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1990 Supreme(Cal) 342
High Court Of Calcutta
M.G.Mukherji, J.N.Hore, JJ.
Hirak Roy - Appellant
Versus
S.K. Roy – Respondents
Decided on : Aug 24,1990
Asit Kumar Bhattacharya, Bhaskar Shattacharyya, Debasis Roy, Saktinath Mukherjee, Subhiva Kamal Mukherjee
The legatees under a Will have a transmissible interest in the property which they can convey without the assent of the Executor, and the Executor is not entitled to withhold his assent arbitrarily.
Headnote:
INDIAN SUCCESSION ACT - EXECUTOR - ASSENT - LEGATEES - RIGHT TO TRANSFER PROPERTY - MAINTENANCE OF STATUS QUO - CROSS-OBJECTION - MAINTAINABILITY - JURISDICTION OF HIGH COURT.
Fact of the Case:
The testator, Smt. Giri Bala Devi, executed a Will bequeathing her 1/4th share in a house property to her two sons and a daughter absolutely. The Executor of the Will, Hirak Roy, filed an application for grant of probate without security. The legatees, Dr. S. K. Roy, Anil Chandra Roy, and Smt. Bani Roy, alleged that Hirak Roy was delaying the probate proceedings and applied for his removal and appointment of an Administrator Pendente lite and a Receiver. The District Delegate directed maintenance of status quo in relation to the 1/4th undivided share in the disputed premises until further orders or till the Probate case was disposed of, whichever is earlier. Hirak Roy challenged this order in F. M. A. 516/89, and the legatees filed a cross-objection (C. O. T. 3460/89), contending that the injunction was not maintainable and that the District Delegate erred in directing maintenance of status quo.
Finding of the Court:
The High Court held that the legatees had a transmissible interest in the property which they could convey without the assent of the Executor. The Court further held that the Executor was not entitled to withhold his assent arbitrarily and that the legatees were competent to bring an action to recover the property bequeathed to them. The Court also held that the order directing maintenance of status quo was uncalled for and that the legatees could enter into an agreement for sale or execute a sale deed without the assent of the Executor. The Court dismissed the appeal filed by the legatees in F. M. A. 212/90 challenging the order rejecting their prayer for appointment of an Administrator Pendente lite or a Receiver, and also dismissed the appeal filed by Hirak Roy in F. M. A. 516/89.
Issues: 1. Whether the legatees had a transmissible interest in the property which they could convey without the assent of the Executor. 2. Whether the Executor was entitled to withhold his assent arbitrarily. 3. Whether the order directing maintenance of status quo was justified. 4. Whether the cross-objection filed by the legatees was maintainable.
Ratio Decidendi: 1. The Court held that the legatees had a transmissible interest in the property which they could convey without the assent of the Executor, relying on Williams on Executors and Administrators 16th Edition page 85-86 and William, Mortimer and Sumnucks on Executors, Administrators and Prepare page 352. 2. The Court held that the Executor was not entitled to withhold his assent arbitrarily, relying on Halsbury on the Laws of England on the topic relating to "assent" at page 338 and the reported decision in ILR 50 Calcutta 171 and air 1940 Patna 40 at page 43. 3. The Court held that the order directing maintenance of status quo was uncalled for, as the legatees could enter into an agreement for sale or execute a sale deed without the assent of the Executor. 4. The Court held that the cross-objection filed by the legatees was maintainable, relying on the Full Bench decision of the Gouhati High Court in AIR 1977 garhati Page 70 ( Nirakanta Untia vs. Smt. Debi Chutiani) and the Supreme Court decisions in Raman bhai Asha Bhai Patel vs. Dabhi Ajit Kumar Fulsinghji reported in AIR 1965 SC 668; Rup Chand vs. State of Punjab, AIR 1963 sc 1503 and Collector, Varanasi vs. Gouri Shankar Mishra, reported in AIR 1968 SC 384.
