Bombay High Court
Kalpana Nambiar And 2 Ors vs Dr. Jayashree Balchandran Kurup on 16 January, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:757
Digitally signed
SWAROOP by SWAROOP
SHARAD
SHARAD PHADKE
PHADKE Date: 2025.01.17
21:07:09 +0530
mpt 150 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO.150 OF 2023
IN
TESTAMENTARY PETITION NO.1893 OF 2015
1. Kalpana Nambiar,
aged about 64 years, Indian Inhabitant
Occu - Business, residing at
Kabra Mangalkripa, Flat No.401,
Near Venus Garden, Goregaon (W),
Mumbai - 400 104.
2. Krishnakumar Rajagopal Menon,
Aged about 58 years, Indian Inhabitant,
Occu - Professor, residing at B9-S,
2nd Floor, Delhi Police Society Apartments,
Mayur Vihar Phase - I, Delhi - 110 091.
3. Asha Sudarsh Menon,
Aged about 62 years, Indian Inhabitant,
Occu - Housewife, residing at 102,
Manu Apartments, Mayur Vihar - 1,
New Delhi - 110 091. ... Petitioners
versus
Dr. Jayashree Balchandran Kurup,
Aged about 66 years, Occu - Advocate,
residing at 204, Raval Tower, Sundarvan Complex,
Off Lokhandwala Road, Andheri (W),
Mumbai - 400 053. ... Respondent
Mr. Denzil D'Mello with Ms. Geeta Sonawane Rahate, for Petitioners.
Ms. Jayashree B. Kurup, Respondent in person.
CORAM: N.J.JAMADAR, J.
DATE : 16 JANUARY 2025
SSP 1/36
::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 09:09:52 :::
mpt 150 of 2023.doc
JUDGMENT :
1. This Petition is filed, inter alia, to remove the Respondent who has
been appointed as an executrix, under the Will and last testament dated 21
April 2012, of Puthenveetil Rajagopal Menon (deceased), and allow the
Petitioner Nos.1 and 3 to administer the property and credits of the deceased
and also to direct the Respondent - executrix to produce proof of payments,
give inspection and furnish copies of the documents, receipts and vouchers,
referred to in the affidavit to file inventory and accounts, to deposit the original
documents of title and also direct the Respondent - executrix to join the
Petitioners in the sale of the property situated at Peramangalam Village,
Thrissur District, Kerala (Ambadi House property) and restrain the
Respondent, acting as executrix, from unilaterally selling, transferring,
alienating or otherwise creating any third party rights in the said Ambadi
House property.
2. The Petition arises in the backdrop of the following facts :
2.1 The deceased passed away on 29 July 2012. The deceased left
behind the last Will and Testament dated 21 April 2012. The Respondent and
Sudarsh Menon, husband of Petitioner No.3, were named as the executors in
the said Will. Under the said Will, Ambadi House property has been
bequeathed to all four children i.e. Petitioner Nos.1 to 3 and the Respondent.
In Testamentary Petition No.1893 of 2015, filed by the Respondent as
mpt 150 of 2023.doc
executrix, this Court granted Probate on 13 April 2016.
3. The Petitioners assert, post grant of Probate, the Respondent has
abused her position as executrix and committed various acts of commission
and omission detrimental to the estate of the deceased and interest of the
beneficiaries under the Will.
3.1 It is, inter alia, asserted that, after the grant of Probate, the money
which was standing to the credit of the account of the deceased, being
Account No.34832 maintained with Canara Bank, Fort Branch, Mumbai, was
appropriated by the Respondent towards the fees and expenses in
connection with the Probate proceedings. The Petitioners / beneficiaries were
kept in the dark. The Respondent has claimed inflated expenses and
appropriated the amount.
3.2 As regards the Ambadi House property, the Petitioners alleged, the
Respondent has not furnished accounts of the proceeds of sale of the trees,
which were cut, and the fruits, obtained from the trees standing in the said
property.
3.3 All the four co-owners decided to sell Ambadi House property as none
of them was in a position to purchase the share of the rest three. On 12
August 2016, a Memorandum of Understanding (MOU) was executed with Mr.
Jose Konikkara to sell Ambadi House property for a consideration of Rs.10.02
Crores. A part consideration of Rs.3 Crores was paid by Mr. Jose Konikkara,
mpt 150 of 2023.doc
which has been distributed amongst the Petitioners and Respondent.
Mr.Jose Konikkara, however, committed default in payment of the balance
consideration, and, therefore, in accordance with the terms of the contract, as
the time was essence, the agreement stood cancelled and part consideration
stood forfeited.
3.4 Mr. Jose Konikkara addressed a legal notice on 1 November
2017, adverting to the fact that the Respondent had demanded a sum of Rs.1
Crore for herself, over and above the sale consideration, and Mr. Jose
Konikkara was compelled to pay a sum of Rs.25 Lakhs as an advance
towards the said additional Rs.1 Crore. Out of the said amount, a sum of
Rs.8 Lakhs was paid to the husband of the Respondent and Rs.4 Lakhs was
paid to the daughter of the Respondent. This fraudulent act of the
Respondent renders her unfit to continue to act as an executrix. The
Respondent has, thus, committed breach of trust and confidence, reposed in
her by the executrix, and acted in violation of the terms and conditions of the
Will, subject to which the Probate has been granted to her.
3.5 The Petitioners further assert that they also learnt that the Respondent
and Mr. Jose Konikkara had entered into a separate MOU on 9 July 2017 for
the sale of 83.5 cents of the said property, keeping the Petitioners totally in
the dark. This act on the part of the Respondent in entering into MOU with
Mr. Jose Konikkara in a clandestine manner is also an instance of fraud and
mpt 150 of 2023.doc
abuse of the position of the executor by the Respondent.
