TMI Blog2018 (5) TMI 2174X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity 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. - G.S. PATEL, J Ms Ankita Singhania, i/b Kalpesh Nansi, for Plaintiff No. 1, Vasant Narayan Sardal. Mr Jehangir Jeejeebhoy, i/b Balasaheb Deshmukh, for Plaintiff No. 2, Behram Ardeshir. Mr Shailesh Shah, Senior Advocate, with Archit Jayakar Trupti Khadse, i/b Jayakar partners for the Defendants/Applicants in NMSL/85/2018. Ms Siddhi Doshi, i/b Bilawala Co. PC:- 1. In my order of 9th April 2018 I set out at some considerable length factual backgroun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reinstatement of an executor who had renounced. He was concerned with the reinstatement of an administrator, a very different thing. The argument before Rangnekar J was that an administrator and an executor stood at par. Rangnekar J did notice Section 230 of the Indian Succession Act 1925, but held that this had no application to an administrator, always someone appointed by a Court. This is to be carefully distinguished from the role of an executor who is never appointed by a Court but always only by a testamentary instrument. This is in fact the rationale for Section 230, and this why there is no corresponding section in regard to an administrator. 6. In fact, In Re: Manchersha Pestonji is actually against the proposition that was advanced on 30th July 2009. It said that an administrator could be re-appointed; it did not say that an executor could that would have been in the teeth of Section 230 and entirely wrong. Thus, In Re: Manchersha Pestonji could not have been invoked in support of the very proposition it rejected or, at any rate, did not accept. The order of 30th July 2009 is, therefore, not the correct position in law. 7. The irrevocability of an executor s renunciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary Suit, on which an order was made on 22nd February 2006, and in the Administration Suit, on which an order was made on 24th April 2006, are themselves (i.e. the Consent Terms) of very dubious legality and tenability. In this order I propose to set them aside both in the Testamentary Suit and in the Administration Suit. 12. In addition, and this is also not disputed, although Bipin Gupta said that no part of his estate was to go to his three sisters (Pooja is the daughter of a predeceased sister), Sardal has actually transacted with them in respect of a flat at Mahim. This he could not have done either. 13. The Consent Terms were structured in a way that contemplated receipt of money, presumably cash, from the landlord for surrender of tenancy rights of the Marine Drive flat at Firdaus . The Consent Terms proposed the sharing of this unlawful bounty (even if lawful under the Rent Act 1999, it is questionable and certainly unlawful under the terms of the Will) between Sardal and the three ladies. Interestingly, the Consent Terms do not mention that a half share would come to Bipin Gupta s estate. They only name Sardal personally. 14. Even if Sardal had been capable of administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although I believe I could and there would be some justification for it. Sardal is 82 years old. He is clearly in failing health. He is hardly able to hear. His comprehension of what is happening in this Court is so poor that it might as well not exist. He is in no condition to administer the estate. He is in no condition to understand the implications of a removal for cause as opposed to a renunciation which requires no justification. His mind completely appears to be dominated by his son, Anil Sardal, one of the attesting witnesses to the Will. This is apparent from what he himself has said before me not once but repeatedly. He first said he would need to consult his son about the flat. That is not his concern at all. He then said that he would do that which his son suggested or required. His son has no role to play in all of this. 17. I heard this matter for some time at 3.00 pm Sardal was not able to hear me in otherwise quiet court room, one that is not especially large. I kept the matter back till 5.00 pm to pass this order. Before pronouncing this order I once again asked him what he proposed to do in the matter. In the meantime, Ms Singhania, with all her limitations of ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant of probate because that probate completely excluded the surviving members of the family. Chandrabhai K Bhoir Ors v Krishna Arjun Bhoir Ors, (2009) 2 SCC 315. 25. Thus, the Consent Terms in Testamentary Suit No. 14 of 2004 are set aside, and the order of 22nd February 2006 is recalled. Testamentary Suit No. 14 of 2004 is restored to file along with Caveats filed therein. I will separately frame issues and pass directions in the Testamentary Suit. Notice of Motion (L) No. 85 of 2018 is made absolute. No costs. 26. For these reasons too, Notice of Motion (L) No. 689 of 2018 in administration Suit No. 4060 of 2003 must succeed. The Consent Terms of February 2006 in Suit No. 4060 of 2003 are set aside. The order of 24th April 2006 taking those Consent Terms on record is recalled. The administration Suit is restored to file. Notice of Motion (L) No. 689 of 2018 is made absolute in terms of prayer clauses (a) and (b). No costs. 27. What remains, therefore, is to appoint an Officer of this Court in place and stead of the Plaintiffs in Testamentary Suit No. 14 of 2004 and to allow him or her to convert the Suit to one for Letters of Administration with Will annexed since an Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re kept open in regard to all claims that they may have in respect of the estate of the deceased, the acts of the executors in that context. Any applications that may be made for protective orders will then be adjudicated on their own merits. NOTE :- 1 See: In the goods of Manick Lal Seal, ILR (1908) 35 Cal 156; Venkataramier v A Govindarayalier, AIR 1926 Mad 605; In Re Lakhshmi Shanker Anr, AIR 1941 Oudh 293 (FB) (approving Venkataramier); Samir Chandra Das v Bibhas Chandra Das Anr, (2010) 6 SCC 432, approving Manick Lal Seal and Venkataramier, but not noticing Lakhshmi Shanker (Oudh FB); Reena Sanjay Minz Anr v Jigna Jay Kantawala, order dated 9th June 2015 in Notice of Motion No. 64 of 2014 in Testamentary Suit No. 15 of 2007, following Lakhshmi Shanker and Samir Chandra Das appeal dismissed: Reena Sanjay Minz Ors v Jigna Jay Kantawala, 2016 (4) Bom CR 642; Krishnanand Arvind Velinker v Kamalini Arvind Velinker Ors, Order dated 19th October 2015 in Chamber Summons No. 95 of 2015 in Testamentary Suit No. 89 of 2014; following Lakhshmi Shanker and Samir Chandra Das; of the testator and validates all intermediate acts of the executor as such. ISA, Section 226 - - TaxTMI - TMITa ..... 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