Calcutta High Court
Rs.10 Lakh To The vs Nirupama Devi And Another on 14 March, 2023
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
The Hon'ble Justice Sabyasachi Bhattacharyya
IA NO. GA/1/2021
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/2/2021
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/3/2022
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/4/2022
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/5/2022
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
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For Narbada Devi : Mr. Ranjan Bachawat, Sr. Adv.
Mr. Rudraman Bhattacharya, Adv.
Mr. Sayantan Das, Adv.
For Chandni Maniyar : Mr. Sabyasachi Choudhury, Adv.
Mr. Rajarshi Dutta, Adv.
Mr. V.V.V. Sastry, Adv.
Ms. Vidhi Sharma, Adv.
For Dheeraj Maniyar : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Rachit Lakhmani, Adv.
Mr. Vishwarup Acharyya, Adv.
Mr. Sourav Roy, Adv.
For Subhash Maniyar : Mr. S.K. Kapur, Sr. Adv.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Sakya Sen, Adv.
Mr. Varun Kedia, Adv.
Mr. Altamash Alim, Adv.
Ms. Priyanka Prasad, Adv.
Hearing concluded on : 28.02.2023
Judgment on : 14.03.2023
The Court:
In Re: GA/1/2021 and GA/5/2022
1. The parent probate proceeding bearing PLA No.327 of 2021 is for
grant of probate of the alleged last Will and testament of Late Om
Prakash Maniyar dated August 3, 2020. In the said Will, his wife Smt.
Chandni Maniyar was made the sole Executrix. In the event of demise
of the executrix prior to obtaining probate, the Testator's elder son
Subhash Maniyar was named as the Executrix.
2. Another previous Will of the same Testator has come into the fray.
Such Will is dated January 30, 2018, wherein Subhash Maniyar is the
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Executrix. However, the present probate proceeding has been
instituted by Chandni for probate of the latter Will.
3. The Dramatis Personae of the present narrative are as follows:
Om Prakash Maniyar (since deceased)
Narbada Devi (first wife) Chandni (second wife)
Subhash (elder son) Dheeraj (younger son)
4. Five applications were taken up for hearing together, all arising out
the same probate proceeding, that is, PLA No.327 of 2021.
5. GA No. 1 of 2021 is primarily for appointment of Administrator
Pendente Lite (APL), inter alia, also praying for injunction in respect of
thirteen companies allegedly owned and controlled by the deceased
Testator and included in the affidavit of assets and maintenance of
Rs.10 lakh to the petitioner Chandni. Chandni is the petitioner in GA
No.1 of 2021.
6. GA No. 2 of 2021 has been filed by Narbada Devi for
intervention/addition as a party to the probate proceeding.
7. GA No. 3 of 2022, filed by Chandni, the propounder of the 2020 Will,
is for citation to the heirs of the deceased Testator, namely Chandni,
Dheeraj and Subhash.
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8. Chandni has also filed GA No.4 of 2022 for permitting the testimony of
one Shri Suraj Toshniwal, one of the attesting witnesses to the 2020
Will, to be recorded De Bene Esse.
9. Chandni has filed GA No.5 of 2022 seeking injunction restraining
Subhash from withdrawing commissions of Rs.3 crore, Rs.7 crore and
Rs.2 crore from three out of the total companies, shares of which are
part of the affidavit of assets, namely Guwahati Carbon Limited, Neo
Carbon Private Limited and Paradip Calciner Limited respectively.
10. GA No.1 of 2021 and GA No.5 of 2022, having several identical issues,
are being taken up together first for adjudication.
11. The petitioner Chandni argues that the proposed Extraordinary
General Meeting (EGM) contravenes an interim order passed by an
appellate court dated February 14, 2022, confirmed on April 26, 2022,
whereby injunction was granted to the effect that the expenses
incurred by the companies-in-question are not to exceed the
approximate average of loans and advances over the last five years.
12. The appeal was filed in connection with an ad interim order passed in
connection with GA No.1 of 2021.
13. It is submitted by learned counsel for the petitioner that over the last
five years, the total commission paid to Subhash by the companies
was Rs.10 crore. However, after the demise of the Testator, Subhash
has already been paid for the financial year 2021-22 Rs.6 crore each
in Guwahati Carbon Limited and Neo Carbon Private Limited.
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14. In support of GA No.1 of 2021, which is the application for
appointment of APL and for injunction, learned counsel further
submits that Subhash was the Executrix of the 2018 Will sought to be
propounded by Subhash. That apart, he is a beneficiary in both the
Wills of 2018 and 2020. Even in the 2020 Will, in the event of prior
demise of Chandni, Subhash is designated as the sole Executor.
Therefore, Subhash is liable to protect the estate.
15. However, it is contended that Subhash is acting in several capacities,
also being the Director of the companies-in-question, and is siphoning
off funds, thereby becoming liable for devastation of the estate. Placing
reliance on Sections 368 and 369 as well as Section 303 of the Indian
Succession Act, 1925 (for short, "the Succession Act"), learned
counsel submits that Subhash falls within the mischief of the said
provisions.
16. Under the 2018 Will, in case of failure to comply the directions
therein, the title of the assets of Neo Carbon Private Limited, after
discharging bank liabilities, is to be transferred to Chandni. Hence,
even as per the Will propounded by Subhash, Chandni has a direct
interest in the said company.
17. It is submitted that respondent no.1, Subhash, is under a
misconception in arguing that the companies are separate juristic
entities. In appropriate cases, it is submitted, injunction may be
passed against third parties to protect the estate. In this regard,
learned counsel for the petitioner places reliance on Atula Bala Dasi
and others Vs. Nirupama Devi and another, reported at AIR 1951 CAL
561.
18. In view of the above arguments, it is submitted that GA No.5 of 2022
ought to be allowed, thereby restraining Subhash from withdrawing
the commission as indicated therein and keeping the amount already
drawn in a separate account during the pendency of the probate
proceeding.
19. The assets of the Testator include the shares in at least ten out of the
thirteen companies which are valued in excess of Rs.32 crores as per
both sides. Whereas Chandni has valued the shares at a total of Rs.
32.98 crores, Subhash has evaluated the same to be about Rs. 34.16
crores in total.
20. The appointment of APL is necessary to protect the interest of the
estate of the Testator with regard to the shares and the controlling
interest in respect thereof. Siphoning of funds by the respondent
no.1, Subhash, by way of calling EGMs and otherwise depleting the
value of the shares of the Testator, which forms part of the estate,
justify the appointment of APL, it is contended.
21. Subhash Maniyar, with much less shareholding, is in a position to
control the affairs of the companies to effect payment to himself on the
pretext of "commission" by reason of "profitability of the company".
Profits of the company, it is argued, are either to be channelized in the
business of the company or to be distributed among the shareholders
by declaring dividends (which has not been done). In any event, profits
of the company, at least to the extent of the shares of the Testator, are
part of the estate and Subhash cannot be allowed to take away such
profits by way of commission, thereby depleting the estate in breach of
his statutory duties as the Executor of the 2018 Will, propounded by
himself.
22. The defence that the companies are third parties and separate
entities is misconceived, it is argued, and the court, if necessary, will
disregard the corporate veil to find the controlling mind without
stopping to question the probate or necessity of piercing the veil. For
such proposition, learned counsel cites the case rendered in 2008 SCC
OnLine (Cal) 208 [In the Goods of : Kamal Kumar Mitra].
23. The money already taken by Subhash (Rs.6 crore each in Guwahati
Carbon and Neo Carbon) should be kept in a separate account as part
of the estate.
24. Learned counsel for the petitioner next highlights the cross-holding
structure of the various companies.
25. It is submitted, for example, that the Testator had about 24.58%
shares in Guwahati Carbon and, along with that of the petitioner
(8.71%), would have voting rights in respect of more than 33% shares.
Since the rights in respect of the shares of the Testator are the
subject-matter of the pending proceeding, various resolutions are
being passed in the nature of EGMs in the companies including
Guwahati Carbon Limited. A sum of Rs. 9 crore in two tranches has
already been siphoned off on the pretext of 'commission' linked to
profitability of the company.