3.6 The Petitioners have referred to the proceedings initiated by Mr. Jose
Konikkara for recovery of the part consideration and the stand taken by the
Petitioners and Respondent therein. The actions of the executrix, according
to the Petitioners, have put the other beneficiaries to severe monetary loss,
mental trauma and jeopardised their rights in the property.
3.7 With reference to the inventory of accounts dated 18 May 2018 filed by
the Respondent, the Petitioners have asserted that the said inventory of
accounts is inconsistent with and materially different from the accounts given
by the Respondent to the Petitioners. Reference is made to the entries under
the head - Probate Expenses, wherein a sum of Rs.95,000/- has allegedly
been expended by way of tips to expedite the process for issue of grant of
Probate. That again, according to the Petitioners, shows the illegal manner in
which the executrix has proceeded with the Probate proceedings and
execution of the Will. The Respondent has submitted fictitious and inflated
bills as the executor's alleged expenses. Affidavit of Inventory and accounts,
filed by the Respondent, is false and fabricated.
3.8 On these, amongst other, grounds, the Petitioners assert, the
Respondent is liable to be removed as the executrix. In addition, the
Petitioners have sought allied reliefs, adverted to above.
4. The Respondent has resisted the Petition by filing an affidavit in reply.
mpt 150 of 2023.doc
At the outset, the Respondent contends that the Petition for her removal as
the executrix is barred by law of limitation, and is, otherwise, not maintainable.
The Petitioner No.3 in connivance with her husband Sudarsh Menon, the
other executor, who had renounced the executorship, has filed this Petition
with an oblique motive. The Petitioner No.2 is suffering from mental ailments
and is under the control of Petitioner Nos.1 and 3.
4.1 On the merits of the matter, the substance of the resistance put forth by
the Respondent is that, the Petitioners had put hindrances in obtaining the
Probate. The deceased had full trust and confidence in the Respondent. The
Respondent has diligently discharged her duties as the executrix. There was
no corpus fund left with the Respondent for the administration of Ambadi
House property, and, even for filing the Probate Petition. The Respondent
has diligently administered the assets set out in the Will and Ambadi House
property from August 2012 itself, from her own personal income as the
Petitioners high handedly refused to contribute towards the expenses of the
management of Ambadi House property.
4.2 The Respondent contends, all the assets of the deceased were
proportionally distributed amongst the beneficiaries, except Ambadi House
property. The Respondent has categorically denied the allegations of
wrongful appropriation of the estate of the deceased and breach of trust.
Despite the Petitioners refusing to contribute towards the expenses for
mpt 150 of 2023.doc
obtaining the Probate and administration of the estate of the deceased, the
Respondent has utilized her professional fees and family income to
administer the property and the said fact is reflected in the affidavit of
inventory and accounts filed by the Respondent on 18 May 2018.
4.3 With regard to the allegations in the matter of sale of Ambadi House
property, the Respondent contends that the latter had distributed the
consideration parted with by Mr. Jose Konikkara in the year 2016 itself. The
transaction failed as Mr. Konikkara could not pay the balance consideration.
The Petitioners have withheld the amount of part consideration, which was
forfeited in accordance with the terms of the MOU dated 12 August 2016. The
Respondent had categorically informed the Petitioners about the expenses
incurred by the Respondent in managing Ambadi House Property and the
recovery of the said expenses from the sale proceeds of Ambadi House
property. The Petitioners, however, refused to share the expenses even after
the receipt of Rs.75 Lakhs each from Mr. Konikkara under the MOU dated 12
August 2016. The Respondent refers to the steps taken by her to manage
Ambadi House property and the expenses incurred by her for the same.
Even the funds of the family members of the Respondent were utilized for the
said purpose.
4.4 As regards the payment of a sum of Rs.25 Lakhs by Mr. Konikkara, the
Respondent categorically denied that the said amount was towards the
mpt 150 of 2023.doc
advance for a sum of Rs.1 Crore, which was allegedly demanded by the
Respondent over and above the agreed consideration. It is the claim of the
Respondent that after the Respondent apprised Mr. Konikkara about the
expenses by her for the management of Ambadi House property and the
Petitioner's refusal to contribute to the said expenses, Mr. Konikkara had
voluntarily deposited with the Respondent a sum of Rs.25 lakhs on 14
September 2016 towards the expenses incurred by her and to be incurred in
future till the final sale and transfer of the property from the balance
consideration under the MOU dated 12 August 2016. Out of the said
amount, the Respondent claimed, a sum of Rs.12 Lakhs was refunded to Mr.
Konikkara and the balance amount of Rs.13 Lakhs was expended for the
preservation and maintenance of Ambadi House property.
4.5 As regards the execution of MOU dated 9 July 2017 for the sale of 83.5
cents property to Mr. Konikkara, the Respondent contends that, in fact, the
Petitioners played fraud on her by prevailing upon her to execute the said
MOU as the Petitioners did not want to refund the advance amount of Rs.3.13
Crores received under the MOU dated 12 August 2016.
4.6 The Respondent has also denied the allegations of furnishing false and
fabricated accounts. Hand-written accounts on which the Petitioners are
placing reliance, according to the Respondent, were an own accord hurried
overall compilation of expenses for the estate as well as for preparing the
mpt 150 of 2023.doc
Grant. The Respondent had never represented that the said hand-written
accounts would be filed in Court. To take an undue advantage, the
Petitioners have produced the same before the Court.
4.7 The Respondent contends, there is no cause for the instant Petition.
The Petition has been filed with intent to usurp Ambadi House property and
sell it by entering into a benami transaction.
5. An affidavit in rejoinder and sur-rejoinder thereto, followed.
6. I have heard Mr. D'Mello, learned Counsel for the Petitioners, and the
Respondent in person, who is also a practicing Advocate, at some length.
