Allahabad High Court
Rajendra Prasad Gupta And Others vs Smt. Vimla Devi And Others on 24 April, 2019
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On 12.12.2018 Delivered On 24.04.2019 Case :- FIRST APPEAL FROM ORDER No. - 2077 of 2010 Appellant :- Rajendra Prasad Gupta And Others Respondent :- Smt. Vimla Devi And Others Counsel for Appellant :- R.C. Singh Counsel for Respondent :- Pankaj Agrawal Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the parties.
2. The present appeal is directed against the judgement and order dated 24.05.2010 passed by the Additional District Judge, Court No.1, Meerut whereby, the court below has dismissed the application of appellants under Section 247 of Indian Succession Act, 1925 (hereinafter referred to as the "Act, 1925") registered as Misc. Case No. 70 of 2007 in Probate Misc. Case No. 229 of 1974.
3. The brief facts as borne out from the records are that one Kanti Prasad was doing transport business in Meerut. He died on 29th August, 1974. Smt. Vimla Devi,respondent no.1 (hereinafter referred to as 'respondent no.1') wife of sister's son of deceased Kanti Prasad filed a petition under Section 299 of the Act, 1925 numbered as Misc. Case No. 229 of 1974 for grant of probate of will dated 29.08.1974 before the Additional District Judge, Court No.1, Meerut which is said to have been executed by deceased Kanti Prasad in favour of respondent No.1 with respect of the whole property detailed in Annexure 1 at the end of the probate petition.
4. It appears that during the pendency of the probate petition, respondent no.1 filed an application 57 (ग) seeking leave of the court to obtain permit in respect of buses detailed in Annexure A of the petition. On 19.4.1976 , the court below passed the following order on the said application:-
"I have heard the learned counsel for the parties. Smt. Bimla Devi shall obtain temporary permits, if possible, in the name of Kanti Prasad otherwise in her own name and shall continue to operate the four buses left by Kanti Prasad. She shall also maintain regular and correct accounts. These accounts shall be filed on the first of every month."
5. The aforesaid probate petition was contested by the Jayanti Prasad, father of appellant nos.1 and 2 and brother of deceased Kanti Prasad. The probate petition was dismissed by the Ist Additional District Judge, Meerut by judgement and order dated 17th August, 1983 on the ground that the language used in the will dated 29.08.1974 suggests that executant was settling the property in favour of respondent no.1 immediately after execution of will, therefore the said document did not fulfill the requirement of valid will.
6. Feeling aggrieved, Respondent no.1 preferred F.A.F.O. No.570 of 1983 before this Court challenging the order dated 17th August, 1983 passed by the court below rejecting the probate petition of respondent no.1. In the said appeal, this Court passed an order dated 23.01.1984 permitting the father of the appellant Jayanti Prasad to obtain permit of the buses. The order of this court dated 23.01.1984 is reproduced herein-below:-
"The appellant has made a claim to ply the vehicles in question under a will dated August 29, 1974. The application made for grant of probate has been rejected on August 17, 1983. During the pendency of that proceeding, the District Judge made an interim order dated 19.4.1976, providing that the appellant shall, if possible obtain temporary permits in the name of Kanti Pd. and shall continue to operate his four buses left by Sri Kanti Pd, deceased. It was further directed that appellant shall also maintain a regular and correct account and submit the same to the Court. The probate application being rejected, this interim order has obviously lapsed. In these circumstances, until further orders, the respondent no. 1 shall be entitled to operate buses in question in the capacity of an Administrator, subject to his obtaining temporary permits, if possible, and he shall as well maintain and submit correct and regular accounts in the court of the Additional District Judge, Meerut. The appellant shall make available to the respondent the vehicles in question upon the respondent having obtained the permits, as mentioned above, to operate the same."
7. It appears that respondent no.1 instead of complying with the interim order of this Court dated 23.01.1984 preferred Special Leave to Appeal (Civil) No.15966 of 2007 before the Apex Court wherein Apex Court stayed the operation of the order dated 23.01.1984, but the said appeal was later on dismissed by Apex Court by judgement and order dated 30.11.1998. Thereafter, respondent no.1 preferred a review petition before the Apex Court for Review of the order dt.30.11.1998 which was also dismissed by the Apex Court by order dated 01.08.2000.
8. Later on this Court by judgement dated 04.04.2007 dismissed F.A.F.O. No. 570 of 1983. The respondent no.1 preferred Special Leave to Appeal (Civil)No.(s)15966 of 2007 against judgment dated 04.04.2007 which was dismissed by the Apex Court by order dated 14.09.2007. The order of the Apex Court in the special leave petition is extracted herein below:-
"Upon hearing counsel the Court made the following order:-
The special leave petition is dismissed."
