Karnataka High Court
F.C.S. Amalnathan And Others vs J.S. Victor Basco on 3 February, 1995
Equivalent citations: AIR1995KANT258, I(1995)DMC468, ILR1995KAR869, 1995(2)KARLJ518, AIR 1995 KARNATAKA 258, (1995) ILR (KANT) 869, (1995) 2 KANT LJ 518, (1995) 1 DMC 468, (1996) MARRILJ 416, (1996) 1 LJR 52, (1995) 2 CIVLJ 258, (1995) 2 CIVILCOURTC 335, (1995) 2 HINDULR 88
ORDER
1. This petition is filed by two petitioners under Section 301 of the Indian Succession Act (hereinafter referred to as 'the Act') for removing or suspending the respondent from the joint executorship of the will dated 12-10-1983 left by one Flora Swamidoss and to place the estate in the hands of the petitioners.
2. The petitioners case putforth in the petition in brief is as hereunder: Miss. Flora Swamidoss has executed a will dated 12-10-1983 in respect of her assets and has appointed the petitioners and the respondent as the executors of her will. After the death of the testatrix the respondent took possession of all the moveables including gold jewels and silver and stainless steel articles, clothes, etc, without reference to the petitioners, put them in one room and locked that room and has thereby deprived access to the petitioner. The respondent and his wife took away gold jewels from one of the beneficiaries forcibly and are misusing them. The respondent has been himself managing the property of the deceased and is acting contrary to the wishes of the deceased. The respondent gave a very cheap funeral to the deceased and placed the body in corporation hearse in spite of protests of the petitioners and relatives. The respondent has removed many articles and jewels from the house of the deceased stealthily. He has also misappropriated the amount specifically meant for funeral expenses of the testatrix. As the respondent is acting contrary to the wishses of the testatrix he is not fit to be a joint executor of the will, as such he is liable to be removed as an executor.
3. The respondent in his counter has denied the various allegations made in the petition. He has asserted that the deceased had provided a bank deposit of Rs. 4,490/-
for funeral expenses, that he utilised that amount and certain other funds for conducting the funeral and subsequent ceremonies in a manner befitting the status and wishes of the testatrix, that he gave a first class funeral by engaging services of M/s. Snaize Brothers, who are the best known undertakers in Bangalore, that no corporation hearse or cheap treatment was given to the deceased as alleged by the petitioners and that he con-ducted all the ceremonies in accordance with the wishes of the testatrix. He has given a statement of the receipts and expenses to show that he has spent more than what had been provided by the deceased to meet the expenses. He has pleaded that as he is the sole beneficiary of all the moveables and other household assets of the deceased he had taken steps to keep them in his custody after making an inventory to the knowledge of the petitioners, that jewellery in his custody would be disposed of in accordance with the will after the completion of the probate proceedings or in accordance with the directions that may be given by the competent court. According to him it is the petitioners who have been trying to dispossess him of the moveable with an ulterior motive and for that purpose they have given police complaints and that they are also collecting and appropriating the rents of the leased portion of the property of the deceased.
4. The petitioners, in support of their petition, have examined the first petitioner as P.W. 1 and two other witnesses. The respondent has examined himself on his side.
5. The learned Counsel for the respondent, during arguments, contended that as the will is still not probated this petition is not a maintainable under Section 213 of the Act According to him the petitioners want to rely on the terms of the Will to contend that the respondent has acted against the wishes of the testatrix and that as such he is liable to be removed and that the petitioners cannot rely on the terms of the Will without the same having been probated. The sum and substance of the argument was that the contents of the Will cannot be looked into without the Will being probated and that as admittedly the Will is till not probated this petition itself is not maintainable. The learned counsel for the petitioners, however, contended that (sic) the Will cannot be made use of for the purpose to establish rights under the Will without the same being probated, there is no bar for the Will being relied upon for a collateral purpose. He relied upon the decision reported in John Guruprakasam v. Yovel Nesal . Relying the decision in Ball Ram Dhote v. Bhupendra Nath Banerjee, he contended that the properly vests in the executor immediately on the death of the deceased- and the probate is not necessary to make an executor act and that the executor can even effect a sale. He therefore contended that for removal of a private executor under Section 301 probate of the Will is not a condition precedent.
