TMI Blog2017 (8) TMI 1727X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the Will. The probate granted by a Testamentary Court does not establish that the testator had title to the property covered by the Will. It is not the duty of the Probate Court to consider any issue as to the title of the testator to the property with which the Will in question purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. It would be most injudicious to upset the settled practice of this court which has been uniformly followed since a long time and for the Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will. The Probate Court has no authority or jurisdiction to decide questions of title. If a Will purports to deal with a property which belongs not to the testator but to somebody else, the remedy of that person is to approach the Civil Court to establish his right of ownership in respect of such property. Such person cannot seek to enlarge the scope of the probate proceeding by applying before the Probate Court to exclude his/her property from the affidavit of assets. Such person has to establish his/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June 28, 2011; (f) Your petitioner or such other person as this Hon'ble Court deems fit and proper be appointed Administrator pendent lite over and in respect of the estate of Late Abha Rani Sinha including the assets and properties of the said deceased as mentioned more fully and particularly in the affidavit of assets affirmed by Anjan Chakraborty on 23rd March, 2012 and filed in PLA No. 88 of 2012 which is annexure 'E' hereto; (g) Order dated June 11, 2012 passed by this Hon'ble Court be recalled; GA No. 3234 of 2012 has been filed by one Mary Catherine Sinha, the other joint executor of the said Will pray for the following orders:- (a) An order be passed directing the Manager of the Indian Bank, Sarat Bose Road Branch to cause the three lockers bearing Nos. 240, 13 and 136 to be opened and the valuables, goods and/or articles lying thereat be inventorised and leave be given to your petitioner to take possession thereof; (b) The affidavit of assets being annexure 'V' thereto prepared by the petitioner be taken on record and the same be treated as the true and correct affidavit of assets of the said deceased; (c) Probate of the Will dated 28th March, 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng currency belonging to Mary were credited into the bank account, after conversion into Indian currency. It was said that this amount was received on sale of Mary's house in Britain. This assertion could not be controverted. On the same principle, I hold that Mrs. Mary Catherine Sinha is entitled to the account of which Abha Rani Sinha was the first holder and she was the second holder but income tax returns were filed by her. Therefore, prima facie, I hold that Mrs. Mary Catherine will be allowed to operate these accounts shown in Box B and Box C without any restriction whatsoever. On the same premises, the accounts which were jointly held by her and her mother-in-law, in which the name of her mother-in-law appeared as the first holder and taxed in the latter's hands will be presumed to belong to her mother-in-law and she will be unable to operate those accounts. The existing interim orders are modified to the above extent. The above observations are prima facie. I also know that there are serious disputes between the parties regarding the source and application of the above funds. Those disputes cannot be resolved in this probate proceeding. I have made my prima facie ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 26 September, 2012. Thereafter in or about November, 2012, Mary filed her said application alleging that the affidavit of assets affirmed by Anjan was erroneous and the affidavit of assets prepared by her should be accepted as the true and correct affidavit of assets. There is no explanation as to why Mary did not immediately object to the affidavit of assets affirmed by Anjan and filed with the probate application. 9. The Will provides for monetary bequests of Rs. 5 crores to Ram Krishna Mission Vivekananda University (out of which Rs. 2 crores was already paid during Abha's lifetime) and Rs. 5 crores to Mary. In the event it is held that the moneys in the bank accounts are exclusive properties of the first holder, i.e. Mary, Abha's Will will become unworkable as sufficient moneys to cover all the dispositions will not be available with the executor. Hence, Abha certainly treated the moneys in all the bank accounts as her exclusive property and the same appears from her conduct. Further, the Will authorises the executor to operate the bank accounts (Clause 5(a) of the Will). 10. Learned Counsel then submitted that admittedly the moneys which have been withdrawn by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian Succession Act, 1925, when an executor or administrator misapplies the estate of the deceased or subjects it to loss or damage he is liable to make good the loss or damage so caused. Mary is thus under an obligation to forthwith refund all withdrawals made by her from the joint accounts held in the names of Abha and herself. 14. Learned Counsel submitted that it is true that Bikash is only a residuary legatee. He is a world-renowned scientist and is extremely well off himself. The present application has not been filed by him merely for extracting money from Mary as she has contended. Bikash is interested in ensuring that the estate of Abha is not wasted away and is disposed of and administered according to her last wishes. Hence, appropriate orders should be passed restraining Mary from siphoning of the estate of Abha. The moneys already withdrawn by Mary should be directed to be kept separately in a bank account. 15. Learned Counsel further submitted that Abha also left behind huge movable assets apart from the moneys in the bank accounts and investments, including jewellery, paintings, artifacts etc. which are also the subject matter of her Will. These assets were accre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors to operate the bank accounts and deal with the term deposits jointly held in which Mary's name appeared as the first holder, upon condition that Mary would maintain accounts. Since the Will was not disputed as the only natural heir of Abha being her son had pre-deceased her, the application was disposed of by directing the joint executors and the department to take expeditious steps to obtain probate of the Will. However, no steps were taken by Anjan to obtain probate of the Will. 21. Learned Counsel submitted that Anjan having failed to obtain prohibitory orders in respect of the Mary's bank accounts, he has set up Bikash who is a residuary beneficiary under the Will. In his application, Bikash has made the same allegations that Anjan had made in his application. He submitted that paragraphs 10, 12 and 16 of Bikash's application containing the allegations against Mary are identical with those of Anjan's earlier application and have been affirmed by Bikash as 'information received from Anjan Chakraborty'. 