Bombay High Court
Mukesh Ramanlal Gokal vs Ashok Jagjivan Gokal on 11 October, 2013
Author: R.D.Dhanuka
Bench: R.D.Dhanuka
.. 1 .. MPT-66/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
ORDINARY ORIGINAL CIVIL JURISDICTION
MISCELLANEOUS PETITION NO.66 OF 2013
1. Mukesh Ramanlal Gokal,
Indian Inhabitant of Mumbai
aged 58, residing at 72, Rambha,
66-C, Napean Sea Road,
Mumbai - 400 006.
2. Bharat Ramanlal Gokal,
Indian Inhabitant of Mumbai,
aged 57, residing at 6,
CCI Chambers, Dinsha Vachha Road,
Mumbai-400 020. ... Petitioners.
V/s.
1. Ashok Jagjivan Gokal,
of Mumbai, Indian Inhabitant,
residing at, Ivorine Building,
6th Floor, M.K.Road,
Mumbai 400 020.
2. Kishore Jagjivan Gokal,
of Mumbai, Indian Inhabitant,
residing at, Ivorine Building,
1st Floor, M.K.Road,
Mumbai 400 020.
3. Hemraj C. Ashar,
of Mumbai, Indian Inhabitant,
residing at, 32 Modi Street,
Opp. GPO, Mumbai 400 001.
4. Prashant K. Ashar,
of Mumbai, Indian Inhabitant,
residing at, 32 Modi Street,
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Opp. GPO, Mumbai 400 001.
5. Ravindra Gokal,
Indian Inhabitant of Mumbai,
residing at 42, CCI Chambers,
Dinsha Vachha Road,
Mumbai-400 020. ... Respondents.
Mr Zal Andhyarujia a/w A. Dasgupta i/b M/s Jhangiani Narulla & Associates for
Petitioners.
Mr Jay Chinai, Senior Advocate a/w Durgesh Khadeparkar a/w Ms Astha
Tamhankar i/b M/s India Law Alliances for Respondent No.1.
Mr Sanjay Jain i/b M/s India Law Alliances for Respondent No.2.
Mr S.U. Kamdar, Senior Advocate i/b M/s Kartikeya & Associates for Respondent
Nos.3 & 4.
Mr Chirag Balsara a/w Sagar Talekar i/b M/s Desai & Diwanji for Respondent
No.5.
CORAM : R.D.DHANUKA J.
JUDGMENT RESERVED ON : AUGUST 21, 2013.
JUDGMENT PRONOUNCED ON: OCTOBER 11, 2013
JUDGMENT :
By this petition, petitioners seek an order for removal and discharge of respondent Nos.1 and 2 as Executors and Trustees appointed under the Will dated 25th January 2005 and codicil dated 28 th June 2006, directions against respondent Nos.3 and 4 to complete the administration of the estate and properties of the deceased and handing over the bequest to the petitioners by Asmita 2/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 3 .. MPT-66/13 taking charge, custody and control of the 3 rd to 5th floor of the building known as Mercantile House and to hand over the same to the petitioners.
2. Some of the relevant facts for the purpose of deciding this petition are as under :
(a) Petitioners, Mrs Meena Rajani, Mr Shailesh Gokal and Mrs Sushila Ramanlal Gokal are the legal heirs of Mr Ramanlal Gokal (hereinafter referred as "said deceased") who expired on 22 nd March, 2007. The said deceased left a Will dated 25 th January, 2005 and codicil dated 28 th June 2006. Respondent Nos.1 to 4 were appointed as Executors under the said Will dated 26th January 2005. Respondent No.5 Mr Ravindra Gokal is the brother of respondent Nos.1 and 2 and claims to be in occupation of 4 th floor of the building known as Mercantile House.
(b) It is the case of the petitioners that the said deceased was a partner of a firm M/s Mercantile Corporation which was beneficial owner of an immovable property being building known as Mercantile House consisting of basement, ground + six floors comprising of 1,00,000/- sq. ft.
approximately at Mazgaon Mumbai. It is the case of the petitioners that by virtue of death and/or retirements of the remaining partners of the said firm M/s Mercantile Corporation, the deceased became solely entitled to and vested with the said property i.e. building known as Mercantile House except an area of 12,750/- sq. ft on the second floor which was vested in the original lessors pursuant to Consent Decree dated 26 th April 1968 in suit No.4463 of 1967 passed by this Court. According to petitioners, by codicil dated 28th June 2006, the said deceased had bequeathed his rights in Asmita 3/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 4 .. MPT-66/13 Mercantile Corporation and thereby bequeathing the said property known as Mercantile House to the petitioner.
(c ) On demise of the said deceased, respondent No.1 as one of the named Executors in the Will filed a petition (733/07) in this Court interalia praying for probate of the said Will and codicil. Item No.2 of the schedule in the said petition at the time of filing the said petition is extracted as under:
Mercantile 2nd floor = 2200 sq.ft. 50% Current a/c No.
Corporation 6th floor = 2000 sq.ft. 0001201401682
Mercantile House, Bank of India
Reay Road, Mumbay Main Branch,
Mumbai 400 023.
(d) Petitioners along with other legal heirs of the said deceased filed
affidavit in the said petition giving their no objection and full and free consent for grant of probate in favour of the first respondent without service of any citation/notice upon them. By an order dated 13 th December 2007, this Court granted probate of the last Will and Testament of the said deceased with the Codicil. The first respondent thereafter amended the said schedule of assets. As far as item No.2 in the original schedule of assets which was in respect of the Mercantile House is concerned, the same was amended as under :
" Owner of Mercantile House situated at Magazine Street, Basement Ground plus six floors, Reay Road, Mumbai with its attendant assets and its right, title and interest in Mercantile House for the valuation of Rs.40,32,08,000/-" . This property does not fetch any rent.Asmita 4/57 ::: Downloaded on - 27/11/2013 20:25:50 :::
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(e) On 25th January 2008, Executors appointed under the Will issued
a document to the petitioners stating that the petitioners were entitled to share and entitlements of the said deceased in the firms of Mercantile corporation and Clive corporation which included the said property and were authorized to access and receive accounts, documents and other papers relating to the said firms to the same extent that the deceased might have accessed and received from any person in whose possession or control of the same may be.
(f) On 3rd March 2008, the Executors forwarded a duly certified true copy of the probate to the petitioners and stated that the share and entitlements of the said deceased in the firms of M/s Mercantile corporation and Clive corporation had been bequeathed equally to the petitioners for their absolute use and benefit. It is the case of the petitioners that on taking over of the said property by the petitioners, they were surprised to note that the 1st floor of the premises admeasuring 15,200 sq. ft was in possession of Union Bank of India who were being charged license fees by the firm/companies controlled and managed by respondent Nos.1, 2 and 5.
Petitioners also found that the entire 3rd floor of the said property admeasuring 15,500 sq. ft. was retained by respondent No.2 and not handed over to the petitioners. Possession of the 4 th floor admeasuring 15,500 sq. ft. was in occupation of respondent No.5 and possession of 5 th floor admeasuring 15,526 sq. ft. was occupied by respondent No.1 and not handed over to the petitioners contrary to the bequest made in the Codicil of the said deceased.
(g) On 8th March 2010, respondent No.1, one of the Executor under the Will submitted report in testamentary petition stating that in terms of Asmita 5/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 6 .. MPT-66/13 Clause-11 of the Will, Letter of Authority was issued to the petitioners in respect of the share and entitlement of the deceased in the said firm M/s Mercantile Corporation. By letter dated 6 th July 2010, addressed to the Executors, petitioners alleged that respondent Nos.1 and 2 were in possession of part of the property which was being used for their personal gain and called upon respondent Nos.1 and 2 to hand over vacant possession of the portion of the said property occupied by them.
(h) On 22nd February 2011, petitioners filed a criminal complaint against respondent Nos.1 and 2 and further complaint dated 8 th April 2011 to the Commissioner of Police. On 1st August 2011, petitioners filed additional statement with Senior Inspector of Police to supplement the criminal complaint dated 22nd February 2011. On 4th August 2011, respondent No.1 as the Executor of the said Will & Codicil made an application in the said testamentary petition (733/11) for amendment of the probate granted by this Court and also to amend the schedule of assets with regard to immovable property without any notice to the petitioners or other beneficiaries under the said Will and Codicil. In the said application, Additional Prothonotary & Senior Master raised an objection and called upon respondent No.1 to submit consent affidavit of the beneficiaries. It is the case of the petitioners that the said objection was thereafter dispensed with and the said application for amendment came to be allowed by the Addl. Prothonotary & Senior Master allowing amendment not only to the probate but also to the schedule of assets filed along with probate petition. Respondent Nos.1 to 4 by their letter dated 9 th August 2011 forwarded to the petitioners a copy of the amended probate of the will and Codicil of the said deceased. The petitioners have filed Misc. Petition (54/12) inter alia Asmita 6/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 7 .. MPT-66/13 praying for setting aside the order passed by Addl. Prothonotary & Senior Master allowing amendment of the probate and schedule of assets to the petition. The said petition (54/12) was heard simultaneously and is being disposed of by a separate order. On 17 th April 2012, the petitioners filed a suit (1437/12) in this Court against respondent Nos.1, 2 and 5 and their front companies for handing over peaceful and vacant possession of the first floor of the building known as Mercantile House and for other consequential reliefs.
