Karnataka High Court
Smt. Parvathamma vs Sri. K. G. Hanumantha Raju on 28 March, 2018
Bench: B.S.Patil, S.Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2018
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
&
THE HON'BLE MR.JUSTICE S.SUNIL DUTT YADAV
M.F.A.No.6453/2017
c/w
M.F.A.No.6462/2017, M.F.A.No.6461/2017,
M.F.A.No.6707/2017
IN M.F.A.No.6453/2017:
BETWEEN
1. SMT. PARVATHAMMA
W/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 59 YEARS,
R/AT NO.350, 4TH MAIN,
UPPER PALACE ORCHARD,
SADASHIVANAGAR,
BANGALORE-560 080.
2. KUMARI J.P.DEVIKA
D/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 17 YEARS,
R/AT NO.12/6, 9TH MAIN ROAD,
SADASHIVANAGAR,
BANGALORE-560080
SINCE MINOR REP BY HER
MOTHER AND NATURAL GUARDIAN
SMT.PARVATHAMMA. ... APPELLANTS
(By Sri GOWRISHANKAR C., ADV.)
2
AND
1. SRI K.G. HANUMANTHA RAJU,
S/O GANGAIAH,
AGED ABOUT 60 YEARS,
SILVER STAR HOTEL,
NO.126, 6TH CROSS, GANDHINAGAR,
BENGALURU-560009.
2. SRI K.R.SUDHIR
S/O LATE K.P.R.SHETTY,
AGED ABOUT 66 YEARS,
SILVER STAR HOTEL
NO.126, 6TH CROSS GANDHINAGAR,
BENGALURU-560009
3. SRI J.P.SUDHAKAR
S/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 44 YEARS,
RESIDING AT NO.12/6, 9TH MAIN ROAD,
SADASHIVANAGAR, BANGALORE-560080
4. SRI J.P.PUTTASWAMAIAH
S/O LATE PUTTAPPA,
AGED ABOUT 71 YEARS,
R/AT SRI LAKSHMINARASIMHASWAMY NILAYA,
KALANKOPPAL ROAD,
LAXMIPURA ARASIKERE,
HASSAN DISTRICT-573103
5. SRI J.P.NARASIMHAMURTHY
AGED ABOUT 43 YEARS,
R/AT NO.18/1, 8TH A MAIN,
2ND CROSS, SADASHIVANAGAR,
BANGALORE-560080
6. SMT.J.P.SUDHA
D/O J.P.PUTTASWAMAIAH,
AGED ABOUT 45 YEARS,
R/AT NO.23/A, 5TH MAIN,
1ST CROSS, KEB LAYOUT NEAR
RANGABHARANA KALAMANDIRA
SANJAY NAGAR RMV 2ND STAGE,
BANGALORE-560094
7. KUMARI S.MONISHA
D/O MR SATISH KUMAR,
3
AGED ABOUT 21 YEARS,
R/AT NO.23/A, 5TH MAIN, 1ST CROSS,
KEB LAYOUT NEAR
RANGABHARANA KALAMANDIRA
SANJAY NAGAR RMV 2ND STAGE,
BANGALORE-560094
8. MASTER S.CHIRANJEEVI RAGHAVENDRA
S/O SATISH KUMAR,
AGED ABOUT 16 YEARS,
R/AT NO.23/A, 5TH MAIN, 1ST CROSS,
KEB LAYOUT, NEAR RANGABHARANA KALAMANDIRA,
SANJAY NAGAR RMV 2ND STAGE,
BANGALORE-560094
SINCE MINOR REP BY HIS MOTHER
AND NATURAL GUARDIAN SOUDHA J.P.
9. SMT.CHUDARATHNA
D/O J.P.PURRASWAMAIH,
AGED ABOUT 40 YEARS,
R/AT MURGAN INDUSTRIES
PLOT NO.6,7,8, KIADB INDUSTRIAL ESTATE,
KELAKOTE, NH4 CHITRADURGA-577 501
10. KUMARI SRIBRINDA
D/O MR MARUTHI PRASANNA,
AGED ABOUT 17 YEARS,
RESIDING AT MURGAN INDUSTRIES,
PLOT NO.6,7,8, KIADB INDUSTRIAL ESTATE,
KELAKOTE, NH4 CHITRADURGA -577501
SINCE MINOR REP BY HIS MOTHER
AND NATURAL GUARDIAN CHUDA RATNA
11. MASTER YEGNESH
S/O MR MARUTHI PRASANNA,
AGED ABOUT 13 YEARS,
R/AT MURGAN INDUSTRIES PLAT NO.6,7,8
KIADB INDUSTRIAL ESTATE, KELAKOTE NH4,
CHITRADURGA-577501
SINCE MINOR REP BY HIS MOTHER AND
NATURAL GUARDIAN CHUDA RATNA
12. MASTER KEERTHIVARDHANA
S/O MR MARUTHI PRASANNA,
AGED ABOUT 12 YEARS,
R/AT MURUGAN INDUSTRIES
PLOT NO.6,7,8, KIADB INDUSTRIAL ESTATE,
4
KELAKOTE NH4, CHITRADURGA -577501
SNICE MINOR REP BY HIS
MOTHER AND NATURAL GUARDIAN CHUDA RATNA
13. MRS. J.P. TULASIVRINDA
D/O LATE PUTTAPPA,
AGED ABOUT 60 YEARS,
R/AT NO.18/3, 8TH A MAIN,
2ND CROSS, SADASHIVANAGAR,
BANGALORE-560080
14. SMT. H.P.SHOBHA
W/O LATE J P NARAYANASWAMY,
AGED ABOUT 38 YEARS,
R/AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080
15. MASTER N.HARIKRISHNA
S/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 14 YEARS,
R/AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080
SINCE MINOR REP BY HIS MOTHER H.P.SHOBHA
16. KUMARI N.HIRANMAYI
