of the brother of the deceased. Aside from stating such facts, the title thereto is not shown and cannot be gone into in this petition.

39. The defendants have specifically denied items 5, 7 and 9A of the schedule to the petition. These are immovable properties.

40. The flat item No.5 in Tulsirunda Society was acquired by the father-in-law of the plaintiff. He has since expired. The plaintiff is an heir of her father-in-law representing the estate of her deceased husband as the widow of the predeceased son of her father-in-law. She would obtain half the share which her husband would have been entitled to in the estate of his father. Her daughter would have the other half share.

41. The immovable properties in Rajasthan are stated to be the properties acquired by the father-in-law of defendant No.1. They would similarly also devolve upon the deceased husband of the plaintiff. The plaintiff would obtain a half share of such share which her husband would have obtained upon the death of his father as the heir of the predeceased son of her father-in-law. Her daughter would be entitled to the other half share.

42. This position in law is seen from the facts shown by defendant No.1 in her Caveat and her evidence. Hence upon such admitted facts, the denial of the plaintiff's rights and share is seen to be incorrect. Hence the above admissions are recorded.

43. In view thereof the plaintiff would be entitled to be issued Letters of Administration in respect of the properties at item Nos. 5, 7 & 9A also. Hence issue No.2 is answered in the affirmative.

44. Issue No.3:

The Letters of Administration would have to be issued to the plaintiff for the entire estate of the deceased. The plaintiff shall be entitled to administer the estate.

ORDER

1. The plaintiff's suit is made absolute as prayed.

2. The plaintiff is issued Letters of Administration to the entire estate of her deceased husband Dilip Chhaganlal Dave who expired on 28th August, 2001 as shown in the schedule to the above petition.

3. The Prothonotory and Senior Master of this Court shall issue Letters of Administration to the plaintiff.

4. Suit as well as petition are disposed of accordingly.

5. Drawnup decree is dispensed with.

Ordered accordingly.