LPA No.112 of 2006 and connected cases IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.112 of 2006(O&M) Date of decision: 14 .10.2009 Tara Chand Sharma and another -----Appellants Vs. Smt.Uma Aggarwal and others ----Respondents LPA No.132 of 2006(O&M) Yadvinder Thakur v. Smt.Uma Aggarwal and others LPA No.134 of 2006(O&M) Om Parkash Aggarwal v. Uma Aggarwal and others. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. J.C.Verma, Sr.Advocate with Ms. Meenakshi Verma, Advocate for appellant in LPA No. 134 of 2006. Mr. HS Giani, Advocate for appellant in LPA No.132 of 2006. Mr. B.R.Mahajan, Advocate for the appellant in LPA No.112 of 2006. Mr. R.K.Chhibbar, Sr. Advocate with Mr. Anand Chhibbar, Advocate for the respondents. Adarsh Kumar Goel,J. 1. Seth Bhagirath Dass was a well known Senior Advocate practicing in this Court. He died on 25.4.1989. He was survived by his wife and sisters but had no issue. He executed Will and Codicil dated 21.1.1985 and 29.12.1989 bequeathing most of his property to a trust formed by him in his life time in the name of his mother. 1 LPA No.112 of 2006 and connected cases Main objects of the trust are meeting educational and health needs of the needy. He named Yadvinder Thakur, who was one of the trustees, as the Executive Trustee. Probate in respect of the Will was ordered to be granted in favour of Shri Thakur. However, application was filed by sister of the deceased under Section 301 of the Indian Succession Act, 1925 for removal of the Executor. The said application, after trial, has been granted with other consequential orders, which are sought to be assailed by the removed executor and trustees by filing LPA Nos.112, 132 and 134 of 2006 which will stand disposed of by this order. Operative part of the impugned order is as under:- “In brief, the conclusions are as under:- 1. Yadvinder Thakur-respondent No.1 is removed from the office of executor as also from the office of the Managing Trustee. 2 LPA No.112 of 2006 and connected cases 2. Om Parkash Aggarwal-respondent No.2 is removed from the office of trustee. 3. The appointment of all other trustees by respondents No.1 and 2 is declared illegal. 4. Respondents No.1 and 2 shall hand over the properties of the trust to the successor Executor for being managed by the trustees. 5. They shall render accounts of these properties to the successor Executor and the trustees. 6. The respondents will even be prosecuted if they defaulted in rendering accounts which remedy will be open to the successor Executor. 7. The tenant in House No.31, Sector 9A Chandigarh (property of the Trust) shall be answerable and accountable to the Board of Trustees. 8. The occupants of land measuring 22 kanals situated in village Kapat, 3 LPA No.112 of 2006 and connected cases District Hoshiarpur, shall be answerable to the successor Executor-cum-Board of Trustees and will render account of income to them. 9. Hon’ble Mr. Justice G.C.Garg (retired) is appointed as successor Executor, as also the Managing Trustee. 10. Shri M.S.Lobana, District & Sessions Judge (Retd.) now practicing as an Advocate in this Court and Shri N.S.Saini, Additional District & Sessions Judge (Retd.) resident of House No.599, Phase III SAS Nagar, Mohali, are appointed as the trustees, so as to make the Board of trustees functional, as minimum 3 trustees are required. 11.The Executor shall consolidate the properties of the trust and place it at the disposal of the Board of trustees for being managed for the purpose for which the trust is created. 4 LPA No.112 of 2006 and connected cases 12.He shall also take the accounts of the income of these properties and account for the same to the Board of trustees. 13. The various items of movable property etc., shall also be consolidated in the SB account of the trust. 14. The Board of trustees shall manage and govern the properties of the trust in commensurate with the sentiments of the testator of the will dated 21.1.1985 and founder of the C.C.Trust created by trust deed dated 18.1.1966 and in accordance with the contents of these documents. They shall maintain full accounts and the Executor-cum- Managing Trustee would be paid Rs.20,000/- per month as honorarium, while the trustees would be paid Rs.2000/- per meeting. All of them will also be entitled to actual expenses spent to 5 LPA No.112 of 2006 and connected cases achieve the aim and objects of the Will and of the trust deed. 15.Proper accounts will be maintained and be filed in this Court within two months after the expiry of each financial year. 16.The properties shall be managed by the Board of trustees in parentally manner. However, it will not be sold without prior permission of the Court. 