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Whether executor of will can be removed if beneficiaries have lost confidence in him?


Writ Petition No. 7222 of 2015

Decided On: 02.02.2018

Subhada Mithilesh and Ors.
Prabhakar Deolankar and Ors.

Hon’ble Judges/Coram: Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(2) MHLJ 211

1. Heard learned counsel for the petitioners, learned counsel for respondent No. 1, learned counsel for respondent No. 34 and respondent No. 32 in person.

2. Rule.

3. Rule is made returnable forthwith with the consent of parties to this petition.

4. By this Writ Petition, filed under Article 227 of the Constitution of India, the petitioners are challenging the order dated 04.01.2014, passed below Exh. 276, by 8th Joint Civil Judge Senior Division, Pune, in Misc. Application No. 21 of 2008.

5. Application at Exh. 276 was filed by the petitioners herein, under Section 247 of the Indian Succession Act, 1925, for appointment of Administrator pendente lite, in the Miscellaneous Civil Application No. 21 of 2008, which was filed for revocation of the will dated 26th April, 2006, executed by the father of the petitioners namely Dr. N.G. Dastane. Respondent No. 32 is the daughter and respondent No. 33 is the wife of late Dr. Dastane and both these respondents are supporting the case of the petitioners.

6. At the outset itself, it has to be stated that this writ petition has a chequered history of litigation. Several proceedings instituted by the petitioners and respondent No. 32 are pending in the Court. Some of them are disposed of. It appears that to some extent, this Writ Petition has also become infructuous in view of subsequent orders passed by this Court, in other proceedings after fling of this writ petition. However, as learned counsel for petitioners and respondent No. 32 are still keen to argue this writ petition on merits, I have heard them at length. I have also perused the written Notes of Arguments filed by Respondent Nos. 32 and 33 and the earlier orders passed in these proceedings and on the basis of the same, at the stage of admission itself, this writ petition is being decided finally.

7. The facts of the writ petition are to the effect that Dr. N.G. Dastane, died on 26.04.2006, leaving behind him the petitioners and respondent No. 32 as his daughters, and respondent No. 33 his wife. He has also left behind his last Will dated 25.4.2006, which was executed just a day before his death. By the said will, he has appointed respondent No. 1 as the Executor of the will. Respondent No. 1 had filed Misc. Application No. 359 of 2006, before the Court of Civil Judge Senior Division, Pune, for obtaining the probate of the said will and on the basis of consent given by the petitioners and respondent Nos. 32 and 33, the members of ‘Dastane Family’, the Civil Court, allowed the said Application on 18.6.2007, directing respondent No. 1 to furnish Indemnity Bond and Surety Bond of like amounts. Accordingly respondent No. 1 asked the petitioners and respondent Nos. 32 and 33 to furnish surety bonds which they refused to give, as according to them, they being from the family of late Dastane and as his legal heirs, they were not required to give the same. The surety bonds were, however, furnished by respondent No. 2 and 6 and after obtaining necessary order from the Court, the probate was granted in the name of respondent No. 1 on 14.12.2007.

8. At this stage, it may be stated that on 12.6.2006 itself, respondent No. 1 had, with the consent of the petitioners and respondent Nos. 32 and 33 viz., the members of Dastane Family, executed a Power of Attorney in favour of respondent No. 34 METCO, for advice and assistance in the execution of Dr. Dastane’s Will. Thereafter on 18.6.2007, in pursuance of the probate granted on 18.6.2007, the immovable assets were distributed in terms of the Will. On 13th July, 2007 the jewellery from Dr. Dastane’s Locker was given to respondent No. 33 Sucheta as widow. Except for cash or monetary bequests, all other bequests under the Will, namely the jewellery and immovable properties, were distributed and received in accordance with the terms of that will.

11. On 29th November 2012, the ad-interim injunction granted on 5.1.2008, came to be vacated by the Court of Civil Judge S.D. As a result thereof, the cheques for the cash bequests were issued to the beneficiaries by mid December, 2012, as per the probate. The petitioners, Respondent No. 32 and 33 were also asked to execute the surety bonds, which they refused to do so. The petitioners then moved an application before the Court to continue the previous order of ad-interim injunction and said application came to be allowed on 21st December, 2012. However, in the meanwhile cheques issued to the be beneficiaries were already being processed through clearing and these cheques, in fact were cleared on 24th December, 2012.

