Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 877 (CAL)

In Re: Arun Kumar Nandi v. Deb Kumar Nandi

2012-09-18

ASIM KUMAR MONDAL, KALYAN JYOTI SENGUPTA

body2012
JUDGMENT 1. The above appeal is directed against the judgment and order dated 14th June, 2012 passed by the learned Single Judge in the above probate proceedings (PLA 117 of 1986) on two applications being G.A. 1270 of 2012 and G.A. 1317 of 2012. Both the above two applications were taken out in connection with the above probate proceedings. The short fact for which the present appeal has been preferred as follows:- Above deceased namely Dr. Arun Kumar Nandi was a wealthy doctor, before his death by his last will and testament dated 11th of February 1985 bequeathed and gave away all his properties both movable and immovable to various persons and institutions as mentioned in the will. It appears by the said testamentary document a trust has been created making various provisions for the beneficiaries. By the said will one Smt. Jahar Nandi, Sunil Kumar Nandi and one Dr. Gopiballabh Banik were appointed joint executors for obtaining probate of the last will and testament. After his death in the year 1986 the probate of the said will was granted to the said joint executors and executrix to fulfill wishes of the said testator. During the lifetime of all the joint executors after obtaining probate the administration of the estate left behind by the deceased, could not be completed. The last surviving executor namely Dr. Gopiballabh Banik in 2011 made an application being G.A. 3588 of 2011 for sale of the property being premises No. 8, Lower Range, Kolkata-700017 as the University of Calcutta being specified beneficiary of the aforesaid property after death of the wife of testator Smt. Jahar Nandi did not take any step. The Court passed an order on that application being G.A. 3588 of 2011 on 14th of February 2012 and gave direction for advertisement once in Telegraph and once in Anandabazar Patrika. Pursuant to the said application various offers were received and this has been recorded in order dated 13th March, 2012. Subsequently various orders were passed thereon intending to complete the sale. However before the said sale could be completed on the application of the surviving executor, she died on 1st March, 2012. On her death one Dr. Deb Kumar Nandi made an application shortly thereafter, being G.A. 1270 of 2012 for obtaining Letters of Administration in respect of properties mentioned in clauses (i) and (ii) of the said will of the testator. On her death one Dr. Deb Kumar Nandi made an application shortly thereafter, being G.A. 1270 of 2012 for obtaining Letters of Administration in respect of properties mentioned in clauses (i) and (ii) of the said will of the testator. In his application he claimed to be the nominee/executor in terms of the will made by virtue of act of nomination made by last surviving trustee Dr. Gopiballabh Banik. The object of making said application was to complete the sale in terms of the earlier order and to hand over sale proceeds to the University of Calcutta after realization of all costs and expenses for such sale incurred on account of advertisement and making application. Shortly thereafter on 7th May, 2012 the University of Calcutta made application being G.A. 1317 of 2012 for appointment of representative of University of Calcutta, the beneficiary of the will of the said deceased for administering unadministered estate of the testator mentioned in Clauses 5(i) and (ii) of the will. It appears that both the aforesaid two applications were heard by the learned Trial Judge and passed aforesaid impugned judgment and order. On hearing the learned Trial Judge neither chose Deb Kumar nor representative of the University to appoint Administrator. A Senior practising Advocate of this Court was appointed Administrator to hold the sale of the property. It appears that neither party had any grievance to this order of appointment of independent Administrator. 2. However the direction was given by the learned Trial Judge for reimbursement of costs incurred by the said Dr. Deb Kumar Nandi out of the sale proceeds. 3. Mr. Milan Bhattacharya, learned Senior Counsel appearing for the appellant submits pointing out to the provision of the will that Dr. Deb Kumar Nandi, respondent herein, that he is no longer a beneficiary of the will as admittedly his legacy to receive a sum of Rs. 5000/- has already been paid off. Hence application of this sort which could have been made under sections 258, 259, 218 and 236 of the Indian Succession Act, 1925 is not maintainable. This application was principally based on a document purported to be a written nomination of the last surviving executor in terms of the said will. According to him the said document is out and out forged and fabricated. It was done so to enable himself to make the said application. This application was principally based on a document purported to be a written nomination of the last surviving executor in terms of the said will. According to him the said document is out and out forged and fabricated. It was done so to enable himself to make the said application. Learned Trial Judge did not discuss the issue at all and this issue ought to have been adjudicated. 