CIVIL APPEAL 643 of 1966 on 23 November 2000

OD – 13

ORDER SHEET

IN THE HIGH COURT AT CALCUTTA TESTAMENTARY & INTESTATE JURISDICTION ORIGINAL SIDE

IA NO. GA/3/2021

In PLA/161/1995

PRABIR KUMAR DAS

Vs MALOTI DAS AND ANR.

BEFORE:

THE HON’BLE JUSTICE SUGATO MAJUMDAR Date: 6[th] March, 2025

Appearance: Mr. Sudip Deb, Sr. Adv. Mr. Bimalendu Das, Adv. Ms. Shomrita Das, Adv. … for the Applicant Mr. Saunak Ghosh, Adv. Ms. Neelm Gupta, Adv. … for the Administrator The Court: GA 3 of 2021 is filed by one Maloti Das and Pradip Kumar Das, being residuary legatees under the last will and testament of Sourindra Mohan Seal, since deceased, praying, inter alia, for revocation of grant of letters of administration, de-bonis-non in favour of Prabir Kumar Das on 23/11/2000 and issued on 13/12/2000, in respect of the un-administered estate and properties of the testator Sourindra Mohan Seal.

The testator Sourindra Mohan Seal executed his will and testament on 14/02/1927. The testator died on 22/08/1928. Eight executors were appointed out of which Smt. Chandi Dassi, widow of the testator and Jatindra Mohan Seal applied for probate of the will. Probate was granted on 13/08/1929. Smt. Chandi Dassi, the executrix and the said Jitendra Mohn Seal, the executor expired on 25/11/1956 and 17/09/1958 respectively without completing the administration of the estate.

Under the will Smt. Chandi Dassi, wife of the testator was appointed as the first and shebait of the deity. On her death, Mritunjoy Bhar and Jatindra Mohan Seal were to be the joint shebaits of the deity. After death of the Jatindra Mohan seal and Smt. Chandi Dassi, the surviving shebait Mritunjoy Bhar on 05/04/1966 took out Originating Summons in OS No. 643 of 1966 for determination, inter alia, on the question that the said Mritunjoy Bhar was the only shebait and that he is otherwise entitled to administer the estate of the deceased. Notice of the said Originating Summons Suit was served upon Prasad Nath Das, son of the daughter of Jatindra Mohan Seal and Smt. Pratima Dey, daughter of the predeceased daughter of the said Jatindra Mohan Seal.

The said OS no. 643 of 1966 was finally disposed of in terms of Order dated 09/08/1966 wherein, on consent, it was declared that Prasad Nath Das and Smt. Pratima Dey shall be joint shebaits in respect of pala of Soumendra Nath Seal. It was also in the decree that the applicant Mritunjoy Bhar and his wife Smt. Jayabati Bhar, the said Prasad Das and his wife as well as Smt. Pratima Dey would be joint administrators in respect of the estate referred to in the said will of the testator Sourindra Mohan Seal and they would administer the estate in accordance with the provisions of the will.

The said Mrintunjoy Bhar filed another suit in this Court which was registered as Suit No. 1932 of 1967 ascertaining his claim as the sole beneficiary of various movable and immovable properties of the estate of the deceased. Receivers were appointed in the said suit. The suit was dismissed for non-prosecution in terms of an Order dated 01/12/1971 with the direction that receiver would continue with liberty to any of the parties interested to apply for discharge.

The consent Order dated 09/08/1966 passed in OS 643 of 1966 was challenged by the present Petitioner No. 1 in Suit No. 71 of 1972 but the same was eventually dismissed for non-prosecution.

On 03/05/1974, Mrintunjoy Bhar applied for a grant of letters of administration or probate of the will of the deceased in his favour. The said proceeding was numbered as matter no. 67 of 1974. The said Mrintunjoy Bhar expired on 01/10/1974. Thereafter, on 18/05/1976, Prasad Das, the husband of the applicant no. 1 and sons of the applicant no. 2 and Prabir Das obtained an order in the said in matter no. 77 of 1976 for grant of letters of administration, de-bonis-non in his favour in respect of the un-administered estate of the deceased Sourindra Mohan Seal since the applicant was unable to furnish security.

