Bombay High Court

Laura Dsouza vs Lalit Timothey Dsouza And 2 Ors on 3 October, 2024

Author: N. J. Jamadar

Bench: N. J. Jamadar

  2024:BHC-OS:15195

                                                                                                  ia-2827-2022.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   TESTAMENTARY AND INTESTATE JURISDICTION

                                        INTERIM APPLICATION NO.2827 OF 2022
                                                        IN
                                          TESTAMENTARY SUIT NO. 16 OF 2004
                                                        IN
                                       TESTAMENTARY PETITION NO. 491 OF 2003
VISHAL
SUBHASH               Laura D'Souza                                                  ...Applicant/
PAREKAR
Digitally signed by
                                                                                     Ori. Defdt. No.1
VISHAL SUBHASH
PAREKAR               In the matter of
Date: 2024.10.03
21:47:27 +0530

                      Lalit Timothy D'Souza                                          ...Plaintiff
                            vs.
                      1. Lawra D'Souza
                      2. Lorna D'Souza
                      3. Lavina Khan                                                 ...Defendants

                      Mr. Shanay Shah a/w Mr. Rahul Jain, Ms. Khushboo Rupani, Ms.
                      Akriti Shinha i/by HSA Advocates for Applicant in IA- 2827 of
                      2022 /Ori. Defendant No.1.
                      Mr. Karl Tamboly, Mr. Hrushi Narvekar, Mr. Atir Patel, Ms. Viloma
                      Shah i/by Ms. AVP Partners for Plaintiff.

                                               CORAM      :        N. J. JAMADAR, J.
                                               DATE       :        OCTOBER 3, 2024
                                                              ----------

                      JUDGMENT :

1. Heard the learned Counsel for the parties.

2. This is an application for appointment of an Administrator

pendente lite under Section 247 of the Indian Succession Act, 1925

(the Succession Act) for the estate described in the Schedule-I

appended to the Testamentary Petition, except for the properties

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listed at serial Nos.1 and 9. The principal prayer is to an appoint

the Court Receiver, High Court Bombay as the Administrator

pendente lite. In the alternative, the applicant has prayed that she

be appointed as an Administrator.

3. Shorn of unnecessary details, the background facts can be

stated as under:

(a) Timothey D'souza (the deceased) was the father of the

applicant-Defendant No.1, Lalit D'souza, the plaintiff, Lorna D'souza,

the Defendant No.2 and Lavina Khan, the Defendant No.3.

(b) According to the Applicant, the deceased died intestate, on 7th

April 2003. The plaintiff took complete and exclusive control of the

estate of the deceased. As disputes arose amongst the plaintiff and

defendants, Lorna D'souza, the Defendant No.2, instituted Suit

No.2889 of 2003 for the administration of the estate of the

deceased.

(c) The plaintiff propounded a Will dated 14th March 2003,

purportedly executed by the deceased, and filed Testamentary

Petition No.491 of 2003. The applicant filed Caveat. The Defendant

Nos.2 and 3 also filed the Caveats opposing the grant of probate. The

Testamentary Petition has thus been converted into instant

Testamentary Suit.

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(d) In Suit No.2889 of 2003, the Defendant No.2 filed Notice of

Motion No. 2679 of 2003 and the applicant took out the Notice of

Motion No.2743 of 2004 for appointment of the Court Receiver. By

an order dated 18th August 2005, a learned Single Judge of this

Court granted interim relief in both the Notices of Motion.

(d) The plaintiff assailed the aforesaid order by filing Appeal Nos.

773 and 774 of 2005. In the said Appeal, consent terms were filed

and the aforesaid interim order stood substituted by the

arrangement set out thereunder including an injunction against the

parties restraining them either by or through their agents from

transferring, disposing of, encumbering, transferring tenancies or

parting with possession in any manner of the properties

constituting the estate of the deceased.

4. In the aforesaid background, the applicant has preferred this

application asserting inter alia that the plaintiff had been convicted

by the Court of Sessions, Greater Bombay for the offence punishable

under Section 326 of the Indian Penal Code, 1860 for having caused

grievous heart to Defendant No.2 by firing six gun shots at her and

was sentenced to suffer rigorous imprisonment for three years and

pay fine. In appeals, a Division Bench of this Court found the

plaintiff guilty of the offence punishable under Section 307 of the

IPC and sentenced him to suffer rigorous imprisonment for ten

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years and pay fine. Plaintiff has been undergoing the sentence.

5. The applicant apprehends that the plaintiff might have

already created third party rights in respect of the estate of the

deceased in contravention of the consent order. Over the years,

according to the applicant, the plaintiff has misused the properties

and misappropriated the funds for his personal gain and to the

exclusion of other heirs. The estate of the deceased is of

considerable magnitude and, at present, there is nobody to

administer the huge estate of the deceased. The applicant is even

unaware as to what consists and forms part of the entire estate of

the deceased.

6. It is further asserted as the plaintiff has been convicted for

the offence punishable under Section 307 of the IPC and is

undergoing the sentence, it would be improper to allow such tainted

and incompetent person to administer the estate of the deceased.

