Kalpana Nambiar; Krishnakumar Rajagopal Menon; Asha Sudarsh Menon v. Dr. Jayashree Balchandran Kurup

14. Thirdly, Dr. Kurup strenuously submitted that the wishes of the testator 4 AIR 1985 Punjab and Haryana 211. 5 (1994) 1 Supreme Court Cases 502. 6 AIR 1986 Orissa 97. and the trust and confidence reposed by the testator in the executor, cannot be disregarded on the basis of bald and unsubstantiated allegations. Very strong grounds are required to divest the named executor of his authority to execute the Will. In the absence of convincing proof of malfeasance and misfeasance, a named executor cannot be removed from the office of executorship, for the mere asking.

15. To lend support to the aforesaid submission Dr. Kurup placed reliance on a decision of Delhi High Court in the case of Swapnil Gupta and anr. vs. Govt. of NCT of Delhi and ors.7, the judgments of this Court in the cases of Dr. Shubhada Mithilesh and another vs. Prabhakar Deolankar and others[8] and Marteen Borchert and another vs. Arzan Khambatta and another[9].

16. On the merits of the matter, the thrust of the submission of Dr. Kurup was that the Respondent has been administering the estate of the deceased since the demise of the deceased, even in the absence of any corpus fund. The Ambadi House property has been maintained by the Respondent by incurring expenses from her personal income and that of her family. The Petitioners have flatly refused to contribute to the expenses, despite having received a sum of Rs.75,00,000/- each, from Mr. Jose Konikkara. Therefore, the petition does not deserve to be entertained. 7 297 (2023) Delhi Law Times 770. 8 2018(2) Mh.L.J. 211. 9 2011(5) Mh.L.J. 682.

17. Refuting the allegations that the Respondent had surreptitiously demanded the sum of Rs.[1] Crore for herself, over and above the agreed consideration, Dr. Kurup submitted that the amount of Rs.25,00,000/- paid by Mr. Jose Konikkara was part of the balance consideration and was voluntarily paid by Mr. Jose Konikkara to cover the personal expenses for the preservation and sale of the Ambadi House property, incurred by the respondent and her family members. There was no dishonest intention on the part of the Respondent. An explanation was also sought to be offered regarding the circumstances in which the Respondent had signed the purported MOU with Mr. Jose Konikkara on 9 July, 2017 in respect of 83.[5] cents of land. The entire exercise, according to Dr. Kurup, was to advance the cause of benefit to the estate of the deceased. The aforesaid acts, according to Dr. Kurup, have no element of fraud and misapplication as alleged by the petitioners.

18. Dr. Kurup also made an earnest effort to persuade the Court to hold that the affidavit of inventory and accounts filed by the Respondent represents true and correct state of expenses, incurred by the Respondent, for administration of the estate for the years together. With an oblique motive the Petitioners are trying to take undue advantage of the hand-written notes of accounts, which were neither final nor complete and were hurriedly prepared and tendered to the petitioners. Therefore, the Respondent who has toiled for over 10 years to protect the estate of the deceased at a huge physical and financial cost, cannot be removed on the basis of the baseless and motivated allegations. CONSIDERATION:

19. The preliminary challenges to the Petition on the count of bar of limitation and absence of pleading on the allegation of fraud need not detain the Court. Reliance on the decisions in the cases of Adil Phiroz Makhania (supra), and Hari Narayan (supra), does not advance the cause of the submission on behalf of the Respondent as those decisions were rendered in the Petition for revocation of the Probate under Section 267 of the Indian Succession Act, 1925. The said principle cannot apply with equal force to an application for removal of the executor under Section 301 of the Indian Succession Act, as the testamentary Court, being the court of conscience cannot permit the executor to continue to act to the detriment of the estate and the beneficiaries, if such a case is made out, on the ground of bar of limitation. It would amount to putting a premium on disingenuity and maladministration of the estate.

