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2013 DIGILAW 1234 (PAT)

In re : Sudhir Chandra Ghose v. .

2013-10-09

KISHORE K.MANDAL

body2013
ORDER The applicant has filed this case for grant of probate having its effect throughout India in respect of the Will executed by his father Late Sudhir Chandra Ghose (testator) on 13.10.1988 respecting the Estate/property set out therein. The applicant was appointed executor of the said Will. 2. In course of consideration of the said case, this Court in its order dated 01.04.2005 directed the Branch Manager of the State Bank of India, Patna Main Branch to remit a sum of Rs.2600/- after encashing travellors cheque issued in the name of the testator towards payment of duty. The balance amount of duty was directed to be drawn from the savings bank accounts of the testator with the Postmaster of Patna High Court Post Office and the Branch Manager Central Bank of India, Rajendra Nagar Branch, Patna. Further amount was directed to be drawn from the LIC policies of the testator as detailed in paragraph 5 of the application. The remaining amount, if any, was required to be paid by the applicant. On payment of the duty the said test case being Test. Case No. 03 of 2004 was heard and by a judgment/order dated 02.02.2008 the same was finally allowed. Be it noted that in the light of the said order dated 01.04.2005 a show cause on behalf of the Senior Divisional Manager, LIC of India, Patna Divisional Office, Patna (at Flag 4) was filed stating as under in paragraph 3, 6 and 7 : 3. That on receipt of the aforesaid letter dated 30.05.2005 the matter was referred to the Zonal Office of the Corporation vide letter dated 25.8.2005 by the Patna Divisional Office of the Corporation. The Manager (Claim), Kolkata Metropolitan Divisional Office-1, thereafter wrote a letter dated 5.9.2005 to the Manager (L &HPF), Kolkata who, in his turn, informed the Manager (L&HPF) LIC of India, Patna Divisional Officer by letter dated 6.9.2005 enclosing the copy of the letter dated 5.9.2005 of the Manager (Claims) and requested to make available relevant records; however, no records are traceable in the Patna Divisional Office of the Corporation. 6. 6. That the deponent respectfully states and submits that without prejudice to the facts already mentioned hereinbefore; in accordance with the provisions of section 7 of the Life Insurance Corporation of India Act, 1956 which came into effect from 1.9.1956; the assets and liabilities of existing insurers carrying on Life Insurance business vested in the Corporation. After nationalization of the Life Insurance business it is the Corporation established u/S. 3 of the Life Insurance Corporation of India Act started Life Insurance business and as such the applicant should make available the relevant documents to prove the claim based on records, particularly when the records in regard to those policies are not traceable in the office of the Corporation. The applicant has mentioned date of policy No.178281 as 9th of May, 1943 obtained from National Insurance Co. Ltd. so it is evident that it was a policy obtained by the life assured at least 13 years ago of taking over the life Insurance business by the Corporation; the applicant has not mentioned the date of the policy No.202172 obtained from Bombay National Life Insurance Society payable on death of life assured, but from name of the insurer it appears that it was a private insurer and as such the policy must have been obtained prior to nationalization of the Life Insurance business. So far policy No. 1/13890 dated 27.11.1995 obtained from Ganesham Life Insurance Society is concerned, it is humbly submitted that in November, 1995 the Corporation was very much in existence and was only authorized to continue with the Life Insurance business. Ganesham Life Insurance Society may be a private insurer and/or the date of policy as mentioned as not correct. However, the Corporation is ready to make full investigation of the claim of the applicant without prejudice to its right if the applicant co-operates and provides the documentary evidence as requested hereinabove to find out the status of the policy on the date of death of the life assured. The applicant should also give the date of death of the life assured. 7. That the deponent states that life assured died several years ago and it is not even mentioned as to whether the applicant or any other heir, legal representative or nominee had ever made any claim within a reasonable period or not. The applicant should also give the date of death of the life assured. 7. That the deponent states that life assured died several years ago and it is not even mentioned as to whether the applicant or any other heir, legal representative or nominee had ever made any claim within a reasonable period or not. The Corporation as per rules after expiry of the prescribed period normally destroyed the records unless some disputes are raised or pending where such records are required. 