(i) Plaintiff filed notice of motion (1518/12) in the said suit (1437/12) for interim reliefs. By an order dated 25 th July 2012 passed by B.R.Gavai,J., it is observed that at this stage it is difficult to believe the contentions raised on behalf of the plaintiffs that the plaintiffs have become owners of the entire building and at most it could be accepted that the plaintiffs have become owners of the area falling to the share of their father. It is also observed that various complicated questions with regard to the property of the deceased are involved and thus neither the plaintiffs nor the defendants shall create any third party rights in respect of the suit property which was subject matter of that suit.
In appeal filed by the petitioners (612/12) arising out of the said order dated 25th July 2012, Division Bench recorded that 1st and 2nd respondents have agreed to maintain account of the compensation received and subject to the said statement, the said appeal was disposed of.
(j) It is the case of the petitioners that there were arrears of lease rent in respect of the building Mercantile House payable to Bombay Port Trust (BPT). Though petitioners had vide various letters called upon the Asmita 7/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 8 .. MPT-66/13 Executors to set aside the amount of liability from the residue of the deceased's estate so that the BPT could be paid, all such letters addressed by the petitioners to the Executors remained unanswered. It is the case of the petitioners that for more than three years of filing report by the Executors, the said liabilities have still remained unpaid from the estate of the deceased.
3. Mr Andhyarujina, learned counsel appearing for the petitioners submits that respondent Nos.1 and 2 have misconducted themselves by colluding with respondent No.5 with a view to deprive the petitioners of properties bequeathed to them by the said deceased. Respondent Nos.1 and 2 has unlawfully permitted respondent No.5 to occupy portion of the premises which were bequeathed to the petitioners. The Executors have failed to hand over vacant possession of the 1st floor, 3rd floor, 4th floor and 5th floor of the building known as Mercantile House to the petitioners by setting up their front companies illegally, wrongfully and without authority to occupy the said premises. Premises on the first floor is allowed to be illegally and wrongfully occupied without authority on leave and license to Union Bank of India. Respondent Nos.1 & 2 have not made payment of dues on account of unpaid lease rent to the BPT in respect of the land upon which the building Mercantile House is constructed.
Respondent Nos.1 and 2 have violated the confidence deposed in them by the Asmita 8/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 9 .. MPT-66/13 said deceased and with an intent to misappropriate the estate, obtained the probate without having any bonafide interest of administrating the estate of the deceased. It is submitted that respondent Nos.1 and 2 have in breach of their obligation unlawfully occupied part of the property which was bequeathed in favour of the petitioners and have taken wrongful advantage of their position as Executors.
4. Mr Andhyarujina, learned counsel submits that respondent Nos.1 and 2 after filing of criminal complaint by the petitioners got the probate issued by this Court as well as schedule to the probate petition amended by suppressing the criminal complaint filed by the petitioners and without obtaining any consent of the beneficiaries and without any notice to them. It is submitted that dispute between the parties had already arisen since 2008 and thus no ex-parte amendment could have been granted by Addl. Prothonotary & Senior Master and probate could not have been amended by respondent No.1. Learned counsel submits that respondent Nos.1 and 2 by their such conduct have put themselves in a position of irretrievable conflict with their position of Executors in making them bonafide. Executors cannot occupy the estate of the said deceased. It is submitted that this Court has ample powers to remove such illegal occupants.
5. Mr Andhyarujina also invited my attention to the first amendment carried out to the probate petition by the Executors themselves so as to Asmita 9/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 10 .. MPT-66/13 incorporate the fact of ownership of the deceased in respect of the building Mercantile House. My attention is also invited to the Inventory report annexed by the Executors showing the value of the property at Rs.40,32,00,000/-. It is submitted by Mr Andhyarujina that once property of the said deceased is disclosed as ownership property by amending the schedule to the probate petition by respondent No.1, he could not have applied for second amendment behind the back of the petitioners without any notice in view of the dispute already having been arisen between the parties and in view of the criminal complaint already having been filed by the petitioners against the first respondent. Mr Andhyarujina, learned counsel submits that under Section 317 of the Indian Succession Act, it is duty of the Executor to submit Inventory within six months from the date of obtaining probate which inventory shall be in respect of all the properties. Learned counsel submits that when respondent No.1 applied for second amendment on 4 th August 2011, he did not mention about first amendment already carried out to the schedule to the probate petition. It is submitted that no such amendment was required to be carried out. It is submitted that respondent No.1 by carrying out such ex-parte amendment to the probate as well as schedule of the properties annexed to the probate petition, has acted malafide and such an act is fraudulent and in conflict with the interest of his duties as Executor.
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6. Mr Andhyarujina invited my attention to some of the documents annexed to affidavit filed by respondent No.5 in support of his submission that documents relied upon by 5 th respondent are ex facie fabricated. There are no signatures on several documents. There are various blanks in most of the documents. Most of these documents are not stamped and not initialled. It is submitted that alleged occupants have no right, title or interest of any nature in respect of any of the portion of the property of Mercantile Corporation and they are put up by respondent Nos.1 and 2. Learned counsel placed reliance on Sections 192, 193, 301, 317 and 318 of Indian Succession Act 1925 in support of his submission that respondent Nos.1 and 2 who have acted contrary to the interest of the estate and beneficiaries, have committed misconduct are liable to be removed as Executors and the properties claimed to be in occupation of respondent Nos.1, 2 and 5 and/or their sister concerns are required to be protected by appointment of Court Receiver and by grant of injunction.
Sections 192, 193, 301, 317 and 318 of Indian Succession Act 1925 are extracted as under :
192. Person claiming right by succession to property of deceased may apply for relief against wrongful possession.- (1) If any person dies leaving property, moveable or immoveable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the district where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.Asmita 11/57 ::: Downloaded on - 27/11/2013 20:25:50 :::
.. 12 .. MPT-66/13 (2) Any agent, relative or near friend, or the Court of Wards in cases within their cognizance, may, in the event of any minor, or any disqualified or absent person being entitled by succession to such property as aforesaid, make the like application for relief.
193. Inquiry made by Judge.- The District Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.
301. Removal of executor or administrator and provision for successor.- The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.
317. Inventory and account.- (1) An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the Court which granted the probate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner, within one year from the grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of.
(2) The High Court may prescribe the form in which an inventory or account under this section is to be exhibited.
(3) If an executor or administrator, on being required by the Court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition, he shall be deemed to have committed an offence under section 176 of the Indian Penal Code (45 of 1860.). (4) The exhibition of an intentionally false inventory or account under this section shall be deemed to be an offence under section 193 of that Code.
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318. Inventory to include property in any part of India in certain cases.- In all cases where a grant has been made of probate or letters of administration intended to have effect throughout India, the executor or administrator shall include in the inventory of the effects of the deceased all his moveable and immoveable property situate in India, and the value of such property situate in each state shall be separately stated in such inventory, and the probate or letters of administration shall be chargeable with a fee corresponding to the entire amount or value of the property affected thereby wheresoever situate within India.
7. Mr Andhyarujia invited my attention to the consent terms arrived at between the two partners of M/s Mercantile Corporation in which the said deceased was one of the partner. It is submitted that on demise of the last surviving partner, the said deceased became the sole and exclusive owner of the said M/s Mercantile Corporation except the portion of 2 nd floor of the said building. Learned counsel invited my attention to the chart submitted by him in support of his submission that the occupants of various portions of the said building Mercantile House are in close relations and/or sister concerns of respondent Nos.1 and 2 with common partners and/or directors. It is submitted that such conduct of respondent Nos.1 and 2 is unbecoming act of Executors and they cannot be allowed to continue to act as Executors. It is submitted that the Executors have to act in the interest of beneficiaries of the estate and cannot have any conflict of interest. Learned counsel placed reliance on a Judgment in case of Karam Devi Vs. Radha Kishan reported in AIR 1935 Lahore 406 in support is his submission that application under Section 301 of the Indian Succession Act Asmita 13/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 14 .. MPT-66/13 can be filed only in this Court which has granted probate by making an application and there is no necessity to file any regular suit.
8. Mr Andhyarujina placed reliance on the Judgment of Division Bench in case of Dobson v Heyman reported in (2010) W.T.L.R. 1151 in support of his submission that if there is any conflict of interest in performing the duties of Executor, he is liable to be removed. It is submitted that there shall not be clash of personalities or lack of confidence in the personal representatives by the beneficiaries and in such an event an order of removal shall be usually made.
Relevant paragraphs of the said Judgment are extracted as under :
18. .... Story says, s. 1289, "But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity."
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
The reason why there is so little to be found in the books on this subject is probably that suggested by Mr. Davey in his argument. As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee and if there is no reason Asmita 14/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 15 .. MPT-66/13 to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees and as such coming into continual conflict with the appellant and her legal advisers and would probably have been glad to resign and get out of an onerous and disagreeable position. But the case was not so treated.
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries.
19. What emerges from the Letterstedt v Broers' judgment is that the Privy Council reversed the order of the court below which declined to remove the corporate trustees in question and made in place an order removing them, but did not require them to pay the costs of the proceedings, the costs of the successful applicants having to be born by themselves. This was the order made in circumstances where the Privy Council had taken note that no misconduct had been proved against the trustees or found by the court below against the trustees in the case. Nonetheless, it appears that they thought it appropriate in all the circumstances of the case, because of the conflict which the evidence showed had grown up between the trustees and the beneficiaries, that it was appropriate in the Privy Council's view that the corporate trustees be removed, but because their actual conduct of the estate was not established as having involved any sort of misconduct or negligence, they should not be required to pay any of the costs.
