Virendra Kumar Jain, In The Matter ... vs Smt. Asha Goel
2019 Latest Caselaw 5426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Judgment Reserved on 16.05.2019
 
Judgment Delivered on 02.07.2019
 

 
Court No. - 5
 

 
Case :- TESTAMENTARY SUITS No. - 3 of 2019
 

 
Plaintiff :- Virendra Kumar Jain, In The Matter Of The Goods Of Late Moti Lal Jain
 
Defendant :- Smt. Asha Goel
 
Counsel for Plaintiff :- Udayan Nandan
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Udayan Nandan, learned counsel for the plaintiff.

2. Briefly stated facts of the preset case are that the plaintiff and the respondents are the real brother and sister. As per pleadings in the plaint one Sri Moti Lal Jain, jointly acquired lease hold rights alongwith his wife Smt. Laxmi Devi in the year 1963 in the immovable property being Survey No.419/1, Plot No. 4, 5 & 6, Kanpur Cantt. The building known as "Agarwala Building, the Mall Kanpur" was constructed over the aforesaid plot between the year 1963 to 1969.

3. The aforesaid Sri Moti Lal Jain alongwith Sri Virendra Kumar Jain (plaintiff/applicant herein) constituted a partnership firm on 26.5.1977 in the name and style of M/s. Agarwala Brothers. As per aforesaid partnership deed in the event of death of Sri Moti Lal Jain, the plaintiff-applicant shall carry on business of the firm as sole proprietor and all the assets and goodwill of the firm shall vest in him. The legal representative of the Sri Moti Lal Jain would be entitled only to the amount lying to his credit. Copy of the aforesaid partnership deed has been filed as SA-1 to the supplementary affidavit dated 13.5.2019.

4. On 7.3.1984, the aforesaid Sri Moti Lal Jain executed a registered Will whereby he bequeathed his share (1/4th share) in the Agarwal building to his daughter Smt. Asha Goel (the defendant herein) with stipulation in the Will deed that she would be entitled to recover rent and to reside and to use the property in such manner as she may think just and proper at her discretion throughout her life time but shall not sell, mortgage or gift or grant long lease of the same and after her death the property shall vest and held and owned by her son/sons (not daughters). Rest of the properties and share in the Firm M/s. Agarwala Brothers and proprietory concern M/s. Moti Lal Engineering were bequeathed by him to his two sons and grand sons or grand daughters.

5. Subsequently, in the month of September 1984, the property popularly known as "Agarwala Building", was equitably mortgaged to Lakshmi Commercial Bank against credit facilities/loan to the firm M/s. Agarwala Brothers. Subsequently Lakshmi Commercial Bank merged in Canara Bank. Sri Moti Lal Jain died on 1.8.1985.

6. According to the plaintiff/applicant as on the date of death of Sri Moti Lal Jain i.e. on 1.8.1985, there was a debit balance of Rs.2,59,748.73 in the account of the partner Sri Moti Lal Jain in the firm M/s. Agarwala Brothers. The plaintiff transferred in the account of Sri Moti Lal Jain in the firm M/s. Agarwala Brothers, the alleged debit balance of Sri Moti Lal Jain standing as on the date of his death in his proprietary concern M/s. Moti Lal Engineering (Rs.51,089.48) and Agarwala Containers (Rs.11,198.75), drawings Rs.8,151/- and loss Rs. 83,253.70, so as to show a debit balance of Rs.4,01,693.00 in the account of Sri Moti Lal Jain in the firm M/s. Agarwala Brothers. The loan of Canara Bank in the form of cash-credit facilities taken by the firm M/s. Agarwala Brothers of which the plaintiff-applicant became proprietor after the death of Sri Moti Lal Jain, was paid by the plaintiff with some contribution of the defendant. As per alleged notice of the plaintiff-applicant filed as Annexure SA-4, a sum of Rs. 1,86,200/- was paid by the defendant to the plaintiff-applicant. It is undisputed that the plaintiff-applicant and his brother Sri S.K. Jain and their sons/daughter inherited or received under the Will huge assets of late Sri Moti Lal Jain.

