Calcutta High Court
Executor/ vs The Cash Withdrawal Was Made By Her In on 3 October, 2024
IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
GA No. 3 of 2020 (Old No: GA 442 of 2020)
With
GA No. 6 of 2022
With
GA No. 7 of 2022
With
GA No. 8 of 2023
With
GA No. 9 of 2023
In
PLA No. 276 of 2017
IN THE GOODS OF :
P. K. DUTTA @ PRADYOT KUMAR DUTTA (DECEASED)
Mr. Jishnu Chowdhury, Adv.
Mr. Bhaskar Ghosh, Adv.
Mr. Subrata Mukhopadhyay, Adv.
Mr. Bhaskar Ghosh, Adv.
2
Ms. Riddhi Ghosh, Adv.
.....for the Executrix
Mr. Souradipta Banerjee, Adv.
Mr. Anirban Kar, Adv.
Ms. Fatima Hassan, Adv.
Mr. P.K. Shie, Adv.
Mr. Munshi Ashiq Elahi, Adv.
Ms. Snigdha Das, Adv.
.....for the Beneficiary
Hearing Concluded On : 12.09.2024
Judgment on : 03.10.2024
Krishna Rao, J.:
1. The Executrix has filed an application being G.A. No. 3 of 2020 for
amendment of the Affidavit of Assets. The Executrix has filed another
application being G.A. No. 6 of 2022 praying for time to complete the
Administration of the Estate.
2. The Beneficiary has filed an application being G.A. No. 7 of 2022 for
appointment of the Special Officer specialized in auditing accounts to
examine and provide an accurate audit and statement of accounts
along with other prayers including the prayer for a direction upon the
Executrix to complete the distribution of the two properties by way of
Deed.
3. The Executrix has filed an application being G.A. No. 8 of 2023 for
discharge of auditor appointed by this Court. The Executrix has filed
another application being G.A. No. 9 of 2023 by filing an exception to
the audit report.
4. As all the applications are interconnected, therefore, this Court has
taken up all applications together for disposal.
5. Mr. Pradyot Kumar Dutta died on 21st April, 2017 leaving behind his
two daughters, namely, Piali Dutta and Sonali Dutta, the Beneficiary
and the Executrix respectively. The wife of the deceased named Smt.
Basanti Dutta had predeceased him.
6. Prior to his death, the deceased made and published his Last WILL and
Testament dated 4th April, 2007 and by virtue of such WILL, the
deceased had appointed Basanti Dutta and Sonali Dutta as the
Executrixes of his WILL and Testament and after the death of Smt.
Basanti Dutta on 18th March, 2016, Sonali Dutta became the surviving
Executrix of the last WILL and Testament.
7. After the death of the father, the Executrix had filed P.L.A. No. 276 of
2017 for grant of Probate of the last WILL and Testament of the
deceased and the beneficiary gave consent to grant Probate. On 20th
April, 2018, Probate was granted by this Court. The Executrix, as per
the last Will and Testament was to distribute the Estate of the deceased
equally between the Executrix and Beneficiary. The Executrix failed to
distribute all the assets amongst the legatees/beneficiaries as per law
and as per the last Will and Testament of the deceased after the grant
of Probate, apprehending the misappropriation of accounts and
administration of the Estate by the Executrix , the Beneficiary had filed
an application before this Court being G.A. No. 63 of 2020 in PLA No.
276 of 2017 praying for several reliefs including an order for
discharging the Executrix from administering the Estate of the
deceased and for appointment of a fit and proper person to administer
and distribute the same.
8. Upon filing of the said application, the jewelries and some of the Equity
Shares were distributed by the Executrix in terms of the last WILL and
Testament of the deceased sometimes in the month of February, 2019
and one set of keys for each of the flats in Mumbai were also provided
to the beneficiary in the month of May, 2019. This Court by an order
dated 13th February, 2020, restrained the Executrix form discharging
her functions as an Executrix any further towards administration of the
estate of the deceased, the Advocates on Record were appointed as the
Joint Administrators Pendente-lite.
9. The Executrix being aggrieved by the said order had preferred an
appeal being APOT No. 5 of 2021 and by an order dated 22nd February,
2021, the Hon'ble Appellate Court had set aside the order and the
Hon'ble Appellate Court allowed the Executrix to complete
administration of the estate within reasonably short time and the
Hon'ble Appellate Court was of the view that removal and replacement
by appointment of Joint Administrators Pendente-lite is not required.
10. The Beneficiary came to know that substantial credit in that account of
the deceased was transferred as a result of which as on 12th January,
2021, the balance in the bank account was only Rs. 18,96,991.13 and
five (5) Term Deposits in the name of the Administrator was created
only on 29th May, 2019 though at the time of grant of Probate and as
per affidavit of assets, the total amount was Rs. 1,74,89,532.36.
11. The Executrix had filed an application being G.A. No. 5 of 2021 praying
for several directions upon the Branch Manager, State Bank of India,
Juhu Tara Branch, Sri Lalita Building, Near Bombay (Juhu) Flying
Club, Juhu Tara Road, Mumbai- 400039 to close the Savings Bank
Account standing in the name of the Testator and Mrs. Dutta Basanti
and to transfer the proceeds to the Savings Bank Account of the
Executrix and several other reliefs. The application filed by the
Executrix was disposed of by this Court on 12th August, 2021, by
passing the following order:
"a. "Learned Counsel appearing for the other
beneficiary being the sister of the Executrix ,
submits that sufficient particulars be given to her,
since the sister would not have enough information
whether all the proceeds and fixed deposits are
being transferred to the accounts of the
administrator ....
