Shaban Thanawala vs State of Maharashtra & Ors

Leave granted.

This appeal arises from an order dated 25 February 2019 of a learned Single Judge of the High Court of Judicature at Bombay. The High Court is seized of an appeal under Section 454 of the Code of Criminal Procedure, 1973 [CrPC], against an order of the Additional Sessions Judge, City Civil Court, Greater Mumbai dated 18 February 2019 under Section 452 governing the disposal of certain property.

The appellant Shaban Thanawala is 86 years old. His brother Ramzan died on 15 February 2015. The spouse of Ramzan had predeceased him on 3 July 2011. The appellant and Ramzan had a sister by the name of Kulsum who died in 2012. The controversy between the parties to these proceedings rests on a will, alleged to have been executed by Ramzan on 13 October 2014. By the will, Ramzan constituted the second and third respondents as his trustees and executors. Ramzan died on 15 February 2015. The third respondent is a Chartered Accountant who is alleged to have looked after the affairs of Ramzan during his lifetime. The second respondent is alleged to have been in the employment of Ramzan as his servant. The second and third respondents instituted probate proceedings before the High Court of Judicature at Bombay on 19 May 2015. The appellant lodged a caveat in the probate proceedings. Consequent upon the caveat, proceedings are now pending before the High Court in the form of a testamentary suit.

On 23 June 2015, the appellant lodged a complaint to the police alleging that funds from the account of the deceased were siphoned off by the second and third respondents and that they had fabricated a will. On 4 July 2015, the appellant filed a private complaint. An order was passed under Section 156(3) of the CrPC by the Magistrate on 31 July 2015 directing the police to register an FIR. On 4 August 2015 an FIR was registered under Sections 420, 465, 467, 468, 471, 408, 451, 452, 453, 454, 455, 456, 457, 392, 395 and 506 (ii), read with Section 34 IPC. On 8 August 2015, the Investigating Officer took steps to freeze the accounts of the second and third respondents which inter alia included eleven fixed deposits covering principal amount of Rs 10.60 crores. The details of the fixed deposit receipts, together with interest accrued, are as follows:

Date

FD No.

Amount [Rs]

20.04.2015

67320447061

99,00,000/-

20.04.2015

77320447118

99,00,000/-

20.04.2015

67320447174

99,00,000/-

20.04.2015

67320447221

99,00,000/-

20.04.2015

67320447232

99,00,000/-

20.04.2015

67320447243

99,00,000/-

20.04.2015

67320447254

99,00,000/-

20.04.2015

67320447265

99,00,000/-

20.04.2015

67320447298

99,00,000/-

20.04.2015

67320447301

99,00,000/-

Grand Total

10,60,00,000/-

Interest accrued

4,26,67,266/-

Net Total

14,86,67,266/-

The investigation of the criminal case was handed over to the Economic Offences Wing on 17 September 2015. A charge-sheet was filed under Section 173 of the CrPC on 8 March 2016. Charges were framed on 14 October 2016. During the pendency of the trial, the appellant moved applications for the return of the property under Section 457 of the CrPC. These were rejected by orders dated 24 February 2016, 28 September 2016 and 3 August 2018. An application moved before the High Court for the return of property was dealt with by an order dated 11 August 2016 for the expeditious completion of the trial.

On 15 February 2019 the second and third respondents were convicted of offences punishable under Sections 408, 418 and 420 of the Penal Code and sentenced to two years' imprisonment. They were acquitted of other charges. Appeals against the order of the learned trial judge are pending before the High Court.

On 18 February 2019, the Trial Court allowed an application moved by the appellant under Section 452 CrPC for the release of the amounts held in the bank account to the appellant. The second and third respondents filed an appeal under Section 454 CrPC. By an order dated 25 February 2019, the learned Single Judge of the High Court stayed the operation of the order of the Trial Court. As a consequence of the interim order passed by the High Court, the direction of the Trial Court for the release of the amounts due to the appellant has been stayed. That is how he appeal has arisen

Mr R Basant, learned Senior Counsel appearing on behalf of the appellant has urged two submissions in support of the appeal. The first submission is that the appellant is the sole legal heir of his deceased brother Ramzan. Mr Basant submitted that the appellant has lodged a caveat in the probate proceedings before the High Court since the appellant contends that the will of which probate has been sought by the second and third respondents is a fabricated document. It was urged that upon the conclusion of the criminal trial, the learned Trial Judge was within his jurisdiction in directing the release of the monies held in the bank account of the appellant. Secondly, in the alternative, Mr Basant submitted that even if (without conceding) that the will of which probate is sought by the second and third respondents is held to be valid, under clause 6(a), the monies which are held in the bank account are liable to be released for the welfare, benefit and maintenance of the appellant. The alternative submission proceeds on the basis that the will is eventually upheld in the probate proceedings. Even so, it has been urged that the appellant, who is 86 years old, should be entitled to the release of the interest which has accrued on the monies held in fixed deposit for meeting his expenses, particularly towards maintenance and other medical requirements.

