{"id":154844,"date":"2006-04-28T00:00:00","date_gmt":"2006-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sharad-subramanyan-vs-soumi-mazumdar-ors-on-28-april-2006"},"modified":"2018-04-06T01:19:30","modified_gmt":"2018-04-05T19:49:30","slug":"sharad-subramanyan-vs-soumi-mazumdar-ors-on-28-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sharad-subramanyan-vs-soumi-mazumdar-ors-on-28-april-2006","title":{"rendered":"Sharad Subramanyan vs Soumi Mazumdar & Ors on 28 April, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sharad Subramanyan vs Soumi Mazumdar & Ors on 28 April, 2006<\/div>\n
Author: Srikrishna<\/div>\n
Bench: B. N. Srikrishna, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4153 of 2002\n\nPETITIONER:\nSharad Subramanyan\n\nRESPONDENT:\nSoumi Mazumdar & Ors.\n\nDATE OF JUDGMENT: 28\/04\/2006\n\nBENCH:\nB. N. Srikrishna & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SRIKRISHNA, J.\n<\/p>\n
\tThis appeal impugns a judgment of the Division Bench of the Calcutta
\nHigh Court dated 28.6.2000. That an appeal was itself carried against an
\norder of the learned Single Judge dated 16.2.2000 in Testamentary
\nJurisdiction allowing an application for discharge of the Joint Executors in
\nrespect of the estate of one Reba Mitra and appointing an Administrator
\npendente lite.\n<\/p>\n
Facts
\n\tPhanindra Nath Mitra had two sons, Prabhat Kumar Mitra and Kamal
\nKumar Mitra, and a daughter, Suhasini Bose. The genealogical tree of the
\nfamily is as under:<\/p>\n
\n\nPhanindra Nath Mitra\n\n Prabhat Kr. Mitra (Son)\t    Kamal Kr. Mitra (Son)\t    Suhasini Bose (Daughter)\n(Latika Deb-Sabita Bose)\t      (Reba Mitra  Wife)\n         Daughters\t\t\t (Issueless)\n<\/pre>\n
_______________________________________________________________________<\/p>\n
\t\t\t\t\t       Nieces
\n\t\t\t        Latika Deb\t\tSabita Bose (Deceased)
\n\t\t\t             R 5\t<\/p>\n
                                                                        (Soumi Mazumdar & Shantanu Bose)
\n\t\t\t\t\t\t            R 1                          R 2\t<\/p>\n
\tKamal Kumar Mitra entered into an agreement dated 22.5.1988 with
\nT.K. Ramasubramanyan (father of Sharad Subrmanyan, hereinafter “the
\nappellant”) by which a tenancy was created in respect of the ground floor
\nflat of certain premises situated at 13\/1, Promothesh Barua Sarani, Kolkata
\n(hereinafter “the Suit Property”) at a monthly rental of Rs. 5,000\/-. A further
\nagreement dated 1.11.1988 was made between Kamal Kumar Mitra and the
\npresent appellant-Sharad Subramanyan for providing to the tenants the
\nfittings and fixtures in the ground floor at a monthly charge of Rs. 750\/-. On
\n24.2.1989, there was a third agreement between Kamal Kumar Mitra and the
\nappellant-Sharad Subramanyan and a fourth on 28.4.1989, by which the
\nformer agreed to lease the whole of terrace of the existing construction of the
\nSuit Property to enable the appellant to construct at his cost an additional
\nfloor. The demise was for a period of twenty-one years commencing from
\n1.4.1989 with a renewal clause for a further period of twenty-one years after
\nexpiry of every period of twenty-one years. Though the agreement created a
\nlease for such a long period with a renewal clause, it was not registered.\n<\/p>\n
\tOn 19.3.1991, Kamal Kumar Mitra executed his last Will and
\nTestament under which, he appointed Reba Mitra, his wife, as Executrix and
\non her death, the appellant and one Subir Kumar Deb as Executors. Under
\nthe Will, the Testator had given all his movable properties to Reba Mitra, but
\nshe was given only a life interest in the Suit Property. The Will further
