Back
Bombay High Court
D.G. KARNIK
Vimla L. Rajani & Anr.
Vs
Asha Kanayalal Bajaj & Anr.
Decided On : 22/11/2011
The question whether a particular bequest is good or bad is not within the purview of the probate Court. The Division Bench affirmed the view taken by Single Bench of this Court in Rupali Mehta v. Tina Narinder Sain Mehta, 2006 (6) Mh LJ 786 : 2006 (6) Bom CR 778, that in a petition for probate, an order for injunction cannot be granted in relation to the property of the deceased. Issuing of a direction to the plaintiff to deposit the money in the Court is in the nature of mandatory injunction to deposit. Such a relief cannot be granted by a testamentary Court hearing a petition for grant of probate. Hence, prayer clause (b) in the motion for a direction to deposit the amount of the licence fee also cannot be granted.
Succession Act, 1925 - Section 224 - Power of testator - Section 224 of Act, not restricts, power of testator to appoint different executors for different parts of his property.
It is permissible for a person to make two or more distinct Wills or Codicils for different parts of his property. It is also permissible for him to appoint different executors for different properties under the different Wills or Codicils. It is also permissible for a person to appoint two or more different executors in respect of different parts of his properties under a single Will. Section 224 of the Succession Act cannot be interpreted to mean that if multiple executors are to be appointed under a Will or a Codicil they must be appointed jointly. Section 224 of the Succession Act only deals with grant of probate to several executors simultaneously or at different times. It does not deal with nor does it. restrict the power of the testator to appoint different executors for different parts of his property. There is no prohibition in law for a testator appointing one executor or one set of executors for administering one or more properties forming part of his total estate and appointing another person or set of persons as executors for the other parts of his property.
Succession Act, 1925 - Section 247 - Power to appoint an Administrator - Power to appoint an Administrator under Section 247 of Act can be exercised by a Testamentary Court, considering of a Will in a suit for grant of probate or letters of administration.
The power to appoint an administrator can be exercised by a testamentary Court considering validity of a Will in a suit for grant of probate or letters of administration. There is however a distinction in between the Court having a power to do a thing and exercise of the power. A power may exist but that can be exercised only for good and valid reasons. It cannot be exercised arbitrarily. An administrator cannot be appointed merely because the Court has a power so to do. There may be several reasons for appointment of an administrator and it is not feasible to enumerate all the reasons for which the Court can appoint an administrator. Misuse of the property, or applying the property for a purpose which is not permitted by the Will by an executor may be some of the grounds on which a Court may exercise the power for appointment of an administrator. In the present case, no ground is made out for appointment of an administrator.
1.this motion is taken out purportingly under section 247 of the indian succession act 1925 (for short “the succession act”) for appointment of an administrator pending decision of the suit.
2. The plaintiff and the defendant are sisters being the daughters of vimal l. rAjani. Vimal (hereinafter referred to as “the deceased”) was the owner of the immovable properties consisting of a residential flat (bearing flat no.904, 15a, peddar road) situate at mumbai a residential flat in bharat apartments in bangalore and a vacant plot of land at bangalore. The deceased also owned certain movable properties with which we are not concerned at this stage. The deceased died on 2 march 2009 in mumbai leaving behind her a writing alleged to be the last will and testament dated 19 december 1994 whereby she bequeathed her flat at mumbai to the plaintiff and her immovable properties at bangalore to the defendant. By the said will, the deceased appointed the plaintiff to be an executor of the flat at mumbai and appointed the defendant to be the executor of the properties at bangalore.
3. The plaintiff filed testamentary petition no.84 of 2010 for grant of probate to the will of the deceased. The defendant filed a caveat and opposed the grant of probate alleging that the will was forged and fabricated on account of the caveat the testamentary petition has been converted into and renumbered as the present suit. In the suit, the defendant has taken out the present motion for appointment of an administrator in respect of the flat at mumbai pending decision of the suit and has also prayed for issuance of a direction to the plaintiff to deposit the rent/license fee received by her by giving the mumbai flat on rent or leave and licence.
4. The motion is seriously opposed by the plaintiff interalia on the ground that the defendant had previously taken out another notice of motion (bearing notice of motion no.167 of 2010) for identical reliefs, save and except that therein the prayer was for appointment of a court receiver instead of an administrator. The grounds for appointment of an administrator are the same as the grounds that were pleaded for appointment of a receiver in the earlier motion. The second motion for the very same relief in a slightly different form on the very same grounds is not maintainable. Secondly, the counsel submitted that appointment of an administrator would amount to revocation of an authority of an executor to administer the estate. Such revocation cannot be made lightly unless there were strong grounds for removing the executor and appointing an administrator in his place. In the present case, there were no grounds for revoking the authority of the plaintiff to act as an executor and to administer the part of the estate of the deceased i.e the flat at mumbai for which she was appointed as an executor under the will and no ground for appointment of an administrator was made out. He further submitted that the testamentary court has no power to grant any injunction or grant any interim relief (in the present case interim relief claimed is of direction to the plaintiff to deposit the licence fee in the court). In support, he referred to and relied upon my own decision in the case of mahadeo shankar shinde vs. Maruti shankar shinde & ors, 2003(4) bom.c.r. 645 and the decision of a division bench in ramchandra ganpatrao hande vs. Vithalrao hande & ors., 2011 vol.113 (2) bom.l.r. 1302.
5. Learned counsel for the defendant (applicant) apart from challenging the validity of the will submitted that the testator had no power to appoint two separate executors for two separate properties. Under section 224 of the succession act, it is permissible for a testator to appoint more than one executors but all the executors so appointed must act jointly. A person cannot be appointed as an executor of only a portion of the property and another as an executor of the remaining part of the property of the testator. Appointment of different execut
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
