Punjab-Haryana High Court
Smt. Shanti Devi vs Yadvinder Thakur And Anr. on 11 May, 2006
Equivalent citations: (2006)143PLR799
JUDGMENT S.N. Aggarwal, J.
1. Seth Bhagirath Das, an eminent Advocate of Punjab and Haryana High Court of yester years had executed a trust deed on ' 18.1.1996 in the name of his mother titled as 'Champawati Charitable Trust' (in short 'CC Trust'). It was got registered with Sub Registrar, Chandigarh on 17.2.1966. An amount of Rs. 5,000/- was credited in said trust to begin with. He had also executed a supplementary trust deed on 31.1.1989, which was got registered on 6.2.1989. On 21.1.1985, said Bhagirath Das executed a Will in which he detailed the list of his movable and immovable property and by the said Will he disposed of these properties in favour of CC Trust. An amount of Rs. 50,000/- was kept apart for his wife and some amount in the name of his sister Geeta Bai. Some amount was also earmarked for his servants and for the maintenance of dogs etc. On 28.12.1988 Seth Bhagirath Das executed a codicil. Seth Bhagirath Das completed his journey in this world on 25.4.1989 and expired.
2. The trustees were appointed in the Will dated 21.1.1985 read with codicil dated 28.12.1988. Similarly the Executor was also named in the Will but as ill luck would have it, the litigation started thereafter.
3. The journey of litigation started with the filing of Probate application, in this Court, by one of the trustees, namely, Uma Aggarwal on 13.7.1989. In this petition for probate Yadvinder Thakur, named in the Will as Executor and Managing Trustee and the other three trustees named in the Will, were made respondents. Shanti Devi and Gita Rani, sisters of Seth Bhagirath Das and the Punjab and Haryana High Court Bar Association (beneficiary), were also impleaded. Sanjay Kumar, who proclaimed himself to be the adopted son of Seth Bhagirath Das and Smt. Soni Bai widow of Seth Bhagirath Das, were also impleaded as respondents. In this petition filed under Section 278 of Indian Succession Act, 1925 (in short, 'the Act, 1925'), for the grant of letters of administration of the Will dated 21.1.1985, read with codicil dated 28.12.1988, the list of properties, Schedule A (moveable properties) and Schedule B (immovable properties), were attached.
4. On notice, Soni Bai widow of late Seth Bhagirath Das filed written statement and contested the petition. She also challenged the validity of codicil. It was pleaded by her that the Probate can be granted in favour of the Executor named in the Will. Counter allegations were made relating to movable property against the petitioner. The correctness of properties cited in Schedule B was also disputed. It was also pleaded that on 13.4.1975 Sanjay Kumar (respondent 8) was adopted as a son by Seth Bhagirath Das and the adoption was reduced into writing on 13.4.1981. The properties of Hindu Undivided Family situated at Amritsar and shown in Schedule B were subjected to partition and the partition deed was got registered on 11.4.1986 in the office of Sub Registrar, Amritsar. The following properties had come to the share of respondents' No. 8 and 9, as under-
S.No. Property In whose favour
A) Bagachi situated in Soni Bai
Bagh Rama Nand, Amritsar
B) Tawela in Katra Man Singh, Sanjay Kumar
Amritsar
C) Tawela in Katra Karam
Singh, Amritsar Sanjay
Kumar The dismissal of
the petition was
prayed.
5. Yadvinder Thakur and O.P.Aggarwal (respondents No. 1 and 3), also filed joint written statement and contested the petition. It was pleaded by them that by virtue of registered partition deed dated 3.4.1986. Bagichi situated in Bagh Rama Nand, Amritsar, had come to the share of Soni Bai (respondent No. 9). Respondent No. 1 (Yadvinder Thakur) was appointed as Executor of the Will dated 21.1.1985 and therefore, said Will be probated in favour of Yadvinder Thakur. Replication was filed by the petitioner to both the written statements. On 18.5.1990, the learned Counsel for the petitioner (Uma Aggarwal), pleaded no objection if Yadvinder Thakur was transposed as co-petitioner and that he alone was entitled to the grant of Probate. Accordingly, Yadvinder Thakur was transposed as co-petitioner. But since there was a dispute about the codicil, raised by Soni Bai-respondent No. 9, issues regarding codicil were framed.
6. The petitioner examined Dr. Shiv Narain Aggarwal as PW-1. He was the attesting witness of the codicil. The petitioner herself appeared as PW-2, while Dr. Ramesh Kumar, Advocate appeared as PW-3. He was attesting witness of the Will. This court vide order dated 16.4.1991 upheld the execution of the Will dated 21.1.1985 (Exhibit P-3) and of codicil dated 28.12.1988 (Exhibit P-l). Accordingly, the petition was accepted and the probate was granted in favour of Yadvinder Thakur, co-petitioner named in the Will dated 21.1.1985, vide this Court order dated 16.4.1991. All the applications filed prior to 16.4.1991 were also disposed of.
7. The passing of the order of Probate on 16.4.1991 completed first part of the litigation.
8. The real controversy between the parties starts henceforth. Yadvinder Thakur, the Executor and the Managing Trustee, filed Civil Misc. application No. 1733-CII of 1993 under Section 151 C.P.C., for permission to place on record the amended Schedule of movable and immovable properties. It was pleaded that more movable property was owned by Seth Bhagirath Das, which was not shown in Schedule A by Uma Aggarwal-petitioner. It was also pleaded that the Bagichi situated in Bagh Rama Nand, Amritsar, shown in Schedule B had come to the share of Soni Bai vide registered partition dated 3.4.1986. Therefore, it be deleted from Schedule B. An affidavit dated 28.1.1993 was also filed by Yadvinder Thakur and amended Schedule A and Schedule B were placed on the file.
