BAJRANGLAL KHEMKA v. SHEILA DEVI — 1970 DIGILAW 56 (CAL)

B. C. MITRA, J. ( 1 ) THIS is an application for an order directing the Joint Administrators to the estate of Rai Bahadur Motilal Chamria deceased (hereinafter referred to as the deceased) to give up possession of the properties leased out to the petitioner by a registered lease dated October 18, 1966, for an order that the Director and officers of the petitioner be examined pro interesse suo as regards the title to the properties mentioned in the said deed of lease, and that the Joint Administrators be directed to accede to the petitioner's demand for possession of the properties and its rights to realize rents, issues and profits and for various other reliefs. ( 2 ) THE petitioner was incorporated as a private company in 1934 under the Indian Companies Act, 1913. This company had an authorized capital of Rs. 21,00,000 divided into 2,100 Equity Shares of Rs. 1,000 each. Out of the paid up and subscribed capital of the company of Rs. 7,17,000 divided into 717 Equity Shares of Rs. 1,000 each, the deceased held 700 Equity Shares valued at Rs. 7,00,000. Under the Articles of the company the deceased was the Governing Director of the company and was in control and management of the company's affairs up to the time of his death. ( 3 ) IT is alleged that there was a registered deed of lease dated January 30, 1962, for a term of three years with regard to various properties of the deceased. Under this lease, it is alleged that the petitioner was a lessee of various properties of the deceased, full particulars of which have been set out in the deed of lease. This lease expired on February 1, 1965, and a fresh lease of the properties for a further term of 3 years was granted by the accused to the petitioner by a registered deed of lease dated October 18, 1966, from January 1, 1965. This lease expired on December 31, 1967. Under the terms of this lease the lessee had the option to renew the lease for a further term of three years. This lease expired on December 31, 1967. Under the terms of this lease the lessee had the option to renew the lease for a further term of three years. According to the petitioner, before the expiry of the lease on December 31, 1967, option was exercised by the petitioner by a letter dated September 22, 1967, for renewal of the lease for a further term of three years from January 1, 1968, and by virtue of this renewal, it is contended, that the petitioner is entitled to continue to occupy the premises as a lessee until December 31, 1970. ( 4 ) BEFORE proceeding any further it is necessary to refer to certain other facts leading up to this application. The deceased died on June 22, 1967, at a hospital at Vellore. According to the petitioner the deceased had executed a Will dated June 12, 1967, and the executors, on or about September 26, 1967, applied for a probate of this Will. Caveats were entered the respondent No. 6 to be the admitted first widow and also by the daughter and one Bejoy Kumar Dhandhania who claims to be the adopted son of the deceased. The probate proceedings were thereafter marked as a continuous cause. ( 5 ) ON the application of the said Sm. Sheila Devi an order was made on November 26, 1968, by which two members of the Bar namely Mr. R. Goho and Mr. S. R. Das Gupta were appointed Joint Administrators pendente lite. Against the order appointing Joint Administrators, an appeal was preferred, and the appellate Court by an order dated March 13, 1969, appointed Mr. G. K. Bhagat and Mr. R. L. Golcha, joint administrators pendente lite in place of the said two members of the Bar. As the two new joint administrators failed to take up their duties, another order was made by Masud J. on October 7, 1967, removing the joint administrators appointed by the appellate Court, and appointing two members of the Bar namely Mr. A. M. Basu and Mr. S. R. Das Gupta, to act as Joint Administrators pendente lie. Against this order an appeal was again preferred and in an application of the order, an interim order was made directing the Joint Administrators not to take possession of the immovable properties of the estate. A. M. Basu and Mr. S. R. Das Gupta, to act as Joint Administrators pendente lie. Against this order an appeal was again preferred and in an application of the order, an interim order was made directing the Joint Administrators not to take possession of the immovable properties of the estate. This application, however, was finally disposed of by the Appellate Court on January 14, 1970, and by the order made on that day the prayer for stay of operation of the order was refused, and liberty was given to the joint administrators to take possession of and realise the income of all the immovable properties of the estate. By virtue of the order made on January 14, 1970, the joint administrators went to take possession of premises No. 68, Cotton Street, Calcutta, and put padlocks on the doors of four godowns on the ground floor of the premises and asked to the Joint Administrators. The petitioner's case is that since it is in possession of the Calcutta Properties of the deceased including premises No. 68, Cotton Street, under the lease mentioned above, and is entitled to remain in possession of such properties until December 31, 1970, by reason of the exercise of the option