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IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, J.
Virendra Kumar Jain, In Matter Of Goods Of Late Moti Lal Jain - Appellant
Versus
Asha Goel - Respondent
Testamentary Suits No. 3 of 2019
Decided on : 02-07-2019
Indian Succession Act - Removal of executor - Section 301 - Summary of Acts and Sections: Sections 217, 301, 302 of the Indian Succession Act 1925, and Chapter XXX, Rule 35 & 39 of the Allahabad High Court Rules, 1952 - The court dismissed the suit filed under Section 301 of the Indian Succession Act, 1925, for removal of the defendant as executor of the Will dated 7.3.1984, holding that the suit was not maintainable before the High Court.
Fact of the Case:
The plaintiff filed a suit under Section 301 of the Indian Succession Act, 1925, seeking removal of the defendant as executor of the Will dated 7.3.1984, alleging outstanding amount in the name of the testator as partner in the firm M/s. Agarwala Brothers. The court found that the plaintiff's suit was not maintainable before the High Court.
Finding of the Court:
The court found that the defendant's duties as executor had ended, and the plaintiff's suit was a device to indirectly recover an alleged outstanding amount, as the limitation for a direct suit for recovery was not available. The court held that the suit was not maintainable and dismissed it.
Issues: The main issue was whether the suit filed under Section 301 of the Indian Succession Act, 1925, for removal of the defendant as executor of the Will dated 7.3.1984 was maintainable before the High Court.
Ratio Decidendi: The court held that the suit was not maintainable as the defendant's duties as executor had ended, and the plaintiff's suit was a device to indirectly recover an alleged outstanding amount, for which the limitation for a direct suit for recovery was not available.
Final Decision: The court dismissed the suit filed under Section 301 of the Indian Succession Act, 1925, for removal of the defendant as executor of the Will dated 7.3.1984, holding that the suit was not maintainable before the High Court.
JUDGMENT :
Surya Prakash Kesarwani, J.
Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Udayan Nandan, learned counsel for the plaintiff.
2. Briefly stated facts of the preset case are that the plaintiff and the respondents are the real brother and sister. As per pleadings in the plaint one Sri Moti Lal Jain, jointly acquired lease hold rights alongwith his wife Smt. Laxmi Devi in the year 1963 in the immovable property being Survey No.419/1, Plot No. 4, 5 & 6, Kanpur Cantt. The building known as "Agarwala Building, the Mall Kanpur" was constructed over the aforesaid plot between the year 1963 to 1969.
3. The aforesaid Sri Moti Lal Jain alongwith Sri Virendra Kumar Jain (plaintiff/applicant herein) constituted a partnership firm on 26.5.1977 in the name and style of M/s. Agarwala Brothers. As per aforesaid partnership deed in the event of death of Sri Moti Lal Jain, the plaintiff-applicant shall carry on business of the firm as sole proprietor and all the assets and goodwill of the firm shall vest in him. The legal representative of the Sri Moti Lal Jain would be entitled only to the amount lying to his credit. Copy of the aforesaid partnership deed has been filed as SA-1 to the supplementary affidavit dated 13.5.2019.
4. On 7.3.1984, the aforesaid Sri Moti Lal Jain executed a registered Will whereby he bequeathed his share (1/4th share) in the Agarwal building to his daughter Smt. Asha Goel (the defendant herein) with stipulation in the Will deed that she would be entitled to recover rent and to reside and to use the property in such manner as she may think just and proper at her discretion throughout her life time but shall not sell, mortgage or gift or grant long lease of the same and after her death the property shall vest and held and owned by her son/sons (not daughters). Rest of the properties and share in the Firm M/s. Agarwala Brothers and proprietory concern M/s. Moti Lal Engineering were bequeathed by him to his two sons and grand sons or grand daughters.
5. Subsequently, in the month of September 1984, the property popularly known as "Agarwala Building", was equitably mortgaged to Lakshmi Commercial Bank against credit facilities/loan to the firm M/s. Agarwala Brothers. Subsequently Lakshmi Commercial Bank merged in Canara Bank. Sri Moti Lal Jain died on 1.8.1985.
6. According to the plaintiff/applicant as on the date of death of Sri Moti Lal Jain i.e. on 1.8.1985, there was a debit balance of Rs.2,59,748.73 in the account of the partner Sri Moti Lal Jain in the firm M/s. Agarwala Brothers. The plaintiff transferred in the account of Sri Moti Lal Jain in the firm M/s. Agarwala Brothers, the alleged debit balance of Sri Moti Lal Jain standing as on the date of his death in his proprietary concern M/s. Moti Lal Engineering (Rs.51,089.48) and Agarwala Containers (Rs.11,198.75), drawings Rs.8,151/- and loss Rs. 83,253.70, so as to show a debit balance of Rs.4,01,693.00 in the account of Sri Moti Lal Jain in the firm M/s. Agarwala Brothers. The loan of Canara Bank in the form of cash-credit facilities taken by the firm M/s. Agarwala Brothers of which the plaintiff-applicant became proprietor after the death of Sri Moti Lal Jain, was paid by the plaintiff with some contribution of the defendant. As per alleged notice of the plaintiff-applicant filed as Annexure SA-4, a sum of Rs. 1,86,200/- was paid by the defendant to the plaintiff-applicant. It is undisputed that the plaintiff-applicant and his brother Sri S.K. Jain and their sons/daughter inherited or received under the Will huge assets of late Sri Moti Lal Jain.
7. The relevant portion of the aforesaid Will of late Moti Lal Jain dated 7.3.1984, filed as Annexure No.1, is reproduced below: -
"I declare that I will hold and own all my assets during my life time. After my death I leave, bequeath and give to my daughter Smt. Asha Goel all my 1/4th divided share in the premises Agarwal Building standing on Plot No.4, 5 and 6. The Mall, Kanpur, Cantt. inclusive of the
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