9. In this situation, Civil misc. application No. 2565-CII of 1983 was filed by Shanti Devi under Section 301 of the Act, 1925, for the removal of Yadvinder Thakur as Executor of the Will dated 21.1.1985. It was pleaded that the respondents (Yadvinder Thakur and Om Parkash Aggarwal), had started mis-appropriating the corpus of the CC' Trust property for their personal use. For this reason, Prem Tuteja, Advocate (trustee) resigned on 26.3.1990, while M.P. Joshi, Advocate (trustee) resigned on 14.4.1990. The fifth trustee, Uma Aggarwal was not taken into confidence with regard to the management of the CC Trust property. The following misuse of the property was alleged:
(i) Properties of the Trust which were fetching a rental of Rs. 9,440/- is being misappropriated for the personal gains of the respondents and no accounts are being maintained of the said income;
(ii) that the portion which fell vacant in the Baghichi on account of the death of the wife, of Seth Bhagirath Das is not being used for the trust benefits;
(iii) that the respondents have allowed the parking of various cars @ Rs. 200/- per car per month in the premises of the Trust and thus realising a rent of about Rs. 5,000/-per month and the said money is being used for their gains;
(iv) that the hospital, which the Trust was running, has been closed and putting the Trust in an awkward position and the sentiments of late Seth Bhagirath Das have been injured;
(v) that the services of the Doctor and the compounders have been dispensed with; with the result that the entire object of the Trust has been frustrated.
10. The Executor was also to recover the income of the Bagichi as also of the land measuring 22 kanals situated in village Kapat and to utilize the same for the purpose of the trust, but he had failed to do so. Respondent No. 1 also wants to grab other properties for personal benefit. Hence, it was prayed that respondent No. 1 be removed from the office of Executor. This application was supported by an affidavit by Shanti Devi applicant.
11. Reply was filed by respondent No. 1 and the petition was contested. The main allegation was made that Uma Aggarwal had not handed over the possession of Kothi No. 31. Section 9-A, Chandigarh and counter allegations were made against her. It was again pleaded that a family partition had taken place and a partition deed was executed on 3.4.1986, which was got registered on 11.4.1986. Under the said partition deed, the Bagichi situated in Bagh Rama Nand, Amritsar had come to the share of the Soni Bai, while the property situated in Katra Karam Singh and Gate Man Singh including three shops on the first floor, had come to the share of adopted son Sanjay Kumar, but Kothi No. 31, Section 9-A, Chandigarh and the land situated in District Hoshiarpur had come to the share of Seth Bhagirath Das. It was admitted that O.P. Aggarwal had opened his office in Bagichi but it was pleaded that he was a tenant under Soni Bai. It was also pleaded that Sanjay Kumar, who had become owner of Tawelas situated in Katra Man Singh and Katra Karam Singh, has executed a gift deed dated 9.5.1989 in favour of the CC Trust. It was also pleaded that Soni Bai, during her lifetime, had created a trust through registered trust deed dated 8.12.1989 in the name of Seth Bhagirath Das Soni Bai Charitable Trust and she had executed a Will bequeathing all her property to the said trust. It was denied if the rental income was Rs. 9,440/- per month. It was fetching only Rs. 3,150/- per month. It was admitted that the dispensary was not functioning, but it was due to lack of funds. Hence, dismissal of petition under Section 301 was prayed.
12. In the meantime Lima Aggarwal had handed over the possession of Kothi No. 31, Sector 9-A, Chandigarh to this Court. CM. No. 7985-CII of 1998 was filed by one Arv-ind Khanna for taking the said Kothi on lease on any terms imposed by this Court. This CM. was accepted and the said Kothi was leased out by this Court vide order dated 31.8.1998 to M/s Khanna Foundations through its Chairman Arvind Khanna, initially for a period of 5 years on monthly rent of Rs. 65,000/- with annual increase @ 5% on the rent/increased rent plus all Bills/Taxes etc. alongwith certain other conditions. Thereafter CM. No. 10881 of 1999 was filed by the respondents for cancellation of the lease deed, while CM. No. 21964 of 2003 was filed by the lessee for extension of lease period. This lease was extended by this Court vide order dated 6.8.2004 by way of interim arrangement on the same terms and conditions till further appropriate orders that may be passed by this Court.
13. During the pendency of main CM. No. 2565-CII of 1993, CM. N.O.1357-CII of 2001 was also filed on behalf of the petitioner. It was alleged that the respondents are misappropriating the properties of the trust and the purpose of the trust was not being fulfilled. It was prayed that the Trustees in the CC Trust be appointed and in the alternative all the properties of trust may be transferred or donated to any other institute carrying on similar objects, which may be charitable and which may be in consonance of the objects of the CC Trust.
14. This application was again contested by the respondents. It was pleaded that after Prem Tuteja and M.P. Joshi, trustees, had resigned on 26.3.1990 and 14.4.1990, respectively, registered notice was sent to Uma Aggarwal for 5.5.1990 but she had no responded. On that date two trustee, namely, Bansi Lal Chhapria and Santosh Bajaj were appointed as new trustee. Bansi Lal Chhapria died on 30.3.1996 and in his place Dr. Vibhakar Sharma was appointed as a trustee. Santosh Bajaj resigned on 21.12.1996 and in his place Major Tara Chand and Sh. Sanjay Aggarwal were taken as trustees in the meeting held on 3.2.1997. It was asserted that Bagichi situated in Amritsar was not a part the trust property. Legal objection was also taken that this application CM. No.l357-CII of 2001 was filed by the Advocate on his own without instructions from any client. It was however, submitted that certificate of Probate in his favour has not been issued so far and his functioning as Executor has been stayed. Hence, its dismissal was prayed.