6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.
7. Section. 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executor-ship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannot assert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301. Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.
8. Section 213(1) reads as hereunder:
"No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed,"
9. The Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose has held that Section 213 acts as a bar to the establishment of rights under a Will by an executor or a legatee, unless probate or letters of ad ministration of the Will have been obtained and that it is immaterial whether the right is claimed as the plaintiff or as a defendant. Thus the bar comes into play only when a right as an executor or a legatee under a Will is sought to be established. However an unprobate will can be admitted in evidence for collateral purposes in any proceeding other than a probate proceeding. This position is made clear in several decisions and also in the decision reported in John Guruprakasham's case (see also Mr. Sen's Indian Succession Act, 1955, second edition p. 425). As under law an executor is competent to administer the estate even without grant of probate, it has to be held that to maintain an application for his removal probate of the Will is not a condition precedent. The proceeding to remove an executor cannot be considered to be proceeding for establishment of right of an executor or a legatee. In the present case it is undisputed that the petitioners and respondent have been appointed as executors under the Will and that they have accepted executor-ship. As such it cannot be said that the petition is not maintainable under Section 301 only on the ground that probate of the Will has till not been granted.
10. Ordinarily the desire of the testatrix as to who should administer her estate and execute her Will will have to be respected and an executor appointed by the testator should not be removed unless there is clear evidence that his continuance as an executor would be detrimental to the estates of the deceased and frustate the Will of the deceased. Some minor lapses here and there cannot be a ground to remove the named executor. Bearing in mind this principle it has to be seen whether the petitioners have established sufficient grounds to remove the respondent from executorship.
11. The facts that the deceased had left funds for her funeral in a joint account standing in her name and respondent's name and had authorised the respondent to draw the original will from the State Bank of Mysore, which are not disputed, shows that the deceased had reposed more confidence in the respondent among the 3 executors named by her. As such to remove him from executor-ship there must be some substantial grounds.
12. One of the grounds urged in the petition is that the respondents removed many articles, gold jewels, silver and stainless steel articles and documents stealthily from the house of the deceased. Contrary to this allegations there is an allegation in the petition itself that the petitioner took possession of all the moveable including gold jewels, silver and stainess steel articles and put them, in one room and locked the door. This allegation would indicate that the respondent collected all the moveables including gold jewels and other articles and kept them in one room and locked the same. According to the respondent, an inventory of all the articles was taken along with the petitioners and they were all kept in one room in the same house and he has put one lock to that room and the petitioners have put one lock. He has denied that he has removed any articles. During the course of his evidence it is admitted by the first petitioner that an inventory was prepared as per Ex. R 10 and that he as well as the second petitioner have signed the same. Ex. R 10 is a note book wherein the respondent has written some accounts in the first portion and inventory is prepared in the other portion of the book. This inventory is prepared on 21-11-1987. The deceased died on 18-11-1987. An attempts has been made to show that the respondent removed certain articles during the interval. Admittedly the funeral was held on 19-11-1987 and till all the ceremonies were completed on 11th day, one Miss Malini Susai, who was brought up by the deceased, was staying in the house of the deceased. She would definitely have known if any moveables and jewels had been removed by the respondent after the death of the deceased and before the inventory was prepared. The first petitioner admits that she was slaying with him for some time after the death of the deceased and subsequently he got her admitted in a convent. She has not been examine to prove that the respondent removed any articles before 21-11-1987. In fact one of the allegations made against the respondent is that he removed some jewels forcibly from the person of Miss Malini. Some complaint is stated to have been lodged in that regard. At least to prove that she should have been examined. If really the respondent had removed any articles, the two petitioners would not have agreed to an inventory of the articles available in the house on 21-11-1987 being prepared without recording the fact that some moveables had been removed prior to that date. The petitioners evidence with regard to removal of certain moveables by the respondent is vague and he does not state in his evidence as to when they were removed. In the cross-examination of the respondent it is suggested that he took away some cash which was in the almirah. This is not spoken to by the first petitioner in his evidence. On the other hand the inventory shows a cash of Rs. 123/- was found.
