Calcutta High Court
Rs.10 Lakh To The vs Nirupama Devi And Another on 14 March, 2023
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
The Hon'ble Justice Sabyasachi Bhattacharyya
IA NO. GA/1/2021
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/2/2021
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/3/2022
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/4/2022
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
AND
IA NO. GA/5/2022
In
PLA/327/2021
IN THE GOODS OF :
SHRI OM PRAKASH MANIYAR (DECED)
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For Narbada Devi : Mr. Ranjan Bachawat, Sr. Adv.
Mr. Rudraman Bhattacharya, Adv.
Mr. Sayantan Das, Adv.
For Chandni Maniyar : Mr. Sabyasachi Choudhury, Adv.
Mr. Rajarshi Dutta, Adv.
Mr. V.V.V. Sastry, Adv.
Ms. Vidhi Sharma, Adv.
For Dheeraj Maniyar : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Rachit Lakhmani, Adv.
Mr. Vishwarup Acharyya, Adv.
Mr. Sourav Roy, Adv.
For Subhash Maniyar : Mr. S.K. Kapur, Sr. Adv.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Sakya Sen, Adv.
Mr. Varun Kedia, Adv.
Mr. Altamash Alim, Adv.
Ms. Priyanka Prasad, Adv.
Hearing concluded on : 28.02.2023
Judgment on : 14.03.2023
The Court:
In Re: GA/1/2021 and GA/5/2022
1. The parent probate proceeding bearing PLA No.327 of 2021 is for
grant of probate of the alleged last Will and testament of Late Om
Prakash Maniyar dated August 3, 2020. In the said Will, his wife Smt.
Chandni Maniyar was made the sole Executrix. In the event of demise
of the executrix prior to obtaining probate, the Testator's elder son
Subhash Maniyar was named as the Executrix.
2. Another previous Will of the same Testator has come into the fray.
Such Will is dated January 30, 2018, wherein Subhash Maniyar is the
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Executrix. However, the present probate proceeding has been
instituted by Chandni for probate of the latter Will.
3. The Dramatis Personae of the present narrative are as follows:
Om Prakash Maniyar (since deceased)
Narbada Devi (first wife) Chandni (second wife)
Subhash (elder son) Dheeraj (younger son)
4. Five applications were taken up for hearing together, all arising out
the same probate proceeding, that is, PLA No.327 of 2021.
5. GA No. 1 of 2021 is primarily for appointment of Administrator
Pendente Lite (APL), inter alia, also praying for injunction in respect of
thirteen companies allegedly owned and controlled by the deceased
Testator and included in the affidavit of assets and maintenance of
Rs.10 lakh to the petitioner Chandni. Chandni is the petitioner in GA
No.1 of 2021.
6. GA No. 2 of 2021 has been filed by Narbada Devi for
intervention/addition as a party to the probate proceeding.
7. GA No. 3 of 2022, filed by Chandni, the propounder of the 2020 Will,
is for citation to the heirs of the deceased Testator, namely Chandni,
Dheeraj and Subhash.
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8. Chandni has also filed GA No.4 of 2022 for permitting the testimony of
one Shri Suraj Toshniwal, one of the attesting witnesses to the 2020
Will, to be recorded De Bene Esse.
9. Chandni has filed GA No.5 of 2022 seeking injunction restraining
Subhash from withdrawing commissions of Rs.3 crore, Rs.7 crore and
Rs.2 crore from three out of the total companies, shares of which are
part of the affidavit of assets, namely Guwahati Carbon Limited, Neo
Carbon Private Limited and Paradip Calciner Limited respectively.
10. GA No.1 of 2021 and GA No.5 of 2022, having several identical issues,
are being taken up together first for adjudication.
11. The petitioner Chandni argues that the proposed Extraordinary
General Meeting (EGM) contravenes an interim order passed by an
appellate court dated February 14, 2022, confirmed on April 26, 2022,
whereby injunction was granted to the effect that the expenses
incurred by the companies-in-question are not to exceed the
approximate average of loans and advances over the last five years.
12. The appeal was filed in connection with an ad interim order passed in
connection with GA No.1 of 2021.
13. It is submitted by learned counsel for the petitioner that over the last
five years, the total commission paid to Subhash by the companies
was Rs.10 crore. However, after the demise of the Testator, Subhash
has already been paid for the financial year 2021-22 Rs.6 crore each
in Guwahati Carbon Limited and Neo Carbon Private Limited.
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14. In support of GA No.1 of 2021, which is the application for
appointment of APL and for injunction, learned counsel further
submits that Subhash was the Executrix of the 2018 Will sought to be
propounded by Subhash. That apart, he is a beneficiary in both the
Wills of 2018 and 2020. Even in the 2020 Will, in the event of prior
demise of Chandni, Subhash is designated as the sole Executor.
Therefore, Subhash is liable to protect the estate.
15. However, it is contended that Subhash is acting in several capacities,
also being the Director of the companies-in-question, and is siphoning
off funds, thereby becoming liable for devastation of the estate. Placing
reliance on Sections 368 and 369 as well as Section 303 of the Indian
Succession Act, 1925 (for short, "the Succession Act"), learned
counsel submits that Subhash falls within the mischief of the said
provisions.
16. Under the 2018 Will, in case of failure to comply the directions
therein, the title of the assets of Neo Carbon Private Limited, after
discharging bank liabilities, is to be transferred to Chandni. Hence,
even as per the Will propounded by Subhash, Chandni has a direct
interest in the said company.
17. It is submitted that respondent no.1, Subhash, is under a
misconception in arguing that the companies are separate juristic entities. In appropriate cases, it is submitted, injunction may be passed against third parties to protect the estate. In this regard, learned counsel for the petitioner places reliance on Atula Bala Dasi 6 and others Vs. Nirupama Devi and another, reported at AIR 1951 CAL
561.
18. In view of the above arguments, it is submitted that GA No.5 of 2022 ought to be allowed, thereby restraining Subhash from withdrawing the commission as indicated therein and keeping the amount already drawn in a separate account during the pendency of the probate proceeding.
19. The assets of the Testator include the shares in at least ten out of the thirteen companies which are valued in excess of Rs.32 crores as per both sides. Whereas Chandni has valued the shares at a total of Rs. 32.98 crores, Subhash has evaluated the same to be about Rs. 34.16 crores in total.
20. The appointment of APL is necessary to protect the interest of the estate of the Testator with regard to the shares and the controlling interest in respect thereof. Siphoning of funds by the respondent no.1, Subhash, by way of calling EGMs and otherwise depleting the value of the shares of the Testator, which forms part of the estate, justify the appointment of APL, it is contended.
21. Subhash Maniyar, with much less shareholding, is in a position to control the affairs of the companies to effect payment to himself on the pretext of "commission" by reason of "profitability of the company". Profits of the company, it is argued, are either to be channelized in the business of the company or to be distributed among the shareholders by declaring dividends (which has not been done). In any event, profits 7 of the company, at least to the extent of the shares of the Testator, are part of the estate and Subhash cannot be allowed to take away such profits by way of commission, thereby depleting the estate in breach of his statutory duties as the Executor of the 2018 Will, propounded by himself.
22. The defence that the companies are third parties and separate entities is misconceived, it is argued, and the court, if necessary, will disregard the corporate veil to find the controlling mind without stopping to question the probate or necessity of piercing the veil. For such proposition, learned counsel cites the case rendered in 2008 SCC OnLine (Cal) 208 [In the Goods of : Kamal Kumar Mitra].
23. The money already taken by Subhash (Rs.6 crore each in Guwahati Carbon and Neo Carbon) should be kept in a separate account as part of the estate.