\nprovided that on the death of the said Reba Mitra, the Executors would
\nexecute the Will and realise and collect the rents, issues and profits arising
\nout of the Suit Property and distribute the same in the manner as prescribed
\nin the Will. Kamal Kumar Mitra died on 26.9.1991 leaving behind his wife,
\nReba Mitra, as his sole heir.\n<\/p>\n
On 21.10.1992, Reba Mitra executed a lease deed in respect of the
\nSuit Property granting certain rights to the appellant. Reba Mitra died on
\n27.11.1998. The appellant produced a Will dated 21.10.1992 claiming that
\nhe had been granted certain rights under the Will. A second Will dated
\n14.5.1993 and a third Will dated 14.12.1997 were produced by the parties
\neach of whom claimed that the Will in his\/her favour was the genuine Will.\n<\/p>\n
\tOn 17.8.2001, Reba Mitra’s Will dated 14.12.1997 was granted
\nprobate by the District Judge, Alipore. The appellant had been appointed as
\none of the Executors under the Will of Kamal Kumar Mitra. Soumi
\nMazumdar and Shantanu Bose (Respondent Nos. 1 and 2, respectively), the
\nlegatees under the said Will, by their letter dated 16.4.1999, called upon the
\nappellant and Subir Kumar Deb, Joint Executors, to give assent to the legacy
\nunder the Will of Reba Mitra, hand over vacant possession of the first floor
\nof the Suit Property and also distribute all the income of the estate in terms
\nof the Will of the late Kamal Kumar Mitra. On 30.4.1999, Subir Kumar Deb
\naddressed a letter stating that he was not in possession of any legal document
\nand, therefore, he was unable to execute the estate according to the Will of
\nKamal Kumar Mitra. On 4.5.1999, the appellant wrote back alleging that
\nReba Mitra had demised the first floor of the Suit Property in the year 1992
\nin his favour. The appellant also stated that he was going through the various
\nlegal implications to examine the demand for disbursement of the income.\n<\/p>\n
On 11.10.1999, the respondent filed an application before the High
\nCourt praying for discharge of the Joint Executors, to pay to the appellant
\nthe outstanding rent, issues and profits in respect of the Suit Property and
\nalso to hand over its possession. On 15.12.1999, a learned Single Judge of
\nthe High Court made an order restraining the Joint Executors from dealing
\nwith, disposing of and\/or encumbering and\/or parting with possession or in
\nany way dealing with any portion of the Suit Property till the disposal of the
\napplication. On 16.2.2000, an interim relief application taken out was
\nallowed by the learned Single Judge taking serious notice of the fact that the
\nExecutors had not filed an affidavit to controvert the allegations made
\nagainst them. An appeal was filed by the appellant before the Division
\nBench, which resulted in the impugned judgment dated 28.6.2000,
\ndismissing the appeal. Hence, the appeal before us.\n<\/p>\n
Contentions
\n\tLearned Senior Counsel for the appellant Mr. P. Krishnamoorthy Iyer
\ncontended that, under Clause 6 of the Will of the late Kamal Kumar Mitra,
\nthe Suit Property was bequeathed to Reba Mitra for her life. Under the said
\nWill, after the death of Reba Mitra the Executors and Trustees named in the
\nWill were to collect the rent, issues and profits in the Suit Property, and
\ndisburse it to the persons named in Clause 6 of the Will. The contention of
\nthe learned Senior Counsel for the appellant is that Kamal Kumar Mitra had
\ncreated a life interest in favour of his wife, Reba Mitra, which was in
\nrecognition and discharge of her right to maintenance from her husband.