17.The successort-Executor or the Board of Trustees will be free to seek any clarification from this Court. 18.Henceforth, the Bank accounts in the name of Champawati Charitable Trust or in any other name relating to this case, operated by this Court through its Registrar, shall now be operated jointly by the Executor- cum-Managing Trustee and one of the two Trustees. 19.Accordingly, CM No.2565-CII of 1993 and CM No.1357 CII of 2001 6 LPA No.112 of 2006 and connected cases are accepted in terms stated above. All other misc. applications stand disposed of in terms of the above orders. Copies of this judgment, alongwith a copy of the Will, copy of Codicil, copy of the trust deed, copy of the supplementary trust deed, be sent to the successor Executor and to all the members of the trust and a copy of this order be sent to the Registrar of this Court and to the concerned Bank authorities, for necessary compliance.” 2. Immovable properties described in the Will are as under:- “i) Bagichi situated in Bagh Rama Nand, Amritsar (HUF) ii) A Tewala in Katra Man Singh, Amritsar (HUF). iii) A Tewala in Katra Karam Singh (HUF). 7 LPA No.112 of 2006 and connected cases iv) A bungalow situated at Chandigarh No.31, Sector 9A, Chandigarh (individual). v) Land measuring about 22 kanals in village Kapat, District Hoshiarpur (HUF) which has been given on lease.” 3. Other relevant contents of the Will are : “2.That I have no male issues and I have only wife who is alive. Besides this, I have no other relative except my sisters, who are all well settled except Smt.Geeta Bai. 3. That since there is nobody to look after my properties in the event of my death, I propose to dispose of my properties as under:- i) That I have already a Registered Trust known as Champawati Charitable Trust, Amritsar, of which Shri Yadvinder Thakur is one of the trustees. By this Will,I dispose of all my properties in the name of Champawati Charitable Trust which will be managed by the trustee 8 LPA No.112 of 2006 and connected cases above mentioned, plus Shri Prem Tuteja Advocate of Gali No.1 Lawerance Road, Amritsar, and Shri Om Parkash Aggarwal, Advocate of Amritsar and Mr. MP Joshi, Advocate. These four trustees shall manage all my properties. Shri Prem Tuteja shall be the Chairman of the Trust in my absence and the Executive Trustee shall be Shri Yadvinder Thakur, who will be paid a sum of Rs.500/- per mensem for administering my estate and for managing all my properties. ii) That the properties mentioned above shall vest in the Trust and shall be administered by the Trust, but so long as I am alive, Champawati Charitable Trust would be run under my Chairmanship.” 4. Some of the relevant contents of the Codicil are as under:- “Besides the four trustees whom I have already named in my Will to administer and manage the Trust I hereby appoint and nominate Shrimati Uma Aggarwal 9 LPA No.112 of 2006 and connected cases as the 5th Trustee exercising all the powers as the other four trustees.” (Smt.Uma Aggarwal was dauther- in-law of Shanti, sister of Seth Bhagirath Das). 5. The objects of the trust deed are as under:- “a) to establish educational and technical training institutions an recreational centres; b) to award scholarships for the education of the indigent, needy and forlorn children; and c) to establish clinics dispensaries, hospitals for the treatment of ailing children.” 6. Uma Aggarwal filed application for probate under section 278 of the Indian Succession Act, 1925 (in short, ‘the 1925 Act’) in this Court on 13.7.1989. Soni Bai, widow of late Seth Bhagirath Dass, (respondent No.9 in the petition) contested the application, inter-alia, stating that the testator had 10 LPA No.112 of 2006 and connected cases adopted one Sanjay Kumar, (respondent No.8 in the petition) as a son on 13.7.1975 and adoption was reduced into writing on 13.4.1981. Partition had taken place and partition deed was registered on 11.4.1986 in the office of Sub Registrar, Amritsar wherein one of the properties mentioned in the Will came to the share of Soni Bai and two of the properties mentioned therein came to the share of Sanjay Kumar. 7. A joint written statement was filed by Yadvinder Thakur and Om Parkash Aggarwal (respondent nos. 1 and 3 in the petition) supporting the plea of partition and also stating that as per contents of the Will, probate was required to be granted to Yadvinder Thakur. 8. On 18.5.1990, learned counsel for Uma Aggarwal stated that he had no objection if Yadvinder Thakur was transposed as co-petitioner and granted probate. However, there being dispute 11 LPA No.112 of 2006 and connected cases with regard to Codicil raised by respondent No.1, issues were framed and finally on 16.4.1991, probate was granted. It was held that the Will and the Codicil were duly executed. LPA No.559 of 1989 against the said order was dismissed on 13.7.1992. 