24. Learned counsel for the petitioner next highlights the cross-holding structure of the various companies.
25. It is submitted, for example, that the Testator had about 24.58% shares in Guwahati Carbon and, along with that of the petitioner (8.71%), would have voting rights in respect of more than 33% shares. Since the rights in respect of the shares of the Testator are the subject-matter of the pending proceeding, various resolutions are being passed in the nature of EGMs in the companies including Guwahati Carbon Limited. A sum of Rs. 9 crore in two tranches has 8 already been siphoned off on the pretext of 'commission' linked to profitability of the company.
26. Learned counsel contends that it is well-settled that "controlling interest" in the companies also forms part of the asset of the Testator and cites Section 2(27) of the Companies Act, 2013 in that regard. The deceased Testator absolutely controlled and managed the affairs of the companies during his lifetime, it is alleged.
27. Apart from Kamal Kumar Mitra (supra), learned counsel also places reliance on the case of Taxation Services Syndicate Limited, reported at (2008) 3 CalLT 47 and also the English decision of the Commissioners of Inland Revenue Vs. B.W. Noble Limited, B.W. Noble Limited Vs. the Commissioners of Inland Revenue, reported at 12 Tax Cases 911, where the expression "controlling interest" was defined to the extent that the said phrase in regard to a company was a reference to the situation and one "whose shareholding in the company is such that he is the shareholder who is more powerful than all the other shareholders put together in general meeting".
28. In Bihar Carbons Private Ltd., the Testator had 7.69% shares and the petitioner 10.76% shares. Om Prakash HUF held 3.34% shareholding and Deeraj Maniyar, 11.35%. The annual return of the Company made on March 31, 2020 which was digitally signed by the deceased Testator on February 23, 2021 reflected the correct shareholding, it is contended. The revised annual return signed by the respondents on June 25, 2021, immediately upon demise of the Testator, reflected 9 that the entire shareholding of Dheeraj Maniyar was transferred in the name of the deceased on 27 April, 2019.
29. The respondent no.1 Subhash Maniyar has alleged that Dheeraj Maniyar executed a notarized bond of gift on April 27, 2019 and requisite share transfer forms for the purpose of transferring the shares in favour of the deceased. The alleged signature of Dheeraj in the deed of gift or share certificate forms were not executed by Dheeraj, it is submitted, as he was not in India on April, 27, 2019. Although the respondents have been called upon by the petitioner's advocate by a letter dated October 28, 2021 to provide inspection of the original alleged deed of gift, the petitioner and/or her advocate, it is submitted, have not offered the same.
30. By citing the instances of several companies, it is sought to be argued by the petitioner that the Testator and the petitioner Chandni had a combined shareholding sufficient to dominate the affairs of the company. The revised annual return filed by respondents using the digital signature of the petitioner on June 26, 2021, during the mourning period after the demise of Dheeraj, it is argued, reflects that the shareholding of the petitioner was reduced from 8.62% to 5.62% and the shareholding of the deceased from 10.96% to 6.96%.
31. Learned counsel for the petitioner counters the allegation of the respondents that the deceased and the petitioner executed two separate gift deeds to transfer the shares in favour of Subhash Maniyar and Rashmi Maniyar respectively and also share transfer 10 forms to give effect to such transfer. It is contended that the petitioner and the deceased did not execute any deed of gift and did not sign any share transfer form as alleged by the respondents. The respondent has, thus, perpetrated fraud by forging the signatures of the deceased and the petitioner to justify the alleged transfer.
32. The respondent has alleged that the petitioner executed the deed of gift to transfer her shareholding in favour of the deceased on April 26, 2019 as well as share transfer form to give effect thereto. However, it is denied that the petitioner executed any deed of gift and/or signed any share transfer form as alleged by respondent. The respondent has perpetrated fraud by forging the signature of the deceased in respect of the property to justify the alleged transfer.
33. From the aforesaid conduct of the respondent, it is evident that the estate of the deceased, which also comprises of the control of the companies that the deceased had exercised during his lifetime, is being dealt with in a manner which is contrary to the interest of the beneficiaries under the 2020 Will, for which it is necessary to appoint an Administrator Pendente Lite, which shall protect and preserve the estate of the deceased as also exercise all rights over the shareholding of the deceased and the control that the deceased had in the companies, including voting rights.
34. In conclusion, it is argued that the petitioner's applications be allowed.
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35. The respondent no.1-Subhash Maniyar opposes GA No.1 of 2021, GA No.4 of 2022 and GA No.5 of 2022.
36. It is argued that the earlier Will of the same Testator dated January 30, 2018 is the subject-matter of a different proceeding being PLA No. 259 of 2021, which has no nexus with the present probate application in respect of the 2020 Will. All the arguments of the petitioner are founded upon the rival Will, which should be excluded altogether in view of the doctrine of election, since the petitioner, to accept a benefit under a deed or Will, must adopt the whole contents of that instrument and to conform to all its provisions and renounce all rights that are inconsistent with it. Learned counsel cites in this context C. Bipathumma and others Vs. Velasari Shankaranarayana Kadambalithaya and others, reported at AIR 1965 SC 241.
37. The next limb of the submission of respondent no.1-Subhash, as advanced through the learned Senior Advocate appearing on his behalf, is that the probate application itself is not maintainable inasmuch as none of the alleged attesting witnesses have made any declaration regarding attestation of the Will. As per the admission of the petitioner, both the alleged attesting witnesses are not available or willing to provide the Will. In this context, the learned Senior Advocate places reliance on Section 68 of the Evidence Act. The probate petition itself acknowledges that Suraj Toshniwal has refused to affirm the requisite affidavit in support of the Will dated August 3, 2020, which Chandni is propounding. In other words, it is contended, 12 Chandni Maniyar had, at all material times, been fully aware that the requisite affidavit could not be made available by her for proving the attestation of the 2020 Will.
38. It is a settled principle of law that until one attesting witness at least is called for the purpose of proving the execution of a Will, Section 68 to 70 of the Evidence Act mandates that no Will can be used in evidence at all. No steps whatsoever have been taken by Chandni Maniyar, although she was fully conscious of the non-availability of any attesting witness even before filing any probate application. No steps had been taken to issue any summons or sub poena to adduce evidence.
39. Once the lacuna in the probate application was pointed out by the respondent, GA/3/2022 was filed belatedly seeking leave to examine Suraj Toshniwal, which application itself is misconceived.
40. It is argued further on behalf of respondent no.1 that no prayer for APL or other interlocutory relief can be granted until and unless the Will, at least prima facie, is proved to have been executed by the Testator in accordance with law.
41. The learned Senior Advocate cites the judgments reported at AIR 1939 CAL 688 [Hare Krishna Panigrahi Vs. Jogneswar Ponda] and AIR 1945 CAL 350 [Amal Sankar Sen and another Vs. The Dacca Co-operative Housing Society Ltd.], where the Division Bench observed that mere taking out of summons or service of the same upon an attesting witness or the taking out of a warrant against such witness is not 13 sufficient; a party must take proper steps to summon an attesting witness following all the procedures imperatively before he is able to claim the benefits under Section 71 of the Evidence Act.
42. The facts relating to the life and business of the Testator have been sought to be placed on behalf of the respondent no.1, in a bid to explain the roles played by respondent no.1 and respondent no.2 in the affairs of the company and in the life of the Testator. Chandni has admitted all the facts of Subhash's involvement in the businesses during the lifetime of the Testator. The Testator, before his demise, personally brought in Subhash and inducted him into the business completely. As such, Subhash was given substantial shareholding and also became a director in one of the companies on and from 2008 onwards. The record, therefore, manifests that for a period of 21 years Subhash and his father (Testator) administered and controlled the day-to-day affairs of the company and the Testator reposed full trust and confidence in Subhash, allowing the latter to conduct all business ventures.
43. On the other hand, Dheeraj never participated in the business and had become an Australian citizen. The Testator tried to set up a business called Neo Zink Private Limited to be managed by Dheeraj with the support of Subhash. Such venture, however, was a miserable failure and the company has become defunct.
