2006 Supreme(Cal) 321

High Court Of Calcutta
Before: Kalyan Jyoti Sengupta, J.
RAJENDRA SINGH LODHA - Appellant
Versus
AJOY KUMAR NEWAR - Respondent
P. L. A. 204 Of 2004
Decided On : 05/19/2006

Headnote:

Both the applications for appointment of an Administrator and/or a Committee headed by an independent and impartial Administrator to take over all movable and immovable assets and properties of the deceased, Smt, Priyamibada Debi Birla including the voting rights and the right of control of the deceased in respect of the companies specified in schedule being annexure 'j' to the petition; Administrator and/or committee to be appointed herein to take over the management affairs and control of the M. P. Birla Group of Companies set out in schedule being annexure 'j' and the shareholding of the companies specified in schedule being annexure 'aa' including voting right; the said administrator be directed to act as an Administrator, pendente lite, until disposal of the testamentary proceedings; the said person or persons be directed to take all decisions with regard to exercise of all rights in regard to shareholding of Smt. Priyambada Debi Birla in any company including the rights of control of other companies vested in Smt. Priyambada Debi Birla; injunction restraining the said R. S. Lodha and his men agents and/or assigns from dealing with, disposing of or encumbering any of the assets and properties of the deceased and/or exercising any right to control any company specified in schedule annexure 'j' hereto were dismissed.

Fact of the Case:

The deceased Smt. Priyamibada Debi Birla (hereinafter referred to in short as P. D. B.) died on 18th April, 2003. She left behind huge and vast estate and properties consisting of shares in various companies, immovable properties at different places, ornaments, jewelleries, gold coins, silver utensils, household goods, pearls, books, plate, antiques, investment in mutual funds and Government bonds and National savings Scheme. The applications for grant of probate of the above Will is contested not only by the heirs and legal representatives in case of death intestacy but also by other persons seriously challenging appointment of executor and 'disposing capacity of the deceased testatrix. There exists prior two testamentary documents both dated 13th July, 1982 said to have been executed by the PDB and her husband M. P. Birla since deceased and the said documents are described to be mutual ones. These two testamentary instruments are also sought to be perfected by applying for grant of probate of these two documents. Several persons have been executors in these two testamentary documents of 1982 and the beneficiaries thereof are not individual persons, rather by these two documents estate and properties of both the persons have been vested in the charitable trust. The applications for grant of probate of these two documents are also contested by Lodha. A civil suit has been filed by the executors of the documents of 1982 against Lodha for alleged breach of agreement made by PDB in terms of the mutual Will. By this suit the plaintiffs herein who are also parties to this probate proceedings have essentially challenged disposing capacity of PDB by her testamentary document of 1999, consequently right, title and claim of Lodha. This suit is also contested by Lodha seriously. A criminal prosecution has been initiated amongst others against Lodha in the learned Court of Chief Judicial Magistrate Alipore 24 Paraganas (South) by making a complaint by one Rajendra Prosad Pansari alleging criminal breach of trust under sections 406/417/420/120b of the Indian Penal Code. The cognizance of the said complaint had been taken by the Chief Judicial Magistrate and this was registered as case No. C-469 of 2004. In this criminal proceeding an application was also made for search and seizure under appropriate provision of the Criminal Procedure Code. This proceeding was sought to be quashed by filing an application under section 482 of the Code of Criminal Procedure by one S. N. Prosad being one of the accuseds. This proceeding was supported by Lodha who was also a party respondent. This application for quashing was dismissed by this Court by the Judgment and order dated 1st July, 2005 holding amongst others that the complaint and the statement of witnesses recorded under section 200 of the Code and the documents accompanying the complaint if read on the whole make it clear that the allegations made in the complaint, if they are taken at their face value and accepted in their entirety without adding anything to it or subtracting anything from it prima facie establish elements of offence to go for trial. This Judgment and order was taken to Supreme Court of India and the challenge against this Judgment failed. Therefore, it is clear that Lodha along with other persons are facing trials. From the statements and observations, recorded in the Judgment of the Hon'ble Court in criminal revisional jurisdiction, it appears that the allegations and complaints center round the assets and properties left behind by the said PDB and her husband.

Finding of the Court:

The Court found that there was a serious bona fide dispute in the probate proceedings by the caveator or caveatrix, and that the estate was considerable and the appointment of the executor was seriously challenged. The Court also found that the executor had taken control of the estate and had not filed an account of his administration. Therefore, the Court appointed an Administrator, pendente lite, to take control of the estate and to file an account of his administration.

Issues: Whether the Administrator, pendente lite, should be appointed in terms of prayer (a), or not.

Ratio Decidendi: When there is proceedings either in the nature of suit or otherwise for obtaining probate or letters of administration and therein if the Will is seriously challenged and also the appointment of the executors it shall be presumed that there is serious bona fide dispute. If such bona fide dispute or challenge and enormity in vastness of estate are found Court may consider the question of appointment of apl displacing the named executor.

Final Decision: The Court appointed Joint Administrator, pendente lite, consisting of following persons (i) Mr. Hiranmoy Dutta, Bar-at-law of Bar Library Club; (ii) Promotha Nath Chatterjee, learned advocate of Bar Association, room No. 1; (iii) Mr. Prabir Kumar Roy, ex-Sheriff of this Court of 10 s. N. Roy Road, Behala, Kolkata - 700 019; (iv) Mr. Sujit Bhattacharjee of 52-C, Ballygunge Circular Road, Kolkata - 700 019, who shall take charge and control of all the shareholding of the deceased Lady in all the companies and they should function as could be functioned under law by virtue of the controlling shareholding of all the Companies left behind by the said Lady. They shall take step for rectification of all the share registers of the Companies recording their names. They shall immediately make an enquiry as to the dealings of Lodha vis-a-vis dividends and investment of the dividends and submit a report to the court and they shall place themselves in the Board of Directors wherever it is possible by virtue of the shareholding. They shall, in consultation with each other, decide to dissolve the Board if necessary under law for the benefit of the Companies, wherever possible.