13. At the stage of evidence it is alleged that the respondent has removed costly sarees and some clothes which had to be given to the home for the aged. The inventory contains the details of all sarees including silk sarees, nylon sarees and sarees for rough use apart from other garments. Thus there is no scope for the respondent to remove those sarees stealthily. In fact in the petition there is no allegation that the respondent has misappropriated the clothes which had to be given to the home for the aged. In the cross-examination of the respondent it is not even suggested that he has removed clothes which had to be given to the home for the aged persons. The respondent has admitted that those sarees are with him.
14. P.W. 3, Mr. Divyapadam, has stated in his affidavit that valuable moveable have been removed by the respondent to his own residence as if he was the sole heir. Whatever moveables were found in the house have been shown in the inventory and the evidence shows that they have been kept in a room under lock. There is no material to show that the respondent has appropriated any of the moveables which have been bequeathed under the Will to other persons for his own use.
15. One of the main grievance of the petitioners as well as P.Ws. 2 and 3 is that the respondent did not give a first class funeral to the deceased as per her wishes, that the body of the deceased was taken in a corporation hearse, that the funeral services were not held in a befitting manner, that no arrangement for food and drinks had been made for the mourners and that the relatives of the deceased felt hurt by the manner in which the funeral and ceremonies were conducted. It is stated that at the instance of the relatives the first petitioner performed the 11th day ceremonies.
16. The allegation that the corporation hearse was used for taking the body of the deceased is neither entirely correct or entirely false. The respondent in his evidence has stated that in order to bring the body from the hospital to the house of the deceased the hospital authorities informed him that they cannot provide the ambulance and that they suggested that the body could be taken home in the corporation hearse and that one of his relatives who was in the hospital had arranged for that vehicle. His evidence shows that the deceased was admitted to the hospital at about 2.30 a.m. and he got information about her death when he was at the work spot in H.A.L. and thereafter he went to the hospital by which time some relatives had come there. It would appear that for the purpose of shifting the body from the hospital to the house, the corporation vehicle has been availed of. But it is admitted that for the funeral the corporation hearse was not used.
17. There is a controversy as to whether a first class funeral was given to the decease. It is not disputed that the deceased wanted that a first class funeral should be given, that a gregarian mass should be arranged and that the ceremonies should be performed in a befitting manner. While the petitioner and P.Ws. 2 and 3 assert that a cheap funeral was given, that proper arrangements had not been made and that all the relatives felt hurt, the respondent asserts that he had made all necessary arrangements, that he had entrusted the funeral arrangements to M/s. Snaize Brothers who are reputed undertakers, that he had also arranged a luxury bus for the mourners to go to the cemetry and come back and that he had also arranged for snacks, etc. and that even 3rd and 11th day ceremonies were performed and that he has spent more than Rs. 2000/- in addition to the sum of Rs. 4,490/- drawn from the account of the deceased meant for that purpose.
18. P.W. 3 in his cross-examination has stated that according to him first class funeral will be perfomed by entrusting the funeral arrangement to M/s. Snaize Brothers. He denies that M/s. Snaize Brothers had made arrangements for the funeral and asserts that himself, petitioners and respondent themselves made arrangements for funeral services. The respondent has produced the receipts issued by M/s. Snaize Brothers to show that he had entrusted the work to them and that he has paid Rs. 1,862/- for supply of one first class polished coffin and hearse for funeral P.W. 1, the first petitioner, does not state that they themselves made arrangements for the funeral services. He admits that one hearse had been secured for the funeral. When a specific suggestion was put to him that M/s.