9. Mr Andhyarujina then placed reliance on a Judgment of Punjab and Haryana High Court in case of Tarachand Sharma V/s Uma Agarwal delivered on 14th October 2009 in L.P.A. No.112 of 2006 (2010 AIR (P & H) 30) and particularly para 29 which reads thus :
29.Question which survives is whether jurisdiction under Section 301 ought to have been exercised. No doubt any person coming to Court has to come with clean hands and his conduct has to be above board. At the same time, while dealing with an application alleging misconduct of an Executor, the Court cannot shut eyes to conduct of Executor and allow an executor to continue, irrespective of his working to the detriment of the property bequeathed merely because complainants conduct was not above board. The Court has to take an overall view of the matter. We are in Asmita 15/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 16 .. MPT-66/13 agreement with the view taken by the learned Single Judge that when the Will specifically mentions that the testator was not survived by any issue and that he owned properties including one described as Bagichi, Bagh Rama Nand, Amritsar, the very fact of pleading directly or indirectly factum of adoption of a son by the testator will not be conduct which will be above board. Similarly, even after death of widow of late Seth Bhagirath Das, there is nothing to show that the property was put to use for purposes indicated in the Will. Thus, conduct of an Executor was not above board and he rendered himself liable to be removed. We are also in agreement with the learned Single Judge that appointment of other trustees to which the Executor was a party, has to be annulled. Conduct of Om Parkash Aggarwal in setting up tenancy and continuing in possession of the trust for his personal benefit and there being hardly tangible account of use of the property for the last 20 years, sufficient grounds are made out for exercise of power under Section 301. Contention of Shri Verma that application under Section 301 of the Succession Act was moved only to avoid handing over of possession, can also not be accepted. The possession stands handed over and unless finding of learned Single Judge about the misconduct of the appellants can be set aside, there is no ground to reject the application. Conduct of the appellants cannot be held to be good merely because conduct of the applicant was not above board. The real issue is whether the Will of the testator was being given effect to and whether the executor instead of discharging his duty as per Will was abusing his position to divert the property of the testator for his personal benefit. The finding of learned Single Judge that as against clear statement in the Will that the testator had no issue, plea of testator having adopted a son was raised apart from plea of partition which affected the title of the testator to the bequeathed property and the fact that one of the trustees was allowed to plead his own tenancy on the property bequeathed for the benefit of the public have not been shown, in any manner, to be erroneous, which by itself were sufficient grounds justifying removal of an executor, acting in dual capacity as executor and the trustee. Continuance of substituted trustees is inter-connected to finding of conduct of executor and chief trustee. The removal of Executor was clearly called for under Section 301 and removal of other appellants was consequential being inter-connected to the functioning of the Executor. There is, thus, no ground to interfere with the finding recorded by the learned Single Judge. The question is answered against the appellants and in favour of the respondents.
10. Mr Andhyarujina placed reliance on the Judgment of Punjab & Haryana High Court in case of Smt. Shanti Devi V/s Yadvinder Thakur And Anr. Reported in (2006) 143 PLR 799 in support of his submission that the conduct of the Executors must be for the welfare of the beneficiaries and to Asmita 16/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 17 .. MPT-66/13 advance aims and objects of the Trust and if the conduct of the Executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised. Relevant portion of paragraphs 15 and 16 which are relevant for the purpose of this petition are extracted as under :
15. ... There for if the conduct of the respondent on scanning is found to be blameworthy, and in contravention of the spirit of Will dated 21.1.1985 and the CC Trust, then the said respondent can be stopped at the threshold and can be removed from the office of executor under the provisions of Section 301 of the Act, 1925. It was held in the judgment reported as P.B. Srinivasan's case (supra) that the very fact,that the Executor has put-forth the right, which is absolutely untenable and which conflicts with the rights of the beneficiaries, is sufficient for the High Court to exercise the powers vested in it under Section 301 of the Act, 1925. It was further held that where the Executor acts with extreme mala fides and where his acts border or enter the zone of misconduct as an Executor, there is sufficient ground for his removal. The conduct must be for the welfare of the beneficiaries, and to advance aims and objects of the Trust. If the conduct of the Executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised.
16. There is no dispute that the power to remove the Executor and to appoint a successor in his place is vested in this Court under Section 301 of the Act, 1925. The question of removal of trustee inevitably comes in as the work of trustee has also to go side by side. For better management of the estate, the same person is to work as Executor and as Managing Trustee at the same time. Similarly, the other trustees are to cooperate with the Managing Trustee for the same goal. It may be stated at the cost of repetition that if the question would have been for the removal of the trustees alone, then this Court had no jurisdiction to remove the trustees and the suit was maintainable. In the present case, it is a mixed question of Executor and of trustees.
This Court has the exclusive jurisdiction for removal of the Executor. The question of the removal of Executor is inseparably interwoven with the removal of the trustees. Rather it is intermingled matter which relates to both Executor and the trustees. It appears difficult to remove an Executor and to ask the party to go to District Court for getting the trustees removed particularly, when this Court has reached the conclusion that the trustees are misusing the CC Trust property. The Managing trustee is disputing the rights of the properties, which have been vested in the trust by the founder Trustee by executing a Will dated 21.1.1985, while the other trustee is occupying the same by alleging that the said properties are not owned by the trust and rather it was owned by somebody else.
In the judgment reported as In the Goods of Sarnath Sanval late of Banaras Madhu Sudan Bagchi v. Hrishikesh Sanyal and Ors. it was held that after the Executor Asmita 17/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 18 .. MPT-66/13 incharge of the estate administers estate, he ceases to be executor and becomes trustee for the beneficiaries, although in this case, it was held that since the executor had ceased to be executor and had become mere trustee, therefore, the suit for removal of the trustee was maintainable under Section 71 of the Trusts Act. In this reported case, not only the function of the executor was over, but also the beneficiary was person specific. On that principle of law, this judgment is not applicable to the facts of the present case, because the function of the Executor are not yet over in this case. The executor is yet to start functioning. The executor is yet to consolidate the CC Trust properties for which the Will was executed and to utilize those properties for the purpose of the CC Trust created vide trust deed dated 18.1.1966. Moreover, the beneficiary under the trust deed is not a person specific. It is the general public. For those reasons, no person has a legal right to file the civil suit. For this purpose, this Court has to exercise the jurisdiction. The duties of the Executor as defined in this judgment, are yet to be performed by the Executor, while the trustees have also to come in for utilizing and managing the properties, for achieving the aims and objects of the CC Trust.
11. Mr Jai Chinai, learned senior counsel appearing on behalf of respondent No.1 on the other hand submits that all the duties of respondent Nos.1 and 2 as Executors are already carried out by them. The only duty of respondent Nos.1 and 2 as trustees remains qua other beneficiaries. It is submitted that for removal of trustees, petitioners will have to file a separate suit.
It is submitted that other legatees under the Will and Codicil have not come forward before the Court for removal of respondent Nos.1 and 2 as Executors and trustees. Mr Chinai submits that wife of petitioner No.1 and 2 and grand children of the deceased are the major beneficiaries under the Will and Codicil of the said deceased. It is submitted that the said Will and Codicil of the said deceased has been drafted by a seasoned lawyer as is apparent from the polished language used for drafting the said Will and Codicil. It is submitted that these Asmita 18/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 19 .. MPT-66/13 daughters-in-law of the deceased were appointed as trustees for benefit of children of the petitioners. Deceased had faith in these daughters-in-law and not in the petitioners. Mr Chinai submits that respondent Nos.1 & 2 along with other Executors have already handed over the entitlement of the petitioners as legatee under the said Will and Codicil by placing on record by addressing two letters and report. It is submitted that though the same was placed on record on 25th January 2008 and 3rd March 2008 by the executors, no objection has been raised by the petitioners that respondent Nos.1 and 2 or other Executors have not complied with their duties and have not carried out the directions of the testator under the said Will and Codicil. Learned senior counsel submits that the deceased testator was not entitled to the entire building known as Mercantile House. If that entire property was to be conferred in favour of the petitioners, the same could be done only by registered conveyance. In this case, it was however, not necessary to execute any conveyance as neither such entire property belonged to the deceased nor bequeathed in favour of the petitioners.
Petitioners did not raise any objection or called upon the Executors to execute or register a deed of conveyance in favour of the petitioners for conveying the building known as Mercantile House. My attention is invited to the ad interim order passed by this Court on 25th July 2012 in Notice of Motion No.1518 of 2012 in Suit No.1437 of 2012 filed by the petitioners themselves against Asmita 19/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 20 .. MPT-66/13 respondent Nos.1,2 and 5 claiming rights in respect of first floor of the said Mercantile House. It is submitted that this Court has prima facie observed in the said order that at this stage, it is difficult to believe the contentions raised by the plaintiffs that they have become owners of the entire building and at most it could be accepted that the plaintiffs had become owners of the area falling to the share of their father. This Court also observed that there are various complicated questions regarding title of various properties. Both the parties were directed not to create any third party rights in respect of the suit property.
Learned senior counsel submitted that appeal filed by the petitioners against the said ad interim order is also disposed of by confirming the order passed by the learned single Judge.
12. Mr Chinai submits that though the deceased expired on 22 nd March 2007 and the probate petition was filed in the year 2007 itself, petitioners did not raise any disputes about occupation of the Union Bank of India till 2011. It is submitted that there is inconsistency in the plea of the petitioners that the said deceased was entitled to the entire building Mercantile House and at the same time have stated that 12750 sq. ft on the second floor of the building Mercantile House belonged to the Sidhwas and Karanjawalas. Learned senior counsel submits that all the allegations made by the petitioners against the Executors relate to actions during the lifetime of the said deceased and not post his death.
