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High Court Of Calcutta
RUMA PAL, S. N. BHATTACHARJEE
SUDHIR ASHER - Appellant
Versus
VIJAY SHROFF - Respondent
C. S. 457 Of 1984
Decided On : 10/11/1999
LEGACY - SPECIFIC LEGACY - DEMONSTRATIVE LEGACY - INTERPRETATION - WILL - BEQUEST OF SHARES - ORIGINATING SUMMONS - JURISDICTION - FACTUAL DISPUTES - SUMMARY DISMISSAL.
Fact of the Case:
The testator, Dharam Singh Suraiya, executed a will bequeathing specific legacies of shares in Food Specialities Private Limited (FSL) and Suraiya Brothers Private Limited to various legatees, including the appellants. After the testator's death, the executors applied for and obtained probate of the will. The appellants, Sudhir Asher and Usha Sampat, challenged the executors' decision to treat the bequests of shares as demonstrative legacies rather than specific legacies. The executors filed an originating summons seeking determination of various questions, including the nature of the bequests.
Finding of the Court:
The single Judge held that the bequests of shares in FSL were demonstrative legacies. The appellants appealed, arguing that the learned Judge erred in answering the question raised by the executors without determining the issue in a properly constituted trial and that the learned Judge incorrectly interpreted the will as well as the law.
Issues: 1. Whether the bequest of shares in FSL was a specific legacy, a general legacy, or a demonstrative legacy. 2. Whether the executors were justified in utilizing the divided income of the shares of FSL for the management/administration of the estate. 3. Whether the executors were justified in assigning/transferring the option to purchase the right shares against 6000 shares in FSL to M/s. Stewart and Co. 4. Whether the executors could retain the equity shares and/or right shares and/or bonus shares in FSL and any accretion thereto in due course of administration of the estate. 5. Whether the bequests of the shares in FSL were liable to meet the general costs of administration by the executors at the first instance. 6. Whether any subsequent issue of right or bonus shares in respect of the shares holding in FSL should be treated as a specific legacy.
Ratio Decidendi: 1. The court held that the learned Judge erred in deciding the matter summarily and by resting her decision on disputed and unproven facts. 2. The court found that the nature of the disputes raised by the parties and the contentions as to the basic facts required a properly constituted trial. 3. The court held that originating summons proceedings were not appropriate for determining the complex factual and legal issues involved in the case.
Final Decision: The court allowed the appeal, set aside the impugned decision and decree with costs, and directed the parties to apply for and obtain a certified copy of the judgment.
( 1 ) THIS appeal arises out of questions answered on an originating summons filed by the respondents Nos. 1 and 2 as executors of the will of Dharam Singh Suraiya (referred to as the deceased ). The testator was the owner of several immoveable properties and moveable properties including shares in Food Specialities Private Limited and Suraiya Brothers Private Limited. Prior to his death the testator executed a will on 13th September 1971 at Bangalore appointing the respondents Nos. 1 and 2 as well as one Vijay Merchant as executors of his will. After the testator's death on 4th July 1972, the respondent Nos. 1 and 2 applied and obtained probate from this court in respect of the Will. The testator bequeathed several immoveable properties to named legatees. One of the properties was the house and grounds at No. 40, East End Road, and Bangalore known as Rita Bhavan. This property was bequeathed to Sm. Grace Shanthappa, the respondent No. 3 herein. The testator also bequeathed the shares to named legatees in this language "i have benequath the following specific legacies to the under mentioned for their sole use and benefits". In making these bequests the testator named the quality of the shares, the company and the legatees in respect of Suraiya Brothers Private Limited as well as Food Specialities Limited. There were 38 recipients of the shares of which 250 shares in Food Specialities Private Limited were given to Sudhir Asher (the appellant No. 1 herein), 250 shares in Food Specialities Private Limited were given to Usha Asher (now Usha Sampat, the appellant No. 2), and 1500 shares of Food Specialities Private Limited were given to Grace Shanthappa.
( 2 ) THE will went on to state, "after payment of the aforesaid legacies, testamentary dues and debts whatsoever I give bequeath the rest and residue of my estate unto Miss Anita Suraiya (Minor)". Direction was also given to the executor in connection with the legacies of Anita Suraiya until the minor attained the age of 18 years.
( 3 ) THE originating summons, which was taken out by two of the three executors before this court on 20th July 1983 was for determination of the following questions:" (A) Whether bequest of the shares in Food Specialities (P) Ltd. , made under the will of Dharam Singh Suriaya deceased above named in favour of the defendants. (Except the defendant No. 16) is: (i) a specific legacy, or (ii) a general legacy, or (iii) a demonstrative legacy in the facts and circumstances of the case. (b) Whether the executors above named are justified in utilising the divided income of the said shares of the Food Specialities (P) Ltd. for the management/administration of the estate of Dharam Singh Suraiya, deceased above named, in the facts and circumstances of the case as stated in paragraph 13 of the affidavit affirmed by the plaintiffs on 13th day of July, 1983. (c) Whether the executors above named are justified in assigning/transferring the option to purchase the said right shares against 6000 shares in the said Food Specialities (P) Ltd. to Messer's. Stewart and Co. as stated in paragraph 9 of the said affidavit. (d) (i)Where the executors can retain the equity shares and/or right shares and/or bonus shares in the said Food Specialities (P) Ltd. and any accretion thereto in due course of administration of the estate of the deceased until the same being complete in the facts and circumstances of the case as stated in paragraph 15 of the said affidavit. (d) (ii)If not, in what manner the said shares may be distributed by the executors. (e) In the event, this Hon'ble Court holds that the bequests of the said shares in the Food Specialities Limited, made under the will of the said Dharam Singh Suraiya deceased is a demonstrative legacy, whether such legacy and accretions thereto, if any, are liable to meet the general costs of administration by the executors at the first instance. (f) If the Hon'ble Court holds that the said bequest is a specific legacy the
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