IMPORTANT POINT
Where there was no material on record from which it could be concluded that the disposition of life estate in favour of wife in the Will of her husband was in lieu of or in recognition of her right of maintenance, she had only a limited right, namely, life interest in the suit property, therefore, she could not have created a long term lease in the property.

Headnote:Hindu Succession Act, 1956 — Sections 14(1), (2) and 30 — Property of a female Hindu — Scope and ambit of sub-section (2) of Section 14 of the Act — Restricted life estate granted to the female Hindu could not be enlarged into an absolute estate — Testator agreed to lease the whole of terrace of the existing construction of the suit property to enable appellant to construct at his cost an additional floor — Demise was for a period of twenty one years with a renewal clause — Testator executed his last Will and Testament under which, he appointed his wife ‘R’, as Executrix and on her death, the appellant and one ‘SKD’ as Executors — Under the Will, she was given only a life interest in the suit property — Will further provided that on death of wife of testator, the Executors would execute the Will and realise and collect the rents, issues and profits arising out of the suit property and distribute the same in the manner as prescribed in the Will — Testator died on 26-9-1991 leaving behind his wife as his sole heir — ‘R’ executed a lease deed in respect of suit, property granting certain rights to appellant — ‘R’ died on 27-11-1998 — Appellant produced a Will claiming that he had been granted certain rights under the Will — Respondent filed an application praying for discharge of Joint Executors, to pay to appellant the outstanding rent, issues and profits in respect of the suit property and also to hand over its possession — Whether High Court was justified in discharging the Joint Executors and appointing an Administrator pendente lite — (Yes) — Indian Succession Act, 1925 — Section 317.
       Held : Turning to the facts of the present case, we notice that not only was there no material to indicate to the High Court that the property was given to Reba Mitra in lieu of her right of maintenance, but such an argument was not even advanced before the Court.(Para 18)
       The High Court then noticed Section 30 of the Act which empowers a Hindu possessed of any property to execute a Will; and confer a grant in favour of another either absolutely or to a limited extent; even to the extent of depriving his natural heirs from enjoying the estate left by him. We think that the High Court was right in taking this view. The High Court also took notice of the fact that there was no material on record from which it could be concluded that the disposition of life estate in favour of Reba Mitra in the Will of her husband, Kamal Kumar Mitra, was in lieu of or in recognition of her right of maintenance. Consequently, we agree with the finding of the High Court that Reba Mitra had only a limited right, namely, life interest in the Suit Property. Thus, she could not have created a long-term lease as she has purportedly done.(Para 18)
       From the factual circumstances, while the High Courts appointment of an Administrator pendente lite appears to be correct, we need not finally decide as to whether the appellant was unfit to act as an executor of Kamal Kumar Mitras Will. We are cognizant of the fact that the High Court is still seized of the matter and the order passed is only an interlocutory order based on prima facie considerations. In our view, there was sufficient justification for the High Court to make the order for appointment of the Administrator pendente lite to protect the estate during the pendency of the petition before it. The question as to whether the appellant as the executor has breached his fiduciary duty, can only be determined at the end of the trial. In our view, therefore, the impugned judgment of the High Court is not liable to be interfered with. (Para 20)

JUDGMENT

Srikrishna, J. — This appeal impugns a judgment of the Division Bench of the Calcutta High Court dated 28.6.2000. That an appeal was itself carried against an order of the learned Single Judge dated 16.2.2000 in Testamentary Jurisdiction allowing an application for discharge of the Joint Executors in respect of the estate of one Reba Mitra and appointing an Administrator pendente lite.

Facts

2. Phanindra Nath Mitra had two sons, Prabhat Kumar Mitra and Kamal Kumar Mitra, and a daughter, Suhasini Bose. The genealogical tree of the family is as under:

Phanindra Nath Mitra

Prabhat Kr. Mitra (Son) Kamal Kr. Mitra (Son) Suhasini Bose (Daughter)

(Latika Deb-Sabita Bose) (Reba Mitra Wife)

Daughters (Issueless)

Nieces

Latika DebSabita Bose (Deceased)

R 5

(Soumi Mazumdar & Shantanu Bose)

R 1 R 2

3. Kamal Kumar Mitra entered into an agreement dated 22.5.1988 with T.K. Ramasubramanyan (father of Sharad Subrmanyan, hereinafter "the appellant") by which a tenancy was created in respect of the ground floor flat of certain premises situated at 13/1, Promothesh Barua Sarani, Kolkata (hereinafter "the Suit Property") at a monthly rental of Rs. 5,000/-. A further agreement dated 1.11.1988 was made between Kamal Kumar Mitra and the present appellant-Sharad Subramanyan for providing to the tenants the fittings and fixtures in the ground floor at a monthly charge of Rs. 750/-. On 24.2.1989, there was a third agreement between Kamal Kumar Mitra and the appellant-Sharad Subramanyan and a fourth on 28.4.1989, by which the former agreed to lease the whole of terrace of the existing construction of the Suit Property to enable the appellant to construct at his cost an additional floor. The demise was for a period of twenty-one years commencing from 1.4.1989 with a renewal clause for a further period of twenty-one years after expiry of every period of twenty-one years. Though the agreement created a lease for such a long period with a renewal clause, it was not registered.

4. On 19.3.1991, Kamal Kumar Mitra executed his last Will and Testament under which, he appointed Reba Mitra, his wife, as Executrix and on her death, the appellant and one Subir Kumar Deb as Executors. Under the Will, the Testator had given all his movable properties to Reba Mitra, but she was given only a life interest in the Suit Property. The Will further provided that on the death of the said Reba Mitra, the Executors would execute the Will and realise and collect the rents, issues and profits arising out of the Suit Property and distribute the same in the manner as prescribed in the Will. Kamal Kumar Mitra died on 26.9.1991 leaving behind his wife, Reba Mitra, as his sole heir.

5. On 21.10.1992, Reba Mitra executed a lease deed in respect of the Suit Property granting certain rights to the appellant. Reba Mitra died on 27.11.1998. The appellant produced a Will dated 21.10.1992 claiming that he had been granted certain rights under the Will. A second Will dated 14.5.1993 and a third Will dated 14.12.1997 were produced by the parties each of whom claimed that the Will in his/her favour was the genuine Will.

6. On 17.8.2001, Reba Mitras Will dated 14.12.1997 was granted probate by the District Judge, Alipore. The appellant had been appointed as one of the Executors under the Will of Kamal Kumar Mitra. Soumi Mazumdar and Shantanu Bose (Respondent Nos. 1 and 2, respectively), the legatees under the said Will, by their letter dated 16.4.1999, called upon the appellant and Subir Kumar Deb, Joint Executors, to give assent to the legacy under the Will of Reba Mitra, hand over vacant possession of the first floor of the Suit Property and also distribute all the income of the estate in terms of the Will of the late Kamal Kumar Mitra. On 30.4.1999, Subir Kumar Deb addressed a letter stating that he was not in possession of any legal document and, therefore, he was unable to execute the estate according to the Will of Kam

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2006 Supreme(SC) 417

Cases Referred (4)