Thus the applicant avers that the plaintiff is not fit and capable to

administer the estate of the deceased either personally or through

an agent. Since by consent of the parties, the Court Receiver has

already been appointed in respect of the two of the properties,

namely Lalit Bar and Restaurant and Lalit Refreshment, in order to

preserve the estate and protect the interest of the applicant and

other heirs, it is expedient that the Court Receiver is appointed as

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an Administrator pendente lite under Section 247 of the Indian

Succession Act, 1925.

7. An affidavit-in-reply has been filed on behalf of the plaintiff.

Refuting the allegations that the deceased died intestate, the

plaintiff contends that the deceased left behind Last Will and

Testament dated 14th March 2003, whereunder the plaintiff has

been appointed as the sole executor. Thus, the application for

appointment of an Administrator pendente lite deserves to be

rejected on this count alone as an executor appointed by the

deceased would thereby be displaced.

8. The plaintiff asserts, the application has been filed belatedly

after about 20 years of the filing of the Testamentary Petition with

an oblique motive to take undue advantage of the situation in which

the plaintiff finds himself. The application thus suffers from gross

delay and laches. In fact, the applicant has been guilty of breach of

the consent order and the plaintiff was constrained to file contempt

petition. Bald allegations that the plaintiff is a tainted and

incompetent person have been made. There is no material to

indicate that the estate of the deceased has not been administered

or is now not being administered. The plaintiff has taken all the

requisite steps to preserve and protect the estate in question.

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9. With regard to the alleged disqualification on account of the

prosecution of the plaintiff, it is asserted that those criminal

proceedings have been ongoing since the year 2008 and the issue is

subjudice before the Supreme Court in Criminal Appeal No. 1627 of

2021. Yet, despite being aware of the prosecution of the plaintiff

since the year 2008, the applicant never questioned the competence

and qualification of the plaintiff. It is only with a view to take an

undue advantage of the situation, the instant application for

appointment of Administrator pendente lite has been filed. The

plaintiff categorically denies that the estate is in danger of being a

usurped, misappropriated or third party rights being created

therein. The applicant has never misused the estate and

misappropriated the funds for his personal gain. No case for

appointment of an Administrator Pendente Lite is thus made out.

10. In the backdrop of the aforesaid facts and pleadings, I have

heard Mr.Shanay Shah, the learned Counsel for the

Applicant/Defendant No.1, and Mr.Karl Tamboly, the learned

Counsel for the Plaintiff, at some length.

11. The learned Counsel took the Court though the material on

record including the orders passed in the Notices of Motion No.

2679 of 2003 and 2743 of 2004 in Suit No. 2889 of 2003 and in

Appeal No. 773 and 774 of 2005 dated 21st October 2005 passed by

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the Appeal Bench.

12. Before adverting to note the submissions canvased on behalf

of the parties, it may be apposite to note that, at the heart of the

matter is the entitlement of the parties to succeed to the estate of

the deceased. The Defendants/daughters of the deceased, assert

that the deceased died intestate. The plaintiff, on the other hand,

has propounded the purported Last Will and Testament of the

deceased dated 14th March 2003. The core question as to whether

the deceased died testate or intestate, gave rise to the suit for

administration to the estate of the deceased and the instant

Testamentary Suit No. 16 of 2004.

13. There is not much controversy over the fact that the interim

order was initially passed in the Notice of Motion Nos. 2679 of 2003

and 2743 of 2004 in Suit No. 2889 of 2003 and with the consent of

the parties, the said order passed by the learned Single Judge dated

18th August 2005 was set aside and substituted by the arrangement

arrived at between the parties. The said consent order is still in

force and governs the rights and liabilities of the parties.

14. As is evident, the capacity of the plaintiff as the executor of

the Will of the deceased dated 14th March 2003 is borne out by the

said purported Last Will and Testament. Likewise, it is a matter of

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record that the plaintiff was initially convicted for an offence

punishable under Section 326 of the Penal Code and sentenced to

suffer rigorous imprisonment for three years and fine and in Appeal

the said order passed by the learned Sessions Judge was set aside

and the plaintiff has been convicted for an offence punishable under

Section 307 the Penal Code and sentenced to suffer rigorous

imprisonment for ten years. Incontrovertibly, the plaintiff is

undergoing the sentence.

15. In the light of aforesaid rather uncontroverted facts, Mr.Shah,

the learned Counsel for the applicant, submitted that the executor

of the Will is in prison. Neither the applicant nor other heirs of the

deceased are aware about the status of the properties. There has not

been a true and faithful disclosure about the estate of the deceased,

by the plaintiff. Mr. Shah thus urged that the estate of the deceased

is in complete jeopardy.

16. Amplifying the aforesaid submissions, Mr.Shah would urge

that there are two pressing factors which warrant the appointment

of an Administrator pendente lite. First, the necessity of

appointment of an Administrator as there is nobody to manage the

estate. It is inconceivable that the plaintiff would be in a position to

manage the estate of the deceased, while being incarcerated. Mr.

Shah made an earnest endevour to draw home the point that, the

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applicant is not seeking appointment of an Administrator pendente

lite for the sole reason that the plaintiff has been convicted and

sentenced to suffer imprisonment. It is the necessity of the

management of the estate which is the prime factor.