CM. No. 2565-CII of 1993
15. Before proceeding further the provisions of Section 301 of the Act, 1925 may be noticed, under which the present application has been filed. This Section reads as under:
301. Removal of executor or administrator and provision for successor- The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.
So far as the maintainability of the petition under Section 301 of the Act, 1925 in this Court is concerned, it was discussed by the Hon'ble Lahore High Court in the judgment reported as Karam Devi v. Radha Kishan and Ors. A.I.R. 1935 Lahore 406. It was observed by the Hon'ble Lahore High Court as under-
This argument proceeds on the assumption that a person may have a legal right to the removal of an executor from his office, such as a Civil Court can enforce. But from the very nature of the office, it seems clear that there can be no such legal right, for the right to act as executor of a will can be created only by the will itself. It follows that proceedings for the removal of an executor must be of a peculiar nature not arising out of any legal rights, and are therefore not a "suit of a civil nature" jurisdiction to try which is conferred by Section 9 of the Code. A Court cannot enforce a right, which does not exist.
After discussing the whole law on the subject, the Hon'ble Lahore High Court was pleased to further observe as under:
On the other hand, the proposition is well established that where an Act creates a special jurisdiction, and provides a special remedy such jurisdiction is exclusively conferred upon the Court expressly empowered to deal with the matter. My conclusion is that the power to remove an executor and to provide for a successor to his office is one conferred upon the High Court alone by Section 301, Succession Act, and that such relief cannot be sought by regular suit.
Learned counsel for the respondents submitting to the contrary made reference to the judgment of this Court reported as S.B. Ranjit Singh and Anr. v. S. Santokh Singh Rais and Ors. (1950)52 P.L.R. 313. The facts of this case however, were different, as mainly an application filed under Order 1, Rule 10 C.P.C. for being impleaded as a party in the petition filed, under Section 301 of the Act, 1925, was decided in this case. However, regarding the jurisdiction conferred by Section 301 of the Act, 1925, in this case also, it was held as under:
The view 1 take of the matter is this, Prima facie, it is the duty of a High Court in an application under Section 301 of the Succession Act to enquire into the allegations made and to grant the appropriate relief; but, as pointed out in Dhana Bakkiyammal v. Thangevelu Mudaliar I.L.R. 50 Mad. 956 the Court should act only if a proper case is made out. I am accordingly of the opinion that if after considering the allegations in the petition or after hearing the parties, the Court entertains the view that the petitioner has not come into Court with a clear title or that the petition has been made for a collateral purpose, the Court would be fully justified in declining to proceed with the petition.
The submissions of the learned Counsel for the respondents was that first of all probate has not been issued in favour of respondent No. 1, although his petition was accepted as long as 16.4.1991. Simultaneously, it was submitted that no case for removal from the office of Executor has been made out against the said respondent.
The non-issuance of probate is only a subsequent act which has been stayed by this Court but the fact remains that the order for the issuance of probate in favour of Yad-vinder Thakur-respondent No. 1 has already been passed by this Court vide order dated 16.4.1991. Therefore, respondent No. 1 has become amenable to the jurisdiction of this Court in exercise of the powers vested in it under Section 301 of the Act, 1925. A similar question had come up before the Hon'ble Madras High Court in the judgment reported as P.B. Srinivasan and Anr. v. T.P.S. Varadhan 1981(iii) Madras Law Journal Reports 158. It was held as under:
Yet another contention was put forth by the learned Counsel for the respondent when he stated that the petitioners cannot seek remedies under Section 301 of the Act in the present petition without first obtaining probate of the will in question under the provisions of the Act. Neither the language of the provision, nor any authority supports this contention of the learned Counsel for the respondent. The question came up for consideration in a very early judgment of this Court in O.P. No. 1 17 of 1926, dated 6th September, 1926. V.V. Srinivasa lyengar, J., after considerably discussing the position, observed as follows:
It is possible that the legislature might have intended that even before grant of probate such a right to remove the executor should vest in the Court, because there may be causes in which by putting off taking probate executors might seek to take advantage of their own wrong and thereby stove off the liability under Section 301.
The conclusion I have therefore arrived at is that, even though probate has not been granted in respect of the will referred to in this matter the application is competent and not open to any objection.
There for if the conduct of the respondent on scanning is found to be blameworthy, and in contravention of the spirit of Will dated 21.1.1985 and the CC Trust, then the said respondent can be stopped at the threshold and can be removed from the office of executor under the provisions of Section 301 of the Act, 1925. It was held in the judgment reported as P.B. Srinivasan's case (supra) that the very fact,that the Executor has put-forth the right, which is absolutely untenable and which conflicts with the rights of the beneficiaries, is sufficient for the High Court to exercise the powers vested in it under Section 301 of the Act, 1925. It was further held that where the Executor acts with extreme mala fides and where his acts border or enter the zone of misconduct as an Executor, there is sufficient ground for his removal. The conduct must be for the welfare of the beneficiaries, and to advance aims and objects of the Trust. If the conduct of the Executor is not conducive to the welfare of the beneficiaries, then the power of removal must be exercised.
Now, this Court has to examine whether a case has been made out for the removal of the Executor, in whose favour probate has been granted by this Court vide order dated 16.4.1991, Whether he has committed the breach of faith which was reposed in him by the testator? Seth Rhagirath Das had specifically stated in para 2 of the Will dated 21.1.1985 that he has no male issues and he has only his wife who is alive. He further categorically stated in the same para that he has no other relative except his sisters. It means that he positively states that he has no male issue, but acknowledges the presence of his wife and in the second line, he rules out the existence of any other relative except his except his sisters. He further states in the next para that there would be nobody to look after his properties in the event of his death. But surprisingly, Soni Bai (Widow of Seth Bhagirath Das), in her written reply had pleaded that they had adopted Sanjay Kumar as son on 13.4.1975 for which a memorandum of adoption was reduced into writing on 13.4.1981, This assertion of Soni Bai was contrary to the contents of the Will. If Sanjay Kumar had been adopted as a son by Seth Bhagirath Das on 13.4.1975, he would have made its mention in the WiU dated 21.1.1985. But he has categorically ruled that he has no male issue. This clearly means therefore, that Seth Bhagirath Das had no male issue, either natural or adopted as on 21.1.1985, and the assertion made by Soni Bai (widow of Seth Bhagirath Das) (respondent No. 9 in the probate petition), was a false assertion. In para 3, Seth Bhagirath Das had further stated that there was no body to look after his properties in the event of his death, which also rules out the adoption of any son.