20. Indeed, there are allegations in the Petition that the acts and conduct attributed to the Respondent amount to fraud on the part of the Respondent. Articulation of the alleged misconduct or categorization thereof as fraud, may be questioned. However, it cannot be said that there are no specific pleadings. In addition to the pleadings, the Petitioners have placed on record the documents from which the allegations stem. Thus, the reliance on the judgments in the cases of Svenska Handelsbanken (supra) and Padma Bewa (supra) does not seem to be well founded.

21. This propels me to the moot question of exercise of the power under Section 301 of the Indian Succession Act, 1925. It may be appropriate to appreciate the core controversy in the light of the statutory prescription. Section 301 of the Act, 1925 reads as under: “Sec. 301: Removal of executor or administrator and provision for successor The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any' such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.

22. Evidently, the power to remove a named Executor is discretionary in nature. Normally, where the Executor is named by the testator, the Court would be loath to remove him and appoint an Administrator pendente lite, or post grant of Probate, unless there is gross misconduct or mismanagement or waste of assets on the part of the Executor. The reason is not far to seek. In the very appointment of the Executor by the testator is the implicit confidence that the testator has reposed in the Executor. Strong grounds are, therefore, required to remove the named Executor and appoint an Administrator pendente lite. In the very nature of the things, the question of removal of an Executor is rooted in thicket of facts. Where, in the facts of the given case, the Court upon consideration of all the relevant circumstances comes to the conclusion that the continuation of the Executor, named by the testator, is detrimental to either the estate of the testator, or the beneficiaries under the Will, on account of gross misconduct, mismanagement or usurpation of the estate by the Executor or gross mis-application of the estate, the Court may be justified in removing an Executor. It is trite that a Testamentary Court is a Court of conscience.

23. At this juncture, a reference may be made to the decision of this Court in Mukesh Gokal (Supra), on which a very strong reliance was placed by Mr. D’Mello. In the said case, the Court was confronted with the question, as to whether the Executors, who had set up rival claims in respect of the properties, which were described as ownership properties of the testator by those Executors themselves, can be allowed to continue to act as Executors and Trustees of the Will and Codicil of the testator. After an elaborate analysis and referring to the judicial pronouncements, the learned single Judge held that the Executors have to act in the interest, benefit and welfare of the beneficiaries/legatees under the Will and Codicil and cannot be permitted to have conflicting interest in the estate. Since no part of the estate was bequeathed in favour of the Executors by the deceased therein, the Executors have to comply with their duties and distribute the legacies amongst the beneficiaries/legatees under the said Will and Codicil and cannot be permitted to set up a title adverse to the title of the deceased while carrying out their duties as Executors or Trustees. If the Court comes to the conclusion that actions of the Executor and Trustees would prevent the estate from being properly executed, the Executors and Trustees can be removed.

24. The following observations, in paragraph 41 to 44, deserve to be extracted. They read as under:

25. In the case of Tara Chand Shrama V/s. Uma Agarwal10, which was relied upon by this Court in the case of Mukesh Gokal (Supra), a Division Bench of the Punjab and Haryana High Court enunciated the scope of inquiry in a Petition for removal of a named Executor. It was observed that real issue was, whether the Will of the testator was being given effect to and whether the Executor instead of discharging his duty as per the Will was abusing his position to divert the property of the testator for his personal benefit.

26. A reference can also been made to the decision of the Madhya Pradesh High Court in the case of Dr Kusum Kuree V/s. Dharam Singh.11. After extracting the text of Section 301 of the Indian Succession Act, the Madhya Pradesh High Court spelt out the circumstances in which the power to remove an Executor can be resorted to, as under: 10 2020 AIR (P&H) 30 11 1986 ILR 414 (MP Series) “It is pertinent to note that in the text of this section no specific grounds have been included enumerated for removal of any private executor or administrator. The executor so named in the Will, therefore, should be removed only when proper case in that behalf is made out for last wishes of the deceased as expressed in his Will nominating a person and an executor should be highly respected. While exercising power under section 301 of the Indian Succession Act, the Court must guard itself against any frivolous attempts for collateral purposes to remove the executor. If the Court finds that the person making an application has not come out with a clear title or has not come with clean hands, the application should be refused. However, if the Court finds on proper enquiry that the executor is acting contrary to the interest of the beneficiary, is not honestly and sincerely carrying out wishes of the deceased has started claiming title in the property adverse to the deceased or the legacy is withering away the property to the detriment of the interest of the legatee, it shall be justified in exercising its jurisdiction under this provision in removing the executor and succeeding him by another. In such cases main guide must be the welfare of the beneficiary. Want of honesty or want of proper capacity to exercise duties or want of reasonable fidelity may well justify an order under this section directing removal of the executor.” (emphasis supplied)

