The court ruled that an executor's imprisonment does not disqualify him per se, but creates practical challenges necessitating the appointment of an administrator pendente lite to manage the estate effectively.

JUDGMENT :

N.J. Jamadar, J.

1. Heard the learned Counsel for the parties.

2. This is an application for appointment of an Administrator pendente lite under Section 247 of the Indian Succession Act, 1925 (the Succession Act) for the estate described in the Schedule-I appended to the Testamentary Petition, except for the properties listed at serial Nos. 1 and 9. The principal prayer is to an appoint the Court Receiver, High Court Bombay as the Administrator pendente lite. In the alternative, the applicant has prayed that she be appointed as an Administrator.

3. Shorn of unnecessary details, the background facts can be stated as under:

(a) Timothey D'souza (the deceased) was the father of the applicant-Defendant No. 1, Lalit D'souza, the plaintiff, Lorna D'souza, the Defendant No. 2 and Lavina Khan, the Defendant No. 3.

(b) According to the Applicant, the deceased died intestate, on 7th April 2003. The plaintiff took complete and exclusive control of the estate of the deceased. As disputes arose amongst the plaintiff and defendants, Lorna D'souza, the Defendant No. 2, instituted Suit No. 2889 of 2003 for the administration of the estate of the deceased.

(c) The plaintiff propounded a Will dated 14th March 2003, purportedly executed by the deceased, and filed Testamentary Petition No. 491 of 2003. The applicant filed Caveat. The Defendant Nos. 2 and 3 also filed the Caveats opposing the grant of probate. The Testamentary Petition has thus been converted into instant Testamentary Suit.

(d) In Suit No. 2889 of 2003, the Defendant No. 2 filed Notice of Motion No. 2679 of 2003 and the applicant took out the Notice of Motion No. 2743 of 2004 for appointment of the Court Receiver. By an order dated 18th August 2005, a learned Single Judge of this Court granted interim relief in both the Notices of Motion.

(e) The plaintiff assailed the aforesaid order by filing Appeal Nos. 773 and 774 of 2005. In the said Appeal, consent terms were filed and the aforesaid interim order stood substituted by the arrangement set out thereunder including an injunction against the parties restraining them either by or through their agents from transferring, disposing of, encumbering, transferring tenancies or parting with possession in any manner of the properties constituting the estate of the deceased.

4. In the aforesaid background, the applicant has preferred this application asserting inter alia that the plaintiff had been convicted by the Court of Sessions, Greater Bombay for the offence punishable under Section 326 of the Indian Penal Code, 1860 for having caused grievous heart to Defendant No. 2 by firing six gun shots at her and was sentenced to suffer rigorous imprisonment for three years and pay fine. In appeals, a Division Bench of this Court found the plaintiff guilty of the offence punishable under Section 307 of the IPC and sentenced him to suffer rigorous imprisonment for ten years and pay fine. Plaintiff has been undergoing the sentence.

5. The applicant apprehends that the plaintiff might have already created third party rights in respect of the estate of the deceased in contravention of the consent order. Over the years, according to the applicant, the plaintiff has misused the properties and misappropriated the funds for his personal gain and to the exclusion of other heirs. The estate of the deceased is of considerable magnitude and, at present, there is nobody to administer the huge estate of the deceased. The applicant is even unaware as to what consists and forms part of the entire estate of the deceased.

6. It is further asserted as the plaintiff has been convicted for the offence punishable under Section 307 of the IPC and is undergoing the sentence, it would be improper to allow such tainted and incompetent person to administer the estate of the deceased. Thus the applicant avers that the plaintiff is not fit and capable to administer the estate of the deceased either personally or through an agent. Since by consent of the parties, the Court