Asmita 20/57 ::: Downloaded on - 27/11/2013 20:25:50 :::.. 21 .. MPT-66/13 It is submitted that if respondent Nos.1 and 2 as Executors are removed by this Court, it would be a stigma on their character and before passing of such order of removal, this Court has to render full scale hearing in a proper suit and cannot decide such issue in a summary proceedings. Learned senior counsel submits that various firms/companies which are in possession of various portions of the building Mercantile House, are necessary parties to the present proceedings and no relief as prayed by the petitioners for possession of those properties can be granted unless such occupants are joined as parties to the present proceedings and are heard before any such order is passed by this Court.
13. It is submitted that some time in the year 1970/71 M/s Mercantile Enterprises was put in possession of the 5 th floor premises by entering into an agreement with M/s Mercantile Corporation. Various debit notes were issued by the companies/firms of respondent No.1 in relation to the said premises on 5 th floor of Mercantile House. Electricity Bills were also issued in the name of and were paid by such companies/firms of respondent No.1. It is submitted that respondent No.2 is in possession of 3rd floor of the said building since the period prior to the death of the said deceased. All electricity bills have been issued in the name of and have been paid by the companies/firms of respondent No.2.
Debit notes have been issued by companies/firms of respondent No.2 in relation to third floor of the said Mercantile House. Mercantile Corporation used to Asmita 21/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 22 .. MPT-66/13 raise bills towards maintenance of the said building Mercantile House. Learned senior counsel placed reliance on one of such bill issued by Mercantile Corporation to the companies/firms of respondent No.2.
14. Learned senior counsel submits that Testamentary Court does not decide the question of title of the properties of the testator and is not concerned with the title to the properties. It is submitted that this Court cannot come to a conclusion that respondent Nos.1 & 2 have set up a wrong title or adverse title and the issue raised by the petitioners would be beyond the purview of the testamentary court and thus, no orders for possession of the properties can be passed by this court based on the allegations of title of the deceased in respect of such properties.
15. Learned senior counsel placed reliance on Judgments : (1) AIR 1954 SC 280 (Ishwardeo Narain Singh Vs Kamta Devi; (2) AIR 1962 SC 1471 (Mrs Hem Nolini Judah Vs. Mrs Isolyne Sarojbashini Bose & Ors.; (3) 2007 (11) SCC 357 (Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors; (4) 2008 (4)SCC 300 ( Krishna Birla Vs. Rajendra Lodha & Ors. and (5) 1993 (2) SCC 507 (Chiranjilal Goenka Vs. Jasjit Singh; in support of submission that testamentary Court cannot decide the title in respect of the properties of the deceased in probate petition.
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16. Learned senior counsel submits that report dated 8 th March 2010 issued by the Executors clearly demonstrates that the debts had been collected by the Executors and the legacies have been paid over to the beneficiaries which would indicate that the administration of the estate is over. It is submitted that respondent Nos.1 and 2 thus, are now acting no more in their capacity as Executors and has assumed the capacity of a Trustee. It is stated that a trustee cannot be removed under Section 301 and a suit has to be filed to remove a trustee under the provisions of Trust Act and this petition filed under Section 301 of the Indian Succession Act 1925 for removal of a trustee is not maintainable.
In support of his submission, learned senior counsel placed reliance on the Judgment of Calcutta High Court in case of Suhasini Vs. Wealth Tax Officer reported in AIR 1961 Cal 295.
17. Learned senior counsel placed reliance on the Judgment of Supreme Court in case of Umadevi Nambiyar & Ors. Vs. T.C. Sidhan reported in (2004) 2 Supreme Court Cases 321 in support of his submission that under Section 194 r/w 193 of the Indian Succession Act which proceedings are in the nature of summary decision can be exercised only if the conditions embodied in Section 193 are satisfied otherwise such orders can be passed only in a regular suit.
Paragraphs 20 to 22 of the said Judgment which are relevant for the purpose of this proceedings read thus :
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20. Section 192, inter alia, provides that a person who claims right by succession can make an application in respect of a property, movable or immovable, left behind a person who has died. Section 193 provides for an enquiry by the District Judge to whom such an application is made and Section 194 deals with the procedure to be adopted when an application is made under Section 192.
21. The Court before taking any steps in the matter under Section 194 is required to be satisfied of the existence of such strong ground of belief on both points i.e. the person in possession has no lawful title and that the person applying is likely to be materially prejudiced if left to the ordinary remedy of a regular suit. An order under Section 194 is in nature of summary decision and can only be passed if the conditions embodied in Section 193 are fulfilled. The expression "subject to a suit"
means subject to a suit contemplated under Section 208 i.e. a regular suit to establish title and obtain possession.
22. The effect of a summary decision even in an extreme case is not a bar to a regular suit. The underlying object of Section 208 and Part VII is particularly to protect the property appertaining to large estates in case of a dispute as to succession. As noted above, it has a great similarity to a proceeding under Section 145 of the Code with respect to certain specified properties where its scope is large in as much as it embraces all properties movable and immovable and once for all it settles the right to hold possession of the property summarily directing the other disputants to seek their remedy in proper Court by appropriate proceedings. A person aggrieved by an order passed by a summary proceeding under Part VII is required to seek remedy by a suit and not by an application for revision. This remedy is preserved by Section 208.
Section 209 makes the position further clear. It provides that the decision of a District Judge in a summary proceeding under Part VII shall have no other effect than that of settling the actual possession, but for this purpose it shall be final and shall not be subject to any appeal or review. But where instead of a summary disposal, there is in depth analysis of the evidence and conclusive conclusions/decisions arrived at it cannot be said that there has been a proper exercise of the power conferred while dealing with an application under Section 192 of the Act.
18. Mr Chinai, learned senior counsel submits that the petitioners are in no manner prejudiced by continuance of the respondents as Executors in respect of the rest of the estate in which the petitioners do not have any interest. The testator has reposed faith in his brothers and thus Court cannot interfere with such appointment. Learned senior counsel submits that only miscellaneous Asmita 24/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 25 .. MPT-66/13 work such as settlement of claims is left. Properties have to be distributed amongst the residuary legatees as directed by the testator which can be done only after the claims are settled and balance is distributed. Residuary legacies are bequeathed to charity and not to the petitioners. Learned senior counsel submits that since occupants are already in possession prior to the death of the deceased, Section 192 of Indian Succession Act would not be attracted to.
Application for exercising powers under Section 192 and 193 can be exercised only if application has been made bonafide and not malafide. Petitioners have already filed separate suit in respect of first floor premises. It is not the case of the petitioners that respondent Nos.1 and 2 or respondent No.5 has taken forcible possession of the estate of the deceased. It is submitted that limitation for filing such petition for possession is six months under Section 205 of the Indian Succession Act. It is submitted that such relief itself is barred by law of limitation. Learned counsel also placed reliance on the Judgment of this Court reported in 26 BLR 145 in support of his submission that various conditions have to be fulfilled before exercising summary powers.
19. Mr Sanjay Jain, learned counsel appearing for respondent No.2 adopts submission made by Mr Chinai learned senior counsel appearing for respondent No.1 and in addition submits that under Section 332 of the Indian Succession Act, assent of Executor is necessary which has been given by the Executors and Asmita 25/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 26 .. MPT-66/13 accepted by the legatees without any objection. It is submitted that for transfer of immovable property given to legatee, execution of conveyance deed duly registered is necessary which admittedly has not been executed between executors and the petitioners. Petitioners did not demand execution of any such document duly registered. It is submitted that in view of respondent No.2 not being the petitioner in probate petition, he cannot be removed based on the allegations made against the first respondent. It is submitted that petitioners themselves have let out ground floor premises to Union Bank of India after obtaining possession from the Executors on identical terms. No claims have been made by the petitioners for last four years. Petitioners have not submitted any documents in support of their plea that other partners of Mercantile Corporation have retired. Executors had not issued any letter for handing over possession of any specific portion of Mercantile House to the petitioners. Learned counsel would submit that protection can be granted to the beneficiaries under Section 192 and 205 of the Indian Succession Act only if application is made within six months of the death of the deceased. However, in this case, though assent was given in 2008, suit in this Court came to be filed in 2012 and this petition came to be filed for removal of Executors only in 2013.
20. Mr Jain placed reliance on the Judgment of Calcutta High Court in case of Smt. Sushmaji Karuri Vs. Wealth Tax Officer reported in 1962 Asmita 26/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 27 .. MPT-66/13 Calcutta 295 in support of his submission that trustees cannot be removed by invoking Section 301 of the Indian Succession Act. Paragraphs 20 and 21 of the said Judgment which are relevant for the purpose of deciding this issue read thus:
20. The sole purpose of the grant of administration of an estate is the collection of assets, payment of necessary expenses and debts, and the disposition of the assets, - in case of testamentary succession, by the payment of legacies and carrying out the directions of the Will with regard to the assets and in the case of intestacy, by distribution of the assets among the legal heirs. As long as any one or more of these things remains to be done in respect of the whole or any part of the assets of the estate, it is said to be not fully administered. When the estate is fully administered, the executors can get a discharge by an application to the High Court under Sec.301 of the Indian Succession Act. Whether there is an order of discharge or not is immaterial. If the estate has been fully administered the administration must be deemed to have come to an end. In Taran Singh Hazari v. Ram Ratan Tewari, ILR 31 Cal 89, one Gouri Devi was appointed executrix of a will of Siblal Tewari who left a minor son. She continued to manage the property of the minor for some time and then applied to the Court of Wards to take over the estate. The Court of Wards took over the estate and subsequently brought a suit against the defendant Taran Singh Hazari, to recover an amount due on a mortgage bond executed by him in favour of Gouri Devi as executrix who could alone enforce the mortgage. It was held that Gouri Devi had fully administered the estate and was holding the property as a trustee for the minor. The duties of an executor are to pay the debts, collect the outstandings and to administer the estate of the deceased and after this has been done, and the estate has been settled, his duties as an executor are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries, he ceases to be an executor and becomes a trustee of the property. The duties of an executor and those of a trustee are quite different. In the case of Madhu Sudan Bagchi v. Hrishikesh Sanyal AIR 1949 All 93 Moothan, J., said as follows :
" The duties of an executor in general terms are to collect the assets of the deceased, to pay his debts and the funeral and testamentary expenses and thereafter to make over the residue of the estate to the person or persons entitled thereto under the will. Where the testator intends to create a trust of the whole or part of his property his will, if properly drawn, will direct the executor, after performing the ordinary duties of administration, to make over the estate or such part thereof as the testator indicates to a trust or trustees to be held by them upon such trusts as are set out in the will."