17. Second, the estate of the deceased can only be preserved if the

Administrator pendente lite is appointed. There is an imminent

danger of the estate of the deceased being squandered away,

dissipated or otherwise lost. If the estate of the deceased is not

securely preserved, the applicant and other heirs of the deceased

would suffer an irreparable loss. Therefore, in the peculiar facts of

the case, the appointment of an Administrator is imperative.

18. To lend support to the aforesaid submissions, Mr.Shah placed

reliance on a decision of a learned Single Judge of the Calcutta High

Court in the case of Priyambada Debi Birla Vs. Ajoy Kumar Newar &

Ors.1 and a Division Bench Judgment of this Court in the case of

Inderjeet Singh Amardeep Singh Chadha Vs. Davinder Kaur

Amardeep Singh Chadha2.

19. Mr. Tamboly, the learned Counsel for the plaintiff countered

the submissions on behalf of the applicant by canvasing a multi-

pronged submission. First and foremost, according to Mr.Tamboly,

1 2006 SCC OnLine Cal 280.

2 (2019) 4 AIR Bom R 24

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the delay of about 20 years in taking out this application for

appointment of Administrator pendente lite singularly erodes the

credibility of the claim. During this period, the applicant neither

sought appointment of administrator pendente lite nor demanded

the accounts or even a disclosure. The applicant did not institute

any Suit for administration of the estate of the deceased. As a bolt

from the blue, the applicant has preferred this application, which is

actuated by a design to reap undue advantage of the situation.

20. Mr. Tamboly urged with a degree of vehemence that, if there

was necessity of administration or protection of the estate, the

applicant ought to have approached the Court with a reasonable

promptitude. Even the ground that the plaintiff has been convicted

and sentenced to imprisonment, according to Mr. Tamboly, does not

enure for the benefit of the applicant as the plaintiff was initially

convicted by the Court of Sessions in the year 2012 itself. Yet for 12

years, no application for appointment of Administrator came to be

filed asserting that the plaintiff is a "tainted and incompetent

person".

21. Secondly, Mr. Tamboly would urge that the applicant is

making an invidious attempt to overreach the order passed by the

Division Bench in Appeal Nos.773 and 774 of 2005 dated 21 st

October 2005, and that too with the consent of the parties. The

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Court Receiver came to be appointed only in respect of the two

properties. The rest of the properties have been under the

administration and management of the plaintiff. The applicant

cannot be permitted to indirectly circumvent the said order by

seeking an appointment of Administrator pendente lite. If at all the

applicant desired to change the arrangement arrived at with the

consent of the parties, it was incumbent upon the applicant to move

in the administration suit seek modification of the said order.

22. Thirdly, taking the Court through the averments in the instant

application, Mr.Tamboly would urge that, Mr.Shah has canvased a

case which has not at all been pleaded. Neither the necessity of

appointment of the Administrator has been pleaded nor is it

contended that the plaintiff suffers from disability to manage the

estate of the deceased. No particulars of alleged acts in

contravention of the consent order, misutilization of the property

and misappropriation of the funds for personal use have been

furnished.

23. Lastly, Mr.Tamboly submitted that under Section 223 of the

Indian Succession Act, the persons who are disqualified for grant of

probate have been enumerated. A person who is incarcerated in

prison is not per se disqualified to continue to act as executor of the

deceased. Imprisonment of the executor, by itself, cannot be the

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justification for appointment of an Administrator pendente lite.

24. To lend support to the aforesaid submissions, Mr.Tamboly

placed reliance on Division Bench Judgments of Calcutta High Court

in the cases of Hara Coomar Sircar Vs. Doorgamoni Dasi3; and

Dharm Raj Tiwari Vs. Badri Prasad Tiwari 4; a decision in the case of

Thoppai Venkataramier Vs. A. Govindarayalier5; and a Judgment of

the learned Single Judge of this Court in the case of Prachi Prakash

Pandit and Ors. Vs. Pushpa sharad Ranade and Ors.6.

25. Mr. Shah joined the issue by canvasing a submission that

there are more than adequate pleadings in the application on the

aspects of both the necessity of appointment of an Administrator

and the dire need to preserve and protect the estate of the deceased.

Refuting the contention that the application suffers from delay and

laches, Mr. Shah submitted that the necessity arose in the year

2021 when the sentence imposed upon the plaintiff by the Court of

Sessions was enhanced to 10 years rigorous imprisonment. Mr.

Shah urged with tenacity that the provisions contained in Section

223 which proscribe grant of probate to a minor and a person of

unsound mind, cannot be so construed as to circumscribe the power

of appointment of an Administrator pendente lite under Section 247

3 (1893) ILR 21CAL 195.

4 2002 SCC OnLine Cal 716 5 (1926) The Law Weekly 462 6 MANU/MH/0801/2004

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of the Succession Act. It would be preposterous to urge that since

the plaintiff does not suffer from disqualification under Section 223,

he must be continued to be entrusted with the administration of the

estate of the deceased despite having incurred disqualification by

acts and conduct, urged Mr.Shah.

26. The aforesaid submissions now fall for consideration.

27. Indisputably, the plaintiff is the named executor of the

purported Will and Testament of the deceased.

28. It may thus be appropriate to note the consequences that

emanate from the appointment of the executor by the testator.