26. Learned counsel contends that it is well-settled that "controlling
interest" in the companies also forms part of the asset of the Testator
and cites Section 2(27) of the Companies Act, 2013 in that regard.
The deceased Testator absolutely controlled and managed the affairs
of the companies during his lifetime, it is alleged.
27. Apart from Kamal Kumar Mitra (supra), learned counsel also places
reliance on the case of Taxation Services Syndicate Limited, reported at
(2008) 3 CalLT 47 and also the English decision of the Commissioners
of Inland Revenue Vs. B.W. Noble Limited, B.W. Noble Limited Vs. the
Commissioners of Inland Revenue, reported at 12 Tax Cases 911,
where the expression "controlling interest" was defined to the extent
that the said phrase in regard to a company was a reference to the
situation and one "whose shareholding in the company is such that he
is the shareholder who is more powerful than all the other
shareholders put together in general meeting".
28. In Bihar Carbons Private Ltd., the Testator had 7.69% shares and the
petitioner 10.76% shares. Om Prakash HUF held 3.34% shareholding
and Deeraj Maniyar, 11.35%. The annual return of the Company
made on March 31, 2020 which was digitally signed by the deceased
Testator on February 23, 2021 reflected the correct shareholding, it is
contended. The revised annual return signed by the respondents on
June 25, 2021, immediately upon demise of the Testator, reflected
that the entire shareholding of Dheeraj Maniyar was transferred in the
name of the deceased on 27 April, 2019.
29. The respondent no.1 Subhash Maniyar has alleged that Dheeraj
Maniyar executed a notarized bond of gift on April 27, 2019 and
requisite share transfer forms for the purpose of transferring the
shares in favour of the deceased. The alleged signature of Dheeraj in
the deed of gift or share certificate forms were not executed by
Dheeraj, it is submitted, as he was not in India on April, 27, 2019.
Although the respondents have been called upon by the petitioner's
advocate by a letter dated October 28, 2021 to provide inspection of
the original alleged deed of gift, the petitioner and/or her advocate, it
is submitted, have not offered the same.
30. By citing the instances of several companies, it is sought to be argued
by the petitioner that the Testator and the petitioner Chandni had a
combined shareholding sufficient to dominate the affairs of the
company. The revised annual return filed by respondents using the
digital signature of the petitioner on June 26, 2021, during the
mourning period after the demise of Dheeraj, it is argued, reflects that
the shareholding of the petitioner was reduced from 8.62% to 5.62%
and the shareholding of the deceased from 10.96% to 6.96%.
31. Learned counsel for the petitioner counters the allegation of the
respondents that the deceased and the petitioner executed two
separate gift deeds to transfer the shares in favour of Subhash
Maniyar and Rashmi Maniyar respectively and also share transfer
forms to give effect to such transfer. It is contended that the petitioner
and the deceased did not execute any deed of gift and did not sign any
share transfer form as alleged by the respondents. The respondent
has, thus, perpetrated fraud by forging the signatures of the deceased
and the petitioner to justify the alleged transfer.
32. The respondent has alleged that the petitioner executed the deed of
gift to transfer her shareholding in favour of the deceased on April 26,
2019 as well as share transfer form to give effect thereto. However, it
is denied that the petitioner executed any deed of gift and/or signed
any share transfer form as alleged by respondent. The respondent
has perpetrated fraud by forging the signature of the deceased in
respect of the property to justify the alleged transfer.
33. From the aforesaid conduct of the respondent, it is evident that the
estate of the deceased, which also comprises of the control of the
companies that the deceased had exercised during his lifetime, is
being dealt with in a manner which is contrary to the interest of the
beneficiaries under the 2020 Will, for which it is necessary to appoint
an Administrator Pendente Lite, which shall protect and preserve the
estate of the deceased as also exercise all rights over the shareholding
of the deceased and the control that the deceased had in the
companies, including voting rights.
34. In conclusion, it is argued that the petitioner's applications be
allowed.
35. The respondent no.1-Subhash Maniyar opposes GA No.1 of 2021, GA
No.4 of 2022 and GA No.5 of 2022.
36. It is argued that the earlier Will of the same Testator dated January
30, 2018 is the subject-matter of a different proceeding being PLA No.
259 of 2021, which has no nexus with the present probate application
in respect of the 2020 Will. All the arguments of the petitioner are
founded upon the rival Will, which should be excluded altogether in
view of the doctrine of election, since the petitioner, to accept a benefit
under a deed or Will, must adopt the whole contents of that
instrument and to conform to all its provisions and renounce all rights
that are inconsistent with it. Learned counsel cites in this context C.
Bipathumma and others Vs. Velasari Shankaranarayana
Kadambalithaya and others, reported at AIR 1965 SC 241.
37. The next limb of the submission of respondent no.1-Subhash, as
advanced through the learned Senior Advocate appearing on his
behalf, is that the probate application itself is not maintainable
inasmuch as none of the alleged attesting witnesses have made any
declaration regarding attestation of the Will. As per the admission of
the petitioner, both the alleged attesting witnesses are not available or
willing to provide the Will. In this context, the learned Senior
Advocate places reliance on Section 68 of the Evidence Act. The
probate petition itself acknowledges that Suraj Toshniwal has refused
to affirm the requisite affidavit in support of the Will dated August 3,
2020, which Chandni is propounding. In other words, it is contended,
Chandni Maniyar had, at all material times, been fully aware that the
requisite affidavit could not be made available by her for proving the
attestation of the 2020 Will.
38. It is a settled principle of law that until one attesting witness at least
is called for the purpose of proving the execution of a Will, Section 68
to 70 of the Evidence Act mandates that no Will can be used in
evidence at all. No steps whatsoever have been taken by Chandni
Maniyar, although she was fully conscious of the non-availability of
any attesting witness even before filing any probate application. No
steps had been taken to issue any summons or sub poena to adduce
evidence.
39. Once the lacuna in the probate application was pointed out by the
respondent, GA/3/2022 was filed belatedly seeking leave to examine
Suraj Toshniwal, which application itself is misconceived.
40. It is argued further on behalf of respondent no.1 that no prayer for
APL or other interlocutory relief can be granted until and unless the
Will, at least prima facie, is proved to have been executed by the
Testator in accordance with law.
41. The learned Senior Advocate cites the judgments reported at AIR 1939
CAL 688 [Hare Krishna Panigrahi Vs. Jogneswar Ponda] and AIR 1945
CAL 350 [Amal Sankar Sen and another Vs. The Dacca Co-operative
Housing Society Ltd.], where the Division Bench observed that mere
taking out of summons or service of the same upon an attesting
witness or the taking out of a warrant against such witness is not
sufficient; a party must take proper steps to summon an attesting
witness following all the procedures imperatively before he is able to
claim the benefits under Section 71 of the Evidence Act.
42. The facts relating to the life and business of the Testator have been
sought to be placed on behalf of the respondent no.1, in a bid to
explain the roles played by respondent no.1 and respondent no.2 in
the affairs of the company and in the life of the Testator. Chandni has
admitted all the facts of Subhash's involvement in the businesses
during the lifetime of the Testator. The Testator, before his demise,
personally brought in Subhash and inducted him into the business
completely. As such, Subhash was given substantial shareholding
and also became a director in one of the companies on and from 2008
onwards. The record, therefore, manifests that for a period of 21
years Subhash and his father (Testator) administered and controlled
the day-to-day affairs of the company and the Testator reposed full
trust and confidence in Subhash, allowing the latter to conduct all
business ventures.
43. On the other hand, Dheeraj never participated in the business and
had become an Australian citizen. The Testator tried to set up a
business called Neo Zink Private Limited to be managed by Dheeraj
with the support of Subhash. Such venture, however, was a
miserable failure and the company has become defunct.
44. Chandni did not produce any evidence to show that she was the
legally wedded wife of the Testator and/or she took part in the
business affairs of the Testator. Subhash is intrinsically connected
with the business and day-to-day management which is evident from
his personal guarantees worth over Rs. 214 crore to various banks
and/or financial institutions against which the companies obtained
financial assistance. In the event the companies become defunct or
loss making, Subhash Maniyar becomes strictly liable to repay the
loans whereas there is no liability of Chandni or Dheeraj. The
companies have around 250 employees, who are the responsibility of
Subhash and not Chandni or Dheeraj, it is argued.