D/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 6 YEARS,
R/AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080
SINCE MINOR REP BY HIS
MOTHER H.P.SHOBHA. ... RESPONDENTS
(By Sri ASHOK HARANAHALLI, SR.COUNSEL FOR
Sri B.M.HALASWAMY, ADV. FOR R14-R16;
Sri AMBAJI RAO NAJRE, ADV. FOR R1 & R2;
Sri S.S.RAMDAS, SR.COUNSEL FOR
Sri S.R.KAMALACHARAN & Sri PRADEEP S SAWKAR, ADV. FOR R3;
Sri T.I. ABDULLA, ADV. FOR R4;
Sri SHASHIDAR S.P., ADV. FOR R5 & R13;
GOGI & GOGI, ADVS. FOR R6-R8 & R9-R12)
MFA No.6453/2017 FILED UNDER ORDER 43 RULE 1(r) CPC,
1908 AGAINST THE ORDER DATED 7.08.2017 PASSED ON I.A. NO.2
5
IN P & SC.NO. 196/2017 ON THE FILE OF THE LXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY(CCH-64),
I.A.NO.2 IS FILED BY THE R-14 TO 16 UNDER ORDER 39 RULE 4
OF CPC, PRAYING FOR VACATING THE EX-PARTE INTERIM ORDER
DATED 07.06.2017, OF THIS COURT WHEREIN THE PETITIONERS
ARE APPOINTED AS ADMINISTRATORS PENDENTE LITE TO LOOK
AFTER THE DAY TO DAY AFFAIRS OF THE PETITION SCHEDULE
PROPERTIES.
IN M.F.A.No.6462/2017, M.F.A.No.6461/2017:
BETWEEN
J.P. SUDHAKAR
SON OF LATE SRI J.P.NARAYANASWAMY
R/AT NO.12/6, 9TH MAIN
SADASHIVANAGAR,
BENGALURU 560 080. ... APPELLANT
(COMMON IN MFAs 6462 & 6461/2017)
(By Sri S.S.RAMDAS, SR.COUNSEL FOR
Sri KAMALACHARAN S.R., ADV.)
AND
1. K.G.HANUMANTHA RAJU
SON OF LATE SRI GANGAIAH
AGED ABOUT 59 YEARS
HAVING HIS ADDRESS AT
SILVER STAR HOTEL, NO.126,
6TH CROSS, GANDHNAGAR
BENGALURU 560 009
2. K.R.SUDHIR
SON OF LATE K P R SHETTY
AGED ABOUT 66 YEARS
HAVING ITS ADDRESS AT
SILVER STAR HOTEL , NO.126,
6TH CROSS, GANDHINAGAR
BENGALURU 560009
3. SMT.PARVATHAMMA
WIFE OF LATE SRI J.P.NARAYANASWAMY,
AGED ABOUT 59 YEARS
R/AT NO.350, 4TH MAIN
6
UPPER PALACE ORCHARDS,
SADASHIVANAGAR,
BENGALURU 560080
4. KUM J.P.DEVIKA
D/O LATE SRI J.P.NARAYANASWAMY
AGED ABOUT 17 YEARS
RESIDING AT NO.350, 4TH MAIN,
UPPER PALACE ORCHARDS
SADASHIVANAGAR,
BENGALURU 560080
MINOR, REP BY MOTHER AND NATURAL GUARDIAN
SMT.PARVATHAMMA.
5. J.P.PUTTASWAMAIAH
SON OF LATE SRI PUTTAPPA
AGED ABOUT 71 YEARS
R/AT SRI LAKSHMINARASIMHASWAMY NILAYA,
KALANKOPPAL ROAD, LAXMIPURA
ARASIKERE, HASSAN DISTRICT
6. J.P.NARASIMHAMURTHY
SON OF SRI J P PUTTASWAMAIAH
AGED ABOUT 43 YEARS
R/AT NO.18/1, 8TH A MAIN
2ND CROSS, SADASHIVANAGAR,
BENGALURU 560080
7. J.P.SUDHA
WIFE OF SRI SATISH KUMAR &
D/O SRI J P PUTTASWAMIAH,
R/AT NO.23/A, 5TH MAIN
1ST CROSS, KEB LAYOUT, NEAR
RANGABHARANA KALAMANDIRA
SANJAY NAGAR, RMV II STAGE
BENGALURU 560094
8. KUM S.MONISHA
DAUGHTER OF SRI SATISH KUMAR,
AGED ABOUT 21 YEARS
R/AT NO.23/A, 5TH MAIN,
1ST CROSS, KEB LAYOUT, NEAR
RANGABHARANA KALAMANDIRA
SANJAY NAGAR, RMV II STAGE
BENGALURU 560094
7
9. MASTER S.CHIRANJEEVI RAGHAVENDRA
SON OF SRI SATISH KUMAR,
R/AT NO.23/A, 5TH MAIN,
1ST CROSS, KEB LAYOUT ,NEAR
SANJAY NAGAR, RMV II STAGE
BENGALURU 560094
MINOR, REP BY MOTHER AND NATURAL GUARDIAN
SMT.J.P.SUDHA
10. SMT.CHUDARATNA
WIFE OF SRI MARUTHI PRASANNA &
D/O SRI J.P.PUTTASWAMAIAH,
ADDRESS AT MURUGAN INDUSTRIES
PLOT NOS.6, 7 & 8, KIADB INDUSTRIAL ESTATE,
KELAKOTE NH-4,
CHITHRADURGA 577501
11. KUM. SRIBRINDA
D/O SR IMARUTHI PRASANA
AGED ABOUT 17 YEARS
ADDRESS AT MURUGAN INDUSTRIES
PLOT NO.6, 7 & 8, KIAD INDUSTRIAL
ESTATE, KELAKOTE NH4,
CHITRADURGA 577501
MINOR, REP BY MOTHE AND NATURAL GUARDIAN
SMT.CHUDARATNA
12. MASTER YEGNESH
SON OF SRI MARUTHI PRASANNA
ADDRESS AT MURUGAN INDUSTRIES
PLOT NOS.6,7 & 8, KIADB INDUSTRIAL ESTATE,
KELAKOTE NH4,
CHITRADURGA 577501
MINOR, REP BY MOTHER AND NATURAL GUARDIAN
SMT.CHUDARATNA.