\nCounsel further contends that, by reason of sub-section (1) of Section 14 of
\nthe Hindu Succession Act, 1956 (hereinafter “the Act”), this limited interest
\nblossomed into an absolute interest. Consequently, he claims that Reba
\nMitra became the absolute owner of the Suit Property. Further that, Reba
\nMitra, during her lifetime, absolutely owned the Suit Property and made
\ndispositions by her Will in favour of the appellant, which were valid and
\njustified. Under the Will, Reba Mitra had demised the first floor of the Suit
\nProperty in favour of the appellant, consequently the appellant was entitled
\nto claim lease right in respect of the first floor of the Suit Property. The fact
\nthat the appellant was the Executor makes no difference, whatsoever, to the
\ndisposition validly made by Reba Mitra in her Will. As an Executor, the
\nappellant had taken no step, in any manner inconsistent with being the
\nExecutor of Kamal Kumar Mitra’s Will, consequently the learned counsel
\nurged that, the High Court\/learned Single Judge was wrong in discharging
\nthe Joint Executors and appointing an Administrator pendente lite.\n<\/p>\n
\tThe learned Senior Counsel for the respondents, however, urged that
\nthere is no absolute proposition that every time a property is bequeathed in a
\nWill, it would necessarily be in recognition or discharge of a pre-existing
\nright to maintenance; that even under the Hindu Adoption and Maintenance
\nAct, 1956 Reba Mitra had no right of maintenance as against her husband
\nduring the lifetime of her husband; that the property bequeathed to Reba
\nMitra in the Will of her husband, Kamal Kumar Mitra, was only a limited
\nestate during her lifetime; the provisions of sub-section (2) of Section 14 of
\nthe Act would, therefore, apply and she would continue to retain only a life
\ninterest in the Suit Property. Consequently, she had no right to make a lease
\nin favour of the appellant, hence, the so-called lease in favour of the
\nappellant under the Will of Reba Mitra is invalid and unenforceable. Apart
\ntherefrom, the appellant as an Executor of Reba Mitra’s Will had set up a
\ntitle in the Suit Property, which was inconsistent with and injurious to the
\nestate of Reba Mitra. Consequently, under the provisions of the Indian
\nSuccession Act, 1925 (hereinafter “the Indian Succession Act”) the
\nexecutors having misconducted themselves, were rightly removed by the
\nTestamentary Court.\n<\/p>\n
Nature of Interest
\n\tSection 14 of the Act was enacted by Parliament in order to ensure
\nthat the limited estate devolving upon a female Hindu be abolished and the
\nfemale Hindu who possessed property, acquired before or after coming into
\nforce of the Act, should hold it as full owner thereof and not as a limited
\nowner. Section 14 of the Act reads as under:\n<\/p>\n
“Property of a female Hindu to be her absolute Property.
\n(1) Any property possessed by a female Hindu, whether
\nacquired before or after the commencement of this Act, shall be
\nheld by her as full owner thereof and not as a limited owner.\n<\/p>\n
ExplanationIn this sub-section, “property” includes both
\nmovable and immovable property acquired by a female Hindu
\nby inheritance or devise, or at a partition, or in lieu of
\nmaintenance or arrears of maintenance, or by gift from any
\nperson, whether a relative or not, before, at or after the
\nmarriage, or by her own skill or exertion, or by purchase or by
\nprescription, or in any other manner whatsoever, and also any
\nsuch property held by her as stridhana immediately before the
\ncommencement of this Act.\n<\/p>\n
(2) Nothing contained in sub-section (1) shall apply to any
\nproperty acquired by way of gift or under a will or any other
\ninstrument or under a decree or order of a civil Court or under
\nan award where the terms of the gift, will or other instrument or
\nthe decree, order or award prescribe a restricted estate in such
\nproperty. ”\n<\/p>\n
\tA judgment of this Court has recognized that sub-section (2) is in the
\nnature of a proviso to the rule enacted in sub-section (1) of Section 14 of the
\nAct. In V. Tulasamma and Ors. v. Sesha Reddy (Dead)<\/a> by L.Rs.