This Court is of the view that the apprehension
on the part of the other beneficiary who is before
the Court can be sufficiently addressed if the
executor/applicant is directed to provide
particulars of the proceeds which are lying in the
Bank account of the deceased and the details of
such after transfer to the administrator's account."
b. "The applicant is also directed to furnish
all relevant particulars of the proceeds standing in
the name of the deceased and his wife and details
thereof after they are transferred to the
administrator's account and furnish the same to
the other beneficiary of the Will within a period of
two weeks from the date on which the proceeds are
transferred to the administrator's account."
c. "The applicant is also directed to complete
administration of the assets within eight weeks
from date and complete the assent to legacy within
such time including execution of a separate deed of
assent in favour of the beneficiary to the Will."
12. Subsequent to the order passed by this Court dated 12th August, 2021,
the Executrix has filed another application being G.A. No. 6 of 2022
praying for extension of time to complete the administration by a period
of Six (6) months from the date of the order and other reliefs. Inspite of
the specific direction passed by this Court dated 12th August, 2021, the
Executrix has not provided accurate Accounts and Inventory before this
Court and also has not shared the same with the beneficiary on regular
basis. The beneficiary has withdrawn an amount of Rs. 27,45,379/-
with the knowledge and consent of the Executrix . As on the date of
filing of the application being G.A. No. 7 of 2022 only an amount of Rs.
18,96,991/- along with five (5) fixed deposits of Rs. 10,00,000/- each
standing in the name of the Executrix and the Executrix has not filed
any proper Accounts and Inventory, the beneficiary has filed the
application being G.A. No.7 of 2022 praying for the following reliefs:
a. To appoint a special officer specialised in
auditing accounts to examine and provide an
accurate audit and statement of accounts of all the
cash accounts and fixed deposits since 20th April
2018 till the Estate is distributed as per the Last
Will of the deceased on a month by month basis.
b. To appoint a special officer specialized in
auditing accounts to examined all the statement of
accounts of the Executrix i.e., Sonali Dutta
(Administrator's Account) bearing SBI A/c. No.
00000037741229309;
c. To direct that the expenses and fees of the
Special Officer be reimbursed from and by the
Estate to the maximum of Rs. 1 Lakh.
d. The Executrix be directed to pay your petitioner
the direct losses suffered after taking into account
the observations of the officer after examination of
all the accounts of the Executrix ;
e. The Executrix be directed to pay Your Petitioner
for causing economic loss, delays and hardships
after taking into account the observations of the
officer after examination of all the accounts of the
Executrix amounting to Rs. 15,00,000/-.
f. The Executrix be directed to complete the
distribution of the two Properties by way of Deed
Poll in Mumbai.
g. To direct the Executrix to pay an amount of Rs.
15,00,000/- for the delay in administering and
bestowing the Estate as per the Probate dated 20th
April 2018 with interest rate of 15% per annum.
h. To direct the Executrix to reverse and refund
any unnecessary use of the Estate as determined
by the observations of the officer after examination
of all the accounts.
i. To pay legal costs of Your Petitioner amounting to
2 (two) Lakhs;
j. Such further and other order and orders as this
Hon'ble Court deem fit and proper."
13. The Executrix in her application being G.A. No. 3 of 2020 has prayed
for amendment in the Probate application and in the affidavit of assets
by reducing the amount total amount of Rs. 6,55,35,392.36 instead of
Rs. 8,74,56,952.36. As per the contention of the Executrix, the
following amendment is required in the affidavit of assets as the
Testator has withdrawn/encashed the said amount during his life time:
a. Fixed deposit account no. 3027793154271289 is
to be corrected as 30277937680.
b. The amount of Rs. 30,05,589/- with respect to
the fixed deposit account no. 30004798160 is to be
deleted as the amount already withdrawn by the
deceased before his death.
c. The amount of Rs. 5,73,021/- with respect to the
fixed deposit account no. 0129202674216 is to be
deleted as the amount already withdrawn by the
deceased before his death.
d. The amount of Rs. 11,05,800/-, Rs.1,57,24,090
and Rs.24,98,060/- with respect of Mutual Funds
(i) DHFL Folio No. 2101378216, (ii) BSP Black Rock,
Folio No. 1660623/5 and (iii) HDFC Mutual Fund
Folio No. 571765/85 respectively is to be deleted
as the amount already withdrawn by the deceased
before his death.
e. The valuation report of the Jewellery and
Ornaments is to be corrected as Rs. 44,00,930/-
instead of Rs. 4,40,00,930/-.
f. The gross total amount is to be corrected as
6,55,40,392.36/- instead of Rs. 8,74,56,952.36/.
14. The application for amendment was affirmed by the Executrix on 7th
February, 2020 and this Court passed an order restraining the
Executrix for discharging her function as Executrix on 13th February,
2020, the appeal preferred by the Executrix was disposed of on 22nd
February, 2021 and subsequently another application was filed by the
Executrix being G.A. No. 5 of 2021 for several directions upon the
State Bank of India but the Executrix has not made any submissions
with respect to the amendment in the application for grant of Probate
or in the affidavit of assets.