7. The relevant portion of the aforesaid Will of late Moti Lal Jain dated 7.3.1984, filed as Annexure No.1, is reproduced below: -

"I declare that I will hold and own all my assets during my life time. After my death I leave, bequeath and give to my daughter Smt. Asha Goel all my 1/4th divided share in the premises Agarwal Building standing on Plot No.4, 5 and 6. The Mall, Kanpur, Cantt. inclusive of the land and structure for life would belong to her after my death and I leave and bequeath the same to her for life. She would be entitled to recover rent and to reside. She should be at liberty to use and utilize the said property in such manner as she may think just and proper at her discretion but she would not be entitled to sell, mortgage or gift or ...... long lease of the same. After the death of Smt. Asha Goel, above named the said property would vest and held and owned by her son/ sons (not daughters) I owned a shop situated at 63/2, The Mall Kanpur in the name and style of M/s. Agarwal Bros. in which I hold 50% share and my said share including assets and liabilities and goodwill share of Rs.20,000/- of Sri Ram Pistons Ltd. will entirely be the property of Shri V.K. Jain. The said share will be given to Km. Ruchi Jain D/o V.K. Jain at the time of her marriage. The entire amount thereof be given to her or utilised for her marriage with profits accrued on those shares. I also owned Motil Lal Engg. concern sole proprietorship concern for manufacturing Air Conditioners. I leave bequeathed to my grandsons Arvind Jain and Vinay Jain sons of S.K. Jain in equal shares. Its Bank hypothecation limit and assets and goodwill will be to their account. I owned a F.D. Of Rs.11,000/- in the chattered Bank against my account and also a recurring deposit of Rs.1,000/- per month valid for three years with the chartered Bank I bequeath, leave and give this amount to my grand daughter Km. Priti Jain D/o S.K. Jain for her marriage together with interest accrued thereon upto the time of marriage and it will remain in the said Bank only. My estate on my demise is expected to be subjected to Estate Duty. Smt. Asha Goel my daughter would have to pay Estate Duty on the property bequeathed to her in proportion to the valuation of my total estate and assets. In case of any other dispute my son-in-law Mr. Shekhar Goel will be the sole arbitrator and not the Court. Present tenants of my share of premises are as under:-

1. Quality Steel Tube Pvt. Ltd. paying per month Rent Rs.3500/- for first floor, and built up area of 2nd floor.

2. Rane Brake Linings Ltd. paying monthly rent of Rs.3300/-.

3. New Libas Rs.600/- per month.

4. Bearing and Automobile Traders Rs.350/- per month.

5. For residence and personal use, area about 1000 sq. ft. with Bathroom attached.

I hereby appoint my daughter Asha Goel abovenamed as the sole executor of this last will of mine. In Witness whereof, I, the said Motil Lal Jain abovenamed have hereto signed this last will of mine at Court Compound, Kanpur on this 7th day of 1984 in presence of witnesses, who have also signed in my presence."

8. Briefly on these facts, the present case has been filed by the plaintiff-applicant under Section 301 of the Indian Succession Act, 1925 read with Chapter XXX of the Allahabad High Court Rules, praying as under:-

(a) To remove Smt. Asha Goel W/o Sri Shekhar Goel as executor of the WILL dated 07.03.1984 in relation to the premises known as Agarwala Building, the Mall, Kanpur situated at Survey No.419/1, Plot No.4, 5 & 6, Kanpur Cantt. and appoint the applicant as the executor in her place.

(b) To direct the respondent to provide the full inventory and credits of the estate alongwith the complete accounts and credits of the estate within a period of one month.

(c) To direct the respondent to submit the statement of her bank account w.e.f. 18.01.2002 till date alongwith her Income Tax Returns.

(d) To direct the respondent to open an Escrow Account and deposit the entire outstanding amount of Rs.46,85,898/- alongiwth interest till date, which comes to approximately Rs.5.29 crores.

(e) To restrain the respondent to deal with the property of the deceased in any manner whatsoever.