44. Chandni did not produce any evidence to show that she was the legally wedded wife of the Testator and/or she took part in the 14 business affairs of the Testator. Subhash is intrinsically connected with the business and day-to-day management which is evident from his personal guarantees worth over Rs. 214 crore to various banks and/or financial institutions against which the companies obtained financial assistance. In the event the companies become defunct or loss making, Subhash Maniyar becomes strictly liable to repay the loans whereas there is no liability of Chandni or Dheeraj. The companies have around 250 employees, who are the responsibility of Subhash and not Chandni or Dheeraj, it is argued.
45. With regard to payment of commission, respondent no.1 submits that Chandni has alleged that withdrawal of funds against Subhash in the form of commissions from the companies, thereby depleting the estate. However, Chandni deliberately suppressed the fact that the managerial remuneration received by Subhash in the form of commission is in compliance with the provisions of Section 197 of the Companies Act, 2013, which stipulates that managerial remuneration including commission can be taken only from the profits of the company to the extent of 11%. Hence, the question of depleting the share value does not arise at all.
46. Grant of commission, it is submitted, is not a subsequent fact. Even prior to demise of the Testator, it was not the prevalent practice of the companies that commissions were given to Subhash and the Testator. A chart in that regard given in GA/5/2022, it is submitted, is 15 misleading and suppresses that the company used to pay commission to the Testator as well.
47. Subhash was always paid salary and commission from the companies and more commission than the Testator even during the lifetime of the Testator, as Subhash was contributing more to the business than the Testator.
48. That apart, supplementary affidavits were filed to enlarge the scope of GA/1/2021, thereby raising new grounds for appointment of APL, which cannot be permitted as per Bharat Vari Udyog Nigam Limited Vs. Jesop and Company Ltd. [(2003) 4 Comp LJ 333].
49. The Will dated August 3, 2020, it is argued, has several factual inconsistencies and contradictions. For example, the Will records that the Testator was only one of the Directors as well as a shareholder in the companies enumerated in the Will. The Will mentions thirteen companies, although the Testator did not have any share in three of the listed companies. Moreover, the Will declares that both Subhash (elder son) and Dheeraj (younger son) are entitled to 45% of profits each to be receivable or earned from the aforesaid companies. Therefore, the Will does not bequeath any property in praesenti to either of the sons. Thus, if the companies would earn any profits then the two sons, at any subsequent point of time, would be entitled to get dividends, although the Will does not give any personal bequest to either of the sons.
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50. The Will talks about the Testator's unknown properties which are not specified and addresses assets in general terms. The reference to the Maniyar Charitable Trust is irrelevant as it is not designated as a party in the litigation and cannot be so designated because a trust, per se, is not entitled to sue or be sued in its own name. Properties of the trust cannot be bequeathed by the Testator as well.
51. The provisions of the Will are intrinsically contradictory, it is reiterated. The Testator purported to bequeath to his two sons Subhash and Dheeraj the respective profits to be receivable from the companies but purported to bequeath 50% to his immovable properties to each of them, which are not specified.
52. The other alleged discrepancies pertain to Chandni and Dheeraj having not been made beneficiaries in several respects.
53. It is further contended that the prayer for appointment of APL is misconceived since no case of necessity has been made out. Change in circumstances before and after the death of the deceased, any practice or act detrimental to the estate of the deceased, any activity done by Subhash which proves that he is obtaining personal benefits from the estate, any deprivation to Chandni and Dheeraj which was not there prior to the death of the deceased and the effect of appointment of APL over the manufacturing and day-to-day activities of the business are essential facts which were required to be pleaded and proved for grant of APL but have not been so done.
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54. It is evident that the estate of the deceased and the companies were managed by Subhash during the lifetime of the Testator, which arrangement is still going on. Subhash alone has guaranteed the loans to the companies and will be liable to financial institutions if the affairs of the companies are mismanaged and they run into losses. However, no detriment to the estate has been alleged except that commissions are being withdrawn by Subhash, which were also a practice during the lifetime of the Testator.
55. Hence, it is argued that nothing to justify appointment of APL has been made out by the petitioner.
56. It is also contended that the business of the companies are carried on in refineries and factories which requires skill, experience and business acumen which Chandni and Dheeraj admittedly do not have. Subhash has been a part of the business admittedly for the last 21 years and as accumulated the necessary skill, experience and business acumen by working with the deceased and ensuring successful growth of the companies. It is not expected that the APL will be able to manage such highly specialized and competitive industry or take business decisions to ensure that the same runs profitably.
57. Apart from the above, it is contended by the respondent no.1 that a sum of Rs.7 lakh has been directed to be paid to Chandni Maniyar for her general upkeep out of the funds of the estate, vide order dated October 8, 2021 of the probate court, read with the appellate court's 18 order dated December 1, 2021. The said order is beyond the scope of the instant probate application since Chandni is not a beneficiary, nor is there any provision in the Will sought to be propounded for making such payment.
58. Even if an APL is appointed, the question of distribution of assets of the estate does not arise as an APL can only administer and not distribute the estate. In this regard, reliance is placed on ILR 1947 (2) Cal 195 (Kali Kumar Chatterji v. Rash Vehari Banerji). Hence, the said order is liable to be vacated. Moreover, it is argued that the appellate court's order was ad interim and the trial court was given liberty to modify and/or vacate the same.
59. Vide order dated September 20, 2022, Subhash was directed not to receive commissions decided by the companies-in-question in his favour. It is trite law that companies and/or management of the same have not been bequeathed by the Will. The companies did not belong to the Testator; at best he owned the shares lying in his name, which were admittedly not in the majority.
60. It is contended that the decision of the companies, which are separate juristic entities, cannot be interfered with by the probate court since it is beyond the scope of the Will and the probate application.
61. The allegation that the commissions amount to siphoning off assets of the estate is misconceived. As per Section 196 of the 2013 Act, the Managing Director is permitted to receive remuneration as per the decision of the Board of the companies, but not exceeding 11% of the 19 profits. It is nobody's case that the amounts given to Subhash are in excess of such limit. The decisions of the companies taken independently are not subject to scrutiny of the probate court, nor is the commission a part of the estate of the deceased.
62. Hence, the order dated September 20, 2022 is also liable to be vacated.
63. The order dated February 14, 2022 is also liable to be vacated, it is argued, since it was passed by the appellate court directing the companies to be restrained from carrying on business in more or less the same manner that it had in the last 5 years. It is submitted that there was neither any basis nor pleadings to support such order. Commissions are a part of the expenses of the companies and there is no evidence that the commissions exceed the expenses of the companies.
64. In the order itself, it is made clear that the same is liable to be modified and/or varied by the learned Single Judge. As such, there will be no impropriety if the same is vacated. In fact, the said order expired by efflux of time on September 20, 2022.
65. With regard to the property of the companies, it is argued that a company has a separate juristic entity and owner of its own properties, including monies lying in its account. The same are not the personal assets of the Testator.
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66. The definition of a Will under Section 2(h) of the Succession Act, provides that a Testator can bequeathed only "his property" owned at the time of his death.
67. Learned senior counsel for the respondent no.1 places reliance on Bacha F. Guzdar, Bombay Vs. Commissioner of Income Tax, Bombay [AIR 1955 SC 74], where the Supreme Court categorically held that assets of the companies in which the appellant owned shares were not her property and dividends were therefore liable to taxed.
68. Counsel also relies on Western Coalfields Limited Vs. Special Area Development Authority, Korba and another [(1982) 1 SCC 125] which held that even when the Government owned 100% of shares in a company, the property of such company could not be said to be property of the Government and therefore, were liable to be taxed.
69. With regard to a trust, once a settler has created the same, the trustees become owners and the same cannot be said to be the property of the original settlor. Hence, the purported directions given to the trustees in the Will can have no effect in law.
70. Chandni had filed a suit in May, 2022 being CS No.111 of 2022 in respect of the trust and is seeking to have the same disputes decided in the probate petition, it is contended.
