TMI Blog2019 (1) TMI 1921X X X X Extracts X X X X X X X X Extracts X X X X ..... give effect to the words used in the statute and it will not be open to the Court to adopt hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. Only if, on going through the plain meaning of the language of the statute, it is found that it leads to anomalies, injustices and absurdities, the Court may look in to the purpose for which the statute has been brought and would try to give meaning, which would adhere to the purpose of the statute - It is also equally well settled that casus omissus is not to be readily inferred. It is equally well settled that for the purpose of providing casus omissus, all the parts of a statute or section must be construed together and every clause of a section should be construed with a reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute - Only when the provision is found to be ambiguous, it will be permissible for the Court to take recourse to the other principles of interpretation. Perusal of Section 301 would reveal that the said provision cannot be said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being sons and daughters of her predeceased brothers/sisters and her sisters in law (being the widows of her predeceased brothers) as her only legal heirs. The deceased had left behind, as part of her estate, various immovable properties as well as jewellery and shares etc. One of the most valuable assets left behind by the deceased was a Flat being Flat No. 303, Belmont, Napean Sea Road, Mumbai alongwith Garage (Hereinafter referred to as the Belmont Flat ) 4. Respondent Nos. 1 and 2 herein filed Probate Petition No. 223 of 2006 for propounding the Will dated 30/09/2001 of the deceased. Under the said Will, Respondent Nos. 1 and 2 were appointed as Executors and Trustees of the Estate of the deceased. Similarly, by the said Will, the Belmont Flat has been bequeathed to Respondent Nos. 1 and 2. The Will did not make any provision for remainder estates of the deceased, which therefore, according to the Appellants, devolved as of intestacy. 5. In the proceedings of the Probate Petition, Appellants and Respondent No. 5 lodged Caveats and filed Affidavits in support thereof, for opposing the grant of Probate of the Will. As such, the Probate Petition came to be converted into T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lodge the Will or contests the application for probate or Letters of Administration with Will Annexed. The application for removal posits the acceptance of a Will. (d) Any application for removal of an executor must necessarily be read as one for appointment of a successor in place and stead of that executor. There can be no application for removal of an executor or administrator under Section 301 without the appointment of a Successor to take his place. After making the above observations, the learned Single Judge held the Misc. Petition to be misconceived and not maintainable. Being aggrieved thereby, the present appeal. 8. Ms. Iyer, the learned Senior Counsel appearing on behalf of the Appellants, submits that the learned Single Judge has erred in holding that the said Misc. Petition was miscellaneous proceedings in Probate Petition, whereas, as a matter of fact, the said proceedings were independent proceedings under Section 301 and not the miscellaneous proceedings in Probate Petition. She submits that, though, initially, inadvertently the said Misc. Petition came to be filed as proceedings in Testamentary Suit No. 9 of 2007 in Testamentary Petition No. 223 of 2006, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dishonest and malafide manner, then the only remedy to such a person is to file proceedings under Section 301. She therefore submits that merely because such a beneficiary has also opposed the grant of probate, cannot be a ground to stop him from filing an application under Section 301. 11. The learned Senior Counsel further submits that the learned Single Judge, subsequently, in Notice of Motion No. 74 of 2015 in Testamentary Suit No. 14 of 2004 in Testamentary Petition No. 80 of 2004 (Vasant Narayan Sardal vs. Ashita Tham Ors), vide order dated 03/05/2018, has himself held that the Court was not powerless under Section 301 and entitled to invoke the powers under Section 301 suo motu for removal of the executor and appointed Officer of this Court in place of the Plaintiff in Testamentary Suit and allowed to convert the Suit to one for Letters of Administration with Will annexed. The learned Senior Counsel submits that the same course of action could have been followed by the learned Single Judge, in the present matter also. 12. Mr. Andhyarujina, the learned Counsel appearing on behalf of Respondent Nos. 1 and 2, submits that clause (c) of Section 2 read with Section 222, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute to the contrary. It is also equally well settled that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences. It will be relevant to refer to the following observations of their Lordships of the Apex Court in the case of Union of India through Director of Income Tax vs. Tata Chemicals Limited (2014) 6 SCC 335. 22. It is cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, ordinary or popular sense and constructed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of a statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver. The courts have adhered to the principle that efforts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position prevalent in this country is not much different from the law as stated in England. This Court has in several decisions held that casus omissus cannot be supplied except in the case of clear necessity and when reason for it is found within the four corners of the statute itself. The doctrine was first discussed by V.D. Tulzapurkar, J. in CIT v. National Taj Traders [(1980) 1 SCC 370: 1980 SCC (Tax) 124]. Interpretative assistance was taken by this Court from Maxwell on Interpretation of Statutes (12th Edn.), pp. 33 and 47. The Court said: (SCC pp. 375-76, para 10) 10. Two principles of construction--one relating to casus omissus and the other in regard to reading the statute as a whole--appear to be well settled. In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes (12th Edn.) at p. 33: Omissions not to be inferred.