22. In GA No. 2679 of 2012 i.e. Bikash's application, initially, by an order dated 3 January, 2013 a ceiling on withdrawal by the joint executors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 26AS being Mary's tax statement under Sec. 203 AA of the Income Tax Act for the financial year 2007-08 (page 183 of Mary's application). The said account is the one mentioned in Box-C in the order dated 21 February, 2013. 25. The particulars in respect of the accounts mentioned in Box-B primarily relate to savings account No. 025-246448-006 held with the HSBC Bank and some fixed deposits and term deposits wherein Mary is the first holder and Abha was the second holder. The said particulars have been stated in details in paragraphs 18(b) and 18(f) of Mary's application. The source of funds from sale of the property in United Kingdom and investment in Meryll Lynch and subsequent transfer thereof to HSBC bank has been explained in the said paragraphs, made with the supplementary affidavit filed by Mary. 26. Regarding the accounts mentioned in Box-A, there is no dispute that the same have all along been shown in the tax returns of Abha and actually form part of the estate of Abha. 27. On the basis of the aforesaid submission, Learned Counsel submitted that the affidavit of assets filed by Anjan is to be rectified in the manner indicated in red ink in Annexure-V to Mary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolutely no dispute, is an attempt to obtain some money on the purported pretext of settling the matter as it is evident that the residuary legatee would not receive any fund in the event two prior bequests are given effect to including the disbursement of a further sum of Rs. 2 crores to Ram Krishna Mission and disbursement of Rs. 5 crores to Mary out of the assets of Abha. For this oblique purpose, the assets of Mary have been sought to be included in the affidavit of assets annexed to the probate application. 32. Learned Counsel finally submitted that it is absurd to suggest that by reason of the name of Abha being mentioned in the joint accounts, the same becomes part of Abha's estate by operation of law. It has been demonstrated by placing reliance on the income tax returns of Abha and Mary as to how they themselves treated such accounts. The other submission of Learned Counsel for Bikash that the money lying in the accounts of Mary has been obtained from the joint family properties of her husband is without any basis and bereft of any particulars. On the basis of the aforesaid submissions, learned Counsel submitted that the application of Bikash should be rejected and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contrary intention or gift is on the person who seeks to rebut the resulting trust in favour of the person who makes the deposit. (v) This burden could be discharged either by proving that there was a specific gift or that the owner of the money had a general intention to benefit the claimant and that it was in pursuance of that intention that he made the deposit in the claimant's name or transferred the deposit to the joint names of himself and the claimant. (vi) In the absence of such proof the amount under the deposit will form part of the owner's estate on his death and will be partible among the heirs. 36. On the contrary, the short contention of Mary is that bank accounts have been shown in the affidavit of assets filed with the probate application, the moneys lying wherein belong exclusively to Mary and hence should be deleted from the affidavit of assets. Learned Counsel has relied on several documents to try and substantiate his contention that Mary is the sole and exclusive owner of the moneys in the said bank accounts. 37. I have noted the arguments of learned Counsel for Bikash and Mary in extenso. However, I need not deal with the same in detail for the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will. (39) In the case of Mrs. Hem Nolini Judah (Since Deceased) v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471, our Apex Court observed that questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever happens in probate proceedings would not establish the title to the property covered by the Will in favour of anybody. 40. From the aforesaid authorities it is absolutely clear that the Probate Court has no authority or jurisdiction to decide questions of title. If a Will purports to deal with a property which belongs not to the testator but to somebody else, the remedy of that person is to approach the Civil Court to establish his right of ownership in respect of such property. Such person cannot seek to enlarge the scope of the probate proceeding by applying before the Probate Court to exclude his/her property from the affidavit of assets. Such person has to establish his/her right to such property in an appropriately constituted civil suit following due process of law. Even if I grant probate of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural about the Will. No caveat was filed by anybody. As per the certificate of the Registrar, Original Side, Testamentary and Intestate Jurisdiction issued on 4 April, 2012, there is no intimation from any other High Court or any District Court in India of grant of probate of any Will or letters of administration of the property and credits of Abha Rani Sinha. 45. In view of the aforesaid, I find no reason to withhold grant of probate of the said Will. 46. However, I am not inclined to grant probate in favour of Anjan alone who is one of the joint executors named in the Will. Mary is the other joint executor named by Abha in her said Will. Further, in Mary's application being GA No. 3234 of 2012 she has prayed for probate of the said Will in favour of the joint executors being Anjan and herself. 47. Accordingly, the Will dated 28 March, 2011 made and published by Abha Rani Sinha is admitted to probate. Probate in respect of the said Will of the deceased is granted to Anjan Chakraborty and Mary Catherine Sinha being the joint executors named in the said Will limited to the estate mentioned therein with effect throughout the Union of India without requiring the joint executors to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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