mentioned above, and in any event by virtue of the provision in the West Bengal Premises Tenancy Act, 1956, the Joint Administrators have no right to interfere with its possession and with its right to collect rent from the subtenants. As the Joint Administrators have interfered with the petitioner's rights as a lease with regard to premises No. 68, Cotton Street, and have also threatened to interfere with its rights with regard to other properties under the lease, the petitioner has moved this application for the various reliefs mentioned above. ( 6 ) UNDER the lease mentioned above the consideration of the lease is Rs. 2,000 per month to be paid as rent and this sum, according to the petitioner, was duly paid by it regularly during the life-time of the deceased. The respondent No. 6 on the other hand contends that the lease was a paper transaction, that the petitioner never paid rent to the deceased, that the lease was never acted upon and was executed only for the purpose of evading liability for income tax, and also that the deceased during his life-time himself collected rent directly from all the tenants. ( 7 ) MR A. K. Sen counsel for the petitioner argued that his client was in possession of the properties which were the subject-matter of the demise, firstly by virtue of the lease, under the terms of which option for renewal had been duly exercised. Secondly even if the exercise of opinion was not taken into account, the occupation of the premises by the petitioner was protected by Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, and also the definition of a tenant in Section 2 (h) in this Act. It was argued that the right of the petitioner as a lessee and its right to collect rent from subtenants could not be challenged or ignored by the Joint Administrators. It was next argued that under the order dated November 26, 1968, Joint Administrators were appointed only for the estate of the deceased, and that the estate of the deceased did not include the properties which were the subject-matter of a valid lease, and that at best it could include the right to realise the rent of Rs. 2,000/- per month from the petitioner. Mr. Sen next referred to the Articles of Association of the company and contended that though Article 62 provided that if the Governing Director (Motilal Chamria) died while holding the office of the Governing Director, the trustees of the Will or the administrator of his estate might exercise the powers vested in the Governing Director so long as the necessary qualification shares belonged to the estate, no notice had been given by the Joint Administrators that they intended to exercise the powers of the Governing Director, and in the absence of such notice they were not entitled to exercise the powers conferred upon the Governing Director by Article 60. It was next contended that the Joint Administrators were administrators pendente lite and as such there was not vesting of the estate of the deceased in them, and that they were therefore not entitled to represent the estate for all purpose, but were appointed to take charge of the estate only during the pendency of the proceedings in Court. ( 8 ) ON the question of maintainability of this application by the petitioner and the authority of its Director Ram Kumar Saksaria to sign the petition, Mr. ( 8 ) ON the question of maintainability of this application by the petitioner and the authority of its Director Ram Kumar Saksaria to sign the petition, Mr. Sen referred to a resolution of the Board of Directors of the petitioner dated January 31, 1970, by which Pulin Bihari Mitra, Accountant of the Company, was authorized to sign and verify pleadings, petitions, affidavits and other papers relating to or arising out of Appeal No. 264 of 1969 in the High Court, Calcutta. It was argued that this resolution created and conferred sufficient authority on the Director to move this application and sign the petition for that purpose. ( 9 ) THE next contention of Mr. Sen was that this application for examination of the petitioner and its Directors and officers pro interesse suo as regards title to the properties as lessee was maintainable, as the joint administrators were officers appointed by the Court to take charge and possession of certain properties, and that by virtue of the order of this Court the petitioner's right to property had been interfered with, and is also likely to be interfered with. It was argued that the position of the Joint Administrators was analogous to that of a receiver and therefore this Court should give appropriate relief to the petitioner. ( 10 ) MR. B. C. Dutt counsel for the respondents Nos. 1, 2, 3, 4 and 5 supported Mr. Sen and adopted the argument advanced by him. He also referred to Paruck's Indian Succession Act 5th Edition p. 486 for the powers of the executors before probate and also to Halsbury 3rd Ed. Vol. 16 p. 245, paragraphs 4, 5, 6, for the proposition that the joint administrators were subject to the immediate control of the Court and act under its direction. Mr. Dutt also referred to Williams. On Executors and Administrators 13th Ed. Vol. 1 p. 229, paragraph 387 for the proposition that administrators pendente lite were the appointees of the Court and were not to be considered merely as the nominees or agents of the parties on whose recommendation