Final Decision: The High Court set aside the order directing maintenance of status quo, dismissed the appeal filed by the legatees challenging the order rejecting their prayer for appointment of an Administrator Pendente lite or a Receiver, and dismissed the appeal filed by Hirak Roy.
1. F. A. A. 516/89, F. M. A. T. 61/89 and C. O. T. 3460/89 have ait been assigned to us disposal.
2. F. M. A. 516/89 was directed against an order dated april, 30, 1988 passed by the District Delegate, Alipore, 4-Parganas, in Act XXXIX Case No. 384/83. This appeal has been filed by Hirak Roy who is the Executor to the last 111' and testament of Smt. Giri Bala Devi. F. M. A. T. 34 61/8? which has now been renumbered as F. M. A. 212/90 has been referred by Dr. S. K. Roy @ Sushil Roy, A. C. Roy @ Anil 3y and Smt. Bani Roy impugning an order dated 30th July, 1989 passed by the. District delegate in the self same case ejecting the application filed by the appellants under section 247 of the Indian Succession Act regarding appointment of any one of them as Administrator pendente lite for selling the 1/4th undivided share at premises no. 73, Dr. Meghnath Saha Sarani in respect of which the appellants ere the beneficial or the legatees under the Will of of their mother, Smt. Giri Balm Devi 'and of which Hirak roy was the Executor. The learned District Delegate came 3 a finding that the Executor Hirak Roy did not make any retention delay in the Probate proceeding and there was 3 necessity in appointing any one of the appellants as administrator Pendente lite or as receiver as prayed for by them and thus rejected their application. Cross objection tender No 3460/89 has been filed by the self same appeal, Dr. S. K. Roy, Anil Chandra Roy and Smt. Bani Roy arising their cross objection in respect of F. M. A. 516/89, on tending, inter alia, that the application for injunction as filed by the appellant Hirak Roy before the District delegate was not maintainable in law and the learned District delegate acted illegally and with material irregularity in passing an order regarding maintenance of Status in respect of 1/4th undivided share in the disputed premises for which cross-objectors were the legatees under the Will, thus restraining them from disposing of the property thereby allowing the Executor to acquire an unlawful gain since he continued in possession in the said premises and the to put an embargo on the cross objectors in disposing of the property.
Before we decide the matter on merits, it would be necessary for us to traverse; the facts of the case, late puma Chandra Roy owned a the use-property at 73, Southern avenue now known as Dr. Meghnath Saha Sarani. He died intestate" 16. 8. 58 giving behind him surviving his widow, sm. Giri Bala Devi, two sons,, Dr. S. K. Roy @ Sushil Kumar roy, Anil Chandra Roy and one daughter Smt. Bani Roy. Smt. Giri Bala Devi had thus 1/4th -undivided share in the said property. Smt. Giri Bala Devi executed her last Will and testament on 2nd February, 1974, whereby she bequeathed amongst other things her undivided 1/4th share in the house-property to her two sons, Sushil Kumar Roy and Anil Chandra roy and her only daughter, Stmt. Bani Roy absolutely, making certain other disposition in respect of her moveable properties. She made her grand-son Hirak Roy who is now a member of the High Judicial Service, the Executor to her Will. The said Smt. Giri Bala Devi died testate on 2nd March, 1983. The Will is not contentious. On 20th November, 1983, hirak Roy, son of Anil Chandra Roy, filed an application in the court of the District delegate at Alipore, South 24-Parganas for grant of probate of the Will without security. The said case was registered as Act Case No. 384/83. Admittedly, 3/4th share, though undivided, belonged to Sushil kumar Roy, Anil Chandra Roy and Smt, Bani Roy as direct heirs of Late Puma Chandra Roy and even with regard to 1/4th undivided share of Smt. Giri Bala, there is no dispute that these three persons, S. K. Roy, A. C. Roy and Smt. Bani Roy are the sole legatees or beneficiaries as regard the house-property is concerned. It has been averred and there is also no denial to that effect, that there is no debt payable by the testatrix, Smt. Giri Bala Devi. Dr. S. K. Roy, Anil Chandra