21. In India the words "executor" and "trustee" are indiscriminately used. One has therefore, to find out whether the executorship ends and the trusteeship begins. In Asmita 27/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 28 .. MPT-66/13 this particular case, the will itself creates a trust in express terms. In fact, the will is nothing but a trust created by a testamentary instrument. Thus, as soon as the debts and liabilities have been paid and the legacies have been assented to, the executors have dropped their position as executors and have assumed the duties of trustees. In this particular case, it has been stated in the petition that the estate has been duly administered and the executors have assented to the legacies in favour of the legatees. This is not effectively denied in the affidavit-in-opposition. In the assessment order, the finding is that inasmuch as the estate has to be made over at a future date to the beneficiaries, the administration of the estate continues until the period of distribution. This is an erroneous view and cannot be accepted. The will itself states that the petitioners would hold the properties in trust for the sons and grandsons. Therefore, as soon as the administration was ended the petitioners have been holding the properties as trustees. The position in law has been elucidated in V. M. Raghavalu Naidu and sons v. Commr. Of Income-tax, Madras (1950) 18 ITR 787 (AIR 1950 Mad 790). It has been pointed out there that in the case of a specific bequest, the executors do not become trustees for the beneficiaries until assent. In the case of a residuary bequest, executors become trustees when the residue is ascertained and the assent of executors is either expressly given or inferred from conduct. In this case there may not have been a specific assent, but as the trustees have paid off the debts and liabilities of the testator and are holding the property, paying or expending the income on behalf of the beneficiaries, their conduct would amount an assent and the administration of the estate has come to an end.
21. Mr Kamdar, learned senior counsel appearing on behalf of other two Executors who are impleaded as respondent No.3 and 4 submits that for removal of occupants and to hand over possession of the immovable properties to the petitioners, process of law would have to be followed and no such order can be passed in this proceedings which are in the nature of summary proceedings. Mr Kamdar submits that Executors have already handed over possession of Mercantile House to the Executors on 'as is where is' basis. This Court will have to decide whether executors have still to comply with any other obligation as executors. It is submitted that Executors cannot remove the occupants. It is submitted that respondent Nos.3 and 4 have no objection to Asmita 28/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 29 .. MPT-66/13 continue to act as Executors if this Court so directs but no order for removal of occupants can be granted by this Court in this proceedings.
22. Mr Balsara, learned counsel appearing on behalf of respondent No.5 submits that his client is not Executor of a Will and is not involved in amendment of the petition. It is submitted that 4th floor of the building Mercantile House is in possession of respondent No.5. M/s G.V.Gokal & Co. is not party to this proceedings. Mr Balsara submits that since 1973, M/s G.V. Gokal & Co. a partnership firm is in possession of 4 units of 3 rd and 4th floor under various agreements entered into with Mercantile Corporation. It is submitted that the said deceased was also a partner of M/s G.V. Gokal & Co. Mr Balsara placed reliance on some of the documents annexed to affidavit in reply in support of his submission that property tax in respect of the premises in occupation of respondent No.5 have been paid from time to time by respondent No.5. Mr Balsara submits that no relief for dispossession of respondent No.5 can be granted by this Court in this summary proceedings.
23. In rejoinder, it is submitted by Mr Andhyarujina, learned counsel appearing for petitioners that in the Consent Terms filed by the Sidhwas and Karanjawala, it was agreed that they would not have any claim in partnership firm M/s Mercantile Corporation. It is submitted that case of the first respondent that Mrs Karanjawala was sole surviving partner of M/s Mercantile Corporation Asmita 29/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 30 .. MPT-66/13 and is exclusively entitled to Mercantile House is contrary to his own case and is destructive with his plea that other occupants are claiming rights in the property.
In so far as the plea of defendant Nos.1 and 2 that their role as Executors has exhausted, it is submitted by Mr Andhyarujina that lease rent payable to Port Trust could be paid out of the estate of the deceased which is still in balance. It is submitted that under Section 317 of Indian Succession Act, Executors have to submit inventory of the assets. It is submitted that it is the case of respondent Nos.1 & 2 themselves that as far as liabilities of rent to Port Trust is concerned, it is pending investigation which itself shows that role of the Executors has not come to an end. It is submitted that it is the duty of Executor to ascertain the share of the deceased and to comply with the directions of the deceased.
Executors have not taken any steps to ascertain the immovable property and have not complied with their role as Executors. Mr Andhyarujina submitted that whether the respondents are trustees or Executors is irrelevant and their position is not different. Trustees hold for the benefit of beneficiaries. In so far as issue of delay raised by respondent Nos 1 and 2 is concerned, it is submitted that letter of authority was issued by Executors on 3 rd March 2008. Petitioners thereafter tried to take possession of the property i.e. Mercantile House. Since petitioners found several occupants in the said building and did not get vacant possession, petitioners immediately addressed a 5letter to Asmita 30/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 31 .. MPT-66/13 Executors on 6th July 2010 for compliance of their duty as Executors and sought possession.
It is submitted that role of Executor continues till all the duties and obligations of Executor under the Will in question and under the provisions of Indian Succession Act 1925 are complied with and Executor does not cease to be Executor till then. It is submitted that it is not the case of the first respondent that he ceased to be an Executor. It is submitted that the manner in which respondent Nos.1 and 2 claim interest in the property clearly shows conflict of interest in acting as Executors and thus, respondent Nos.1 and 2 will not be able to act impartial and their continuing as Executors will not be in the interest of the estate of the said deceased and the beneficiaries.
24. In so far as issue of non rejoinder of parties raised by respondent Nos.1, 2 and 5 is concerned, it is submitted by Mr Andhyarujina that respondent Nos.1, 2 and 5 represent all the occupants of various portions of the building Mercantile House excluding Union Bank of India. It is submitted that this Court shall pierce the veil. Mr Andhyarujina submits that though share of each of the partner in Clive Corporation has been particularized, the same was not done in case of Mercantile Corporation. It is submitted that even after carrying out the amendment by the first respondent to the probate petition, valuation of the properties forming part of the estate continued to be shown as Rs.40 crores Asmita 31/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 32 .. MPT-66/13 excluding the portion of second floor. It has been pleaded by respondent No.1 that petitioners are not entitled to possession of any part of the building which forms part of property of Rs.40 crores as disclosed in the petition. It is stated that submissions of respondent Nos.1 and 2 are inconsistent with the amendment carried out by respondent Nos.1 and 2 showing valuation of the property forming part of the estate at Rs.40 crores.
REASONS AND CONCLUSIONS:
25. I shall first decide whether the petitioners have made out a case for removal for respondent nos. 1 and 2 as executors and trustees appointed under the will dated 25th January, 2005 and Codicil dated 28 th June, 2006 under section 301 of the Indian Succession Act, 1925 (hereinafter referred to as Succession Act).
26. I shall first deal with the issues raised by Mr. J.B Chinai, learned senior counsel appearing for respondent no.1 and Mr. Sanjay Jain for respondent no.2 whether their role as the executors of the Will of the said deceased is over and they are no more acting as executors and are acting only as trustees and if so whether this petition for removal of executors and trustees is maintainable under section 301 of the Indian Succession Act, 1925.
27. Respondent No. 1 and 2 through their learned counsel have Asmita 32/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 33 .. MPT-66/13 vehemently urged that the assent was already issued by the executors, and the report submitted would indicate that all the beneficiaries including the petitioners have been given their respective legacies. It is stated that the only legacy which has not been distributed so far is that transfer of some of the legacies under the said will and codicil to the trust directed to be created by the said deceased. The submission of the learned counsel of respondent nos. 1 and 2 is that the residuary legatee, would be distributed after realisation of all the properties of the deceased. It is submitted that petitioners are not those residuary legates and in view of the fact that the residuary legates have not come forward for making any complaint or grievance against the executors, petitioners who were legatees and have been distributed legacies as directed by the said deceased cannot maintain this petition for removal of the trustees under section 301 of the Succession Act. Civil Court has power under the provisions of the Trust Act for removal of the trustees and not this court under section 301 of the Succession Act.
