P.B. Srinivasan and another vs T.P.S. Varadhan

Nainar Sundaram, J.—These two Original Petitions have been filed by the second son and the widow of a predeceased son of one late Dr.

P.B. Annangarachari under the provisions of the Indian Succession Act (Act XXXIX of 1925) (hereinafter referred to as the Act). The

proceedings concern the registered Will of late Dr. P.B. Annangarachari which is of the date 26th April, 1973. The respondent in the two petitions

is the executor appointed under the said Will. O.P. No. 200 of 1979 is preferred under S.301of the Act for the removal of the respondent as

executor appointed under the Will. O.P. No. 212 of 1979 is one filed under Ss.192 and 194 of the Act for a direction to the respondent to deliver

to the petitioners possession of the X-Ray unit known as T. Nagar X-Rays, situate at No. 99, Usman Road, T. Nagar, Madras-17, on the ground,

the respondent has no lawful title to be in possession thereof. Before the respective cases of the parties are considered on merits, it becomes

necessary to set out certain events which have preceded the institution of the present proceedings. Even during the lifetime of late Dr. P.B.

Annangarachari, the respondent seems to have been put in charge of the X-Ray unit at the premises in question. This is also evident from Ex. P9,

copy of a letter addressed by the respondent to late Dr. P.B. Annangarachari, dated 23rd April, 1972, and copy of the reply dated 2nd October,

1972 written by late Dr. P.B. Annangarachari to the respondent. These two letters disclose that there was a register of dissatisfaction by the

respondent with regard to the notes of instructions given by late Dr. P.B. Annangarachari over the manning of the X-Ray Unit and that was

repelled by late Dr. P.B. Annangarachari pointing out to the respondent that his complaint was in bad taste and ignored actual facts. On 28th April

1973, late Dr. P.B. Annangarachari executed the Will in question under the original of Ex.P1 (which is a photostat copy) bequeathing the

properties to his second son, the first petitioner, and the widow of his pre-deceased son, the second petitioner herein. The petitioners are the

beneficiaries with regard to the X-Ray unit and as stated above, the executor appointed under the said Will is the respondent. On 8th September,

1973, late Dr. P.B. Annangarachari gave a general power under Ex. P7 to Dr. S. Srinivasachari, who is his eldest son-in-law. Under this general

power, Dr. S. Srinivasachari was given the power to take charge of the running of the X-Ray unit, maintain accounts, expand the sections, collect

moneys due and payable to the X-Ray unit and to do all further acts and things necessary for the purpose of efficiently running the X-Ray unit. It

was further declared that the said power is irrevocable for a period of three years from the date of its execution. Dr. S. Srinivasachari seemed to

have entered into an arrangement with the respondent, permitting him to run the X-Ray unit and agreeing to certain conditions. The arrangement

was agreed to be in force from 1st April, 1976 till 31st March, 1979 and the understanding was that if any of the conditions stipulated was not

adhered to, the arrangement should be revoked. The arrangement was reduced to writing and the document in the hand-writing of Dr. S.

Srinivasachari has been marked in this case as Ex. R1. It does mot bear the signature of either party, The contents of Ex. R1 run as follows:

I. T.P.S. Varadhan, residing at 44-A. Thambiah Reddy Street, Madras-33, hereby agree to run the T. Nagar X-Rays in the same premises under

the following terms and conditions :--

To take X-Rays and collect all money due to the Dept. and run the Dept. efficiently.

To Pay the proprietor Dr. P.B.A. or to his nominee or to his heirs in the event of his death, a sum of Rs. 100/- (Rupees one hundred only) per

day.

To pay into any S.B. a/c Rs. 10/- (Rupees Ten only) as a reserve fund for renewal and repairs.

To pay the bills of purchase of films, chemicals. Stationery and printing and also electricity.

This agreement shall be in force from 1st April, 1976 to 31st March, 1979 and shall be revoked if any of the above conditions being not adhered

to.