45. With regard to payment of commission, respondent no.1 submits that
Chandni has alleged that withdrawal of funds against Subhash in the
form of commissions from the companies, thereby depleting the
estate. However, Chandni deliberately suppressed the fact that the
managerial remuneration received by Subhash in the form of
commission is in compliance with the provisions of Section 197 of the
Companies Act, 2013, which stipulates that managerial remuneration
including commission can be taken only from the profits of the
company to the extent of 11%. Hence, the question of depleting the
share value does not arise at all.
46. Grant of commission, it is submitted, is not a subsequent fact. Even
prior to demise of the Testator, it was not the prevalent practice of the
companies that commissions were given to Subhash and the Testator.
A chart in that regard given in GA/5/2022, it is submitted, is
misleading and suppresses that the company used to pay commission
to the Testator as well.
47. Subhash was always paid salary and commission from the companies
and more commission than the Testator even during the lifetime of the
Testator, as Subhash was contributing more to the business than the
Testator.
48. That apart, supplementary affidavits were filed to enlarge the scope of
GA/1/2021, thereby raising new grounds for appointment of APL,
which cannot be permitted as per Bharat Vari Udyog Nigam Limited
Vs. Jesop and Company Ltd. [(2003) 4 Comp LJ 333].
49. The Will dated August 3, 2020, it is argued, has several factual
inconsistencies and contradictions. For example, the Will records that
the Testator was only one of the Directors as well as a shareholder in
the companies enumerated in the Will. The Will mentions thirteen
companies, although the Testator did not have any share in three of
the listed companies. Moreover, the Will declares that both Subhash
(elder son) and Dheeraj (younger son) are entitled to 45% of profits
each to be receivable or earned from the aforesaid companies.
Therefore, the Will does not bequeath any property in praesenti to
either of the sons. Thus, if the companies would earn any profits then
the two sons, at any subsequent point of time, would be entitled to get
dividends, although the Will does not give any personal bequest to
either of the sons.
50. The Will talks about the Testator's unknown properties which are not
specified and addresses assets in general terms. The reference to the
Maniyar Charitable Trust is irrelevant as it is not designated as a
party in the litigation and cannot be so designated because a trust,
per se, is not entitled to sue or be sued in its own name. Properties of
the trust cannot be bequeathed by the Testator as well.
51. The provisions of the Will are intrinsically contradictory, it is
reiterated. The Testator purported to bequeath to his two sons
Subhash and Dheeraj the respective profits to be receivable from the
companies but purported to bequeath 50% to his immovable
properties to each of them, which are not specified.
52. The other alleged discrepancies pertain to Chandni and Dheeraj
having not been made beneficiaries in several respects.
53. It is further contended that the prayer for appointment of APL is
misconceived since no case of necessity has been made out. Change in
circumstances before and after the death of the deceased, any practice
or act detrimental to the estate of the deceased, any activity done by
Subhash which proves that he is obtaining personal benefits from the
estate, any deprivation to Chandni and Dheeraj which was not there
prior to the death of the deceased and the effect of appointment of APL
over the manufacturing and day-to-day activities of the business are
essential facts which were required to be pleaded and proved for grant
of APL but have not been so done.
54. It is evident that the estate of the deceased and the companies were
managed by Subhash during the lifetime of the Testator, which
arrangement is still going on. Subhash alone has guaranteed the
loans to the companies and will be liable to financial institutions if the
affairs of the companies are mismanaged and they run into losses.
However, no detriment to the estate has been alleged except that
commissions are being withdrawn by Subhash, which were also a
practice during the lifetime of the Testator.
55. Hence, it is argued that nothing to justify appointment of APL has
been made out by the petitioner.
56. It is also contended that the business of the companies are carried on
in refineries and factories which requires skill, experience and
business acumen which Chandni and Dheeraj admittedly do not have.
Subhash has been a part of the business admittedly for the last 21
years and as accumulated the necessary skill, experience and
business acumen by working with the deceased and ensuring
successful growth of the companies. It is not expected that the APL
will be able to manage such highly specialized and competitive
industry or take business decisions to ensure that the same runs
profitably.
57. Apart from the above, it is contended by the respondent no.1 that a
sum of Rs.7 lakh has been directed to be paid to Chandni Maniyar for
her general upkeep out of the funds of the estate, vide order dated
October 8, 2021 of the probate court, read with the appellate court's
order dated December 1, 2021. The said order is beyond the scope of
the instant probate application since Chandni is not a beneficiary, nor
is there any provision in the Will sought to be propounded for making
such payment.
58. Even if an APL is appointed, the question of distribution of assets of
the estate does not arise as an APL can only administer and not
distribute the estate. In this regard, reliance is placed on ILR 1947 (2)
Cal 195 (Kali Kumar Chatterji v. Rash Vehari Banerji). Hence, the said
order is liable to be vacated. Moreover, it is argued that the appellate
court's order was ad interim and the trial court was given liberty to
modify and/or vacate the same.
59. Vide order dated September 20, 2022, Subhash was directed not to
receive commissions decided by the companies-in-question in his
favour. It is trite law that companies and/or management of the same
have not been bequeathed by the Will. The companies did not belong
to the Testator; at best he owned the shares lying in his name, which
were admittedly not in the majority.
60. It is contended that the decision of the companies, which are separate
juristic entities, cannot be interfered with by the probate court since it
is beyond the scope of the Will and the probate application.
61. The allegation that the commissions amount to siphoning off assets of
the estate is misconceived. As per Section 196 of the 2013 Act, the
Managing Director is permitted to receive remuneration as per the
decision of the Board of the companies, but not exceeding 11% of the
profits. It is nobody's case that the amounts given to Subhash are in
excess of such limit. The decisions of the companies taken
independently are not subject to scrutiny of the probate court, nor is
the commission a part of the estate of the deceased.
62. Hence, the order dated September 20, 2022 is also liable to be
vacated.
63. The order dated February 14, 2022 is also liable to be vacated, it is
argued, since it was passed by the appellate court directing the
companies to be restrained from carrying on business in more or less
the same manner that it had in the last 5 years. It is submitted that
there was neither any basis nor pleadings to support such order.
Commissions are a part of the expenses of the companies and there is
no evidence that the commissions exceed the expenses of the
companies.
64. In the order itself, it is made clear that the same is liable to be
modified and/or varied by the learned Single Judge. As such, there
will be no impropriety if the same is vacated. In fact, the said order
expired by efflux of time on September 20, 2022.
65. With regard to the property of the companies, it is argued that a
company has a separate juristic entity and owner of its own
properties, including monies lying in its account. The same are not
the personal assets of the Testator.
66. The definition of a Will under Section 2(h) of the Succession Act,
provides that a Testator can bequeathed only "his property" owned at
the time of his death.
67. Learned senior counsel for the respondent no.1 places reliance on
Bacha F. Guzdar, Bombay Vs. Commissioner of Income Tax, Bombay
[AIR 1955 SC 74], where the Supreme Court categorically held that
assets of the companies in which the appellant owned shares were not
her property and dividends were therefore liable to taxed.
68. Counsel also relies on Western Coalfields Limited Vs. Special Area
Development Authority, Korba and another [(1982) 1 SCC 125] which
held that even when the Government owned 100% of shares in a
company, the property of such company could not be said to be
property of the Government and therefore, were liable to be taxed.
69. With regard to a trust, once a settler has created the same, the
trustees become owners and the same cannot be said to be the
property of the original settlor. Hence, the purported directions given
to the trustees in the Will can have no effect in law.
70. Chandni had filed a suit in May, 2022 being CS No.111 of 2022 in
respect of the trust and is seeking to have the same disputes decided
in the probate petition, it is contended.
71. The transfers, regarding which allegations are made, took place during
the lifetime of the Testator. By purporting to take advantage of revised
annual returns filed by the companies in relation to the period when
the Testator was alive, although filed a few days after his death, the
petitioner seeks to label such transactions as illegal. At best they
concern personal rights of Chandni and Dheeraj and the proper place
to ventilate their grievance would be before the domestic forum, that
is, with the company's management or before the NCLT. Section 430
of the 2013 Act bars the jurisdiction of a civil court to adjudicate such
claims, it is argued.