\n(hereinafter “Tulasamma”) after a complete survey of the Shastric Hindu
\nLaw and the changes brought therein by Section 14 of the Act, this Court
\nculled out the principles arising thereunder in the following words:
\n“(1) that the provisions of Section 14 of the 1956 Act must be
\nliberally construed in order to advance the object of the Act
\nwhich is to enlarge the limited interest possessed by a Hindu
\nwidow which was in consonance with the changing temper of
\nthe times;\n<\/p>\n
(2) it is manifestly clear that sub-section (2) of Section 14 does
\nnot refer to any transfer which merely recognises a pre-existing
\nright without creating or conferring a new title on the widow.
\nThis was clearly held by this Court in Badri Pershad’s case
\n((1969) 2 SCC 586).\n<\/p>\n
(3) that the Act of 1956 has made revolutionary and far-
\nreaching changes in the Hindu society and every attempt should
\nbe made to carry out the spirit of the Act which has
\nundoubtedly supplied a long felt need and tried to do away with
\nthe invidious distinction between a Hindu male and female in
\nmatters of intestate succession;\n<\/p>\n
(4) that sub-section (2) of Section 14 is merely a proviso to sub-
\nsection (1) of Section 14 and has to be interpreted as a proviso
\nand not in a manner so as to destroy the effect of the main
\nprovision.”\n<\/p>\n
Analysing the scope and extent of sub-section (2) of Section 14 of the Act,
\nwhich this Court treated as a proviso to sub-section (1), this Court took the
\nview that as a proviso it should be interpreted in such a way so as not to
\nsubstantially erode sub-section (1) of Section 14 and the Explanation thereto.
\nIt was pointed out that sub-section (2) had carved out a completely separate
\nfield and before it could apply, the following three conditions must be
\nsatisfied:\n<\/p>\n
“(i) that the property must have been acquired by way of gift,
\nwill, instrument, decree, order of the Court or by an award;\n<\/p>\n
(ii) that any of these documents executed in favour of a Hindu
\nfemale must prescribe a restricted estate in such property; and<\/p>\n
(iii) that the instrument must create or confer a new right, title
\nor interest on the Hindu female and not merely recognise or
\ngive effect to a pre-existing right which the female Hindu
\nalready possessed.”\n<\/p>\n
Finally, this Court said:\n<\/p>\n
“Where any of these documents are executed but no restricted
\nestate is prescribed, sub-section (2) will have no application.
\nSimilarly where these instruments do not confer any new title
\nfor the first time on the female Hindu, Section 14(2) would
\nhave no application. It seems to me that Section 14(2) is a
\nsalutary provision which has been incorporated by the
\nParliament for historical reasons in order to maintain the link
\nbetween the Shastric Hindu Law and the Hindu Law which was
\nsought to be changed by recent legislation, so that where a
\nfemale Hindu became possessed of property not in virtue of any
\npre-existing right but otherwise, and the grantor chose to
\nimpose certain conditions on the grantee, the Legislature did
\nnot want to interfere with such a transaction by obliterating or
\nsetting at naught the conditions imposed.”\n<\/p>\n
\tAfter noticing the divergent views of different High Courts, this
\nCourt, summarised its conclusion as under:\n<\/p>\n
“(1) The Hindu female’s right to maintenance is not an empty
\nformality or an illusory claim being conceded as a matter of
\ngrace and generosity, but is a tangible right against property
\nwhich flows from the spiritual relationship between the
\nhusband and the wife and is recognised and enjoined by pure
\nShastric Hindu Law and has been strongly stressed even by the
\nearlier Hindu jurists starting from Yajnavalkya to Manu. Such a
\nright may not be a right to property but it is a right against
\nproperty and the husband has a personal obligation to maintain
\nhis wife and if he or the family has property, the female has the
\nlegal right to be maintained therefrom. If a charge is created for
\nthe maintenance of a female, the said right becomes a legally
\nenforceable one. At any rate, even without a charge the claim
\nfor maintenance is doubtless a pre-existing right so that any
\ntransfer declaring or recognising such a right does not confer
\nany new title but merely endorses or confirms the pre-existing
\nrights.\n<\/p>\n
(2) Section 14(1) and the Explanation thereto have been
\ncouched in the widest possible terms and must be liberally
\nconstrued in favour of the females so as to advance the object of
\nthe 1956 Act and promote the socio-economic ends sought to
\nbe achieved by this long needed legislation.\n<\/p>\n
(3) Sub-section (2) of Section 14 is in the nature of a proviso
\nand has a field of its own without interfering with the operation
\nof Section 14(1) materially. The proviso should not be
\nconstrued in a manner so as to destroy the effect of the main
\nprovision or the protection granted by Section 14(1) or in a way
\nso as to become totally inconsistent with the main provision.\n<\/p>\n
(4) Sub-section (2) of Section 14 applies to instruments,
\ndecrees, awards, gifts, etc. which create independent and new
\ntitles in favour of the females for the first time and has no
\napplication where the instrument concerned merely seeks to
\nconfirm, endorse, declare or recognise pre-existing rights. In
\nsuch cases a restricted estate in favour of a female is legally
\npermissible and Section 14(1) will not operate in this sphere.