Two other slips in the handwriting of Dr. S. Srinivasachari are also found annexed to Ex. R1 and they have been marked as Exs. R2 and R3. An

unauthenticated copy of the Income and Expenditure account of the X-Ray unit for the year ending 31st March, 1978 has been filed and marked

in this case as Ex. P6. Late Dr. P.B. Annangarachari died on 26th January. 1979. After his death, troubles brewed between the parties and the

correspondence that has come to be exchanged between them has been marked as Exs. P2 to P5. From the said correspondence, it is clear that

the respondent has chosen to claim a lease-hold right over the X-Ray unit and this has precipitated the petitioners to institute the present

proceedings for the reliefs set out above.

In O.P. No. 200 of 1979 the petitioners want the removal of the respondent from executorships for the reasons set out in paragraph 9 of the

petition and they will be better appreciated if they stand extracted as follows:

The respondent has not so far taken any steps to obtain a probate of the Will, solely with a view to aggrandise himself.

The respondent has claimed falsely that he is a lessee of the X-Ray unit, which consists of very valuable properties and equipment.

Having been employed under the Testator, the respondent with fraudulent intention to defraud the beneficiaries under the Will and against the

instructions of the petitioners and without their consent broke open the doors of the X-Ray unit on 19th May, 1979 and is carrying on business and

appropriating the entire proceeds of the business without accounting to the petitioners, the beneficiaries for the whole of the realisations.

The respondent has not accounted for the entire realisations of the business from 27th January, 1979, which he ought to have done, but has

been disclosing only an infinite small part of the revenue and appropriating to himself the proceeds. This amounts to devastation of the estate of the

deceased testator.

When he was confronted, the respondent had the audacity to say that he will do whatever he likes and that he is an executor under the Will and

that the petitioners have no right to question him and the petitioners should obtain probate of the Will, which should be done by him and that if the

petitioners or anybody else interfered with him, he would cause them bodily harm and would not permit the petitioners to have any access to the

records and affairs of the T. Nagar X-Rays.

In the counter statement of the respondent, he would elaborately trace the events which preceded the institution of the proceedings and array

them from his own angle, and would controvert the reasons advanced, as above, for his removal from executorship. But in substance he would

state that the X-Ray unit is maintained and managed by him under a lease agreement in his own capacity thereby indicating that he cannot give up

his right to be in possession of the X.Ray unit as a lessee as claimed by him. The allegations in O.P. No. 212 of 1979 run similar to the allegations

in O.P. No. 200 of 1979 and agitating their right to be in possession of the X. Ray unit as legatees under the Will of late Dr. P.B. Annangarachari

and alleging that the respondent has no lawful right to be in possession of the said X-Ray unit, the petitioners want delivery of possession of the X-

Ray unit from the respondent. The counter statement of the respondent would resist this prayer on grounds of defence similar to those advanced in

O.P. No. 200 of 1979. On the contentions raised in the pleadings of the parties, the following points arise for determination by this Courts.

Whether the petitioners are entitled to have the respondent removed from the executorship under the Will in question ?

Whether the petitioners are entitled to delivery of possession of the X-Ray unit in question from the respondent?

The main controversy between the parties centres around the lease-hold right claimed by the respondent over the X-Ray unit. There is no

ambiguity that the arrangement evidenced by Ex.R1 came to an end with the expiry of the period on 31st March, 1979. The respondent has no

specific case that the arrangement was continued after the lapse of the period reserved, by a renewal, express or implied. There is no such plea at

all in the pleadings of the respondent. As to how the arrangement continued after 31st March, 1979, the evidence of the respondent as R. W. 1 at

pages 111, 116 and 117 of the transcript of evidence, as extracted below, reveals his stand.

... ... ... ... ...

[The extracts from evidence and discussion on facts are omitted:--Ed.]