9. The main basis of seeking aforesaid relief is that a sum of Rs.4,01,693.00 was standing on 1.8.1985 i.e. as on the date of death of the partner Sri Moti Lal Jain (father of the plaintiff-and the defendant) in the firm M/s. Agarwala Brothers, which with interest has now became Rs.5.29 crores which should be paid to the plaintiff by the defendant as executor of the Will of Sri Moti Lal Jain from the property bequeathed to her being ¼ th share in the house property "Agarwala Building".

10. On these facts and pleadings made in the plaint, this Court passed an order on 30.04.2019, as under:-

"Heard Sri Udayan Nandan, learned counsel for the plaintiff.

Prima facie, no suit lies to the High Court under Section 301 of the India Succession Act, 1925 or Chapter XXX of the Rules of the Court for removal of the executor of a Will.

That apart, this suit has been filed for removal of the respondent-executor of the Will, registered on 7.3.1984, but no cause of action has been disclosed in the plaint to demonstrate that as on the date of death of the testator in the year 1985, any amount was due and payable by the testator to the plaintiff and that has fallen in the hands of the respondent-executor.

It appears that to overcome the period of limitation for filing a suit for recovery the present case has been filed for removal of executor of the Will, whereas the executor of the Will is only administering the property which she received by way of the aforesaid Will. The aforesaid intention of the plaintiff is evident from the fact that the testator died in the year 1985 and after about 34 years, the present case has been filed when the alleged debt, if any, has become highly time barred.

Submission of learned counsel for the plaintiff is that as per order of Probtate dated 6.2.2002 passed by the District Judge, Kanpur Nagar, the respondent-executor admitted certain liabilities being debit balance in the firm M/s. Agarwal Brothers amounting to Rs.4,01,693/- and, therefore, it was payable by her which may be recovered from the estate of the testator received by the executor, under Section 323 read with Section 325 of the Indian Succession Act, 1925. He further submits that the aforesaid amount has now become Rs.5,29,00,000/- with interest.

The submission prima facie, appears to be wholly devoid of substance and totally imaginary. Nothing has been disclosed in the plaint that what amount as testators asset devolved on the plantiff under the Will which came in the hands of the executor at the time of death of the testator in the year 1985. The amount of Rs. 4 lacs has been shown to have now become 5,29,00,000/- in 17 years making it more than hundred times. It appears that the plaintiff who is brother of the respondent has filed the present suit not because of any cause of action but just to harass the defendant. Maintainability of the suit before the High Court is also in serious doubts as aforesaid.

Learned counsel for the plaintiff prays for ten days' time to address on the question of maintainability of the suit and cause of action for filing the present suit.

As prayed, put up on 13.5.2019."

Submissions

11. On the question of maintainability of the present suit as indicated in the aforequoted order dated 30.04.2019, Sri Navin Sinha, learned counsel for the plaintiff argued at length on 13.05.2019 and 16.5.2019 as under :-

(i) Section 301 of the Succession Act confers power upon the High Court for removal of executor or administrator and to provide for succession of another person of the office of any executor or administrator.

(ii) The power of the executor to dispose of the property under Section 307 is subject to payment of debts under Section 323. The defendant without payment of debts due to the plaintiff under the Will, amounting to Rs.4,01,693/- which has now accumulated with interest to Rs.5,29,00,000/-; has executed a long term lease dated 21.7.2011 of the immovable property received under the Will and also collusively entered into a compromise dated 29.3.2018 in O.S. No.106 of 2018 (Gautam Tondon Vs. Smt. Asha Goyal). Therefore, cause of action arose to the plaintiff to file the present suit for removal of the defendant as executor.

(iii) The defendant has acted contrary to the wishes of the testator and, therefore, she is liable to be removed as executor under Section 301 of the Act.

(iv) Since there is cause of action as aforesaid, therefore, the present suit can not be dismissed for want of cause of action. Order VII Rule 11 C.P.C. is not invocable in such circumstances. Reliance is placed upon the judgment of Hon'ble Supreme Court in the case of Hardesh Ores (P) Ltd. Vs. Hede and Company (2007) 5 SCC 614 (para 25).