With their assistance, I have perused the material on record, including the
documents which have been relied upon by them in support of their rival
submissions.
SUBMISSIONS
7. Mr. D'Mello, learned Counsel for the Petitioners, would urge that the
Respondent - Executrix has committed gross misconduct which dis-entitles
her to continue to act as an Executrix. By her acts and conducts, the
Respondent has jeopardised the estate of the deceased and interest of the
beneficiaries therein. The surreptitious manner in which the Respondent
attempted to unjustly enrich herself would have gone unnoticed but for the
legal notice issued by Mr. Jose Konikkara to the Petitioners and Respondent.
What further accentuates the situation is the receipt of payment in the name
mpt 150 of 2023.doc
of the husband and daughter of the Respondent. When the fraud came to
light, the Respondent returned a sum of Rs.12,00,000/-. That, however, does
not dilute the gravity of the fraudulent act, urged Mr. D'Mello.
8. As a second limb of the submission with regard to the transaction in
respect of Ambadi house property, Mr. D'Mello submitted that the Respondent
entered into another agreement with Mr. Jose Konikkara on 9 July, 2017 to
sell 83.5 cents of land purportedly forming part of the Ambadi House property,
behind the back of the Petitioners, for a consideration of Rs.3,51,00,000/-.
This again shows the fraudulent manner in which the Respondent professed
to discharge her duties as an Executrix. Mr. D'Mello urged that the
explanation sought to be offered by the Respondent in respect of the
aforesaid fraudulent acts, is unworthy of acceptance.
9. Mr. D'Mello made an endeavour to take the Court through the hand-
written accounts furnished by the Respondent to the Petitioners, particularly
the entries, wherein a substantial amount is shown to have been paid by way
of tips to the officials of the Testamentary Department to obtain the Probate.
Mr. D'Mello urged that the Respondent, instead of showing any remorse, has
tried to justify the said act. The affidavit of inventory and accounts, submitted
by the Respondent, according to Mr. D'Mello, is bereft of any sanctity as no
documents, receipts and vouchers were annexed thereto, to substantiate the
huge expenses. There is a clear breach of the mandate contained in Section
mpt 150 of 2023.doc
317 of the Indian Succession Act, submitted Mr. D'Mello.
10. Lastly, it was urged that for over 12 years since the demise of the
testator, the beneficiaries under the Will are deprived of the benefits
thereunder, due to the wrongful acts and conduct of the Respondent.
Therefore, it is imperative that the Respondent is removed as an executrix
and a fit and proper person is appointed to administer the estate left behind
by the deceased.
11. A very strong reliance was placed by Mr. D'Mello on the judgment of
this Court in the case of Mukesh Ramanlal Gokal and ors. vs. Ashok Jagjivan
Gokal1 and the decision of Madras High Court in the case of P. B. Srinivasan
and another vs. T. P. S. Varadhan2.
12. Per contra, Dr. Jayashree Kurup, the Respondent, would urge that, first
and foremost, the instant petition is barred by law of limitation. The
Petitioners, on their own showing, became aware of the alleged acts on the
part of the Respondent in the year 2017 - 2018. However, the Petition came
to be filed on 18 November, 2022. The petition is thus ex facie barred by
limitation. Reliance was placed by Dr. Kurup on A decision of this Court in the
cases of Adil Phiroz Makhania vs. Dilip Gordhandas Gondalia and anr.3 and a
decision of Punjab and Haryana High Court in the case of Hari Narayan
1 Misc. Petition No.66/2013 dated 11 Oct. 2013.
2 1981 The Madras Law Journal Reports 158.
3 2014(5) Bom.C.R. 384.
mpt 150 of 2023.doc
(deceased) by LRs. vs. Subhash Chander and others . In these cases, it was
enunciated that Article 137 of the Limitation Act applies for a petition to
revoke the Probate and such petition has to be filed within three years from
the date of of accrual of the right to seek revocation.
13. Secondly, Dr. Kurup would urge, there are bald allegations of fraud,
misconduct and mismanagement. Especially the allegations of fraud are as
vague as they could be. Nor there is any material to substantiate the
allegations of fraud. In the absence of specific pleadings on the point of
fraud, no enquiry is warranted. To buttress this submission, Dr. Kurup placed
a very strong reliance on a Three-Judge Bench decision of the Supreme
Court in the case of Svenska Handelsbanken vs. M/s. Indian Charge Chrome
and others5 wherein the necessity of specific pleading was emphasized. It
was further enunciated that a finding as to fraud cannot be based on
suspicion and conjectures. Reliance was also placed on a decision of the
Delhi High Court in the case of Padma Bewa vs. Krupasindhu Biswal and
others6 wherein referring to the provisions contained in Order VI Rule 4 of the
Code, it was ruled that a plea of fraud is to be raised in the pleadings by
giving the particulars thererof as required under the said rule.
14. Thirdly, Dr. Kurup strenuously submitted that the wishes of the testator
4 AIR 1985 Punjab and Haryana 211.
5 (1994) 1 Supreme Court Cases 502.
6 AIR 1986 Orissa 97.
mpt 150 of 2023.doc
and the trust and confidence reposed by the testator in the executor, cannot
be disregarded on the basis of bald and unsubstantiated allegations. Very
strong grounds are required to divest the named executor of his authority to
execute the Will. In the absence of convincing proof of malfeasance and
misfeasance, a named executor cannot be removed from the office of
executorship, for the mere asking.
15. To lend support to the aforesaid submission Dr. Kurup placed reliance
on a decision of Delhi High Court in the case of Swapnil Gupta and anr. vs.
Govt. of NCT of Delhi and ors.7, the judgments of this Court in the cases of Dr.
Shubhada Mithilesh and another vs. Prabhakar Deolankar and others 8 and
Marteen Borchert and another vs. Arzan Khambatta and another9.