13. MASTER KEERTHIVARADHANA
SON OF SRI MARUTHI PRASANNA
AGED ABOUT 11 YEARS
ADDRESS AT MURUGAN INDUSTRIES
PLOT NO.6,7 & 8, KIADB INDUSTRIES
PLOT NO.6,7 & 8, KIADB INDUSTRIAL ESTATE,
KELAKOTE NH-4,
CHITHRADURGA 577501
MINOR HENCE REPRESENTED BY MOTHER
AND NATURAL GUARDIAN SMT. CHUDARATNA
8
14. SMT.TULASIVRINDRA
DAUGHTER OF LATE SRI PUTTAPPA
RESIDING AT NO.18/3, 8TH A MAIN,
2ND CROSS, SADASHIVANAGAR
BENGALURU 560080
15. H.P.SHOBHA
FATHERS NAME NOT KNOWN TO APPELLATN,
RESIDING AT NO.11, 1ST CROSS
ACHAIAH SETTY LAYOUT, RMV EXTN.,
BENGALURU 560080
16. MASTER N HARIKRISHNA
SON OF LATE SRI J P NARAYANASWAMY,
AGED ABOUT 14 YEARS
RESIDING AT NO.11, 1ST CROSS,
ACHAIAH SETTY LAYOUT, RMV EXTEN.,
BENGALURU 560080
MINOR HENCE REP BY MOTHER
SMT.H.P.SHOBHA
17. KUM N.HIRANMAYI
D/O LATE SRI J.P.NARAYANASWAMY
RESIDING AT NO.11, 1ST CROSS,
ACHAIAH SETTY LAYOUT, RMV EXTN.,
BENGALURU 560080
MINOR HENCE REP BY MOTHER
SMT. H.P.SHOBHA. ... RESPONDENTS
(COMMON IN MFAs 6462 & 6461/2017)
(By Sri AMBAJI RAO NAAJRE, ADV. FOR C/R1 & R2;
Sri ASHOK HARANAHALLI, SR.COUNSEL FOR
Sri B.M.HALASWAMY, ADV. FOR R15-R17;
Sri T.I.ABDULLA, ADV. FOR R5;
Sri S.P.SHASHIDHARA, ADV. FOR R6 & R14;
Sri C.GOWRISHANKAR, ADV. FOR R4;
R3, R7 TO R13 - SERVED)
MFA No.6462/2017 FILED UNDER ORDER 43 RULE 1(r) OF
CPC,1908 AGAINST THE ORDER DATED 7.08.2017 PASSED ON I.A.
NO.2 IN P & SC.NO.196/2017 ON THE FILE OF THE LXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY(CCH-64), I.A.NO.2 IS FILED BY THE R-14 TO 16 UNDER
ORDER 39 RULE 4 OF CPC, PRAYING FOR VACATING THE EX-
PARTE INTERIM ORDER DATED 07.06.2017, OF THIS COURT
9
WHEREIN THE PETITIONERS ARE APPOINTED AS
ADMINISTRATORS PENDENTE LITE TO LOOK AFTER THE DAY TO
DAYS AFFAIRS OF THE PETITION SCHEDULE PROPERTIES.
MFA No.6461/2017 FILED UNDER ORDER 43 RULE 1(r) OF
CPC,1908 AGAINST THE ORDER DATED 7.08.2017 PASSED ON I.A.
NO.2 IN P & SC.NO.196/2017 ON THE FILE OF THE LXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY(CCH-64), REJECTING THE I.A.NO.1 FILED UNDER SECTION 7
OF GUARDIANS AND WARDS ACT, 1890 R/W ORDER XXXII RULE 3
OF CPC R/W SEC.151 CPC.
IN M.F.A.No.6707/2017:
BETWEEN
1. SRI K.G. HANUMANTHA RAJU,
S/O GANGAIAH,
AGED ABOUT 59 YEARS,
SILVER STAR HOTEL,
NO.126, 6TH CROSS, GANDHINAGAR,
BENGALURU-560009.
2. SRI K.R.SUDHIR
S/O LATE K.P.R.SHETTY,
AGED ABOUT 66 YEARS,
SILVER STAR HOTEL
NO.126, 6TH CROSS GANDHINAGAR,
BENGALURU-560 009. ... APPELLANTS
(By Sri AMBAJI RAO NAJRE, ADV.)