To a question by this court as to what are the rights of the respondent over the X-Ray unit after 31st March, 1979, his learned counsel could

not give any convincing answer. It would be far-fetched to describe the arrangement under Ex.R1 as one of lease. Even assuming it could be

characterised as an arrangement of lease of the X Ray Unit, it came to an end with the lapse of March, 1979. How any right or obligation under it

could survive and survived beyond 31st March 1979, there is no tenable explanation. The learned counsel attempted to bring his client''s claims as

those of a lessee holding over within the ambit of the provisions of the Transfer of Property Act. This is a patent misconception, both in law and on

facts. Such is not the plea of the respondent either in his pleadings or in his evidence. It does not require further consideration. Before parting with

this aspect, it must be pointed out that the oral evidence placed in this case has gone beyond the scope of the real controversy, which alone need

be solved in this case. At to under what capacity or under what authority the respondent is still holding possession, his evidence at pages 126 to

128 of the transcript of evidence is interesting; and the same is extracted hereunder: [Extracts omitted--Ed.]

x x x

At no point of time earlier, he put forward the theory that his possession of the X-Ray unit is only in his capacity as an executor. Obviously, this

stand is purely an after-thought, intended to mollify the utter lack of bona fides when he put forth a claim as a lessee of the X-Ray unit. His

evidence at pages 138 and 139 of the transcript of evidence runs contra to his earlier evidence referred to above, as could be seen from the

following extract: [Extracts omitted-Ed.]

x x x

R.W. 1, the respondent categorically answered that even if the petitioners establish their right under the Will, he is not prepared to give it up and

he will not hand over back. Such is the attitude of the respondent. The analysis of the materials placed in this case leaves no room for doubt that

the lease-hold right claimed by the respondent is patently unsustainable and is nothing but a myth coming out of the imagination of the respondent.

Here is a person who put forward a claim as a lessee, obviously sensed its futility and has turned back, and would state that he would like to be in

possession as an executor and even to this stand, he would not stick on and would further state that he would like to continue even after the

beneficiaries establish their rights. A person who is capable of such prevaricating stand is not a desirable person to function as an executor under

the Will. He has no qualms to put forth a false claim, adverse to and defeating and thwarting the legitimate rights of the beneficiaries under the Will.

The respondent does not dispute that the petitioners are the beneficiaries under the Will and he would insist on the probate of the Will being

obtained by them. The very fact that he has put forth a right, which is absolutely untenable and which conflicts with the rights of the beneficiaries is

sufficient for this Court to exercise the powers under S. 301of the Act. He has acted with extreme mala fides and his acts border to misconduct as

an executor. The guide-line must be the welfare of the beneficiaries and certainly, the conduct of the respondent is not conducive to the welfare of

the beneficiaries.

In this context, the orders passed by this Court in interlocutory applications cannot also be lost sight of. In Application No. 1956 of 1979, which

is one for appointment of a Receiver, taken by the petitioners, this Court, by order dated 2nd July, 1979, instead of appointing a Receiver as

prayed for, directed the respondent to pay the petitioners a sum of Rs. 200/- per day from 1st May, 1979 and further directed that the arrears

upto date should be paid within two weeks from that day. The respondent had not cared to make the payments at the rate of Rs. 200/- per day

upto date from 1st May, 1979 in full. On this being brought to the notice of this Court, orders were passed on 27th August, 1979, giving the

respondent a last chance to pay all the arrears upto date within a week from that date in Application No. 3897 of 1979 the petitioners complained

that apart from paying the amounts stated to be due up to 9th September, 1979, there has been a failure on the part of the respondent to make the

payment as per orders of this Court. I do not find any rebuttal of the same by the respondent. This attitude of the respondent is highly

reprehensible.