9. Subsequent to the dismissal of Special Leave Petition, Appellant preferred an application under Section 247 of the Act, 1925 registered as Misc. Case No. 70 of 2007 on the ground that respondent no.1 was having possession over the property and buses detailed in Schedule 'Ka' and 'Kha' of the application in the capacity of receiver in compliance of the interim order dated 19.04.1976 in probate case, and as such after dismissal of the special leave petition by the Apex Court, the respondent no.1 has no right to continue with the possession of the buses and immovable properties even in the capacity of tenant. It was further pleaded that appellants being legal heir of Late Kanti Prasad have become owner of the property and, therefore, they are entitled to get the possession over the property in dispute.
10. Respondent no.1 filed reply to the aforesaid application contending therein that opposite party being in possession over the property in dispute as a tenant are entitled to retain the possession over the property. It was further pleaded that the buses have been burnt in riots in the year 1987 at Mawana Bus Stand, Meerut and are no more in existence.
11. The court below by order dated 24.05.2010 dismissed the application of the appellants under Section 247 of the Act, 1925 on the ground that since no proceeding of probate is pending, therefore, the application under Section 247 of Act,1925 is not maintainable. The court below further held that since it did not permit the respondent no.1 to retain possession over immovable properties rather respondent no.1 was in possession in the capacity of tenant, and had it not been so, there was no occasion for the appellant to institute Suit No. 527 of 1981, thus, respondent no.1 has been in possession over the property as tenant, and as the appellants are not the landlord, therefore they (appellants), being third party, cannot seek eviction of respondent no.1, hence, they are not entitled to get possession over the property in dispute under Section 247 of the Act, 1925.
12. Challenging the order dated 24.05.2010, learned counsel for the appellants has contended that possession of respondent no.1 over the property in dispute was in the capacity of administrator in pursuance of the order dated 19.04.1976 of the Civil Court passed on application 57(ग) in exercise of power under section 247 ot the Act,1925, and the term of the receiver would come to an end with the dismissal of Probate Petition and affirmation of the said order by this court as well as by apex court. Thus, respondents have no right to continue with possession over the property in dispute and to manage the buses. Thus, he submits that the order of the court below rejecting the application of appellant under Section 247 of the Act, 1925 is based upon misinterpretation of the said Section.
13. He further contends that appellants being the sons of real brother of the deceased are the legal heirs of Class II specified in the Schedule under Section 8 of the Hindu Succession Act,1956 [hereinafter referred as Act,1956] and have the first right of succession over the property and respondent no.1 does not have any legal right to continue with the possession of the property in dispute as she is not the legal heir of the deceased. Learned Counsel for the appellant has placed reliance upon the judgement of Patna High Court in the case of Bhikhari Mahton Vs. Budho Kuer and others AIR 1940 Patna 177 in support of his submission.
14. Per contra, learned counsel for the respondents submits that from the reading of Section 247 of Act, 1925, it is evident that application under Section 247 is maintainable only where there is any proceeding pending in the court; and in the case in hand, the proceeding terminated with the order passed by the court below on the probate petition and no proceeding was pending on the date of filing the application, thus the court below has rightly dismissed the appellant's application . He submits that respondent no.1 continued in possession over the property in dispute as tenant and not as an administrator and was in custody of the buses prior to the institution of probate proceedings, therefore, court below rightly refused to exercise its powers under Section 247 of the Act, 1925 to divest the respondents from the possession over the property in dispute and issue direction for handing over the possession of the buses to the appellants.
15. I have considered the rival submissions of the parties and perused the record.
16. Before adverting to the respective arguments advanced by the parties, it would be useful to have a glance at Section 247 of the Act, 1925 which is extracted herein below"-
"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. Bare reading of Section 247 of Act, 1925 reveals that pending any suit touching the validity of the will, the court in order to preserve the property can appoint administrator of the estate of deceased. The Apex Court in the case of Subhadra Rani Pal Choudhary Vs. Sheirly Weigal Nain and Others (2005) 5 SCC 230 while considering the scope of Section 247 held that administrator appointed under Section 247 of Act, 1925 shall have all the powers and rights of general administration other than the right of distributing such estate. Paragraph 10 and 18 of the judgement relevant in the context of present case is extracted herein below:-
"10. According to Section 211, an executor or administrator of a deceased person is legal representative for all purposes and all the property of the deceased person vests in him. This Section lays down that when there is an executor or administrator of the deceased, he is the legal representative of the deceased for all purposes and all the property vests in him. Section 227 says that after the probate of the will is granted then it becomes effective from the death of the testator and shall render valid all intermediate acts of the executor as such. Therefore, according to Section 227, the moment the probate is granted it will relate back from the date of death of the testator and all property will be vested in the person in whose favour the probate was granted. Section 247 only lays down that administrator can be appointed pendente lite i.e. the Court can appoint administrator 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.