27. In the case of Abha Dastane – Rao an Ors. V/s. Prabhakar Deolankar and Ors.12, the learned Single Judge of this Court, after adverting to the decision in the case of Mukesh Gokal (Supra) observed that in the case of Mukesh Gokal (Supra) the Executor had set up in respect of some properties a title hostile to that of the estate and, the beneficiaries. Mukesh Gokal

(Supra) can hardly be an authority for any generalised proposition, nor can the ratio of the said decision be applied to every case brought under Section

301. Each such case will turn on its facts; for in each case, the conduct of the Executor will be examined, as will the truthfulness of the allegations against him.

28. In the case of Abha Dastane-Rao (Supra) this Court further enunciated that in an Application for removal of an Executor, the Court must, taking an overall view of the matter, assess whether a case has been made out showing that the Executor has obstructed the administration of the estate; has made claims adverse to that estate; is shown to be guilty of gross mismanagement and not minor lapses; and whether he has, in sum and substance, perverted the disposition of the estate in accordance with the terms of the Will. There must be clear evidence that the Executor's continuance as Executor is detrimental or injurious to the estate and will frustrate the Will, with the administration of which he is charged in law and by the testamentary writing. Minor lapses, errors of judgments or less than perfect handling of the matter is not sufficient reason to substitute the testator's expression of confidence. A proper case must be made out.

29. In the case of Swapnil Gupta (supra), on which Respondent placed reliance, the following statement of law as regards the exercise of power to remove the executor was made:

30. In the case of Dr. Shubhada Mithilesh and another (supra), a learned Single Judge of this Court emphasised the fact that as a general rule, the Court will respect a person’s appointment as an executor for it shows that the testator reposed in that person a special confidence. The Court must give full weight to that expression of confidence. Thus, the mere contention that the beneficiaries have lost confidence in the executor is not sufficient for removal of the executor and for appointment of administrator pendente lite. There must be some material on record to substantiate such allegation of loss of confidence.

31. In the case of Marteen Borchert and another (supra), another learned Single Judge of this Court, observed that the case of removal of executor would come up when the executor is shown to be an inveterate non-worker by his inaction in administration. Such a case could be made out only after the passage of sufficient time to allow the executor, who is an appointee of the Testator/Testatrix, a decent time in which to perform his duties. In view of the fact that executors perform their duties and functions and discharge their responsibilities gratis no undue burden can be cast upon them by the Testator/Testatrix as also the Court or the beneficiaries. They are not enjoined to perform their functions at the whims and demands of the beneficiaries.

32. Keeping in view the aforesaid contours of the jurisdiction of the testamentary Court to remove /suspend or discharge the executor appointed by the testator (and in this case to whom the Probate has been granted), the material on record is required to be appreciated on the touchstone as to whether a case of gross mis-management, mis-application of the estate to the detriment of the beneficiaries, lack of honesty and sincerity in carrying out the wishes of the testator, and, especially aggrandizement at the cost of estate and the beneficiaries (in contradistinction to minor lapses, errors of judgment and want of diligence and expedition), is made out.