3. The applicant propounder filed a reply thereto. In the said affidavit the applicant enclosed photo copies of the policies issued by then National Insurance Company Limited (NICL), Bombay Mutual Life Assurance Society Ltd. and Gresham Life Assurance Society Ltd. The first policy issued by the NICL was subscribed by the testator in the year 1943 for a sum assured of Rs. 2000/- The second one was issued by the Bombay Mutual Life Assurance Society Ltd. which was subscribed by the testator on 7.11.1945 for the sum assured of Rs. 2000/-. The third one was issued by the then Gresham Life Assurance Society Ltd. which was subscribed by the testator in September, 1951. The annuity amount was payable at different rates thereunder on attaining specified age of the insured. As noticed, the application seeking probate of the Will was allowed by this Court. The matter relating to the payment of the dues of the applicant under those policies, however, remained pending. This Court under order dated 23.11.2006 observed that the Senior Divisional Manager, LIC should consider the documents and claims and pass appropriate order and if the claims are admitted the amount payable thereunder be deposited in this Court by way of bankers cheque in the name of the Registrar, Patna High Court. Subsequently, the LIC produced an account payee cheque in the sum of Rs. 7,680 drawn in the name of the Registrar General, Patna High Court which was directed by this Court to be encashed and proceeds thereof be kept in the fixed deposit for three years. The said amount was later directed to be transferred in the account of the applicant. A submission was made on behalf of the LIC that no further action is required on the part of the LIC in the matter. The said matter, however, remained pending. An affidavit was thereafter filed by the LIC (Flag 14/A). The said amount was later directed to be transferred in the account of the applicant. A submission was made on behalf of the LIC that no further action is required on the part of the LIC in the matter. The said matter, however, remained pending. An affidavit was thereafter filed by the LIC (Flag 14/A). This Court would notice the stand of the LIC set out in paragraphs 5 to 7 thereof which read thus : 5. That the dependent states that in compliance of the said order of the Hon’ble Court, the applicant produced policy bonds of the three policies which are as follows : (i) Policy No. 202172 dated 7.11.1945 for sum assured Rs. 2,000/- obtained from Bombay Mutual Life Assurance Society Ltd; (ii) Policy No.138090 dated 15.9.1951 which is an Annuity policy, and (iii) Policy No.178281 obtained from National Insurance Co. Ltd. on 9.5.1943. In respect of policy at serial No.(i) the claimant had made available an acknowledgment letter dated 13.7.1961 showing premium paid as on June, 1961. Copy of the letter is Annexure-1 to the Reply of the petitioner at Flag 6. In spite of extensive search the LICI did not find any record pertaining to those policies save and except that in respect of policy No.178281 some information could be found from the letter dated 13.7.1961 produced and on that basis the LICI paid a sum of Rs. 7,680. The calculation of the said amount is as under: Sl. No. Particular Amount (Rs) (a) Paid up value 1,739.00 (b) Interest @ 8% 5,541.00 from the date of maturity till the date of payment Total 7,680.00 This policy was without profit so no bonus accrued under this policy. Accordingly, a cheque for Rs.7,680/- dated 7.3.2007 was produced before the Hon’ble Court and the Hon’ble Court was well informed of the position. Since the Claimant did not produce any receipt or any document showing the payment position of premiums under policy No.202172 dated 7.11.1945 for Rs.2,000/- and policy No.138090 dated 15.9.1951 which is an Annuity Policy with optional pension age, the competent authority of L.I.C. was not in a position to take a decision to pay. In the show cause (Flag 4) the LICI had denied the claim in want of any evidence of payment of premium. 6. That the deponent states that the matter was once again placed before the Sr. In the show cause (Flag 4) the LICI had denied the claim in want of any evidence of payment of premium. 6. That the deponent states that the matter was once again placed before the Sr. Divisional Manager for consideration, however, no document or paper has been found in the office of the LICI, hence it is not possible to make payment under the two policies bearing No.138090 dated 15.9.1951 obtained from Gresham Life Assurance Society Ltd., and under policy No.202172 dated 7.11.1945 obtained from Bombay Mutual Life Assurance Sociality Ltd. A committee was constituted for this purpose. The committee of four Managers took a view that if the claimant produces any subsequent premium payment receipt, the LICI shall pay as per rules. 7. That from the facts and circumstances stated hereinabove, would appear that after the direction of this Hon’ble Court dated 23rd November, 2006, the Senior Divisional Manager considered the documents submitted by the claimant and took a decision to pay a sum of Rs. 7,680/- drawn in the name of the Registrar General, Patna High Court in respect of one of the policies and as respect other two policies since there was no evidence relating to payment of premium, nothing was paid to the claimant. The admitted amount was duly paid by presenting the cheque before the Hon’ble Court on 9th March, 2007. It is, therefore, apparent from the records that the order dated 23rd November, 2006 was duly complied with. The Hon’ble Court directed the LICI to file an affidavit giving details of the payment made under the aforesaid cheque, however, no further direction was issued to pay the claimant any further amount. An affidavit giving the details of the payment could not be filed by the deponent for which the deponent seeks unconditional apology. The deponent has provided the break-up of the payment made to the claimant earlier, in paragraph-5 hereinabove which was provided by the then Manager (Claims) vide his letter dated 7.3.2007 addressed to the office of the deponent, a copy of which has been traced at this stage. 