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2012 DIGILAW 90 (CAL)

Nirmal Kumar Saha v. Sefalika Saha

2012-01-24

I.P.MUKERJI

body2012
Judgment :- I.P. MUKERJI, J. This is an application by two joint executors to a will, asking for appointment of a receiver or an administrator pendent elite over an estate to collect its income, defray the expenses and to take other protective measures to protect it. The estate is of Deb Kumar Shaw. He made his last will and testament on 13th April, 2005 appointing the joint executors and a codicil on 7th April, 2006. He died on 31st December, 2009. He had the following heirs who would have succeeded to the estate on intestacy. They are, 1) Smt. Sefalika Saha (widow), 2) Dr. Jyotirmoy Saha (son),3) Dr. Dipankar Saha (son) and 4) Dr. Purabi Mondal (daughter). None of the above heirs gave consent to the grant of probate. On 13th September, 2010, the joint executors filed an application for grant of probate. The application was registered as PLA NO.246 of 2010. Both general and special citations were issued to the heirs of the testator. The two sons lodged caveats; the widow and the daughter did not. Now, an extraordinary situation arose. The two sons of the testator who are not legatees under the will were in control of his properties. The joint executors were not in a position to exercise control. They did not have the required knowledge of the assets of the testator. According to them, because of this, they could not file a proper affidavit of assets. In 2010, the joint executors filed an application before this Court which was numbered as G.A. No. 3138 of 2010. They sought directions upon the two sons to give them all information about the properties of the testator and the income therefrom. That application was heard and disposed of by Sanjib Banerjee J. on 24th December, 2010. The learned Judge noted that in the affidavit filed by the two sons the details of the properties were mentioned. It appears from that order that these two sons were collecting rents from the tenants in occupation of a property numbered as premises no. P-5, C.I.T. Scheme LV, Kolkata – 700 014.The second, third, seventh and eighth floors of the properties had been transferred out by the testators prior to his death and did not form a part of the estate. These two sons were also operating bank accounts of the testator. P-5, C.I.T. Scheme LV, Kolkata – 700 014.The second, third, seventh and eighth floors of the properties had been transferred out by the testators prior to his death and did not form a part of the estate. These two sons were also operating bank accounts of the testator. The learned Judge directed the two sons to furnish monthly accounts of the income and expenses of “the properties” of the testator. They were allowed to receive this rental income and pay property tax and maintenance charges. Furthermore, the widow was to be paid Rs.15,000/- (a month) from the estate. Neither the joint executors nor the heirs could otherwise deal with the property. The sons were also directed to furnish copies of share, certificates, and debentures together with the details of the demat accounts of the testator to the joint executors. The case of the petitioners in brief is that the two sons of the testator are not giving then any account of the rent received from the above property, the property tax paid in respect thereof, other expenses made for maintenance and running of the property. Furthermore, the persons in whose favour a part of the property was transferred are not making any contribution towards the above expenses. It may be said that the assessment of tax of the said property is being made by the Kolkata Municipal Corporation on the property, as a whole. The maintenance expense of the property is also paid likewise. Furthermore, no account has been furnished of the partnership firm where the testator had a 60% share. It is also said that the testator had investments in the form of money deposited with the bank, shares and debentures in companies. Proper account of the accruals from such investments has also not been furnished by these persons. In the circumstances, the joint executors have approached the Court for appointment of a receiver or an administrator pendentelite. There is no dispute that the two sons of the testator are collecting the income and incurring expenses of the above property. However, the order dated 24th December, 2011 of Sanjib Banerjee J. is placed before me to contend that the state of affairs stated in that order cannot be changed. There is no dispute that the two sons of the testator are collecting the income and incurring expenses of the above property. However, the order dated 24th December, 2011 of Sanjib Banerjee J. is placed before me to contend that the state of affairs stated in that order cannot be changed. On examination of the said order I find that considering the case put forward before his lordship, the learned Judge had ordered that the two sons of the testator could receive the rents, make payment of the property tax and incur expenses but could not appropriate or deal with any other asset. In the facts and circumstance of that application his lordship was satisfied that the order would maintain the balance till the grant of probate and distribution of the assets of the testator or any other final order that would be passed by this Court. I am afraid that upon reading the application of the joint executors it appears that the parties, which include the joint executors, are reaching a point of deadlock. Far from cooperation there is animosity between them. I am satisfied to some degree that these two sons of the testator are not rendering proper accounts to the joint executors, and are not cooperating with them. I do not think that this kind of a state of affairs was before Sanjib Banerjee J. or was conceivable when he passed the above order. The two sons of the testator cannot claim an absolute right to go on collecting the rent. After all the joint executors want to relinquish the function of administrating the estate and want appointment of an administrator pendentelite or a receiver. This can be done under section 247 of the Indian Succession Act, 1925. It is specifically stated in that section that the administrator pendentelite will have all the rights and powers of the administrator but will not have the right of distributing the estate. I think that such protection of the estate is necessary. After hearing the submissions of the parties I think the Advocates-on-Record for the appearing parties or their nominee should be appointed as joint administrators pendentelite. In the circumstances I appoint Mr. Manik Das, Advocate of 12/2, Old Post Office Street, 1st Floor, Kolkata 1 and Mr. Pramit Kumar Roy, Barrister at Law as joint administrators pendentelite. After hearing the submissions of the parties I think the Advocates-on-Record for the appearing parties or their nominee should be appointed as joint administrators pendentelite. In the circumstances I appoint Mr. Manik Das, Advocate of 12/2, Old Post Office Street, 1st Floor, Kolkata 1 and Mr. Pramit Kumar Roy, Barrister at Law as joint administrators pendentelite. Order in terms of prayer (a) and (b) of the Notice of Motion. Reference to receiver in the prayers should mean joint administrators pendentelite. They will be entitled to remuneration of Rs. 30,000/- each per annum to be retained by them out of the income of the estate. They will be entitled to open a bank account in any bank in their joint names to be operated jointly. They will file quarterly accounts in this Court, with copies to their respective clients. This application is allowed to the above extent. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.