15. This Court while hearing the applications being G.A. No. 3 of 2020, G.A
No. 6 of 2022 and G.A. No. 7 of 2022, by an order dated 24th March,
2023, appointed a registered Chartered Accountant to make an Audit
Report of the moveable and immovable properties of the Testator from
the date of his death till date and directed the Executrix and the
legatees to provide all the bank details to the Chartered Accountant and
the Chartered Accountant was directed to file report within two
months.
16. Before filing of the report by the Chartered Accountant, the Executrix
had filed another application being G.A. No. 8 of 2023 praying for
removal of the Chartered Accountant appointed by this Court. In the
meantime, the Chartered Accountant appointed by this Court has
submitted report on 24th July, 2023 and the same was duly served to
the appearing parties. On receipt of the report, the Executrix has filed
exception to the report being G.A. No. 9 of 2023 praying for setting
aside the report and not to take the report on record.
17. The Executrix has made the following allegations against the Auditor
by filing an application being G.A. No. 9 of 2023:
i. The allegations and/or the contentions made
in the said report are denied and disputed.
The said report has been fled with oblique
motive and malafide intention and in a bias
manner. It is submitted that the said report is
incomplete, improper, beyond the scope of
order dated 24.03.2023 as passed by this
Hon'ble Court. The Auditor had adopted a
partisan approach and did not refer to the
documents and explanation provided by the
petitioner. This was done purposely. The said
report being partisan in nature and vitiated by
bias and is liable to be set aside and/or
cancelled and/or rescinded as such.
ii. Despite of stating in the last meeting held on
01.07.2023 particularly during the telephonic
conversation with the Executrix , that queries
would be replied by the Executrix to clear the
doubts that might arise during the audit
process, the auditor has submitted the said
report without obtaining some of the
clarification as to the doubts expressed in the
said report only with intention to prejudice the
interest of the Executrix and to implicate her
in the manner and in the process complicating
the entire legal process already pending
before this Hon'ble Court at Calcutta instead
of helping and/or assisting to conclude the
same by resolution of the same.
iii. It is necessary to mention it here that the
Hon'ble High Court at Calcutta appointed the
auditor to make an audit inter-alia from the
date of death of the testator to till date that is
the date of the order that is 24.03.2023.
however, the auditor by self-determination
deviating from the reference period specified
by the Hon'ble High Court at Calcutta upon
resolving the bank statement provided from
07.06.2018 as the basic document has
refused to consider expenses made after the
date of death of the Testator before
07.06.2018, whereas continued to carry out
the audit of the expenses after the date of the
order that is 24.03.2023 and even after the
date upto which bank statement was provided
to suit his target to deprive the Executrix of
her legitimate claim for reimbursement.
iv. 75% of the expenditure claimed by the
Executrix are without original supporting
documents is factually incorrect and
motivated.
v. The cash withdrawal was made by her in
order to reimburse the expenses made by the
Executrix from her personal earnings till the
opening of the Executrix account and transfer
of monies from various account to the account
of the Executrix.
vi. Fixed deposit accounts those were withdrawn
by the Testator during his life time has not
considered.
vii. The auditor has separately recorded some of
the legal expenses like expenses to the tune of
Rs. 1,50,000/- together with notary charges to
the tune of Rs. 90,570/-,52,728/- and Rs.
37776/- and excluded from the legal
expenses.
viii. The Executrix has made other several
allegation against the Auditor in the exception.
18. Learned Counsel representing the beneficiary has supported the report
submitted by the Auditor and relied upon the executive summary of
the audit report which reads as follows:
"(a) The Counsel for the beneficiary namely Ms.
Piali Dutta submits that the petitioner has made
certain expenditure claims which is very unnatural
and the amount spent by the Executrix is very
exorbitant.
(b) Bank Statement (A/c no.
00000000000037741229309) of State Bank of
India (Juhu Tara Branch) was provided to us from
07/06/2018 to 30/05/2023 (stamped and signed
by Bank representative).
(c) For few transactions in the Bank Statement, the
Executor has documented transaction details and
provided to us for audit.
(d) We have matched the transaction details so
provided, with the available narration in the Bank
Statement.
(e) By an order dtd 13th February 2020 passed by
the Hon'ble Justice Debangshu Basank in G.A. No.
63 of 2020, Ms. Sonali Dutta has been restrained
from discharging functions as an Executrix any
further.
(f) Our observations are summarized as under:
i) Out of a total expenditure/debits in the Bank
Statement for Rs. 173,83,819.50/-, 75% of the total
expenses were without vouchers/ invoices/
supporting documents/explanations, wherever
applicable.
ii) Original bills of the Advocates were not provided
other than Advocate Bhaskar Ghosh.
iii) All advocate bills were not made available to us.
iv) Advances are lying with both Advocate Bhaskar
Ghosh (Rs.117600) and Addvocate Ajay Gaggar
(Rs.45,750).
v) Itemised bills were not provided in respet of
Advocate Bhaskar Ghosh (out of total advocate bills
made available to us).
vi) Appointments/defined Scope of work was not
available for all the advocates.
vii) Memorandum was raised by Advocate Jishnu
Chowdhury on Advocate Ajay Gaggar but the
memorandum directed the payments to Advocate
Jishnu Chowdhury.
viii) In case of Adocate Gouri Shankar Gupta,
Invoice was raised on 06/03/2021 for date of
mention/appearance on 17/12/2021,
18/12/2021.