9. Though, probate application was disposed of, as above, impugned order has been passed on misc. applications moved in the probate case itself. Yadvinder Thakur filed CM No.1733 CII of 1993 under section 151 CPC for placing on record amended schedule of moveable and immovable properties mainly with regard to Bagichi in Bagh Rama Nand, Amritsar, claimed to have fallen to the share of Soni Bai in partition deed dated 3.4.1986 (registered on 11.4.1986). He also filed application for being put in possession of Chandigarh house and for direction to bank to pay court fee for probate out of account of the testator. CM No.2565 CII of 1993 was filed by Shanti Devi, sister of the testator, under 12 LPA No.112 of 2006 and connected cases section 301 of the 1925 Act for removal of Yadvinder Thakur as Executor on the ground that Yadvinder Thakur and Om Parkash Aggarwal had started misappropriating corpus of the C.C. Trust for their personal use. Prem Tuteja, Advocate (trustee) had resigned on 26.3.1990, while M.P. Joshi, Advocate (trustee) resigned on 14.4.1990. Uma Aggarwal, who was fifth trustee, was not taken into confidence with regard to management of C.C. Trust property. It was further alleged that there was misappropriation of rental income of the trust for personal gains; failure to use Bagichi which fell vacant after death of Soni Bai for purposes of trust; collection of rent by allowing trust property for parking purpose and using the money for personal gains; closing the hospital which was being run by the trust by dispensing with the services of the doctors and the compounders and not recovering 13 LPA No.112 of 2006 and connected cases income from ‘Bagichi’ at Amritsar and land in Village Kapat. 10. Yadvinder Thakur contested the application under section 301. His stand was that Uma Aggarwal had not handed over possession of Kothi No.31, Sector 9A, Chandigarh. Shanti Devi and Uma Aggarwal had filed suit under Section 92 CPC for removal of trustees, which was dismissed by Additional District Judge, Chandigarh. The application was to defeat order of giving of possession of Chandigarh house. The Bagichi at Amritsar had come to the share of Soni Bai and other properties in Katra Karam Singh and Gate Man Singh had come to the share of Sanjay Kumar. Om Parkash Aggarwal had opened his office in the Bagichi as tenant under Soni Bai. Sanjay Kumar executed gift deed dated 9.5.1989 in favour of C.C. Trust. Soni Bai created trust vide registered trust deed dated 8.12.1989 and had bequeathed her 14 LPA No.112 of 2006 and connected cases property to the said trust. The dispensary was not functioning on account of lack of funds. Rental income of the trust was only Rs.3150/- p.m.,which was accounted for. 11. CM No.1357-CII of 2001 was filed in CM No.2565 CII of 1993 seeking grant of direction for appointment of new trustees for running the C.C. Trust or the properties of the trust be transferred or donated to any other institute carrying on similar objects. The said application was filed by the Advocate after the death of Shanti, without her heirs having been substituted. In reply to the said application, Yadvinder Thakur took the stand that after resignation of Prem Tuteja and M.P. Joshi, Uma Aggarwal failed to respond to notice dated 5.5.1990 and on that account, Bansi Lal Chhapria and Santosh Bajaj were substituted in place of the trustees who had resigned. On death of Bansi Lal Chhapria on 30.3.1996, Dr. Vibhakar Sharma was appointed as 15 LPA No.112 of 2006 and connected cases trustee. On resignation of Santosh Bajaj on 21.12.1996, Major Tara Chand and Sanjay Aggarwal were appointed as trustees in meeting held on 3.2.1997. The application having been filed by Advocate, of his own, was not maintainable. The Executor had not started functioning, in absence of certificate of probate and in these circumstances, the application was not maintainable. 12. Keys of Chandigarh house having been surrendered by Uma Aggarwal, proceedings for leasing out of Kothi No.31, Sector 9A, Chandigarh during pendency of the main case also took place. The said property was leased out at monthly rent of Rs.65000/- for some period. The said lease came to an end. On 5.2.1996 by an interim order, Yadvinder Thakur was restrained from acting as Executor. 