28. On perusal of the will of the said deceased, it is clear that various legacies have been bequeathed by the said deceased in favour of various family members. Share and entitlement of the deceased in the firm Mercantile Corporation and M/s. Clive Corporation and all amount finally payable by the firm are bequeathed to the petitioners equally. The accounts of the said firm Asmita 33/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 34 .. MPT-66/13 M/s. Mercantile Corporation and M/s. Clive Corporation are not drawn up. In the said Will, the deceased has also directed the executors to set apart a sum of Rs. 1,25,00,000/- from his estate and to divide the same into two equal parts which would be paid and handed over to the trustees of J.V. Gokal Charitable Trust with a direction to utilize the said sum by the trustees for the charitable objects and also in equal part to Shri Krishna Foundation for the charitable purpose of the said foundation. The said deceased has also bequeathed various amounts which was forming part of corpus to Ramanlal Gokal family Trust No. I, IV and V. The deceased has appointed Mr. Hemraj C. Ashar, Solicitor, Mr.Sanjay Asher, Solicitor and Mr. Prashant Asher, Advocate as trustees of the said Ramanlal J. Gokal Family Trust III, Ramanlal J. Gokal Family Trust IV and Ramanlal J. Gokal Trust V. In the said will, provision is also made for distribution of residuary legatte in favour of some of the family members and in particular clause 20 thereof. On perusal of the report dated 8 th March, 2010 submitted by respondent no. 1, it is clear that, as far as legacy in favour of J.V. Gokal Family Trust and Krishna Foundation who were also residuary legatees were concerned, it is recorded that sum of Rs.62,50,000/- would be distributed to them together with the residuary on its final determination. In so far as claim of Rs, 90 lacs which has been made by Ravindra Gokal is concerned, it is recorded that the same is pending investigation. As far as claim for unpaid Asmita 34/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 35 .. MPT-66/13 liability of the deceased owed to the Mumbai Port Trust on account of unpaid lease of the plot on which Mercantile House is constructed, filed by the petitioner no. 1, it is recorded that the same is pending investigation. It is also recorded that part of the amount have to be paid in respect of the expenses incurred in the course of administration of the estate such as solicitor's fee, consultant's fees, bank charges and other expenses.
29. It is the case of the petitioners that the executors are bound to submit inventory and account under section 317 of the Succession Act which has not been done so far by the executors. Mr. Andhyarjuna, learned counsel for the petitioner laid emphasis on the issue that the executors are also bound to clear dues of the said deceased which is inclusive of arrears of rent payable to the Bombay Port Trust. It is admittedly due and is under investigation.
30. On perusal of the report submitted by respondent no. 1 himself which is on record of this proceedings, it is clear that various amounts required to be transferred to such charitable trusts are not yet transfered by the executors. No member of the public who would be beneficiary in such trust would come forward for filing suit against the trustees for their removal. The beneficiaries of such public trust would not be any specific persons but would be general public. In my view all the duties of the executors are not performed and are yet to be performed. The executors and trustees have to form such public trust and Asmita 35/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 36 .. MPT-66/13 to transfer the properties to such trust. Various claims are under investigation and are not cleared so far. In these circumstances, it can not be concluded that the executors have completed their role as executor and only are acting as trustees. Calcutta High Court in the case of Smt. Sushmaji Karuri (supra) has held that if the duties of the executor to administer the estate of the deceased has been done and the estate has been settled, duties as executors are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries, he ceases to be executor and becomes trustee of the property. It is also held in the said judgment that in India the words executors and trustees are indiscriminately used and thus it is to be found from where the executorship ends and trusteeship begins. In my view, respondent no. 1 and 2 have not yet performed their duties completely as executors. Various acts as reflected in report itself are pending which have to be performed by the executor and not the trustees. The role of the executors and trustees in this case are intermingled and unless all such acts are complied by the executor, it can not be held that the role of the executors is over and the duties of the trustees have begun. In my view, thus there is no substance in the submissions made by Mr. J.B. Chinai, the learned senior Counsel appearing for respondent no.
1 and Mr. Jain, learned counsel appearing for respondent no. 2 that the respondent nos. 1 and 2 are now acting as trustees and not executors and thus Asmita 36/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 37 .. MPT-66/13 no relief under section 301 of the Succession Act can be granted in this proceedings. The judgment of Calcutta High Court relied upon by Mr. Jain the learned counsel for respondent no. 2 is clearly distinguishable with the facts of this case. In this case, in my view, since respondent nos. 1 and 2 have not complied with their duties as executors, application for removal under section 301 of Succession Act is maintainable. The said judgment relied upon by Mr. Jain is of no assistance to the respondents.
31. I shall now decide whether the respondent no. 1 and 2 are liable to be removed. It is not in dispute that respondent nos. 1 to 4 were appointed as executors by the said deceased in his will dated 25 th January, 2005. The respondent no.1 filed probate petition in this court in respect of the Will and Codicil of the said deceased. In Item No.2 of the schedule annexed to the probate petition filed by respondent no. 1, share of the said deceased in Mercantile Corporation was disclosed as 50% share in 2nd and 6th floor of the building Mercantile House admeasuring 2200 sq.ft. and 2000 sq. ft. respectively apart from the other properties. It is not in dispute that all the legal heirs of the said deceased had filed consent affidavits along with the petition filed by the first respondent. The first respondent had thereafter carried out amendment to the said schedule annexed to the said petition. In so far as item No. 2 of the schedule in the said petition wherein reference was made to the building Asmita 37/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 38 .. MPT-66/13 Mercantile corporation, respondent no.1 sought amendment and had described the entitlement of the said deceased in the said Mercantile House as owner of the said building, basement and six floors with its attendant assets and its right, title and interest in the Mercantile House showing the valuation at Rs.40,32,08,000/-. It was also disclosed that the said property did not fetch any rent. In view of the beneficiaries and legal heirs filing consent affidavits for grant of probate in favour of the respondent no. 1, this court granted probate on 13 th December, 2007 of the said last will and testament along with Codicil of the said deceased in favour of the first respondent.
32. It is the case of the respondent nos. 1 and 2 that on 25 th January, 2008, the executors gave assent by issuing letter to the beneficiaries that in accordance with the will and codicil of the said deceased, the petitioners were entitled to the share of the deceased and entitlement in the firm M/s.
Mercantile Corporation and M/s. Clive Corporation and all amounts standing to the credit of the said deceased in the said two firms and all amounts otherwise payable to the deceased in the said two firms. By the said writing, the executors authorised the said two legatees on behalf of the executors to access and receive the accounts, documents and other papers relating to the said firm M/s.
Mercantile Corporation and M/s. Clive Corporation to the same extent that
the deceased may have access and received from any person in whose
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possession or occupation the same may be. By another writing dated 3 rd
March, 2008, the executors gave their no objection in favour of the petitioners for dealing with the firms M/s. Mercantile corporation and M/s. Clive Corporation and for taking action so as to secure their share and entitlement in terms of the said Codicil and for that purpose to also deal with the other partners of the said firms of M/s. Mercantile corporation and M/s. Clive Corporation and bring their names on the records of the said firms. Reliance is also placed by the respondents on the report dated 8 th march, 2010 issued to the beneficiaries regarding distribution of the various legacies under the said will and codicil of the said deceased. In so far as clause 11 of the will read with codicil is concerned it is stated that the letter of authority was issued to the petitioners in respect of the share and entitlement of the deceased in the firm of M/s. Mercantile Corporation. It is the case of the petitioners that inspite of constantly following up with the executors for handing over possession of the property devolved on the petitioner on demise of the said deceased and inspite of probate issued by this court, the executors did not hand over possession of the entire property and and after taking custody and possession of the property, it was found by the petitioners that two of the executors were in possession of the part of the property, petitioners therefore, addressed a letter dated 6th July 2010 to the executors placing these facts on record and once Asmita 39/57 ::: Downloaded on - 27/11/2013 20:25:50 ::: .. 40 .. MPT-66/13 again called upon the executors to hand over vacant possession of the area of Mercantile House occupied by the executors or their agents and also to clear the due liability of the deceased to Mumbai Port Trust within seven days from the date of receipt of the said notice. There was no reply to the said letter from any of the executors. Petitioners thereafter filed suit in this court being Suit No. 1437 of 2012 inter alia praying for possession of the first floor of the building Mercantile House. Defendant nos. 1, 2 and 5 in this petition were impleaded as defendants to the said suit. Plaintiffs had applied for interim reliefs in the said suit by filing Notice of Motion (1518 of 2012).
33. This court had granted part interim relief in favour of the petitioners. In Appeal filed by the petitioners impugning the said order dated 25th July, 2010 passed by this court, the order passed by the learned Single Judge was not modified by the Division Bench except recording statement of the respondent nos. 1 and 2 that they shall maintain accounts of the compensation received. Petitioners thereafter filed Criminal complaint on 22 nd February, 2011 against the respondent nos. 1 and 2 and further complaint dated 8th April, 2011 to the Commissioner of Police. Petitioner also filed additional statement on 1st August, 2011 to the Senior Inspector of Police to supplement the criminal complaint dated 22 nd February, 2011. It is not in dispute that only after filing of the said police complaint by the petitioners Asmita 40/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 41 .. MPT-66/13 against respondent nos. 1 and 2 before the Commissioner of Police, respondent no. 1 made an application on 4 th August, 2011 before the Prothonotary & Senior Master of this court inter alia praying for amendment of the probate granted by this court and also to seek amendment of the schedule of assets to petition with regard to the immovable property alleging that he had inadvertently mentioned item No. 2 as ownership property of the said deceased. Respondent no.1 did not obtain any consent of the petitioners who are beneficiaries in writing for carrying out any such amendment and also did not give any notice to the petitioners of such application having been filed before the Prothonotary & Senior Master for amendment. Respondent no. 1 obtained exparte order against the petitioners and other beneficiaries who had filed consent affidavits.
Petitioners have filed separate petition being Misc. Petition No. 54 of 2012 impugning the said order passed by the Prothonotary and Senior Master allowing the amendment of the probate as well as schedule to the probate petition. By a separate order passed by this court, said petition has been disposed of.