AND:
1. SMT. PARVATHAMMA
W/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 59 YEARS,
R/AT NO.350, 4TH MAIN,
UPPER PALACE ORCHARD,
SADASHIVANAGAR,
BANGALORE-560 080.
2. SRI J.P.SUDHAKARA,
AGED ABOUT 44 YEARS
10
S/O LATE J.P.NARAYANASWAMY
R/AT 12/6, 9TH MAIN ROAD,
SADASHIVANAGAR, BANGALORE-80
3. KUMARI J.P.DEVIKA
D/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 17 YEARS,
R/AT NO.350, 4TH MAIN,
UPPER PALACE ORCHARD,
SADASHIVANAGAR,
BANGALORE 560 080, SINCE MINOR,
REP BY HER MOTHER & NATURAL GUARDIAN
SMT.PARVATHAMMA.
4. SRI J.P.PUTTASWAMAIAH
S/O LATE PUTTAPPA,
AGED ABOUT 71 YEARS,
R/AT SRI LAKSHMINARASIMHASWAMY NILAYA,
KALANKOPPAL ROAD,
LAXMIPURA ARASIKERE,
HASSAN DISTRICT-573103
5. SRI J.P.NARASIMHAMURTHY
AGED ABOUT 43 YEARS,
R/AT NO.18/1, 8TH A MAIN,
2ND CROSS, SADASHIVANAGAR,
BANGALORE-560080
6. SMT.J.P.SUDHA
D/O J.P.PUTTASWAMAIAH,
AGED ABOUT 45 YEARS,
R/AT NO.23/A, 5TH MAIN,
1ST CROSS, KEB LAYOUT NEAR
RANGABHARANA KALAMANDIRA
SANJAY NAGAR RMV 2ND STAGE,
BANGALORE-560094
7. KUMARI S.MONISHA
D/O MR SATISH KUMAR,
AGED ABOUT 21 YEARS,
R/AT NO.23/A, 5TH MAIN, 1ST CROSS,
KEB LAYOUT NEAR
RANGABHARANA KALAMANDIRA
SANJAY NAGAR RMV 2ND STAGE,
BANGALORE-560094
8. MASTER S.CHIRANJEEVI RAGHAVENDRA
S/O SATISH KUMAR,
11
AGED ABOUT 16 YEARS,
R/AT NO.23/A, 5TH MAIN, 1ST CROSS,
KEB LAYOUT, NEAR RANGABHARANA KALAMANDIRA,
SANJAY NAGAR RMV 2ND STAGE,
BANGALORE-560094
SINCE MINOR REP BY HIS MOTHER
AND NATURAL GUARDIAN SOUDHA J.P.
9. SMT.CHUDARATHNA
D/O J.P.PURRASWAMAIH,
AGED ABOUT 40 YEARS,
R/AT MURGAN INDUSTRIES
PLOT NO.6,7,8, KIADB INDUSTRIAL ESTATE,
KELAKOTE, NH4 CHITRADURGA-577 501
10. KUMARI SRIBRINDA
D/O MR MARUTHI PRASANNA,
AGED ABOUT 17 YEARS,
RESIDING AT MURGAN INDUSTRIES,
PLOT NO.6,7,8, KIADB INDUSTRIAL ESTATE,
KELAKOTE, NH4 CHITRADURGA -577501
SINCE MINOR REP BY HIS MOTHER
AND NATURAL GUARDIAN CHUDA RATNA
11. MASTER YEGNESH
S/O MR MARUTHI PRASANNA,
AGED ABOUT 13 YEARS,
R/AT MURGAN INDUSTRIES PLAT NO.6,7,8
KIADB INDUSTRIAL ESTATE, KELAKOTE NH4,
CHITRADURGA-577501
SINCE MINOR REP BY HIS MOTHER AND
NATURAL GUARDIAN CHUDA RATNA
12. MASTER KEERTHIVARDHANA
S/O MR MARUTHI PRASANNA,
AGED ABOUT 11 YEARS,
R/AT MURUGAN INDUSTRIES
PLOT NO.6,7,8, KIADB INDUSTRIAL ESTATE,
KELAKOTE NH4, CHITRADURGA -577501
SNICE MINOR REP BY HIS
MOTHER AND NATURAL GUARDIAN CHUDA RATNA
13. MRS. J.P. TULASIVRINDA
D/O LATE PUTTAPPA,
AGED ABOUT 60 YEARS,
R/AT NO.18/3, 8TH A MAIN,
2ND CROSS,
12
SADASHIVANAGAR,
BANGALORE-560080
14. SMT. H.P.SHOBHA
W/O LATE J P NARAYANASWAMY,
AGED ABOUT 38 YEARS,
R/AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080
15. MASTER N.HARIKRISHNA
S/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 14 YEARS,
R/AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080
SINCE MINOR REP BY HIS MOTHER H.P.SHOBHA
16. KUMARI N.HIRANMAYI
D/O LATE J.P.NARAYANASWAMY,
AGED ABOUT 6 YEARS,
R/AT NO.11, 1ST CROSS,
ACCHAIAH SHETTY LAYOUT,
BANGALORE-560080
SINCE MINOR REP BY HIS
MOTHER H.P.SHOBHA. ... RESPONDENTS
(By Sri ASHOK HARANAHALLI, SR.COUNSEL FOR
Sri B.M.HALASWAMY, ADV. FOR C/R14-R16;
Sri S.S.RAMDAS, SR.COUNSEL FOR
Sri S.R.KAMALACHARAN, ADV. FOR R2;
Sri C.GOWRISHANKAR, ADV. FOR R3;
Sri SHASHIDAR S.P., ADV. FOR R5 & R13)
MFA No.6707/2017 FILED UNDER SEC.47(a) OF THE
GUARDIANS AND WARDS ACT, AGAINST THE ORDER DT.7.8.2017
PASSED ON IA NO.3 IN P & SC.NO. 196/2017 ON THE FILE OF THE
LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY(CCH-64), REJECTING IA NO.3 FILED U/S 7 OF GUARDIANS
AND WARDS ACT R/W ORDER XXXII RULE 3 CPC, R/W SEC.151
CPC, AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.3.2018, COMING ON FOR
PRONOUNCEMENT, THIS DAY, B.S.PATIL, J., DELIVERED THE
FOLLOWING:
13
JUDGMENT
1. All these appeals arise out of the common order dated 07.08.2017 passed on IA Nos.1 & 2 in P & SC No.196/2017 on the file of the 63rd Addl. City Civil & Sessions Judge, Bengaluru City.