ix) Bill of Rs.116,00 to Chartered Accountant Firm,
M/s. Ajay Misra & Associates was without details
of assignments handled. Bills mentioned "Income
Tax Matter" and "Other matters"
x) Original bills were not made available to us.
xi) Bills by M/s. Ajay Misra & Associates were
raised on 08/06/2023 for payments from Bank on
earlier dates.
xii) The bills of the tour/travel operators did not
have mention of Trip details such as kilometres
travelled during particular days, rate at which bills
were raised, vehicle number, places travelled etc.
xiii) Original tour/travel operator bills were not
available.
xiv) The contact numbers on the bills of the
tour/travel operator had mention of invalid
mobile/contact numbers (11 digits).
xv) Bills were raised by tour/travel operator for car
hiring in Mumbai on those days when the Executor
was not in Mumbai.
xvi) The contact numbers on the food bills (Mauli
Kripa and Sai Darbar both in Mumbai) had mention
of invalid mobile/contact numbers (11 digits).
xvii) Food bills of Bombay 49 Kitchen and BAR on
the Platter, did not have any contact number which
is an exception, as online ordering and
communication is an important part of trade these
days.
xviii) The GSTIN registration of Bombay 49 Kitchen
& BAR stands cancelled with effect from
30/06/2022 but 13 such bills were provided as
supporting from dates subsequent to 30/06/2022.
xix) There are instances where bill dates pertains to
such dates when the Executor was in Kolkata but
food bills were placed with regard to restaurants
which are in Mumbai.
xx) Instances noted where food bills was raised on
groups of people (ranging between 3-9 pax) which
may be personal expenditures.
xxi) Payments of Jet Airways were made from
Personal Credit card by the Executor which was
reimbursed/claimed from cash withdrawal from
bank even after a span of almost 1 year from date
of journey.
xxii) Journey dated (Jet Airways) on few occasions
relates to a period prior to 07th June 2018, whether
the said expense was already paid/incurred in the
previous period, could not be ascertained.
xxiii) Bills raised by Mahalaxmi Maintenance
(plumbing & electrical work) had mention of invalid
mobile numbers (11 digits).
xxix) Advances have been paid to various vendors
which amounts to Rs. 10,26,003.86. This adds
upto unutilized funds.
xxv) Payment vouchers for Cleaning services were
made in name of Ms. Kali but vouchers were
receipted by Hari Das Halder. The address, phone
number of Ms. Kali was not provided.
xxvi) Certain cleaning expense bills dated prior to
7th June 2018 but booked on 12/06/2023.
Whether such payments were claimed twice could
not be reasonably ascertained. Bank Statement
were provided to us from 7th June 2018.
xxvii) Payment was made towards local travel by
Taxi where Movement details, Taxi number, place
of travel reason for travel were not available or
explained - whether it has been availed by the
Administrator for the desired cause could not be
established.
xxviii) There was transfer of funds from the Bank
Account to the personal account of Ms. Sonali Dutta
to the tune of Rs.71,73,423 and subsequent
transfer back of funds from her account for Rs.
63,45,720. (identified by Ms. Sonali Dutta)
By an order dtd 13th February 2020 passed by the
Hon'ble Justice Debangshu Basak in G.A. No. 63 of
2020, Ms. Sonali Dutta was restrained from
discharging functions as an Executrix any further.
However a total debit transaction of Rs.
47,62,613.47 (transferred to the account of the
Executor) and credit transaction of Rs.
44,12,350.10 happened between 14/02/2020 and
18/01/2023.
xxix) From the Bank Statement it was noted that
Rs. 77,39,679 was transferred out of the Bank
Account for various reasons while Rs. 1,16,86,398
was credited to the Bank Statement after 13th
February 2020.
xxx) It was intimated to us by the Ld Advocates of
Ms Piali Dutta that Ms Piali Dutta will not claim any
amount which she has spent for the execution of
the will from her own sources.
xxxi) This audit report was completed on the basis
of the documents and explanation which were
submitted/given to us.
xxxii) The audit report can be conclusively
quantified by us after receiving specific direction
from the Hon'ble Justice relating to the
acceptability of the documents/evidences
submitted by Ld Advocate Shri Bhaskar Ghosh on
behalf of her client Ms. Sonali Dutta."
19. As per the last Will and Testament and the Probate granted by this
Court, the Estate of the deceased Pradyot alias Pradyut Kumar Dutta is
required to be distributed in two equal shares between the Beneficiary
and the Executrix. As the Executrix failed in administer the estate of
the deceased, on the prayer of the beneficiary, this Court restrained the
Executrix from discharging her function as Executrix and appointed
the Advocate on Record of both the parties as Joint Administrators
Pendente Lite, but the Hon'ble Appellate Court has set aside the said
order and granted four months' time from the date of the order dated
22nd February, 2021 to file Accounts and Inventory in respect of the
Estate as well as the assents to legacy showing distribution of the
estate in accordance with last Will and Testament and the Probate. As
regard to the distribution of jewelleries and immovable properties, the
Executrix completed in terms of the last Will and Testament and
Probate, but distribution of money in the bank account and in fixed
deposits have not been completed. The Executrix had filed another
application before this Court being G.A. No. 5 of 2021 and in the said
application also, this Court has passed the following order on 12th
August, 2021:
"The applicant is also directed to furnish all
relevant particulars of the proceeds standing in the
name of the deceased and his wife and details
thereof after they are transferred to the
administrator's account and furnish the same to
the other beneficiary of the Will within a period of
two weeks from the date on which the proceeds are
transferred to the administrator's account.