Yadvinder Thakur-respondent No. 1 although in his written statement filed in the probate proceedings had nowhere mentioned if Seth Bhagirath Das had adopted Sanjay Kumar as a son. But at the same time, he has made reference in the written statement to the partition deed dated 3.4.1986, which was also referred to by Soni Bai in her written statement to the Probate petition. As per the said partition deed, Sanjay Kumar was stated the adopted son of Seth Bhagirath Das. In other words, what he did not plead specifically in written statement filed in the probate proceedings, he asserted it indirectly, although he knew that it was contrary to the depositions made in the Will by Seth Bhagirath Das. It means Yadvinder Thakur respondent No. 1 being the executor of the Will was contradicting the facts stated in the Will.
However, he comes out with a specific version in the written reply filed in C.M. No. 2565-CII of 1993 in which he takes the stand that Sanjay Kumar was the adopted son of Seth Bhagirath Dass and the properties situated in Amritsar i.e. Tawela Katra Man Singh and Tawela Katra Karam Singh, had come to the share of Sanjay Kumar, adopted son of Seth Bhagirath Das, but said Sanjay Kumar had re-transferred red those properties by way of gift deed dated 9.5.1989 back to the trust i.e. Champawati Charitable Trust. This conduct of Yadvinder Thakur amounts to extreme breach of trust. He is stating those facts which are contrary to the contents of the Will dated 21.1.1985 and respondent No. 1 being the Executor of this Will dated 21.1.1985, has committed grave misconduct. By this conduct, is Yadvinder Thakur, executing the Will or is he working contrary to the Will? That is apparenl from the stand taken by Yadvinder Thakur that he has no regard for the executant of the Will and to the creator of the CC Trust. No other meaning can be found in it except that he has done it with an intention to grab the property.
Seth Bhagirath Das was a Senior Advocate. He knew what he wrote in the Will and what did it mean. The implications and meaning of the words of law were known to him. He specifically stated in his will dated 21.1.1985 that he owned the following immovable properties:
Immovable property
i) Bagichi situated in Bagh Rama Nand, Amritsar (HUF)
ii) A Tewala in Katra Man Singh, Amritsar (HUF)
iii) A Tewala in Katra Karam Singh (HUF)
iv) A bungalow situated at Chandigarh No. 31, Sector 9-A, Chandigarh (individual).
v) Land measuring about 22 Kanals in village Kapat, District Hoshiarpur (HUF) which has been given on lease.
He further stated in para 3 (ii) of the Will that the properties mentioned above shall vest in the trust and shall be administered by the trust. In para 5 of the Will, he writes as under:
5. That I hereby bequeath a sum of Rs. 50,000/- to my wife who shall have the right of residence in the Bagichi situated at Old Lakkar Mandi Amritsar, where she is living at present, and after my death she will have no right in the said Bagichi or any other movable or immovable properties except that the Trust shall maintain her and shall pay her a sum of Rs. 1,500/- per mensem so long as she is alive besides the sum of Rs. 50,000/- mentioned above.
A perusal of the above paragraphs reveal that he disposal of all his three properties situated in Amriisar in favour of the CC Trust and had made specific provision for the residence of his wife and for her maintenance in the Will. Yadvinder Thakur- respondent, however, has taken the plea that a partition deed had taken place between the parties on 3.4.1986 in which the Bagachi situated in Bagh Rama Nand, Amritsar, had come to the share of his wife Soni Bai, while the other two properties situated in Katra Man Singh and Katra Karam Singh in Amritsar, had come to the share of Sanjay Kumar, adopted son of Seth Bhagirath Das. When Seth Bhagirath Das has specifically deposed in the Will that the properties situated in Amritsar were his Hindu Undivided Family properties, and he had no male issue and there was no one to look after his properties after his death and he has specifically vested these properties in the trust, the question of partition did not arise, particularly, when Seth Bhagirath Das deposed in the Will, that he had no male issue and he had made a provision, for the residence and the maintenance of his wife.
If any such alleged partition had taken place on 3.4.1986, there was no difficulty for Seth Bhagirath Das to modify the Will dated 21.1.1985 but that was not done. He had executed a codicil dated 28.12.1988, but in the codicil also no reference was made to any such alleged partition deed dated 3.4.1986. Therefore, as per the contents of the Will dated 21.1.1985, read with the contents of codicil dated 28.12.1988, neither any partition was called for, nor any such partition had taken place. Soni Bai could have taken this false stand, but Yadvinder Thakur had no right to go contrary to the contents of the Will dated 21.1.1985. Yadvinder Thakur is the Executor of the Will dated 21.1.1985 and being the Executor of the Will, he was to carry out contents of the Will, and not to oppose or contradict it. By contradicting the contents of Will dated 21.1.1985, Yadvinder Thakur has entered in the zone of misconduct, and he can even be prosecuted, if the facts are proved to be wrong in the civil court.