they were selected. On the question of maintainability of this application against administrators pendente lite, reliance was placed by Mr. Dutt first on the observation of Sir James Bacon C. J. in (1) Ex Parte Cochrane In Re. On the question of maintainability of this application against administrators pendente lite, reliance was placed by Mr. Dutt first on the observation of Sir James Bacon C. J. in (1) Ex Parte Cochrane In Re. Mene 20 E. Q. Cases 282 to the effect that after the Court appointed an officer who was responsible for the possession and accountable to the Court for the property entrusted to him, the Court had a right to inquire into the questions of title of a stranger who complained that this right to property had been interfered with. To my mind, this decision is of no assistance to Mr. Dutt because in that case the interference was by a receiver appointed by a Court in Bankruptcy proceedings. Reliance was next placed by Mr. Dutt on (2) Angel v. Smith 9 Vesey's Reports 335. This case also is of no assistance to Mr. Dutt as in this case sequestrators were appointed by the Court and it was held that possession of the sequestrators was the possession of the Court and the Court being competent to examine the title, would not permit itself to be made a suitor in a Court of Law; but will examine the title itself. It is clear that sequestrators were held to hold the same position as a receiver and the possession of the sequestrators, it was held, was possession of the Court as in the case of the receiver. This case is no authority for the proposition that an application for examination pro interesse suo could be maintained against the Joint Administrators in whom the estate vested. ( 11 ) MR. B. N. Sen junior counsel for the petitioner argued that under Chapter 13 of the Original Side Rules, which deals with Originating Summons, the Court had jurisdiction to entertain this application and make appropriate orders. It was argued that under Chapter 13 Rule 1 (e) the Joint Administrators might be directed to abstain from interfering with the petitioner's possession. I do not think that the Rules in Chapter 13 are of any assistance to the petitioner in this case. It was argued that under Chapter 13 Rule 1 (e) the Joint Administrators might be directed to abstain from interfering with the petitioner's possession. I do not think that the Rules in Chapter 13 are of any assistance to the petitioner in this case. Rule 1 prescribes the class of persons who can make the application namely executors and administrators or a deceased, the trustee under any instrument, any person claiming to be interested in relief as a creditor legatee, heir or legal representative or as beneficiary under the trust or any instrument or as claiming by transfer or otherwise under any such creditor or other person as aforesaid, the surety of an executor or administrator. The petitioner cannot be said to belong to any of these different classes entitled to apply on an Originating Summons, as its claim to relief is in its own right as a company incorporated under the Indian Companies Act, and the relief claimed is a relief arising out of a contract entered into by the petitioner in its own right. Secondly it cannot be overlooked that such a relief can be obtained only on an Originating Summons which is to be made returnable before the Judge sitting in Chamber. The petitioner making this application for examination pro interesse suo can not be said to be entitled to the relief on the analogy of an application on an Originating Summons in the Original Side of this Court. Mr. Sen however, argued that even if it is held that the Rules in Chapter 13 of the Original Side Rules do not apply to this application and cannot be invoked in aid of the contention that this Court had jurisdiction, nevertheless on the same principles it should be held that the petitioner is entitled to relief in this application. I cannot accept this contention of Mr. Sen. The Rules in Chapter 13 of the Original Side Rules specify the class of persons who can apply, the manner in which such an application can be made and the relief which can be asked for by the applicant. These Rules or the principles underlying them cannot be in my view be invoked by the petitioner whose application is directed against Joint Administrators pendente lite. ( 12 ) MR. B. N. Sen also referred to a decision reported in (3) (1909) 2 Ch. These Rules or the principles underlying them cannot be in my view be invoked by the petitioner whose application is directed against Joint Administrators pendente lite. ( 12 ) MR. B. N. Sen also referred to a decision reported in (3) (1909) 2 Ch. 280 for the proposition that where a dispute arises by reason of the receiver's action in making use of a plant claimed by a third party the Court appointing the receiver should deal with the dispute itself. This case again is a case where a receiver was appointed in a Debenture-holder's action and therefore is of no assistance to the petitioner. Mr. Sen also relied upon a decision reported in (4) A. I. R. (1952) Nag. 253 for the proposition that the position of a receiver appointed under Or. 40 of the Code of Civil Procedure was analogous to that of an administrator appointed under Section 247 of the Succession Act. But the question whether an application for examination pro interesse suo can be made by reason of the administrator's interfering with property rights of a stranger to the action was neither raised for discussed in that case. ( 13 ) IT is clear to me that seriously disputed and complicated questions of the petitioner's title to property are involved in this application. The very right of the petitioner to move this application has been challenged on the ground that the Joint Administrators, who under Article 62 of the Articles of the Company were entitled to exercise the powers of the deceased, were not given any notice of the meeting of the Board of Directors of the petitioner which was held on January 31. 