18. This Court has summarized the legal position. So far as the appointment of receiver is concerned, it was clearly laid down that the receiver's appointment is co-terminus with suit/appeal and if suit or appeal is disposed of then the appointment is brought to an end. But at the same time the court has a power to continue the receiver after the final decree, if the exigencies of the case so require. .....................
18. At this juncture, it would be useful to notice another judgement of the Apex Court in the case of Sherali Khan Mohamed Manekia Vs. State of Maharashtra and Others (2015) 12 SCC 192 wherein it considered the issue as to whether the term of the receiver terminates with the disposal of appeal or till a specific order discharging the receiver is passed by the court . Relevant portion of the aforesaid judgement is extracted herein below:-
"11. Normally, when a Receiver is appointed on an interlocutory application without any limit of time, it is necessary to provide for the continuance of his appointment in the final judgment. In Halsbury Laws of England, 3rd Edn., Vol. 32 (Lord Simond) at page 386 says :-
"616. Duration of appointment by court.- "When a receiver is appointed for a limited time, as in the case of interim orders, his office determines on the expiration of that time without any further order of the court, and if the appointment is 'until judgment or further order' it is brought to an end by the judgment in the action. The judgment may provide for the continuance of the receiver, but this is regarded as a new appointment. If a further order of the court, though silent as to the receivership, is inconsistent with a continuance of the receiver, it may operate as a discharge."
When a receiver has been appointed on an interlocutory application without any limit of time, it is not necessary to provide for the continuance of his appointment in the final judgment. The silence of the judgment does not operate as a discharge of the receiver or determination of his powers. So also the appointment of a receiver by the judgment in an administration action need not be continued by the order, no further consideration."
12. In Law of Receiver, 4th Edn. by James L. High, the following observation appears at page 985:-
"the functions of a receiver usually terminate with the termination of the litigation in which he was appointed. And when the bill upon which the appointment was made is afterwards dismissed upon demurrer, the duties of the receiver cease as between the parties to the action..... And although as between the parties to the litigation his functions have terminated with the determination of the suit, he is still amenable to the court as its officer until he has complied with its directions as to the disposal the funds which he has received during the course of his receivership....But an order of discharge does not necessarily follow, in all cases, because of the determination of the suit, and the court may, upon sufficient cause shown, either discharge or continue the receiver, according to the exigencies of the case."
13. In our view, when a Receiver is appointed pending suit or appeal, the prime objective is to preserve the property by taking possession or otherwise and to keep an account of rent and profits that may be realized by the Receiver and to submit it before the court till the lis is finally decided. Ordinarily the function of receivers who are appointed comes to an end with the final decision of the case. However, even after the final decision, the Court has the discretion to take further assistance of the Receiver as and when the need arises. In the instant case, admittedly, the appellants have already put the decree in execution for recovery of possession. We are, therefore, of the opinion that the Executing Court while executing the decree may take assistance of the Receiver or by appointing new Receiver or Commissioner for effecting delivery of possession in accordance with law and not more than that."
19. Thus, from the aforesaid two judgments of the Apex Court,it can be safely culled out that the term of the receiver is co- terminous with the suit or appeal and would come to an end with the disposal of suit or appeal.
20. Now, in the instant case, it transpires from the record that respondent no.1 was permitted to manage buses in compliance of the order dated 19.04.1976 passed in application no. 57(ग) of respondent no.1. After dismissal of the probate proceedings, respondent no.1 was directed to handover the possession of buses to the appellants by the order dated 23.01.1984 and respondent no.1 instead of complying with the interim order, preferred special leave petition which was also dismissed by the Apex Court. Later on, review petition preferred against the said judgement was also dismissed. Thus, respondent no.1 was allowed to manage the buses as administrator by the order dated 19.04.1976 of the court below.