The submission of the learned Counsel for the respondents is that this Court cannot determine title of the property. Reference was made to the judgment reported as In the Goods of Nand Lal Sett, deceased , where it was observed as under:
The only question germane for the Court to consider at the time of making a grant of the probate of a will are questions relating to the testamentary capacity of the testator whose will have to be probate and the due execution of that will by the testator. Questions of testamentary capacity will obviously cover considerations of physical and mental capacity such as inter alia appreciation of what is being done, sanity, duress, undue influence, fraud and questions of due execution will include inter alia such considerations as signature or thumb impression of the testator to the will, its proper execution and attestation. They are grounds of objection to the grant of probate.
This Court is not determining the question of title. It has only discussed the conduct of Yadvinder Thakur qua the contents of the Will. In the Will the deponent stated that he has no male issue, and he has no one to look after his properties after his death, but Yadvinder Thakur contradicts the despondent and alleges that the deponent had an adopted son. The testator has stated that he has disposed of his HUF properties situated at Amritsar (Bagichi in Bagh Rama Nand and a tawela in Katra Man Singh and a tawela in Katra Karam Singh) in favour of CC Trust, but Yadvinder Thakur has alleged that the deponent had no property in Amritsar as Bagichi situated in Bagh Rama Nand had come to the share of Smt. Soni Bai (widow of Seth Bhagirath Das), while the tawelas situated in Katra Man Singh and Katra Karam Singh had come to the share of his adopted son Sanjay Kumar. Yadvinder Thakur has contradicted the contents of the Will. It is only his conduct or misconduct which is the subject matter of this judgment.
Otherwise also, the respondents have not disputed the ownership of the CC Trust over the properties situated in Katra Man Singh and Katra Karam Singh, as they have stated that said Sanjay Kumar has gifted the said properties in favour of the CC Trust. The only question is whether these properties were originally donated by Seth Bhagirath Das or have come via Sanjay Kumar as alleged by the respondent.
The other allegations of the petitioner are that respondents are not only misappropriating the rental or other income from this property, but even one of the trustee is occupying a portion of the Bagichi. This fact has not been denied by the respondents. But they only alleged that respondent No. 2 is in possession of a portion of the Bagichi as a tenant under Smt. Soni Bai. The rent of course is meager. The rental income of other properties situated at Amritsar, which according to the respondents was Rs. 3,150/- per month, has not been accounted for. The income of land situated in village Kapat, District Hoshiarpur, has also not been accounted for. The dispensary has been closed. Therefore, there are sufficient grounds for this Court to intervene and to exercise its power to do justice to the CC Trust created by Seth Bhagirath Das and also to respond to the conscious of Seth Bhagirath Das and to fulfill the aims and object for which he had executed the Will dated 21.1.1985 and had created the CC Trust vide Trust deed dated 18.1.1966. Accordingly, the CM. No. 2565-CII of 1993 is accepted and Yadvinder Thakur is removed from the office of Executor, as he has misused his position and has mis-conducted himself qua the Will and the Trust, as discussed above.
16. The submission of learned Counsel for the respondents was that this Court has no jurisdiction to remove the trustees. Uma Aggarwal had earlier filed a civil suit under Section 92 C.P.C. in the District Court for the removal of trustees. However, it was dismissed. Otherwise also, only a suit was maintainable under Section 92 C.P.C. for this purpose. Reference was made to the judgment reported as Maganlal Parikshawala v. Samson Shalom A.I.R. 1938 Allahabad 197. Hence it was prayed that application for removal of trustees be dismissed.
Controverting this submission, learned Counsel for the petitioner made reference to the provisions of Section 92 C.P.C, according to which the suit can be instituted in the principal civil court of original jurisdiction, or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situated. Reference was also made to Section 2(4) C.P.C, according to which the word "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court. In support of this submission reliance was placed on the judgment of the Hon'ble Madras High Court reported as The Daily Calendar Supplying Bureau, Sivakasi v. The. United Concern , in which it was held that where the cause of action for filing a suit for infringement of the copyright arises within an ordinary original civil jurisdiction of High Court, the High Court can be deemed to be District Court within meaning of Section 2(4) C.P.C, and has a power to try the suit. Reliance was also placed on another judgment of Delhi High Court, reported as Penguin Books Ltd., England v. India Book Distributors and Ors in which also similar view of law was taken. On its basis, it was submitted that since this Court has an original jurisdiction under Section 301 of the Act, 1925, therefore, this application being a part of it has to decided by this Court.
Learned counsel for the petitioner also made reference to the object for which the trust deed dated 18.1.1966 was executed i.e.
a) for establishing educational and technical training institutions and recreational centres;
b) to award scholarships for the education of the indigent, needy and forlorn children; and
c) to establish clinics, dispensaries, hospitals for the treatment of ailing children. It was submitted that the beneficiary is not a person specific. Therefore, nobody could go to the civil court to file a civil suit as nobody has a legal right. The beneficiaries are the general public, and no individual has any legal right, on the principles on which a petition under Section 301 of the Act, 1925 is maintainable in this Court, as observed by Lahore High Court in Karam Devi's case (supra). For the purposes of this application also, no legal right accrues to an individual specific and the civil Court can enforce only a civil right under Section 9 C.P.C. Hence, it was prayed that this Court alone has the jurisdiction to remove the trustees for the benefit of the general public. It was further submitted that the suit filed under Section 92 C.P.C. earlier was not pursued by any body and was dismissed by default.
These counter submissions have been considered. In Maganlal Parikshawala's case (supra) relied upon by the learned Counsel for the respondents, the petition under Section 301 of the Act, 1925 was filed by the party for the removal of trustee and the Hon'ble High Court had held that petition under Section 301 of the Act, 1925 was not maintainable. It is clear from the following observations made by the Hon'ble High Court:
Now whatever the merits of the present petition may be, it is not a petition which in our opinion can be brought under Section 301, Succession Act. That section deals with the power of a High Court to suspend, remove or discharge any private executor or administrator. Now it may be that the will named three persons as executors, but it does not follow that the use of the word "executor" in the will was correct. It appears to us that the will has set up a permanent trust and that the position of these persons named in the will was that of trustee. As they are trustee of property for an endowment of a public temple, in our opinion the proper procedure would be to obtain sanction from the Legal Remembrancer and take proceedings under Section 92, Civil P.C. The present application is therefore dismissed.