71. The transfers, regarding which allegations are made, took place during the lifetime of the Testator. By purporting to take advantage of revised annual returns filed by the companies in relation to the period when 21 the Testator was alive, although filed a few days after his death, the petitioner seeks to label such transactions as illegal. At best they concern personal rights of Chandni and Dheeraj and the proper place to ventilate their grievance would be before the domestic forum, that is, with the company's management or before the NCLT. Section 430 of the 2013 Act bars the jurisdiction of a civil court to adjudicate such claims, it is argued.
72. The suggestions, it is submitted, as regards corporate veil made by the petitioner are completely unfounded. No evidence has been given as to how the Testator was in total control of the companies to justify the lifting of corporate veil. There were separate shareholders and the companies were managed by professionals. Subhash himself was working in these companies, and was a shareholder thereof from 2009 and has been an integral part of the management at all material times. Subhash has also given personal guarantees for the loans taken by the companies to the extent of Rs. 214 crore and as such cannot be said to have nothing to do with the companies.
73. On the other hand, admittedly Dheeraj never took part in the management and had moved to Australia during the lifetime of his father, the Testator. Hence, it is argued on behalf of the respondent no.1 that GA/1/2021 and GA/5/2022 ought to be dismissed.
74. In order to decide GA/1/2021 and GA/5/2022, it is to be noted that the Will in respect of which the present probate proceeding has been 22 initiated was executed by Om Prakash Maniyar (since deceased) on August 3, 2020.
75. The prayers sought primarily in both the applications pertain to thirteen companies, which were mentioned in the Will.
76. The mention of the said companies first appears in the second page of the Will to the effect that the Testator was one of the directors as well as shareholder of the said thirteen companies.
77. However, it has been argued by counsel that inasmuch as the last three companies mentioned therein are concerned, the Testator was not a shareholder. Hence, since directorship cannot devolve and/or be the subject-matter of a Will, the assets of the estate of the deceased could only pertain to the shareholdings of the Testator in the remaining ten companies and the incidents thereof. The Testator bequeathed to his elder son Subhash 45% of the profits to be receivable and/or earnings from the said companies. A similar provision was made in respect of the younger son Dheeraj. The remaining 10% of the profits and/or earnings were to go to the Maniyar Charitable Trust.
78. However, in a latter part of the Will, the Testator bequeaths 50% of his immovable properties "including the shares, debenture and movable assets whatsoever and wheresoever" to Subhash, the elder son and the remaining 50% of the same to the younger son, Dheeraj. 23
79. In the event the sons predeceased the Testator, their legal heirs were also entitled to get the same.
80. Chandni, the wife (second) of the Testator was the sole executrix of the Will.
81. Read in conjunction, the above provisions clearly indicate that the shares were given in 50% ratio to each of the two sons of the Testator. It needs no special mention that shares include their incidents as well since, as mere papers, the shares are not worth anything.
82. However, the previous portion of the Will, where it is mentioned that profits were to be shared between the two sons and the Trust named therein, along with the earnings from the companies, it is doubtful as to whether the Testator had a right to do so, simply because his only rights in respect of the companies was through his shareholding in those, which, admittedly, was more than Rs.32 crore.
83. As such, the asset to be looked into is the corpus of such shares and the rights incidental thereto, for the purpose of ascertaining the devolution of 50% to each of the sons.
84. In GA/1/20221, the prayers made pertain to assets and properties of the Testator "including each of the 13 companies owned and controlled by the deceased". However, it is well-settled that an individual shareholder, whatever be the worth of his shares, cannot be the owner of the assets of a company, the latter being an independent 24 juristic entity. Hence, the expression "owned" is obviously a misnomer.
85. Inasmuch as the control of the deceased is concerned, it has been argued by the petitioner that, by virtue of cross-holdings of the several companies between each other, the Testator had a controlling interest in all the companies.
86. First, it would be premature at this juncture to adjudicate the right, title and interest of the Testator, since the same can only be the subject-matter of a regular civil suit before a competent court. Secondly, the 'controlling interest' pleaded on behalf of the petitioners is not found from the cross-holding structures of the company as discussed in the chart annexed to CAN 1 of 2021, in particular, pages 56 to 58 thereof.
87. The Testator, by virtue of his individual shareholding, was not the majority shareholder in any of the companies barring Maniyar Commercial Services Private Ltd.
88. In the other companies, the petitioner has sought to club the combined shareholdings of the Testator and the petitioner/executrix Chandni to plead that they had a majority shareholding. However, Chandni is not even a legatee as per the 2020 Will and, as such, cannot keep herself in the same bracket as the Testator to ascertain the percentage of shares of the Testator. Inasmuch as the exclusive shareholding of the Testator in the ten companies is concerned, it cannot be argued that the 'cross-holdings' entitled him to have 25 controlling interest in any sense of the term in respect of the said companies.
89. Insofar as directorship is concerned, the same per se does not create ownership right at all.
90. The other limb of the prayer of the petitioner in GA/1/2021 is that Chandni is required to be paid a monthly quantum of maintenance to the tune of Rs.10 lakh.
91. In this regard, the petitioner has placed reliance on the initial ad interim order passed by the co-ordinate bench which took up the application, which was subsequently modified by the appellate court by reducing the monthly maintenance granted to Chandni to Rs.7 lakh.
92. Learned counsel for the petitioner contends that in view of Chandni having a right to maintenance as per the other Will of 2018, in which the contesting respondent no.1-Subhash is the executor, Chandni has the right to get such monthly maintenance from the estate of the deceased.
93. However, such contention is neither here nor there. This is because of two reasons. First, the petitioner Chandni is the executrix and propounder of the 2020 Will and cannot blow hot and cold at the same time in placing reliance on a different Will executed previously.
94. Secondly, the only endeavour of Chandni, the petitioner, as the executrix of the 2020 Will, before the probate court could be to have 26 the same propounded. In the event the 2020 Will gets a probate from the court, the prior Will of 2018 is rendered academic and does not have any effect in the eye of law at all. Hence, it is beyond the charter of Chandni, as the executrix of the 2020 Will, to place reliance on a stray clause in a different Will executed previously by the same Testator.
95. Insofar as Chandni's right of maintenance as a widow of the Testator Om Prakash Maniyar (since deceased) in respect of the estate of the deceased Testator is concerned, the same is an independent right which does not arise from the Will-in-question at all. Such right of Chandni, for whatever it is worth, may at best form the subject-matter of an independent proceeding for maintenance by Chandni under any or all the statutes provided for such purpose, but the probate court is not the proper forum for claiming or deciding the issue of such maintenance payable by the estate to Chandni. Rather, such claim, if set up by Chandni from the estate, would be against the estate and would have the effect of devaluing the estate, which is contradictory, if not mutually exclusive, with Chandni's role as an executrix and propounder of the 2020 Will.
96. Hence, the interim reliefs sought in GA/1/2021, either regarding the functioning of the companies and/or the devaluation of their assets, as well as the maintenance claim of Chandni, cannot be accepted at all.
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97. GA/5/2022, on the other hand, seeks an injunction restraining the companies from paying commission of Subhash, the respondent no.1 in the probate proceeding.
98. It is argued by the petitioner that Subhash has already been paid Rs.3 crore, Rs.7 crore and Rs. 2 crore as commission in respect of three of the companies being the Guwahati Carbon Limited, Neo Carbons Pvt. Ltd. and Paradip Calciner Ltd.
99. Two-fold arguments have advanced in respect of such payments. One is that such payments were in contravention of the order of the Division Bench, in which the ad interim order initially passed by the learned single judge has merged.
100. The second limb of argument is that such payment of commissions will deplete the assets of the company and its funds, thereby adversely affecting the interest of the estate of the Testator.
