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.