34. The main grievance raised by the petitioners in this case for removal of respondent nos. 1 and 2 as executors and trustees of the Will and Codicil of the said deceased is on the ground that the respondent nos. 1 and 2 have not complied with their duties and obligations required to be performed under the said will and codicil of the said deceased and also under the provisions of the Asmita 41/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 42 .. MPT-66/13 Indian Succession Act, 1925. Learned counsel for the petitioner has strongly canvassed the issue that the executors who are appointed for the benefits of the legatees and beneficiaries cannot claim any interest contrary to the interest of beneficiaries. It is submitted that instead of complying with their duties and obligations under the said Will and codicil and under the provisions of the Succession Act, by complying with the directions of the said deceased in distributing the estate of the said deceased, the executors have illegally claimed rights in the said properties forming part of the estate i.e. building Mercantile House. It is submitted that the executor or trustee cannot act contrary to the interest of the benefits and estate of the said deceased. It is submitted that to avoid any criminal action arising out of the criminal complaint filed by the petitioners, respondent nos. 1 and 2 had mischievously and fraudulently filed an application for amendment before the Prothonotary & Senior Master and had obtained an exparte orders with malafide intention.
35. On perusal of the original schedule annexed to the probate petition and the first amendment carried out by the respondent No.1 in the schedule to the probate petition, it is clear that the respondent No.1 himself had disclosed the entitlement of the said deceased as owner in respect of the building Mercantile House. All the beneficiaries and legal heirs had given consent in favour of the executor for grant of probate. The disputes had already arisen between the Asmita 42/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 43 .. MPT-66/13 petitioners and also executors. Criminal complaint was filed to the knowledge of respondent no.1 by the petitioners. In my view the action on the part of the respondent no. 1 in making an application for amendment of the schedule after more than three year from the date of issuing grant by this court and that also after dispute between the beneficiaries and executors had started and criminal complaint having been filed by the respondent no. 1 and that too without effecting any service of notice and copy of the application and without obtaining consent of the petitioners, was totally mischievous and with a view to obviate any criminal action against respondent no.1.
36. On perusal of the affidavit in reply filed in Notice of Motion No. 1518 of 2012 in Suit No. 1437 of 2012 filed by respondent nos.1 and 2 herein and after hearing Mr. J.B. Chinai, learned senior counsel for respondent no. 1 and Mr. Sanjay Jain, learned counsel appearing for respondent No. 2, it is clear that the respondent nos. 1 and 2 on the one hand were acting as executors and trustees under the Will and codicil of the said deceased and had disclosed the share of the said deceased in the partnership firm Mercantile Corporation which was owner of the said building Mercantile House and on the other hand has claimed independent rights in various portions of the said building Mercantile House.
37. It is not in dispute that under the said will read with codicil of the Asmita 43/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 44 .. MPT-66/13 said deceased, no such bequest was made by the said deceased in favour of the executors. Though under the Will executed by the said deceased, it was provided that his entitlement in the firm M/s. Mercantile Corporation and all amounts outstanding to his credit in the said firm and M/s. Clive Corporation would go to respondent nos. 1 and 2 equally, under the codicil of the said deceased executed on 28th June, 2006, paragraph 11 of the will was substituted and the said legacy was given to the petitioners equally. Respondent nos. 1 and 2 and/or their sister concerns including respondent no. 5 are claiming to be in possession of various portions of the said building Mercantile House which was one of the properties disclosed in the probate petition by the respondent no. 1 himself as ownership property of the said deceased. The amendment of the schedule of the estate carried out by the respondent No.1 when the said deceased was shown as owner of the said building Mercantile House, recorded that the said property did not fetch any rent. Even after carrying out second amendment, after grant of probate by this court, the valuation of the said building known as Mercantile House continued to be the same in the amendment carried out by the first respondent. It is the case of the respondent No.1 that much prior to the demise of the said deceased, all these portions of the building Mercantile House were already in possession of respondent no. 1 and 2 or 5 or their sister concerns. In my view, if the respondent nos. 1 and 2 claim Asmita 44/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 45 .. MPT-66/13 any right title or interest in the said property, respondent on.1 would not have disclosed the property of the said deceased initially at 50% share on the second and sixth floor portion of the building Mercantile House and subsequently as ownership of the said deceased. In any event, the executors could not have applied for amendment of the probate after three years and that also exparte in the manner in which that is carried out by respondent nos.1 and
2. This action on the part of the respondent No. 1 and supported by respondent no.2 clearly indicates their rival claim in the property stated to be that of the deceased which claims are made after obtaining probate of the said Will of the said deceased.
38. The questions that arise for consideration of this court are that in these circumstances, where the executors have set up their rival claims in respect of the properties which were disclosed as ownership properties of the said deceased by the executors who were parties to the probate petition and having obtained exparte orders after filing of the criminal complaint against the beneficiaries whether can be allowed to continue to act as executors and trustees of the said will and the codicil of the said deceased. In my view, the executors have to act in the interest, benefit and welfare of the beneficiaries/legattes under the will and codicil and cannot be permitted to have his conflicting interest in the estate. Since no part of the estate was bequeathed in favour of Asmita 45/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 46 .. MPT-66/13 the executors by the said deceased, the executors have to comply with their duties and to distribute the legacies amongst the beneficiaries/legatees under the said will and codicil and cannot be permitted to set up title adverse to the title of the said deceased while carrying out his duties as executors and trustees.
If the court comes to the conclusion that continuance of such executors and the trustees would prevent the estate being property executed, the executors and trustees can be removed. The court has to bear in mind that the executors and trustees exist for the benefit of those to whom the testator of the will has given the estate. If the conflict of executors with the beneficiaries grows up and is apparent on record before the court, the court shall consider those facts while considering the application for removal of such executors and trustees.
39. On perusal of the records in this proceedings, it is clear that the conduct of respondent nos. 1 and 2 as executors and trustees, in acting against the interest of beneficiaries and to protect their own interest in the properties which are stated to be forming part of the estate, cannot be allowed to continue to act as executors and trustees.
40. During the course of the arguments, upon query being raised to the learned senior counsel Mr. J.B. Chinai, appearing for respondent No. 1, whether in view of such serious allegations whether respondent nos. 1 and 2 would resign voluntarily from acting as executors and trustees if all such allegations are Asmita 46/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 47 .. MPT-66/13 withdrawn by the petitioners unconditionally, learned senior counsel on instructions from his client states that respondent no. 1 and 2 would not resign as they were appointed by the deceased who was their brother and had reposed full confidence and faith in them and were accordingly appointed as executors and trustees by the said deceased brother and also on the ground that the respondent nos. 1 and 2 have not committed anything wrong which may lead to their removal as prayed by the petitioners. Mr. Andhyarujina, learned counsel for the petitioners agreed to withdraw all allegations unconditionally if respondent nos. 1 and 2 voluntarily resign as executors and trustees.
41. Punjab & Haryana High Court, in the case of Tarachand Sharma Vs. Uma Aggarwal, has held that the court cannot shut its eyes to the conduct of the executor and allow executor to continue irrespective of his working detriment to the property bequeathed merely because complainant's conduct was not aboveboard. It is held that if the executor instead of discharging his duty as per the Will was abusing his position to divert the property of the testator for his personal benefit, such executor has to be removed by court.
Even in that matter, the executor/trustee was pleading his own tenancy in the property bequeathed and was considered as sufficient ground for justifying the removal of such executor acting in dual capacity as executor and trustee. I am in agreement with the view taken by Punjab& Haryana High Court in the case of Asmita 47/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 48 .. MPT-66/13 Tarachand Sharma (supra). Even in this case, it is found that respondent no. 1 and 2 are claiming rights in the property which is subject matter of dispute.
42. In my view, an executor who is not a beneficiary cannot be permitted to continue to act as executor and trustees under the Will and codicil and as per the provisions of the Indian Succession Act and when such executor and trustee himself claims some right in the property which is stated to be forming part of the estate adverse to the title of the deceased and claim of the beneficiaries as is apparent from the schedule amended by respondent no.1 himself.
43. In my view, if beneficiaries have lost confidence in the executors, such executors or trustees cannot be allowed to foist themselves upon the beneficiaries/legatees to act on their behalf as executors and trustees.
Respondent Nos. 1 and 2 are facing serious allegations made by the beneficiaries/legatees including allegations of fraud and adverse claim having been put up by the executors against the estate of the deceased. In my view, in this case there is clear conflict of duty and obligation of executors towards beneficiaries and rival claims put up by them against the beneficiaries in respect of the properties stated to be forming part of the estate. Punjab & Haryana High Court in the case of Smt. Shantidevi (supra), has held that the conduct of the executor must be for the welfare of the beneficiaries and to Asmita 48/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 49 .. MPT-66/13 advance the aims and objects of the trust and if the conduct of the executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised. I am in complete agreement with the principles laid down above by the Punjab & Haryana High Court in the said judgment. Punjab & Haryana High Court has considered the judgment in the case of Shrinivasan in which it was held that if the executor put forth right which is absolutely untenable and is in conflict with the rights of the beneficiaries, it is sufficient for the High Court to exercise powers vested in it under section 301 of the Indian Succession Act.
44. In my view, this court cannot go into the issue of title of the deceased in respect of any property which is stated to be forming part of the estate of the said deceased in testamentary proceedings. However, this court is entitled to ascertain whether such claim put up by the executor and trustee would be in conflict with the interest of the beneficiaries and legates and if so, whether such executors and trustees can be allowed to act as executors and trustees. In my view, in such a situation, the executors have to first step down from their position as executors and trustees and then can make their rival claims against the beneficiary in respect of the property stated to be forming part of the estate. A person cannot be allowed to act as executor and trustee for the benefit of beneficiaries and at the same time to set up his own title which Asmita 49/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 50 .. MPT-66/13 may be adverse to the title of the said deceased which would be in conflict with the welfare and interest of the beneficiaries at the same time.