\nWhere, however, an instrument merely declares or recognises a
\npre-existing right, such as a claim to maintenance or partition or
\nshare to which the female is entitled, the sub-section has
\nabsolutely no application and the female’s limited interest
\nwould automatically be enlarged into an absolute one by force
\nof Section 14(1) and the restrictions placed, if any, under the
\ndocument would have to be ignored. Thus where a property is
\nallotted or transferred to a female in lieu of maintenance or a
\nshare at partition, the instrument is taken out of the ambit of
\nsub-section (2) and would be governed by Section 14(1) despite
\nany restrictions placed on the powers of the transferee.\n<\/p>\n
(5) The use of express terms like “property acquired by a
\nfemale Hindu at a partition”, “or in lieu of maintenance”, “or
\narrears of maintenance”, etc. in the Explanation to Section 14(1)
\nclearly makes sub-section (2) inapplicable to these categories
\nwhich have been expressly excepted from the operation of sub-
\nsection (2).\n<\/p>\n
(6) The words “possessed by” used by the Legislature in
\nSection 14(1) are of the widest possible amplitude and include
\nthe state of owning a property even though the owner is not in
\nactual or physical possession of the same. Thus, where a widow
\ngets a share in the property under a preliminary decree before or
\nat the time when the 1956 Act had been passed but had not been
\ngiven actual possession under a final decree, the property would
\nbe deemed to be possessed by her and by force of Section 14(1)
\nshe would get absolute interest in the property. It is equally well
\nsettled that the possession of the widow, however, must be
\nunder some vestige of a claim, right or title, because the section
\ndoes not contemplate the possession of any rank trespasser
\nwithout any right or title.\n<\/p>\n
(7) That the words “restricted estate” used in Section 14(2) are
\nwider than limited interest as indicated in Section 14(1) and
\nthey include not only limited interest, but also any other kind of
\nlimitation that may be placed on the transferee.”\n<\/p>\n
\tIn this case, it was observed that, the properties in suit were allotted to
\nthe appellant-Tulsamma under a compromise certified by the Court; that the
\nappellant had taken only a life interest in the properties under the
\ncompromise deed. However, she continued to be in possession of the
\nproperties till 1956 when the Act came into force and, therefore, by reason
\nof Section 14(1), the properties were allotted to her in recognition and in lieu
\nof her right to maintenance, which was a pre-existing right. Consequently, it
\nfell out of the ambit of sub-section (2) of Section 14 of the Act as a result of
\nwhich she became the full owner of the properties involved.\n<\/p>\n
In C. Masilamani Mudaliar and Ors. v. Idol of Sri
\nSwaminathaswami Swaminathaswami Thirukoil and Ors.  the<\/a> views
\nexpressed in Tulasamma (supra) were reiterated as necessary for carrying
\nforward the intention of the Parliament to ensure “that women have an
\nactive role in the development process. Appropriate economic and social
\nreforms should be carried out with a view to eradicate all social injustice.”
