Calcutta High Court
Mukul Pathak & Ors vs Purushottam Jagannath Bhide & Anr on 6 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
O-4 & 5
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APO No.353 of 2017
In
TS No.5 of 2017
IN THE GOODS OF:
INDUMATI GIRJASHANKAR OJHA (DECD.)
AND
MUKUL PATHAK & ORS.
VERSUS
PURUSHOTTAM JAGANNATH BHIDE & ANR.
And
GA No.2278 of 2017
APO No.352 of 2017
In
TS No.5 of 2017
IN THE GOODS OF:
INDUMATI GIRJASHANKAR OJHA (DECD.)
AND
MUKUL PATHAK & ORS.
VERSUS
PURUSHOTTAM JAGANNATH BHIDE & ANR.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA Date : 6th November, 2017.
Appearance:
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Debnath Ghosh, Adv.
Mr. Debasish De, Adv.
Mr. D. De, Adv.
Mr. Moloy Kr. Ghosh, Sr. Adv.
Mr. Chayan Gupta, Adv.
Mr. M. M. Chandra, Adv.2
Mr. A. Mitra, Adv.
Ms. Usha Doshi, Adv.
The Court : The facts are more fully recorded in the initial order of July 19, 2017 passed in these two appeals.
The appeals are directed against a common order of June 12, 2017 by which two applications filed by the appellants were dismissed in limine without the allegations contained therein being looked into.
The appellants are admittedly beneficiaries under the alleged Will. The Will provides for some of the properties of the alleged testator to be sold and the proceeds to be given to charity and some of the other properties to be sold and the proceeds to be given to some of the relatives, including the appellants herein.
According to the appellants, they consented to the probate being granted on the basis of the affidavit of assets that was filed along with the petition for grant of probate by the executor. The appellants allege that without notice to the appellants and the other beneficiaries under the alleged Will, the executor purported to apply for amendment of the affidavit of assets to delete the reference therein to a particular property. A caveat had been lodged by a person claiming to be the donee of the relevant property during the lifetime of the testator. By virtue of the amendment to the affidavit of assets, the executor unilaterally accepted that the deed of gift was valid and had been validly executed, notwithstanding the alleged donee's suit pending elsewhere. As a consequence of the amendment and the relevant asset going out of the affidavit of assets pertaining to the estate of the testator herein, the alleged donee applied 3 under Order XXIII of the Code for withdrawing the suit filed in Alipore Court since the executor virtually accepted and gave clear title of the relevant property to the alleged donee.
Apart from the appellants alleging that the executor had no authority to delete a property from the estate of the testator, particularly without notice to the beneficiaries under the Will, other allegations have also been levelled against the executor. It is submitted on behalf of the appellants that the executor has withdrawn substantial amounts from the bank accounts of the testator and parked them in companies owned or controlled by the executor or persons or entities under the control of the executor. Shops in Gujarat are said to have been disposed of or alienated without reference to the beneficiaries under the Will. The appellants, in short, say that the nature of the allegations carried to the probate Court was such that the applications could not have been dismissed without any investigation into the same or affidavits being called for from the executor.
By the order dated July 19, 2017 passed in these appeals, the caveator, who is also the alleged donee in respect of the property deleted from the affidavit of assets at the instance of the executor, was directed to make an application for withdrawing the application filed in the Alipore Court for withdrawal of the suit. The caveator is represented and says that such application has been filed but has not yet been taken up by the Court.
At the very least, the nature of the allegations in both the applications was such that the Court should have looked into the same, invited an affidavit from the executor and, may be, even have put the executor on terms. 4 Though these appeals were adjourned on the executor's submission that the accounts would be furnished to the appellants herein, only partial accounts have been furnished. It is, however, fairly conceded by the executor that the order for amending the affidavit of assets may be set aside so that the caveat is revived and the probate court decides the matter in solemn form.
The only bit of complication that has arisen is that though the impugned orders were passed on June 12, 2017, the probate was formally granted by a subsequent order of June 15, 2017. By the order passed in these appeals on July 19, 2017, the department was directed not to make over the formal grant or the papers pertaining thereto to the executor.
In view of the submission on behalf of the executor, the order dated April 3, 2017 by which the affidavit of assets was permitted to be amended by deleting one of the immovable properties therefrom is hereby set aside. As a consequence, the caveat lodged by Bhavit Bole stands revived. The order dated June 15, 2017 by which probate was granted is also set aside.
The orders impugned herein dated June 12, 2017 are set aside and GA No.1862 of 2017 filed before the Court of the first instance stands disposed of in view of the order for amending the affidavit of assets being set aside. GA No.1864 of 2017, which is an application for removal of the executor and taking appropriate steps against the executor, stands revived and will be decided by the probate court in accordance with law. Affidavit-in-opposition to such application be filed by the executor within a fortnight from date; reply thereto, if any, may be filed within a week thereafter.5
The executor will remain restrained from dealing with or disposing of or alienating or encumbering any of the assets recorded in the affidavit of assets as originally filed. If any money has been removed by the executor from the estate, the executor will account for the last paisa thereof in the affidavit to be filed before the Court of the first instance pursuant to this order.
In view of this order, the caveator will have liberty to proceed with the Alipore suit in accordance with law and will not rely on the deletion of the relevant property from the affidavit of assets in the present proceedings.
APO No.352 of 2017 and APO No.353 of 2017 along with GA No.2278 of 2017 stand disposed of without any order as to costs.
Nothing in this order will prevent the probate court from discharging the caveat in accordance with law, if appropriate circumstances therefor are cited.
At the invitation of the executor, the original Will is directed to be kept in the custody of the Registrar, Original Side and be produced only pursuant to judicial orders before the appropriate Bench.
(SANJIB BANERJEE, J.) (SABYASACHI BHATTACHARYYA, J.) bp.