45. The next submission of respondent nos. 1and 2 is that for transfer of any immovable property in favour of legatees, execution of the conveyance which shall be duly registered is a must. It is submitted that though in this case, no such conveyance is executed by the executors in favour of the legatees, in so far as Mercantile House is concerned, the petitioners did not raise any objection knowingly well that the deceased was not the owner of the said immovable property and thus the same was not bequeathed in favour of the petitioners. In my view, on perusal of the letter addressed by the petitioners, it is clear that petitioners had called upon the respondents to hand over possession of the entire property. The question of execution of the conveyance would have arisen when executors would have transferred the property in question in favour of the beneficiaries.
46. It is the case of respondent nos. 1 and 2 that the action alleged by the petitioners against the respondent nos. 1 and 2 are for acts prior to the death of the deceased and not after the death of the deceased and this court cannot go into such allegations in this proceedings under section 301. On perusal of the pleadings and the documents on record of the proceedings, it is clear that the allegations made against the respondent nos. 1 and 2 are not for Asmita 50/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 51 .. MPT-66/13 the period prior to the date of death of the deceased. It is alleged by the petitioners that the respondent Nos. 1 and 2 had failed to perform their duties as executors of the Will in compliance with the provisions of the Will and codicil and the provisions of the succession Act and have illegally claimed title in respect of Mercantile House which acts are for the period after demise of the testator. There is thus no merit in this submission of respondent nos. 1 and 2.
47. The next submission of respondent nos. 1 and 2 is that no prejudice would be caused to the petitioners if the respondent nos. 1 and 2 are allowed to continue to act as trustees. Since this court has taken a view that the respondent nos. 1 and 2 have not complied with their duties as executors and in view of the conflicting interest set up by the executors, I am not inclined to accept the submission of respondent nos. 1 and 2 that no prejudice would be caused to the petitioners if respondent nos. 1 and 2 are allowed to continue as executors and/or trustees.
48. On conjoint reading of Sections 323, 333, 363, 358 and 369 of the Indian Succession Act, 1925 it is clear that scheme of the said Act is that the executor is under an obligation to submit inventory containing full and true description of all the properties in possession of all the occupants and also all the debts owing to any person of which the executor or administrator entitled in character, within the period of six months from the grant of probate or such Asmita 51/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 52 .. MPT-66/13 period as may be extended by the court. The executor is also bound to pay all the debts and distribute legacies. If an executor or administrator misplace the estate of the deceased or causes any loss or damage, he is liable to make good, loss or damage so occasioned. Thus it is clear that the role of the executor is full of responsibilities and is for the benefit of beneficiaries and legattes and all the directions of the testator have to be complied with as per the provisions of the Will and in conformity with the provisions of the Succession Act. If any loss is caused to the estate, the executor may be held liable for the said loss caused due to his negligence. In my view, if there are serious allegations against the executor and trustee that they are acting contrary to the interest of the beneficiaries and estate of the deceased and has set up adverse title which in this case is apparent, this court has ample power to remove such executors by exercising powers under section 301 of the Succession Act.
49. As far as directions against respondent nos. 3 and 4 who are other executors and trustees appointed by the said deceased under the said Will is concerned, Mr. Kamdar, learned senior counsel appearing for those two executors, submits that they have no objection if they are directed to continue to act as executors. It is however, submitted that in so far as prayer clauses ( c),
(d) and (e) by which the petitioner seeks an order and directions against them to take custody and control of various floors of the building Mercantile House is Asmita 52/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 53 .. MPT-66/13 concerned, the same cannot be done by the executors as the occupants are claiming to be in possession thereof. It is submitted that the petitioners may file appropriate proceedings against these occupants for recovery of possession, if so advised, in accordance with the law.
50. Mr. Jain, the learned counsel for respondent no. 2 has adopted the submissions made by Mr. J.B Chinoy appearing for first respondent. Mr. Jain the learned counsel has also addressed this court on the issue of limitation as far as prayer clauses (c ), (d) and (e) are concerned. Learned counsel for respondent nos. 1 and 2 have submitted that various portions of the building Mercantile House are in possession of various parties including respondent nos. 1, 2 and 5 and they claim rights in the said property since much prior to the date of the execution of the will and even prior to the death of the said deceased. It is submitted that since these parties are not parties to this proceedings, no order for removal of those parties can be granted by this court in this proceeings. Mr. Jain also placed reliance on section 205 of the Succession Act in support of his submission that the application under Part VII has to be made within six months from the date of the death of the proprietor whose property is claimed by right in succession. Reliance is placed on section 192 of the Succession Act in support of his submission that it is not the case of the petitioners that respondent nos. 1, 2 and 5 have taken forcible possession of the property after the demise Asmita 53/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 54 .. MPT-66/13 of the said deceased. It is submitted that in any event the application for possession sought by the petitioner is barred by law of limitation under section 192 of the Succession Act read with section 205 since it is not filed within six months from the date of death of the deceased.
51. It is submitted that in any event the proceedings under section 192 is summary proceeding and title and interest of the parties claiming recovery of possession cannot be determined in the summary proceedings. It is submitted that the petitioners have already filed separate suit in this court (Suit No. 1437 of 2012) inter alia praying for possession of the first floor of Mercantile House.
My attention is invited to the order dated 25 th July,2012 passed by Mr. Justice B.R. Gavai in Notice of Motion No. 1518 of 2012 filed by the petitioners and also order dated 5th February, 2013 passed by the Division Bench of this court in Appeal No. 612 of 2012 filed by the petitioners impugning the order dated 25 th July, 2012 passed by Mr. Justice B.R. Gavai. In the said order dated 25 th July, 2012 this court has observed that at this stage, it would be difficult to believe the contentions raised on behalf of the plaintiff that plaintiffs have become owner of the entire building and at most it can be accepted that the plaintiffs have become owners of the area falling to the share of their father. It is also observed that there are various complicated questions regarding the title of various properties involved and in the interest of justice, both the parties are directed Asmita 54/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 55 .. MPT-66/13 not to create any third party rights in respect of the suit properties. The Division Bench did not interfere with the said order passed by the learned Single Judge except recording the statement made by the respondent nos. 1 and 2 that they shall maintain accounts of the compensation received. Mr. Balsara, the learned counsel for respondent no. 5 adopted the submissions made by respondent nos. 1 and 2 as far as occupation of the property by various parties are concerned. It is submitted that the respondent no. 5 has been claiming right title and interest in the fifth floor of the building Mercantile House even since the period prior to the death of the said deceased and has relied upon various documents in support of such claim. It is submitted that this court can not pass any oder for removal of respondent no. 5 in this summary proceedings. The submission of Mr. Andhyarunjina the learned counsel for the petitioner on the other hand is that since the respondent nos. 1, 2 and 5 have made false claims of their occupation and possession on the property, this court has ample power under section 192 to remove such unauthorised occupants from the possession of the property forming part of the estate of the deceased.
52. On perusal of section 192 of Succession Act, it is clear that the proceedings filed under section 192 are of summary nature. Rival contentions of the parties regarding title of the deceased or executors raised in this proceedings cannot be gone into in this summary proceedings. Plaintiffs Asmita 55/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 56 .. MPT-66/13 have filed separate suit for recovery of possession of first floor of the building Mercantile House. This court has made prima facie observation in the notice of motion filled by the plaintiffs that various complicated questions regarding title of various parties were involved and at this stage it would be difficult to believe the contention raised on behalf of the plaintiffs that they have became owners of the entire building. The division bench has not set aside the prima facie observations made by this court in the notice of motion in the said suit. In my view, in view of serious disputes about the title raised by respondent nos.
1,2 and 5, in respect of the properties Mercantile House, which issues can not be gone into in the summary proceedings, no reliefs claimed in prayer © to (e) can be considered in this proceeding. Plaintiffs may file appropriate proceedings, for recovery of possession in respect of the third, fourth and fifth floor of the building Mercantile House if they are so advised in accordance with the law.
This court has not expressed any views as to whether the plaintiffs are entitled to be awarded any such relief on merits and the same shall be decided on its own merits, if any suit is filed by the plaintiffs.
53. As far as submission of Mr. Andhyarunjina that all the occupants of the building Mercantile House are either respondent nos. 1, 2, or 5 themselves or their sister concerns and thus merely because all the occupants are not made parties to the suit, would not prevent this court from passing any order as prayed Asmita 56/57 ::: Downloaded on - 27/11/2013 20:25:51 ::: .. 57 .. MPT-66/13 is concerned, I need not deal with this submission as this Court has rejected prayer ( c) to (e) of the petition.
54. I, therefore, pass the following order :
(i) Respondent Nos. 1 and 2 are removed as executors and trustees appointed under the Will dated 25th January, 2005 and codicil dated 28th June, 2006 of the deceased forthwith. Respondent nos. 3 and 4 are directed to complete administration of the estate and properties of the deceased as per directions of the testator and in compliance with the provisions of Indian Succession Act, 1925. Prayers ( c), (d) and (e) of the petition are rejected. Respondent Nos. 1 and 2 shall hand over charge of the estate and all the documents relating to the estate of the deceased to the respondent nos. 3 and 4 within two weeks from today.
(ii) There shall be no order as to costs.
55. At this stage, learned counsel appearing for respondent Nos.1 and 2 seeks stay of implementation of the order passed by this Court which is vehemently opposed by the learned counsel for the petitioner.
56. Application for stay is refused.
(R.D.DHANUKA, J.) Asmita 57/57 ::: Downloaded on - 27/11/2013 20:25:51 :::