The applicant is also directed to complete
administration of the assets within eight weeks
from date and complete the assent to legacy within
such time including execution of a separate deed of
assent in favour of the beneficiary to the Will.
GA No. 5 of 2021 is allowed and disposed of
in terms of the above."
20. Now the Executrix has filed another application being G.A. No. 6 of
2022 praying for extension of time for six months to complete the
Administration of the Estate, to grant leave to the Executrix to execute
and register necessary Deed of Assent of the immovable property in
favour of the beneficiary under the last Will and Testament and to file
Accounts and Inventory within six months. As per direction of this
Court, the State Bank of India, Juhu Tara Branch, Mumbai has
transferred the amount on 5th May, 2022 in the account of the
Executrix .
21. Now only the question with regard to the distribution of money amongst
the Beneficiary and the Executrix. The Executrix has filed an
application being G.A. No. 3 of 2020 for amendment in the PLA
application as well as the Affidavit of Assets with regard to certain debts
as mentioned in para 13 (Supra). The Executrix has relied upon Fixed
Term Deposit receipt No. 640721 for Rs.30,00,000/- and maturity
amount is Rs. 30,05,589/- of the State Bank of India, Juhu Tara
Branch, Mumbai and according to the Executrix, the matured amount
of the said Fixed Deposit is credited in the Savings Bank Account of the
deceased being Account No. 10121156887 on 27th April, 2005 and
another Fixed Deposit Receipt No. 598411 of Rs. 5,39,891/- and the
maturity amount is Rs. 5,73,021/- out of which Rs. 3,00,000/- is
credited in the account of the deceased being Account No.
0129202674216 and the balance amount of Rs. 2,73,021/- is
reinvested. As regard the mutual funds, the Executrix has relied upon
the FORM 15H appearing at pages 116 and 117 of G.A. No. 9 0f 2023.
22. This Court to decide the dispute between the parties, has appointed a
Chartered Accountant but the Executrix is not satisfied with the report
of the Auditor and even before filing of the report by the Auditor, the
Executrix has filed an application being G.A. No. 8 of 2023 for his
removal but before hearing of the said application, the Auditor has filed
the report and the Executrix has filed her exception making several
allegations against the auditor. The Auditor in his report has stated
that "The audit report can be conclusively quantified by us after receiving
specific direction from the Hon'ble Justice relating to the acceptability of
the documents/evidences submitted by the Learned Advocate Shri
Bhaskar Ghosh on behalf of his client Ms. Sonali Dutta."
23. The primary issue is with regard to the amendment of P.L.A. No 276 of
2017 and Affidavit of Assets. The documents relied by the Executrix
with regard to the Fixed Deposit and Mutual Funds, there is no
conclusive proof. The Executrix has not submitted Statement of
Accounts to show that the said amounts have been disbursed in the
account of the deceased and the deceased has invested the same before
his death. The FORM 15H which the Executrix has relied upon, the
said document also does not proved that the said document is in
connection with the Mutual Funds as claimed by the Executrix .
24. Considering the above, this Court before passing appropriate order for
amendment, appointment of the Special Officer in place of the
Executrix and acceptance of the Audit Report, the Manager State Bank
of India, Juhu Tara Branch, Mumbai and the Mutual Fund Authorities
were directed to furnish the details of accounts of the fixed deposit and
mutual funds of the deceased. By an order dated 8th February, 2024,
the Manager, State Bank of India, Juhu Tara Branch, Mumbai was
directed to furnish the following details before this Court:
(a) To furnish the details of the Fixed Deposit
Receipt Nos. 640721 in the name of Pradyot
Kumar Dutta and Basanti Dutta amounting to Rs.
30,00,000/- and matured amount is 3005589/-
dated 13.04.2005 to 30.04.2005 for seventeen
days.
(b) If the said fixed deposit is credited to the
holders, give the details in which account is it
credited and whether the said amount was
remaining in the account of till 21st April 2017.
(c) To furnish the details of the Fixed Deposit
Receipt Nos. 598411 in the name of Pradyot
Kumar Dutta and Basanti Dutta amounting to Rs.
539891/- and matured amount is 5,73,021/-
dated 07.11.2003 to 17.10.2004 for twelve
months.
(d) If the said fixed deposit is credited to the
holders, give the details in which account is it
credited and whether the said amount was
remaining in the account of till 21st April 2017.
(e) To furnish the details of all the accounts
including the statement of account of the
deceased Pradyot Kumar Dutta which was
operated by the deceased in the State Bank Of
India,Juhu Tara Branch.
This Court also directed the Mutual Funds authorities to furnish
the following details before this Court:
"(a) The HDFC-Asset Management Company,
Premises No. R2, Ground Floor, "Thapar House"163
SP Mukherjee Marg, Kolkata - 700026 is directed to
produce the following details of the debts of HDFC
Mutual Fund, Folio No. 571765/85 and Folio No.
5070806/92 in the name of Pradyot Kumar Dutta:
i. Whether any amount of the said Mutual
Funds are redeemed or not. If not redeemed
how much amount is lying in the said Mutual
Fund and if it is redeemed to give the details
when it was redeemed and in which account it
was redeemed?
ii. All details be provided along with
documents.
(b) The Chief Executive Officer, PGIM India Mutual
Fund, 4th Floor, 2, C Wing, G Block, BKC Bandra
Kurla Complex, Bandra East, Mumbai-400051 is
directed to furnish the following details of
2101378216 in the name of Pradyot Kumar Dutta:
i. Whether any amount of the said Mutual
Funds are redeemed or not. If not redeemed
how much amount is lying in the said Mutual
Fund and if it is redeemed to give the details
when it was redeemed and in which account it
was redeemed?
ii. All details be provided along with
documents.
(c) The Managing Director and Chief Executive
Officer, DSP Black Rock, Mutual Fund,4th Floor,
The Legacy, 25-A, Shakespeare Sarani Road,
Opposite Chappan Bhog, Mullick Bazar, Elgin,
Kolkata, West Bengal - 700017 is directed to
furnish the following details of DSP Black Rock
Mutual Fund in the name of Pradyot Kumar Dutta :
i. Whether any amount of the said Mutual
Funds are redeemed or not. If not redeemed
how much amount is lying in the said Mutual
Fund and if it is redeemed to give the details
when it was redeemed and in which account it
was redeemed?
ii. All details be provided along with
documents."
25. In compliance of the order dated 8th February, 2024, the State Bank of
India, Juhu Tara Branch, Mumbai and the Mutual Funds authorities
have furnished report to the Learned Counsel for the Executrix and the
Learned Counsel for the Executrix has filed the said documents before
this Court by way of an affidavit on 19th March, 2024. After perusing
the Statement of Accounts supplied by the State Bank of India, Juhu
Tara Branch, Mumbai, this Court finds that the bank has not
submitted report with respect to Clause (b) of the order dated 8th
February, 2024.
26. The Executrix has filed Statement of Accounts in two volumes with
documents after serving the copies to the Learned Counsel for the
beneficiary. Now, this Court at first considering the application filed by
the Executrix for amendment in the affidavit of assets being G.A. No. 3
of 2020 (Old No. G.A. 442 of 2020) and PLA application.
In G.A. No. 3 of 2020, the Executrix prays for following
amendment in the affidavit of assets:
"5. It has now transpired that the contents of
the affidavit of assets is required to be altered
and/or amended in view of the fact that -
(a) The valuation ascribed to the jewelry is
Rs.4,40,00,930.00 in the affidavit of assets and a
schedule of the jewellery has been disclosed as
Annexure "Y" to the said affidavit of assets. The
valuation is an inadvertent error and there is an
additional "zero" which has crept in. the valuation
should be Rs.44,00,093/-. That would also be in
consonance with the list of jewelries which have
been disclosed. The jewellery has already been
divided and distributed and there is no dispute in
respect thereof.
(b) The three mutual funds investments
mentioned in the affidavit of assets had been
withdrawn by the deceased during his lifetime.
This would be evident from documents annexed
hereto and collectively marked with letter "A".
therefore, the entry of investment in mutual funds
is required to be entirely deleted. This was not to
either the petitioner or Piyali Dutta Normand. The
folio numbers of the HDFC mutual fund have been
incorrectly mentioned. The said folio number should
be 507086 and 507087 instead of Folio No.
571765/85.
(c) Fixed deposit No.30004798160 of a
maturity amount of Rs.30,05,589/-, and fixed
deposit No.0129202674216 of a maturity amount
of Rs.5,73,021/- all maintained with State Bank of
India, Juhutara Branch, Mumbai had also been
encashed by the deceased during his lifetime. This
would be evident from documents annexed hereto
and collectively marked with the letter "B". The
petitioner has made enquiries with State Bank of
India and has come to learn of the same. At the
time of preparation of the affidavit of assets, old
records of the deceased had been consulted,
whereupon, the said entries had been made. It now
appears upon enquiries made with State Bank of
India that the said two fixed deposits had been
encashed."
27. One of the amendments with respect to correction of value of jewellery
/ornaments appearing at serial No. G of the affidavit of assets from Rs.
4,40,00,930/- to Rs. 44,00,930/-. In the affidavit of assets, the total
cost of jewellery is shown as 4,40,00,930/-. The Executrix submits that
inadvertently in the said amount "one zero" has been added extra but
the actual amount is Rs. 44,00,930/-. The Counsel for the beneficiary
has also not opposed to the same. Accordingly, at serial No. G of
Affidavit of Assets shall be corrected and to be read as Rs.44,00,930/-
instead of Rs.4,40,00,930/- .
28. As regard to the Mutual Funds Investments, the HDFC Mutual Fund
has supplied information by a letter dated 19th March, 2024 wherein it
is informed that the Folio number mentioned in the affidavit of assets
as 571765/85 is not correct and the deceased had other four Folio Nos.
5070806/92, 5070807/89, 2571765/85 and 2571765/85. In the
communication, it is mentioned that the first two Folios have been
redeemed on 25th April, 2016 and the other two folios having available
balance of Rs. 16507.51 and Rs. 1779.67 respectively. None of the
parties have disputed the details and thus Serial no. "E" of the Affidavit
of Assets to be amended by deleting the details mention in serial No. E
and incorporating the details of Folio Nos. 2571765/85 and
2571765/85 and Rs.16507.51 and Rs. 1779.67 respectively.
29. As regard to the Serial B(13) with respect to Fixed Deposit A/C No.
30004798160 amounting to Rs. 30,05,589/- and Serial No. B (14)
Fixed Deposit A/c No. 0129202674216 of Rs. 5,73,021/-, the
Statement of Account with respect to Account No. 10121156887 (Sr.
Citizen) in the name of Prodyot Kumar Dutta shows that an amount of
Rs. 30,05,589/- is deposited in the said account on 30th April, 2005 i.e
before the death of the Testator. The account of the Testator does not
show that any amount is withdrawn after the death of the Testator.
Only on 6th May, 2022, an amount of Rs. 12,52,088/- is transferred in
the account of the Executrix .
It is pertinent to mention here that the Executrix in the affidavit of
assets at Serial No.B (1) with respect to Account No. 10121156887 has
shown the amount of Rs.7,38,208.42 instead of Rs. 12,52,088/-. Thus,
at Serial No. B(1) of the affidavit of assets instead of Rs. 7,38,208.42,
an amount of Rs. 12,52,088/- is to be shown.
The amount of Rs. 30,05,589/- being the maturity amount of
Fixed Deposit has been transferred in the account of the Testator
during his life time on 30th April, 2005, thus, the amount mentioned at
Serial No. B(13) is to be deleted.
30. As regard to Serial No. B(14) amounting to Rs. 5,73,021/- in
connection with Fixed Deposit A/c No. 0129202674216 of State Bank
of India, Juhu Tara Branch, Mumbai, it is stated that the same has
been encashed during the life time of the Testator on maturity and the
beneficiary has also agreed for the same, thus the said amount in B(14)
is also to be deleted.
31. Now, the application filed by the Executrix being G.A. No. 8 of 2023 and
G.A. No. 9 of 2023 wherein the Executrix has prayed for cancelling the
appointment of Chartered Accountant, namely, Chandan Ghosh and
Co. by an order dated 24th March, 2023 and the Audit Report
submitted by the Chandan Ghosh and Co. dated 24th July, 2023 be set
aside.
32. The Executrix has filed G.A. No. 8 of 2023 praying for cancelling/
discharging the Chartered Accountant appointed by this Court by an
order dated 24th March, 2023 but subsequent to filing of the said
application, the Chartered Accountant has filed his report on 24th July,
2023 against which the Executrix has filed her exception to the said
report being G.A. No. 9 of 2023 thus both are connected with each
other and have been taken together for disposal.
33. During the pendency of the said applications, this Court has called for
certain information from the State Bank of India, Juhu Tara Branch,
Mumbai and Mutual Fund authorities. The Bank and Mutual Fund
authorities have supplied information but the bank has not supplied
the details of Clause (b) of the order dated 8th February, 2024. Now the
Executrix of her own has submitted audit report of the Chartered
Accountant, namely, A.K. Barman & Associates from 20th July, 2017 to
15th April, 2024 along with the documents relied by the Executrix.
34. This Court has taken into consideration of both the audit reports
together. As per balance sheet of A.K. Barman and Associates, the
Executrix has received total amount of Rs. 2,44,56,817.80 on closure
of various accounts and the total expenditure is shown as Rs.
70,43,362.57.
35. As per the Audit Report of A.K. Barman & Associates, all together on
thirty (30) heads expenditures have been shown. After considering the
said expenditures, this Court is not inclined to accept the following
expenditures made by the Executrix :
i. Telephone Charges (Mumbai Flats) ...Rs. 1,82,141.84
ii. Telephone Charges (Kolkata Flat) ... Rs. 23,721.32
iii. Maintenance Charges (Mumbai Flats) ... Rs. 7,81,234.00
iv. Maintenance Charges (Kolkata Flat) ... Rs.1,15,432.00
v. Repair Charges (Mumbai Flats) ... Rs.3,50,950.00
vi. Repair Charges (Kolkata Flat) ...Rs. 42,250.00
vii. Cleaning expenses ... Rs. 27,000.00
viii. Water Filter Maintenance Charges ... Rs. 7,900.00
ix. Gas Expenses ... Rs. 35,000.00
x. Professional Expenses ... Rs.2,69,508.00
xi. Travelling Expenses of Executrix ...Rs.13,45,074.00
xii. Local Conveyance Charges ...Rs. 1,90,550.00
xiii. Food and Beverage Charges ... Rs. 80,752.00
..................................
Total Rs. 34,51,513.16
....................................
36. Documents relating to the telephone charges of Mumbai Flats and
Kolkata Flat are appearing at page Nos. 71 to 124 of the Audit Report
which reveals that the bills are in the name of the Executrix and thus
she is not entitled to claim the amount of Rs. 1,82,141.84 and Rs.
23,721.32 from the estate of the deceased. The Executrix has also
claimed an amount of Rs. 27,000/- for cleaning expenses Rs. 7,900/-
water filter expenses and Rs. 35,000/- Gas expenses but this Court did
not find any documents that the said expenditure is with regard to the
estate of the deceased. The Executrix has claimed maintenance and
repair charges of Mumbai and Kolkata flats but the distribution of the
flats have been settled between the parties and have taken their
respective possession, thus, question of charges for repair and
maintenance of flats cannot be taken into consideration.