72. The suggestions, it is submitted, as regards corporate veil made by the
petitioner are completely unfounded. No evidence has been given as
to how the Testator was in total control of the companies to justify the
lifting of corporate veil. There were separate shareholders and the
companies were managed by professionals. Subhash himself was
working in these companies, and was a shareholder thereof from 2009
and has been an integral part of the management at all material
times. Subhash has also given personal guarantees for the loans
taken by the companies to the extent of Rs. 214 crore and as such
cannot be said to have nothing to do with the companies.
73. On the other hand, admittedly Dheeraj never took part in the
management and had moved to Australia during the lifetime of his
father, the Testator. Hence, it is argued on behalf of the respondent
no.1 that GA/1/2021 and GA/5/2022 ought to be dismissed.
74. In order to decide GA/1/2021 and GA/5/2022, it is to be noted that
the Will in respect of which the present probate proceeding has been
initiated was executed by Om Prakash Maniyar (since deceased) on
August 3, 2020.
75. The prayers sought primarily in both the applications pertain to
thirteen companies, which were mentioned in the Will.
76. The mention of the said companies first appears in the second page of
the Will to the effect that the Testator was one of the directors as well
as shareholder of the said thirteen companies.
77. However, it has been argued by counsel that inasmuch as the last
three companies mentioned therein are concerned, the Testator was
not a shareholder. Hence, since directorship cannot devolve and/or
be the subject-matter of a Will, the assets of the estate of the deceased
could only pertain to the shareholdings of the Testator in the
remaining ten companies and the incidents thereof. The Testator
bequeathed to his elder son Subhash 45% of the profits to be
receivable and/or earnings from the said companies. A similar
provision was made in respect of the younger son Dheeraj. The
remaining 10% of the profits and/or earnings were to go to the
Maniyar Charitable Trust.
78. However, in a latter part of the Will, the Testator bequeaths 50% of his
immovable properties "including the shares, debenture and movable
assets whatsoever and wheresoever" to Subhash, the elder son and
the remaining 50% of the same to the younger son, Dheeraj.
79. In the event the sons predeceased the Testator, their legal heirs were
also entitled to get the same.
80. Chandni, the wife (second) of the Testator was the sole executrix of the
Will.
81. Read in conjunction, the above provisions clearly indicate that the
shares were given in 50% ratio to each of the two sons of the Testator.
It needs no special mention that shares include their incidents as well
since, as mere papers, the shares are not worth anything.
82. However, the previous portion of the Will, where it is mentioned that
profits were to be shared between the two sons and the Trust named
therein, along with the earnings from the companies, it is doubtful as
to whether the Testator had a right to do so, simply because his only
rights in respect of the companies was through his shareholding in
those, which, admittedly, was more than Rs.32 crore.
83. As such, the asset to be looked into is the corpus of such shares and
the rights incidental thereto, for the purpose of ascertaining the
devolution of 50% to each of the sons.
84. In GA/1/20221, the prayers made pertain to assets and properties of
the Testator "including each of the 13 companies owned and
controlled by the deceased". However, it is well-settled that an
individual shareholder, whatever be the worth of his shares, cannot be
the owner of the assets of a company, the latter being an independent
juristic entity. Hence, the expression "owned" is obviously a
misnomer.
85. Inasmuch as the control of the deceased is concerned, it has been
argued by the petitioner that, by virtue of cross-holdings of the several
companies between each other, the Testator had a controlling interest
in all the companies.
86. First, it would be premature at this juncture to adjudicate the right,
title and interest of the Testator, since the same can only be the
subject-matter of a regular civil suit before a competent court.
Secondly, the 'controlling interest' pleaded on behalf of the petitioners
is not found from the cross-holding structures of the company as
discussed in the chart annexed to CAN 1 of 2021, in particular, pages
56 to 58 thereof.
87. The Testator, by virtue of his individual shareholding, was not the
majority shareholder in any of the companies barring Maniyar
Commercial Services Private Ltd.
88. In the other companies, the petitioner has sought to club the
combined shareholdings of the Testator and the petitioner/executrix
Chandni to plead that they had a majority shareholding. However,
Chandni is not even a legatee as per the 2020 Will and, as such,
cannot keep herself in the same bracket as the Testator to ascertain
the percentage of shares of the Testator. Inasmuch as the exclusive
shareholding of the Testator in the ten companies is concerned, it
cannot be argued that the 'cross-holdings' entitled him to have
controlling interest in any sense of the term in respect of the said
companies.
89. Insofar as directorship is concerned, the same per se does not create
ownership right at all.
90. The other limb of the prayer of the petitioner in GA/1/2021 is that
Chandni is required to be paid a monthly quantum of maintenance to
the tune of Rs.10 lakh.
91. In this regard, the petitioner has placed reliance on the initial ad
interim order passed by the co-ordinate bench which took up the
application, which was subsequently modified by the appellate court
by reducing the monthly maintenance granted to Chandni to Rs.7
lakh.
92. Learned counsel for the petitioner contends that in view of Chandni
having a right to maintenance as per the other Will of 2018, in which
the contesting respondent no.1-Subhash is the executor, Chandni has
the right to get such monthly maintenance from the estate of the
deceased.
93. However, such contention is neither here nor there. This is because of
two reasons. First, the petitioner Chandni is the executrix and
propounder of the 2020 Will and cannot blow hot and cold at the
same time in placing reliance on a different Will executed previously.
94. Secondly, the only endeavour of Chandni, the petitioner, as the
executrix of the 2020 Will, before the probate court could be to have
the same propounded. In the event the 2020 Will gets a probate from
the court, the prior Will of 2018 is rendered academic and does not
have any effect in the eye of law at all. Hence, it is beyond the charter
of Chandni, as the executrix of the 2020 Will, to place reliance on a
stray clause in a different Will executed previously by the same
Testator.
95. Insofar as Chandni's right of maintenance as a widow of the Testator
Om Prakash Maniyar (since deceased) in respect of the estate of the
deceased Testator is concerned, the same is an independent right
which does not arise from the Will-in-question at all. Such right of
Chandni, for whatever it is worth, may at best form the subject-matter
of an independent proceeding for maintenance by Chandni under any
or all the statutes provided for such purpose, but the probate court is
not the proper forum for claiming or deciding the issue of such
maintenance payable by the estate to Chandni. Rather, such claim, if
set up by Chandni from the estate, would be against the estate and
would have the effect of devaluing the estate, which is contradictory, if
not mutually exclusive, with Chandni's role as an executrix and
propounder of the 2020 Will.
96. Hence, the interim reliefs sought in GA/1/2021, either regarding the
functioning of the companies and/or the devaluation of their assets,
as well as the maintenance claim of Chandni, cannot be accepted at
all.
97. GA/5/2022, on the other hand, seeks an injunction restraining the
companies from paying commission of Subhash, the respondent no.1
in the probate proceeding.
98. It is argued by the petitioner that Subhash has already been paid Rs.3
crore, Rs.7 crore and Rs. 2 crore as commission in respect of three of
the companies being the Guwahati Carbon Limited, Neo Carbons Pvt.
Ltd. and Paradip Calciner Ltd.
99. Two-fold arguments have advanced in respect of such payments. One
is that such payments were in contravention of the order of the
Division Bench, in which the ad interim order initially passed by the
learned single judge has merged.
100. The second limb of argument is that such payment of commissions
will deplete the assets of the company and its funds, thereby adversely
affecting the interest of the estate of the Testator.
101. Examining the first question first, it is clearly seen from the order of
the Division Bench Dated April 26, 2022, passed in APO no.23 of
2022 and APO No.24 of 2022, that the parties were granted leave to
file affidavits before the trial court. The interim order granted by the
appellate court was to continue till May 18, 2022 "subject to vacation,
modification or extension that may be directed by the learned Single
Judge on appreciation of the case of the parties". It was also
observed that all points were kept open before the learned trial court.