1970, at which the resolution authorizing the Accountant to sign and verify pleadings and petitions was passed. I will briefly indicate the other disputes which have been raised by the parties to this application. The petitioner is challenging the right of the Joint Administrators to exercise the powers conferred them by Article 62 of the Company. The next dispute raised by the respondent No. 6 is that the lease dated October 18, 1966, would not remain in force till December 31, 1970, as claimed by the petitioner in paragraph 9 of the petition. In the next place the exercise of the option for renewal of the lease by the letter dated September 22, 1967, has been challenged. In the next place the exercise of the option for renewal of the lease by the letter dated September 22, 1967, has been challenged. It was contended that although it is alleged in paragraph 9 of the petition that the petitioner duly exercised the option in terms of the lease, the letter dated September 22, 1967, by which such option was exercised was not annexed to the petition, but was annexed to the affidavit-in-reply, in order to make it impossible for the respondent No. 6 to deal with the allegation of exercise of option. It was argued that there was no exercise of option, and that in any event the petitioner could not claim renewal of the release as it failed to pay the rent and therefore it did not fulfill the condition precedent to such renewal as prescribed in paragraph 4 (b) of the lease dated October 18, 1966. The next disputed question is the contention of the respondent No. 6 that the petitioner was never a lessee and never paid rent, and therefore no rent receipt had been disclosed by the petitioner, and further that no cheque counterfoils of payment of the rent had been disclosed. It was argued that the deceased never granted any receipt to the petitioner in respect of the alleged lease. The next disputed question is the allegation that the lease is a benami and a sham transaction and was never acted upon either by the deceased or by the petitioner, and that the deceased realized rent from the tenants throughout his life-time. The next disputed question is that the petitioner who claims to be a statutory tenant was merely interested in collecting rent from the sub-tenants and therefore is not entitled to the protection of Section 13 (6) of the West Bengal Premises Tenancy Act, 1956. It was urged that the protection contemplated by Section 13 (6) of the Act was intended to protect the right, of statutory tenant who is in occupation of the premises but not of tenant who merely collects rent from sub-tenants. ( 14 ) THE first question to be decided is if this application is maintainable because the allegation of interference with the petitioner's title to, and possession of the properties has been made against Joint Administrators pendente lite, who have been appointed under Section 247 of the Indian Succession Act. ( 14 ) THE first question to be decided is if this application is maintainable because the allegation of interference with the petitioner's title to, and possession of the properties has been made against Joint Administrators pendente lite, who have been appointed under Section 247 of the Indian Succession Act. Under that section the administrators pendente lite has all the powers of a general administrator, and under Section 211 of the said Act all the properties of the deceased vest in him. Counsel for the petitioner had contended that the administrators pendente lite did not have the powers of a general administrator. Mr. R. C. Deb counsel for respondent No. 6 on the other hand contended, and we think rightly, that the Joint Administrators pendente lite had all the powers of a general administrator, and the property of the deceased had vested in them. In support of the contention that the properties of the deceased vest in the administrators pendente lite Mr. Deb relied upon a decision of this Court reported in (5) 85 C. L. J. 280. In our view, Mr. Deb was right in his contention that the administrators pendente lite had the powers of a general administrator and that the estate of the deceased had vested in them. On this question Mr. Deb also relied upon the statement of the law in Halsbury 3rd Ed. Vol. 16 Art. 456 p. 245. ( 15 ) THE significant differences between the position of a receiver or a sequestrator on the one hand and that of a general administrator of a deceased on the other, is that while the estate of the deceased vets in general administrator, no property vets in a receiver or a sequestrator. Where a stranger to the action is aggrieved by any act or conduct on the part