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2008 Supreme(Cal) 1078
IN THE HIGH COURT AT CALCUTTA
Bhaskar Bhattacharya & Rudrendra Nath Banerjee, JJ.
Bani Das
Versus
Dilip Kumar Ghosh & Anr.
F.M.A. No. 918 of 2008 With CAN 4486 of 2008 AND F.M.A. No. 919 of 2008 With CAN 4487 of 2008
Decided on : 18th December, 2008
For the Appellant/Petitioner: Mr. Harish Tandon, Mr. Sandeep Kumar Tiwari.
For the Respondent/Opposite Party: Mr. Kashinath De, Mr. Pradip Kumar Nag.
An administrator is bound by the transactions entered into by the executor before the grant of letters of administration, provided that such transactions are not in breach of the trust imposed upon the executor by the testator.
Headnote:
WILL - ADMINISTRATION - RIGHT TO RESIST POSSESSION - APPELLANT'S HUSBAND EXECUTOR AND LEGATEE UNDER WILL - APPELLANT GRANTED LETTERS OF ADMINISTRATION AFTER DECREE FOR SPECIFIC PERFORMANCE - APPELLANT HAS NO INDEPENDENT RIGHT TO RESIST TRANSFER OF OWNERSHIP - EXECUTOR'S TRANSACTION NOT IN BREACH OF TRUST - ADMINISTRATOR BOUND BY TRANSACTION - Indian Succession Act, 1925 - Section 332 - Code of Civil Procedure, 1908 - Order XXI Rules 97, 98 and 101
Fact of the Case:
Appellant's father-in-law bequeathed property to her husband, the judgment-debtor, with a condition that he should maintain the appellant from the income of the property. The judgment-debtor entered into an agreement for sale of the property with the respondent no.1 after the death of his father. The respondent no.1 obtained a decree for specific performance of the contract and sought police help for taking possession in execution of the decree. The appellant, who had obtained letters of administration of her father-in-law's Will, filed an application under Order XXI Rules 98 and 101 of the Code of Civil Procedure to resist the execution of the decree, claiming that she had an independent right over the property. The Executing Court dismissed the appellant's application.
Finding of the Court:
The Court held that the appellant had no independent right to resist the execution of the decree as she did not acquire any right of residence or possession in the suit property by virtue of the letters of administration. The Court further held that the executor's transaction of entering into an agreement for sale was not in breach of the trust imposed upon him by the Testator and, therefore, the Administrator subsequently vested with the authority to administer the estate was also bound by such transaction.
Issues: Whether the appellant had an independent right to resist the execution of the decree for specific performance of contract obtained by the respondent no.1.
Ratio Decidendi: The Court relied on the following principles: - An executor gets his authority to deal with the property from the death of the testator and is a creature of the Will. - An administrator gets his authority to administer the subject-matter of bequest only from the date of grant of letters of administration. - The transaction entered into by the Executor before grant of letters of administration was not in breach of the trust imposed upon him by the Testator and thus, the Administrator subsequently vested with the authority to administer the estate is also bound by such transaction so long the same is not inconsistent with the terms of the Will.
Final Decision: The Court dismissed the appeal, holding that the appellant had no independent right to resist the transfer of ownership of the property by virtue of her right conferred under the Will of her father-in-law.
Bhaskar Bhattacharya, J.:
These two appeals were heard analogously as the subject-matters of these two appeals are, to some extent, similar.
2. We, however, first propose to deal with F.M.A. No.919 of 2008.
3. This appeal is at the instance of an applicant under Order XXI Rules 98 and 101 of the Code of Civil Procedure and is directed against Order No.177 dated April 2, 2008 passed by the learned Judge, Second Bench, City Civil Court at Calcutta, in Miscellaneous Case No.3416 of 2001, thereby dismissing the said miscellaneous case and allowing the another miscellaneous case being Miscellaneous Case No.1183 of 1989 filed by the respondent no.1 praying for police help for taking possession in execution of the decree for specific performance of contract.
4. The following facts are not in dispute:
5. The respondent no.1 entered into an agreement for purchase of the property in question with the respondent no.2 and for enforcing the said agreement, the respondent no.1 filed a suit being Title Suit No.734 of 1986 which was decreed ex parte against the respondent no.2.
6. For execution of the said decree, the respondent no.1 initiated an execution case being Title Execution Case No.91 of 1987 and in connection with that execution case, filed an application under Order XXI Rule 97 of the Code of Civil Procedure thereby giving rise to Miscellaneous Case No.1183 of 1989 for getting possession through the help of police.
7. In the said execution case, the present appellant, the wife of the judgement-debtor and a third party to the proceedings, came up with an application under Order XXI Rules 98 and 101 of the Code of Civil Procedure thereby alleging that she was not bound by the ex parte decree passed in Title Suit No.734 of 1986 against her husband and that she had independent right over the suit property to resist the execution case started by the respondent no.1.
8. The case made out by the appellant was that the suit property originally belonged to her father-in-law, namely, Sambhu Nath Das, who bequeathed the property in favour of her husband, Biswanath Das, but at the same time conferred upon her, the right to have maintenance from her husband out of the income of the said property. According to the appellant, on the death of her father-in-law, her husband deserted her; as a result, she filed an application for letters of administration of the said Will being L.A. Case No.48 of 2001 and ultimately, got letters of administration of the said Will. The appellant contended that she having been appointed as an administrator over the property in question, her husband had no right to enter into the agreement for sale of the property in favour of the respondent no.1 so long the legacy was transferred to him and consequently, the decree obtained by the respondent no.1 for enforcement of the said agreement for sale was not binding upon her, the administrator. In other words, according to the appellant, so long she does not assent to the administration in terms of Section 332 of the Indian Succession Act, 1925, no title accrued in favour of her husband and, thus, she, being the legal owner of the property as an administrator, had the right to resist the prayer for obtaining possession in execution of the decree.
9. The application was opposed by the respondent no.1 thereby contending that the decree in his favour was passed long before the filing of the application for letters of administration and that there was collision between the judgment-debtor and his wife and the wife had been set up by the judgment-debtor to delay the execution of the decree. The decree-holder contended that even by virtue of the Will executed by the father-in-law of the appellant, the property was given to her husband and, therefore, by virtue of the decree passed against her husband, the respondent no.1 has stepped into his position and was entitled to get possession as lawful owner of the property in execution of the decree for specific performance of con