Snaize Brothers had made arrangements and had provided hearse, he was not in a position to deny that suggestion. As such the respondent's evidence that he had secured the coffin and hearse from M/s. Snaize Brothers cannot be doubted. No doubt the evidence would show that 3 priests had not been arranged for saying Gregarian mass, It would appear that there was some deficiency in the arrangements made at the time of the funeral and third day ceremonies. The petitioner's evidence that the relatives therefor asked him to arrange for the 11th day ceremony and that he did arrange that ceremony is probabilised by the fact that respondent also admits that the first petitioner arranged for the 11th day ceremony. Though, it cannot be said that the respondent did not give a first class funeral or that he did not spend the amount which had been provided by the deceased for the funeral expenses, the material on record would show that there were some lapses and that some of the relatives were not happy with the arrangements made. Though the testatrix had wished that expenses should not be stinted and that if any additional amount was required the same had to be spent by the executors and they should get themselves reimburse later from the assets, it would appear that the respondent in an attempt not to spend much more than what was provided had restricted some items of expenditure. There might have been some lapses here and there in the arrangements made. The question is whether that could be a reason to remove him from the executorship. The petitioners were also executors and it was equally their obligation to carryout the wishes of the deceased and they do not say as to what prevented them from incurring the expenses and making necesssary arrangements. Except stating that they made suggestions to respondent and that the respondent did not heed their words, P.W. 1 does not state as to what prevented him and other petitioner from making necessary arrangements. The petitioners themselves being executors, if there were any lapses in the funeral arrangements, they have to share the blame and they cannot make that a ground to have the respondent removed.
19. It is alleged in the evidence that suitable tomb has not been erected as desired by the testatrix. This is not a ground alleged in the petition. Obviously the tomb had to be built after some time. But it is seen that disputes have started between the executors within a short time after the death of the deceased and there have been even complaints to the police. It would therefore appear that steps have not been taken to carry-out the terms of the Will. But here again all the executors including the petitioners have to share the blame and the petitioners cannot make that a -ground to remove the respondent. It would appear that the first petitioner wanted some jewels bequeathed to Miss Malini to be handed over and the respondent agreed to hand over those jewels, if the petitioners executed any indemnity bond agreeing to indemnify him in case of any future problem. The petitioners were not agreeable to execute the bond. Thereafter complaints have been given to the police. The petitioners have alleged that the fact that the respondent wanted some indemnity bond from them wants to show that respondent had some ulterior motive.
20. The failure to implement the terms of the will is also sought to be made out as a ground for removal of the respondent. The respondent's plea is that as the Will has still not been probated it has not been possible for him to carryout the terms of the Will. Though an executor can start functioning even without the probate of a Will, in this particular case in view of the differences which have arisen among the executors, it is obvious that the respondent does not want to act before probate is granted by the court and he gets authority to act in accordance with the terms of the Will. If the terms of the Will have remained unimplemented it is not entirely the fault of the respondent. It is admitted that the petitioners and the respondent filed a petition in Probate Case 10007/88 in the City Civil Court seeking probate of this Will and that it was the petitioners who engaged the advocate of their choice for filing that petition. It is also admitted that the respondent agreed to their choice and gave vakalath to that advocate. It is now admitted that that petition was dismissed for default. This shows that the petitioners have not taken interest in prosecuting that petition. It is stated that the respondent has now filed another petition seeking probate and those proceedings arc held up because the petitioners had sought for removal of the respondent from executorship in these proceedings.
21. The materials on record also show that the petitioners well as the respondent wanted the rents due from tenant to be collected and that now the tenant has stopped paying rents.
22. The testatrix appears to have appointed 3 executors hoping that they would co-operate with each other and ensure that her Will is administered properly without there being any scope for mismanagement. But unfortunately, contrary to her expectations the petitioners and respondent, instead of co-operating with each other to sec that the probate of the Will is obtained expeditiously and the terms of the Will are implemented, have been litigating and thus frustrating the object of the deceased in making a Will. Though the Court as well counsel appearing for the parties repeatedly suggested to both parties to come to some understanding and to ensure the implementation of the terms of the Will they did not conic to any workable arrangement.
23. On the material on record it cannot be said that any strong ground which warrants removal of respondent as executor is made out. This petition has therefore to fail. If the petitioners and respondent do not co-operate with each other and implement the terms of the Will the question of removing all of them may have to be considered in the interest of the estate and the beneficiaries in separate proceedings if initiated by any competent person.
24. For the above reasons this petition is dismissed. No costs.
25. Petition dismissed.