16. On the merits of the matter, the thrust of the submission of Dr. Kurup
was that the Respondent has been administering the estate of the deceased
since the demise of the deceased, even in the absence of any corpus fund.
The Ambadi House property has been maintained by the Respondent by
incurring expenses from her personal income and that of her family. The
Petitioners have flatly refused to contribute to the expenses, despite having
received a sum of Rs.75,00,000/- each, from Mr. Jose Konikkara. Therefore,
the petition does not deserve to be entertained.
7 297 (2023) Delhi Law Times 770.
8 2018(2) Mh.L.J. 211.
9 2011(5) Mh.L.J. 682.
mpt 150 of 2023.doc
17. Refuting the allegations that the Respondent had surreptitiously
demanded the sum of Rs.1 Crore for herself, over and above the agreed
consideration, Dr. Kurup submitted that the amount of Rs.25,00,000/- paid by
Mr. Jose Konikkara was part of the balance consideration and was voluntarily
paid by Mr. Jose Konikkara to cover the personal expenses for the
preservation and sale of the Ambadi House property, incurred by the
respondent and her family members. There was no dishonest intention on the
part of the Respondent. An explanation was also sought to be offered
regarding the circumstances in which the Respondent had signed the
purported MOU with Mr. Jose Konikkara on 9 July, 2017 in respect of 83.5
cents of land. The entire exercise, according to Dr. Kurup, was to advance
the cause of benefit to the estate of the deceased. The aforesaid acts,
according to Dr. Kurup, have no element of fraud and misapplication as
alleged by the petitioners.
18. Dr. Kurup also made an earnest effort to persuade the Court to hold
that the affidavit of inventory and accounts filed by the Respondent represents
true and correct state of expenses, incurred by the Respondent, for
administration of the estate for the years together. With an oblique motive the
Petitioners are trying to take undue advantage of the hand-written notes of
accounts, which were neither final nor complete and were hurriedly prepared
and tendered to the petitioners. Therefore, the Respondent who has toiled for
mpt 150 of 2023.doc
over 10 years to protect the estate of the deceased at a huge physical and
financial cost, cannot be removed on the basis of the baseless and motivated
allegations.
CONSIDERATION :
19. The preliminary challenges to the Petition on the count of bar of
limitation and absence of pleading on the allegation of fraud need not detain
the Court. Reliance on the decisions in the cases of Adil Phiroz Makhania
(supra), and Hari Narayan (supra), does not advance the cause of the
submission on behalf of the Respondent as those decisions were rendered in
the Petition for revocation of the Probate under Section 267 of the Indian
Succession Act, 1925. The said principle cannot apply with equal force to an
application for removal of the executor under Section 301 of the Indian
Succession Act, as the testamentary Court, being the court of conscience
cannot permit the executor to continue to act to the detriment of the estate
and the beneficiaries, if such a case is made out, on the ground of bar of
limitation. It would amount to putting a premium on disingenuity and mal-
administration of the estate.
20. Indeed, there are allegations in the Petition that the acts and conduct
attributed to the Respondent amount to fraud on the part of the Respondent.
Articulation of the alleged misconduct or categorization thereof as fraud, may
be questioned. However, it cannot be said that there are no specific
mpt 150 of 2023.doc
pleadings. In addition to the pleadings, the Petitioners have placed on record
the documents from which the allegations stem. Thus, the reliance on the
judgments in the cases of Svenska Handelsbanken (supra) and Padma
Bewa (supra) does not seem to be well founded.
21. This propels me to the moot question of exercise of the power under
Section 301 of the Indian Succession Act, 1925. It may be appropriate to
appreciate the core controversy in the light of the statutory prescription.
Section 301 of the Act, 1925 reads as under :
"Sec. 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.
22. Evidently, the power to remove a named Executor is discretionary in
nature. Normally, where the Executor is named by the testator, the Court
would be loath to remove him and appoint an Administrator pendente lite, or
post grant of Probate, unless there is gross misconduct or mismanagement
or waste of assets on the part of the Executor. The reason is not far to seek.
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 remove the named Executor and appoint an
Administrator pendente lite. In the very nature of the things, the question of
mpt 150 of 2023.doc
removal of an Executor is rooted in thicket of facts. Where, in the facts of the
given case, the Court upon consideration of all the relevant circumstances
comes to the conclusion that the continuation of the Executor, named by the
testator, is detrimental to either the estate of the testator, or the beneficiaries
under the Will, on account of gross misconduct, mismanagement or
usurpation of the estate by the Executor or gross mis-application of the
estate, the Court may be justified in removing an Executor. It is trite that a
Testamentary Court is a Court of conscience.
23. At this juncture, a reference may be made to the decision of this Court
in Mukesh Gokal (Supra), on which a very strong reliance was placed by Mr.
D'Mello. In the said case, the Court was confronted with the question, as to
whether the Executors, who had set up rival claims in respect of the
properties, which were described as ownership properties of the testator by
those Executors themselves, can be allowed to continue to act as Executors
and Trustees of the Will and Codicil of the testator. After an elaborate analysis
and referring to the judicial pronouncements, the learned single Judge held
that the Executors have to act in the interest, benefit and welfare of the
beneficiaries/legatees under the Will and Codicil and cannot be permitted to
have conflicting interest in the estate. Since no part of the estate was
bequeathed in favour of the Executors by the deceased therein, the Executors
have to comply with their duties and distribute the legacies amongst the
mpt 150 of 2023.doc
beneficiaries/legatees under the said Will and Codicil and cannot be permitted
to set up a title adverse to the title of the deceased while carrying out their
duties as Executors or Trustees. If the Court comes to the conclusion that
actions of the Executor and Trustees would prevent the estate from being
properly executed, the Executors and Trustees can be removed.