Ordinarily, not only the intention of the testator in the matter of the

disposition of the property is to be given effect to but also the

intention of the testator to execute the testamentary disposition by

the named executor has to be respected. On the demise of the

testator, the estate of the testator vests in the executor. For all

purposes, the executor assume the character of the legal

representative of the deceased qua estate which is the subject

matter of the bequest.

29. The interplay between the provisions contained in sections

211 and 213 of the Succession Act deserves to be kept in view before

adverting to note the power of appointment of an administer

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pendente lite under section 247 of the Succession Act. Sections 211

and 213 of the Succession Act read as under:-

211. Character and property of executor or administrator as such --

(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.

.... .....

213. Right as executor or legatee when established (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

(2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply-

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the ordinary-original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.

30. On a plain reading of section 211, it becomes abundantly clear

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that the executor of the testator is the latter's legal representative

for all purposes, and the entire property of the deceased vests in

him in that capacity. Vesting of the property of the testator in the

executor is on the strength of the Will itself and not as a

consequence of the Probate. The Will gives the property to the

executor. Probate is a means which the law provides for establishing

the Will. Vesting of the property is, however, not to be equated with

the vesting of the beneficial interest in the property. To put in other

words, the property vests in the executor only for the purpose of

representation.

31. A useful reference in this context can be made to a decision of

the Supreme Court in the case of Commissioner, Jalandhar Division

vs. Mohan Krishan Abrol & Another7 wherein it is observed that-

10] A bare reading of section 211 shows that the property vests in the executors by virtue of the will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the will. In the case of Kulwanta Bewa v.

Karamchand, AIR 1938 Calcutta 714, it has been held that section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. ....

(emphasis supplied)

32. Section 213 of the Succession Act, provides that the rights

under the Will by executor or legatee cannot be established unless

7 (2004) 7 SCC 505.

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the Probate or Letters of Administration was obtained. However, for

the purpose of representation to the estate of the testator, grant of

Probate is not peremptory. Vesting of the right is enough for the

executor or administrator to represent the estate of the testator.

Section 211 and 213 of the Succession Act operate in different

spheres.

33. In the case of FGP Limited vs. Saleh Hooseini Doctor and Anr. 8

the distinction between sections 211 and 213 of the Succession Act

was postulated, inter alia, as under:-

47] Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain.

48] Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding.

.... ......

51] But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained. Therefore, Section 211 and Section 213 of the said Act have different areas of operation.

52] Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently

8 (2009) 10 Supreme Court Cases 223.

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any right of action to represent the estate of the executor can be initiated even before the grant of the probate.

34. In the light of the aforesaid position in law, as regards vesting

of the property in the executor and, consequently, the rights and

obligations of the executor qua the estate of the deceased, the

prayer for appointment of an administrator pendente lite deserves

to be appreciated. Section 247 of the Succession Act, reads as

under:-

247. Administration pendente lite--Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every suet. administrator shall be subject to the immediate control of the Court and shall act under its direction.

35. From the text of section 247 of the Succession Act, the

grounds on, and the circumstances under, which the testamentary

Court can invoke the said power do not become explicit. Evidently,

the power appears to be of a discretionary nature. The guiding

factor would, however, be the preservation of the estate of the

testator and effective management thereof till the determination of

issue of grant of Probate or Letters of Administration. In the case of

Inderjeet Singh (supra) on which reliance was placed by Mr. Shah, a

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Division Bench of this Court, elucidated the contours of the power to

appoint the administrator pendente lite. The observations in

paragraph 25 read as under:-

25] From the phraseology of the aforesaid Section, it becomes evident that it incorporates an enabling provision and invests the testamentary Court with power to appoint an administrator pendente lite. The text of aforesaid section does not, in terms, spell out the circumstances in which an administrator pendente lite may be appointed. Undoubtedly, the testamentary Court, in the backdrop of the facts and circumstances of the given case, ought to be satisfied as to the necessity for appointment of an administrator pendente lite. The object of conferring jurisdiction upon the testamentary Court to appoint an administrator pendente lite is implicit. The object appears to be to ensure that the estate of the testator is effectively managed and securely preserved for the benefit of the persons who are ultimately found to be entitled to succeed to it. This broad object subsumes in its fold a situation wherein it is brought on record that the act and conduct of the person in possession of the estate of the testator are detrimental to the protection and preservation of the estate. The afore- extracted section gives ample discretion to the Court as to the person who can be appointed as an administrator pendente lite. There is no apparent prohibition for appointment of a party to the testamentary proceedings as an administrator pendente lite. However, the provision expressly puts two limitations on the powers of the administrator pendente lite : (i) he has no right to distribute the estate; and (ii) he is subject to the immediate control of the Court and shall act under its direction.