(v) The law of limitation shall not be applicable in the facts and circumstances of the present case in as much as the present suit has been filed for removal of the executor in the circumstances that she acted contrary to the wishes of the testator. The debts due to the plaintiff stands admitted by her as evident from the copy of account filed by her in probate case No.258/70 of 1989 (Asha Goel Vs. Smt. Laxmi Devi, Surendra Kumar Jain and Virendra Kumar Jain) as evident from the order dated 6.2.2002 (Annexure 3), passed by the District Judge, Kanpur Nagar, which was subsequently revoked by Order date 27.2.2003 and the First Appeal From Order No.1272 of 2003 (Smt. Asha Goel Vs. Surendra Kumar Jain) was dismissed and the matter was remanded. On remand the case was dismissed by the District Judge by order dated 22.5.2013, due to non compliance of the provisions of the Act by the defendant-executor.

vi). The respondent - executor has initially filed a petition for probate and the probate was granted. An application for revocation of probate was filed by the brother of the plaintiff - Sri Surendra Singh and the probate was revoked. The matter travelled upto this Court and it was remanded to the court below. Thereafter, the respondent - executor did not pursue the matter and the probate petition was dismissed. The respondent executor was bound to comply with the provision of Section 317 of the Act but she failed to do so.

vii). Allegations with regard to the conduct of the respondent-executor to administer the properties have been made in the present suit for removal of the respondent executor which can be decided only after the allegations are replied by the respondent-executor.

viii). Therefore, at this stage the respondent-executor may be called upon to reply the allegation and thereafter the suit may be decided on merit.

12. In support of his submissions he relied upon single judge judgment of Bombay High Court in Misc. Petition No.66 of 2013, decided on 11.10.2013 {paragraphs 1(f), 5, 8, 29, 40, 42 and 47) and the judgment of Hon'ble Single Judge of Calcutta High Court in GA No.958 of 2000 and PLA No.166A of 1987 (Shanta Garg).

13. I have carefully considered the submissions of learned counsels for the plaintiff-applicant and with his consent the following questions are framed:-

(i) Whether under the facts and circumstances of the case a suit shall lie to the High Court under Section 301 of the Indian Succession Act, 1925 ?

(ii) Whether under the facts and circumstances of the case the present suit is maintainable before the High Court ?

Discussion and Findings

14. Both the questions are interlinked, therefore, both are being decided together.

15. Before I proceed to consider the above framed two questions, it would be appropriate to reproduce the provision of Sections 217, 301 and 302 of the Indian Succession Act 1925, and Chapter XXX, Rule 35 & 39 of the Allahabad High Court Rules, 1952, as under:-

"Indian Succession Act 1925,

Section 217 - Application of Part - Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of administration with the Will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this Part.

Section 301 - Removal of executor or administrator and provision for successor - The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.

Section 302 - Directions to executor or administrator - Where probate or letters of administration in respect of any estate has or have been granted under this 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 or in regard to the administration thereof.

Chapter XXX, Rule 35 & 39 of the Allahabad High Court Rules, 1952,

35 Caveats:- Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate file a caveat in Court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner of his Advocate in the prescribed form.

39. Conversion of application into suit:-Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner) the proceedings shall be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the objection filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code."

16. Perusal of the Will of late Moti Lal Jain, dated 7.3.1984 as reproduced above, clearly reveals that the applicant/plaintiff, his brother Sri S.K. Jain and their sons/daughters have received huge assets left by late Moti Lal Jain. The respondent - Smt. Asha Goel was appointed as sole executor of the Will. The duties of an executor mainly are to collect, get in and administer the estate of the deceased and after this has been done and the estate has been settled, his duties as an executor comes to an end. Even if she is required to continue to be incharge of same property for the benefit of certain beneficiaries, she ceases to be an executor and became a trustee of the property.