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16. As stated above, the petitioners have filed this application at Exh. 276 before the trial Court in January 2013, mainly on the ground that though respondent Nos. 1 and 34 were aware of the fact that after rejection of the Application for interim injunction at Exh. 5 in M.A. No. 21 of 2008, the petitioners had preferred Misc. Civil Appeal No. 519 of 2012, against the said order and order of ad-interim injunction was passed therein on 21.12.2012, they have made payments to the alleged beneficiaries from the estate of the deceased. It was submitted that in the absence of Letter of Administration in the name of respondent No. 34, he has no locus standi to bequeath the said assets. It was alleged that respondent Nos. 1 and 34 were aware that the matter was hotly contested by the petitioners and appeal was likely to be filed against rejection of application for interim injunction at Exh. 5. Hence, they should have, in good conscious, not distributed the bequests to the alleged beneficiaries, at least, before the appeal period was over. This conduct on their part was only with an intention to have benefit of the Will, causing severe damage to the estate of the deceased. The allegation was also made that respondent Nos. 1 and 34 are not acting in proper manner so as to get the maximum benefit for the estate. They have not submitted to the Court the accounts of the amount lying in their custody, as required by law. The petitioners also recently came to know that amount lying in the hands of respondent No. 34 is considerably lower than reasonably expected. Moreover, the amounts which were required to be invested for long term were invested for very short period. Therefore, the said amounts could not fetch the interest which ought to have been fetched.

21. At the cost of repetition, I have to state that this writ petition has now become more or less infructuous, in view of subsequent orders passed in various proceedings taken by the petitioners and respondent No. 32. The main proceeding which totally frustrates the present writ petition, is Misc. Petition (L) No. 98 of 2015 filed by respondent Nos. 32 and 33 in this Court, under Section 301 of the Indian Succession Act 1925, for removal of respondent No. 1 as the Executor of the Will. All these allegations about non payment of income tax for the years 2005 to 2007, not rendering of the accounts or bequeathing the assets after vacation of order of ad-interim injunction, were also raised in the said Writ Petition. The said petition was contested by both parties and thereafter vide detailed order dated 17th February, 2016, the said petition came to be dismissed by this Court (Coram: G.S. Patel, J.).

39. There is also the question of the consequences of Dastane Family’s own actions. This is not immaterial or inconsequential. First, at least one, if not both of the Petitioners have received some testamentary bequests. I must note also that apart from anything else the 1st petitioner, Abha, has also received benefits under the Will that now she contests and the Executor of which, Deolankar, she wants to be removed. One of the bequests in the Will is that Abha be provided with expenses for her travel to and from the United States. These expenses have admittedly been provided to her periodically. None of these expenses could possibly been reimbursed but for the provisions in the Will. This is not a matter that can be overlooked. None of this can be disputed. I do not see how the Petitioners can assail either the probated Will or seek removal of an executor appointed under that Will without first committing to bringing back all those testamentary benefits. If the present Will fails, there is no assurance that the previous one will succeed. If that happens, and the devolution is ultimately on intestacy, neither of the Petitioners can claim exclusivity to the legacies that they have taken. Second, I have earlier noted that there are inherent confects in their stands. There seems to be at least one pending application for distribution of the monetary legacies (Writ Petition No. 3768 of 2015) and its underlying applications: but without an insistence on an indemnity or a discharge. That application posits an acceptance of the current Will and, therefore, an acceptance of Deolankar as the executor. Finally, there is the question with which I began, viz, the confect between the prayers in this Miscellaneous Application and the application for revocation. These are not just inconsistent. They are mutually destructive.

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31. It may also be stated that subsequent to the order passed by this Court on 17.2.2016, in the above said proceeding, there are some other orders passed by this Court also, which have direct bearing on the outcome of this Writ Petition. The important order, having bearing on this petition is the one dated 28th September 2016 passed in Writ Petition No. 3768 of 2015, preferred by the Petitioners herein, challenging the order passed by Civil Judge Senior Division dated 24.7.2014, and raising the same grievance that respondent No. 1, who was appointed as Executor of the property did not give proper response and was avoiding to work as Executor. The application was also taken out in the said proceeding directing respondent Nos. 1 to 35 to hand over the properties. As the said application was rejected by an order dated 24.07.2014 by trial Court, the Writ Petition bearing No. 3768 of 2015 was preferred. When the this Writ Petition came to up on board on 29.08.2016, the following order was passed by this Court (Coram: N.M. Jamdar, J.)

“Learned counsel for respondent No. 1 states that the executor is ready and willing to hand over the entire bequeath to the Petitioners and respondent Nos. 33 and 34, subject to furnishing the security bonds/surety pending the disposal of the main matter. He submits that, furnishing of such security will be without prejudice to the rights and contentions of the parties.

2. Learned counsel for the Petitioners as well as Respondent Nos. 33 and 34 seek time to consider the proposal given by the learned counsel for Respondent No. 1.