24. The following observations, in paragraph 41 to 44, deserve to be
extracted. They read as under:
"41. Punjab & Haryana High Court, in the case of Tarachand
Sharma Vs. Uma Aggarwal, has held that the court cannot shut its
eyes to the conduct of the executor and allow executor to continue
irrespective of his working detriment to the property bequeathed
merely because complainant's conduct was not aboveboard. It is
held that if the executor instead of discharging his duty as per the
Will was abusing his position to divert the property of the testator
for his personal benefit, such executor has to be removed by
court. Even in that matter, the executor/trustee was pleading his
own tenancy in the property bequeathed and was considered as
sufficient ground for justifying the removal of such executor acting
in dual capacity as executor and trustee. I am in agreement with
the view taken by Punjab& Haryana High Court in the case of
Tarachand Sharma (supra). Even in this case, it is found that
respondent no. 1 and 2 are claiming rights in the property which is
subject matter of dispute.
42. In my view, an executor who is not a beneficiary cannot be
permitted to continue to act as executor and trustees under the
Will and codicil and as per the provisions of the Indian Succession
Act and when such executor and trustee himself claims some right
in the property which is stated to be forming part of the estate
mpt 150 of 2023.doc
adverse to the title of the deceased and claim of the beneficiaries
as is apparent from the schedule amended by respondent no.1
himself.
43. In my view, if beneficiaries have lost confidence in the
executors, such executors or trustees cannot be allowed to foist
themselves upon the beneficiaries/legatees to act on their behalf
as executors and trustees. Respondent Nos. 1 and 2 are facing
serious allegations made by the beneficiaries/legatees including
allegations of fraud and adverse claim having been put up by the
executors against the estate of the deceased. In my view, in this
case there is clear conflict of duty and obligation of executors
towards beneficiaries and rival claims put up by them against the
beneficiaries in respect of the properties stated to be forming part
of the estate. Punjab & Haryana High Court in the case of Smt.
Shantidevi (supra), has held that the conduct of the executor must
be for the welfare of the beneficiaries and to advance the aims
and objects of the trust and if the conduct of the executor is not
conducive to the welfare of the beneficiaries, then the power of
removal must be exercised. I am in complete agreement with the
principles laid down above by the Punjab & Haryana High Court in
the said judgment. Punjab & Haryana High Court has considered
the judgment in the case of Shrinivasan in which it was held that if
the executor put forth right which is absolutely untenable and is in
conflict with the rights of the beneficiaries, it is sufficient for the
High Court to exercise powers vested in it under section 301 of the
Indian Succession Act.
44. In my view, this court cannot go into the issue of title of the
deceased in respect of any property which is stated to be forming
part of the estate of the said deceased in testamentary
proceedings. However, this court is entitled to ascertain whether
such claim put up by the executor and trustee would be in conflict
with the interest of the beneficiaries and legates and if so, whether
mpt 150 of 2023.doc
such executors and trustees can be allowed to act as executors
and trustees. In my view, in such a situation, the executors have to
first step down from their position as executors and trustees and
then can make their rival claims against the beneficiary in respect
of the property stated to be forming part of the estate. A person
cannot be allowed to act as executor and trustee for the benefit of
beneficiaries and at the same time to set up his own title which
may be adverse to the title of the said deceased which would be in
conflict with the welfare and interest of the beneficiaries at the
same time."
25. In the case of Tara Chand Shrama V/s. Uma Agarwal 10, which was
relied upon by this Court in the case of Mukesh Gokal (Supra), a Division
Bench of the Punjab and Haryana High Court enunciated the scope of inquiry
in a Petition for removal of a named Executor. It was observed that real issue
was, whether the Will of the testator was being given effect to and whether the
Executor instead of discharging his duty as per the Will was abusing his
position to divert the property of the testator for his personal benefit.
26. A reference can also been made to the decision of the Madhya Pradesh
High Court in the case of Dr Kusum Kuree V/s. Dharam Singh. 11. After
extracting the text of Section 301 of the Indian Succession Act, the Madhya
Pradesh High Court spelt out the circumstances in which the power to remove
an Executor can be resorted to, as under :
10 2020 AIR (P&H) 30
11 1986 ILR 414 (MP Series)
mpt 150 of 2023.doc
"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 under section 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 honestly and sincerely carrying out wishes of the deceased
has started claiming title in the property adverse to the deceased
or the legacy 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." (emphasis supplied)
27. In the case of Abha Dastane - Rao an Ors. V/s. Prabhakar Deolankar
and Ors.12, the learned Single Judge of this Court, after adverting to the
decision in the case of Mukesh Gokal (Supra) observed that in the case of
Mukesh Gokal (Supra) the Executor had set up in respect of some properties
a title hostile to that of the estate and, the beneficiaries. Mukesh Gokal
12 2016 SCC Online Bom 110
mpt 150 of 2023.doc
(Supra) can hardly be an authority for any generalised proposition, nor can
the ratio of the said decision be applied to every case brought under Section
301. Each such case will turn on its facts; for in each case, the conduct of the
Executor will be examined, as will the truthfulness of the allegations against
him.
28. In the case of Abha Dastane-Rao (Supra) this Court further enunciated
that in an Application for removal of an Executor, the Court must, taking an
overall view of the matter, assess whether a case has been made out
showing that the Executor has obstructed the administration of the estate; has
made claims adverse to that estate; is shown to be guilty of gross
mismanagement and not minor lapses; and whether he has, in sum and
substance, perverted the disposition of the estate in accordance with the
terms of the Will. There must be clear evidence that the Executor's
continuance as Executor is detrimental or injurious to the estate and will
frustrate the Will, with the administration of which he is charged in law and by
the testamentary writing. Minor lapses, errors of judgments or less than
perfect handling of the matter is not sufficient reason to substitute the
testator's expression of confidence. A proper case must be made out.
