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Court In Karam Devi v. Radha Kishan And Others; Reported
Factual and Procedural Background
Smt. Shanta Garg died on 25th December, 1986, leaving a Will dated 5th May, 1986. Probate of the Will was granted by the Court on 31st March, 1997. Despite the probate, the estate covered by the Will has remained unadministered for over 25 years. There is significant acrimony between her two sons, Davendra Kumar Garg and Tejendra Kumar Garg, who are joint executors of the Will. Devendra Kumar Garg filed an application seeking the removal of Tejendra Kumar Garg as executor and his own appointment as sole executor. Alternatively, he requested the appointment of an independent administrator over the estate. The dispute involves issues related to a family settlement and the administration of the estate, including a temple complex adjoining the estate property.
Legal Issues Presented
- Whether Tejendra Kumar Garg should be removed as joint executor and replaced by Devendra Kumar Garg as sole executor, or alternatively, whether an independent administrator should be appointed over the estate.
- Whether disputes arising from the family settlement prevent the administration of the estate under the Will and probate.
- The applicability and scope of Section 301 and Section 317 of the Indian Succession Act, 1925, in removing executors and enforcing administration duties.
Arguments of the Parties
Applicant's Arguments (Devendra Kumar Garg)
- Tejendra Kumar Garg should be removed as executor due to non-cooperation and failure to administer the estate.
- In the alternative, an independent administrator should be appointed to manage the estate.
- Non-administration of the estate despite probate granted on 31st March, 1997 is inexcusable.
Respondent's Arguments (Tejendra Kumar Garg, represented by Mrs. Pooja Das Chowdhury)
- There exists a Terms of Settlement between the parties, which was embodied in a Court decree, covering matters beyond the Will, including a temple complex not part of the estate.
- Reliance on the precedent from In the Goods of: Akshoy K. Ghose, deceased (AIR 1949 Calcutta 462) to argue that disputes arising from the family settlement cannot be resolved by removal under Section 301 but require a separate suit.
- Contention that due to disputes arising from the family settlement, the estate cannot be administered at this stage.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In the Goods of: Akshoy K. Ghose, deceased; AIR 1949 Calcutta 462 | Disputes arising from family settlements require a separate suit and are not resolved by removal under Section 301 of the Indian Succession Act. | The Court acknowledged this precedent but rejected the argument that the dispute prevented administration of the estate. |
| Karam Devi vs. Radha Kishan and Others; AIR 1935 Lahore 406 | The Court has the power to remove an executor who does not conduct himself properly. | The Court relied on this precedent to justify removal of the joint executors and appointment of independent administrators. |
Court's Reasoning and Analysis
The Court observed that the family settlement embodied in the decree was equally binding on the joint executors as was the probate. The joint executors had a duty to administer the estate in accordance with both the probate and the family settlement decree. The Court found the inaction since the probate grant in 1997 to be inexcusable despite attempts such as appointment of valuers and preparation of partition plans. The Court held that the disputes arising from the family settlement did not preclude administration of the estate and rejected the contention that such disputes should be resolved by a suit or arbitration at this stage.
Section 301 of the Indian Succession Act was invoked because the joint executors failed to carry out their mandate. The Court also referred to Section 317, which requires executors to file inventory and accounts within specified timeframes, noting that no such reports were filed. Under Section 263(e), the Court has the power to revoke the grant of probate if accounts are not filed.
Based on these provisions and the precedents cited, the Court exercised its power to remove the joint executors. It appointed independent joint administrators with clear directions to administer the estate expeditiously, file inventories and accounts within six months, and resolve any disputes swiftly. The Court emphasized that all actions should be minuted and decisions made in consultation with the parties.
Holding and Implications
The Court removed the present joint executors and appointed Dr. Hare Krishna Saharay and Mr. Ashok Gupta as joint administrators to complete the administration of the estate within six months, in accordance with the probate and family settlement.
The joint administrators are to engage a new surveyor and valuer, resolve any disputes promptly, and file inventory and accounts with the Court within six months. They will be remunerated initially and monthly by the two brothers equally, with other costs shared accordingly.
The direct effect of this decision is the removal of the executors who failed to administer the estate and the appointment of independent administrators to ensure expeditious completion of the estate administration. No new precedent was set beyond the application of existing statutory provisions and case law.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI Date : 3rd June, 2013.
Mr. A. Banerjee, Mr. R. Sarkar...appear.