3. Stand over to 21st September, 2016 under the caption, “for Directions”.

32. As learned counsel for petitioners as well as respondent Nos. 33 and 34 had taken time to consider the said proposal, matter was adjourned to 21st September, 2014 and thereafter on 28th September, 2016, learned counsel for respondent No. 1 made a statement that respondent No. 1 is willing to hand over bequeath and residue on condition that the petitioners and respondent No. 33 were agreeable to the suggestion and hence it was held that:-

“since the Executor is ready and willing to hand over entire bequeath and residue subject to furnishing bonds and security, the impugned order, does not survive which did not permit the petitioners to take this course of action”.
33. Thereafter in view of the correspondence exchanged between the petitioners and respondent No. 1 which was placed on record, learned counsel for respondent No. 1 expressed an apprehension that being Executor, respondent No. 1 may not be able to carry out certain functions and he may have limitations, however, the learned Civil Judge can pass appropriate orders. Thereafter there was a consensus between the parties as regards handing over the bequeath and residue and the only question then remained before this Court was, as to working out the modalities.

34. Accordingly, in paragraph No. 7 of the said order, this Court (Coram: N.M. Jamdar, J.) observed that:-

“Respondent No. 1 will hand over the entire bequeath and the residue to the custody of the learned Civil Judge and learned Judge will thereafter hand over the same to the petitioners and respondent Nos. 33 and 34, upon such security/surety bond as the learned Civil Judge thinks appropriate”.
35. In view of this arrangement, the said writ petition was disposed of directing respondent No. 1 to hand over entire bequeath and residue to the custody of the learned Civil Judge within a period of three weeks and thereafter the learned Civil Judge was directed to take a decision and fix the modalities within three weeks thereafter.

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36. It is pertinent to note that in view of this order, the learned Civil Judge Senior Division Pune, has vide order dated 9.11.2016, passed in Misc. Application No. 21 of 2008, fixed the modalities, distributing and handing over custody of the bequeath and residue and those modalities are mentioned in paragraph Nos. 9 (a) to (y) of his order. It was also directed that these modalities shall be followed by the parties strictly.

37. Thus, now whatever was to be done about the estate or bequeath, is already done and nothing remains, as such in the writ petition for appointment of Administrator pendente lite. If the bequeath and residue is already disposed of, no question arises of appointing any Administrator pendente lite.

38. The submission advanced by respondent No. 32 is that despite such order passed by this Court and the modalities worked out by the trial Court, petitioners and respondent Nos. 32 and 33 the legal heirs are not able to receive anything but just 1% of the amounts, presently due to them and the estate continues to remain in the hands of Nazir since last one and half years and hence needs an Administrator. However, in this respect appropriate remedy for the petitioners and respondent No. 32 would be to approach the trial Court for implementation of those modalities, but on the count of non-execution of those modalities, they cannot seek appointment of Administrator pendente lite. Moreover, the written notes of arguments and submission of respondent No. 32 shows that she has already filed application for review of the said order for relaxation of the condition to furnish solvency or surety bonds as per order dated 8.1.2018. Accordingly said condition is also relaxed by the trial Court. In my considered opinion, therefore, there remains no substance in this contention also.

39. At this stage, it may also be stated that respondent No. 32 herein, has also filed Application at Exh. 37 in M.A. No. 21 of 2008 for her appointment as Administrator pendente lite under Section 247 of the Indian Succession Act, 1925. It was filed again on the same allegations as discussed above. Her application was also considered by the trial Court at length and thereafter by detailed order, the said application also came to be rejected on 11.10.2017, categorically observing in paragraph No. 13 that,

“unless and until at the first instance, Executor is removed by the competent Court under the law under Section 301 of the Act, the question of appointing Administrator pendente lite would not arise. However, in the present case, as application for removal of the Executor is already dismissed by this Court in Miscellaneous Petition (L) No. 98 of 2015 by order dated 17th February, 206, such prayer for appointment of respondent No. 32 as Administrator pendente lite cannot be considered”.
40. Thus, it can be seen that petitioners and respondent No. 32 have kept on fling separate proceedings seeking the same relief and at each and every available forum and they have become unsuccessful. This conduct on their part shows that they do not want respondent No. 1 the Executor or respondent No. 34 METCO to function smoothly and then they are raising grievances about their non functioning and praying for their removal. As their grievances are dealt with at length and found to be without substance and as even the residue and bequeath is also distributed, as per the modalities worked out by the trial Court in Misc. Application No. 21 of 2008, therefore, there is absolutely nothing remains in this petition.

41. This petition has, thus, not only becomes infructuous but it is also without merits, and hence, this Court has to dismiss the same.

42. Writ Petition accordingly stands dismissed.

43. Rule discharged in above terms.

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