2. By the said order, the Court below has allowed IA No.2 and has vacated the order dated 07.06.2017 passed on IA No.1 issuing direction to the parties to suggest names of persons of their choice for facilitating the court to appoint two of them as Administrators pending disposal of P & SC No.196/2017, preferably two Chartered Accountants until such arrangement was made by appointing independent persons as Administrators. The Executors appointed as per the Will who were permitted to discharge the duties as Administrators by virtue of the order dated 07.06.2017 passed on IA No.1 have been continued directing them to look after the affairs of the estate of late J.P.Narayanaswamy and submit accounts regularly to the Court. The Executors have been debarred 14 from taking major decisions pertaining to the Schedule Property.
3. Appellant in MFA Nos.6461 & 6462 of 2017 is one J.P.Sudhakar S/o J.P.Narayanaswamy, he is the adopted son of late J.P.Narayanaswamy as per the registered Deed of Adoption dated 19.03.1984. Appellants in MFA No.6453/2017 are the wife and daughter of deceased J.P.Narayanaswamy. MFA No.6707/2017 is filed by Sri K.G.Hanumantha Raju S/o late Gangaiah and Sri K.R.Sudhir S/o late K.P.R.Shetty. They are the Executors appointed by the Testator as per the Will dated 17.01.2017 and the Codicil dated 20.01.2017 executed by late J.P.Narayanaswamy. It is these appellants who have filed the petition under Sections 276(1) and 278(1) of the Indian Succession Act, 1925, seeking grant of probate and letters of administration in their favour in respect of the petition schedule properties which were the subject matter of the Will and Codicil.
15
4. It is in respect of the said properties - subject matter of the Will executed by the J.P.Narayanaswamy, the Court below initially granted an interim order on 07.06.2017 appointing two Executors as Administrators pendente lite to look after the day today affairs of the petition schedule properties.
5. After appearance of respondents 1 to 16, while all other respondents did not have any grievance for the Executors named in the Will who were appointed as Administrators pending disposal of the probate petition, respondents 14 to 16 filed application IA No.2 seeking vacation of the interim order. The Court below has passed the impugned order on IA 1 & 2 ordering appointment of some third parties to be named by the parties as Administrators.
6. It is necessary to notice that applicants/respondents 14 to 16 who sought vacation of the interim order were the second wife and minor children born to the Testator through his second wife. As respondents 15 & 16 were 16 minors, the second wife of the deceased Testator - respondent no.14 moved an application for vacating the interim order.
7. It is an admitted fact that J.P.Narayanaswamy and his wife Smt. Parvathamma (respondent no.1) did not have any issues from their wedlock; therefore, they adopted respondent no.2; even respondent no.3 was taken as foster daughter. Respondent no.14 asserted that her marriage with J.P.Narayanaswamy was solemnized on 15.08.1999 and respondents 15 & 16 were born from their wedlock and they were minors aged about 13 years and 5 years, respectively.
8. Pleadings before the Trial Court of the respective parties would disclose that except respondents 14 to 16, all others supported due execution of the Will dated 17.01.2017 by J.P.Narayanaswamy in the presence of two witnesses by name Dr. O.S.Siddappa and Poornesh.M.R., and also its registration before the Senior Sub-Registrar, Malleshwaram. Similar is the position with regard to the 17 Codicil executed on 20.01.2017 which is also registered. Except respondents 14 to 16, all others support the fact that Sri K.G.Hanumantharaju and Sri K.R.Sudhakar - appellants in MFA No.6707/2017 were appointed as Executors by the Testator. It is also relevant to notice that the third executor by name Puttaswamaiah resigned as executor on 10.05.2017. The remaining executors accepted the resignation and they appointed one B.Rangaswamy as executor on 15.05.2017. It is also borne out from the records that after the death of J.P.Narayanaswamy on 09.02.2017, the Executors acting in terms of the Will have allocated and distributed different properties in favour of the beneficiaries and when it came to allocation of property in favour of the second wife of the deceased and her children, the executors chose to file the petition seeking probate and succession certificate. It is also borne out from the records that even respondent no.14 - second wife has utilized the benefit conferred on her under the Will by getting transfer of license in respect of certain business. 18
8. In the probate proceedings, the second wife of the testator - respondent no.14 acting for herself and for her minor children - respondents 15 & 16, objected for grant of probate and sought for vacation of the interim order, alleging that the Will set up was created and concocted; that several caveat petitions were served on her and her minor children impleading them as respondents; in the said caveat petitions, respondent no.14 was not described as wife of late J.P.Narayanaswamy and the minor children were not described by their natural father's name; the Will and Codicil were shrouded with several suspicious circumstances; they had come into existence when J.P.Narayanaswamy was seriously ill; his disease was diagnosed as Cancer; on the date of alleged Will, the Testator was not physically and mentally sound; petitioner no.1 before the Probate Court was an indirect beneficiary under the Will. Several such allegations were also made and the same allegations were reiterated in the application filed seeking vacation of the interim order. 19
9. The Court below has vacated the interim order by directing to replace the executors named in the Will by some others preferably two Chartered Accountants to be suggested by the respondents before him. The Court below has assigned the following reasons in support of its order.