36. In the light of the aforesaid enunciation of law, reverting to the

facts of the fact, the primary hurdle which the applicant is required

to surmount is the order passed by the Appeal Bench pursuant to

the consent terms arrived at between the parties. As noted above,

by the said order, dated 21st October, 2005, with the consent of the

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parties, interim arrangements were put in place with regard to the

estate of the deceased. The consent terms, inter alia, record that the

interim orders will continue till the final hearing and disposal of the

administration Suit No. 2889 of 2003 and Testamentary Petition

No. 491 of 2003, which has since been converted into Testamentary

Suit No. 16 of 2004. Under the said consent order, the Court

Receiver, High Court, has been appointed Receiver in respect of

Hotel Lalit Refreshment and Hotel Lalit Bar and Restaurant. Lorna

D'Souza, the defendant No. 2 has been appointed as an agent for

conducting the business in respect of Hotel Lalit Bar and Restaurant

and Lawra D'Souza, the defendant No. 1 has been appointed as an

agent for the conducting the business in respect of Lalit

Refreshments.

37. Under clause (h) thereof, an injunction operates till the

disposal of administrative suit and the instant suit, against the

parties restraining them from transferring, disposing of,

encumbering, transferring tenancies or parting with possession in

any manner of the properties constituting the estate of the

deceased.

38. In the context of the aforesaid order, two issues deserve

consideration. One, whether the Court would be justified in

appointing an administrator pendente lite during the currency of

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the aforesaid order passed by the Appeal Bench in the

administrative suit as well as the instant suit. Two, whether the

interim measures, under the consent order, are not adequate to

protect the estate of the deceased and the interest of the parties ?

39. The submissions of Mr. Shah seeking appointment of

administrator pendente lite was premised on two planks. First,

there is an emergent necessity of appointment of administrator on

account of acts and conduct of the plaintiff. An endeavour was made

to urge that the plaintiff has either created third party rights in the

estate of the deceased or was in the process of creating the third

party rights, the plaintiff has misutilized the estate of the deceased

and converted the estate for his personal use. These contentions

were sought to be substantiated by asserting that the plaintiff has

never furnished accounts of the estate of the deceased. Thus, there

is a genuine apprehension that the plaintiff might have created

third party rights in the estate of the deceased and/or usurpped the

estate of the deceased.

40. I have carefully perused the averments in the application. The

averments appear to be in the nature of apprehensions and

inferences. These contentions are required to be appreciated in the

light of the fact that there is an injunction which runs against all the

parties from transferring, alienating or otherwise disposing of the

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estate of the deceased. In the face of such injunction order, which is

of wide amplitude, in my considered view, mere allegations that the

plaintiff might have created third party rights or is in the process of

creating third party rights in the estate of the deceased do not

sustain the weight of the submissions sought to be canvassed on

behalf of the applicant.

41. Likewise, the allegations that the assets have been misused

and funds have been misappropriated by the plaintiff for his

personal use and to the exclusion of other heirs of the deceased, are

general in nature. The parties were fully cognizant of the fact that

the plaintiff had taken full control of the estate of the deceased. The

parties agreed to an interim arrangement wherein the Court

Receiver came to be appointed only in respect of two of the

establishments. Thus, at this stage, the applicant cannot be

permitted to urge that the plaintiff had unjustifiably taken control of

the estate of the deceased to the exclusion of his siblings. In the

least, the applicant could have placed on record the material to

demonstrate, albeit prima facie, the instances of alleged misuse of

the estate and misappropriation of the funds and conversion of the

estate of the deceased by the plaintiff for his personal use. The

submissions of Mr. Tamboly that the case set up in the application

regarding apprehension of creation of third party rights and alleged

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misappropriation and misapplication of the estate of the deceased,

is not borne out by material on record, thus carries substance.

42. This leads me to the second limb of the submission of Mr.

Shah. As the plaintiff has been convicted for an offence punishable

under section 307 of the Penal Code and sentenced to suffer

imprisonment for 10 years, Mr. Shah would urge, appointment of an

administrator becomes imperative for two reasons. First, the

administration of the estate of the deceased cannot be entrusted to

a tainted and incompetent person like the plaintiff who has been

convicted for an attempt to commit murder of his sister. Second, on

account of plaintiff's incarceration there is an emergent necessity of

appointment of administrator pendente lite to manage the estate

left behind by the deceased, apart from the aforesaid two hotels, in

respect of which the Court Receiver has been appointed. The

necessity of appointment of an administrator is of critical

importance as there is nobody to manage the estate of the deceased.

43. Mr. Shah, it must be noted, made an earnest endeavour to

advance a calibrated submission. At the outset a disclaimer was

sought to be made that the applicant does not seek appointment of

an administrator pendente lite for the sole reason that the plaintiff

has been convicted and sentenced to suffer imprisonment. The said

factor, according to Mr. Shah, is one of the concomitant

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circumstances which warrants exercise of the power under section

247 of the Succession Act with a view to preserve and protect the

estate of the deceased and the interest of the heirs of the deceased.

It was further submitted that an inevitable consequence of the

imprisonment of the plaintiff is, inordinate delay in the disposal of

the suit.

44. In the case of Priyambada Debi Birla (supra) a lerned single

Judge of the Calcutta High Court elaborately considered the

principles and precedents in the matter of appointment of an

administrator pendente lite and enunciated that apart from the

Indian Succession Act, 1925 and Code of Civil Procedure, 1908, the

Probate Court has inherent power to take measures to protect the

estate and properties of the deceased whenever the Court thinks fit

and appropriate.

