2018 (5) TMI 2174 - HC - Indian Laws

Reinstatement of Behram Ardeshir (Ardeshir) as an executor after his renunciation - reversion to a prior state of affairs where Ardeshir had renounced executorship and Sardal continued alone - HELD THAT - Simply on the ground of physical and mental incapacity Sardal must be removed at once. His acts as an executor are being directed entirely by his son and this is plainly apparent from what has transpired in Court - Vasant Narayan Sardal is removed as an executor but in consideration of his age and health, I will, for the foregoing observations notwithstanding, direct that this removal has to be read on account of his infirmity and advanced years and his demonstrable incapacity to discharge the duties required of an executor appointed under a Will. Notice of Motion will have to be allowed. Those Consent Terms were, on the face of it, not such as could have been taken in a Testamentary Suit pending probate. They were directly contrary to the terms of the Will. Very often even probate proceedings are compromised but where in that compromise probate is accepted what then follows is a family arrangement not inconsistent with the grant or with the title that has passed through grant. In the present case, there was no possibility of any such family arrangement or compromise following on the grant of probate because that probate completely excluded the surviving members of the family. Notice of motion allowed.

Summary

Issues Involved:
1. Withdrawal of Notice of Motion by Ashita, Monica, and Pooja.
2. Recall of the 2009 order reinstating Behram Ardeshir as executor.
3. Legality of reinstating an executor after renunciation under Section 230 of the Indian Succession Act, 1925.
4. Removal of Vasant Narayan Sardal as executor for misconduct.
5. Setting aside of Consent Terms in Testamentary Suit No. 14 of 2004 and Administration Suit No. 4060 of 2003.
6. Appointment of a Court Officer to administer the estate.

Issue-wise Detailed Analysis:

1. Withdrawal of Notice of Motion by Ashita, Monica, and Pooja:
The Notice of Motion (L) No. 101 of 2018 filed by Ashita, Monica, and Pooja for the removal of Vasant Sardal was allowed to be withdrawn on 25th April 2018.

2. Recall of the 2009 Order Reinstating Behram Ardeshir as Executor:
Notice of Motion No. 74 of 2015 was filed by Vasant Narayan Sardal to recall the order passed on 30th July 2009, which reinstated Behram Ardeshir as an executor after his renunciation. The court noted that Ardeshir, present in court, did not wish to continue as an executor. This rendered Sardal’s Notice of Motion infructuous. Additionally, the court observed that the 2009 order did not consider Section 230 of the Indian Succession Act, 1925, which prohibits an executor who has renounced from ever thereafter applying for probate.

3. Legality of Reinstating an Executor After Renunciation:
Section 230 of the Indian Succession Act, 1925, places a total prohibition on an executor who has renounced from ever thereafter seeking probate. The court emphasized that the renunciation is irrevocable and irreversible. The reliance on the decision of Rangnekar J in In Re: Manchersha Pestonji was inapt because it dealt with the reinstatement of an administrator, not an executor. Thus, the 2009 order was not the correct position in law.

4. Removal of Vasant Narayan Sardal as Executor for Misconduct:
The court considered whether Sardal should be removed for demonstrated and proven misconduct. Sardal unlawfully entered into Consent Terms with Ashita, Monica, and Pooja, contrary to the terms of Bipin Gupta’s Will. The Consent Terms contemplated receipt of money for surrendering tenancy rights, which was questionable and contrary to the Will. Additionally, Sardal transacted with Gupta's sisters regarding a flat at Mahim, which was against the deceased’s wishes. The court noted that Sardal’s actions justified his removal under Section 301 of the ISA, which allows the High Court to remove an executor for misconduct.

5. Setting Aside of Consent Terms:
The court set aside the Consent Terms filed in Testamentary Suit No. 14 of 2004 and Administration Suit No. 4060 of 2003. These terms were contrary to the Will and could not have been taken in a pending probate suit. The court recalled the orders of 22nd February 2006 and 24th April 2006, restoring both suits to file.

6. Appointment of a Court Officer to Administer the Estate:
The court appointed Mr. Ketan Trivedi, the Commissioner for Taking Accounts, as the Plaintiff in the Testamentary Suit to convert it to one for Letters of Administration with Will annexed. The role of this Officer will be limited to summoning attesting witnesses and taking their evidence directly in court. The court directed that all funds belonging to Bipin Gupta’s estate in Sardal’s hands be deposited with the Prothonotary and Senior Master within four weeks.

Conclusion:
The court dismissed Notice of Motion No. 74 of 2015 seeking a recall of the 2009 order reinstating Ardeshir. Vasant Narayan Sardal was removed as an executor due to his age, health, and demonstrated incapacity. The Consent Terms in Testamentary Suit No. 14 of 2004 and Administration Suit No. 4060 of 2003 were set aside. Mr. Ketan Trivedi was appointed to administer the estate. The court directed the Defendants to file an affidavit detailing the estate’s assets and their handling by 15th June 2018. All rights and contentions of the Defendants regarding the estate were kept open for future adjudication.