4. It has been contended on behalf of the applicant that the amount due and payable under two policies subscribed by the testator has not till date been verified/examined by the LIC and paid to the beneficiary i.e. the applicant. 4. It has been contended on behalf of the applicant that the amount due and payable under two policies subscribed by the testator has not till date been verified/examined by the LIC and paid to the beneficiary i.e. the applicant. On the other hand, a stand has been taken by the LIC that the claim is stale inasmuch as no proof has been furnished by the applicant in respect of the premium, if any, paid by the testator under those two policies. The issue with regard to non payment of the dues, if any, under the remaining two policies subscribed by the testator cannot be gone into in the present testamentary case. The claim(s) by the applicant are stale. In respect of one of the policies the applicant furnished certain documents/papers/receipts relying whereof a sum of Rs. 7,680 has already been disbursed. 5. Learned counsel for the applicant, per contra, submits that any such claim can be entertained by this Court under section 302 of the Indian Succession Act (for short the Act). 6. I have heard the rival contentions made by the parties. 7. The LIC has raised an issue with regard to jurisdiction of this Court in deciding the said claim of the applicant. It has been contended that such issue cannot be gone into in the testamentary proceeding which was filed for grant of probate in respect of Will executed by the testator. This Court, however, directed the concerned Branch Manager of the Bank and the post office where the testator held the account to remit the amount in order to satisfy payment of the probate duty. The LIC was also directed to consider the claim of the applicant with regard to non payment of the dues payable to the testator in respect of three policies subscribed by the testator. The duty having been paid and the matter having been disposed of finally, this Court should not proceed to adjudicate on the said claim(s) of the applicant. He relies in this regard on section 273 of the Act. 8. Section 302 of the Act reads thus : “302. Directions to executor or administrator. The duty having been paid and the matter having been disposed of finally, this Court should not proceed to adjudicate on the said claim(s) of the applicant. He relies in this regard on section 273 of the Act. 8. Section 302 of the Act reads thus : “302. Directions to executor or administrator. Where probate or letters of administration in respect of any estate has or have been granted under the Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate to the administration thereof. 9. Section 273 of the Act in its relevant part on which reliance has been placed by the counsel for the LIC reads thus: “273. Conclusiveness of probate or letters of administration. Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all person holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted. Provided that probates and letters of administration granted (a) ……………… (b) ……………. 10. On a careful reading of the provision contained in section 302 of the Act, it appears that the Court even after grant of probate or letters of administrator can issue direction to the executor or the administrator in regard to administration of the estate of the testator. Direction if any is to be given or made to the executor or the administrator. It does not appear therefrom that invoking the said jurisdiction this Court is expected to issue any direction other than to the executor or the administrator. 11. Counsel for the LIC has contended that the application seeking probate of the Will having been allowed no such claim which is in essence a money claim or decree can be adjudicated upon by this Court and granted. Once the probate or the letters of administration is allowed/granted the same would give the applicant representative title against all the debtors of the deceased testator. Once the probate or the letters of administration is allowed/granted the same would give the applicant representative title against all the debtors of the deceased testator. The applicant can raise a claim for due discharge of legal obligation(s), if any, being the legal representatives of the testator before appropriate forum/court. 12. This Court in its order dated 23.11.2006 had directed the LIC to pay the legal admissible dues under those policies if the claim are admitted. The applicant furnished documents/proof in respect of one of the policies and dues found payable thereunder have already been paid. The other claim(s) have not been admitted. The applicant, if not satisfied with the stand of the LIC, may institute proceeding(s) before the appropriate court/forum being the representative title against all the debtors of the deceased/testator. In a testamentary proceeding such claim(s) or issue(s) is/are not required to be gone into. This Court finds substance in the submissions of the learned counsel for the LIC. 13. The proceeding is now closed. Order accordingly.