It is contended that several persons including the person named as executors under the original will of Sourindra Mohan Seal as well as the receiver appointed by the Court tried to administer the properties of late Sourindra Mohan Seal. However, Petitioners have been able to ascertain that none was able to make inventory of such properties or filed proper accounts and give assent to the legatees in respect of the properties.

The Petitioners are able to ascertain that all the properties, save and except, the properties at 1/4 Beadon Row and 11/2 Gulu Ostagar Lane are still an un-administered and part of the estate of late Sourindra Mohan Seal. The present administrator de-bonis-non, namely, Prabir Kumar Das approached the Petitioners with proposal to apply for grant of letters of administration, de-bonis-non for fruitful and effective administration of the properties of late Sourindra Mohan Seal.

The present administrator de-bonis-non failed to discharge his duties as such and also failed to administer the estate of the testator. It is further alleged that the said administrator de-bonis-non furnished untrue and incorrect statement of accounts.

In the circumstances and in the conspectus of the facts, pleaded therein, it is prayed that an order may be passed revoking the grant of letters of administration, de-bonis-non in favour of Prabir Kumar Das dated 23/11/2000 and 13/12/2000; letter of administration, de-bonis-non be granted to the Petitioner; issue of special citations and other prayers.

Affidavit-in-Opposition was filed by Prabir Kumar Das, refuting the allegations raised in the application. It is contended that the application is speculative in nature to cover up criminal and illegal activities of the applicants in respect of the properties comprised in the estate of late Sourindra Mohan Seal which is under management of the administration of this High Court. It is further contended that the present applicants have engaged themselves in criminal and illegal activities; the Petitioner no. 2 Prabir Kumar Das has made brazen attempt to pass off the properties comprised in the residuary estate of the deceased as his personal properties. The applicants in connivance with local ruffians dispossessed one widowed tenant of the estate and forcefully as well as criminally trespassed into the same situated at premises no. 43/1B, Ram Dulal Sarkar Street, Kolkata – 700006 on 28/09/1918, allowing the said vacated space to be occupied by a trespasser. An illegal construction was being made in the said premises by the Petitioner no. 2. The administrator de-bonis-non Prabir Kumar Das filed a writ petition in this court wherein as well as in two appeals, demolition order was passed. Petitioner no. 2 vehemently contended that PLA no. 161 of 1995 was dismissed and the letters of administration, de-bonis-non got extinguished. In terms of Order dated 18/09/1919, a Co-ordinate Bench held that the letters of administration, de-bonis-non, is still existing. In nutshell, it is contended that the Petitioner no. 2 indulged himself in several unsuccessful litigations which are the genesis of instant application.

The executor, de-bonis-non, specifically denied the allegations that he failed to complete the administration of the estate or to make inventory of the same. It is stated that after grant of letters of administration, de-bonis-non he filed in this Court proper inventory of estate; he is still continuing to file annual accounts and estate every year, the last of which was filed on 18[th] July, 2022. It is contended that at the time of grant of letter of administration the following immovable properties continued to form part of the estate of the testator, namely:- a)Premises no. 43/1B, Ram Dulal Sarkar Street, Police Station: Girish Park, Kolkata – 700006. Park, Kolkata – 700006.

b)Premises no. 179B, Manicktala Main Road, Police Station: Phoolbagan, Kolkata – 700054. Phoolbagan, Kolkata – 700054.

c)Pemises nos. 208/2A to 208/2H, Bidhan Sarani, Police Station: Girish Park, Kolkata – 700006. Girish Park, Kolkata – 700006.

d)Premises no. 6/1, Gulu Ostagar Lane, Police Station: Burtolla, Kolkata – 700006. Kolkata – 700006.

e)Garden house on the land situate at Mechuater, Post Office and Police Station: Madhupur, Jharkhand 815353 (formerly Bihar) together with adjoining land known as “Lalit Kunja”. Station: Madhupur, Jharkhand 815353 (formerly Bihar) together with adjoining land known as “Lalit Kunja”.

f)Premises nos. D-38/136 and D-38/137, Hauz Katara, Banspathak, Bhandari Galli, Post Office and Police Station: Dashaswamedh, Varanasi – 221001 commonly known as “Bhajan Kutir”. Bhandari Galli, Post Office and Police Station: Dashaswamedh, Varanasi – 221001 commonly known as “Bhajan Kutir”.

