Skip to content


Baidyanath SeIn Vs. Rajendra Nath SeIn and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in129Ind.Cas.879
AppellantBaidyanath Sein
RespondentRajendra Nath SeIn and ors.
Excerpt:
executor - taking possession of estate, before taking out probate--no disqualification--receiver appointed in partition suit--duty to discharge receiver on executor taking out probate--order refusing discharge--appeal. - .....and, on the 16th december, 1929, he brought the present application humbly submitting that, as his father had appointed him executor, he should be allowed to begin to act as such. for reasons which do not appeal to me at all, the learned judge has refused to make the necessary order and the only grounds that can be seen from affidavits are a repetition of the various charge which are ludicrous on the basis that this man is, in fact, the executor. the charges are that he wrongfully and fraudulently took possession of the properties of the testator the very thing which it was his duty to do, that he is maintaining such wrongful possession and retaining the income of the estate and so on and so forth. it appears to me that the rest of the family may be very much chagrined at this particular.....
Judgment:

George Claus Rankin, C.J.

1. In my opinion, this appeal must be allowed. It appears that the testator died on the 14th December, 1928. He left a Will dated the 11th October, 1928, appointing his eon the present appellant to be the executor to his estate' Various people entered caveats and, on the 16th January, 1929, before the testator had been dead more than a month, certain of his grandsons started a suit for partition of the estate left by him on the basis that the grand-father had died intestate. On that footing and at that time the Official Receiver was appointed the Receiver. The main charges at that time against the present appellant were that he was collecting the moveables, that he was insisting upon collecting papers and doing the very things which he was bound and entitled to do if, in fact, he was the executor. Still caveats were entered by the grandsons and on the 24th January, 1929, in this partition suit, on the basis of intestacy, a Receiver was appointed. The matters went on and, on the 21st November, 1929, an order was made that Probate should issue to the present appellant as executor of his father's Will. That order having been made on the 21st November, the executor found that he had no money wherewith to pay the Probate duty or anything else and, on the 16th December, 1929, he brought the present application humbly submitting that, as his father had appointed him executor, he should be allowed to begin to act as such. For reasons which do not appeal to me at all, the learned Judge has refused to make the necessary order and the only grounds that can be seen from affidavits are a repetition of the various charge which are ludicrous on the basis that this man is, in fact, the executor. The charges are that he wrongfully and fraudulently took possession of the properties of the testator the very thing which it was his duty to do, that he is maintaining such wrongful possession and retaining the income of the estate and so on and so forth. It appears to me that the rest of the family may be very much chagrined at this particular person being put in charge of the testator's properties by the testator's Will; but a mere exhibition of bad temper and levelling foolish charges against the man whom the father has appointed ought not to be allow-ed to prevent the father's nominee from becoming the executor in the ordinary way. If, after he has taken charge of the estate, it can be shown that he is in any way causing waste to the estate, no doubt the patties will have ample remedy. There seems to be, nothing, he wever, against the executor, In my opinion, this appeal must be allowed and the Receiver must be discharged. The Receiver must pass his accounts and make over possession of the property to the appellant forthwith.

2. As regards the question whether there is a right of appeal under the Letters Patent from an order refusing to discharge a Receiver in the circumstances stated, I have no doubt at all that there is such a right of appeal and that such an order is a judgment under the Letters Patent.

3. Both sets of respondents will be personally liable to pay the costs of the appellant in this appeal as well as before the learned Judge.

C.C. Ghose

4. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //