Delhi High Court
Swapnil Gupta & Anr. vs Govt Of Nct Of Delhi & Ors. on 23 December, 2022
NEUTRAL CITATION NO:2022/DHC/005814
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 20th December, 2022
Pronounced on: 23rd December, 2022
+ TEST.CAS. 59/2022 & I.A. 20925/2022
SWAPNIL GUPTA & ANR. ..... Petitioners
Through: Mr. Samrat Nigam and Mr. Angad
Mehta, Advocates
versus
GOVT OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms. Pavitra Kaur, Advocate for R-
1
Mr. Tanmaya Mehta, Mr. Rudrajit
Ghosh and Mr. Ashu Goyal,
Advocates for R-2 and 3
Mr. Rajesh Yadav, Sr. Advocate
with Mr. Karan Nagrath, Ms.
Ruchika Arora and Ms. Niharika
Nagrath, Advocates for R-4
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
I.A. 9861/2022 (u/S 247 of the Indian Succession Act, 1925)
1. The present application has been filed by Respondent No. 4, being
one of the beneficiaries of the Will under probate, under Section 247 of
the Indian Succession Act, 1925 (hereinafter referred to as the 'Act')
seeking appointment of Administrator of the Estate and assets of Late
Ravindra Kumar Singhvi (hereinafter referred to as the 'Testator'); and
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also for issuance of temporary injunction restraining the Petitioner,
Respondents No. 2 and 3 from alienating or creating third-party rights
qua the estate and assets of the testator in the above-mentioned Will dated
5th September 2017.
FACTUAL MATRIX
2. The Testator was married to Respondent No.2 Smt. Amila Singhvi
and out of the marriage two children being Respondent No. 3 and
Respondent No.4 took birth. A Will was executed by the Testator on 5th
September 2017 which was duly registered in the office of Sub-Registrar
V(I), New Delhi vide Registration No. 855 in Book No.3 Vol. No.35 on
pages 40 to 44. The Will was executed in the presence of two witnesses
namely, Mr. Sanjiv Kumar and Mr. Sonu Kumar. Mr. Rishabh Singhvi,
son of the Testator being Respondent No.3 and Mrs. Dhriti Goenka,
daughter of the Testator being Respondent No.4 are the only beneficiaries
under the Will. The Testator left for heavenly abode on 18th May 2021
and subsequent to his death and upon coming to the know about the
existence of the alleged Will, the Respondent No.4 vide email dated 28th
April 2022 addressed to the Executors, objected to the genuineness of the
said Will and sought details of any transactions which have been
undertaken under the said Will. The relevant portion of the email dated
28th April 2022 is reproduced below:
"My brother Rishabh Singhvi sent to me (on 18th October
2021) by whatsapp a copy of my father, Mr. Ravindra
Kumar Singhvi‟s alleged Will dated 5th September 2017. I
have some serious objections to this Will. Without prejudice
to my rights and contentions, could you both please furnish
me with your list of actions as executors under the said Will.
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I believe assets and properties of the Estate are being sold
and dealt with behind my back. If you are aware of this,
could you please give me details of such transactions. Please
also furnish me with the accounts of the Estate if available
with you. A copy of the Will is enclosed here for your ready
reference."
3. Having received no response to her email dated 28 th April 2022,
vide email dated 19th May 2022, Respondent No.4 reiterated her request
of the details of transactions and also requested the Executors to refrain
from accepting any change in the ownership of the assets and properties
without a valid probate of the Will. The relevant portion of the email is
reproduced below:
"2. Further, as mentioned in my letter, I believe that assets
and properties of the Estate are being sold and dealt with
behind my back.
3. In the circumstances, and in addition to my requests in my
earlier letter, you are also requested to kindly refrain from
accepting any change in ownership / transfer /sale of any of
the assets and properties from my father‟s Estate, without a
valid probate of the above mentioned alleged Will."
4. On 28th May 2022, an email was forwarded by the Executors to
Respondent No.4 which they received from Respondents No. 2 and 3 by
way of which the details of the transactions pertaining to the Estate and
assets of the Testator were delineated. Vide email dated 31st May 2022,
the Respondent No.4 replied the email dated 28th May 2022, by taking a
serious objection to the transactions already entered into by the
Respondent No. 4 behind the back of Respondent No.3.
5. Subsequent to this, the captioned probate petition came to be filed
on 1st June 2022 by the executors seeking probate of the Will dated 5th
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September 2017. In this captioned petition, an I.A. bearing no. 9819/2022
was filed by the Respondent No.4 seeking status quo on the Estate and
the assets of the Testator and; directions for freezing of voting rights in
respect of shareholding of the Testator in various corporate entities. Vide
order dated 22nd June 2022 notice was issued in this application and vide
order dated 4th July 2022, this application was dismissed as withdrawn.
Subsequent to this, the present I.A. came to be filed with the prayers as
discussed in the foregoing paragraphs.
SUBMISSIONS
On behalf of the Applicant/Respondent No.4.
6. Mr. Rajesh Yadav, learned senior advocate, appearing in support of
the instant application has submitted that the instant Will has been
executed under duress, coercion and undue influence. It is submitted that
the attesting witnesses being strangers to the Testators have also acted on
behalf of the Respondent No.3 as they have been working for monetary
gain with him, and at the time of execution of the said Will, Respondent
No.3 being the major beneficiary under the Will was present at the Sub
Registrar Office. It is further submitted that the Testator was in a feeble
state of mind and his physical condition was severely impacted at the
time of the execution of the Will. It is also submitted that there are some
glaring differences in the Will received from the Sub-Registrar Office and
the Will received from the Respondent No.2 in the form of a whatsapp
message.
7. It is also argued that the executors, in connivance with
Respondents No.2 and 3 have parted with the ownership and possession
of many assets of the Testator even though the Respondent No.4 has
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taken a strong objection to the genuineness of the Will. It is further
submitted that the Executors have turned a blind eye to the illegal conduct
of the Respondents No. 2 and 3 who have been maliciously intermeddling
with the Estate of the Testator since his death. For elaborating the
aboveallegations, Mr. Yadav has submitted that on 21st May 2022, within
72 hours of the death of the Testator, Respondent No.3 has secretively
proceeded to transfer the following shareholdings to himself:
International Print-o-Pac Limited
i. 30,99,611 shares held by the deceased in International Print-o-
Pac Limited to Rishabh Singhvi.
Sobhagya Capital Options Ltd.
ii. 1,50,100 shares held by the deceased in Sobhagya Capital
Options Ltd. to Rishabh Singhvi.
iii. 100 shares of Sobhagya Capital Options Ltd. held by Marketing
and Sales to Rishabh Singhvi.
Sobhagya Securities Ltd.
iv. 100 shares held by the deceased in Sobhagya Securities Ltd.
v. 55,000 shares of Sobhagya Securities Ltd. held by Marketing
and Sales
IPP India Ltd.
vi. 12,01,139 shares held by the deceased in IPP India Ltd. and;
Rishabh Holdings Ltd.
vii. 69,583 shares held by the deceased in Rishabh Holdings Ltd.
8. Mr. Yadav has also pointed out that again on 30th September 2021
Respondent No.3 has transferred 8,50,000 shares of Sobhagya Capital
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Options Ltd. to himself. He has also relied on Section 332 of the Act to
contend that the transactions entered into by the Respondent No.3 are in
the face of the mandatory provisions of Section 332 which require that
the assent of the Executor is required to complete legatee's title to his
legacy. It is humbly prayed that the Executor is acting in connivance with
the Respondents No.2 and 3 and accordingly, this Court may appoint an
administrator pendente lite. It is further submitted that the Executor has
failed to act in accordance with law and have not taken any steps for the
preservation and management of the Estate of the Testator as he has
failed to take any action against the Respondent No. 3, who in connivance
with Respondent No.2 has unlawfully benefitted from the said Will.
9. It is further submitted that though the Will is alleged to have been
executed on 5th September 2017, but the Petitioner was informed about
the execution of the said Will only on 18th October 2021 by way of a
whatsapp message sent by Respondent No.2 which is five months after
the death of the Testator. It is submitted that in the interregnum, every
attempt has been made by the Respondents No.2 and 3 in connivance
with the Executors to part away with the assets of the Testator thereby,
frustrating the rights of the Respondent No.4, as she was never taken into
confidence or informed about the alleged transactions which were being
made by the Respondent No.3 behind her back.
10. Mr. Yadav has also taken the plea that the Executors have failed to
take into consideration Section 337 of the Act inasmuch as the Executor
was not empowered to pay or deliver any legacy until the expiration of
one year from the death of the Testator. Even otherwise, the learned
senior counsel has taken a plea that interest of justice requires that until
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and unless the alleged Will is proved and probate as prayed is granted, the
entire estate of the Testator should be preserved.
11. It is further submitted that Respondents No.4 shares a relationship
of trust and good faith with Respondent No.3 and the same has been
grossly abused inasmuch as on the insistence of Respondents No.2 and 3,
she had signed some documents, including Board Resolutions, which she
now apprehends are being used to the detriment of her interest, as the
Respondents No. 2 and 3 are trying to take control of the entire Estate of
the Testator.
12. To further substantiate the connivance and ineffectiveness of the
Executor learned senior counsel has taken support from the following
instances:
i. In November 2021, Respondents No. 2 and 3 sent a deed
of partition deed of Kistoormal Ravinder Kumar Singhvi
HUF and threatened the Respondent No.4 to sign and
send the deed back to them even when by virtue of the
said deed, the Respondent No.4 was required to
relinquish her rights in the said HUF.
ii. On 17th January 2022, a letter was received by the
Respondent No.4 from Respondent No.3 by which it was
stated that she will not have any interest in the
shareholding of the Testator in Khaitan Chemicals and
Fertilizers Limited.
iii. The Respondent No.3 has already unlawfully sold the
following properties bearing no. 306, Shiv Smriti Co-
operative Society, Annie Besant Road, Worli Mumbai
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and B-205, Pocket B, Okhla I, Okhla Industrial Area,
New Delhi-110020 belonging to Rishabh Holding
Pvt.Ltd., wherein the Testator was holding 44.37%
shareholding.
iv. The Respondent No.3 under the garb of the allged Will
dated 5th September 2017 has taken over control of
various family companies, and the office cum factory
premises of IPP India Ltd. situated at C4-C11 Hosiery
Complex, Noida has been given out on long term lease,
even though it is mortgaged land with the Banks.
v. The Respondents No.2 and 3 are unlawfully attempting to
convert Sobhagya Capital Options Limited from Public
Company to Private Limited Company and have already
approached the Registrar of Companies for such
conversion.
13. Learned senior counsel has also relied on the following judicial
pronouncements in support if his contentions:
(i)Atula Bala Dasi and Ors. vs. Nirupama Devi and Ors; AIR 1951 CAL
"8. We may in this connection consider the powers & the
jurisdiction of a probate court for safeguarding the interest
of all concerned, & particularly to protect the properties
which are the subject matter of the testamentary disposition.
We have noticed already the provisions contained in
Sections 247 & 269 of the Succession Act. Even where the
exercise of the powers given to the probate court under
Section 247 of the Succession Act, cannot obviate the
difficulties or protect the properties, the powers of that court
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are wide enough to issue temporary orders restraining other
persons from interfering with the properties which are the
subject-matter of testamentary disposition. As indicated
in Nirod Barani Debi v. Chamatkarini Debi‟, 19 C.W.N. 205
though for certain purpose, a probate proceeding is not a
suit, in which there is a property in dispute, as contemplated
under O. XXXIX, R. 1 of the CPC, the only question in
controversy being as to who is to represent the estate of a
deceased person, & there being no question of title involved
in those proceedings, the court of probate is not thereby
wholly incompetent to grant a temporary injunction even in
extreme cases; such order of injunction is to be issued only
in aid of & in furtherance of the purpose for which a grant is
made by a probate court. It is, therefore, open to the probate
court not only to appoint an administrator pendente lite, but
also to issue an order of injunction, temporary in character,
pending the appointment of an administrator pendente lite. If
such powers are exercised in probate cases by a probate
court, there is no reasonable chance of any property being
dissipated, pending the actual grant of a probate or the
appointment of an administrator. As observed in
„Nirodbarani v. Chamatkarini (supra)‟
"In cases where it is brought to the notice of the
probate court that a party in possession is about to
deal with the movable properties unless injunction is
granted, appointment even of an administrator
pendente lite may become fruitless. The Court under
such circumstances, has ample authority, either under
statutory powers or in the exercise of its inherent
jurisdiction, to make a temporary order, so as not to
defeat the ultimate order which the court is competent
to make."
In our view, the proper application which ought to have been
made in the present case was an application for the
appointment of an administrator pendente lite, & if
necessary, to pray for the issue of a temporary injunction on
the decree-holders concerned, pending the appointment of
an administrator pendente lite. In a case of this description,
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the probate court will not grant the application as a matter
of course. The Court of probate would appoint an
administrator pendente lite in all cases where the necessity
of the appointment is made out. As was observed in
„Brindaban v. Sureshwar", 10 C.L.J. 263 at p. 275, the
pendency of different proceedings in different courts is a
ground which is to be taken into consideration while dealing
with such an application for the appointment of an
administrator pendente lite. There is, however, another point
which must not be overlooked. It is to be shown that the
property which is the subject-matter of the testamentary
disposition is going to be affected or dealt with, either in the
course of proceedings in another court, or by the personal
acts of another individual."
(ii). Inderjeet Singh Amardeep Singh Chadha vs. Davinder Kaur
Amardeep Singh Chadha; 2019 SCC OnLine Bom 702.
"25. From the phraseology of the aforesaid Section, it
becomes evident that it incorporates an enabling provision
and invests the testamentary Court with power to appoint an
administrator pendente lite. The text of aforesaid section
does not, in terms, spell out the circumstances in which an
administrator pendente lite may be appointed. Undoubtedly,
the testamentary Court, in the backdrop of the facts and
circumstances of the given case, ought to be satisfied as to
the necessity for appointment of an administrator pendente
lite. The object of conferring jurisdiction upon the
testamentary Court to appoint an administrator pendente
lite is implicit. The object appears to be to ensure that the
estate of the testator is effectively managed and securely
preserved for the benefit of the persons who are ultimately
found to be entitled to succeed to it. This broad object
subsumes in its fold a situation wherein it is brought on
record that the act and conduct of the person in possession
of the estate of the testator are detrimental to the protection
and preservation of the estate. The afore-extracted section
gives ample discretion to the Court as to the person who can
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be appointed as an administrator pendente lite. There is no
apparent prohibition for appointment of a party to the
testamentary proceedings as an administrator pendente
lite. However, the provision expressly puts two limitations on
the powers of the administrator pendente lite: (i) he has no
right to distribute the estate; and (ii) he is subject to the
immediate control of the Court and shall act under its
direction."
(iii) Radhika Bhargava & Ors. vs. Dr. Arjun Sahgal & Ors,; 2017 (3)
Mh.L.J. 212.
"14. Axiomatically, this means that a person cannot
simultaneously challenge the Will and also seek removal of
the executor appointed under it. The two reliefs cannot co-
exists. The second assumes that there is an executor validly
appointed under the Will, but that his conduct is such as
would warrant his removal. He has failed to discharge his
duties. This postulates an acceptance of the Will. If the Will
itself is challenged, then the appointment of the executor is
itself in doubt, and there is no question of his „removal‟; for
that „removal‟ is coupled with a substitution. If the probate
petition, fails, then there is simply no question of
executorship. I will accept Ms. Iyer's proposition that an
application for removal may be brought at any time, even
before the grant of probate, and will return to this briefly a
little later. But this only means that the executor, the person
nominated in the Will to the position of executorship, is
substituted by someone else who will then proceed to prove
the Will in its solemn form.
16. None of the nine authorities cited by Ms. Iyer deal even
remotely with a situation where a party opposed the grant of
probate and simultaneously sought removal of the executor.
The reliance on Karam Devi v. Radha Kishan, AIR 1935 Lah
406 is wholly misplaced. The question there was whether a
civil suit for removal of an executor would lie, or whether
there was an „ouster‟ of a civil court's jurisdiction. Indeed,
there are observations here that seem to me to militate
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against acceptance of what Ms. Iyer commends. For
instance, the Karam Devi court clearly said that the right to
act as an executor of a Will can be created only by the Will
itself. This is perfectly correct, and it leads us directly to the
proposition that an application under section 301 for
removal of the executor can only be maintained by one who
accepts the Will but not the continued executorship of it of
the present incumbent."
(iv) Universal Cables Limited & Ors vs Arvind Kumar Newar & Ors.;
MANU/WB/0684/2020.
"17. It is well settled that the position of
Administrator pendente lite (APL) in terms of Section 247 of
the Succession Act is that the APL represents the estate of
the deceased for all purposes, except distribution of the
estate. APL shall be subject to the immediate control of the
probate Court and shall act under its direction. Except to the
limit it is circumscribed by the last limb of Section 247, the
control of the Court over the APL and the extent of its
authority to issue directions to the APL spreads through the
scope and extent of the statutory purpose for which APL can
be appointed in terms of Section 247.
18. It is fundamental that the eligibility of a share-holder;
either if it is only one share or bulk of shares and stocks; the
voting rights and the involvement in the company on the
strength of the shares would stand regulated, primarily by
Sections 47 and 88 of the Companies Act. In Vodafone
International Holdings BV v. Union of India reported
in (2012) 6 SCC 613, the Hon'ble Supreme Court held, inter
alia, that the control and management is a facet of holding
of shares and voting rights whose shares represent congeries
of rights and controlling interest is an incident of holding
majority shares. Their Lordships further held that control of
a company vests in the voting powers of its shareholders and
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that the shareholders holding a controlling interest can
determine the nature of the business, its management and
various other matters touching the affairs of the company.
Obviously, therefore, the controlling interest is definitely
referable to the shareholdings. In the case in hand, it, truly
is part of the estate of PDB. The power of the Probate Court
under Section 247 of the Succession Act necessarily includes
the power to regulate and permit such shares which are in
the domain of commercial activity to be utilised to generate
appropriate income and to better utilise the same in the best
interest of the affairs of the estate of PDB, which would
ultimately reflect on the end beneficiaries, which also
includes charitable trust, educational institutions and other
such activities."
(v) Amar Deep Singh vs State & Ors.; 2005 (85) DRJ 179.
"8. The legal position which has emerged from the above
decisions is that a probate Court seized with a petition for
grant of probate of Will or Letters of Administration is not a
Civil Court within the meaning of the term under the
provisions of the Code of Civil Procedure though the
proceedings of the Probate Court in relation to the granting
of Probate and Letters of Administration is to be regulated,
so far as the circumstances of the case may permit, by the
Code of Civil Procedure 1908. Once a probate Court is
considering a petition for grant of probate or Letters of
Administration in respect of a Will, that Court alone is
competent to decide on the question of execution and/or
validity or otherwise of the Will in question. In such a
situation, it is not open to the Civil Court to go into that
question. Besides the exercise of jurisdiction by the two
Courts/Forums simultaneously may lead to inconsistent and
conflicting findings which has to be avoided. The special
procedure laid down for grant of a probate and Letters of
Administration which is required to be followed by a
Probate Court is not required to be followed by the Civil
Court while deciding the question of execution or validity of
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a Will. In view of this position, it must be held that the
present probate petition though filed latter in point of time
than the civil suit filed by the respondents in Panchkula Civil
Court is not liable to be stayed. Consequently it must follow
that these Civil Court at Panchkula has no jurisdiction to
decide the validity of the said Will dated 8.11.1997
propounded by the petitioner in the present petition. All
those objections which have been raised by the respondents
in regard to the execution and/or validity of the aforesaid
Will in the said suit filed by them can very well be looked
into by this Court which is competent to decide on that
question."
(vi) Sundariya Bai Choudhary vs. Union of India & Ors.; 2008 (2)
MPLJ 321.
"25. The question now hinges whether the Will Ex. P/1
which is a registered document has been duly proved and its
attestation has also been proved in terms of section 63(c) of
the Act. Merely because the Will is a registered Will it
cannot be said that the same stands proved or it is not
required to be proved on account of its registration. There is
no law as such. The Will (either registered or unregistered)
is required to be proved in accordance with the law. On
going through the provision of section 63(c) of the Act, we
find that a Will is required to be attested at least by two
witnesses or more each of whom has seen the testator
signing the Will and they have also signed the Will in
presence of the testator. On the touchstone of the criteria
laid down under section 63(c) of the Act we are required to
examine the statement of the attesting witness in order to
ascertain whether the attestation of the Will has been duly
proved or not."
(vi) Dharam Chand vs Mansa Devi; 2010 SCC OnLine HP 1743.
"11. At the very outset I would like to say whether the Will is
registered or unregistered, it would have the same value, but
it is imperative on its propounder to prove it like a crucial
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case beyond doubt in accordance with law and repel all the
suspicious circumstances. The judgment cited by the learned
Counsel for the appellant in Suraj Lamp and Industries
Private Limited v. State of Haryana and another, (2009) 7
SCC 363 is not applicable in the case of a Will. Further, no
presumption can be drawn in favour of the registered Will
about its genuineness."
(vii) Kavita Kanwar vs Pamela Mehta & Ors., (2021) 11 SCC 209
"31. In the ultimate analysis, we are satisfied that the will in
question is surrounded by various suspicious circumstances
which are material in nature and which have gone unexplained.
The cumulative effect of these suspicious circumstances is that it
cannot be said that the testatrix was aware of and understood the
meaning, purport and effect of the contents of the will in question.
The appellant, while seeking probate, has not only failed to
remove and clear the aforesaid suspicious circumstances but has
even contributed her own part in lending more weight to each
and every suspicious circumstance. The will in question cannot
be probated from any standpoint."
14. Accordingly, it is humbly prayed that as there is an imminent threat
of disposal of assets belonging to the Testator and this is a fit case
wherein, this Court should invoke its powers under Section 247 of the
Act and appoint an Administrator of the Estate and Assets of the Testator.
On behalf of the Executor/Petitioner No.2.
15. Mr. Angad Mehta, learned counsel appearing for the Executor has
denied all the averments taken by Respondent No.4 and submitted that he
has taken every effort to stand by the wishes of the Testator. It is
submitted that the Petitioner No.2 who is the first cousin of both
Respondents No 3 and 4 is a resident of Mumbai and whereas; the bulk of
Estate of deceased is situated in New Delhi and he is completely removed
from the daily life of the Respondent Nos. 2 and 3 therefore, there can be
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no weight in the submission of the Respondent No.4 that she is acting in
connivance with Respondent No.2 and 3.
16. It is further submitted that the objections to the captioned probate
petition and the instant IA is frivolous and highly misconceived as t even
if the contention of the Respondent No.4 is accepted that she got
knowledge about the alleged Will on 18th October 2021 but it is an
admitted fact that she did not raise any objection until 28th April 2022. It
is also submitted that there is no requirement in law or otherwise for the
Petitioners to be aware of the Will upon its execution and the executor's
responsibility commences only on the death of the Testator.
17. Learned counsel for the Executor has denied the allegation of
Respondent No.4 that the existence of the alleged Will was suppressed
for another one year from the Petitioner after the demise of the Testator.
18. It is submitted that she was orally informed about the existence of
the alleged Will by Respondent No.3 shortly after the death of the
Testator. Therefore, it is prayed that the instant application is
misconceived and is liable to be dismissed at the very threshold.
On behalf of the Respondents No.2 and 3.
19. Mr. Tanmay Mehta, learned counsel appearing on behalf of the
Respondent No.2 and 3 has taken a preliminary objection to the instant
application on the ground that an almost identical application was filed by
Respondent No.4 bearing I.A. No. 9819/2022 in which no relief was
granted to Respondent No.4 and hence, the present application is nothing
but a complete misuse of the process of law.
20. Learned counsel has also taken a vehement plea that in the light of
the prayers sought by way of the instant application, the appropriate as
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well as the legal course would have been to first move an application
under Section 301 of the Act seeking removal of the executor, and then
only an application could have been moved under Section 247 of the Act
seeking appointment of an administrator pendente lite. It is therefore,
prayed that the instant application is non-maintainable and liable to be
dismissed on this sole ground.
21. It is further submitted by the learned counsel that Respondent No.3
has been bequeathed certain assets of the Testator in terms of the Will,
and he has dealt with only such assets as has been bequeathed upon him.
It is vehemently prayed that the assets of the family companies are not the
assets of the Testator, but are the assets of the respective corporate
entities, therefore, no remedy can be granted against such assets more so,
when the corporate entities are not party to the present proceedings. It is
also submitted that neither the deceased's nor the witnesses
signatures/handwriting on the Will has been disputed.
22. It is further submitted that the Will contains a clear intention of the
Testator qua the appointment of the Petitioners as the Executor and it is a
settled law that when either the due registration of the Will or the
signatures contained therein are not under challenge, the appointment of
Executors ought not to be interfered by the Court as a matter of course. It
is further submitted that for the exercise of powers under Section 247 of
the Act there must be a bona fide dispute regarding the validity of the
Will which is not the case of the Respondent No.4 and hence, no case has
been made out for the appointment of the administrator.
23. Learned counsel has further stressed on the plea that it is well
established that till a dispute is raised on the authenticity of the Will,
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there is neither a requirement to neither obtain a probate of the Will nor
involve the executor for the exercising of rights which have been
bequeathed by way of the Will. For substantiating his contentions, he has
argued that the Respondent No.4 claims to have become aware about the
existence of the Will on 18th October 2021 but she did not raise any
dispute on the same until April 2022, and she has herself received the
following benefits bequeathed by the Will post the demise of the Testator.
(i) In terms of serial no. 3(b) of the Will, the Respondent
No.4 was transferred the cash deposits held in the SBI
bank account No. 32119109452 and the mutual fund
deposits by Respondent No.2 on 21st June 2021.
24. Accordingly, it is submitted that she cannot blow hot and cold at
the same time. He has further relied upon Section 213(2)(i) of the Act to
contend that the bar under Section 213(1) of the Act is not applicable and
hence, right as a legatee can be established even without grant of a
probate.
25. To rebut the argument of the Respondent No.4 that she was not
aware of the existence of the Will until 18th October 2021, learned
counsel has submitted that prior to the demise of the Testator, in March
2021, in order to pacify the concerns of Respondent No.4 regarding the
unequal division of assets between the Respondent No.3 and herself, the
following valuable assets and receivables were transferred to her by the
Respondent No.2 and 3 as well as the deceased Testator:
(i) Gift Deed dated 1st March 2021 executed by the
Respondent No.2 in favour of Respondent No.4.
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(ii) Another Gift Deed dated 1st March 2021 executed by
the Respondent No.2 in favour of Respondent No.4.
(iii) Sale of 5000 shares held by Respondent No.3 in IPP
Print technologies India Private Limited to Gold
Mineral resources Development Private Limited (the
only directors of which are Respondent No.4 and her
husband).
(iv) Gift Deed dated 10th April 2018 by which she has
been gifted 9,950 equity shares held by the Testator in
Megna Garments Private Limited.
(v) Another Gift Deed dated 1st March 2021 by which the
Respondent No.4 was gifted 50% of the undivided
rights of ownership and entitlements of all and every
kind in agricultural land bearing Musti lIKhasra No.
1l//20 min (0-90), 12/2 min (0-18 ) & 11 /2 min (1-07)
at Khasra Khatuni No. 68/63 in the revenue estate of
Village Ghumanhera, Tehsil Kapashera, New Delhi.
26. It is accordingly submitted that she had complete knowledge of the
existence of the said Will and the entire dispute at hand is an afterthought
to throttle the Respondents No.2 and 3 to enter into a settlement, and even
if her case is accepted that she got to know about the existence of the Will
on 18th October 2010, she has failed to immediately raise a dispute so as
to necessitate the requirement of probate of the Will despite the fact that
the entire family went on vacations together and Respondent No.4 kept
on visiting Respondents No.2 and 3.
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27. It is submitted that it was the deceased testator's wish that the
Respondent No.3 take over the family business after the former's demise,
and the Respondent No.3 had accordingly given his entire professional
life to the management of the affairs and assets of the various companies
set up by the deceased testator. This is evident from the fact that the he
has been a director in all major operating as well as asset-holding
companies once promoted by the deceased testator or a very long period
of time.
28. Learned counsel has further relied on Section 430 of the
Companies Act, 2013 to contend that reliefs sought by way of the instant
application are exclusively in the domain of the NCLT as it has the power
to adjudicate on the issues of title and transfer of shares of a Company
and hence, jurisdiction of the civil court is barred. Hence, this court is
precluded from granting any relief qua the shares in various corporate
entities owned by the parties herein.
29. In the context of the requirements under Section 332 of the Act,
learned counsel has submitted that the consent of the Executor was a
mere formality, and in any case such assent was clearly established based
on the fact that the Respondent No.2 and 3 had informed the Executors
about the transactions made in accordance with the present Will, by way
of which they stood rectified.
30. Learned counsel has also relied on the following judicial
pronouncements in support if his contentions:
31. Accordingly, it is humbly prayed that the instant application is
nothing but gross misuse of process of law, being not maintainable as
well as devoid of any merit, and is accordingly liable to be dismissed.
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(i) Dr. Subhada Mithilesh Anr v. Prabhakar Deolankar & Ors., 2018
(2) MhLJ 211.
"24. This Court has then also considered the fact that as of
general rule, the Court will respect the person's appointment
as executor for it shows that the testator reposed in that
person a special confidence. The Court must give full weight
to that expression of confidence. In the present case, that
"expression of confidence" is seen not once, but twice as it is
to be found in the previous Will too, which the Dastane
Family seeks to revive by dislodging the present Will. Hence
unless gross misconduct, serious mismanagement, misuse or
misapplication of the estate are shown, RJ 7222 OF
2015.odt the Court will not readily remove an executor who
has been appointed in the probate. It was held that there
must be clear evidence that the executor's continuance qua
executor is detrimental or injurious to the estate and will
frustrate the Will, with the administration of which he is
charged in law and by the testamentary writing. Minor
lapses, errors of judgments or less than perfect handling of
matters is not sufficient reason to substitute the testator's
expression of confidence.
27. Moreover, Administrator pendente lite can be appointed
only when there is no-one to look after the property for its
administration pending any suit. Here in the case already
the Executor is appointed in the Will and this Court has
refused to revoke his appointment, and it is held that he is
discharging his duties properly and there is no substance in
the allegations made against him by the petitioners. In such
circumstances, it has to be held that the challenge made to
the order passed by the trial Court in this writ petition even
in the light of this subsequent order passed by this Court,
has become infructuous."
(ii) Ajay Malhotra v. State, (2019) 260 DLT 488.
"16. The court would also like to record that
notwithstanding the fact that the question of title is not
involved in testamentary proceedings, the Court is not
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wholly incompetent to grant a temporary injunction in
extreme cases. Such order of injunction is issued in aid of
and in furtherance of the purpose for which a grant is made
by a probate Court. Section 247 of the Indian Succession
Act, gives the Court such power. The said provision reads as
under:
"247. Administration pendente lite.-Pending any suit
touching the validity of the will of a deceased person or for
obtaining or revoking any probate or any grant of letters of
administration, the Court may appoint an administrator of
the estate of such deceased person, who shall have all the
rights and powers of a general administrator, other than the
right of distributing such estate, and every such
administrator shall be subject to the immediate control of the
Court and shall act under its direction."
17. The reading of the aforesaid provision clearly shows
that it is therefore open for the probate Court not only to
appoint an administrator pendent lite, but also to issue an
order of temporary injunction, pending the appointment of
an administrator pendent lite. However, such orders are
passed, when an application is made for the appointment of
administrator pendent lite. The probate court will not grant
injunction as a matter of course. The Court would have to
examine whether there is a necessity for appointment of an
administrator pendent lite. Such is not the case before the
Court in the present case."
(iii) Shernaz Farouq Lawyer v. Manek Dara Parsi, (2015) 2 MhLJ
"61. This Court in case of Pandurang Shyamrao
Laud (supra) has held that all allegations pertaining to the
execution of Will and counter-allegations will have to be
gone into at the hearing of the testamentary suit and any
finding and/or observation of the Court at the stage of
considering application for appointment of Court Receiver
or administrator by the parties in respect of their contentions
at the hearing. It is held that before granting
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administration pendente lite, the Court has to be satisfied in
the first place that there is a bona fide suit pending touching
the validity of the Will of the deceased. It is held that
discretion to appoint an administrator has to be exercised
judicially and not arbitrarily. Court has to be satisfied as to
the necessity of such an administration and as to the fitness
of the proposed administration and where it is just and
proper under the circumstances of the case to appoint a
administrator before subjecting the estate to the cost of such
administration. Such an appointment cannot be claimed as a
right merely because the proceedings are contested, but
whenever there is bona fide dispute and a case of necessity
has been made out, the Court in its discretion generally
makes the grant.
68. Though both the parties have addressed this Court at
great length in support of their submissions that the Wills
propounded by either party is fraudulent and fabricated and
is vague and in support of such allegations invited my
attention to several documents and pleadings forming part of
the record in this notice of motion and also testamentary
petitions and contempt petition, in my view, this Court
cannot go into such issues at this stage and the same can be
decided after recording evidence at the stage of trial. I do
not propose to deal with any of these allegations and/or
counter-allegations made by either party regarding
allegations of fraud, fabrication and forgery at this stage
which would prejudice either party in respect of their rival
contentions at the time of hearing."
(iv) Jeyrani v. Murugurajan, CRP(MD) No 1052/2021 (Mad HC)
"3. Pending Probate Original Petition, the petitioner has
filed a petition in I.A.No.115 of 2019 seeking orders for
appointing an "administrator pendent lite" till the disposal
of the original petition to administer the schedule mentioned
properties and the learned trial Judge, after enquiry, has
passed the impugned order dismissing the said petition.
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4. The learned trial Judge by observing that the genuineness
of the Will can be decided only on enquiry in the main OP,
that the Appointment of an Administrator pendente lite is one
among the harshest remedies, which cannot be granted
merely on saying that the income from the property is being
drained off and that the appointment of the administrator
would infringe the legitimate right of the respondents 1 and
2, has come to the decision that the petitioner is not entitled
to get the appointment of administrator pendente lite and
dismissed the petition."
(v) Fauzia Sultana v. State, 2022 SCCOnline Del 3583.
"53. In fact, I find that the Division Bench of the Bombay
High Court clearly held that the effect of Sub-Section (2) of
Section 269 of the Indian Succession Act, 1925, is to
preclude exercise of power in case of one of the excepted
categories. It went on to hold that it would not be
permissible, in the face of the specific provision of sub-
section (2) of Section 269, to read into the provisions of
Sections 266 and 268 of the Indian Succession Act, 1925, a
general power to grant interlocutory relief, even prior to the
grant of probate in respect of the property which is alleged
to form part of the estate of the deceased. In the case in
hand, the deceased being a Muhammadan, the bar under
Section 269(2) shall come into play.
54. Suffice to state that the Coordinate Bench of this
Court in Ajay Malhotra (supra), has clearly held by
referring to the judgment of Shri Kulbir Singh (supra), that
the latter judgment is distinguishable, as Section 269(2) of
the Indian Succession Act, 1925, was not brought to the
notice of this Court in the said judgment."
(vi) Santosh Dutta v. Surrender Krishan Bali, 2013 SCCOnline Del
4326.
"30. It is not unusual to find more than one date in a
document submitted to a Sub-Registrar for registration.
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Therefore, on the document that is registered one is likely to
find (a) the date of its execution (b) the date of it being
presented for registration in the office of the Sub-Registrar
(c) the date when it is returned to the applicant after
registration. In the present case, the Court is satisfied that
Shri B.K. Bali did in fact execute the Will on 18 th April 1988;
that it was presented for registration on 25 th April 1988 and
that the Will was registered and the registered Will was
returned on 4th May 1988.
31. The mere fact that Shri B.K. Bali was not physically able
to come to the office of the Sub Registrar cannot lead to the
inference that when signing the Will he was not in a sound
state of mind. Since it is the Plaintiff who has raised a
challenge to the Will it is for the Plaintiff to demonstrate that
the testator was not in a sound state of mind. The Plaintiff
has not discharged that burden. Further, the mere
discrepancy in the extent of the suit property as described in
the Will is not sufficient to doubt the genuineness of the Will.
32. The Plaintiff and Defendants 1 and 2 have not been able
to demonstrate before the Court that there are any
suspicious circumstances surrounding the Will of late Shri
B.K. Bali so as to doubt its genuineness. Issue No. 1
answered in favour of Defendant No. 1 and against the 1 and
Defendants 2 and 3 by holding that late Shri B.K. Bali
executed a legal and valid Will dated 18th April 1988.
(vii) Sanjay Roy v. Sandeep Soni, 2022 SCCOnline Del 1525.
"32. In the three-Judge decision reported as Ramti Devi
(Smt.) v. Union of India, (1995) 1 SCC 198 the Apex Court
held as follows:
"Until the document is avoided or cancelled by proper
declaration, the duly registered document remains valid and
binds the parties. So the suit necessarily has to be laid within
three years from the date when the cause of action had
occurred."
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33. It is trite law that no amount of evidence or argument
in the absence of pleadings can be gone into by the Court.
In Trojan & Co. Ltd. v. Rm. N.N. Nagappa Chettiar, AIR
1953 SC 235, the Supreme Court referred to the Privy
Council decision in Mahant Govind Rao v. Sita Ram
Kesho, (1897-98) 25 IA 195 (PC) and held that decisions
cannot be founded on grounds outside the pleadings and
what has to be considered or granted is the case pleaded. It
was also held that without amendment of the pleading in
light of facts disclosed or discovered subsequently, the Court
would not be entitled to modify or alter the relief claimed.
These rulings were followed in Ram Kumar Barnwal v. Ram
Lakhan (dead), (2007) 5 SCC 660.
34. Thus, in the absence of any challenge to the
registered Conveyance Deed in favour of the plaintiff, ever
raised by the appellant in his pleadings or otherwise, it
conferred absolute ownership rights in favour of Smt.
Kalyani Roy, which is beyond challenge.
35. There is another aspect of the matter. Under Section
3 of the Transfer of Property Act, a person is said to have
"notice" of a fact when he actually knows that fact, or when,
but for willful abstention from an enquiry or search which he
ought to have made, or gross negligence, he would have
known it. The first explanation to Section 3 reads as follows:
"Where any transaction relating to immovable property
is required by law to be and has been effected by a
registered instrument, any person acquiring such property
or any part of, or share or interest in, such property shall be
deemed to have notice of such instrument as from the date of
registration or, where the property is not all situated in one
sub-district, or where the registered instrument has been
registered under sub-section (2) of section 30 of the Indian
Registration Act, 1908 (16 of 1908), from the earliest date
on which any memorandum of such registered instrument
has been filed by any Sub-Registrar within whose subdistrict
any part of the property which is being acquired, or of the
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property wherein a share or interest is being acquired, is
situated : ]"
36. In Dattatreya Shanker Mote v. Anand Chintaman
Datar, (1974) 2 SCC 799 and followed in Bina Murlidhar
Hemdev v. Kanhaiyalal Lokram Hemdev, (1999) 5 SCC 222,
it was held that the registration of a document which is
compulsorily registrable under law amounts to constructive
notice on a person aggrieved by the title or interest created
by such document.
37. The limitation for challenging the Deed is three years
as per Article 59 of the Limitation Act. The Supreme Court,
in Mohd. Noorul Hoda v. Bibi Rafiunnisa, (1996) 7 SCC
767 observed as under in regard to limitation:
"there is no dispute that Article 59 would apply to set
aside the instrument, decree or contract between the inter se
parties. When the plaintiff seeks to establish his right to the
property which cannot be established without avoiding an
instrument, that stands as an insurmountable obstacle in his
way which otherwise binds him, though not a party. The
party necessarily has to seek a declaration and have that
decree, instrument or contract cancelled or set aside or
rescinded. Section 31 of the Specific Relief Act, 1963
regulate suits for cancellation of an instrument which lays
down that any person against whom a written instrument is
void or whatever and who has a reasonable apprehension
that such instrument, if left outstanding, may cause him
serious injury, can sue to have it adjudged void or whatever
and the court may in its discretion so adjudge it and order it
to be delivered or cancelled. It would therefore be clear that
if he seeks avoidance of the instrument, decree or contract
and seek a declaration he is necessarily bound to lay the suit
within three years from the date when the facts entitling the
plaintiff to have the instrument first became known to him."
38. Section 27 of the Limitation Act prescribes that upon
expiration of the period of limitation provided, any person's
right to sue for recovery of possession of immovable
property is extinguished. It reads as follows:
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"27. Extinguishments of right to property - At the
determination of the period hereby limited to any person for
instituting a suit for possession of any property, his right to
such property shall be extinguished."
39. The Supreme Court in Prem Singh v. Birbal, (2006) 5
SCC 353 : AIR 2006 SC 3608 observed about the imperative
nature of the provision, and held that:
"11. Limitation is a statute of repose. It ordinarily bars a
remedy, but, does not extinguish a right. The only exception
to the said rule is to be found in Section 27 of the Limitation
Act, 1963 which provides that at the determination of the
period prescribed thereby, limited to any person for
instituting a suit for possession of any property, his right to
such property shall be extinguished.
12. An extinction of right, as contemplated by the
provisions of the Limitation Act, prima facie would be
attracted in all types of suits. The Schedule appended to the
Limitation Act, as prescribed by the articles, provides that
upon lapse of the prescribed period, the institution of a suit
will be barred. Section 3 of the Limitation Act provides that
irrespective of the fact as to whether any defence is set out
or is raised by the defendant or not, in the event a suit is
found to be barred by limitation, every suit instituted, appeal
preferred and every application made after the prescribed
period shall be dismissed..."
40. The appellant himself had given "No Objection" in
favour of Smt. Kalyani Devi and was always in the
knowledge of the Conveyance Deed and any challenge now
to the ownership/title of Smt. Kalyani Devi acquired by her
by virtue of Conveyance Deed, is clearly time barred. The
appellant took no steps to assert his rights at any point of
time. In these circumstances, the supervening equity in favor
of the respondents estops and bars the appellant from
opposing the title of Smt. Kalyani Devi in the property in
question.
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41. The appellant never challenged the validity of the
Conveyance Deed; rather he gave his "No Objection" in the
year 1994 for mutation of property in favour of Smt. Kalyani
Devi on the basis of which the Conveyance Deed was
executed in her favour in 2000. Interestingly, even in the
present proceedings, the Conveyance Deed and its
genuineness has not been challenged nor is there any claim
that it has been wrongly executed in favor of Smt. Kalyani
Roy. The only plea now being set up is that she had acquired
only life estate by virtue of the Will of her husband, who was
admittedly the absolute owner of the property in question.
Now the Conveyance Deed has attained finality and by
virtue of this Conveyance Deed. Smt. Kalyani Roy became
the absolute owner of the suit property and thus, competent
to enter into the Collaboration Agreement with the
Respondent No. 1.
42. The learned Single Judge has rightly held that Smt.
Kalyani Roy had an absolute right in the suit property and
findings of the learned Arbitrator contrary to the Will, were
liable to be set aside being patently illegal.
43. Now the question which arises for consideration is
whether it is within the scope of Section 34 to upset the
findings of the learned Arbitrator. Section 34 of the Act,
1996, provides the ground for setting aside the domestic
arbitral award if it is in conflict with "public policy of
India". It has been explained that in conflict with public
policy of India means (i) the award is induced or affected by
fraud; or (ii) is in contravention with the fundamental policy
of Indian Law; or (iii) is in conflict with the most basic
notions of morality of justice."
(viii) Satbir Singh v. Financial Commissioner, 2019 SCCOnline Del
7611.
"13. In the instant case it is apparent that there is a
registered Will dated 30.10.1984 in favour of the petitioners,
the deceased Dalel Singh had gone to registrar's office for
completing and executing the registration formalities of the
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Will which gives presumption that the deceased executed a
valid Will in a sound and disposing state of mind. Had he
been not in a sound and in disposing state of mind, there
would not have been a registered Will in favour of the
petitioners. Mere allegation at this stage that Will in
question is forged and fabricated does not help Respondent
No. 4 unless he discharges his onus that Will in question is
forged and fabricated by the petitioners and at the same
time, he, shows, his competence of inheritance or entitlement
better than that of the petitioners before a competent Civil
Court. Revenue officers should avoid getting into the
intricacies of legality and validity of a registered Will or
registered documents, once there exists a registered
document in favour of either of the party, the effect of the
registered document be given on the basis of presumption of
it being validly executed. Otherwise it would lead to
multiplicity of suits and gaining of time reaching neither
here nor there, example is the instant case where more than
22 years has elapsed just to sanction one mutation."
(ix) Kanta Yadav v. Om Prakash Yadav, (2020) 14 SCC 102.
"10. The learned counsel for the respondents also
referred to the Supreme Court judgment in Clarence
Pais v. Union of India [Clarence Pais v. Union of India,
(2001) 4 SCC 325] wherein, validity of Section 213 of the
Act was challenged as unconstitutional and discriminatory
against the Christians. This Court held as under : (SCC p.
332, para 6)
"6. ... A combined reading of Sections 213 and 57 of the
Act would show that where the parties to the will are Hindus
or the properties in dispute are not in territories falling
under Sections 57(a) and (b), sub-section (2) of Section 213
of the Act applies and sub-section (1) has no application. As
a consequence, a probate will not be required to be obtained
by a Hindu in respect of a will made outside those territories
or regarding the immovable properties situate outside those
territories. The result is that the contention put forth on
behalf of the petitioners that Section 213(1) of the Act is
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applicable only to Christians and not to any other religion is
not correct."
11. The statutory provisions are clear that the Act is
applicable to wills and codicils made by any Hindu,
Buddhist, Sikh or Jain, who were subject to the jurisdiction
of the Lieutenant Governor of Bengal or within the local
limits of the ordinary original civil jurisdiction of the High
Courts of Madras or Bombay -- [clause (a) of Section 57 of
the Ac]. Secondly, it is applicable to all wills and codicils
made outside those territories and limits so far as relates to
immovable property within the territories aforementioned,
clause (b) of Section 57. Clause (c) of Section 57 of the Act
relates to the wills and codicils made by any Hindu,
Buddhist, Sikh or Jain on or after the first day of January,
1927, to which provisions are not applied by clauses (a) and
(b). However, sub-section (2) of Section 213 of the Act
applies only to wills made by Hindu, Buddhist, Sikh or Jain
where such wills are of the classes specified in clauses (a) or
(b) of Section 57. Thus, clause (c) is not applicable in view
of Section 213(2) of the Act."
(x) Bacha F. Guzdar v. CIT, (1995) 1 SCR 876.
"7. It was argued by Mr Kolah on the strength of an
observation made by Lord Anderson in Commissioners of
Inland Revenue v. Forrest [8 Tax Cases, p 704 at 710] that
an investor buys in the first place a share of the assets of the
industrial concern proportionate to the number of shares he
has purchased and also buys the right to participate in any
profits which the company may make in the future. That a
shareholder acquires a right to participate in the profits of
the company may be readily conceded but it is not possible
to accept the contention that the shareholder acquires any
interest in the assets of the company. The use of the word
„assets‟ in the passage quoted above cannot be exploited to
warrant the inference that a shareholder, on investing money
in the purchase of shares, becomes entitled to the assets of
the company and has any share in the property of the
company. A shareholder has got no interest in the property
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of the company though he has undoubtedly a right to
participate in the profits if and when the company decides to
divide them. The interest of a shareholder vis-a-vis the
company was explained in the Sholapur Mills Case [1950
SCC 833 : (1950) SCR 869, 904] . That judgment negatives
the position taken up on behalf of the appellant that a
shareholder has got a right in the property of the company.
It is true that the shareholders of the company have the, sole
determining voice in administering the affairs of the
company and are entitled, as provided by the Articles of
Association to declare that dividends should be distributed
out of the profits of the company to the shareholders but the
interest of the shareholder either individually or collectively
does not amount to more than a right to participate in the
profits of the company. The company is a juristic person and
is distinct from the shareholders. It is the company which
owns the property and not the shareholders. The dividend is
a share of the profits declared by the company as liable to be
distributed among the shareholders. Reliance is placed on
behalf of the appellant on a passage in Buckley's Companies
Act (12th Edn.), p. 894 where the etymological meaning of
dividend is given as dividendum, the total divisible sum but
in its ordinary sense it means the sum paid and received as
the quotient forming the share of the divisible sum payable
to the recipient. This statement does not justify the
contention that shareholders are owners of a divisible sum
or that they are owners of the property of the company. The
proper approach to the solution of the Question is to
concentrate on the plain words of the definition of
agricultural income which connects in no uncertain
language revenue with the land from which it directly
springs and a stray observation in a case which has no
bearing upon the present question does not advance the
solution of the question. There is nothing in the Indian law to
warrant the assumption that a shareholder who buys shares
buys any interest in the property of the company which is a
juristic person entirely distinct from the shareholders. The
true position of a shareholder is that on buying shares an
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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
undoubtedly 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 as Lord Anderson puts it."
FINDINGS AND ANALYSIS
32. Heard learned counsels for the parties at length as well as carefully
perused the record of the captioned petition. I have also perused the Will
executed on 5th September 2017.
33. The controversy in the instant application revolves around the
appointment of an administrator pendent lite and removal of the executors
which have been appointed by the Testator by way of the Will. The issues
which arise for consideration by way of the instant application are that:
I. Whether a case for appointment of administrator
pendente lite u/s 247 of the Indian Succession Act, 1925
made out?
a) Whether a prima facie challenge to the validity of the
Will has been raised?
II. Whether a case has been made out to stay the EGM of
IPP India Ltd. on 24.12.2022?
34. Learned senior counsel has submitted that the executors are acting
in complete collusion with the respondents No.2 and 3 and have grossly
failed in their duty to protect the estate of the Testator which has been
substantially parted by the Respondents No.2 and 3. It is submitted that
the executors have abdicated their responsibility to deal with the estate
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and have acted in complete disregard to their statutory obligations under
Section 211 and Section 337 of the Act. It is also argued that Respondents
No. 2 and 3 are acting in a tearing hurry to frustrate the rights of the
Respondent No.4.
35. It is trite law that the testator's wish regarding as to who will be the
executor of his estate and carry out his Will must typically be respected,
and an executor named by the testator should not be removed from his
office unless, there is convincing proof that his continued appointment
would be harmful to the estates of the deceased and frustrate the testator's
Will. The named executor cannot be removed for a few isolated minor
mistakes. This concept must be considered when determining whether the
petitioners have provided enough evidence to have the executor removed
from his/her role.
36. According to Section 211 of the Act, the executor of a deceased's
will serves as the deceased's legal representative for all purposes and
becomes the owner of the deceased's property as soon as the Testator
passes away. It is a reasonably well-established legal principle that the
executor may exercise his authority and carry out the conditions of the
will even if probate is not granted. In fact, one of the key differences
between an executor and administrator is that the former may act even
before obtaining probate, whilst the latter cannot act until he has been
awarded letters of administration. The interest of an executor in the estate
of the deceased vests in him immediately on the death of the testator.
37. Therefore, courts will not readily remove an executor appointed in
probate proceedings unless gross misconduct, gross mismanagement,
abuse, or misuse of probate is demonstrated. There must be clear
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evidence that the executor's continued presence is detrimental or
detrimental to the property and would frustrate the will which he is
charged by law and the records of the will to administer. Minor errors,
erroneous assessments, or inadequate handling of matters are not
sufficient grounds to replace the testator's expression of confidence.
38. In this context, it is important to reproduce Sections 247 and 301 of
the Act.
"247. Administration pendente lite.--Pending any suit
touching the validity of the will of a deceased person or for
obtaining or revoking any probate or any grant of letters of
administration, the Court may appoint an administrator of
the estate of such deceased person, who shall have all the
rights and powers of a general administrator, other than the
right of distributing such estate, and every such
administrator shall be subject to the immediate control of the
Court and shall act under its direction.
301. Removal of executor or administrator and provision
for successor.--The High Court may, on application made
to it, suspend, remove or discharge any private executor or
administrator and provide for the succession of another
person to the office of any such executor or administrator
who may cease to hold office, and the vesting in such
successor of any property belonging to the estate."
39. It is important to observe that these Sections do not highlight any
guidelines for the removal of any private executor or administrator. While
exercising power under Section 301 of the Indian Succession Act, the
Court must ensure that no malicious or misconceived grounds are raised
to throttle the intentions of the testator by way of an application to
remove the Testator. If the Court is of the opinion that the Executor has
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acted or is acting improperly qua the Estate; or is acting in contravention
to the intention of the Testator then, it shall be justified in exercising its
jurisdiction under Section 301 of the Act in removing the executor and
succeeding him by another. The main test which must guide the Court in
reaching this conclusion is the best interests of the beneficiary. Even want
of honesty or want of proper capacity to exercise duties or want of
reasonable fidelity could justify an order under this section directing
removal of the executor.
40. In view of the above-said principles, I am unable to agree with the
contentions raised by the learned senior counsel that a case has been
made out for the appointment of an administrator pendent lite more so, as
in the instant case, no application has been moved under Section 301 of
the Act to remove the incumbent Executor and provide for the succession
of another person to such an office. Learned senior counsel for the
Respondent No.4 has submitted that it is not necessary to move an
application under Section 301 before moving an application under
Section 247 of the Act and has relied on a judgment of Bombay High
Court in Radhika Bhargava (supra) to contend that an application under
Section 301 for removal of the Executor can only be maintained by one
who accepts the Will as otherwise it would tantamount to blowing hot
and cold at the same time, and therefore, the Respondent No.4 cannot be
asked to bring forth an application under Section 301 of the Act.
41. The abovesaid judgment relied on by the learned senior counsel
was a subject to challenge before a Division Bench of the Bombay High
Court in Appeal No.56 of 2017, wherein the Division Bench of the
Bombay High Court had set aside the above-relied proposition of law
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passed by the learned single judge. The following observations of the
judgment passed by the Division Bench in Radhika Bhargava vs. Arjun
Sahagal, (2019) SCC OnLine Bom 25 are relevant.
"32. For the aforesaid reasons, we find that finding of the
learned Single Judge that application under Section 301 for
removal of executor can be made only by a beneficiary and
legatee who accepts the Will and cannot be made by a
person who seeks to dislodge the Will or contest the
application for probate or Letters of Administration with
Will annexed, is not sustainable. Insofar as other findings
are concerned, the same are not challenged before us."
42. The reliance on Inderjeet Singh (supra) is also misconceived as the
same was rendered in a different context and has no applicability in the
facts and circumstances of the present case. It did not pertain to the
absence of an application under Section 301 of the Act vis-à-vis remedy
under Section 247 of the Act.
43. Accordingly, I am unable to accept the submissions so made by the
learned senior counsel as if such was a case then, Section 301 will be
rendered as superfluous which is not only against the settled rules of
interpretation but is also in the face of the intention of the legislature.
44. It is apposite to refer to The Institute of Chartered Accountants of
India vs. M/s Price Waterhouse & Anr., (1997) 6 SCC 312.
"It is settled rule of interpretation that all the provisions
would be read together harmoniously so as to give effect to
all the provisions as a consistent whole rendering no part of
the provisions as surplusage. Otherwise, by process of
interpretation, a part of the provision or a clause would be
rendered otiose."
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45. The Hon'ble Supreme Court in Sultana Begum vs. Prem Chand
Jain, (1997) 1 SCC 373 has made the following pertinent observations:
"12. In Canada Sugar Refining Co. v. R. [1898 AC 735 : 67
LJPC 126] , Lord Davy observed:
"Every clause of a statute should be construed with
reference to the context and other clauses of the Act, so as,
as far as possible, to make a consistent enactment of the
whole statute or series of statutes relating to the subject-
matter."
XXXXXXX
15. On a conspectus of the case-law indicated above, the
following principles are clearly discernible:
(1) It is the duty of the courts to avoid a head-on clash
between two sections of the Act and to construe the
provisions which appear to be in conflict with each other in
such a manner as to harmonise them.
(2) The provisions of one section of a statute cannot be
used to defeat the other provisions unless the court, in spite
of its efforts, finds it impossible to effect reconciliation
between them.
(3) It has to be borne in mind by all the courts all the time
that when there are two conflicting provisions in an Act,
which cannot be reconciled with each other, they should be
so interpreted that, if possible, effect should be given to
both. This is the essence of the rule of "harmonious
construction".
(4) The courts have also to keep in mind that an
interpretation which reduces one of the provisions as a
"dead letter" or "useless lumber" is not harmonious
construction...."
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46. Therefore, the issue of naming an administrator pendente lite
would not come up unless and until the Executor is initially removed by
the appropriate Court in accordance with section 301 of the Act.
47. Learned senior counsel has also taken support from Section 332 of
the Act to contend that there Respondent No.3 has acted under the Will
and created third party rights over certain assets of the Testator being part
of the Will without there being a title over such assets in favour of the
Respondent No.3 inasmuch as the consent of the executor in terms of
Section 332 was not taken in the instant facts and circumstances of the
Case. In reply to the said contention, the Respondents No. 2 and 3 in their
rejoinder have taken the following stand:
"The contents of para 40 of the Objections are entirely
misconceived and are hence denied. It is submitted that the
assent of Executors in the present case is a mere formality,
and in any case such assent is clearly established based on
the fact that the Answering Respondents had informed the
Executors of transactions made in accordance with the
present Will, whereupon they stood ratified."
48. The law regarding section 332 of the Act is no longer res integra.
In K Leelavathy Bai & Ors. Vs. P.V. Gangharan & Ors., AIR 1999 SC
1267, the Hon'ble Supreme Court made the following pertinent
observations:
"Until and unless the said executors assent, the title of the
property would not pass on to the legatee. (See Sec. 332 of
the Act). Of course, in law, by the assent of the executor the
title of a specific property would pass on to the legatee and
this assent could be verbal, express or implied. (See Sec. 333
of the Act)."
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49. Reference to Section 211 is important as in terms of Section 211,
the executors of the Will becomes the legal representatives if the
deceased testator of all purposes. Section 211 is reproduced below:
211. Character and property of executor or administrator as
such.--(1) The executor or administrator, as the case may
be, of a deceased person is his legal representative for all
purposes, and all the property of the deceased person vests
in him as such.
(2) When the deceased was a Hindu, Muhammadan,
Buddhist, Sikh, [Jaina or Parsi] or an exempted person,
nothing herein contained shall vest in an executor or
administrator any property of the deceased person which
would otherwise have passed by survivorship to some other
person.
50. It must be noted that all the executors would become the legal
representatives and assent of one of them would not constitute as an
assent on behalf of the other. Reference is made to K Leelavathy Bai &
Ors. Vs. P.V. Gangharan & Ors (Supra):
"In our opinion, this pre-supposes the fact that the action of
the lone executor would suffice to confer the title of the
executors on the legatees. We are unable to agree with this
proposition of law. Under Section 211 of the Act the
property of the deceased testator vests in all the executors
and if there are more than one executor, all of them together
become legal representatives of the deceased testator. In
such a situation, it is futile to contend that the estate of the
deceased testator could be either controlled or represented
by one of the legal representatives of the deceased to the
exclusion of other legal representatives."
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51. Section 336 of the Act is also relevant in the present context. For
the sake of clarity it is reproduced below along with the illustration (i)
appended to it:
336. Effect of executor's assent.--The assent of the executor
or administrator to a legacy gives effect to it from the death
of the testator.
Illustrations
(i) A legatee sells his legacy before it is assented to by the
executor. The executor's subsequent assent operates for the
benefit of the purchaser and completes his title to the
legacy.
52. The Calcutta High Court in Khagendra v. Khatranath, 1922 ILR
50 Cal 171 has held that the legatee has a vested right to the legacy even
though the assent of executor is not given, with the result that any
alienation by the legatee before assent by the executor is not void, but
merely inchoate until assent is given.
53. When the executor gives his assent to a specific bequest, that
would be sufficient to divest his interest as executor and to transfer the
subject of the bequest of the legatee, unless the nature or the
circumstances of the property require that it shall be transferred in a
particular way, as provided in Section 333 of the said Act. On a perusal of
the emails dated 28th May 2021 (Document B to the IA) forwarded to the
Respondent No.4 by the executors and email dated 31 st May 2021
(Document I to the IA) sent by Respondent No.4 to the Executors herein,
I am of the firm opinion that Section 332 has been complied in the instant
case as there has been a subsequent ratification of the transactions entered
into by the Respondent No.3 by both the Executors herein.
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54. Learned senior counsel has also taken support of Section 337 of the
Act to contend that in any case, even if it is assumed that there was a
ratification/consent of the Executors, but Section 337 would come into
play which bars Executors to give consent before the expiration of one
year from the death of the Testator. Section 337 is being reproduced
below:
"337. Executor when to deliver legacies.--An executor or
administrator is not bound to pay or deliver any legacy until
the expiration of one year from the testator‟s death.
Illustration A by his Will directs his legacies to be paid
within six months after his death. The executor is not bound
to pay them before the expiration of a year."
55. I have carefully perused Section 337 and, I am of the considered
opinion that this is not the correct interpretation of this section. The
language used in Section 337 cannot be interpreted in the manner
portrayed by Respondents No.4. The language used is that the Executor is
'not bound' and the language is not that the Executor is 'barred'. It is a
settled proposition of law that the words used in a statute should be given
a plain and ordinary meaning when the language of the statute is plain
and unambiguous. The Hon'ble Supreme Court in Union of India and
another vs. Hansoli Devi and others, (2002) 7 SCC 273, made the
following pertinent observations:
"9. "It is a cardinal principle of construction of a statute that
when the language of the statute is plain and unambiguous,
then the court must give effect to the words used in the
statute and it would not be open to the courts to adopt a
hypothetical construction on the grounds that such
construction is more consistent with the alleged object and
policy of the Act."
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56. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra, AIR
2001 SC 1980, this Court observed :
"It is a cardinal principle of interpretation of statute that the
words of a statute must be understood in their natural,
ordinary or popular sense and construed according to their
grammatical meaning, unless such construction leads to
some absurdity or unless there is something in the context or
in the object of the statute to suggest to the contrary. The
golden rule is that the words of a statute must prima facie be
given their ordinary meaning. It is yet another rule of
construction that when the words of the statute are clear,
plain and unambiguous, then the Courts are bound to give
effect to that meaning, irrespective of the consequences. It is
said that the words themselves best declare the intention of
the law-giver. The Courts are adhered to the principle that
efforts should be made to give meaning to each and every
word used by the legislature and it is not a sound principle
of construction to brush aside words in a statute as being
inapposite surpluses, if they can have a proper application
in circumstances conceivable within the contemplation of the
statute".
57. In other words, we must interpret the statute as it is, without
changing or modifying its wordings. It is also pertinent to refer to
forgotten Mimansa Rules of Interpretation which were our traditional
principles of interpretation used for thousand of years by our jurists.
According to the Mimansa Principles, the Sruti Principle or literal rule of
interpretation will prevail over all other principles, e.g., Linga, Vakya,
Prakarana, Sthana, Samakhya etc.
58. It is deeply regretted that these principles are not frequently cited in
our Courts today in spite of the fact that these rules of interpretation have
been one of our best accomplishment.
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59. Another argument taken by the learned senior counsel is that a
prima facie case has been made out raising suspicions over the alleged
Will as the Testator was not in a fit mental state to execute the Will as it
has been alleged to have been executed in the year 2017. He has also
raised a ground that both the attesting witnesses are employees of the
Respondent No.3 and were unknown to the testator. It is also posited that
the execution of the alleged Will is vitiated by Duress, Coercion and
Undue Influence as though the Testator was accompanied by his wife
being Respondent No.2, but she has not been made an attesting witness
and he was also accompanied by the Respondent No.3 to the SDM office
being the major beneficiary to the said Will. It is also pointed out that the
division of shares in unnatural as the Respondent No.4 has been
substantially kept out from the Estate of the Testator and there is certain
glaring discrepancies in the Will received over whatsapp by Respondent
No. 4 and the Will received from the sub-registrar's office.
60. I have carefully considered these submissions and having done so,
I am not persuaded by the arguments so advanced by the learned senior
counsel. It must be appreciated that the court of probate is a court of
conscience and not a court of suspicion and the wishes of the testator
cannot be throttled merely because of certain aspersions are being casted
on the authenticity of the Will without any basis. The Hon'ble Supreme
Court in V. Prabhakara vs. Basavaraj K. (Dead) by Lr., AIR 2021 SC
4830, made the following pertinent observations:
"25.A testamentary court is not a court of suspicion but that
of conscience. It has to consider the relevant materials
instead of adopting an ethical reasoning. A mere exclusion
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of either brother or sister per se would not create a
suspicion unless it is surrounded by other circumstances
creating an inference. In a case where a testatrix is
accompanied by the sister of the beneficiary of the Will and
the said document is attested by the brother, there is no
room for any suspicion when both of them have not raised
any issue."
61. A registered document carries a rebuttable presumption in its
favour and it is presumed to be genuine in terms of Section 114(e) of the
Evidence Act, 1872. The presumption though a rebuttable one but a
burden is laid in the shoulders of the party alleging contrary to its
genuineness. In Prem Singh & Ors. Vs. Birbal & Ors., (2006) 5 SCC
353, the Hon'ble Supreme Court made the following pertinent
observations:
"27. There is a presumption that a registered document is
validly executed. A registered document, therefore, prima
facie would be valid in law. The onus of proof, thus, would
be on a person who leads evidence to rebut the presumption.
In the instant case, Respondent 1 has not been able to rebut
the said presumption." (emphasis supplied) In view thereof,
in the present cases, the initial onus was on the plaintiff, who
had challenged the stated registered document."
62. Learned senior counsel has relied on Dharam Chand (supra) to
contend that no presumption can be drawn in favour of the registered Will
about its genuineness. I am unable to agree with the said decision as then
the solemn objective of registration to guard against fraud of a document
qua Will would fall to the ground. It is pertinent to refer to the landmark
decision of the Hon'ble Supreme Court in Rajni Tandon vs. Dulal
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Ranjan Gosh Dastidar, 2009 (14) SCC 782, wherein the Supreme Court
made the following observations:
"27.The object of registration is designed to guard against
fraud by obtaining a contemporaneous publication and an
unimpeachable record of each document."
63. It is also pertinent to refer to the decision of the Hon'ble Supreme
Court in Rani Purnima Devi & Anr. vs Kumar Khagendra Narayan
Dev, AIR 1962 SC 567, wherein the apex Court held as follows:
"There is no doubt that 'if a will has been registered, that is
a circumstance which may, having regard to the
circumstances, prove its genuineness But the mere fact that a
will is registered will not by itself be sufficient to dispel all
suspicion regarding it where suspicion exists, without
submitting the evidence of registration to a close
examination......"
64. Undoubtedly, registration will be an additional point weighing in
favour of the execution of the Will and it cannot be an incontrovertible
piece of evidence to prove the Will, which will be highly dependent on
the facts and circumstances of the execution of the Will, but merely
because one of the beneficiary under the Will is kept out from other
assets of the deceased Testator or there has been unequal distribution
cannot be a ground to question the authenticity and genuineness of the
Will more so, when the Will under challenge is a registered document. It
is also apposite to state that the entire findings on this controversy may
not be relevant at this stage, as this Court at this stage has to only
consider if any prima facie case has been made out or not.
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65. The reliance on Atula Bala Dasi (supra) will not help the case of
the Respondent No.4 as it was rendered in the context when an execution
petition was stayed by the probate court as by way of the execution
certain assets alleged to be owned by the judgment debtor were sought to
be attached, which were in fact opposed, as not being owned by the
judgment-debtor and being subject matter of the pending probate petition.
66. Learned senior counsel has emphatically prayed that as the EGM of
IPP India Ltd scheduled on 24th December 2022 has been illegally
scheduled and this Court must direct that status quo be maintained as by
way of the EGM third party rights will be created over various assets
being part of the Will of the Testator. It is submitted that IPP India Ltd
conducts no business operations and is merely a holding company for the
said immovable property, which is proposed to be sold at the behest of
Respondent No.2 and 3. It is also argued that any sale would be
irreversible and thus, would deprive the Respondent No.4 of her rights.
67. Learned counsel for Respondents No. 2 and 3 has taken a plea that
the assets of Rishabh Holdings Pvt. Ltd. do not form part of the Will of
the Testator and this Court being a court of probate cannot adjudicate
upon assets which do not form part of the Estate of the Testator. It is
further argued that even if it is assumed that the assets of the company
form part of the Estate of Testator but then also as the assets of the
company are exclusively owned by the company itself and not the
shareholders, and as the company is not a party to the present proceedings
therefore, no adverse orders can be passed against the company. It is also
submitted that such a relief is clearly barred in terms of Section 430 of the
Companies Act, 2013.
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68. This Court finds force in the submissions raised by the learned
counsel for Respondents No.2 and 3 inasmuch as on a careful perusal of
the Will it would show that the deceased Testator's shareholdings inter
alia in Rishabh Holdings Pvt. Ltd., Sobhagya Capital Options Limited
and IPP India Limited were bequeathed to the Respondent No.3 and, it is
not the case of Respondent No.4 that the shareholdings of the said
companies which constitute the majority stakes in IPP India Ltd. were
bequeathed to the Respondent No.4 and the Respondents No.2 and 3 are
illegally intermeddling over the shares which have not been bequeathed
in their favour.
69. This Court is also conscious of the dictum of the Hon'ble apex
court in Bacha F. Guzdar vs Commissioner of Income Tax, (1995) 1
SCR 876 wherein, it was categorically held that a shareholder does not
acquire any interest in the assets of the Company. The relevant portion is
reproduced below:
"7..... That a shareholder acquires a right to participate in
the profits of the company may be readily conceded but it is
not possible to accept the contention that the shareholder
acquires any interest in the assets of the company. The use of
the word „assets‟ in the passage quoted above cannot be
exploited to warrant the inference that a shareholder, on
investing money in the purchase of shares, becomes entitled
to the assets of the company and has any share in the
property of the company. A shareholder has got no interest
in the property of the company though he has undoubtedly
a right to participate in the profits if and when the
company decides to divide them. The interest of a
shareholder vis-a-vis the company was explained in the
Sholapur Mills Case . That judgment negatives the position
taken up on behalf of the appellant that a shareholder has
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SHARMA
Signing Date:23.12.2022
18:48:23
NEUTRAL CITATION NO:2022/DHC/005814
got a right in the property of the company. It is true that the
shareholders of the company have the, sole determining
voice in administering the affairs of the company and are
entitled, as provided by the Articles of Association to declare
that dividends should be distributed out of the profits of the
company to the shareholders but the interest of the
shareholder either individually or collectively does not
amount to more than a right to participate in the profits of
the company. The company is a juristic person and is
distinct from the shareholders. It is the company which
owns the property and not the shareholders....."
70. The reliance of the learned senior counsel on Universal Cables
(supra) will not be of any relevance as it was rendered in the context
where the executor of the Will had died and subsequent to that only an
administrator pendent lite was appointed in the best interests of the affairs
of the Estate. Therefore, this Court is not inclined to stay the EGM of IPP
India Ltd. scheduled for 24th December 2022.
CONCLUSION
71. In view of the foregoing discussion on law and facts, this Court is
of the considered opinion that the present application is not only liable to
be dismissed on merits but also on the ground of maintainability as no
preceding application under Section 301 of the Act has been filed by the
Respondent No. 4.
72. Accordingly, IA No.9861/2022 being devoid of any merit is
dismissed both on the grounds of maintainability as well as on merits for
the reasons discussed in the aforesaid paragraphs.
73. Before parting, though not specifically in the facts of the present
case, this Court berates as to how a web of complex IAs is deliberately
created in the civil suits as well as other petitions pending only to ensure
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Digitally Signed By:GAURAV
SHARMA
Signing Date:23.12.2022
18:48:23
NEUTRAL CITATION NO:2022/DHC/005814
that the main matter never meets its logical conclusion and the precious
judicial time is exhausted in adjudicating only the numerous IAs. It
should be noted that until the Bar and Bench comes together to fix
responsibility qua the meritless IAs filed, the main matters will continue
to linger and will never see the light of the day. This court is conscious of
its duty to the citizens of the country and hence, is constrained to make
such observations.
74. The judgment be uploaded on the website forthwith.
TEST.CAS. 59/2022 & I.A. 20925/2022
List on 21st February, 2023.
(CHANDRA DHARI SINGH)
JUDGE
DECEMBER 23, 2022
gs/mg
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Digitally Signed By:GAURAV
SHARMA
Signing Date:23.12.2022
18:48:23
