Calcutta High Court
Shere Jung Bahadur Rana (Dec) vs Arvind Parasramka on 10 January, 2020
IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE APO 27 of 2019 GA 362 of 2019 PLA 120 of 1969 IN THE GOODS OF:
HIS HIGHNESS FIELD MARSHAL SIR KAISER SHUM-
-SHERE JUNG BAHADUR RANA (DEC)
-AND ARVIND PARASRAMKA Appearance:
Mr. Sabyasachi Sen, Adv.
Judgement - 10/01/2020 Harish Tandon, J-
Both the appeal and the Section 5 application were heard on the earlier occasion and are disposed of in the following manner.
This is an application under Section 5 of the Limitation Act for condonation of delay in filing the instant appeal.
After hearing the learned Counsel appearing for the appellant and upon perusing the averments made therein, we are satisfied that the appellant was prevented by sufficient cause in not filing the instant appeal within the period of limitation provided therefor.
The delay in filing the instant appeal is hereby condoned.
The application is thus allowed.
Now, we take up the main appeal to determine as to whether the appellant has a right to maintain an application for letters of administration as creditor.
A point has been raised in the instant appeal as to whether the appellant, as a creditor, can apply for appointment as administrator de bonis non in relation to unadministered assets and estates left behind by the deceased i.e. His Highness Field Marshal Sir Kysher Shamsher Jangbahdur Rana.
The Single Bench rejected the said application on the ground that the application was filed 17 years after the death of one of the administrators and therefore, the contention of the appellant as creditor of the estate is unacceptable. A little background to the birth of the said application is required to be narrated. Admittedly, the said Jangbahadur Rana died intestate on 7th June, 1964 leaving behind considerable properties, both movable and immovable including the shares of a considerable value, in joint stock companies which are in the custody of the State Bank of India, Strand Road Branch, Kolkata, The Hong Kong & Shanghai Banking Corportation and the Standard Chartered Bank. On 21st July, 1968, an application was filed before this Court being matter no. 120 of 1969 for grant of letters of administration in respect of the estate left behind by the deceased by one, Deep Raja Mahanda as constituted attorney of the widow of the said deceased and Bhupendra Prasad Shaw, the second son of the deceased. The application was subsequently, disposed of on 4th June, 1970 granting letters of administration in favour of the joint applicants.
It is alleged that the joint administrators partly administered the estate of the deceased and one of whom namely Deep Raja Mana died on 22nd November, 1976 and the originating summon suit no. 219 of 1977 was filed by the widow of the said deceased for determination of several questions relating to the estate of the said deceased which was dismissed on 22nd September, 1980. The order of dismissal was carried to the Division Bench in an intra-Court appeal and was disposed of directing the surviving administrator, namely, Bhupendra Prasad Shaw to act as a sole administrator. Ultimately, the said appeal was dismissed on 5th August, 1987 in terms of the interim order passed in the said appeal. The said sole administrator partly administered the portion of the estate of the deceased and unfortunatley died on 15th January, 2001. The appellant claims that the said sole administrator agreed to sale the shares of the several joint/companies comprising the estate of the said deceased at a valuable consideration of Rs.10,52,342/- and subsequently, obtained permission from the Reserve Bank of India for transfer of such shares. Since after the death of the sole administrator nobody had come forward to complete the administration of the unadministered estate, the appellant has filed the application as creditor for his appointment as administrator de bonis non.
A point arose before us that whether the appellant can apply u/s 218 of the Indian Succession Act, 1925 as creditor. Before we deal with the point it would be profitable to quote Section 218 of the said Act which runs thus :-
"218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.--
(1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased."
A meaningful reading of the said provision leaves no ambiguity that administration of the estate left by a deceased, in case of intestacy, provided the deceased was Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person, may be granted to any person who according to the rule of distribution of the estate, is entitled to hold any part of the deceased`s estate. Sub-section (3) of section 218 of the said Act, which is relevant for the present purposes, entitles the creditor to apply for administration of estate of such deceased provided no other persons as indicated in sub-section (1) of section 218 of the said Act, applies.
The first and foremost question which arises in the instant appeal is whether the appellant is a creditor of the estate left behind by the deceased? Admittedly, the sole administrator allegedly agreed to sale the shares of the several joint stock companies and not the deceased. There is no ambiguity in the proposition of law that a creditor of the deceased can apply for administration of the estate but not the creditor of the sole administrator who is obligated to administer the estate in terms of the provisions of the said Act. The expression 'creditor of the deceased' assumes importance for invoking the said provision. The legislative intent is manifest that, if a deceased has a creditor at the time of his death, the creditor has two remedies i.e. he can either approach the Civil Court against the heir and realise the money from the estate or equally, he can also apply under the aforesaid provision by making an application, provided, the requirements under sub-section (1) and sub-section (2) of Section 218 of the said Act is satisfied. The creditor of the sole administrator cannot be equated with the creditor of the deceased. The word "deceased" appearing in sub-section (3) of section 218 of the said Act must be read in conjunction with the word "deceased" appearing in sub-section (1) thereof and cannot be stretched to a deceased administrator.
The position is more clear upon noticing sub-section (1) of Section 211 of the said Act which enumerates that upon the death of the deceased, the executor or the administrator, as the case may be, shall be his legal representative for all purposes and all the properties of the deceased person vests in him as such. However, Section 307 of the said Act creates an embargo on the administrator to dispose of the property as legal representatives. Clause (ii) of sub-section 2 of Section 307 of the said Act, creates an embargo on the administrator to sale any immovable property without the previous permission of the Court though the restriction is made to a sale of immovable property and not apparently extended to movable property, yet, the transaction by the administrator does not make his creditor as 'creditor of the deceased'. As pointed out by the Single Bench of this Court that no documents were produced by the appellant in support of his alleged contention that there was an agreement between the surviving sole administrator and him for purchase of those shares, we, thus, do not find any merit in the appeal.
The appeal is thus, dismissed.
Since we have dismissed the appeal, the connected application being GA No. 362 of 2019 has become infructuous and is accordingly, dismissed.
( Abhijit Gangopadhyay, J.) (Harish Tandon, J.)