Mrs. Pooja Das Chowdhury, Mr. N. Khanra...appear.
The Court : Smt. Shanta Garg died more than 25 years ago on 25th December, 1986, leaving her last Will and Testament dated 5th May, 1986. Probate of the Will was granted by this Court on 31st March, 1997. Yet for so many years, the estate covered by the Will remains unadministered.
There is considerable acrimony amongst her two sons, Davendra Kumar Garg and Tejendra Kumar Garg, who are the joint executors. Devendra Kumar Garg is the applicant in this application, who wants removal of Tejendra Kumar Garg as executor and his appointment as the sole executor. In the alternative, Mr. Banerjee, for Devendra Kumar Garg submitted that an independent administrator should be appointed over the estate.
There is a serious dispute between the two brothers. Mrs. Pooja Das Chowdhury for Tejendra Kumar Garg submitted that there were already a Terms of Settlement between the parties on which a decree had been passed by this Court. These Terms of Settlement included subject matters, which were not covered by the Will of Smt. Shanta Garg. My attention was drawn to a temple complex contiguous to or forming a part of 6/1, Belvedere Road, Kolkata. Although premises no.6/1, Belvedere Road was the estate covered by the Will, the temple complex was not.
Mrs. Pooja Das chowdhury relied on In the Goods of: Akshoy K. Ghose, deceased ; reported in AIR 1949 Calcutta 462 to submit that in case of such a dispute an application under Section 301 of the Indian Succession Act, 1925 to remove the arbitrator did not lie but it ought to be resolved through a separate suit. In the terms of settlement there was a provision for appointment of an arbitrator. Mr. Banejree, on the other hand, cited the decision of the Lahore High Court in Karam Devi vs. Radha Kishan and Others; reported in AIR 1935 Lahore 406 to submit that if an executor did not conduct himself properly the Court had the power to remove him. The contention of Mrs. Pooja Das Chowdhury seems to be since there are disputes arising out of the family settlement, the estate cannot be administered.
I am unable to accept this contention.
The family settlement as embodied in the decree was equally binding on the Joint Executors as was the probate. It was the duty of the Joint Executors to administer the estate in accordance with the grant of probate and the family settlement decree in so far as it had a bearing on the administration of the estate. Doing noting since 31st March, 1997 is plainly inexcusable. I am told that Valuers were appointed for the purpose of partition of the property. Partition plans were drawn up. But it appears that the net result of this exercise has been nil.
Since the Joint Executors, in my opinion, have not carried out the mandate of the Will, Section 301 comes into play. Of course, I appreciate the submission of Mr. Banerjee that because of the non-cooperation of Tejendra Kumar Garg, his client could not administer the estate. I am not going into this dispute.
Section 317 of the Indian Succession Act, 1925 enjoins the executor to file an inventory and accounts within six months of the grant of probate and a further account of the estate within one year from the grant to show as to how the assets of the estate have come into his hands and applied by him. There is no report by the Joint Executors or either of them, in this respect. Under Section 263[e] of the said Act, the Court has the power to revoke the grant in case such accounts are not filed.
In this particular case this Court is anxious that the estate is administered as expeditiously as possible. To my notion there is no dispute which is referable to a suit or an arbitrator at this stage. In fact, there is lack of action on the part of the joint executors as a result of which the Court can exercise its powers under Section 301 of the Indian Succession Act, 1925, following Karam Devi vs. sRadha Kishan & Ors.; reported in AIR 1935 Lahore 406 [supra] .
In those circumstances, I remove the present joint executors and appoint Dr. Hare Krishna Saharay, Bar-at-Law and Mr. Ashok Gupta, advocate both of Bar Library Club as the Joint administrators to complete administration of the estate of Smt. Shanta Garg within six months from date, in accordance with the probate and the terms of settlement between the parties. The Joint administrators will engage a new Surveyor and Valuer and embark upon accomplishment of the above task. If any dispute is raised by the parties, the Joint administrators will resolve it as quickly as possible and proceed with the administration of the estate. The Joint administrators will file an inventory and accounts in this Court within six months. All proceedings before the Joint administrators should be minuted and all decisions should be taken in consultation with the parties.
The Joint administrators will be paid an initial remuneration of 1000 GMs. each and a monthly remuneration of 500 GMs. each, by Devendra Garg and Tejendra Garg in equal shares. All other costs and charges will be met accordingly.
This application is disposed of.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
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