\nHence, it was held that the limited estate, which had been conferred on the
\nlegatee in lieu of the right to maintenance under the Hindu Adoption and
\nMaintenance Act, 1956, was in recognition of the pre-existing right to
\nmaintenance known under the Shastric law and it became an absolute right
\nunder Section 14(1) and the legatee became the absolute owner of the
\nproperty.\n<\/p>\n
In Balwant Kaur and Anr. v. Chanan Singh and Ors.  the<\/a> right of
\nmaintenance of a widowed daughter was recognised under the Will and
\ncertain property was demised to her, though as a limited life estate. This
\nCourt held that, this was a situation falling squarely within the ambit of sub-
\nsection (1) of Section 14 of the Act and was beyond the purview of sub-
\nsection (2) and that as the Will itself recognised in express terms and
\nprovided that “even after his (the testator) death, his (the testator) other
\nlegatee brothers have to look after the welfare of his (the testator) widowed
\ndaughter” . Hence, sub-section (1) of Section 14 would apply and the
\nlimited estate would turn into a full estate.\n<\/p>\n
Mr. Bhaskar P. Gupta, learned Senior Counsel for the respondents,
\nrightly distinguished all these cases, as it was clearly proved therein, that the
\nproperties had been given to a female Hindu, either in recognition of or in
\nlieu of her right to maintenance under the Shastric Hindu Law or under the
\nHindu Adoption and Maintenance Act, 1956. Consequently, these were
\ninstances where the dispositions of property, albeit as a limited estate, would
\nblossom into a full interest by reason of sub-section (1) of Section 14 of the
\nAct.\n<\/p>\n
Learned Counsel further contended that, there is no absolute rule that
\nall properties demised to a female Hindu were necessarily in recognition of
\nor in lieu of her right to maintenance. It was possible, even after the Act
\ncame into force, to create a limited estate by reason of a gift or will. Such a
\nsituation would fall within the ambit of sub-section (2) of Section 14 of the
\nAct as long as it was not in recognition of or in lieu of a right to maintenance
\nunder the Shastric Hindu Law or under a statute. Learned Senior Counsel
\nrelied on Section 30 of the Act, which recognises the right of a Hindu to
\ndispose of self-acquired property by Will. Mr. Gupta relied on the judgment
\nof this Court in Bhura and Ors. v. Kashi Ram<\/a> , which was also a case of,
\nlimited estate conferred on a female Hindu by a Will. This Court held that,
\nupon a proper construction of the Will, the bequeathal in favour of the
\nfemale Hindu was clearly indicative of:\n<\/p>\n
“the testator’s intention of only creating a life interest in her
\nand nothing more and the various expressions used therein are
\nindicative of and are reconcilable only with the hypothesis that
\nthe testator was creating an estate in favour of (the female
\nHindu)only for her lifetime and not an absolute estate.”
\nThus, in view of the fact that there were no indications, either in the Will or
\nexternally, to indicate that the property had been given to the female Hindu
\nin recognition of or in lieu of her right to maintenance, it was held that the
\nsituation fell within the ambit of sub-section (2) of Section 14 of the Act and
\nthat the restricted life estate granted to the female Hindu could not be
\nenlarged into an absolute estate. Learned counsel for the respondents relied
\nstrongly on this judgment and contended that there was no proposition of
\nlaw that all dispositions of property made to a female Hindu were
\nnecessarily in recognition of her right to maintenance whether under the
\nShastric Hindu Law or under the statutory law. Unless the said fact was
\nindependently established to the satisfaction of the court, the grant of the
\nproperty would be subject to the restrictions contained therein, either by way
\nof a transfer, gift or testamentary disposition. Learned counsel also
\ndistinguished the three cases cited by the learned counsel for the appellant
\nthat in each, the circumstances clearly indicated that the testamentary
\ndisposition was in lieu of the right of maintenance of the female Hindu. We
\nthink that this contention is well merited and needs to be upheld.\n<\/p>\n
\tTurning to the facts of the present case, we notice that not only was
\nthere no material to indicate to the High Court that the property was given to
\nReba Mitra in lieu of her right of maintenance, but such an argument was not
\neven advanced before the Court. Even the impugned judgment of the High
\nCourt observes:\n<\/p>\n
“It is not the case of the appellant that at the time when K.K.