In the present case the clear question is for the removal of an executor.
There is no dispute that the power to remove the Executor and to appoint a successor in his place is vested in this Court under Section 301 of the Act, 1925. The question of removal of trustee inevitably comes in as the work of trustee has also to go side by side. For better management of the estate, the same person is to work as Executor and as Managing Trustee at the same time. Similarly, the other trustees are to cooperate with the Managing Trustee for the same goal. It may be stated at the cost of repetition that if the question would have been for the removal of the trustees alone, then this Court had no jurisdiction to remove the trustees and the suit was maintainable. In the present case, it is a mixed question of Executor and of trustees. This Court has the exclusive jurisdiction for removal of the Executor. The question of the removal of Executor is inseparably interwoven with the removal of the trustees. Rather it is intermingled matter which relates to both Executor and the trustees. It appears difficult to remove an Executor and to ask the party to go to District Court for getting the trustees removed particularly, when this Court has reached the conclusion that the trustees are misusing the CC Trust property. The Managing trustee is disputing the rights of the properties, which have been vested in the trust by the founder Trustee by executing a Will dated 21.1.1985, while the other trustee is occupying the same by alleging that the said properties are not owned by the trust and rather it was owned by somebody else.
In the judgment reported as In the Goods of Sarnath Sanval late of Banaras Madhu Sudan Bagchi v. Hrishikesh Sanyal and Ors. A.I.R. (36) 1949 Allahabad 93, it was held that after the Executor incharge of the estate administers estate, he ceases to be executor and becomes trustee for the benficiaries, although in this case, it was held that since the executor had ceased to be executor and had become mere trustee, therefore, the suit for removal of the trustee was maintainable under Section 71 of the Trusts Act. In this reported case, not only the function of the executor was over, but also the beneficiary was person specific. On that principle of law, this judgment is not applicable to the facts of the present case, because the function of the Executor are not yet over in this case. The executor is yet to start functioning. The executor is yet to consolidate the CC Trust properties for which the Will was executed and to utilize those properties for the purpose of the CC Trust created vide trust deed dated 18.1.1966. Moreover, the beneficiary under the trust deed is not a person specific. It is the general public. For those reasons, no person has a legal right to file the civil suit. For this purpose, this Court has to exercise the jurisdiction. The duties of the Executor as defined in this judgment, are yet to be performed by the Executor, while the trustees have also to come in for utilizing and managing the properties, for achieving the aims and objects of the CC Trust.
Reference was also made by the learned Counsel for the respondent to the judgment reported as Patel Vrajlal Bhagwandas v. Patel Jamnadas Tribhovandas and Ors. A.I.R. 1956 Surashtra 51. In this case also, it was held that trustees can be removed under Sections 73 and 74 of the Trusts Act. In the reported judgment, it was not a mixed question of removal or Executor and removal of Trustees. Rather neither the Executor was appointed nor there was any work for the Executor to do. It is clear from the following passage in this judgment:
This preliminary objection is well founded in law. In the first place the deceased in the will has not appointed the original four persons as executors, but as trustees of the estate and although the mention of a particular name does not matter, but the duties of the four persons appointed under the Will were principally those of a trustee as no debts were to be collected or legacies paid, but the estate was to be administered as a trust and the ultimate benefit was to go to charity which would take many years. So clearly there were no executors of the will but only trustees of the estate appointed by the will. And this is supported by the fact that in place of the three original trustees who are dead an application was made under Section 74, Trusts Act for appointment of new trustees in their place.
So the present parties are trustees and cannot be properly designated as executors although they have been referring to themselves as executors of the will. In this connection, I may refer to the following decision of the Allahabad High Court in "In the goods of Sarnath Sanyal A.I.R. 1949 All. 93 (A):
A person cannot become an executor or continue as such merely because he has been so described in a will. The duty of an executor is to execute the will and to administer the estate of the deceased. The duties of an administrator to whom letters of administration have been granted and the duties of an executor who has obtained probate of a will are much the same. The duties of an executor mainly are to collect, get in and administer the estate of the deceased and after this has been done, and the estate has been settled, his duties as executor are finished and if he is required to continue to be in charge of the property for the benefit of certain beneficiaries, he ceases to be an executor and becomes a trustee of the property. The duties of an executor and a trustee are quite different. When after the estate has been administered, the executor becomes a trustee of the property for the benefit of the beneficiaries, an application for his removal under Section 301 is not maintainable.
These cases are however, distinguishable from the facts of the present case. In the reported cases the duties of the Executors were over, and the removal of the Trustees was sought by alleging them Executor. In the present case, however, the Executor is yet to take off, he is yet to consolidate the properties, he is yet to take accounts of the income of the properties, and after the properties are consolidated and taken control of, then these are to be vested in the trust for carrying out its aim and object. It is apparent therefore that an Executor has to perform the duties of trustee relating to the property already in the hand i.e. Kothi No. 31, Section 9-A, Chandigarh, while he is also to perform the duties of the Executor, qua other properties i.e. properties situated in Amritsar, as also the properties situated in District Hoshiarpur. Even according to the respondents, two properties i.e. Tawela situated in Katra Man Singh and Katra Karam Singh are the properties of the trust. Although he has alleged in a different manner but these properties are yet to be brought back to the trust. The Bagichi situated in Bagh Rama Nand, as vested in the trust by Will dated 21.1.1985 is yet to be brought back. The income of these properties is yet to be accounted for. Therefore, in the present case, the functions of the Executor and trustee are to go side by side.