37. The Executrix has shown as professional fee of Rs. 2,69,508/- of Ajay
Misra and Associates and others and the connecting documents are
appearing at Page Nos. 229 to 235 of the Audit Report but from page
No. 229, it reveals that an amount of Rs. 1,16,000/- is paid to Ajay
Misra and Associates and the other invoices does not match with the
details mentioned at page No. 20 of the report. It also does not reveals
that the said professional fees of Chartered Accountant is connected
with the Estate of the deceased.
38. The Executrix has shown travelling expenses of Rs. 13,45,074/-, local
conveyance expenses of Rs. 1,90,550/- and food and beverage expenses
of Rs. 80,752/- which are also not acceptable to this Court to allow the
said amount from the Estate of the deceased. This Court has not
accepted the said expenses from the account of the estate as the
Executrix had the knowledge that there are so many expenses already
made by the Executrix in the present case and enjoying the travelling
from abroad to India and within the India instead of settling the issue
with respect to the entitlement of the Beneficiary. This Court also did
not find genuiness in the expenses. The Executrix has made
expenditure of Rs.30,50,970/- for the fee of the Advocates but this
Court finds that the Advocates have appeared in the matter connected
with the Estate of the deceased and have raised their bills to the
Executrix and only for the said purpose, this Court allowed the said
amount from the Estate of the deceased.
39. Considering both the audit reports, this Court is of the view that the
Executrix cannot be allowed to deduct the amount of Rs. 34,51,513.16
as expenditure as mentioned in paragraph 35 above.
40. The Beneficiary admitted that she has withdrawn and amount of Rs.
27,45,379/- form the account of the Estate of the deceased and as per
the order passed by this Court dated 21st March, 2024, an amount of
Rs. 10,00,000/- is transferred by the Executrix in the account of
beneficiary and thus the an amount of Rs. 37,45,379/- is to be
adjusted at the time of final payment to the beneficiary by the
Executrix.
41. The department is directed to amend the affidavit of assets as
mentioned in paragraphs 27, 28, 29 and 30 above and the total amount
in page 10 of the affidavit of assets be corrected as Rs.
6,58,20,070.25/- and in the Probate Application at paragraph 14 in two
places, the amount shall be corrected as Rs. 6,58,20,070.25/- instead
of Rs. 8,74,51,952.36/- within a period of two weeks after "Puja
Vacation" and the Executrix is directed to reaffirm and reverify affidavit
within a week thereafter.
42. In the report of the Chattered Accountant, namely, Chandan Ghosh
and Co. appointed by this Court, it is mentioned that out of total
expenditure/ debts in the Bank Statement for Rs. 1,73,83,819.50, 75%
of the total expenses were without vouchers/ invoices/ supporting
documents/ explanations, would wherever applicable. Being aggrieved
with the said report, the Executrix has filed exception mainly on the
ground that the Chattered Accountant, namely, Chandan Ghosh and
Co. has not considered several documents submitted by the Executrix.
The Executrix has submitted audit report from M/s. A.K. Barman and
Associates, Chattered Accountant of her own. This Court has
considered the reports of both Chattered Accountants. It is found that
in the report of M/s. A.K. Barman and Associates, the Executrix has
disclosed several documents. Considering all the documents, the
Chattered Accountant has submitted report indicating that the total
receipt by the Executrix from all sources is Rs. 2,44,56,817.80 and the
expenditure is Rs. 70,43,362.57. This Court considered the report of
M/s. A.K. Barman and Associates and finds that the expenditure
shown by the Executrix as mentioned in para 35 (supra), the Executrix
is not entitled to get the said amount.
43. Considering the above, out of total expenditure of Rs. 70,43,362.57, an
amount of Rs. 34,51,513.16/- is required to be deducted. If the said
amount is deducted, the total expenditure would come to Rs.
35,91,849.41. The amount of Rs. 35,91,849.41/- is to be deducted
from Rs. 2,44,56,817.80 and would come to Rs. 2,08,64,968.39. The
Beneficiary has withdrawn an amount of Rs. 27,45,379/- and as per
the order passed by this Court, an amount of Rs. 10,00,000/- is
transferred by the Executrix in the account of the beneficiary and thus
total amount of Rs. 37,45,379/- has been received by the beneficiary.
The amount of Rs.37,45,379/- is also to be deducted from
Rs.2,08,64,968.39 and it would come to Rs. 1,71,19,589.39.
The total amount of Rs. 1,71,19,589.39 is to be divided in two
parts, which come to Rs. 85,59,794.695. The Executrix and Beneficiary
both are entitled to get an amount of Rs. 85,59,794.695 each. In view of
the above, the Executrix is directed to pay an amount of Rs.
85,59,794.695/- to the Beneficiary within four (4) weeks after "Puja
Vacation".
44. G.A. No. 3 of 2020 (Old No. GA 442 of 2020), G.A. No. 6 of 2022,
G.A. No. 7 of 2022, G.A. No. 8 of 2023 and G.A. No. 9 of 2023 are
accordingly disposed of.
(Krishna Rao, J.)
Later:
After delivery of the Judgment, Learned Counsel for the Executrix
prays for stay of the operation of the Judgment.
This Court finds that already the Executrix has spent Rs.
30,00,000/- for the legal expenses and after grant of Probate, the
Executrix failed to file the accounts and one after another Executrix
has filed the application, due to which the legal expenses has come to
Rs. 30,00,000/- taking into the above, prayer for stay is refused.
(Krishna Rao, J.)