13. Findings recorded by learned Single Judge after considering the pleadings and rival contentions, can be summed up as under:- 16 LPA No.112 of 2006 and connected cases (i) Application under section 301 of the 1925 Act was maintainable. Removal of Executor and appointment of his successor can be only under section 301. Reliance was placed on judgment of Lahore High Court in Karma Devi v. Radha Kishan and others, AIR 1935 Lahore 406. (ii) Non issuance of probate was no bar to maintainability of the application. Putting forward of an untenable right by the Executor which was in conflict with rights of beneficiaries or any malafide act of the Executor or failure to act for welfare of beneficiaries was sufficient to invoke jurisdiction under section 301. Reliance was placed on judgment of Madras High Court in PB Srinivasan and another v. TPS Varadhan, 1981(ii) Madras Law Journal 17 LPA No.112 of 2006 and connected cases Reports 158. Judgment of this Court in SB Ranjit Singh and another v. S.Santokh Singh Rais and others, 1950 PLR 313 was distinguished. (iii) Conduct of the Executor was malafide. As against the stand of the testator in the Will that he had no male issue and no other relatives except his wife and sisters and that there was no body to look after his properties after his death, Soni Bai pleaded adoption of Sanjay Kumar on 13.4.1975, which was reduced into writing on 13.4.1981. The Executor Yadvinder Thakur referred to partition deed dated 3.4.1986 which records Sanjay Kumar as adopted son of late Seth Bhagirath Dass and thus, contradicted the contents of the Will. Further in his reply to CM No.2565 CII of 1993, he took a stand that Sanjay Kumar was 18 LPA No.112 of 2006 and connected cases adopted son of Late Seth Bhagirath Dass and some of the properties mentioned in the Will had fallen to his share which he had retransferred by way of a gift. Plea of partition being against the contents of the Will and provision having been made for residence and maintenance of his wife, conduct of Yadvinder Thakur in pleading untrue facts was not appreciable. (iv) Plea of the Executor that while deciding application under section 301, the Court could not determine title of the property, it was held that while deciding the conduct of the executor, all necessary facts could be seen. Judgment of Calcutta High Court in The Goods of Nanda Lal Sett, deceased, AIR 1955 Calcutta 88, was distinguished. (v) With regard to plea of Om Parkash Aggarwal being tenant 19 LPA No.112 of 2006 and connected cases under Soni Bai, it was observed that the rent was insignificant and even that amount was not accounted for. Similarly, income from land in Village Kapat was not accounted for. Dispensary had been closed. These facts made out a case for removing Yadvinder Thakur from the office of Executor. (vi) Dealing with the contention that a suit was earlier filed by Uma Aggarwal under section 92 CPC which was dismissed, it was held that if petition under section 301 was maintainable, earlier resort to remedy under section 92 CPC was no bar. Judgment in Maganlal Parikshawala v. Samson Shalom, AIR 1938 Allahabad 197 was held to be distinguishable. In that case, Section 301 was held not to be applicable as there was no Executor in the Will in that case. 20 LPA No.112 of 2006 and connected cases (vii) As regards functioning of Yadvinder Thakur as trustee and also functioning of other trustees, it was observed that exercise of power of removal of Executor under section 301 would include power of removing trustees if the trustees were inter-connected with the functioning of Executor. (viii) Dealing with the question of executor having ceased to have that capacity, it was observed that functions of the Executor were not over in the present case. The Executor had to consolidate the CC trust properties and utilize the properties for the trust. Judgments in The Goods of Sarnath Sanyal v. Hrisikesh Sanyal AIR 1949 All. 93 and Patel Vrajlal Bhagwandas v. Patel Jamnadas Tribhovandas and others, AIR 1956 Surashtra 51 were held to be distinguishable. 21 LPA No.112 of 2006 and connected cases (ix) As per Will, number of trustees could not be less than three but the trust was being run by Yadvinder Thakur and Om Parkash Aggarwal. No accounts had been rendered. They had disowned ownership of the trust in the Bagichi. No effort was made to take care of the income of the property. Dispensary had been closed. (x) As regards objection that Advocate alone could not pursue the application, it was observed that litigation was for benefit of general public and same could not be dismissed on technical grounds. (xi) The Executor in the Will was required to execute the Will as well as to administer the estate of the deceased. 