102. In view of such specific observations, it is seen that the Division
Bench itself subjected its order to modification and/or even vacation
by the Single Judge. Moreover, all points were kept open for being
urged before the Trial Court, that is, the present Court.
103. Hence, the violation of the said orders, by itself, cannot vitiate the
payment of commission to the respondent no.1 Subhash.
104. As regards the second argument, detailed submissions have been
made by learned counsel for the parties on the scope and applicability
of the concept of 'commission' vis-à-vis the Companies Act, 2013.
105. Although it has been argued by the petitioner that the said payment of
commission to Subhash would be without any fetter, if permitted, and
not even subject to any restrictions imposed by the Companies Act, it
is clearly seen from the annexures to the affidavits of the pleadings of
parties that in case of each of the said payments, a resolution was
taken by the companies concerned, specifically to stipulate that the
payment was being made under Section 197 of the Companies Act,
2013.
106. Section 197(1), along with its provisos, acquire much relevance in the
context. The same reads as follows:
"197. Overall maximum managerial remuneration and managerial
remuneration in case of absence or inadequacy of profits.--(1) The total
managerial remuneration payable by a public company, to its directors,
including managing director and whole-time director, and its manager in
respect of any financial year shall not exceed eleven per cent of the net profits
of that company for that financial year computed in the manner laid down in
Section 198 except that the remuneration of the directors shall not be deducted
from the gross profits:
Provided that the company in general meeting may, authorise the
payment of remuneration exceeding eleven per cent of the net profits of the
company, subject to the provisions of Schedule V:
Provided further that, except with the approval of the company in
general meeting by a special resolution,--
(i) the remuneration payable to any one managing director; or whole-time
director or manager shall not exceed five per cent of the net profits of
the company and if there is more than one such director remuneration
shall not exceed ten per cent of the net profits to all such directors and
manager taken together;
(ii) the remuneration payable to directors who are neither managing
directors nor whole-time directors shall not exceed,--
(A) one per cent of the net profits of the company, if there is a
managing or whole-time director or manager;
(B) three per cent of the net profits in any other case.
Provided also that, where the company has defaulted in payment of
dues to any bank or public financial institution or non-convertible debenture
holders or any other secured creditor, the prior approval of the bank or public
financial institution concerned or the non-convertible debenture holders or
other secured creditor, as the case may, shall be obtained by the company
before obtaining the approval in the general meeting."
107. It is clearly seen that sub-section (1) restricts the total managerial
remuneration payable by a public company to its directors, which
includes managing director and whole-time director and its manager,
to 11% of the net profits of the company in respect of any financial
year.
108. It has been clarified further that the procedure laid down in Section
198 shall be applied for computation, except that the remuneration of
the directors shall not be deducted from the gross profits.
109. The last proviso of sub-section (1) also stipulates that where the
company has defaulted in payment of dues to any bank or public
financial institution etc., the prior approval of the bank or public
financial institution etc, as the case may be, shall have to be obtained
by the company before obtaining the approval for such payment in the
general meeting.
110. In such view of the matter, it cannot be said that the payments made
to any of the directors, including Subhash, by the respective
companies, are unfettered and unbridled.
111. As rightly argued by learned senior counsel for respondent no.1, sub-
section (14) of the 197 of the 2013 Act refers to the term "commission"
while speaking about the receipts by the directors, although in a
passing manner. Hence, it is rightly submitted that the expression
'commission' is not alien to the statute itself, apart from being a
common practice in commercial activities.
112. Inasmuch as the payment of the petitioner for the previous years is
concerned, since the restriction of Section 197 of the 2013 Act is, in
any event, applicable, the court, using its own wisdom, need not put
in further restrictions to the same. Such unwarranted intrusion by the
court may tantamount to undue interference with the independent
functioning of the companies, which are juristic persons in their own
right.
113. Although the petitioner has strongly contended that recent payments
of commission to Subhash by the companies were exorbitant and
disproportionately large compared to previous payments made to him,
it is seen from the chart provided by the respondent no.1 in its
affidavit-in-opposition that the difference between such payments of
previous year and the present year is not so demonstrably high which
would give rise to the conclusion that respondent no.1 has been
"siphoning off" the funds of the companies.
114. In any event, the link between the funds of the companies and its
assets on the one hand and the profits earned by the company and
the value of its shares on the other is remote. It is well-settled, as
held in Bacha F. Guzdar, Bombay (supra), that the shareholder has no
right, title and interest in the assets of a company.
115. The argument that the payment of remuneration to directors would
lead to depletion of the income of the shareholder is convoluted and
far-fetched, since the nexus between the two is remote.
116. Hence, the said argument cannot be a basis of restraining the
companies from paying any remuneration within the contemplation of
the Companies Act, 2013 to any of its directors, including Subhash,
who is primarily in charge of the business of the companies.
117. Subhash, as evident from the pleadings and records, has been
conducting the business along with the Testator O. P. Maniyar (since
deceased) at all material times and for several years (if not decades)
and has been enjoying payment of commissions on previous occasions
as well. Moreover, he has given personal guarantees worth much for
the benefit of the companies. Thus, the payment of commission by
way of convening extraordinary General Meeting to Subhash cannot
be said to be entirely unjustified for the court to interfere in such
internal and regular affairs of the companies.
118. Although the petitioner is right in arguing that the probate court, in
certain instances, can grant injunctions against third parties as well
in order to protect the estate of the deceased, this is not a fit case for
exercise of such discretion by the probate court and, as such, the
prayer made for restraint of payment of commission by the companies
to Subhash cannot be allowed.
119. No case of appointment of Administrator Pendente Lite has also been
made out, since the petitioner has failed to substantiate in any
manner that Subhash Maniyar is misappropriating the estate of the
Testator. Rather, as revealed by the above discussions, Subhash is at
the helm of the companies' business and has been in its charge
through thick and thin, even during the life-time of Om Prakash
Maniyar, the deceased Testator. Hence, there is no reason for
replacing Subhash by a court-appointed Administrator Pendente Lite.
120. Learned counsel for the petitioner, in support of the petitioner's prayer
for appointment of Administrator Pendente Lite (APL) and injunction,
cites a co-ordinate bench judgment of this Court reported at (2008) 3
CHN 384 (In the Goods of : Kamal Kumar Mitra). In the said judgment,
the learned Single Judge held that the concept of a company and the
jurisprudence that follows it was alien in the Indian context. The
sanctity of the structure attached to a corporate entity in English Law
may not always be applicable in the Indian context. As much as
companies have been set up in India to carry any business venture,
the corporate façade has been put up time and again to shield the
humans behind it. Corporate jurisprudence is no longer in its initial
stage for it to be regarded as a bride for the veil to be removed. Courts
are more prone than ever before to disregard the veil and go straight
at the controlling mind without stopping to question the propriety or
necessity of piercing the veil.
121. However, as discussed above, in the present case, no such
justification has been made out by the petitioner to pierce the
corporate veil, since no controlling mind of the Testator in the
companies is prima facie evident from the pleadings and materials on
record. As such, the said ratio does not help the petitioner much in
the present case.
122. Learned counsel then cites Atula Bala Dasi and others Vs. Nirupama
Devi and another, reported at AIR 1951 CAL 561, wherein a Division
Bench of this Court held that powers of the probate court are wide
enough to issue temporary orders restraining other persons from
interfering with the properties which are the subject-matter of
testamentary disposition. It was also held that powers of the probate
court for the protection of the property, which is the subject-matter of
a testamentary disposition, are now regulated by specific provisions
contained in the Indian Succession Act. Section 247 of that Act
authorises the probate court to appoint an Administrator Pendente
Lite till an executor or an administrator is appointed in the usual
course. Such an Administrator Pendente Lite, it was observed, has all
the rights and powers of a general administrator other than the right
of the distribution of the estate.
123. However, the said judgment is not applicable in terms of ratio to the
present case. Although the powers of an Administrator Pendente Lite
were delineated therein, it was also observed that a probate court
would appoint an Administrator Pendente Lite in all cases where the
necessity of the appointment is made out. In the present case, no
such necessity having been made out, the powers of an Administrator
Pendente Lite are rendered academic.