101. Examining the first question first, it is clearly seen from the order of the Division Bench Dated April 26, 2022, passed in APO no.23 of 2022 and APO No.24 of 2022, that the parties were granted leave to file affidavits before the trial court. The interim order granted by the appellate court was to continue till May 18, 2022 "subject to vacation, modification or extension that may be directed by the learned Single Judge on appreciation of the case of the parties". It was also observed that all points were kept open before the learned trial court. 28
102. In view of such specific observations, it is seen that the Division Bench itself subjected its order to modification and/or even vacation by the Single Judge. Moreover, all points were kept open for being urged before the Trial Court, that is, the present Court.
103. Hence, the violation of the said orders, by itself, cannot vitiate the payment of commission to the respondent no.1 Subhash.
104. As regards the second argument, detailed submissions have been made by learned counsel for the parties on the scope and applicability of the concept of 'commission' vis-à-vis the Companies Act, 2013.
105. Although it has been argued by the petitioner that the said payment of commission to Subhash would be without any fetter, if permitted, and not even subject to any restrictions imposed by the Companies Act, it is clearly seen from the annexures to the affidavits of the pleadings of parties that in case of each of the said payments, a resolution was taken by the companies concerned, specifically to stipulate that the payment was being made under Section 197 of the Companies Act, 2013.
106. Section 197(1), along with its provisos, acquire much relevance in the context. The same reads as follows:
"197. Overall maximum managerial remuneration and managerial remuneration in case of absence or inadequacy of profits.--(1) The total managerial remuneration payable by a public company, to its directors, including managing director and whole-time director, and its manager in respect of any financial year shall not exceed eleven per cent of the net profits of that company for that financial year computed in the manner laid down in 29 Section 198 except that the remuneration of the directors shall not be deducted from the gross profits:
Provided that the company in general meeting may, authorise the payment of remuneration exceeding eleven per cent of the net profits of the company, subject to the provisions of Schedule V:
Provided further that, except with the approval of the company in general meeting by a special resolution,--
(i) the remuneration payable to any one managing director; or whole-time director or manager shall not exceed five per cent of the net profits of the company and if there is more than one such director remuneration shall not exceed ten per cent of the net profits to all such directors and manager taken together;
(ii) the remuneration payable to directors who are neither managing directors nor whole-time directors shall not exceed,--
(A) one per cent of the net profits of the company, if there is a managing or whole-time director or manager;
(B) three per cent of the net profits in any other case.
Provided also that, where the company has defaulted in payment of dues to any bank or public financial institution or non-convertible debenture holders or any other secured creditor, the prior approval of the bank or public financial institution concerned or the non-convertible debenture holders or other secured creditor, as the case may, shall be obtained by the company before obtaining the approval in the general meeting."
107. It is clearly seen that sub-section (1) restricts the total managerial remuneration payable by a public company to its directors, which includes managing director and whole-time director and its manager, to 11% of the net profits of the company in respect of any financial year.
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108. It has been clarified further that the procedure laid down in Section 198 shall be applied for computation, except that the remuneration of the directors shall not be deducted from the gross profits.
109. The last proviso of sub-section (1) also stipulates that where the company has defaulted in payment of dues to any bank or public financial institution etc., the prior approval of the bank or public financial institution etc, as the case may be, shall have to be obtained by the company before obtaining the approval for such payment in the general meeting.
110. In such view of the matter, it cannot be said that the payments made to any of the directors, including Subhash, by the respective companies, are unfettered and unbridled.
111. As rightly argued by learned senior counsel for respondent no.1, sub-
section (14) of the 197 of the 2013 Act refers to the term "commission" while speaking about the receipts by the directors, although in a passing manner. Hence, it is rightly submitted that the expression 'commission' is not alien to the statute itself, apart from being a common practice in commercial activities.
112. Inasmuch as the payment of the petitioner for the previous years is concerned, since the restriction of Section 197 of the 2013 Act is, in any event, applicable, the court, using its own wisdom, need not put in further restrictions to the same. Such unwarranted intrusion by the court may tantamount to undue interference with the independent 31 functioning of the companies, which are juristic persons in their own right.
113. Although the petitioner has strongly contended that recent payments of commission to Subhash by the companies were exorbitant and disproportionately large compared to previous payments made to him, it is seen from the chart provided by the respondent no.1 in its affidavit-in-opposition that the difference between such payments of previous year and the present year is not so demonstrably high which would give rise to the conclusion that respondent no.1 has been "siphoning off" the funds of the companies.
114. In any event, the link between the funds of the companies and its assets on the one hand and the profits earned by the company and the value of its shares on the other is remote. It is well-settled, as held in Bacha F. Guzdar, Bombay (supra), that the shareholder has no right, title and interest in the assets of a company.
115. The argument that the payment of remuneration to directors would lead to depletion of the income of the shareholder is convoluted and far-fetched, since the nexus between the two is remote.
116. Hence, the said argument cannot be a basis of restraining the companies from paying any remuneration within the contemplation of the Companies Act, 2013 to any of its directors, including Subhash, who is primarily in charge of the business of the companies. 32
117. Subhash, as evident from the pleadings and records, has been conducting the business along with the Testator O. P. Maniyar (since deceased) at all material times and for several years (if not decades) and has been enjoying payment of commissions on previous occasions as well. Moreover, he has given personal guarantees worth much for the benefit of the companies. Thus, the payment of commission by way of convening extraordinary General Meeting to Subhash cannot be said to be entirely unjustified for the court to interfere in such internal and regular affairs of the companies.
118. Although the petitioner is right in arguing that the probate court, in certain instances, can grant injunctions against third parties as well in order to protect the estate of the deceased, this is not a fit case for exercise of such discretion by the probate court and, as such, the prayer made for restraint of payment of commission by the companies to Subhash cannot be allowed.
119. No case of appointment of Administrator Pendente Lite has also been made out, since the petitioner has failed to substantiate in any manner that Subhash Maniyar is misappropriating the estate of the Testator. Rather, as revealed by the above discussions, Subhash is at the helm of the companies' business and has been in its charge through thick and thin, even during the life-time of Om Prakash Maniyar, the deceased Testator. Hence, there is no reason for replacing Subhash by a court-appointed Administrator Pendente Lite. 33
120. Learned counsel for the petitioner, in support of the petitioner's prayer for appointment of Administrator Pendente Lite (APL) and injunction, cites a co-ordinate bench judgment of this Court reported at (2008) 3 CHN 384 (In the Goods of : Kamal Kumar Mitra). In the said judgment, the learned Single Judge held that the concept of a company and the jurisprudence that follows it was alien in the Indian context. The sanctity of the structure attached to a corporate entity in English Law may not always be applicable in the Indian context. As much as companies have been set up in India to carry any business venture, the corporate façade has been put up time and again to shield the humans behind it. Corporate jurisprudence is no longer in its initial stage for it to be regarded as a bride for the veil to be removed. Courts are more prone than ever before to disregard the veil and go straight at the controlling mind without stopping to question the propriety or necessity of piercing the veil.
121. However, as discussed above, in the present case, no such justification has been made out by the petitioner to pierce the corporate veil, since no controlling mind of the Testator in the companies is prima facie evident from the pleadings and materials on record. As such, the said ratio does not help the petitioner much in the present case.
122. Learned counsel then cites Atula Bala Dasi and others Vs. Nirupama Devi and another, reported at AIR 1951 CAL 561, wherein a Division Bench of this Court held that powers of the probate court are wide enough to issue temporary orders restraining other persons from 34 interfering with the properties which are the subject-matter of testamentary disposition. It was also held that powers of the probate court for the protection of the property, which is the subject-matter of a testamentary disposition, are now regulated by specific provisions contained in the Indian Succession Act. Section 247 of that Act authorises the probate court to appoint an Administrator Pendente Lite till an executor or an administrator is appointed in the usual course. Such an Administrator Pendente Lite, it was observed, has all the rights and powers of a general administrator other than the right of the distribution of the estate.