45. In the facts of the said case, one of the circumstance which

weighed with Calcutta High Court, in the appointment of an

administrator pendente lite, was that the named executor was an

accused in a proseuction for criminal breach of trust. The

observations in paragraph 56 on which a strong reliance was placed

by Mr. Shah read as under:-

56] There were proceedings initiated in the past against executor under Companies Act, 1956. At present and there

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is a criminal prosecution against the executor. The executor Lodha is to defend the criminal prosecution, as he is one of the accused persons and his challenge in the criminal prosecution at the initial stage failed right up to Supreme Court. He is facing trials before the appropriate Court. Proceedings were initiated for search and seizure in connection with these proceedings. It is difficult for the Court to allow a person who is the accused to control and manage huge and vast estate of the deceased when he is facing charge of criminal breach trust, not qua executor. He has to defend this case personally. Appropriate Court, prima facie, found that there are allegations amongst other against the Lodha for trial of criminal prosecution. I am not oblivious of thought that mere initiation of proceedings does not render a particular person to be untrustworthy or incompetent to hold an office, but it is question of image of key person at whose hands large number of companies are rested for de facto control and management. Sitting in Probate Court I do not think a tainted person should be allowed to manage or handle the estate. It is one of the instances of necessity.

(emphasis supplied)

46. Mr. Tamboly, learned counsel for the plaintiff would urge that

the aforesaid observations in paragraph 56 of the decision in the

case of Priyambada Debi Birla (supra) cannot be read in isolation

and torn out of context. Mr. Tamboly would urge that it is not the

personal attribute of the executor but the necessity of appointment

of the administrator pendente lite that is of determinative

significance. In the aforesaid case, the Calcutta High Court has

explicitly recorded that the element of necessity is of paramount

importance. Reliance was placed on the observations, in paragraph

40, which read as under:-

40] However Courts of our country it seems to me did not blindly follow the principles laid down in case of Bellew v.

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Bellew or of Horrell v. Witts. In the case of Brindaban Chandra Saha v. Sureswar Shaha Paramanick and Ors. 10 CLJ 263 Division Bench of this Court taking note of the English case Bellew v. Bellew, ruled that the Court of Probate would grant APL in all cases where necessity for the grant is made out; and this is so because while the suit is pending there is not one legally entitled to receive or to hold the assets or to give discharges. In the case of Jogendra Lal Chowdhury v. Atindra Lal Chowdhury XIII CLJ 34 the Division Bench of this Court was again of the view while dealing with the corresponding provision of present Section 247 (Section 34 of the Indian Probate and Administration Act, 1881) that not only there must be a contest in the probate proceedings there must be necessity for such appointment.

(emphasis supplied)

47. It would also be contextually relevant to extract the

observations in paragraph 46 in the aforesaid judgment, wherein

the Calcutta High Court has extracted the observations of the

Division Bench of the same Court in the case of Sudhirendra Nath

Mitter vs. Arunendra Nath Mitter9 which exposit the concept of

"necessity". They read as under:-

46] In the case of Sudhirendra Nath Mitter v. Arunendra Nath Mitter and Ors. while discussing all the case decided in past on the question of appointment of administrator pendente lite, the learned single Judge of this Court held that in all cases where necessity is made out appointment be made. The word necessity was also explained in this judgment as an illustration in paragraph 14 of the said judgment. It was spoken therein:-

"...the necessity arises when there are assets to be collected; there is no representative to collect them; there is a 'bona fide' litigation respecting the title to that representation.

48. To buttress the submission that, the fact that the plaintiff has

9 AIR 1952 Cal. 418

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been sentenced to imprisonment, by itself, does not constitute a

legal disability to continue to act as an executor of the deceased, Mr.

Tamboly invited the attention of the Court to the observations of the

Division Bench of Calcutta High Court in the case of Hara Coomar

Sircar (supra) wherein it was observed that, there was no provision

in the Probate and Administration Act, V of 1881, which gives the

District Judge any discretion to refuse an application for probate by

an executor named in the Will on the ground that, in the opinion of

the Judge, he is not a fit and proper person to be entrusted with that

office. Reliance was also placed on the decision in the case of

Thoppai Venkataramier (supra), wherein, following the decision in

the case of Hara Coomar Sircar (supra), it was enunciated that, it

was well settled that the Court can not refuse an executor probate

because it considers him unfit to be executor, unless the unfitness is

of the nature of legal incapacity, that is, minority or unsoundness of

mind.

49. In another Division Bench judgment of the Calcutta High

Court, Dharm Raj Tiwari (supra), it was reiterated that where an

application for Probate was made by executor, the Court can not

refuse the Probate on the count that the applicant was unfit on the

ground of his poverty or insolvency. The restriction with regard to

grant of Probate under section 223 is restricted to minors and

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persons of unsound mind and association of individuals not being a

company, satisfying the condition of the rules prescribed by the

Government.

50. The aforesaid decisions, in my considered view, lay down that

if the executor applies for Probate and is not otherwise disqualified

under section 223 of the Succession Act, the Court cannot refuse to

grant Probate on the ground that in the opinion of the Court, the

named executor is not a fit person. These decisions simply lay down

that the Judge can not by recording a subjective satisfaction rule

that the named executor does not deserve to be entrusted with the

execution of the Will. However, to urge that the provisions contained

in section 223 of the Succession Act control the exercise of the

jurisdiction under section 247 of the Succession Act, is to miss the

true import of the power conferred on the Testamentary Court as a

Court of conscience.