On the other hand, it has been urged on behalf of the second and third respondents by Mr.Pranay Goyal, learned counsel that the will provides for meeting the tax and other liabilities payable by the estate of the deceased. It was urged that the tax authorities have raised demands amounting to Rs 1,88,57,469 covering assessment years 2015-2016 to 2019-2020, details of which have been furnished in Annexure R-10 to the counter affidavit which is filed on behalf of the respondents. That apart, it has been submitted that in the rejoinder affidavit which has been filed by the appellant, the expenses which have been incurred since January 2015 until date have been listed. It has been submitted that Annexure R-15 to the rejoinder would indicate that of the total expenses of Rs 1,00,00,000 nearly half has been incurred towards litigation expenses. Mr.Goyal submitted that the appellant has attempted to utilise the monies which form the subject matter of the will in pursuit of the litigation. However, it may be noted that in fairness, learned counsel has submitted that there could be no objection to a reasonable amount being released to the appellant under the directions of this Court, consistent with the maintenance requirements of the appellant at this stage. He, however, opposed the submission of Mr Basant that the entirety of the interest should be released to the appellant. Mr Goyal submitted that in terms of the provisions of clause 6(b) of the will, it is only out of the residue which remains after all liabilities have been met, that a provision is to be made for the maintenance of the appellant.

The probate proceedings which were initiated by the second and third respondent are pending before the High Court. Hence, at the outset it would be necessary for this Court to observe, having regard to the limited scope of these proceedings, that it is not necessary or, for that matter, appropriate to render any conclusive finding on the rights and contentions of the parties which would be decided in the course of the testamentary suit. At this stage, both sides have relied upon the provisions contained in clause 6(a) of the wil, Mr Basant in support of his alternative submission that in any event, the will contemplates payment being made to the appellant for the purpose of maintenance. Clause 6(a) of the Will is extracted below:

"After payment of all expenses for my funeral and religious ceremonies and all taxes, duties, charges, liabilities and debts, if any, pertaining to my estate, I give, devise and bequeath all the rest and residue of my estate of whatsoever nature and kind and wheresoever situate and whether moveable or immoveable including my bank accounts and financial securities but exclusive of my aforesaid Flat No.9 in Roxana and my shares in Roxana Co-operative Housing Society Ltd. (hereinafter collectively referred to as "my residuary estate") unto my trustees upon rust to keep the same invested and utilize the income therefrom for the maintenance, welfare and benefit of my brother Shaban for and during his lifetime with power to utilize any part of the corpus if needed to meet any medical or other urgent necessity."

The effect of the impugned order of the High Court is that the direction issued by the learned Trial judge for the release of the money to the appellant stands stayed in its entirety. A blanket stay would not subserve the interests of justice. The appellant is 86 years of age and is admittedly the brother of the deceased. Even the will of which probate is claimed by the second and third respondents names the appellant as one of the beneficiaries. The will has provided for a life time interest to the appellant in terms of a residential flat at Churchgate, Mumbai in clause 5(b) and the utilization of the residue of the estate to meet the maintenance needs of the appellant after meeting the liabilities. Clause 6(a) also provides that the corpus if needed can be utilized for meeting medical or other urgent necessities. Hence, we are of the view that an amount of Rs 2,00,00,000 should be directed to be released to the appellant out of the accrued interest on the fixed deposits subject to conditions which we propose to impose.

We, accordingly issue the following directions:

(i).  An amount of Rs 2,00,00,000 (Rupees two crores) shall be released to the appellant out of the accrued interest on the fixed deposits which are presently invested with the State Bank of India, Fort Branch, Mumbai;

(ii). The State Bank of India, Fort Branch, Mumbai shall transfer an amount of Rs 2,00,00,000 (Rupees two crores) to SBI Account No 3437391734 of the appellant held with the Central Bank of India, Tardeo Branch, Mumbai. For the purpose of transfer of the above amount to the appellant, he shall lodge a bond with High Court of Judicature at Bombay, if not already filed, in terms of the directions in this Order;

(iii). The appellant shall be at liberty to utilize the aforesaid amount which has been directed to be released to him for meeting maintenance and other needs and requirements. He shall lodge quarterly statements of account before the High Court of Judicature at Bombay in the probate proceedings which are now pending as Testamentary Suit No 185/2015.

Criminal Appeal No 313/2019 shall by consent stand disposed of finally in terms of the above directions issued by this Court which shall stand substituted in place of the directions which were issued by the Trial Court on 18 February 2019. The proceedings in the following cases pending before different courts are expedited.

Probate Petition No 951of 2019 (Suit No 185 of 2015) filed by the Respondent/Accused.

Testamentary Petition for Letter of Administration No 1156 of 2015 (Suit No 155 of 2017) filed by the Appellant.

Appeal No 391 of 2019 (Filed by the Appellant).

Appeal No 401 of 2019 (Filed by the Appellant).

Appeal No 581 of 2019 (Filed by Accused No 1).

Appeal No 602 of 2019 (Filed by Accused No 2)

Parties would be at liberty to seek further directions if it becomes necessary before the High Court of Judicature at Bombay in the Testamentary Suit.

On the request of Mr.Pranay Goyal, learned counsel, we grant liberty to the second and third respondents to move the Bombay High Court in the pending litigation for appropriate directions for release of the amount necessary to defray the income tax liabilities of the estate of the deceased.

The appeal is disposed of in the above terms.