14. LPA No.112 of 2006 has been filed by Tara Chand Sharma and Dr.Vibhakar Sharma who 22 LPA No.112 of 2006 and connected cases are stated to have been substituted as trustees, while LPA No.132 of 2006 has been filed by Yadvinder Thakur and LPA No.134 of 2006 has been filed by Om Parkash Aggarwal. 15. We have heard S/Shri J.C.Verma, Senior Advocate, appearing for the appellant in LPA No. 134 of 2006, H.S.Giani, Advocate for appellant in LPA No.132 of 2006 and R.K.Chhibbar, Senior Advocate in his capacity mentioned earlier and perused the record. 16. Shri Verma submits that conduct of Shanti Devi, applicant in CM No.2565 CII of 1993 was not above board. She had filed suit on 3.6.1990 under section 92 CPC which was dismissed for non- prosecution in the year 1996 and the same operated as res judicata. Application was to avoid handing over of possession of Kothi No.31, Sector 9A, Chandigarh in spite of order granting probate. C.M. 23 LPA No.112 of 2006 and connected cases No.1357-CII-2001 was filed purporting to be on behalf of Shanti Devi. Shanti Devi had already died and no legal heir had been substituted. The said application was not supported by any documents or affidavit in support of the allegations. Uma Aggarwal who filed probate application gave her statement in her replication that she had no objection to Yadvinder Thakur obtaining probate of the Will. Appearing as PW2, she admitted that Soni Bai was collecting and keeping the rent. She admitted that she did not attend the Kirya ceremony of late Seth Bhagirath Dass. She denied knowledge about family partition. She also admitted that Soni Bai had income from the Bagichi (which literally means garden but which is in fact a house). She also admitted that house of late Seth Bhagirath Dass at Chandigarh was in possession of her mother-in-law and herself as trustee and that she was willing to hand over possession to the Executor. She filed LPA No.559 of 24 LPA No.112 of 2006 and connected cases 1991and statement was made that grievance in the LPA was not to relief granted in main probate application but to orders passed in miscellaneous applications allowing possession to be taken over by Executor. She took stand that possession was not with her but with her mother-in-law which was rejected. Shanti Devi had earlier filed suit for removal of the Executor with a view to get over the order passed in probate proceedings and to avoid handing over possession. The suit was pending when application CM No.2565 CII of 1993 for removal of Executor was filed and the said application was barred under section 10 CPC. Shanti Devi was a witness to the gift deed executed by Sanjay Kumar. Shanti Devi and Uma Aggarwal obstructed taking over of possession by the Executor. Details of the rent from the property were duly given. The tenants were old tenants and the amount of rent received was insignificant. No details were available of the 25 LPA No.112 of 2006 and connected cases property in Hoshiarpur district. All allegations in the application were duly replied by Yadvinder Thakur vide his reply dated 30.5.1995. The trustees deposited a sum of Rs.6 lacs to save the property. No probate was actually granted. After grant of probate, the court was functus officio and application being CM No.2565 CII of 1993 was not maintainable. He relied upon following judgments: 1. Maganlal Parikshawala v. Samson Shalom, AIR 1938 Allahabad 197 To submit that a trustee could be removed only under section 92 CPC and not under section 301 of the Succession Act. 2. S.B Ranjit Singh and another v. S.Santokh Singh Bais and others, 1950 PLR 313 To submit that power to remove an executor could be exercised only if a proper case was made out and only if the application is bonafide. 26 LPA No.112 of 2006 and connected cases 3. Chiranjilal Shrilal Goenka v. Jasjit Singh and others, (1993) 2 SCC 507 To submit that probate court cannot decide question of title and even natural heir cannot question the probate which is conclusive as to due execution and validity of Will. 4. In the Good of Mrs. Lydia and others v. Mrs. Elizabeth Egbert, AIR 1952 Allahabad 543 To submit that title to property is not affected by the grant of probate. 5. Jinder Kaur and others v. Sarabjit Singh Bajaj and others, 2003(2) PLR 255 To submit that if legal heirs do not seek to be substituted, they cannot question ex parte order. 6. Vinoy Kumar v. State of UP, AIR 2001 SC 1739 To submit that advocate has no right to file a petition in his own name and substitute himself for his client. 17. Shri Giani submitted that the Will was in favour of trust and the Executor was trustee as per the Trust deed. Factum of adoption of Sanjay Kumar 27 LPA No.112 of 2006 and connected cases was mentioned by wife of the testator herself. CM No.1357 CII of 2001