As discussed, both the respondents who are the Managing Trustee and the trustee alone, are alleging facts contrary to the Will by which they were appointed as the trustees. Respondent No. 2 has occupied a part of the Trust property by alleging the same to be the property of someone else. These trustees have been misusing and exploiting their offices. It was specifically laid down in the trust deed dated 18.1.1966 that the number of trustee should not be less than 3 and should not exceed 7, but these two trustees, namely, Yadvinder Thakur and Om Parkash Aggarwal alone had been running the trust. They had been appointing other trustees of their own choice.
These trustees have not rendered the accounts so far about the properties of Amrit-sar. Even according to them, Tawela Katra Man Singh and Tawela Katra Karam Singh are the properties of the trust. They have also not cared to take care of the income of the properties or of the property of 22 kanals situated in village Kapat in District Hoshiar-pur. Therefore, they have rendered themselves liable for being removed from their offices. Therefore, their continuation as Managing Trustee/Trustee amounts to damaging the interest of the Trust, which this Court cannot afford.
It was also admitted by the respondents that the dispensary which was running during the lifetime of Seth Bhagirath Das had stopped functioning. Although the respondents have given some reasons, but if they had been dedicated to the sentiments of Seth Bhagirath Das, they could have avoided the disbanding of the dispensary when it was one of the aims and object of the CC Trust also.
Another submission was made by learned Counsel for the respondents that Shanti Bai-applicant has died. Uma Aggarwal has also not appeared and the applications cannot be perused by the Advocate alone. Reference was made to the judgment of this Court reported as Jinder Kaur and Ors. v. Sarabjit Singh Bajaj and Ors. 2003(2) R.C.R. (Civil) 152.
Controverting this submission, learned Counsel for the petitioner made reference to the provisions of Order 22, Rule 4(4) C.P.C., which read as under:
(4) The Court whenever, it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." It was submitted that the proceedings of this case were already complete and only the judgment was to be announced. Therefore, if the legal representatives of deceased applicant have not been brought on record, it has not abated, and this Court can pronounce the judgment even without impleading the legal representatives which would amount to mean that the judgment has been announced before the death took place.
Both these submissions have been considered. Even the judgment rendered by this Court in Jinder Kaur's case (supra) does not advance the case of the respondents. Para 8 of this judgment reads as under:
A reading of the above provisions would show that provisions of Order 22 Rule 4 of the Code of Civil Procedure has been amended by the Punjab and Haryana High Court to facilitate the decisions in the suit and to avoid the malady of abatement. The rules contemplate continuation of proceedings and pronouncement of the judgment as if the proceedings have culminated before the death took place. The said amendments are deeming provisions and have to be interpreted keeping in view the intention for amending such rule. Such rules were amended in view of the fact that large number of appeals were dismissed as abetted in view of the fact that the plaintiffs or defendants were not brought on record, may be either due to lack of knowledge about the death, or of the requirement that legal representatives are required to be impleaded. The consequences were grave and serious which frusted the claim of the parties. In this view of the matter, the rules were amended.
However, in the facts of the reported case, it was held by this Court that this provision laid down in Section 22(4) C.P.C. did not apply to the facts of that case. So far as the present case is concerned, there is nothing to deprive this case from being governed under Order 22 Rule 4(4) C.P.C. Moreover, it is a litigation for the benefit of general public, and it cannot be dismissed on technical grounds alone. Nor can the Court permit the respondents to perpetuate the breach of faith reposed in them by the Will dated 21.1.1985.
In view of the discussion held above, respondent No. 1 is removed from the office Executor, he is also removed from the office of Executive Trustee or the Managing trustee or the Administrative Trustee, by whatever name, he may be called. Similarly, respondent No. 2 Om Parkash Aggarwal, is also removed from the office of trustee of CC Trust.
Removal of the Executor was only one part of the proceedings, under Section 301 of the Act, 1925. His successor has also to be appointed. A deep thought was given as a person of rare talents is required to be appointed as Executor, who could translate the dreams of Seth. Bhagirath Das as laid down by him in the Will dated 21.1.1985, codicil dated 28.12.1988 and the trust deed dated 18.1.1966 into reality. Not only that, the person so appointed is required to be in Chandigarh, so that he may be able to devote more time, he may dedicate himself for putting the schemes into action. The choice of this Court fell on Hon'ble Mr. Justice G.C.Garg (retired), who in the opinion of this Court can respond appropriately to the sentiments of Seth Bhagirath Das as depicted in the aforesaid documents. He is therefore, appointed as the Executor under the Will. The duties of the Executor in the present case are multifarious. These have been narrated by the Hon'ble Division Bench in the Goods of Sarnath Sanyal's case (supra), as under:
The duty of an executor is to execute the will and to administer the estate of the deceased. The duties of an administrator to whom letters of administration have been granted and the duties of an executor who has obtained probate of a will are much the same and Section 291, Succession Act, gives some clue as to what such duties are. Under that section every person to whom any grant of letters of administration is committed is required to give a bond with one or more sureties, "engaging for the due collection, getting in and administering the estate of the deceased." Thus the duties of an executor mainly are to collect, get in and administer the estate of the deceased and after this has been done and the estate has been settled his duties as executor are finished and if he is required to continue -to be in charge of the property for the benefit of certain beneficiaries he ceased to be an executor and becomes a trustee of the property." The Executor shall perform the various jobs. He is to consolidate the properties detailed in the Will, and place the same at the disposal of Champawati Charitable Trust. He will be at liberty to take all possible legal steps for consolidating the properties situated in Amritsar, as also the land situated in village Kapat, district Hoshiarpur, as detailed in the Will dated 21.1.1985. He is also authorized to take the accounts in accordance with law, from all the persons concerned, who are occupying these properties.