124. Learned counsel for the petitioner, on the issue of controlling interest,
cites B.W. Noble, Limited Vs. The Commissioners of Inland Revenue, a
King's Bench Division Judgment.
125. Rowlatt, J., held therein, as long back as in November, 1926, that
"controlling interest" is a phrase that has a certain well-known
meaning; it means the man whose shareholding in the company is
such that he is the shareholder who is more powerful than all the
other shareholders put together in General Meeting. In the present
case, however, no such case has been made out with regard to the
Testator vis-à-vis the companies.
126. Learned senior counsel for the respondent no.1 also cites Bacha F.
Guzdar, Bombay Vs. Commissioner of Income Tax, Bombay [AIR 1955
SC 74] in support of the proposition that true position of a
shareholding is that on buying shares an investor becomes entitled to
participate in the profits of the company in which he holds the shares
if and when the company declares, subject to the Articles of
Association, that the profits or any portion thereof should be
distributed by way of dividends among the shareholders. He has a
further right to participate in the assets of the company which would
be left over after winding up but not in the assets as a whole. It was
further observed that it was not possible for the special bench (5-
Judge) to accept the contention that the shareholder acquires any
interest in the assets of the company. Such proposition is squarely
applicable in the present case for the prima facie determination of the
extent of the estate of the deceased Testator. At least, in the present
case, it is observed that since the Testator did not have any interest in
the assets of the company, the allegation of depletion of the
companies' funds by Subhash cannot be justified on the ground that
the Testator had interest in the assets of the company.
127. Learned senior counsel next relies upon a single bench judgment in
Kali Kumar Chatterjee Vs. Rash Vehari Banerjee, reported in (1947) ILR
(CAL). In the said judgment, it was held, inter alia¸ that the court
cannot, without the consent of all parties interested in the estate,
make any order for payment of maintenance or even 'Sopindokoron
Shradhho' expenses, such expenses would amount to distribution pro
tanto of the estate which is forbidden by Section 247 of the
Succession Act. By applying the same ratio, the maintenance claim of
Chandni in the present case cannot but be turned down.
128. Learned senior counsel for the respondent no.1also places reliance on
the West Bengal Housing Board Vs. Promila Sanfui and others,
reported at (2016) 1 SCC 743. In the said judgment, it was observed
that temporary injunction against a non-party cannot be passed.
129. However, the context of the same was a partition suit, which would
have culminated in a judgment in personam, unlike the present case,
where the probate court's judgment would operate in rem. Moreover,
it is now well-settled that a probate court, in order to protect the
estate of the deceased, which is the subject matter of the Will, has the
power to grant injunctions even against third parties. Hence, the said
proposition is not applicable to the present probate proceeding.
130. The respondent no.1 also cites Ramchandra Ganpatrao Hande Vs.
Vithalrao Hande, reported at AIR 2011 Bom 136, where a Division
Bench of the Bombay High Court held that the probate court is only
concerned with the question as to whether the Will of the deceased is
genuine and that it has been made voluntarily. It cannot grant
interim relief in respect of the property which forms part of the estate
of the deceased prior to the grant of probate. It was observed that the
probate court is not concerned with questions relating to the property
itself.
131. The court observed that the jurisdiction of the probate court is limited
insofar as the court determines only upon the genuineness and due
execution of the Will, disputes of title are alien to probate proceedings.
While the said proposition is otherwise correct in law, the said
judgment was not rendered in the context of an application for
appointment of APL under Section 247 of the Succession Act. In the
present case, as opposed to the Bombay Judgment, the question is as
to whether the probate court, while considering an application under
Section 247 of the Succession Act, can consider the issue of
appointment of an APL to protect the interest of the estate of the
deceased.
132. For such purpose, it has been held time and again that injunctions
can even be granted against third parties, although there would not be
any conclusive determination of right, title and interest by the probate
court.
133. In Pasupati Nath Das (dead) Vs. Chanchal Kumar Das (dead) rep. by
legal representatives and others, reported at (2018) 18 SCC 547, also
cited by the respondent no.1, the same principle was reiterated to the
extent that the probate court does not decide the question of title. In
the present case, however, the question of title has not fallen for
determination before the probate court. However, for the purpose of
considering appointment of APL and protection of the property of the
estate, the probate court can very well enter prima facie into the
question of the extent of such estate, even without deciding
conclusively the title to the property.
134. Moreover, the entitlement of the Testator to the shares is an admitted
position. As such, the present proceeding does not require an
adjudication of title as such.
135. Learned senior counsel also cites C. Beepathumma and others Vs.
Velasari Shankaranarayana Kadamboliathaya and others, reported at
AIR 1965 SC 241, where the doctrine of election was iterated and it
was held that it is well-settled, as expressed in the classic words of
Maitland, that he who accepts a benefit under a deed or Will or other
instrument must adopt the whole contents of that instrument, must
conform to all its provisions and renounce all rights that are
inconsistent with it. The said principle is, of course, applicable in the
present case inasmuch as the petitioner, while propounding the 2020
Will of the Testator, has to take it as a whole. Also, the petitioner
ought not to be permitted to rely on some stray provisions of the 2018
Will in isolation of others; in such event, the petitioner has to accept
the said Will in its entirety.
136. In the Bombay High Court judgment of Pandurang Shamrao
Laud and others Vs. Dwarkadas Kalliandas and others, reported at
AIR 1933 Bom 342, the learned Single Judge observed that when
executors propounding a Will take a large and appreciable benefit
thereunder, the court treats the Will with suspicion of more or less
weight according to the facts of each case, and the onus lies on such
an executor to prove to the satisfaction of the court that the Testator
understood what he did and that it was his Will, and no probate can
issue unless the conscience of the Court is satisfied that the person
propounding the will has led sufficient evidence which, on a close and
careful examination, entirely removes that suspicion. It was also held
that it is a general principle, though not an absolute rule of law, not to
put a litigating party in position by granting administration pending
the suit unless by consent of all parties. Such consent is absent in
the present case. Moreover, no case of appointment of an APL has
been made out by the petitioner.
137. Learned senior counsel for the respondent no.1 next relies on
Rajendra Singh Lodha Vs. Ajay Kumar Newar and others, reported at
(2007) ILR 2 Cal 377. The said case elaborately dealt with the powers
of a probate court. The Division Bench held therein that the probate
court, without giving notice to shareholders in the probate
proceedings, has no power to appoint APL over the concerned block of
shares, since the court had not been able to find out any document
which would suggest or could act in favour of such appointment on
the controlling block of shares. In the present case as well, the
propounder having failed to prove prima facie that any controlling
block of shares was commanded by the Testator, the appointment of
APL is unnecessary.
138. The respondent no.1 has cited several judgments rendered in
the Birla Vs. Lodha dispute on similar propositions, which need not be
dealt with elaborately. The crux of the ratio of the said judgments has
already been discussed above and dealt with. As such, discussion on
the same would merely lead to unnecessary repetition.
139. In Krishna Kumar Birla Vs. Rajendra Singh Lodha and others,
reported at (2008) 4 SCC 300, it may be mentioned, it was held that a
reversioner or agnate or family member can maintain a caveat in a
probate proceeding only when there is a possibility of his inheritance
of the estate in case probate is not granted.
140. In the present case, since the applicant in GA/2/2021 has not
been able to prove any rights to the estate of the deceased by way of
succession and/or inheritance, the said principle is squarely
applicable.
141. Accordingly, GA/1/2021 and GA/5/2022 are hereby dismissed on
contest without any order as to costs.
In Re: GA/2/2021
142. By GA/2/2021, Narbada Devi, the first wife of the deceased Testator,
has sought to intervene in the probate proceedings, in the alternate to
be added as a party to the proceedings being PLA No.327 of 2021 [In
the goods of: Om Prakash Maniyar (Deced)].
143. The petitioner in the probate proceeding has, by way of a
supplementary affidavit, brought on record photocopies of the certified
copy of an ex parte order and decree passed by the Sixth Court of
Additional District Judge at Alipore in Matrimonial Suit No.21 of 1978
(previously Matrimonial Suit No.778 of 1997). Narbada Devi, the then
wife of the Testator Om Prakash Maniyar, was the respondent therein.