(a) That the allegations made by respondents 14 to 16 disclosed that execution of Will and Codicil by the Testator were shrouded with suspicious circumstances and it was for the petitioners who would have ample opportunity to prove that such allegations of respondents 14 to 16 were wrong and that the Will had been duly executed by the Testator;
(b) That the executors have already acted as Executors without obtaining probate or letters of administration from the Court;
(c) They have accepted the resignation of one of the executors and have appointed another person before approaching the Court, which is arbitrary;
(d) Respondent no.14 had furnished medical records to show that the testator was suffering from liver cancer and had been hospitalized several times which disclosed that the testator was not keeping good health when he executed the Will;
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(e) Repeated use of the term illegitimate children while referring to respondents 15 &16 indicated that they had no concern or care for the minor children and their well-being;
(f) Looking to the volume and value of the properties left behind by the testator and the interest of the minor respondents, it was proper to appoint two independent persons to manage the estate of the deceased as Administrators pendete lite.
10. This order is assailed in these appeals on various grounds. Learned Senior Counsel Mr. Ramdas appearing for some of the beneficiaries in MFA Nos.6461 & 6462 of 2017 takes us through the Will, pleadings and other materials on record, to contend that whether the Will is duly executed or is shrouded with suspicious circumstances, is a matter for consideration after trial once the evidence is brought on record hence the court below was not justified in proceeding on that basis at such initial stage, particularly when no allegations were made against the Executors. It is urged by him that Will provides for appointment of executors as persons to manage the 21 property of the minors. Hence, the executors were entitled to act as guardians of minors in respect of their property. He also urges that beneficiary - respondent no.14 - second wife of the testator, has got transferred to her name, the business run; that the legal heirs cannot question the appointment of executors. In this connection, he has placed reliance on the judgment in the case of CHIRANJILAL SHRILAL GOENKA (DECEASED) THROUGH LRS. VS JASJIT SINGH & OTHERS - 1993(2) SCC 507.
11. Taking us through various provisions of the Indian Succession Act, Sri Ramdas submits that property vests in the executors as per Section 104 and in the absence of any application filed for removal of the executors, the court below was not justified in passing the impugned order. He further contends that when respondents 14 to 16 have taken advantage of the Will, they could not have taken up the contention that Will was suspicious one. Reliance is also placed on the judgments in the case of SMT. MALKANI VS JAMADAR & OTHERS - AIR 1987 SC 767 and KAMESH 22 PANJIYAR ALIAS KAMLESH PANJIYAR VS STATE OF BIHAR - AIR 2005 SC 785.
12. Learned Counsel Mr. Gowrishankar who appears for some of the beneficiaries in MFA No.6453/2017 supports the contention urged by Mr. Ramdas.
13. Learned Counsel Mr. Ambaji Rao appearing for the executors who are the appellants in MFA No.6707/2017 submits that their interest in the subject matter is only to honour the intention and desire of the testator. He urges that they have maintained accounts and have been submitting the same. According to him, in the absence of any allegation of misuse of the property, there was no justification for the Court below to ignore the intention of the testator. It is also submitted by the learned Counsel for the executors that they are very much interested in the welfare of the minors, as otherwise, respondent no.14 may act contrary to their interest and deprive the minors of their right as beneficiaries under the Will. 23
14. Learned Senior Counsel Mr. Ashok Haranahalli appearing for respondents 14 to 16 has strongly supported the order passed by the court below. He points out that while the Will itself describes respondent no.14 as wife of the testator, petitioners state in their objections that she was not the legally wedded wife and her children are not legitimate children; that the executors claim that respondent no.14 being the mother and natural guardian of the minors have to be removed as guardian of the minors; that the court has power to administer the property during the pendency of the proceedings. He refers to the provisions contained under Section 247 and relies on the judgments in the case of SUDHIRENDRA NATH MITTER VS ARUNENDRA NATH MITTER - AIR 1952 CAL 418 and PRIYAMBADA DEBI BIRLA (DECEASED BY LR) VS AJOY KUMAR NEWAR & OTHERS - AIR 2006 CALCUTTA 259, to contend that Court can appoint Administrators to manage the properties of the minors.