Out of the said properties, a property at premises no. 43/1 B, Ram Dulal Sarkar Street, Kolkata- 700006 is a debutter property having been bequeathed in favour of the family deity. Various provisions of the will are referred to. It is further contended that the applicant no. 2 is trying to criminally and forceably oust the Petitioner from the premises no. 43/1 A, Ram Dulal Sarkar Street, Kolkata – 700006 since September 2009.

In nutshell, it is contended that the instant application is not tenable and is liable to be dismissed.

Supplementary affidavit was filed by the applicants. It is contended therein that one of the properties under the will is at Madhupur which is a garden house known as Lalit Kunja, being known as holding no. 76, ward no. 11, Municipality of Madhupur, District-Deogharh. The said property comprises an area of three bighasfour kothas and seven dhurs. The testator had also half share of the oil mill named in the will. In terms of the will the testator permitted executors, executrix and trustees to sell or dispose of the property of Madhupur. Presently only three persons, namely,

the applicants as well as Maloti Das, Prabir Kumar Das and Pradip Kumar Das are the heirs and beneficiaries of the entire estate of the deceased. Since Maloti Das and Pradip Kumar Das urgently require money, they expressed their desire to sell the property which the administrator, de-bonis-non denied. The applicants jointly have 2/3[rd] share in the property. Since the executor, de-bonis-non is not willing to sell out the property, the Petitioners being beneficiaries, intend to sell out the same and sought necessary direction from this Court in this regard.

Supplementary affidavit was opposed by filing affidavit-in-opposition by the administrator, de-bonis-non. It is contended in the supplementary affidavit-in-opposition that the supplementary affidavit is filed with respect of the different cause of action and the same has no nexus with the present matter. It is contended that the applicants are not owners since a legal title is on the administrator, de-bonis-non. It is further contended that the instant application and supplementary affidavit intends to divert the intention of the testator, necessary provisions of the will is referred to. According to the administrator, de-bonis-non, the prayer contained in the supplementary affidavit is not at all tenable.

Both the Learned Counsels filed their respective notes of arguments and I have heard the matter at length.

Supplementary affidavit is filed seeking for direction to allow the applicants to sell out the Madhupur properties. The present administrator, de-bonis-non is still holding his office. The will gave full and absolute authority to the executrix, executors and trustees to sell or dispose of Madhupur properties and also half share of the oil mill known as Akhoya Oil Mills. Though Mr. Dey argued that liberty is given to sell out the property located at Madhupur, authority to sell is given to the executors/executrix/trustees not to any of the beneficiaries. Nothing is contemplated in the will that the beneficiary would be able to sell out the property in absence of or in case of inaction of the administrator. The Learned Counsel for the administrator, de-bonis-non invited attention to the provision of will wherefrom it is conspicuous that the sale proceeds of the Madhupur properties and of the oil mill shall be invested in the government promissory notes or in purchase of immovable properties. Thus, according to the Learned Counsel for the administrator, de-bonis-non, there is a specific provision how to invest the sale proceeds. Even if the Madhupur property is sold out, the proceeds cannot be handed over to the Petitioners as that is contrary to the intention of the testator.

There is no cavil that the intention of the testator is of paramount interest and there is no scope to move an inch from the provision of a will whose probate has duly taken. Firstly, the Petitioners have failed to set out a proper ground for selling the Madhupur Property. Secondly, it is the administrator, de-bonis-non who can sell out the property only. Thirdly, the will provides that the property sale proceeds of the Madhupur property shall be invested either in purchase of immovable property or in Government promissory note. The proposed objects of sale of the Madhupur property, as propounded by the Petitioners are contrary to the provisions of the will. Therefore, the prayer contained in the supplementary affidavit is rejected. The Petitioners are not permitted to sell out the Madhupur properties.

Fix 18[th] March, 2025 for further hearing of GA 3 of 2021.

(SUGATO MAJUMDAR, J.)