--It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Morsey said: 'It is a strong thing to read into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction. [Per Lord Reid in Luke v. IRC[1963 AC 557: (1963) 2 WLR 559: (1963) 1 All ER 655 (HL)] where at AC p. 577 (All ER p. 664I) he also observed: 'This is not a new problem, though our standard of drafting is such that it rarely emerges'.] In the light of these principles we will have to construe sub-section (2)(b) with reference to the context and other clauses of Section 33-B. 22. Arijit Pasayat, J. has verbatim relied upon the above in Padma Sundara Raov. State of T.N. [(2002) 3 SCC 533], Union of India v. Dharamendra Textile Processors [(2008) 13 SCC 369], Nagar Palika Nigam v. Krishi Upaj Mandi Samiti[(2008) 12 SCC 364], Sangeeta Singh v. Union of India [(2005) 7 SCC 484], State of Kerala v. P.V. Neelakandan Nair [(2005) 5 SCC 561 : 2005 SCC (L S) 698], Union of India v. Priyankan Sharan [(2008) 9 SCC 15], Maulavi Hussein Haji Abraham Umarji v. State of Gujarat [(2004) 6 SCC 672: 2004 SCC (Cri.) 1815: 2004 Cri. LJ 3860], Unique Butyle Tube Industries (P) Ltd. v. U.P. Financial Corpn.[(2003) 2 SCC 455], Union of India v. Rajiv Kumar [(2003) 6 SCC 516 : 2003 SCC (L S) 928], Shiv Shakti Coop. Housing Society v. Swaraj Developers [(2003) 6 SCC 659], Prakash Nath K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus be seen that it is more than well settled that the first principle of interpretation is that of plain and literal interpretation. Only when the provision is found to be ambiguous, it will be permissible for the Court to take recourse to the other principles of interpretation. 18. As discussed hereinabove, perusal of Section 301 would reveal that the said provision cannot be said to be ambiguous or one, leading to anomalies, injustices and absurdities. It will be relevant to note that Section 301 falls in Part IX of the Succession Act, which deals with Probate, Letters of Administration and Administration of Assets of Deceased. Perusal of Section 234 of the Succession Act shows that it deals with grant of administration where no executor, nor residuary legatee nor representative of the said legatee is available. It provides that in such cases, Letters of Administration could be granted to various persons including creditor. Section 301 also comes under the same part. Neither the learned Counsel for Respondent Nos. 1 and 2 have been in a position to point out nor could we notice any provision under the Succession Act, which could show that the legislative intent was to rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they never had any (see Maxwell on the Interpretation of Statutes, 7th Edition, p. 115). On the other hand, the proposition is well established that where an Act creates a special jurisdiction and provides a special remedy such jurisdiction is exclusively conferred upon the Court expressly empowered to deal with the matter. My conclusion is that the power to remove an executor and to provide for a successor to his office is one conferred upon the High Court alone by S. 301, Succession Act, and that such relief cannot be sought by regular suit. (Emphasis supplied) No doubt that, the learned Single Judge has referred to the judgment in the case of Karam Devi (cited supra) but has held that observations in the case of Karam Devi, leads directly to the proposition that the application under Section 301 for removal of the executor can only be maintained by one who accepts the Will. With great respect, we are unable to find any observations in the judgment of Division Bench of the Lahore High Court in the case of Karam Devi, which would lead to the conclusion that the application under Section 301 can be made only by a person who accepts the Will. 21. We further find that find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his actions? Where there is such a Will, one that gives to public causes, I do not believe that this Court's jurisdiction can ever be said to end at being a silent spectator. Whenever a Court in the performance of its duties sees wrong being done, it will step in. For, the primary task of a Court is to prevent a wrong from being done, and, if already done, to correct it. Not to allow unlawfulness, illegality and injustice to run their polluted course. To allow that is unthinkable. It is a betrayal and abdication of any judge's oath of office and judicial duty. I do not think there is anything in the ISA that says that a Court is to be sidelined and become hapless, mute witness and nothing more. After all when a Will is sought to be probated the result is an order in rem. It is global in reach. This makes it all the more incumbent on a Court to intervene and not sit idly by when there is demonstrated illegality or unlawfulness writ on the face of record. Therefore, in a situation like this-where there is no named legatee who can seek removal of an errant executor-the Court can and will step in as a guardian and custodian of the interest that devolves in that Will. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardal (cited supra), could have been followed. 23. For the aforesaid reasons, we find that finding of the learned Single Judge that application under Section 301 for removal of executor can be made only by a beneficiary and legatee who accepts the Will and cannot be made by a person who seeks to dislodge the Will or contest the application for probate or Letters of Administration with Will annexed, is not sustainable. Insofar as other findings are concerned, the same are not challenged before us. 24. In the result, appeal is allowed. The order of learned Single Judge holding that Misc. Petition was and was not maintainable is quashed and set aside. It is held that the Misc. Petition at the behest of the present Appellants under Section 301 is maintainable. The matter is therefore remitted to the learned Single Judge to decide the Misc. Petition on its own merits. We clarify that we have not considered the merits of the matter and have decided the appeal only on the ground of maintainability of the Misc. Petition filed at the behest of the present Appellants. 25. Since the Appeal is allowed and disposed of, Notices of Motion taken out therein do not survive and they are als ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