29. In the case of Swapnil Gupta (supra), on which Respondent placed
reliance, the following statement of law as regards the exercise of power to
remove the executor was made :
mpt 150 of 2023.doc
"35. It is trite law that the testator's wish regarding as to who
will be the executor of his estate and carry out his Will must
typically be respected, and an executor named by the testator
should not be removed from his office unless, there is convincing
proof that his continued appointment would be harmful to the
estates of the deceased and frustrate the testator's Will. The
named executor cannot be removed for a few isolated minor
mistakes. This concept must be considered when determining
whether the petitioners have provided enough evidence to have
the executor removed from his/her role.
37. Therefore, courts will not readily remove an executor
appointed in probate proceedings unless gross misconduct, gross
mismanagement, abuse, or misuse of probate is demonstrated.
There must be clear evidence that the executor's continued
presence is detrimental or detrimental to the property and would
frustrate the will which he is charged by law and the records of the
will to administer. Minor errors, erroneous assessments, or
inadequate handling of matters are not sufficient grounds to
replace the testator's expression of confidence."
30. In the case of Dr. Shubhada Mithilesh and another (supra), a learned
Single Judge of this Court emphasised the fact that as a general rule, the
Court will respect a person's appointment as an executor for it shows that the
testator reposed in that person a special confidence. The Court must give full
weight to that expression of confidence. Thus, the mere contention that the
beneficiaries have lost confidence in the executor is not sufficient for removal
of the executor and for appointment of administrator pendente lite. There must
mpt 150 of 2023.doc
be some material on record to substantiate such allegation of loss of
confidence.
31. In the case of Marteen Borchert and another (supra), another learned
Single Judge of this Court, observed that the case of removal of executor
would come up when the executor is shown to be an inveterate non-worker by
his inaction in administration. Such a case could be made out only after the
passage of sufficient time to allow the executor, who is an appointee of the
Testator/Testatrix, a decent time in which to perform his duties. In view of the
fact that executors perform their duties and functions and discharge their
responsibilities gratis no undue burden can be cast upon them by the
Testator/Testatrix as also the Court or the beneficiaries. They are not enjoined
to perform their functions at the whims and demands of the beneficiaries.
32. Keeping in view the aforesaid contours of the jurisdiction of the
testamentary Court to remove /suspend or discharge the executor appointed
by the testator (and in this case to whom the Probate has been granted), the
material on record is required to be appreciated on the touchstone as to
whether a case of gross mis-management, mis-application of the estate to the
detriment of the beneficiaries, lack of honesty and sincerity in carrying out the
wishes of the testator, and, especially aggrandizement at the cost of estate
and the beneficiaries (in contradistinction to minor lapses, errors of judgment
and want of diligence and expedition), is made out.
mpt 150 of 2023.doc
33. To begin with, few facts, which significantly bear upon the determination
of this petition. First, the dispositions in the Will. Indubitably, the testator
bequeathed the Ambadi House property to the petitioners and respondent, in
equal shares. The testator further desired that, if none of the children buys out
the other siblings, the property be sold and the sale proceeds be distributed
equally. It is necessary to note that Krishnakumar Menon, Petitioner No.2, is
suffering from mental ailments. The Will specifically adverts to the condition of
Krushnakumar and the desire of the testator to ensure Krushnakumar's well
being and comfort, after the demise of the testator. Second, by and large, the
controversy revolves around the administration of Ambadi House property.
Third, the parties are not at issue over the unanimous decision to sell Ambadi
House property to Mr. Jose Konikkara and execution of a MOU on 12 August,
2016 to sell the said property for a consideration of Rs.10,02,00,000/- and
receipt of part consideration of Rs.3 Crores thereunder. Fourth, it is a matter
of record that the said transaction did not materialize and resulted in litigation
between Mr. Jose Konikkara, on the one part, and the Petitioners and
Respondent, on the other part. Fifth, the execution, as such, of second MOU
between the Respondent and Mr. Jose Konikkara is not in dispute, though the
circumstances in which the said document was executed, and the import
thereof, are in contest. Sixth, the filing of the affidavit of inventory and
account in Court and tendering of the hand-written notes of accounts by the
mpt 150 of 2023.doc
Respondent to the Petitioners is again not in dispute, though the parties are at
issue over the effect and consequences thereof.
34. Though an endeavour was made on behalf of the Petitioners to urge
multiple counts of alleged malfeasance and misfeasance on the part of the
Respondent, in my considered view, the core controversy revolves around the
acts of the Respondent in the matter of the sale of Ambadi House property.
The facts with reference to entering into an agreement for sale with Mr. Jose
Konikkara and the resultant failure of the said transaction, are already noted.
The situation which emerged after the said transaction failed, assumes critical
salience.
35. At this stage, reference to few document, becomes necessary. First,
the notice dated 1 November 2017 addressed on behalf of Mr. Jose
Konikkara to the Petitioner Nos.1 to 3, the Respondent and her husband and
daughter. After referring to the agreement for sale and parting of part
consideration, Mr. Jose Konikkara asserted, in the said notice, that the
Respondent demanded Rs.1 Crore, over and above the sale consideration to
her alone, as an additional amount, and Mr. Jose Konikkara was compelled to
concede to the said demand and pay Rs.25 lakhs as advance by way of
cheques drawn in favour of the Respondent (for the sum of Rs.13 Lakhs),
her husband (for the sum of Rs.8 Lakhs) and daughter (for the sum of Rs.4
Lakhs). Mr. Jose Konikkara further asserted that it was learnt that the
mpt 150 of 2023.doc
Respondent had received the said amount by defrauding the rest of the co-
venders.