17. There is no dispute in the present case that all the properties (movable and immovable) bequeathed by the deceased Moti Lal Jain, were settled in terms of the Will. Therefore, the duties of the executor Smt. Asha Goel came to an end. Now, she does not remain the executor of the Will. Similar controversy came before a Division Bench of this Court in Testamentary Case No.35 of 1947 (In the goods of Sarnath Sanyal Vs. Hrishikesh Sanyal and Ors. Vs. Hrishikesh and Ors. decided on 13.5.1948 (reported in AIR 1949 ALL 93) (paras 14 &20) and the Division Bench held as under: -

"14. The duty of an executor is to execute the will and to administer the estate of the deceased. The duties of an administrator to whom letters of administration have been granted and the duties of an executor who has obtained probate of a will are much the same and S. 291, Succession Act, gives some clue as to what such duties are. Under that section every person to whom any grant of letters of administration is committed is required to give a bond with one or more sureties, "engaging for the due collection, getting in and administering the estate of the deceased." Thus the duties of an executor mainly are to collect, get in and administer the estate of the deceased and after this has been done and the estate has been settled his duties as executor are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries he ceases to be an executor and becomes a trustee of the property.

20. Applying these principles to the present case my view is that the estate having been administered, funeral ceremonies of the deceased having been long over and the daughters of Srimati Shukmari Devi having been married, the remaining duties of opposite party 1 are more of a trustee than of an executor. He is to look after the property, pay allowances to whomsoever they may be due, and in the absence of any male child to the testator's sons to dispose of the property in the manner provided by the will. As he is no longer an executor an application for his removal under S. 301, Succession Act, does not lie."

(Emphasis supplied by me)

18. It is a settled law that the court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. Therefore, the only issue in a probate proceedings relates to the genuineness and due execution of the Will and the court itself is under duty to determine it and preserve the original Will in its custody. The Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act 1925, and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will until it is revoked. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question, of title or of the existence of the property itself. The grant of a Probate by Court of competent jurisdiction is in the nature of a judgment in rem and conclusive and binds not only the parties but also the entire world.

19. The principle stated above are supported by law laid down by Hon'ble Supreme Court in the case of Ishwardeo Narain Singh v. Smt. Kanta Devi & Ors., AIR 1954 SC 280 and various other judgments including the judgment in the case of Chiranjilal Shrilal Goenka Vs. Jasjit Singh and others (1993)2 SCC 507 (15,16,17 and 20). In the case of Chiranjilal Shrilal Goenka (supra) Hon'ble Supreme Court held in para 20 as under :-

"On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world The award deprives the parties of statutory right of appeal provided under section 299. Thus the necessary conclusion is that the probate court alone has exclusive jurisdiction and the Civil Court on original side or the arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the will and is a legal representative entitled to represent the estate` of the deceased but the heirs cannot get any probate before the probate court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings. We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit."

20. Thus, in the facts and circumstances of the present case since the respondent - executrix has performed her duties and the estate of the deceased - Moti Lal Jain, have been settled, therefore, her duties as executor are finished. She is continuing to be incharge of ¼th share in ""Agarwala Building". Applicant/plaintiff, his brother and their sons/daughters have received the properties bequeathed to them by the deceased - Moti Lal Jain, under his Will dated 7.3.1984.

21. It is also important to mention that even the legatees of the Will dated l7.3.1984 have not been impleaded in the present suit as defendant/respondents which includes plaintiff's brother and their sons and daughters. In the case of Andhra Bank Ltd. v. R. Srinivasan and Ors., AIR 1962 SC 232 which has been followed by Hon'ble Supreme Court in Chiranjilal Shrilal Goenka (supra) (paras 9 & 10), it has been held that the legatees under the Will of the estate are legal representatives of the deceased.