51. If there is an objective material on the basis of which the

testamentary Court comes to the conclusion that the named

executor deserves to be divested of the estate of the deceased, the

provisions contained in section 223 of the Succession Act cannot be

pressed into service to urge that the named executor is not

disqualified thereunder. A provision which incorporates the grounds

of disqualification for grant of Probate cannot be so construed as to

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control the powers of the Court under section 247 of the Succession

Act to appoint an administrator pendente lite. These two provisions

operate in different fields. Lest , if the submission of Mr. Tamboly is

acceded to, in no case the Testamentary Court would be in a position

to appoint an administrator pendente lite where the testator names

an executor who is not otherwise disqualified under section 223 of

the Succession Act.

52. Normally, where an executor is named by he testator, the

Court is not inclined to appoint an administrator pendente lite

unless there is gross misconduct or mis-management or waste of

the estate on the part of executor. In the very appointment of the

executor by the testator is the implicit confidence that the testator

has reposed in the executor. Strong grounds are, therefore, required

to appoint an administrator pendente lite displacing the executor.

The moot question that comes to the fore is, whether the

imprisonment of the plaintiff is such a circumstance as to warrant

the appointment of an administrator pendente lite.

53. In the facts of the case, the following factors, bear upon an

answer to the aforesaid question.

(i) What is the extent of the estate of the deceased which vest

in the executor ?

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(ii) Is the estate in the state of, "in medio" ?

(iii) Does the imprisonment of the plaintiff hinders the

administration and management of the estate ?

(iv) Whether the administrator pendente lite is imperative for

the effective management and preservation of the estate of

the testator for the purpose of devolution on the persons who

are ultimately found entitled to succeed to the same ?

54. From the perusal of the Schedule I to the testamentary suit, it

becomes evident that there are large number of immovable

properties and running business concerns which were left behind

by the deceased. Apart from the liquid and financial assets, as many

as 22 properties are in the nature of immovable properties or

running concerns or businesses operated from the immovable

properties. The necessity of management of these properties can

hardly be questioned. The submission on behalf of the plaintiff that

the plaintiff has not been called upon to explain as to how he is

managing the affairs of the estate, despite being incarcerated,

though appears attractive at the first blush, does not carry much

substance.

55. The necessary corollary of the incarceration of the plaintiff is

that the plaintiff is incapacitated to manage and administer the

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estate of the deceased, personally. It is one thing to say that a

person who is incarcerated is not disqualified to be an executor, or

for that matter, for the grant of Probate. It is a completely different

thing where the inevitable consequence of incarceration is that

executor is disabled from managing the estate of the deceased. If the

estate is such that it does not require active management as is in the

case of a passive investment, the incarceration of the executor may

not have a bearing. However, whether the estate is large and

comprises running business ventures, which require day to day

management, it would be difficult to accede to the submission that

the incarceration does not operate as a legal disability.

56. In the facts of the case, having regard to the large number of

properties, which include business concerns, it would be naive to

believe that the incarceration of the plaintiff does not affect the

management and administration of the estate of the deceased.

57. The submission of Mr. Tamboly that the application suffers

from delay and laches and even the ground of prosecution of the

plaintiff which is now urged to assail the character and competence

of the plaintiff to continue to act as an executor has been available

since 2012, may not be wholly misplaced. However, the sequence of

events cannot be lost sight of. It was on 13 th September, 2021 the

plaintiff was convicted by the Division Bench of this Court for an

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offence punishable under section 307 of the Penal Code and

sentenced to suffer 10 years rigorous imprisonment. This

development bears upon the claim for appointment of an

administrator pendente lite. Incontrovertibly, though the plaintiff

has filed a Criminal Appeal before the Supreme Court, the sentence

has yet not been suspended and the plaintiff continues to be

incarcerated.

58. In my considered view, the consequences which emanate from

the sentence of 10 years imprisonment constitute a significant

change in circumstances, from the one which prevailed when the

plaintiff was accused of an attempt to commit murder and the Court

of Session found him guilty of an offence under section 326 of the

Penal Code and imposed sentence of 3 years imprisonment. The

aspect of delay and laches, if viewed from the aforesaid prism, does

not detract materially from the claim of the applicant.

59. I am conscious of the fact that, theoretically, it cannot be

urged that the estate of the deceased is, "in medio". Upon the death

of the testator, the estate vested in the plaintiff under section 211 of

the Succession Act. There is no qualm on the point that the plaintiff

took complete and effective control of the estate of the deceased

and, in fact, that is the grievance of the defendants. However, the

implication of the imprisonment of the plaintiff cannot be

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completely brushed aside.

60. In the totality of the circumstances, in my view, despite

interim measures which are in operation pursuant to the consent

order passed by the Appeal Bench, the exigency of the situation

brought about by incarceration of the plaintiff, warrants some

measures to protect and preserve the estate of the deceased.