36. It would be contextually relevant to note that there is no dispute about
the fact that the aforesaid sum of Rs.25 Lakhs was paid and out of the said
amount, upon the dispute having been raised by Mr. Jose Konikkara, the
amount of Rs.12 Lakhs was refunded.
37. At this juncture, it may be necessary to immediately notice the
response of the Respondent to the aforesaid allegations in the notice of Mr.
Jose Konikkara, in the reply to the said notice :
"5. With reference to paragraph No.5, I deny the statement
made therein and put your client, Konikkara Jose to strict proof
thereof.
a. It was your client who had voluntarily made the payment
of Rs.25,00,000/- (Twenty Five Lakhs only) to the party No.1 as
part of the balance consideration under the MOU dated 12-8-
2016. Parties No.2 to 4 are aware that the expenses incurred
by the Executor has to be recovered from the sale proceeds of
the property and that the amount of Rs.25,00,000/- received by
party No.1 from your client, Konikkara Jose has been utilized for
the same. Hence, your allegation against the Party No.1 is
totally false and baseless.
b. Your statement about the realization of your client that
party No.1 was defrauding the parties 2 to 4 is merely a figment
of your imagination whatsoever and is indeed a magnificent tool
derived by you to incite rivalry between my siblings and me and
usurp our said property by illegal means. The pertinent
question as to why you client maintained a silence from the
period of 12-08-2016 till date and has instructed you to issue
mpt 150 of 2023.doc
this legal notice dated 1 November 2017. is indeed intriguing
and unbelievable."
38. Mr. Jose Konikkara reiterated the aforesaid allegations in the suit
instituted by him for recovery of the part consideration ( i.e. Rs.3.13 Crores)
from the Petitioners and Respondent. In the written statement filed by the
Respondent to the said suit, the Respondent contended that after obtaining
the Probate and also with the consent from Defendant Nos.2 to 4 to recover
expenses from the proceeds of the sale of the plaint schedule property, the
amount of Rs.25,00,000/- was received by the Respondent as part of first
installment of the balance consideration. The Plaintiff voluntarily gave 7
cheques aggregating to a sum of Rs.25 Lakhs to be encahsed on the dates
pre-determined by the Plaintiff. Since the Respondent No.1 utilized the money
from the account of her husband and sister, the Plaintiff had voluntarily paid
the said amount towards the expenses of the executor and drawn cheques in
favour of the Respondent, her husband and daughter. An amount of Rs.12
Lakhs was returned. The amount of Rs.13 Lakhs, retained by the
Respondent, was towards the expenses incurred by the Respondent for the
preservation of the plaint schedule property.
39. The aforesaid contentions constitute the substratum of the defence of
the Respondent. Does it merit acceptance ?
40. It is imperative to note that the aforesaid factum of payment of Rs.25
mpt 150 of 2023.doc
Lakhs to the Respondent over and above the agreed consideration under the
agreement for sale, came to light only after Mr. Jose Konikkara addressed a
legal notice dated 1 November 2017. It is in the written statement filed in the
suit, the Respondent made an endeavour to contend that the said amount
was accepted with the consent of the Petitioners. The said contention is
belied by the fact that, in the reply to the legal notice, the Petitioner No.1 had
already categorically taken a stand that she was unaware of such transaction
between the Respondent and Mr. Jose Konikkara and the said amount cannot
be clubbed with the amount agreed to be paid under the agreement for sale.
41. Few circumstances are of material significance. First, it is the case of
the Respondent that she had incurred the expenses for the preservation and
sale of the property and the Petitioners declined to contribute, and, therefore,
she had taken initial part consideration of Rs.1 Crore in her name to meet the
executor's expenses. If that was the case, the expenses could have been
deducted from the amount which was distributed to the Petitioners out of the
initial advance of Rs.1 Crore. Thus, there could have been no occasion to
accept a further sum of Rs.25 lakhs from Mr. Jose Konikkara.
42. Second, if the payment was to be made towards the balance
consideration, Mr. Jose Konikkara could not have been made to draw the
cheques in the names of the husband and daughter of the Respondent. That
brings in an element of appropriation of the property, out of the estate of the
mpt 150 of 2023.doc
deceased, against the wishes of the testator. Therefore, the fact that the
allegations of demand of an additional amount of Rs.1 Crore and payment of
Rs.25 Lakhs came from a party, who is neither the beneficiary under the Will
nor has a particular axe to grind against the Respondent alone, cannot be lost
sight of.
43. Third, the non-disclosure of the receipt of the said consideration over
and above the part agreed consideration received by the vendors together, till
the said payment came to light due to the legal notice by Mr. Konikkara, works
out the retribution of the claim of the Respondent that the said amount was
accepted as an advance towards the balance consideration with the consent
fo the co-vendors.
44. The aforesaid factors, if considered cumulatively, lend credence to the
allegation of Mr. Jose Konikkara that the Respondent demanded a sum fo
Rs.1 Crore over and above the agreed consideration and he was required to
pay Rs.25 Lakhs. Consequently, these factors give heft to the submission of
the Petitioners that the Respondent surreptitiously attempted to unjustly
enrich herself at the cost of the estate and the beneficiaries.
45. The execution of the second MOU to sell 83.5 cents of land for an
additional consideration of Rs.3,51,00,000/- between Mr. Jose Konikkara and
the Respondent alone, in the circumstances of the case, cannot be said to be
innocuous or immaterial. Already the co-owners had entered into an
mpt 150 of 2023.doc
agreement for sale. It is not the case that the property which was agreed to
be sold under the second MOU did not form part and parcel of the estate of
the deceased, or for that matter, Ambadi House property. The Respondent
made an endeavour to explain away the situation by asserting that there was
controversy regarding the description of the area of the property. An effort
was also made to contend that the Respondent was made to sign the said
MOU by Mr. Jose Konikkara without the Respondent fully appreciating the
contents and import of the said MOU.