33. To begin with, few facts, which significantly bear upon the determination of this petition. First, the dispositions in the Will. Indubitably, the testator bequeathed the Ambadi House property to the petitioners and respondent, in equal shares. The testator further desired that, if none of the children buys out the other siblings, the property be sold and the sale proceeds be distributed equally. It is necessary to note that Krishnakumar Menon, Petitioner No.2, is suffering from mental ailments. The Will specifically adverts to the condition of Krushnakumar and the desire of the testator to ensure Krushnakumar’s well being and comfort, after the demise of the testator. Second, by and large, the controversy revolves around the administration of Ambadi House property. Third, the parties are not at issue over the unanimous decision to sell Ambadi House property to Mr. Jose Konikkara and execution of a MOU on 12 August, 2016 to sell the said property for a consideration of Rs.10,02,00,000/- and receipt of part consideration of Rs.[3] Crores thereunder. Fourth, it is a matter of record that the said transaction did not materialize and resulted in litigation between Mr. Jose Konikkara, on the one part, and the Petitioners and Respondent, on the other part. Fifth, the execution, as such, of second MOU between the Respondent and Mr. Jose Konikkara is not in dispute, though the circumstances in which the said document was executed, and the import thereof, are in contest. Sixth, the filing of the affidavit of inventory and account in Court and tendering of the hand-written notes of accounts by the Respondent to the Petitioners is again not in dispute, though the parties are at issue over the effect and consequences thereof.

34. Though an endeavour was made on behalf of the Petitioners to urge multiple counts of alleged malfeasance and misfeasance on the part of the Respondent, in my considered view, the core controversy revolves around the acts of the Respondent in the matter of the sale of Ambadi House property. The facts with reference to entering into an agreement for sale with Mr. Jose Konikkara and the resultant failure of the said transaction, are already noted. The situation which emerged after the said transaction failed, assumes critical salience.

35. At this stage, reference to few document, becomes necessary. First, the notice dated 1 November 2017 addressed on behalf of Mr. Jose Konikkara to the Petitioner Nos.[1] to 3, the Respondent and her husband and daughter. After referring to the agreement for sale and parting of part consideration, Mr. Jose Konikkara asserted, in the said notice, that the Respondent demanded Rs.[1] Crore, over and above the sale consideration to her alone, as an additional amount, and Mr. Jose Konikkara was compelled to concede to the said demand and pay Rs.25 lakhs as advance by way of cheques drawn in favour of the Respondent (for the sum of Rs.13 Lakhs), her husband (for the sum of Rs.[8] Lakhs) and daughter (for the sum of Rs.[4] Lakhs). Mr. Jose Konikkara further asserted that it was learnt that the Respondent had received the said amount by defrauding the rest of the covenders.

36. It would be contextually relevant to note that there is no dispute about the fact that the aforesaid sum of Rs.25 Lakhs was paid and out of the said amount, upon the dispute having been raised by Mr. Jose Konikkara, the amount of Rs.12 Lakhs was refunded.

37. At this juncture, it may be necessary to immediately notice the response of the Respondent to the aforesaid allegations in the notice of Mr. Jose Konikkara, in the reply to the said notice:

38. Mr. Jose Konikkara reiterated the aforesaid allegations in the suit instituted by him for recovery of the part consideration ( i.e. Rs.3.13 Crores) from the Petitioners and Respondent. In the written statement filed by the Respondent to the said suit, the Respondent contended that after obtaining the Probate and also with the consent from Defendant Nos.[2] to 4 to recover expenses from the proceeds of the sale of the plaint schedule property, the amount of Rs.25,00,000/- was received by the Respondent as part of first installment of the balance consideration. The Plaintiff voluntarily gave 7 cheques aggregating to a sum of Rs.25 Lakhs to be encahsed on the dates pre-determined by the Plaintiff. Since the Respondent No.1 utilized the money from the account of her husband and sister, the Plaintiff had voluntarily paid the said amount towards the expenses of the executor and drawn cheques in favour of the Respondent, her husband and daughter. An amount of Rs.12 Lakhs was returned. The amount of Rs.13 Lakhs, retained by the Respondent, was towards the expenses incurred by the Respondent for the preservation of the plaint schedule property.

39. The aforesaid contentions constitute the substratum of the defence of the Respondent. Does it merit acceptance ?

40. It is imperative to note that the aforesaid factum of payment of Rs.25 Lakhs to the Respondent over and above the agreed consideration under the agreement for sale, came to light only after Mr. Jose Konikkara addressed a legal notice dated 1 November 2017. It is in the written statement filed in the suit, the Respondent made an endeavour to contend that the said amount was accepted with the consent of the Petitioners. The said contention is belied by the fact that, in the reply to the legal notice, the Petitioner No.1 had already categorically taken a stand that she was unaware of such transaction between the Respondent and Mr. Jose Konikkara and the said amount cannot be clubbed with the amount agreed to be paid under the agreement for sale.

41. Few circumstances are of material significance. First, it is the case of the Respondent that she had incurred the expenses for the preservation and sale of the property and the Petitioners declined to contribute, and, therefore, she had taken initial part consideration of Rs.[1] Crore in her name to meet the executor’s expenses. If that was the case, the expenses could have been deducted from the amount which was distributed to the Petitioners out of the initial advance of Rs.[1] Crore. Thus, there could have been no occasion to accept a further sum of Rs.25 lakhs from Mr. Jose Konikkara.

42. Second, if the payment was to be made towards the balance consideration, Mr. Jose Konikkara could not have been made to draw the cheques in the names of the husband and daughter of the Respondent. That brings in an element of appropriation of the property, out of the estate of the deceased, against the wishes of the testator. Therefore, the fact that the allegations of demand of an additional amount of Rs.[1] Crore and payment of Rs.25 Lakhs came from a party, who is neither the beneficiary under the Will nor has a particular axe to grind against the Respondent alone, cannot be lost sight of.

43. Third, the non-disclosure of the receipt of the said consideration over and above the part agreed consideration received by the vendors together, till the said payment came to light due to the legal notice by Mr. Konikkara, works out the retribution of the claim of the Respondent that the said amount was accepted as an advance towards the balance consideration with the consent fo the co-vendors.

44. The aforesaid factors, if considered cumulatively, lend credence to the allegation of Mr. Jose Konikkara that the Respondent demanded a sum fo Rs.[1] Crore over and above the agreed consideration and he was required to pay Rs.25 Lakhs. Consequently, these factors give heft to the submission of the Petitioners that the Respondent surreptitiously attempted to unjustly enrich herself at the cost of the estate and the beneficiaries.

45. The execution of the second MOU to sell 83.[5] cents of land for an additional consideration of Rs.3,51,00,000/- between Mr. Jose Konikkara and the Respondent alone, in the circumstances of the case, cannot be said to be innocuous or immaterial. Already the co-owners had entered into an agreement for sale. It is not the case that the property which was agreed to be sold under the second MOU did not form part and parcel of the estate of the deceased, or for that matter, Ambadi House property. The Respondent made an endeavour to explain away the situation by asserting that there was controversy regarding the description of the area of the property. An effort was also made to contend that the Respondent was made to sign the said MOU by Mr. Jose Konikkara without the Respondent fully appreciating the contents and import of the said MOU.

46. The status and position of the Respondent bears upon the acceptability of the aforesaid explanation. The Respondent is a legal professional. It defies comprehension that, the Respondent, who is a practicing Advocate, could have readily executed the document without fully understanding the contents and import of the said document. In fact, the explanation sought to be offered by the Respondent regarding the acceptance of the sum of Rs.25 Lakhs from Mr. Jose Konikkara is also required to be appreciated through this prism of the situation in life of the Respondent. I am, therefore, afraid to unreservedly accept the explanation sought to be offered by the Respondent.

47. The conspectus of aforesaid consideration is that there is overwhelming material to demonstrate that the Respondent attempted to abuse her position as an executrix and accepted money from the then prospective purchaser, over and above the agreed consideration surreptitiously. In the totality of the circumstances, especially having regard to the position of the Respondent, the said act cannot be brushed aside as a minor lapse or momentary aberration or inadvertent indiscretion. The said act on the part of the Respondent borders on unjust enrichment at the expense of the estate and the beneficiaries. In my considered view, by the said acts, the Respondent has forfeited the privilege and authority to continue to act as an executrix.