123. However, the said judgment is not applicable in terms of ratio to the present case. Although the powers of an Administrator Pendente Lite were delineated therein, it was also observed that a probate court would appoint an Administrator Pendente Lite in all cases where the necessity of the appointment is made out. In the present case, no such necessity having been made out, the powers of an Administrator Pendente Lite are rendered academic.
124. Learned counsel for the petitioner, on the issue of controlling interest, cites B.W. Noble, Limited Vs. The Commissioners of Inland Revenue, a King's Bench Division Judgment.
125. Rowlatt, J., held therein, as long back as in November, 1926, that "controlling interest" is a phrase that has a certain well-known meaning; it means the man whose shareholding in the company is such that he is the shareholder who is more powerful than all the other shareholders put together in General Meeting. In the present 35 case, however, no such case has been made out with regard to the Testator vis-à-vis the companies.
126. Learned senior counsel for the respondent no.1 also cites Bacha F. Guzdar, Bombay Vs. Commissioner of Income Tax, Bombay [AIR 1955 SC 74] in support of the proposition that true position of a shareholding is that on buying shares an investor becomes entitled to participate in the profits of the company in which he holds the shares if and when the company declares, subject to the Articles of Association, that the profits or any portion thereof should be distributed by way of dividends among the shareholders. He has a further right to participate in the assets of the company which would be left over after winding up but not in the assets as a whole. It was further observed that it was not possible for the special bench (5- Judge) to accept the contention that the shareholder acquires any interest in the assets of the company. Such proposition is squarely applicable in the present case for the prima facie determination of the extent of the estate of the deceased Testator. At least, in the present case, it is observed that since the Testator did not have any interest in the assets of the company, the allegation of depletion of the companies' funds by Subhash cannot be justified on the ground that the Testator had interest in the assets of the company.
127. Learned senior counsel next relies upon a single bench judgment in Kali Kumar Chatterjee Vs. Rash Vehari Banerjee, reported in (1947) ILR (CAL). In the said judgment, it was held, inter alia¸ that the court cannot, without the consent of all parties interested in the estate, 36 make any order for payment of maintenance or even 'Sopindokoron Shradhho' expenses, such expenses would amount to distribution pro tanto of the estate which is forbidden by Section 247 of the Succession Act. By applying the same ratio, the maintenance claim of Chandni in the present case cannot but be turned down.
128. Learned senior counsel for the respondent no.1also places reliance on the West Bengal Housing Board Vs. Promila Sanfui and others, reported at (2016) 1 SCC 743. In the said judgment, it was observed that temporary injunction against a non-party cannot be passed.
129. However, the context of the same was a partition suit, which would have culminated in a judgment in personam, unlike the present case, where the probate court's judgment would operate in rem. Moreover, it is now well-settled that a probate court, in order to protect the estate of the deceased, which is the subject matter of the Will, has the power to grant injunctions even against third parties. Hence, the said proposition is not applicable to the present probate proceeding.
130. The respondent no.1 also cites Ramchandra Ganpatrao Hande Vs. Vithalrao Hande, reported at AIR 2011 Bom 136, where a Division Bench of the Bombay High Court held that the probate court is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. It cannot grant interim relief in respect of the property which forms part of the estate of the deceased prior to the grant of probate. It was observed that the probate court is not concerned with questions relating to the property itself.
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131. The court observed that the jurisdiction of the probate court is limited insofar as the court determines only upon the genuineness and due execution of the Will, disputes of title are alien to probate proceedings. While the said proposition is otherwise correct in law, the said judgment was not rendered in the context of an application for appointment of APL under Section 247 of the Succession Act. In the present case, as opposed to the Bombay Judgment, the question is as to whether the probate court, while considering an application under Section 247 of the Succession Act, can consider the issue of appointment of an APL to protect the interest of the estate of the deceased.
132. For such purpose, it has been held time and again that injunctions can even be granted against third parties, although there would not be any conclusive determination of right, title and interest by the probate court.
133. In Pasupati Nath Das (dead) Vs. Chanchal Kumar Das (dead) rep. by legal representatives and others, reported at (2018) 18 SCC 547, also cited by the respondent no.1, the same principle was reiterated to the extent that the probate court does not decide the question of title. In the present case, however, the question of title has not fallen for determination before the probate court. However, for the purpose of considering appointment of APL and protection of the property of the estate, the probate court can very well enter prima facie into the question of the extent of such estate, even without deciding conclusively the title to the property.
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134. Moreover, the entitlement of the Testator to the shares is an admitted position. As such, the present proceeding does not require an adjudication of title as such.
135. Learned senior counsel also cites C. Beepathumma and others Vs. Velasari Shankaranarayana Kadamboliathaya and others, reported at AIR 1965 SC 241, where the doctrine of election was iterated and it was held that it is well-settled, as expressed in the classic words of Maitland, that he who accepts a benefit under a deed or Will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. The said principle is, of course, applicable in the present case inasmuch as the petitioner, while propounding the 2020 Will of the Testator, has to take it as a whole. Also, the petitioner ought not to be permitted to rely on some stray provisions of the 2018 Will in isolation of others; in such event, the petitioner has to accept the said Will in its entirety.
136. In the Bombay High Court judgment of Pandurang Shamrao Laud and others Vs. Dwarkadas Kalliandas and others, reported at AIR 1933 Bom 342, the learned Single Judge observed that when executors propounding a Will take a large and appreciable benefit thereunder, the court treats the Will with suspicion of more or less weight according to the facts of each case, and the onus lies on such an executor to prove to the satisfaction of the court that the Testator understood what he did and that it was his Will, and no probate can issue unless the conscience of the Court is satisfied that the person 39 propounding the will has led sufficient evidence which, on a close and careful examination, entirely removes that suspicion. It was also held that it is a general principle, though not an absolute rule of law, not to put a litigating party in position by granting administration pending the suit unless by consent of all parties. Such consent is absent in the present case. Moreover, no case of appointment of an APL has been made out by the petitioner.
137. Learned senior counsel for the respondent no.1 next relies on Rajendra Singh Lodha Vs. Ajay Kumar Newar and others, reported at (2007) ILR 2 Cal 377. The said case elaborately dealt with the powers of a probate court. The Division Bench held therein that the probate court, without giving notice to shareholders in the probate proceedings, has no power to appoint APL over the concerned block of shares, since the court had not been able to find out any document which would suggest or could act in favour of such appointment on the controlling block of shares. In the present case as well, the propounder having failed to prove prima facie that any controlling block of shares was commanded by the Testator, the appointment of APL is unnecessary.
138. The respondent no.1 has cited several judgments rendered in the Birla Vs. Lodha dispute on similar propositions, which need not be dealt with elaborately. The crux of the ratio of the said judgments has already been discussed above and dealt with. As such, discussion on the same would merely lead to unnecessary repetition. 40
139. In Krishna Kumar Birla Vs. Rajendra Singh Lodha and others, reported at (2008) 4 SCC 300, it may be mentioned, it was held that a reversioner or agnate or family member can maintain a caveat in a probate proceeding only when there is a possibility of his inheritance of the estate in case probate is not granted.
140. In the present case, since the applicant in GA/2/2021 has not been able to prove any rights to the estate of the deceased by way of succession and/or inheritance, the said principle is squarely applicable.
141. Accordingly, GA/1/2021 and GA/5/2022 are hereby dismissed on contest without any order as to costs.
In Re: GA/2/2021
142. By GA/2/2021, Narbada Devi, the first wife of the deceased Testator, has sought to intervene in the probate proceedings, in the alternate to be added as a party to the proceedings being PLA No.327 of 2021 [In the goods of: Om Prakash Maniyar (Deced)].