of the receiver, the Court proceeds to examine the petitioner pro interesse suo with regard to his claim, because the Court cannot be made a suitor in proceedings in any other Court. On the other hand the property of a deceased vests in the general administrator, and a stranger to the action aggrieved by his conduct by reason of his interference with title to or possession of property has a right to obtain redress in an action at law. On the other hand the property of a deceased vests in the general administrator, and a stranger to the action aggrieved by his conduct by reason of his interference with title to or possession of property has a right to obtain redress in an action at law. In that view of the matter in our opinion an application for examination of the petitioner pro interesse suo is not maintainable against an administrator pendente lite for any injury caused by him to the title to or possession of property of a stranger to the proceedings. ( 16 ) WHAT I have said above would have been enough to dispose of this application but since several other questions have been raised I will now proceed to deal with the same. ( 17 ) AS I have indicted in the earlier part of this judgment questions of title to property are involved in this application. It is alleged that the lease was a benami transaction, and was a formal document intended to evade liability for income tax and was never acted upon by the parties. It is further alleged that no rent was paid by the petitioner to the deceased at any time, and that the petitioner has not disclosed any rent receipt in support of its claim that it had paid rent to the deceased during his life-time. It is said on behalf of the executors that there are entries in the books of account of the deceased which would show that rent was paid by the petitioner. But entries in the books of account of the deceased are at best secondary evidence, the primary evidence of payment of rent would be the rent-receipts granted by the deceased to the petitioner, and also counterfoils of cheques, if payment was made by cheque. But the petitioner has neither produced rent-receipts nor has it disclosed any books of account in support of its contention that rent was paid by it. These are questions which in our view cannot be tried in a summary proceeding, such as this, and the petitioner's claim can only be adjudicated upon in a properly constituted action. Then again it is to be borne in mind that the exercise of the option of renewal by the petitioner by the letter dated September 22, 1967, has been challenged. Mr. Then again it is to be borne in mind that the exercise of the option of renewal by the petitioner by the letter dated September 22, 1967, has been challenged. Mr. Deb contended that the option was never exercised and strongly criticized the conduct of the petitioner in disclosing the letter dated September 22, 1967, in the affidavit-in-reply when his client had no chance to deal with the same. It seems to us that there is a good deal of force in this criticism of Mr. Deb. This again is a question namely whether the option was in fact exercised on behalf of the petitioner by the letter dated September 22, 1967 which cannot be answered by this Court in a summary proceeding on affidavit. ( 18 ) MR. Deb had also contended that if the petitioner was a statutory tenant he was not entitled to the protection of the West Bengal Premises Tenancy Act, 1956 and in support of this contention he relied on a decision of the Supreme Court reported in (6) AIR (1968) SC 471 and also on a passage in Halsbury 3rd Ed. Vol. 23 Art. 1586 at p. 806. Mr. B. N. Sen counsel for the petitioner sought to repel the contention of Mr. Deb by contending that in that case the question of protection under Section 12 of the West Bengal Premises Rent Control (Temporary Provisions Act) 1950, was considered by the Supreme Court but the statute under which the petitioner claimed protection was a different statute altogether namely the West Bengal Premises Tenancy Act, 1956, and his client was entitled to protection under Section 13 (6) of the later Act. We are not called upon to decide in this application if the petitioner was in fact a statutory tenant, and we accordingly refrain from holding that he became a statutory tenant. But the question raised by Mr. Deb seems to us to depend on whether the petitioner is a contractual tenant on the basis of the exercise of option as claimed by it or whether it has become a statutory tenant entitled to the protection of section 13 (6) of the West Bengal Premises Tenancy Act, 1956. This again in its turn would depend on the factum, the validity, and the legality of the exercise of option on behalf of the petitioner for renewal of the lease. This again in its turn would depend on the factum, the validity, and the legality of the exercise of option on behalf of the petitioner for renewal of the lease. Such a question again in our view cannot be decided on affidavits. ( 19 ) IT has always been and still is the settled law that disputed questions of title to property cannot be adjudicated upon in an application for examination of the petitioner pro interesse suo, particularly when evidence on affidavit and documentary evidence would not be enough to enable the Court to adjudicate upon the questions raised by the parties. (See (7) Sreedhar Chaudhuary v. Nilmoni 41 CLJ, 197 and (8) Hazarimul Hiralal v. Sadasuk Parruck and Company, 41 CLJ 371 ). There can be no doubt that there are serious disputes with regard to the title of the petitioner as a lessee, and as I have indicated above the various questions raised on behalf of the parties cannot be answered only on such documentary evidence as has been produced so far in this application. Oral and further documentary evidence has to be adduced in support of the rival contentions advanced on behalf of the parties. It was said in course of the arguments that the Executors had books of accounts containing entries relating to the payment of rent to support the contention of the petitioner. Even assuming that the entries in the books of account may be regarded as sufficient evidence, mere production of the books of account is no evidence in support of the payment received by the estate of the deceased from the petitioner. Oral evidence must be adduced in support of the entries in the books of account and to prove the same, before such entries can be treated as admissible evidence. ( 20 ) FOR the reasons mentioned above we are of the opinion that this application is not maintainable. There is a prayer in the petition in the alternative for leave to proceed against the Joint Administrators pendente lite if this Court takes the view that the application involves question which can be decided in action at law. There is no authority in law for grant of such leave for an action against an administrator pendente lite and we cannot therefore grant this prayer either. The application therefore fails and is dismissed. There is no authority in law for grant of such leave for an action against an administrator pendente lite and we cannot therefore grant this prayer either. The application therefore fails and is dismissed. But this order is without prejudice to the petitioner's right to seek redress of his grievance in a properly constituted action, if it is advised to institute the same. If a suit is filed by the petitioner, such suit should be filed within three weeks from this date and if such a suit is filed the costs of this application will abide by the result of the suit. If no suit is filed by the petitioner within the time specified the petitioner is to pay one set of costs to the respondents Nos. 6, 7, 9 and 10. The respondents Nos. 9 and 10 will be entitled to retain the costs of and incidental to this application as between attorney and client out of the assets in their hands, less such costs as they may realize from the petitioner. Counsel for the petitioner submitted that in the event of this application being dismissed an order should be made restraining the Joint Administrators from acting for some time to enable the petitioner to institute a suit against the Joint Administrators and obtain appropriate interim relief in such suit. Ordinarily we would have granted such a prayer. But in the facts of this case an injunction of the kind prayed for would defeat the purpose and the object of the order appointing administrators pendente lite and also of the order made by this Court on January 14, 1970, refusing to grant stay of operation of the order appointing administrators pendente lite. The facts which disentitle the petitioner to such an order for injunction are that persons claiming to be executors of the alleged Will of the deceased applied for a stay of operation of the order of Masud J. dated October 7, 1969, whereby the Joint Administrators pendente lite were appointed by him. This application was rejected by this Court on January 14, 1970, with the result that the Joint Administrators became entitled to act in terms of the order dated October 7, 1969, by which they were appointed. This application was rejected by this Court on January 14, 1970, with the result that the Joint Administrators became entitled to act in terms of the order dated October 7, 1969, by which they were appointed. Shortly thereafter on February 4, 1970, the notice of motion for this application was taken out by the petitioner, and it appears from the Annual Return filed on behalf of the petitioner with the Registrar of Companies, which is Annexure 'c' to the affidavit-in-opposition affirmed by the respondent No. 6 on February 23, 1970, that two out of three Directors of the Company namely Sugan Chand Sarogi and Ram Kumar Saksaria are also two of the three persons who claim to be executors of the alleged Will of the deceased. To let the company remain in possession and collect rent from tenants would clearly have the effect of allowing two of the persons claiming to be executors of the alleged Will to remain in possession, charge and management of the properties of the deceased, though in a different capacity namely as the Directors of the petitioner. This in our view ought not to be done as it would defeat the purpose and the object of the said order appointing Joint Administrators pendente lite and also of the order refusing to grant a stay of operation of the order of appointment of the Joint Administrators pendente lite. In these facts and for the compelling reasons mentioned above the injunction prayed for by the counsel for the petitioner cannot be granted nor an order for stay of operation of this order can be made. Ajoy Kr. Basu, J. : I agree.