144. Learned counsel for the petitioner, upon the query of Court, has also
produced the original of the said certified copies for perusal of the
court which were found to be prima facie in order, although not
proved in evidence as yet in due process of law, since deposition has
not yet commenced in connection with the main probate proceeding
and it would be premature to take such evidence at this juncture.
145. However, for the limited purpose of adjudicating GA/2/2021, I am
satisfied that the certified copy produced raises sufficient presumption
of correctness of the adjudication that the Testator had obtained,
during his lifetime, an ex parte decree of divorce against the applicant
in GA/2/2021, that is, Narbada Devi.
146. Section 41 of the Indian Evidence Act, 1872 provides, inter alia, that a
final judgment, order or decree of a competent court, in the exercise of
matrimonial jurisdiction, which confers upon or takes away from any
person any legal character, or which declares any person to be
entitled to any such character not as against any specified person but
absolutely, is relevant when the existence of any such legal character
is relevant.
147. Such judgment, order or decree is, according to the said Section,
conclusive proof of any legal character which it confers on or takes
away from a person. It is well-settled that a decree of divorce, by
operation of Section 41 of the Evidence Act, operates as a judgment in
rem and is conclusive as against the whole world, let along the parties
thereto.
148. The applicant Narbada Devi has harped on the said decree being ex
parte in character. However, neither Section 41 of the Evidence Act
nor Section 2 of the Code of Civil Procedure, 1908, which defines a
'decree', distinguishes between an ex parte and a contested decree,
inasmuch as the binding effect of a decree is concerned. Hence, an ex
parte decree is as binding on the parties (probably more so, in case of
judgment in rem against the whole world) as a contested decree.
149. The presumption of correctness attached to the certified copy of a
decree has not been rebutted in the present case, more so since the
decree is also otherwise in form.
150. The other argument advanced by the applicant Narbada Devi is that
no summons of the matrimonial suit was served on Narbada, the
defendant. Learned senior counsel appearing for the applicant
stresses that, elsewhere, it is found that Narbada used to reside with
the Testator, whereas her native place address has been given in the
decree.
151. However, per se the said fact does not render the decree void.
152. Although it has been argued on behalf of Narbada that proper service
of summons on the defendant was not recorded in the ex parte
judgment or decree, there is no requirement under any of the
provisions of the Code of Civil Procedure and/or the matrimonial laws
to necessitate such a recording in the ex parte final decree itself.
153. In fact, it is the established practice in District Courts of West Bengal
that the summons is served prior to a suit being fixed for final
hearing. As such, the court's satisfaction as regards service is almost
always recorded not in the final decree but in some previous order,
passed prior to the suit reaching the peremptory board, subject to
which only the suit is taken up for final hearing.
154. In the present case, nothing has been produced by the applicant
Narbada in GA/2/2021 to dispel the presumption attached to judicial
acts as per Section 114 of the Evidence Act.
155. Even apart from the above considerations, the probate court cannot
sit in judgment over a divorce decree passed long back by a competent
civil court, which has attained finality upon efflux of the appeal
period.
156. Although the applicant Narbada submits that she has filed an
application under Order IX Rule 13 of the Code of Civil Procedure for
recall of the ex parte decree, the mere filing of the same does not take
away the validity of the ex parte matrimonial decree, more so, much
after the demise of the plaintiff therein.
157. Inasmuch as the production of the certified copy of the divorce decree
for the first time before this Court is concerned, there was no earlier
occasion for the petitioner Chandni to do so, since it is only the
application filed by Narbada for intervention which required the
petitioner Chandni to disclose such document in defence.
158. Learned counsel for the applicant Narbada has also attempted to hint
that the marriage of Narbada is admitted by Chandni by way of
pleading that the same was subsequently severed by divorce.
However, it is another well-settled proposition of law that an
admission has to be taken as a whole and not any part of it in
isolation of the others. It cannot, by any stretch of imagination, be
said that Chandni admits the marriage between her husband and
Narbada, overlooking the divorce decree and the pleading in support
thereof by Chandni.
159. On behalf of Narbada, an argument has been made that even the
slightest interest entitles a person to have caveatable interest in the
estate of the deceased. In support of such argument, the decision in
Krishna Kumar Birla v. Rajendra Singh Lodha and others, reported at
(2008) 4 SCC 300, is cited. It was held there that a reversioner or
agnate or family member can maintain a caveat in a probate
proceeding only when there is a possibility of his inheritance of the
estate in case probate is not granted.
160. Although the ratio laid down in the said judgment is by now well-
settled, the present case cannot be over-simplified by laying stress on
the term "slightest", in isolation from the term "interest".
161. The proximity or amount of interest of a person may be qualified by
the adjective 'slightest', but the intervener claiming caveatable interest
has to have an 'interest' in the property in the first place.
162. In the present case, the only claim staked by Narbada is on the basis
of her alleged matrimonial relationship with the Testator. Either such
relationship prima facie exists, in which case Narbada has an interest,
or the relationship does not exist, upon which Narbada has no
interest whatsoever. There cannot be any mid-way point between such
"yes" and "no" to accommodate the term "slightest" to qualify the
"interest".
163. In view of the ex parte divorce decree, which has the full force of law
behind it, having been obtained by the Testator from a competent civil
court prior to his demise, Narbada does not have any interest in the
present case at all. The divorce decree severs the only link between
Narbada and the Testator which could have entitled Narbada to claim
even the slightest interest in the property. Since it is prima facie clear
from the certified copy of the divorce decree that at the relevant
juncture, that is, at the time of demise of the Testator and/or
execution of the Will, Narbada was no longer a spouse of the Testator,
she does not have even the slightest interest in the property.
164. A word of caution must be inserted here. The present enquiry is
entirely for the purpose of ascertaining whether Narbada has a
caveatable interest for the purpose of intervention and/or addition as
a party to the probate proceeding. The observations made herein
cannot, in any manner, pre-decide the fate of the pending proceeding,
if any, under Order IX Rule 13 of the Code of Civil Procedure at the
instance of Narbada. However, as of now, I am of the opinion that the
attending circumstances clearly negate Narbada having even the
slightest interest in the estate of the deceased to entitle her to be
impleaded in the probate proceeding.
165. Hence, GA/2/2021 is also dismissed on contest without any order
as to costs.
In Re: GA/4/2022
166. GA/4/2022 has been filed by Chandni Maniyar, the propounder of the
2020 Will, praying for the examination of Suraj Toshniwal, one of the
attesting witnesses of the Will, de bene esse.
167. In legal parlance, when evidence is taken de bene esse, the same is
provisionally taken, for the time being and subject to objection being
taken later, for whatever it is worth.
168. The provision nearest to the concept of de bene esse in the Code of
Civil Procedure is Order XVIII Rule 16 of the Code. The same deals
with the power of court to examine a witness immediately. Sub-rule
(1) thereof provides that where a witness is about to leave the
jurisdiction of the court, or other sufficient cause is shown to the
satisfaction of the court why his evidence should be taken
immediately, the court may, upon the application of any party or of
the witness, at any time after the institution of the suit, take the
evidence of such witness in the manner as provided in the previous
provisions of the Code.
169. In the present case, no case of the witness of the Suraj Toshniwal
leaving the jurisdiction of the court has been made out or even
pleaded.
170. The only remaining question is whether "other sufficient cause" is
shown to the satisfaction of this Court why his evidence should be
taken immediately.
171. The premise of the petitioner's argument in that regard is that the
other attesting witness has expired and Suraj is the only attesting
witness who can be called upon to give evidence to prove the Will.
172. An objection has been taken by the respondent no.1 to the
maintainability of the probate proceeding in the absence of any
affidavit in support of the Will having been filed by any of the attesting
witnesses, including Suraj. It is contended by respondent no.1 that
non-filing of such affidavit vitiates the probate application and all
connected application.
173. Such objection has been taken as one of the premises by the
petitioner Chandni for claiming de bene esse evidence of Suraj. It is
submitted that since such an objection has been taken, it has become
incumbent upon the propounder/petitioner to call the only alive
attesting witness as witness in order to discharge her onus.