143. The petitioner in the probate proceeding has, by way of a supplementary affidavit, brought on record photocopies of the certified copy of an ex parte order and decree passed by the Sixth Court of Additional District Judge at Alipore in Matrimonial Suit No.21 of 1978 (previously Matrimonial Suit No.778 of 1997). Narbada Devi, the then wife of the Testator Om Prakash Maniyar, was the respondent therein. 41
144. Learned counsel for the petitioner, upon the query of Court, has also produced the original of the said certified copies for perusal of the court which were found to be prima facie in order, although not proved in evidence as yet in due process of law, since deposition has not yet commenced in connection with the main probate proceeding and it would be premature to take such evidence at this juncture.
145. However, for the limited purpose of adjudicating GA/2/2021, I am satisfied that the certified copy produced raises sufficient presumption of correctness of the adjudication that the Testator had obtained, during his lifetime, an ex parte decree of divorce against the applicant in GA/2/2021, that is, Narbada Devi.
146. Section 41 of the Indian Evidence Act, 1872 provides, inter alia, that a final judgment, order or decree of a competent court, in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character not as against any specified person but absolutely, is relevant when the existence of any such legal character is relevant.
147. Such judgment, order or decree is, according to the said Section, conclusive proof of any legal character which it confers on or takes away from a person. It is well-settled that a decree of divorce, by operation of Section 41 of the Evidence Act, operates as a judgment in rem and is conclusive as against the whole world, let along the parties thereto.
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148. The applicant Narbada Devi has harped on the said decree being ex parte in character. However, neither Section 41 of the Evidence Act nor Section 2 of the Code of Civil Procedure, 1908, which defines a 'decree', distinguishes between an ex parte and a contested decree, inasmuch as the binding effect of a decree is concerned. Hence, an ex parte decree is as binding on the parties (probably more so, in case of judgment in rem against the whole world) as a contested decree.
149. The presumption of correctness attached to the certified copy of a decree has not been rebutted in the present case, more so since the decree is also otherwise in form.
150. The other argument advanced by the applicant Narbada Devi is that no summons of the matrimonial suit was served on Narbada, the defendant. Learned senior counsel appearing for the applicant stresses that, elsewhere, it is found that Narbada used to reside with the Testator, whereas her native place address has been given in the decree.
151. However, per se the said fact does not render the decree void.
152. Although it has been argued on behalf of Narbada that proper service of summons on the defendant was not recorded in the ex parte judgment or decree, there is no requirement under any of the provisions of the Code of Civil Procedure and/or the matrimonial laws to necessitate such a recording in the ex parte final decree itself. 43
153. In fact, it is the established practice in District Courts of West Bengal that the summons is served prior to a suit being fixed for final hearing. As such, the court's satisfaction as regards service is almost always recorded not in the final decree but in some previous order, passed prior to the suit reaching the peremptory board, subject to which only the suit is taken up for final hearing.
154. In the present case, nothing has been produced by the applicant Narbada in GA/2/2021 to dispel the presumption attached to judicial acts as per Section 114 of the Evidence Act.
155. Even apart from the above considerations, the probate court cannot sit in judgment over a divorce decree passed long back by a competent civil court, which has attained finality upon efflux of the appeal period.
156. Although the applicant Narbada submits that she has filed an application under Order IX Rule 13 of the Code of Civil Procedure for recall of the ex parte decree, the mere filing of the same does not take away the validity of the ex parte matrimonial decree, more so, much after the demise of the plaintiff therein.
157. Inasmuch as the production of the certified copy of the divorce decree for the first time before this Court is concerned, there was no earlier occasion for the petitioner Chandni to do so, since it is only the application filed by Narbada for intervention which required the petitioner Chandni to disclose such document in defence. 44
158. Learned counsel for the applicant Narbada has also attempted to hint that the marriage of Narbada is admitted by Chandni by way of pleading that the same was subsequently severed by divorce. However, it is another well-settled proposition of law that an admission has to be taken as a whole and not any part of it in isolation of the others. It cannot, by any stretch of imagination, be said that Chandni admits the marriage between her husband and Narbada, overlooking the divorce decree and the pleading in support thereof by Chandni.
159. On behalf of Narbada, an argument has been made that even the slightest interest entitles a person to have caveatable interest in the estate of the deceased. In support of such argument, the decision in Krishna Kumar Birla v. Rajendra Singh Lodha and others, reported at (2008) 4 SCC 300, is cited. It was held there that a reversioner or agnate or family member can maintain a caveat in a probate proceeding only when there is a possibility of his inheritance of the estate in case probate is not granted.
160. Although the ratio laid down in the said judgment is by now well- settled, the present case cannot be over-simplified by laying stress on the term "slightest", in isolation from the term "interest".
161. The proximity or amount of interest of a person may be qualified by the adjective 'slightest', but the intervener claiming caveatable interest has to have an 'interest' in the property in the first place. 45
162. In the present case, the only claim staked by Narbada is on the basis of her alleged matrimonial relationship with the Testator. Either such relationship prima facie exists, in which case Narbada has an interest, or the relationship does not exist, upon which Narbada has no interest whatsoever. There cannot be any mid-way point between such "yes" and "no" to accommodate the term "slightest" to qualify the "interest".
163. In view of the ex parte divorce decree, which has the full force of law behind it, having been obtained by the Testator from a competent civil court prior to his demise, Narbada does not have any interest in the present case at all. The divorce decree severs the only link between Narbada and the Testator which could have entitled Narbada to claim even the slightest interest in the property. Since it is prima facie clear from the certified copy of the divorce decree that at the relevant juncture, that is, at the time of demise of the Testator and/or execution of the Will, Narbada was no longer a spouse of the Testator, she does not have even the slightest interest in the property.
164. A word of caution must be inserted here. The present enquiry is entirely for the purpose of ascertaining whether Narbada has a caveatable interest for the purpose of intervention and/or addition as a party to the probate proceeding. The observations made herein cannot, in any manner, pre-decide the fate of the pending proceeding, if any, under Order IX Rule 13 of the Code of Civil Procedure at the instance of Narbada. However, as of now, I am of the opinion that the 46 attending circumstances clearly negate Narbada having even the slightest interest in the estate of the deceased to entitle her to be impleaded in the probate proceeding.
165. Hence, GA/2/2021 is also dismissed on contest without any order as to costs.
In Re: GA/4/2022
166. GA/4/2022 has been filed by Chandni Maniyar, the propounder of the 2020 Will, praying for the examination of Suraj Toshniwal, one of the attesting witnesses of the Will, de bene esse.
167. In legal parlance, when evidence is taken de bene esse, the same is provisionally taken, for the time being and subject to objection being taken later, for whatever it is worth.
168. The provision nearest to the concept of de bene esse in the Code of Civil Procedure is Order XVIII Rule 16 of the Code. The same deals with the power of court to examine a witness immediately. Sub-rule (1) thereof provides that where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown to the satisfaction of the court why his evidence should be taken immediately, the court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in the manner as provided in the previous provisions of the Code.
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169. In the present case, no case of the witness of the Suraj Toshniwal leaving the jurisdiction of the court has been made out or even pleaded.
170. The only remaining question is whether "other sufficient cause" is shown to the satisfaction of this Court why his evidence should be taken immediately.
171. The premise of the petitioner's argument in that regard is that the other attesting witness has expired and Suraj is the only attesting witness who can be called upon to give evidence to prove the Will.
172. An objection has been taken by the respondent no.1 to the maintainability of the probate proceeding in the absence of any affidavit in support of the Will having been filed by any of the attesting witnesses, including Suraj. It is contended by respondent no.1 that non-filing of such affidavit vitiates the probate application and all connected application.
173. Such objection has been taken as one of the premises by the petitioner Chandni for claiming de bene esse evidence of Suraj. It is submitted that since such an objection has been taken, it has become incumbent upon the propounder/petitioner to call the only alive attesting witness as witness in order to discharge her onus.
174. It is further argued by the petitioner that Suraj Toshniwal has refused to affirm an affidavit in support of the probate proceeding and, as 48 such, the petitioner legitimately apprehends that he will abstain from giving evidence as well.