48. Mr. D’Mello, learned Counsel for the Petitioners laid emphasis on the non-compliance of the provisions contained in Section 317 of the Indian Succession Act, in as much as, true and faithful accounts of the receipts and expenses were not furnished. Special emphasis was laid on the hand-written note of expenses shared by the Respondent (Exhibit S – pages 262-273). Mr. D’Mello urged that, under the head of Probate expenses, significant amount is shown to have been expended for the department officials’ tip. The amount is said to have been paid by way of tip even to the Registrar.

49. As noted above, the Respondent joined the issue by asserting that the said hand written notes were hurriedly prepared and incomplete. Explanations were sought to be offered regarding the entries, which indicate that money was paid by way of tip.

50. It may not be expedient to delve deep into this aspect of the matter. Suffice to note that the hand-written note of expenses, especially with regard to the Probate expenses, leaves much to be explained. What exacerbates the situation is the endeavour on the part of the Respondent to justify the said expenses. In the affidavit in reply, the Respondent contended: “It is common knowledge that no Department in the High Court or any other Courts in India function without clerical staff and the tips referred to are the handouts given to the clerks concerned.”

51. Though, the aforesaid factor may not have decisive significance on the exercise of jurisdiction under Section 301 of the Act, 1925, yet it reflects upon the manner in which the Respondent discharged her duties as an executrix.

52. Another material consideration is the state of affairs with regard to the administration of the estate of the testator. A factor which is of immense importance is the situation in life of the Petitioner No.2. As noted above, the testator was deeply concerned about the Petitioner No.2 on account of the mental health issues Petitioner No.2 was suffering from. Even after a decade of the demise of the testator, a valuable property remains unadministered. Litigation has ensued. The amount which could have been utilized for the treatment and welfare of the Petitioner No.2 remains blocked in the form of the property which is embroiled in litigation. The situation brought about by the precarious health condition of the Petitioner No.2 is such that it cannot brook delay. In the circumstances of the case, all the four beneficiaries are unlikely to agree upon the issues, which are necessary to facilitate the sale of the property. A huge trust deficit has developed; primarily on account of the aforesaid conduct of the Respondent. In such a situation, in my considered view, it is necessary to appoint an administrator, who is not one of the beneficiaries, to take steps to sell Ambadi House Property and distribute the sale proceeds.

53. From the aforesaid standpoint, the submission of the Respondent that the wishes of the testator must weigh with the Court in not removing the executor appointed by the testator, does not merit countenance.

54. I am, therefore, inclined to partly allow the Petition, remove the Respondent as an executrix and appoint the Court Receiver, High Court, Bombay, as an administrator as only Ambadi House property remains unadministered.

55. Hence, the following order: ORDER

(i) The Petition stands partly allowed.

(ii) The Respondent stands removed as Executrix of the Will and

(iii) The Court Receiver, High Court, Bombay is appointed to act as the Administrator of the estate of the deceased.

(iv) The Court Receiver, High Court, Bombay, is empowerd to sell the property situated at Peramangalam Village, Thrissur District, Kerala (Ambadi House property).

(v) The Court Receiver may file an appropriate Report seeking directions for the sale of Ambadi House Property.

(vi) The Respondent shall deposit the original documents of title in respect of Ambadi House Property with the Court Receiver, within a period of four weeks.

(vii) The Court Receiver is authorized to appoint a care taker for the said Ambadi House Property and seek assistance of professionals, valuers and brokers for the sale of the property.

(viii) The Petitioner Nos.[1] and 3 shall deposit a sum of Rs.50,000/each with the Court Receiver towards the initial charges and expenses of the Court Receiver.

(ix) The Respondent shall exhibit final accounts of the estate of the deceased showing the assets which have come to her hands and the manner in which they have been applied or disposed of till date, within a period of four weeks.

(x) The Misc. Petition stands disposed.

( N.J.JAMADAR, J. ) At this stage, the respondent in person seeks stay to the execution and operation of this order. As the respondent has been acting as executrix, since the demise of the testator, and this Court has already restrained the parties from acting upon the Probate, the execution and operation of this order stands stayed for a period of six weeks. However, the respondent shall not act upon the Probate. ( N.J.JAMADAR, J. )