46. The status and position of the Respondent bears upon the acceptability
of the aforesaid explanation. The Respondent is a legal professional. It
defies comprehension that, the Respondent, who is a practicing Advocate,
could have readily executed the document without fully understanding the
contents and import of the said document. In fact, the explanation sought to
be offered by the Respondent regarding the acceptance of the sum of Rs.25
Lakhs from Mr. Jose Konikkara is also required to be appreciated through this
prism of the situation in life of the Respondent. I am, therefore, afraid to
unreservedly accept the explanation sought to be offered by the Respondent.
47. The conspectus of aforesaid consideration is that there is overwhelming
material to demonstrate that the Respondent attempted to abuse her position
as an executrix and accepted money from the then prospective purchaser,
over and above the agreed consideration surreptitiously. In the totality of the
mpt 150 of 2023.doc
circumstances, especially having regard to the position of the Respondent,
the said act cannot be brushed aside as a minor lapse or momentary
aberration or inadvertent indiscretion. The said act on the part of the
Respondent borders on unjust enrichment at the expense of the estate and
the beneficiaries. In my considered view, by the said acts, the Respondent
has forfeited the privilege and authority to continue to act as an executrix.
48. Mr. D'Mello, learned Counsel for the Petitioners laid emphasis on the
non-compliance of the provisions contained in Section 317 of the Indian
Succession Act, in as much as, true and faithful accounts of the receipts and
expenses were not furnished. Special emphasis was laid on the hand-written
note of expenses shared by the Respondent (Exhibit S - pages 262-273). Mr.
D'Mello urged that, under the head of Probate expenses, significant amount is
shown to have been expended for the department officials' tip. The amount is
said to have been paid by way of tip even to the Registrar.
49. As noted above, the Respondent joined the issue by asserting that the
said hand written notes were hurriedly prepared and incomplete. Explanations
were sought to be offered regarding the entries, which indicate that money
was paid by way of tip.
50. It may not be expedient to delve deep into this aspect of the matter.
Suffice to note that the hand-written note of expenses, especially with regard
to the Probate expenses, leaves much to be explained. What exacerbates
mpt 150 of 2023.doc
the situation is the endeavour on the part of the Respondent to justify the said
expenses. In the affidavit in reply, the Respondent contended :
"It is common knowledge that no Department in
the High Court or any other Courts in India function
without clerical staff and the tips referred to are the
handouts given to the clerks concerned."
51. Though, the aforesaid factor may not have decisive significance on the
exercise of jurisdiction under Section 301 of the Act, 1925, yet it reflects upon
the manner in which the Respondent discharged her duties as an executrix.
52. Another material consideration is the state of affairs with regard to the
administration of the estate of the testator. A factor which is of immense
importance is the situation in life of the Petitioner No.2. As noted above, the
testator was deeply concerned about the Petitioner No.2 on account of the
mental health issues Petitioner No.2 was suffering from. Even after a decade
of the demise of the testator, a valuable property remains unadministered.
Litigation has ensued. The amount which could have been utilized for the
treatment and welfare of the Petitioner No.2 remains blocked in the form of
the property which is embroiled in litigation. The situation brought about by
the precarious health condition of the Petitioner No.2 is such that it cannot
brook delay. In the circumstances of the case, all the four beneficiaries are
unlikely to agree upon the issues, which are necessary to facilitate the sale of
the property. A huge trust deficit has developed; primarily on account of the
mpt 150 of 2023.doc
aforesaid conduct of the Respondent. In such a situation, in my considered
view, it is necessary to appoint an administrator, who is not one of the
beneficiaries, to take steps to sell Ambadi House Property and distribute the
sale proceeds.
53. From the aforesaid standpoint, the submission of the Respondent that
the wishes of the testator must weigh with the Court in not removing the
executor appointed by the testator, does not merit countenance.
54. I am, therefore, inclined to partly allow the Petition, remove the
Respondent as an executrix and appoint the Court Receiver, High Court,
Bombay, as an administrator as only Ambadi House property remains
unadministered.
55. Hence, the following order :
ORDER
(i) The Petition stands partly allowed.
(ii) The Respondent stands removed as Executrix of the Will and
Testament dated 21 April 2012.
(iii) The Court Receiver, High Court, Bombay is appointed to act as
the Administrator of the estate of the deceased.
(iv) The Court Receiver, High Court, Bombay, is empowerd to sell the
property situated at Peramangalam Village, Thrissur District, Kerala (Ambadi
House property).
mpt 150 of 2023.doc
(v) The Court Receiver may file an appropriate Report seeking
directions for the sale of Ambadi House Property.
(vi) The Respondent shall deposit the original documents of title in
respect of Ambadi House Property with the Court Receiver, within a period of
four weeks.
(vii) The Court Receiver is authorized to appoint a care taker for the
said Ambadi House Property and seek assistance of professionals, valuers
and brokers for the sale of the property.
(viii) The Petitioner Nos.1 and 3 shall deposit a sum of Rs.50,000/-
each with the Court Receiver towards the initial charges and expenses of the
Court Receiver.
(ix) The Respondent shall exhibit final accounts of the estate of the
deceased showing the assets which have come to her hands and the manner
in which they have been applied or disposed of till date, within a period of four
weeks.
(x) The Misc. Petition stands disposed.
( N.J.JAMADAR, J. )
At this stage, the respondent in person seeks stay to the
execution and operation of this order.
mpt 150 of 2023.doc
As the respondent has been acting as executrix, since the
demise of the testator, and this Court has already restrained the parties from
acting upon the Probate, the execution and operation of this order stands
stayed for a period of six weeks.
However, the respondent shall not act upon the Probate.
( N.J.JAMADAR, J. )
