Back
HIGH COURT OF CALCUTTA
PRASENJIT MANDAL, J.
Sukti Sanyal - Appellant
Versus
Office Trustee of Govt. Of West Bengal - Respondent
C.O. No.1247 of 2010 With C.O. No. 2041 of 2010
Decided on : Jan 25, 2011
TRUSTS - Reimbursement of Legal Expenses - Indian Succession Act, 1925 - Sections 32, 211, 247, 321 - Administrator's Power to Incur Expenses - Executor's Right to Reimbursement - Court's Approval Required.
Fact of the Case:
The petitioner, as the executrix of a Will, incurred legal expenses in connection with a probate case and subsequent litigation related to a public charitable trust. She sought reimbursement of these expenses from the official trustee, who had been appointed as administrator of the trust. The official trustee refused to reimburse the expenses, and the petitioner filed an application before the District Judge seeking reimbursement.
Finding of the Court:
The District Judge rejected the petitioner's application, holding that the administrator was the proper person to incur expenses related to the trust and that the petitioner had no right to make payments independently without the administrator's consent.
Issues: 1. Whether the petitioner, as the executrix of the Will, was entitled to reimbursement of legal expenses incurred in connection with the probate case and subsequent litigation related to the public charitable trust. 2. Whether the administrator had the sole authority to incur expenses related to the trust, or whether the petitioner could also incur such expenses with the court's approval.
Ratio Decidendi: 1. Under Section 247 of the Indian Succession Act, 1925, the administrator appointed is the proper person to take all necessary steps for proper administration of the estate till the probate is obtained. 2. The executor (i.e., the petitioner) is to take the necessary steps for proper distribution of the assets according to the probate granted by the Court. 3. Till such time of obtaining the probate in respect of the Will, the administrator is to do the necessary expenses and without his consent the petitioner had no right to claim any expenditure. 4. The petitioner had no right to make payment independently without the consent of the administrator.
Final Decision: The revisional application filed by the petitioner was dismissed, upholding the District Judge's order rejecting the petitioner's application for reimbursement of legal expenses.
PRASENJIT MANDAL, J.
1. CHALLENGE is to the order no.115 dated March 15, 2010 passed by the learned District Judge, Alipore by rejecting the application dated November 5, 2009 filed by the petitioner, Smt. Sukti Sanyal in connection with O.S. No.146 of 2002.
2. SINCE the two applications have arisen out of the same order and common question is involved in the two applications, the two applications have been heard together and these are disposed of by this common judgment. For convenience, I am now discussing the application bearing C.O. No.1247 of 2010. The trust properties of Biren Roy Trust are the subject matters in the application. Late Biren Roy was the sole trustee in respect of the properties by a deed of trust dated January 6, 1965 up to January 21, 1993. As per terms and conditions of the trust, Smt. Meghamala Roy would be the next sole trustee with full powers and authorities including the authority of appointing or nominating a trustee. Thereafter, Smt. Meghamala Roy (since deceased) appointed the petitioner as the sole executrix of a Will executed by Smt. Meghamala Roy in respect of property of the trust. The petitioner filed a probate case. It was being contested and as such the said probate case was converted into O.S. No.146 of 2002 and the said suit is being contested by the defendants. The executrix of the Will was to perform the duties of maintenance, management and protection of the trust properties as per Section 247 of the Indian Succession Act. Since the said trust being a public charitable trust, the then official trustee decided in July, 2002 that all charities, appointments, expenses, etc. should be first approved by the different trustee before disbursement and such procedure was also followed by the subsequent two official trustees, namely, Sri Radhey Shyam Dutta and Sri M. M. Banerjee. The executrix, that is, the petitioner had to expend money for proceeding with the probate case, subsequently, renumbered as O.S. Case and several other litigations and for that reason the executrix had to expend certain money. She had to pay fees for the advocates in different suits/cases. The bills submitted by the executrix were approved by the official trustee but the present official trustee on taking charge of office had arbitrarily stopped reimbursement of legal expenses incurred with regard to the Biren Roy Trust. The petitioner paid such expenses, she is entitled to get reimbursement of the same. The petitioner filed an application dated November 5, 2009 before the learned District Judge praying for reimbursement of the legal expenses and that application was rejected by the impugned order. Being aggrieved, this application was been preferred.
3. NOW, the question is whether the learned District Judge is justified in rejecting the petition dated November 5, 2009 for reimbursement.
4. UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the O.S. No.146 of 2002 is pending for disposal and the petitioner has become the plaintiff of that suit. When the probate case was being contested, the petitioner has submitted bills showing the legal expenses in connection with the Biren Roy Trust Estate and also for obtaining the grant of probate of the Will of late Meghamala Roy regarding the said Biren Roy Trust which is of a public charitable trust. From the materials on record, I find that the official trustee has been appointed as administrator of the said trust since it was a public charitable trust. So, the administrator has certain functions in the matter of maintenance, protection and distribution of the assets of the said trust and according to Section 32 of the Indian Trusts Act, he is entitled to take all the necessary steps for the preservation and protection and also making payment in respect of the matters which the trust is bound to make payment. According to Section 211 of the Indian Succession Act, 1925, the administrator is permitted to do all su
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