4. Mr. Das, learned Senior Advocate submits that the prayer made by his client for his appointment as Administrator for unadministered estate was not pressed and/or abandoned, rather his client suggested the Court independent person should be appointed as Administrator and the appellant herein University Authority concerned has accepted the position. The said order has been accepted and implemented. Actually the University Authority was not very keen and diligent to take their property. It is his client who had come forward to do all things before University could come. He further contends that his client being the named beneficiary of specified amount of money, albeit the smallness is entitled to make application apart from his client having caveatable interest as being nephew of the said deceased. According to him he is not claiming to be a nominee executor to maintain the application. Admittedly again in terms of the order of this Court his client has incurred expenses on account of advertisement and subsequently reimbursed by the University in terms of the order of the appeal Court. He contends as his client incurred costs on account of making application, on which Court acted upon should be reimbursed as University Authority cannot enrich itself. Had the application been made by University earlier his client would not have made such application. 5. We have heard respective contentions of the learned counsels. Only question in this appeal as indicated at the time of admission is whether Mr. Das's client has any locus or for that matter is entitled to reimbursement for the cost and expenses incurred for making application made before the learned Trial Judge. 6. It appears from the provision of the will and statement made by Mr. Das's client in his own application as rightly pointed out by Mr. Bhattacharya that on receipt of Rs. Das's client has any locus or for that matter is entitled to reimbursement for the cost and expenses incurred for making application made before the learned Trial Judge. 6. It appears from the provision of the will and statement made by Mr. Das's client in his own application as rightly pointed out by Mr. Bhattacharya that on receipt of Rs. 5000/- his status of beneficiary in terms of the will ceases to make application under the provision of sections 258, 259, 218 and 236 of the Indian Succession Act 1925. Mr. Das's client before learned Trial Judge conceded that his client did not want to become an Administrator without abandoning his client's assertion of genuineness of the said document of nomination. 7. We find that question of genuineness was not decided by the learned Trial Judge and we think it looses significance when both Mr. Das's client and the University had abandoned their claim for appointment of Administrator for the unadministered estate. We are of the opinion in order to decide the issue here the Court has to look into motive of Mr. Das's client vis-a-vis expected diligence of the University. The University Authority admittedly did not take any step after death of the last surviving executor but Mr. Das's client took step apparently basing on questioned document for implementation of the direction of the testator for sale of the property not for his own interest but for handing over the proceeds to the University incurring costs and expenses out of his own pocket. This act and conduct of Mr. Das's client cannot be said to be mala fide and with ill motive. Hence whole object was to have an order of sale through Administrator to be appointed by the Court which was intended to be chosen from and amongst beneficiaries in terms of the will. It appears that independent choice was accepted by the First Court for effecting sale. In this situation the issue of locus of Deb Kumar is not required to be decided. Now only question is whether Mr. Das's client would be entitled to be reimbursed or not? Admittedly, his client has incurred expenses for advertisement and cost thereof has been already paid to his client. Common order was passed on both the applications. In this situation the issue of locus of Deb Kumar is not required to be decided. Now only question is whether Mr. Das's client would be entitled to be reimbursed or not? Admittedly, his client has incurred expenses for advertisement and cost thereof has been already paid to his client. Common order was passed on both the applications. We think that cost of both the applications should be assessed and be paid to both the parties out of the sale proceeds held by the Administrator. We hold that Mr. Das's client came forward bona fide to take step for implementation of direction of testator on behalf of University, for its own benefit when latter was sleeping. As such Mr. Das's client is certainly entitled to costs of his application. We are of the view it would be simply unjust and inequitable if University is allowed to take benefit of someone's action without paying for the same. We think that this assessment of costs should be undertaken by the Hon'ble Trial Judge as per His Lordship's discretion in the impugned judgment and order. For this purpose the matter is remanded. We request the Hon'ble Trial Judge to do the needful in terms of this order as recorded above. There will be no order as to costs in this appeal. Parties are to bear their costs individually for the appeal.