Hon'ble Mr. Justice G.C. Garg (retired), is also appointed as the Executive Trustee of Champawati Charitable Trust. Since, as per the terms of the trust deed dated 18.1.1966, minimum 3 trustees are required to make it functional, therefore, Sh. M.S.Lobana, District & Sessions Judge (Retd.), now practicing as an Advocate in this Court and Sh. N.S.Saiii, Additional District & Sessions Judge (Retd.) resident of House No. 599, Phase 111, S.A.S. Nagar, Mohali, are appointed as the other trustees. All the three will constitute Board of trustees with Justice G.C. Garg (Retd.) as the Managing Trustee. They may nominate more trustees but not more than 7.
So far as Kothi No. 31, Sector 9-A, Chandigarh is concerned, that is already under the control of this Court. Henceforth, it would be managed by the Board of trustees. The tenant in the said house would be answerable to the Board of trustees, who may be at liberty to enhance the rent or to change the tenant, as the Board of Trustees may deem it best in the interest of tine trust. The tenant is directed to abide by the command of the Board of Trustees. Similarly, the occupants of the property at Amritsar would also be answerable to the Executor of the Will and the Executor would be at liberty to call for the accounts and institute legal or executional proceedings, if so required for getting the properties vacated or for enhancing the rent or for any other purpose in accordance with the terms of the Will and of the trust deed.
The Executor would also be entitled to call for the accounts from the respondents and to collect the money and deposit the same in the account of the trust. The Board of trustees would also be authorized to open bank accounts in the name of the trust, and it would be operated jointly by the Managing Trustee, coupled with one more Trustee. Although the services rendered by the Executor-cum-Managing Trustee would be invaluable and it would not be possible to assess his services in terms of money, but still he would be paid a sum of Rs. 20,000/- per month as honorarium. The other trustees would be entitled to claim Rs. 2,000/- per meeting for attending the same. They would also be entitled to claim actual expense spent on any matter in connection with the implementation of the schemes of the trust.
However, regular accounts would be maintained and got audited/inspected from the Chartered Accountant and the returns would" be filed in this Court within two months from the end of each financial year. The Board would also be at liberty to appoint the secretarial staff for maintaining the accounts or for maintaining the record relating to resolutions of the Board of trustee etc. The expenditure so incurred, would be accounted for properly and it would be subject to approval by the Board of trustees.
The trustees would be at liberty to deal with the property of the Trust in the best interests of the trust, but it shall not be sold without the prior permission of the Court. If the Board of Trustees or the Executor-cum-Managing Trustee are in doubt on any matter they will be entitled to seek clarification/guidance from this Court.
In brief, the conclusions are as under:
1. Yadvinder Thakur-respondent No. 1 is removed from the office of Executor as also from the office of the Managing Trustee.
2. Om Parkash Aggarwal-respondent No. 2 is removed from the office of trustee.
3. The appointment of all other trustees by respondent No. 1 and 2 is declared illegal.
4. Respondents No. 1 and 2 shall hand over the properties of the trust to the successor Executor for being managed by the trustee.
5. They shall render accounts of these properties to the successor Executor and the trustees.
6. The respondents will even be prosecuted if they defaulted in rendering accounts which remedy will be open to the successor Executor.
7. The tenant in House No. 31, Sector 9-A, Chandigarh (property of the Trust) shall be answerable and accountable to the Board of Trustees.
8. The occupants of land measuring 22 kanals situated in village Kapat, District Hoshiarpur, shall be answerable to the successor Executor-cum-Board of Trustees and will render account of income to them.
9. Hon'ble Mr. Justice G.C.Garg, (retired) is appointed as successor Executor, as also the Managing Trustee.
10. Sh. M.S. Lobana, District & Sessions Judge (Retd.) now practicing as an Advocate in this Court and Sh. N.S.Saini, Additional District & Sessions Judge (Retd resident of House No. 599, Phase III, S.A.S. Nagar, Mohali, are appointed as the trustees, so as to make the Board of trustees functional, as minimum 3 trustees are required.
11. The Executor shall consolidate the properties of the trust and place it at the disposal of the Board of trustees for being managed for the purpose for which the trust is created.
12. He shall also take the accounts of the income of these properties and account for the same to the Board of trustees.
13. The various items of movable property etc. shall also be consolidated in the SB account of the Trust.
14. The Board of trustee shall manage and govern the properties of the trust in commensurate with the sentiments of the testator of the Will dated 21.1.1985 and founder of the CC Trust created by trust deed dated 18.1.1966 and in accordance with the contents of these documents. They shall maintain full accounts and the Executor-cum-Managing Trustee would be paid Rs. 20,000/- per month as honorarium, while the trustee would be paid Rs. 2,000/- per meeting. All of them will also be entitled to actual expenses spent to achieve the aim and objects of the Will and of the trust deed.
15. Proper accounts will be maintained and be filed in this Court within two months after the expiry of each financial year.
16. The properties shall be managed by the Board of trustee in parentally manner. However, it will not be sold without prior permission of the Court.
17. The successor-Executor or the Board of Trustees will be free to seek any clarification from this Court.
18. Henceforth, the Bank accounts in the name of Champawati Charitable Trust or in any other name relating to this case, operated by this Court through its Registrar, shall now be operated jointly by the Executor-cum-Managing Trustee and one of the two Trustees.
19. Accordingly, CM. No. 2565-CIl of 1993 and CM. No. 1357-CII of 2001 are accepted in terms stated above. All other misc. applications stand disposed of in terms of the above orders.
Copies of this judgment, alongwith a copy of the Will, copy of Codicil, copy of the trust deed, copy of the supplementary trust deed, be sent to the successor Executor and to all the members of the trust and a copy of this order be sent to the Registrar of this Court and to the concerned Bank authorities, for necessary compliance.