61. Should that measure be the removal of the plaintiff as the

executor, bothered the Court. As noted above, by naming an

executor the testator expresses his utmost confidence in the

executor and, ordinarily, such named executor must be allowed to

continue to act as the executor and represent the estate of the

deceased and also continue to manage the same, albiet so long as the

named executor does not betray the trust and confidence. In the

facts of the case, the contention on behalf of the defendants that the

plaintiff has mismanaged or mal-administered the estate or

misappropriated or converted it for his personal use, are in the

realm of allegations.

62. Section 301 of the Succession Act which empoers the Court to

suspend, remove or discharge an executor, reads as under:-

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

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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.

63. A useful reference in this context can be made to a Division

Bench judgment of Madhya Pradesh High Court in the case of

Dr.Smt.Kusum Kurre and Anr. vs. Dharam Singh 10 wherein the

circumstances in which the Court can invoke the power under

section 301 of the Succession Act was succinctly postulated. The

Madhya Pradesh High Court observed, inter alia, as under:-

It is pertinent to note that in the text of this section no specific grounds have been included/enumerated for removal of any private executor or administrator. The executor so named in the will, therefore, should be removed only when proper case in that behalf is made out for last wishes of the deceased as expressed in his will nominating a person and an executor should be highly respected. While exercising power u/s 301 of the Indian Succession Act, the Court must guard itself against any frivolous attempts for collateral purposes to remove the executor. If the Court finds that the person making an application has not come out with a clear title or has not come with clean hands, the application should be refused. However, if the Court finds on proper enquiry that the executor is acting contrary to the interest of the beneficiary, is not honesdy carrying out wishes of the deceased, has started claiming title in the property adverse to the deceased or the legatee, is withering away the property to the detriment of the interest of the legatee, it shall be justified in exercising its jurisdiction under this provision in removing the executor and succeeding him by another. In such cases main guide must be the welfare of the beneficiary. Want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity may well justify an order under this section directing removal of the executor.

10 ILR 1986 MP 415

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64. At the same time, in the instnat case, the plaintiff is

incapacitated from managing the vast estate of the deceased on

account of the incarceration deserves consideration. In such a

situation, in my view, appointment of an administrator pendente lite

straightaway displacing the executor may not be justifiable. Having

given anxious consideration to situation which obtains, in my

considered view, it would be imperative to first have a complete

picture of the assets of the deceased. The persons who are in the

occupation of the properties, the current status of the businesses,

the persons who are conducting and/or managing those businesses

and the financial health thereof. For that purpose, the Court

Receiver needs to be associated with the executor as a joint

administrator. The Court Receiver will not, however, disrupt the

existing situation. Appointment of the Court Receiver to take stock

of the situation and file a comprehensive report, without interfering

with the day today management of the properties / business, will

equip the Court to pass further orders, if required, with a view to

protect and preserve the estate of the deceased.

65. For the foregoing reasons, I am inclined to appoint the Court

Receiver, High Court as a joint administrator pendente lite, subject

to certain conditions.

Hence, the following order.








                                                                         ia-2827-2022.doc




                                    ORDER


         (a)     Application stands partly allowed.

         (b)     The Court Receiver, High Court, Bombay, is appointed

as a joint Administrator pendente lite with the plaintiff in

respect of the properties at serial Nos. 2 to 8, 10 to 13, 15 to

18 and 23 to 26 described in Schedule-I appended to the

Petition subject to the following conditions:

(i) The Court Receiver shall not take possession of any of

the properties either physical or symbolic.

(ii) It will not be necessary to display the board of the

Court Receiver at any of the properties.

(iii) The Court Receiver is not to change the present status

as to possession, tenancies, management and/or conducting

of the businesses in any of the properties.

(iv) The carriage of the businesses/commercial entities

shall continue to remain with the plaintiff and/or his

attorney, or agent, manager appointed by the plaintiff.

(v) The Court Receiver, any officer/official of the Court

Receiver, or any professional or person appointed by the

Court Receiver shall have access to the above properties

and shall be entitled to take inspection of the properties

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after giving 3 days notice to the occupants/manager/

caretaker of the premises.

(vi) The plaintiff and/or his agent, attorney and/or assign

or any other person carrying on the business and/or

management of the aforesaid properties shall provide

access to the Court Receiver or any officer or professional

appointed by the Court Receiver to the account books,

records and all the relevant documents in respect of the

aforesaid properties.

(vii) The Court Receiver is entitled to take the assistance of

empanelled accountant and/or any other professional/

service provider.

(viii) The Court Receiver shall compile data qua each of the

properties comprising of the present occupant, in case of

residential premises, the Manager and/or the person

conducting the business at the commercial entities

/ventures, the character in which such person occupies the

premises or carries on the business therein, whether the

business is a running concern and the income and

expenditure statement at the end of December 2024.

(ix) A comprehensive report regarding the status of each

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of the properties, including the points enumerated above, be

filed by the Court Receiver by 24 th January 2025 and its

copies served on all the parties.

(x) The applicant will lodge the matter with the Court

Receiver and pay initial charges as per Rule 591 of Bombay

High Court (Original Side) Rules within a period of one week

from the date of uploading of this order.

(xi) The applicant will also bear the charges and expenses

of the Court Receiver in the event the Court Receiver and

/or official of the Court Receiver is required to visit the

premises situated beyond the limits of Greater Mumbai.