15. We have carefully considered the entire materials on record and the judgments cited at the bar. Facts of the 24 case clearly disclose that admittedly respondent no.14 claims as second wife of deceased testator. It is her case that as deceased testator did not have any issue by his first wife - Smt. Parvathamma, he married respondent no.14. It is also a fact borne out from the records that the Will executed bequeaths different properties in favour of different beneficiaries including the first wife, the adopted son, the foster daughter, other close relatives of the testator and as also respondents 14 to 16 being his second wife and her children. The testator has named the executors and has entrusted them with responsibility to distribute and allocate in their favour, respective properties bequeathed to them. In paragraph 5 of the Will, the properties detailed at Annexure-14 have been absolutely bequeathed to Master N.Harikrishna - son of the testator (respondent no.15) born through his second wife - respondent no.14. This clause reads as under:
"5. The properties detailed at Annexure- 14 which shall form part and parcel of this will is absolutely bequeathed to my son Master N.Harikrishna on he attaining the age of 24 25 years as its absolute owner. The properties described in Annexure-14 shall not vest with Master N.Harikrishna till he attains the age of 24 years.
The executors of my will, shall manage day to day affairs of the assets bequeathed to my minor son Master N.Harikrishna, till he attains the age of 24 years. The executors of my will, shall meet minor's maintenance expenses, provide education, higher education, healthcare, providing adequate funds for starting industry and business, acquiring properties and the like, provide adequate funds for marriage and also to confer such other benefits. For this purpose, The executors of my will, has powers to grant on lease, hire any of the properties bequeathed to Master N.Harikrishna and executors shall collect the income of the assets/properties bequeathed to Master N.Harikrishna on behalf of and for the benefit of Master N.Harikrishna and after meeting all the outgoing expenses for the management and administration of the assets/properties, determine at the end of each year or such period, the net income shall be determined there from.26
The excess income shall be accumulated and added to the Corpus and the entire funds shall be paid to Master N.Harikrishna herein when he attains the age of 24 years. If Master N.Harikrishna does not survive till that date, the accumulated funds shall be absolutely bequeathed to Kumari N.Hiranmayi on her attaining the age of 21 years. The executors of my will shall maintain day to day accounts of receipts and payments. For this purpose the executors of my will shall operate the bank accounts jointly.
As Master N.Harikrishna is a minor, the hotel business J.P.Cordial at No.68 & 68/1, Subedar Chatram Road, Bangalore shall be run by Smt. H.P.Shobha mother guardian and Raja Bar & Restaurant at Devanahalli for the purpose of statutory laws requirement and business will be handed over to Master N.Harikrishna on attaining majority."
16. The properties described at Annexure-15 annexed to the Will have been bequeathed in favour of his minor daughter viz., Kum. N.Hiranmayi (daughter of respondent 27 no.14). This is evident in paragraph 6 of the Will which reads as under:
"6. The properties detailed at Annexure- 15 which shall form part and parcel of this will is absolutely bequeathed to my daughter Kumari N.Hiranmayi on she attaining the age of 21 years as its absolute owner. The properties described in Annexure-15 shall not vest with Kumari N.Hiranmayi till she attains the age of 21 years.
The executors of my will, shall manage day to day affairs of the assets bequeathed to my minor daughter Kumari N.Hiranmayi, till she attains the age of 21 years. The executors of my will, shall meet minor's maintenance expenses, provide education, higher education, healthcare, providing adequate funds for starting industry and business, acquiring properties and the like, provide adequate funds for marriage and also to confer such other benefits. For this purpose, The executors of my will, has powers to grant on lease, hire any of the properties bequeathed to Kumari N.Hiranmayi and executors shall collect the income of the assets/properties bequeathed to 28 Kumari N.Hiranmayi on behalf of and for the benefit of Kumari N.Hiranmayi and after meeting all the outgoing expenses for the management and administration of the assets/ properties, determine at the end of each year or such period, the net income shall be determined there from.
The excess income shall be accumulated and added to the Corpus and the entire funds shall be paid to Kumari N.Hiranmayi herein when he attains the age of 21 years. If Kumari N.Hiranmayi does not survive till that date, the accumulated funds shall be absolutely bequeathed to Master N.Harikrishna on he attaining the age of 24 years. The executors of my will shall maintain day to day accounts of receipts and payments. For this purpose, the executors of my will shall operate the bank accounts."
17. It is thus evident from the Will that the executors have been entrusted with the responsibility of maintaining the accounts, operating the bank accounts. The hotel business viz., J.P.Cordial at No.68 & 68/1, Subedar Chatram Road, Bengaluru, has to be run by Smt. 29 H.P.Shobha - mother of the minor and as also Raja Bar and Restaurant at Devanahalli, until N.Harikrishna attained majority. Same arrangement is made in respect of the assets given to N.Hiranmayi entrusting the responsibility to the executors to maintain accounts and to operate the bank accounts.
18. A perusal of various clauses in the Will also disclose that the testator has bequeathed different properties in favour of several of his close relatives and has therefore entrusted the task of executing the Will by naming his own confidants as executors. It is true one of the executors has resigned and in his place, another executor has been appointed.
19. The question would be merely because one beneficiary under the Will disputes its due execution and alleges certain suspicious circumstances, whether the Court can substitute its discretion in the matter of execution of the bequest made by appointing other persons in the place of the executors.
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20. The law is well established in as much as, in the case of AMALNATHAN VS VICTOR BASCO - ILR 1995 KAR 869 in paragraph 6, it is ruled that an executor of the Will of the deceased is the legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The executor can exercise his power as executor and act in accordance with the terms of the Will even though Probate of the Will is not granted. In fact, one of the points of distinction between the executor and administrator is that the executor may act even before he obtains probate, but an administrator cannot act unless letters of administration are granted to him. Interest of an executor in the estate of the deceased vests in him immediately after the death of the testator. Further, this Court in the aforesaid judgment has observed in paragraph 9 as under:
"9. Ordinarily the desire of the testratrix as to who should administer her estate and execute her Will, will have to be respected and an Executor appointed by the testator should not be removed unless there is clear evidence 31 that his continuance as an Executor would be detrimental to the estate of the deceased and frustrate the Will of the deceased. Some minor lapses here and there cannot be a ground to remove the named executor. Bearing in mind this principle it has to be seen whether the petitioners have established sufficient grounds to remove the respondent from executorship."