\nMitra executed the Will, his wife was entitled to enforce her
\nright of maintenance under the provisions of Hindu Adoptions
\nand Maintenance Act or otherwise. She had been undisputedly
\nliving with her husband upon her husband’s death till the Will
\nwas probated, she was enjoying the property as her own. Even
\nin terms of the Will dt. 19.3.1991 she had a right of enjoyment
\nin respect of the entire property.”\n<\/p>\n
The High Court then noticed Section 30 of the Act which empowers a Hindu
\npossessed of any property to execute a Will; and confer a grant in favour of
\nanother either absolutely or to a limited extent; even to the extent of
\ndepriving his natural heirs from enjoying the estate left by him. We think
\nthat the High Court was right in taking this view. The High Court also took
\nnotice of the fact that there was no material on record from which it could be
\nconcluded that the disposition of life estate in favour of Reba Mitra in the
\nWill of her husband, Kamal Kumar Mitra, was in lieu of or in recognition of
\nher right of maintenance. Consequently, we agree with the finding of the
\nHigh Court that Reba Mitra had only a limited right, namely, life interest in
\nthe Suit Property. Thus, she could not have created a long-term lease as she
\nhas purportedly done.\n<\/p>\n
Discharge of Executor
\n\tLearned counsel for the respondents then referred to the provisions of
\nthe Indian Succession Act. He urged that under Section 301 of the Indian
\nSuccession Act: “The High Court may, on an application made to it,
\nsuspend, remove or discharge any private executor or administrator” and
\nappoint another person in his place where continuance of the executor is
\ndetrimental to the estate of the deceased. Further it was pointed out that,
\nunder Section 317 of the Indian Succession Act, an executor had to make an
\ninventory and file periodical accounts of the estate. It is contended that the
\nappellant had failed to do so and was also liable to be removed under
\nSection 301 of the Indian Succession Act. Finally, it is urged that the
\nappellant as an executor had set up a claim in the estate, which was
\ninconsistent with the deed of the executor and, therefore, he was unfit to
\nfunction as an executor; the High Court had rightly discharged him from his
\noffice and appointed an Administrator pendente lite.\n<\/p>\n
Conclusion
\nFrom the factual circumstances, while the High Court’s appointment
\nof an Administrator pendente lite appears to be correct, we need not finally
\ndecide as to whether the appellant was unfit to act as an executor of Kamal
\nKumar Mitra’s Will. We are cognizant of the fact that the High court is still
\nseized of the matter and the order passed is only an interlocutory order based
\non prima facie considerations. In our view, there was sufficient justification
\nfor the High Court to make the order for appointment of the Administrator
\npendente lite to protect the estate during the pendency of the petition before
\nit. The question as to whether the appellant as the executor has breached his
\nfiduciary duty, can only be determined at the end of the trial. In our view,
\ntherefore, the impugned judgment of the High Court is not liable to be
\ninterfered with.\n<\/p>\n
We see no merit in the appeal, which is hereby dismissed. No costs.
\n27711<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sharad Subramanyan vs Soumi Mazumdar & Ors on 28 April, 2006 Author: Srikrishna Bench: B. N. Srikrishna, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4153 of 2002 PETITIONER: Sharad Subramanyan RESPONDENT: Soumi Mazumdar & Ors. DATE OF JUDGMENT: 28\/04\/2006 BENCH: B. N. Srikrishna & Lokeshwar Singh Panta JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-154844","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSharad Subramanyan vs Soumi Mazumdar & Ors on 28 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sharad-subramanyan-vs-soumi-mazumdar-ors-on-28-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sharad Subramanyan vs Soumi Mazumdar & Ors on 28 April, 2006 - 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