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 motherinlaw 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 31 OF 2005
IN
TESTAMENTARY PETITION NO. 172 OF 2004
Dilip Chhaganlal Dave ...Deceased
Kalpana Dilip Dave ...Plaintiff
Vs.
Pramila @ Pista Chhaganlal Dave ...Respondent
CORAM : MRS. ROSHAN DALVI, J.
Date of Pronouncing the Judgment: 24th January, 2013
1. 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
inlaw 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 motherinlaw
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:
I S S U E S
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
13. 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 motherinlaw and
the daughter of the plaintiff have filed their respective affidavits
of evidence and have been cross examined. The plaintiff has
also led evidence.
14. 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 inlaws 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.
15. The plaintiff's examinationinchief has shown good
relations between the spouses as also her and her inlaws 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.
16. Her cross examination shows that she tried to get back to
the matrimonial home, but was not allowed. She has deposed
that her inlaws 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 fatherinlaw. The plaintiff had not
lodged any police complaint or any application for custody of
her child.
17. The evidence of the motherinlaw 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).
18. 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.
19. 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.
20. 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.
21. 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
preschool 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.
22. 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 motherinlaw 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.
23. 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 motherinlaw 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.
24. 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.
25. The deceased prematurely expired leaving behind a young
widow and a small child of 6 years.
26. 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 preschool/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.
27. 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.
28. 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 homemaker.
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
inlaw 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.
29. 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 motherinlaw 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 preschool/ 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.
30. 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 motherinlaw 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.
31. 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 motherinlaw 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 motherinlaw. The motherinlaw 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.
32. 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.
33. 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.
34. It is upon these facts that her unfitness is contended.
Whilst the appropriation of the largest property of the deceased
by the motherinlaw 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.
35. 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.
36. 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.
37. 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
inlaw as the Hindu widowed daughterinlaw, 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 motherinlaw 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 daughterinlaw she is
entitled to be maintained even by her fatherinlaw as the widow
of his predeceased son.
38. Hence the plaintiff's unfitness to act as Administrator of
the estate is not seen. Hence issue No.1 is answered in the
affirmative.
39. 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.
40. The defendants have specifically denied items 5, 7 and 9A
of the schedule to the petition. These are immovable properties.
41. The flat item No.5 in Tulsirunda Society was acquired by
the fatherinlaw of the plaintiff. He has since expired. The
plaintiff is an heir of her fatherinlaw representing the estate of
her deceased husband as the widow of the predeceased son of
her fatherinlaw. 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.
42. The immovable properties in Rajasthan are stated to be the
properties acquired by the fatherinlaw 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 fatherin
law. Her daughter would be entitled to the other half share.
43. 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.
44. 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.
45. 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.
O R D E R
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.
(MRS. ROSHAN DALVI, J.)
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