21. It is therefore clear that the desire of the testator as to who should administer the estate and implement the Will has to be respected and an executor appointed by the testator should not be removed unless there is clear evidence that his continuance as an executor would be detrimental to the estate of the deceased and would frustrate the will of the deceased.
22. In the instant case, there is no allegation regarding misuse by the executors of their position or mismanagement of the properties.
23. In the judgment in PRIYAMBADA DEBI BIRLA (DECEASED BY LR) VS AJOY KUMAR NEWAR & OTHERS - AIR 2006 CALCUTTA 259 on which reliance has been placed by 32 learned Senior Counsel Mr. Ashok Haranahalli, there were allegations made against the executor stating that he had deliberately suppressed the real value of the assets and properties left behind by the deceased in the affidavit filed and that he had deliberately showed the value of the estate of the deceased lady valuing it at Rs.3 Crores, whereas in the rough estimation, the value of the estate left behind by the couple was nearly Rs.2,500 crores. In addition, it was alleged that the act and conduct of the executor both before and after the death of testator was such that documents were manufactured and he was found busy grabbing the entire estate left behind by the testator.
24. No such allegations are made against the executors in the present case. Indeed, in this very judgment, the Calcutta High Court has made it clear that 'ordinarily the named executor' is not displaced before and after granting probate of the Will (see paragraph 52). Further, in paragraph 61 of the aforesaid judgment, it is observed as under:
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"61. I have taken note of the legal proposition and accept as such that if the appointment of the executor is not questioned either as a person or otherwise the Court does not normally displace the executor because he is the nominee and appointee of the deceased as he enjoyed at the time of appointment, the trust and confidence of the deceased; nor the Court ordinarily appoints its own nominee replacing the nominee of the testator altogether. The Court lacks authority to do so, because the Court sits in the armchair of the testator as if the Court is the testator. If so occasion arises the Court appoints the same person as Administrator. But when the appointment of the nominee is challenged with serious allegations with document as regard his competence certainly the Court can legitimately doubt his appointment and consequently it cannot take the risk of keeping doubted person in this fiduciary position, particularly when he is beneficiary."
25. In SUDHIRENDRA NATH MITTER VS ARUNENDRA NATH MITTER - AIR 1952 CAL 418, the High Court of Calcutta has held that in case where it was alleged against the executor 34 that they conspired with others and fabricated the Will taking advantage of the testator's physical disability and loss of eyesight and induced him to convert his personal account into a joint account in the names of the testator, his widow, the executor and his wife, and that the executor had started operating the account since the death of the testator, coupled with the allegation that the executor had removed cash, jewellery and other movables including books of accounts of the estate with a view to deprive the applicants of their rights in the estate, it would not be exercising its discretion properly if in the face of such charges made against the executor named in the Will it proceeded to appoint him as Administrator pendente lite because the executor who was so mixed up in the case should not be appointed as Administrator pendete lite.
26. The fact situation in the present case is totally different, and therefore, the intention and the desire of the testator in nominating the executors has to be respected. At the instance of respondent no.14 who has indeed availed the benefit under the Will and who is only one of 35 the beneficiaries of certain properties amongst several others in respect of several other items of properties, the Court below could not have removed the executors named by the testator and appointed new persons in their place. Hence, the two decisions on which Mr. Ashok Haranahalli has placed reliance has no application to the facts of the present case.
27. Other decisions on which reliance is placed by the Counsel for the appellants regarding the alleged suspicious circumstance and how they have to be examined can be matters that could be taken into consideration at the time of final disposal of the probate proceedings. It has to be also stated here that reasons assigned by the court below in coming to the conclusion that before filing the probate proceedings, the executor had initiated steps for the execution of the Will and the Codicil and that it was for the executors to disprove the allegations made regarding the suspicious circumstances in the execution of the Will, and therefore, interference of the Court was necessitated for effective management of the properties of the testator 36 pendente lite by appointing administrators other than the executors, are wholly misconceived and not at all germane for consideration of the question for replacement of the executors appointed by the testator. The executors have not acted against the interest of the minors. The testator has made his mind clear and has stated in the Will as to how the executors have to take care of the interest of the minors. Therefore, order of the Court which proceeds on the wrong premises in considering the interest of the minors and in taking note of the intention of the testator deserves to be set aside.
28. Hence, these appeals are allowed. The impugned order is set aside. Application filed by respondent no.14 for herself and on behalf of her minor children is dismissed. The executors appointed by the testator shall continue as such. The interim order granted earlier appointing them as Administrators is continued till the disposal of the probate proceedings. The executors/petitioners before the court below shall maintain accounts of the transactions and of the business of the properties subject matter of the Will 37 and shall file the same periodically atleast once in 15 days before the court below. The executors shall furnish the details of the movable and immovable properties bequeathed in favour of the minors - respondents 15 & 16 to the court below and maintain accounts in respect thereof, truly and faithfully. The Accounts so maintained shall be placed before the court below periodically atleast once in 15 days. Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE KK