22. Part IX of the Act 1925 (Sections 217 to 369) deals with Probate, Letters of Administration and Administration of Assets of Deceased. As per Section 300 of the Act, 1925, the High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge. Section 222 provides for grant of Probate only to an executor appointed by the Will. Undisputedly, a Probate case No.258/70 of 1989 (Asha Goel Vs. Smt. Laxmi Devi, Surendra Kumar Jain and Virendra Kumar Jain) was filed by the defendant in the Court of District Judge, Kanpur Nagar and an order of Probate dated 6.2.2002 was passed by the District Judge, but on application made by the brother of the defendant, namely, Surendra Kumar Jain, the Order of Probate was revoked by Order dated 27.2.2003. The First Appeal From Order No.1272 of 2003 (Smt. Asha Goel Vs. Surendra Kumar Jain) was dismissed and the matter was remanded. On remand the case was dismissed by the District Judge by order dated 22.5.2013. Thus, no Probate was granted to the defendant. The plaintiff-applicant never raised any voice and after about 34 years of the death of the testator Sri Moti Lal Jain, he has now filed the present suit under Section 301 of the Act 1925 for removal of the defendant as executor of the Will dated 7.3.1984

23. In my considered view, such a suit is not maintainable before the High Court. Under Rule 39 of Chapter XXX of the Allahabad High Court Rules, 1952, an application filed for Probate or Letters of Administration may be converted into a suit. Thus, even in case of grant of Letters of Administration or Probate, a Suit can not be directly filed before the High Court.

24. In the present set of facts, the Probate case filed by the defendant was dismissed. Thus, no probate was granted. The provisions of part IX of the Act, 1925 relates to Probate, Letters of Administration and Administration of Assets of deceased. Chapter I, II, III & IV of Part IX of the Act, 1925 provides for grant of Probate and Letters of Administration and its revocation and alteration. Section 301 falls under Chapter IV of Part IX the Act 1925. Section 217 of the Act, 1925, provides for application of the provisions of Part IX, which includes Section 301. As per Section 217, the provisions of Part IX is applicable to all grants of Probate and letters of administration with the Will annexed and the administration of the assets of the deceased in cases of intestate succession. Undisputedly, the application for probate filed by the defendant was ultimately rejected by the District Judge, Kanpur Nagar. Thus, there was no Probate in favour of the defendant. The provisions of Section 301 shall apply for removal of executor where a probate has been granted. The present suit filed by the plaintiff is not referable to any of the provisions of the Act, 1925 or the Allahabad High Court Rules, 1952, or the Civil Procedure Code. It has not been pleaded in the plaint that this Court (Allahabad High Court) has jurisdiction to entertain the suit and it has been filed within limitation. No provisions of the Limitation Act has either been referred in the plaint or could be pointed out by learned counsel for the plaintiff that limitation for filing such a suit is available even after 34 years of the death of the testator.

25. There is another aspect of the matter. It appears from perusal of the plaint that the petitioner wants to recover from the defendant the amount alongwith interest outstanding in the name of the testator Sri Moti Lal Jain, as on the date of his death i.e. 1.8.1985. The amount sought to be recovered is allegedly the debit balance standing in the name of the testator as partner in the firm M/s. Agarwala Brothers and other proprietory concerns which all have been received by the plaintiff, his brother or their grand sons/daughters. Thus, the present suit appears to be a suit for recovery filed by the plaintiff to recover from the defendant the alleged outstanding amount in the name of the testator (partner) allegedly shown in the books of accounts of M/s. Agarwala Brothers as on 1.8.1985. It further appears that since the limitation to file a suit for recovery before the competent court is not available, therefore, the plaintiff has filed the present suit as a device to do indirectly what he can not do directly.

26. Nothing has been brought on record to indicate any grievance of the son of the defendant. Therefore, even if it is assumed that the defendant has acted or is acting in breach of the directions of the testator under the Will, the plaintiff shall not have any cause of action to file the suit. The cause of action may be available to the son of the defendant to raise voice against the alleged lease granted by the defendant.

27. For all the reasons aforestated, I hold that a suit on the present set of facts shall not lie to the High Court under Section 301 of the Indian Succession Act, 1925, read with Chapter XXX of the Allahabad High Court Rules for removal of the defendant as executor of the Will dated 7.3.1984. Therefore, the present suit is not maintainable. Both the questions are answered accordingly. Consequently, the suit is dismissed. However, there shall be no orders as to costs.

Order Date :- 2.7.2019/vkg