175. Learned counsel for the petitioner elaborately places the relevant provisions of the Code of Civil Procedure to argue that unless the petitioner is called upon to adduce evidence, even in the event of his refusal, the subsequent steps as stipulated in the Code of Civil Procedure to compel his attendance, for the plaintiff to show her bona fides and discharge her burden, cannot be initiated.
176. Such endeavour on the part of the petitioner is apparently sought to be used as a defence against the objection taken by the respondent no.1 to the maintainability of the probate proceeding.
177. However, there is nothing on record to indicate that the court would be additionally aided in any manner in adjudication of the probate proceeding if the evidence of Suraj Toshniwal is taken immediately on a provisional basis.
178. Suraj Toshniwal does not qualify, either on ground of health or age or in apprehension of his leaving the jurisdiction of the court, for being called early and expeditiously to adduce evidence.
179. Mere espousal of the cause of the propounder to discharge her burden in order to compensate for non-filing of affidavit by any of the attesting witnesses is not sufficient ground to issue an order of examination de bene esse.
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180. I do not find any "sufficient cause" within the ambit of Rule XVI of Order 18 which could justify the satisfaction of the court as to why his evidence should be taken immediately.
181. It would not make a material difference to the interest of the propounder's case in the event Suraj's evidence is taken early and provisionally. Either way, since Suraj has admittedly refused to support the case of the propounder, there is no reason why expediting his evidence would help the cause of the propounder. Rather, delaying his evidence might arguably occasion a change of mind-set on the part of the Suraj, which could enure in favour of the petitioner. However, immediacy in his examination cannot benefit the petitioner and/or the interest of justice in any manner.
182. Insofar as the alleged laches of the petitioner in furnishing affidavits by any of the attesting witnesses is concerned, the same does not take away the prima facie presumption of correctness of the Will of 2020. Even without offering any advice to the parties, there is scope of proving documents which are required mandatorily to be attested, in the absence of attesting witness, by other modes, subject to satisfaction of the Court in that regard. However, such stage would come only at the time of adducing evidence in connection with the probate proceeding itself and not at this premature stage of adjudicating the interlocutory applications in connection therewith.
183. Although the learned Single Judge of this Court in Namita Ghosh and another Vs. Piyali Adhikari (nee Banerjee) and another, reported at 50 2017 SCC OnLine Cal 15682, has observed in the passing that it is an everyday practice in a suit court for evidence to be received de bene esse whether at the request of a plaintiff or a defendant and such requests are looked into by the court rather charitably, with utmost respect, in a proceeding in the nature of a suit including a contentious probate proceeding, the provisions of Order XVIII Rule 16 of the Code of Civil Procedure are required to be satisfied. That apart, a de bene esse order can only be issued in the event sufficient justification for the same is made out. In the reported case, there was apprehension that the petitioner, who is aged, might lose her mind or health before her oral evidence is recorded, which is entirely absent in the present case, inasmuch as the GA/4/2022 is concerned.
184. Suraj Toshniwal, whose evidence has been sought to be taken de bene esse, is neither of advanced age nor debilitated by any ailment. Hence, the question of issuing such an order does not arise at all.
185. The respondent no.1 next relies on the Division Bench rendered in AIR 1945 Cal 350 [Amal Shankar Sen and another Vs The Dacca Co- Operative Housing Society Ltd.]. In the said case, by quoting another Division Bench judgment rendered by Mukherji, J., in Gobinda Chandra Pal Vs. Pulin Vehari Banerjee, the court held that the mere fact that only the surviving attesting witness is considered hostile to the party does not relieve him from the duty of examining him as a witness.
186. In the said case, it was held that it is only when the witness does not appear even after all the processes under Order XVI Rule 10, which 51 the court considered to be fit and proper, had been exhausted that the foundation will be laid for the application of Section 69 of the Indian Evidence Act.
187. However, the said judgment does not apply in terms in the present case, since the stage of adduction of evidence has not yet arrived.
188. The learned Senior Advocate appearing for the respondent no.1 also cites Hare Krishna Panigrahi Vs. Jogneswar Ponda, reported at 43 CWN 1025. In the said judgment, the Division Bench of this Court held that in other to let in other evidence of attestation under Section 71 of the Evidence Act, it is not sufficient to cite one of the attesting witnesses and get summonses served upon him. Where there are attesting witnesses capable of being produced, all means of compelling their attendance must be exhausted. However, the said stage has not come yet in the case at hand.
189. Learned senior counsel for the respondent no.1 cites Lakshmibai (dead) through LRS. and another Vs. Bhagwantbuva (dead) through LRs. and others, reported at (2013) 4 SCC 97, where it was held that the appellate courts adopted a rather unusual course in drawing adverse inference on the basis of the non-examination of the appellant/plaintiff observing that considering her old age, she should have taken recourse to the procedure prescribed under Order XVIII Rule 16 of the Code of Civil Procedure which lays down that where a witness is about to leave the jurisdiction of the court or where some sufficient cause is shown to the court owing to which it would be prudent for it to ensure that his evidence is taken immediately, the 52 court may, upon the application of the party or of the witness at any time after the institution of suit, take the evidence of such witness/party in the manner provided therein.
190. The court went on to observe that the appellant was just above 70 years of age and hale and hearty. She was not suffering from any serious ailment, for example Cancer, nor had been on her death-bed. Thus, there was no occasion for her to file an application under Order XVIII Rule 16, CPC which provides for taking evidence de bene esse for recording the statement prior to the commencement of the trial. Mere apprehension of death of a witness cannot be a sufficient cause for immediate examination of a witness. Apprehension of death, it was held, applies to each and every witness, he or she, young or old, as nobody knows what will happen at the next moment. More so, it is the discretion of the court to come to a conclusion as to whether there is a sufficient cause or not to examine the witness immediately.
191. Hence, the Supreme Court was of the opinion that even if the plaintiff had moved such an application, the trial court could not have allowed it after considering the aforesaid facts.
192. The ratio laid down in the above judgment is apt in the present case.
Here, as opposed to the appellant in the reported judgment, who was 70 years of age, the proposed witness is much younger and there could not be any apprehension of death to justify, ipso facto, the examination of the said witness de bene esse.
193. The respondent no.1 next cites an unreported judgment of this Court dated August 14, 2009 rendered in Smt. Binota Mitra Vs. Ms. Tanisha 53 Mitra and another. In the said case, a similar application was allowed keeping in view the age and ailments of the proposed witness as borne out by the medical certificate produced in the trial court. However, it was held that such power of the court is not unfettered, but qualified by the circumstances of each case. In the present case, it is rightly contended, the said circumstances do not apply at all.
194. Thus, there is no scope of granting the prayer of de bene esse.
Accordingly, GA/4/2022 is also dismissed without any order as to costs.
In Re: GA/3/2022
195. The present application is for issuance of citation on the heirs of the Testator.
196. Under normal circumstances, issuance of citation in a probate proceeding is directed almost as a matter of course, unless there is any specific reason not to do so.
197. In the present case, in view of the pendency of GA/2/2021 at the instance of Narbada, the adjudication of the present application was postponed, since the question, as to whether citation was also to be effected on the said Narbada, was required to be considered.
198. However, in view of the dismissal of GA/2/2021, there is no scope of issuance of any notice on anybody else than Chandni, Dheeraj and 54 Subhash, the wife and the two sons of the deceased Testator Om Prakash Maniyar.
199. Accordingly, GA/3/2022 is allowed, thereby directing citations to be issued duly on the persons named as heirs of the Testator in GA/3/2022, namely Chandni Maniyar, Dheeraj Maniyar and Subhash Maniyar. Necessary consequential steps shall be taken accordingly by the concerned department of this Court, subject to compliance of due formalities by the propounder, if any.
200. Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.
( Sabyasachi Bhattacharyya, J. )