In Dhanabakkiyammal Vs. Thangavelu Mudaliar and Others, a Division Bench of this Court, consisting of Ramesam and Cornish, JJ.,

delineated the powers of this Court under S. 301of the Act in the following terms:

Now, much wider powers are conferred upon courts both in India and in England for the removal of an executor. Mr. Doraiswami Iyer does not

contend that a regular suit for the removal of an executor lies apart from S. 301. It is, therefore, clear that if the removal of an executor is sought,

and not an indirect restraint on him by merely getting the appointment of a receiver, the only remedy that is open is under S. 301. The use of the

word ''may'' in this section shows merely that a proper case must be made out and the court shall act only it a proper case is made out. To that

extent, no doubt, the power vested in a court under this section is discretionary but the discretion is not arbitrary but it is a judicial discretion. It

may be that the section does not try to exhaust the kinds of charges that may be brought against an executor or other circumstances that ought to

be made out before his removal can be obtained. --(page 995)

In my view the facts of the present case warrant the exercise of the discretion vested in this Court under S. 301of the Act.

The respondent has pleaded that a suit alone is competent. However, this plea was not seriously advanced by his learned counsel in the course

of the hearing of these petitions. In any event, this plea is not sustainable in view of the position in law that the power to remove an executor and

provide for a successor to his office is one conferred upon the High Court alone by S. 301of the Act and such a relief cannot be sought by a

regular suit.

The matter is not without an authority. Coldstream, J., speaking for a Division Bench of the Lahore High Court, in AIR 1935 406 (Lahore)

observed as follows :

There being no power in the Courts to remove an executor by virtue of their jurisdiction under S.9, C.P.C. Mr. Mehr Chand''s argument that there

is a presumption against a construction of S.301in such a manner as to oust or limit the jurisdiction of the ordinary courts is without substance.

When a new cause of action is created by statute and a special jurisdiction outside the course of the general law is prescribed, there is no ouster of

the jurisdiction of the ordinary Courts, for, 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 on 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.

I am in respectful agreement with the above dictum of the Division Bench of the Lahore High Court.

Yet another contention was put forth by the learned counsel for the respondent when he stated that the petitioners cannot seek remedies under

S.301of the Act in the present petition without first obtaining probate of the Will in question under the provisions of the Act. Neither the language

of the provision nor any authority supports this contention of the learned counsel for the respondent. The question came up for consideration in a

very early Judgment of this Court in O.P. No. 117 of 1926, dated, 6th September, 1926. (V.V.) Srinivasa Iyengar, J., after considerably

discussing the position, observed as follows:

It is possible that the legislature might have intended that even before grant of probate such a right to remove the executor should vest in the Court,

because there may be cases in which by putting off taking probate executors might seek to take advantage of their own wrong and thereby stove

off the liability under S.301. The conclusion I have therefore arrived at is that, even though probate has not been granted in respect of the Will

referred to in this matter the application is competent and not open to any objection.

Learned counsel for the respondent is not in a position to quote any authority which has held otherwise. With regard to the other grounds

urged by the petitioner for the removal of the respondent from executorship they are not of much substance, and most of them practically (sic)

terms from the main controversy concerning the leasehold right claimed by the respondent. But, that does not bring any assuage to the highly

reprehensible conduct of the respondent. Once this Court removes the respondent from executorship and his case of lease is disbelieved he has no

lawful title to be in possession of the X-Ray unit. It would be iniquitous and would cause prejudice to the petitioners to drive them to the ordinary

remedy of a suit for recovery of possession in the context of the case. For all the above reasons, I am inclined to hold against the respondent.

Accordingly, the petitions are allowed. The respondent is removed from his office as an executor under the registered Will of late Dr. P.B.

Annangarachari, dated 28th April, 1973. It is brought to my notice that the petitioners have already taken steps to have the said will probated,

claiming rights of executorship by implication. The respondent is directed to hand over to the petitioners forthwith possession of the X-Ray unit

known as T. Nagar X-Rays, situate at No. 99, Usman Road, T. Nagar, Madras-17, with all the equipments. The petitioners are entitled to costs

of these proceedings from the respondent.