21. It would also be useful to notice judgement of the Patna High Court in the case of Bhikhari Mahton (supra) wherein Patna High Court after considering the scope of Section 247 held that term of administrator appointed under Section 247 of Act, 1925 shall come to an end with the termination of probate proceedings. Paragraph 3 and 4 of the aforesaid jugement is extracted herein below:-
"3. The position of an administrator pendente lite was examined in the case of Gour Moni Dassi and others v. Baroda Kanta Jana, reported in 44 I.C. 657: (A.I.R. (6) 1919 Cal. 980). Their Lordships of the Calcutta High Court observed in this case that the position of an administrator pendente lite in probate proceedings is closely analogous to that of a receiver in a partition suit. In the present case, we are not at all concerned with the question as to whether the appointment was properly made or not. In fact, from what has been stated above it will be seen that really speaking both the parties agreed and the learned District Judge made the appointment in pursuance of such agreement. The claim of the petitioner is that he was in possession of the disputed property and that no possession was delivered to him by the Court when the latter appointed him under S. 247, Succession Act. According to the learned advocate for him when the probate proceedings terminated the appointment of administrator pendente lite automatically came to an end, and the Court had no power to direct the petitioner to deliver possession to the successful party. In the alternative, it has been argued that the petitioner may be allowed to continue as administrator pendente lite until the disposal of the appeal which he has filed against the order of the learned Additional District Judge refusing to grant a probate of the will. In the case of Smt. Pramila Bala Devi v. Jyotindra Nath Banerjee and others, reported in 28 C.W.N. 576: (A.I.R. (11) 1924 Cal. 631) it has been held by a Division Bench of the Calcutta High Court that the duties of an administrator and receiver pendente lite commence from the order of appointment and, if the decree in the action is appealed from, do not cease until the appeal has been disposed of. Their Lordships further held that in the absence of any appeal the functions of an administrator pendente lite terminate with a decree pronounced in favour of a will and do not continue until the executors obtain probate. Under the express provisions of S. 247, Succession Act, under which the appointment in the present case was made every administrator pendente lite "shall be subject to the immediate control of the Court and shall act under its direction." In the present case the petitioner was in possession of the property as an administrator pendente lite and the Court has ordered him to divest himself of that possession and make over the possession to the legal heirs of the deceased. Whether the petitioner held the property prior to his appointment under S. 247, Succession Act, and if he held the same, in what capacity he held it are questions which do not fall to be considered here. It is not that he is treated as a trespasser and is asked to deliver possession to the legal heirs. In directing him to deliver up the possession of the property the Court was dealing with him as an administrator pendente lite. In my opinion, it is clear that be cannot be heard to say that he was already in possession of the property though in a different capacity. As sopnas he agreed to become an administrator pendente lite, he submitted to the jurisdiction of the Court, and it was quite proper on the part of the Court to pass the order which has actually been passed in the case. If the petitioner refuses to comply with the order directing him to deliver possession to the objectors opposite party, be is liable to be sued as a quasi executor de son tort.
4. In my opinion, the learned Additional District Judge had every jurisdiction to pass the order complained of. In fact, after the application for probate had failed, it was the only proper order that could be passed. The heirs of the deceased should not be kept out of the property to which they are legally entitled. The application in revision is dismissed with costs."
22. As the respondent no.1 could not continue to manage the buses after dismissal of probate petition and appeals preferred by respondent no.1 against the order of dismissal of probate petition, therefore, the submission of learned counsel for the respondent regarding maintainability of appellant's application with respect to the prayer in the application for submitting accounts for the period from 29/30 August 1974 to 19.04.1973 and from May 1983 to the appellant till date and further payment of admitted amount of RS.15,600.29/- for use of buses for the period from 20.04.1978 to April 1983 and handing over the possession of the buses detailed in Schedule 'Ka' of the application to the appellant or in lieu thereof the value of buses amounting to Rs. 2 Lacs be paid to the appellant is devoid of merits.
23. As is manifest from the record, the possession of respondent no.1 over the immovable property detailed in Schedule 'Kha' is not by order of the court in the probate proceeding or any order passed during the pendency of appeal, therefore, it cannot be said that his possession over the immovable property is in the capacity of Administrator. Consequently, the prayer of the appellant seeking possession over immovable property mentioned in Schedule 'Kha' in the application can not be granted under Section 247 of the Act,1925
24. Thus, the appeal is partly allowed and the order of the trial court is set aside to the extent it has refused to grant prayer with respect to four buses mentioned in Schedule 'Ka' of the application. The respondent no.1 is, further, directed to submit accounts for the period from 29/30 August 1974 to 19.04.1973 and from May 1983 till date and further pay an amount of Rs.15,600.29/- for use of buses for the period from 20.04.1978 to April 1983 and hand over the possession of the buses detailed in Schedule 'Ka' of the application to the appellant or in lieu thereof pay Rs. 2 Lacs towards the value of buses to the appellant. The amount to be paid by the respondent no.1 shall carry interest @ 7% per annum from the date dismissal of Special Leave to Appeal (Civil)No.(s)15966 of 2007 by the Apex court.
25. There shall be no order as to cost.
Order Date :- 24.04.2019 Sattyarth