174. It is further argued by the petitioner that Suraj Toshniwal has refused
to affirm an affidavit in support of the probate proceeding and, as
such, the petitioner legitimately apprehends that he will abstain from
giving evidence as well.
175. Learned counsel for the petitioner elaborately places the relevant
provisions of the Code of Civil Procedure to argue that unless the
petitioner is called upon to adduce evidence, even in the event of his
refusal, the subsequent steps as stipulated in the Code of Civil
Procedure to compel his attendance, for the plaintiff to show her bona
fides and discharge her burden, cannot be initiated.
176. Such endeavour on the part of the petitioner is apparently sought to
be used as a defence against the objection taken by the respondent
no.1 to the maintainability of the probate proceeding.
177. However, there is nothing on record to indicate that the court would
be additionally aided in any manner in adjudication of the probate
proceeding if the evidence of Suraj Toshniwal is taken immediately on
a provisional basis.
178. Suraj Toshniwal does not qualify, either on ground of health or age or
in apprehension of his leaving the jurisdiction of the court, for being
called early and expeditiously to adduce evidence.
179. Mere espousal of the cause of the propounder to discharge her burden
in order to compensate for non-filing of affidavit by any of the attesting
witnesses is not sufficient ground to issue an order of examination de
bene esse.
180. I do not find any "sufficient cause" within the ambit of Rule XVI of
Order 18 which could justify the satisfaction of the court as to why his
evidence should be taken immediately.
181. It would not make a material difference to the interest of the
propounder's case in the event Suraj's evidence is taken early and
provisionally. Either way, since Suraj has admittedly refused to
support the case of the propounder, there is no reason why expediting
his evidence would help the cause of the propounder. Rather,
delaying his evidence might arguably occasion a change of mind-set
on the part of the Suraj, which could enure in favour of the petitioner.
However, immediacy in his examination cannot benefit the petitioner
and/or the interest of justice in any manner.
182. Insofar as the alleged laches of the petitioner in furnishing affidavits
by any of the attesting witnesses is concerned, the same does not take
away the prima facie presumption of correctness of the Will of 2020.
Even without offering any advice to the parties, there is scope of
proving documents which are required mandatorily to be attested, in
the absence of attesting witness, by other modes, subject to
satisfaction of the Court in that regard. However, such stage would
come only at the time of adducing evidence in connection with the
probate proceeding itself and not at this premature stage of
adjudicating the interlocutory applications in connection therewith.
183. Although the learned Single Judge of this Court in Namita Ghosh and
another Vs. Piyali Adhikari (nee Banerjee) and another, reported at
2017 SCC OnLine Cal 15682, has observed in the passing that it is an
everyday practice in a suit court for evidence to be received de bene
esse whether at the request of a plaintiff or a defendant and such
requests are looked into by the court rather charitably, with utmost
respect, in a proceeding in the nature of a suit including a contentious
probate proceeding, the provisions of Order XVIII Rule 16 of the Code
of Civil Procedure are required to be satisfied. That apart, a de bene
esse order can only be issued in the event sufficient justification for
the same is made out. In the reported case, there was apprehension
that the petitioner, who is aged, might lose her mind or health before
her oral evidence is recorded, which is entirely absent in the present
case, inasmuch as the GA/4/2022 is concerned.
184. Suraj Toshniwal, whose evidence has been sought to be taken de bene
esse, is neither of advanced age nor debilitated by any ailment.
Hence, the question of issuing such an order does not arise at all.
185. The respondent no.1 next relies on the Division Bench rendered in AIR
1945 Cal 350 [Amal Shankar Sen and another Vs The Dacca Co-
Operative Housing Society Ltd.]. In the said case, by quoting another
Division Bench judgment rendered by Mukherji, J., in Gobinda
Chandra Pal Vs. Pulin Vehari Banerjee, the court held that the mere
fact that only the surviving attesting witness is considered hostile to
the party does not relieve him from the duty of examining him as a
witness.
186. In the said case, it was held that it is only when the witness does not
appear even after all the processes under Order XVI Rule 10, which
the court considered to be fit and proper, had been exhausted that the
foundation will be laid for the application of Section 69 of the Indian
Evidence Act.
187. However, the said judgment does not apply in terms in the present
case, since the stage of adduction of evidence has not yet arrived.
188. The learned Senior Advocate appearing for the respondent no.1 also
cites Hare Krishna Panigrahi Vs. Jogneswar Ponda, reported at 43
CWN 1025. In the said judgment, the Division Bench of this Court
held that in other to let in other evidence of attestation under Section
71 of the Evidence Act, it is not sufficient to cite one of the attesting
witnesses and get summonses served upon him. Where there are
attesting witnesses capable of being produced, all means of compelling
their attendance must be exhausted. However, the said stage has not
come yet in the case at hand.
189. Learned senior counsel for the respondent no.1 cites Lakshmibai
(dead) through LRS. and another Vs. Bhagwantbuva (dead) through
LRs. and others, reported at (2013) 4 SCC 97, where it was held that
the appellate courts adopted a rather unusual course in drawing
adverse inference on the basis of the non-examination of the
appellant/plaintiff observing that considering her old age, she should
have taken recourse to the procedure prescribed under Order XVIII
Rule 16 of the Code of Civil Procedure which lays down that where a
witness is about to leave the jurisdiction of the court or where some
sufficient cause is shown to the court owing to which it would be
prudent for it to ensure that his evidence is taken immediately, the
court may, upon the application of the party or of the witness at any
time after the institution of suit, take the evidence of such
witness/party in the manner provided therein.
190. The court went on to observe that the appellant was just above 70
years of age and hale and hearty. She was not suffering from any
serious ailment, for example Cancer, nor had been on her death-bed.
Thus, there was no occasion for her to file an application under Order
XVIII Rule 16, CPC which provides for taking evidence de bene esse
for recording the statement prior to the commencement of the trial.
Mere apprehension of death of a witness cannot be a sufficient cause
for immediate examination of a witness. Apprehension of death, it
was held, applies to each and every witness, he or she, young or old,
as nobody knows what will happen at the next moment. More so, it is
the discretion of the court to come to a conclusion as to whether there
is a sufficient cause or not to examine the witness immediately.
191. Hence, the Supreme Court was of the opinion that even if the plaintiff
had moved such an application, the trial court could not have allowed
it after considering the aforesaid facts.
192. The ratio laid down in the above judgment is apt in the present case.
Here, as opposed to the appellant in the reported judgment, who was
70 years of age, the proposed witness is much younger and there
could not be any apprehension of death to justify, ipso facto, the
examination of the said witness de bene esse.
193. The respondent no.1 next cites an unreported judgment of this Court
dated August 14, 2009 rendered in Smt. Binota Mitra Vs. Ms. Tanisha
Mitra and another. In the said case, a similar application was allowed
keeping in view the age and ailments of the proposed witness as borne
out by the medical certificate produced in the trial court. However, it
was held that such power of the court is not unfettered, but qualified
by the circumstances of each case. In the present case, it is rightly
contended, the said circumstances do not apply at all.
194. Thus, there is no scope of granting the prayer of de bene esse.
Accordingly, GA/4/2022 is also dismissed without any order as to
costs.
In Re: GA/3/2022
195. The present application is for issuance of citation on the heirs of the
Testator.
196. Under normal circumstances, issuance of citation in a probate
proceeding is directed almost as a matter of course, unless there is
any specific reason not to do so.
197. In the present case, in view of the pendency of GA/2/2021 at the
instance of Narbada, the adjudication of the present application was
postponed, since the question, as to whether citation was also to be
effected on the said Narbada, was required to be considered.
198. However, in view of the dismissal of GA/2/2021, there is no scope of
issuance of any notice on anybody else than Chandni, Dheeraj and
Subhash, the wife and the two sons of the deceased Testator Om
Prakash Maniyar.
199. Accordingly, GA/3/2022 is allowed, thereby directing citations to be
issued duly on the persons named as heirs of the Testator in
GA/3/2022, namely Chandni Maniyar, Dheeraj Maniyar and Subhash
Maniyar. Necessary consequential steps shall be taken accordingly by
the concerned department of this Court, subject to compliance of due
formalities by the propounder, if any.
200. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
