Saturday 23 March 2013

Court must “hear those who cannot shout; listen to those who cannot speak”.


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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