Sunday, 22 April 2018

Whether administrator pendente lite can be appointed even if there is executor of will?



Here in the case it is urged that the petitioners and respondent Nos. 32 and 33, who are beneficiaries and legatees of the deceased and who are also from the family of the deceased, have lost their confidence in respondent Nos. 1 and 35 the Executors, hence the trial Court should have appointed respondent No. 32 as Administrator pendente lite, even if such order would have amounted to removal of the Executor. However, in my considered opinion, it becomes difficult to accept this submission because mere contention that beneficiaries have lost confidence in the Executor is not sufficient for removal of the Executor and for appointment of Administrator pendente lite. There must be some material on record to substantiate such allegation of loss of confidence. It is already held that on the basis of such allegations, the Executor Respondent No. 1, cannot be removed who is enjoying trust and confidence of the deceased as he is appointed in the will itself.
"unless and until at the first instance, Executor is removed by the competent Court under the law under Section 301 of the Act, the question of appointing Administrator pendente lite would not arise. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7222 of 2015

Decided On: 02.02.2018

Subhada Mithilesh and Ors. Vs. Prabhakar Deolankar and Ors.
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Whether executor of will can be removed if beneficiaries have lost confidence in him?

 Here in the case it is urged that the petitioners and respondent Nos. 32 and 33, who are beneficiaries and legatees of the deceased and who are also from the family of the deceased, have lost their confidence in respondent Nos. 1 and 35 the Executors, hence the trial Court should have appointed respondent No. 32 as Administrator pendente lite, even if such order would have amounted to removal of the Executor. However, in my considered opinion, it becomes difficult to accept this submission because mere contention that beneficiaries have lost confidence in the Executor is not sufficient for removal of the Executor and for appointment of Administrator pendente lite. There must be some material on record to substantiate such allegation of loss of confidence. It is already held that on the basis of such allegations, the Executor Respondent No. 1, cannot be removed who is enjoying trust and confidence of the deceased as he is appointed in the will itself.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7222 of 2015

Decided On: 02.02.2018

Subhada Mithilesh and Ors. Vs. Prabhakar Deolankar and Ors.

Hon'ble Judges/Coram:
Dr. Shalini Phansalkar Joshi, J.


Citation: 2018(2) MHLJ 211

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Whether plaint of suit filed by company can be rejected if there is no pleading that filing of suit is permitted by passing resolution?

Thinking on a different plain, one can also add that so far as these two Companies are concerned, no cause of action to file a suit has ever arisen for them and had it arisen, these Companies would have certainly taken a decision to go ahead with the cause of action and seek redressal for the same by taking a decision to institute a suit. The fact that there is no pleading in the plaint about taking of such a decision and conferring of authority upon any of the respondents to file a suit by passing of a suitable resolution by the Board of Directors, itself is sufficient to say that from the perspective of these two Companies, the cause of action has not arisen and that is the reason why material pleadings disclosing cause of action in favour of these Companies are absent in the plaint. If it were not so, these Companies would have passed a resolution to institute a suit against the applicant and appointed an authorized person to file it. But as stated earlier, the plaint pleadings are devoid of these material facts. As such, I find that this way also, the plaint does not disclose cause of action.

26. The sum and substance of the above discussion would be that the plaint as filed by the respondents is liable to be rejected on the grounds that it does not disclose cause of action and it is barred by law under the provisions of clauses (a) and (d) of Order 7, Rule 11 of the Code of Civil Procedure.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 62 of 2017

Decided On: 21.07.2017

 New Shelter Enterprises and Ors. Vs. Meenakshi and Ors.

Hon'ble Judges/Coram:
S.B. Shukre, J.
Citation: 2018(2) MHLJ 199
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What is procedure for revocation of unprivileged will?



The provisions of Section 70 of the Indian Succession Act, 1925 (for short, the Act of 1925) provide for the manner in which an unprivileged will or codicil could be revoked. As per this provision, an unprivileged will executed earlier or any part thereof can be revoked by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed. It also provides that this revocation could be done by burning, tearing or otherwise destroying the same by the testator or by some person in his presence with an intention to revoke the same. The earlier will dated 13-9-1968 executed by Chintaman was an unprivileged will. In view of provisions of Section 70 of the Act of 1925, it was required to be revoked in the same manner in which the unprivileged will was earlier executed. Reference in this regard can be usefully made to the judgment of the Division Bench of the Nagpur High Court in Chouthmal Jivrajjee Poddar v. Ramchandra Jivrajjee Poddar and others, MANU/NA/0067/1954 : AIR 1955 Nagpur 126. In other words, compliance with provisions of Section 68 of said Act was necessary. Thus, atleast one attesting witness was required to be examined for proving the deed of cancellation dated 24-12-1970.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 62 of 2004

Decided On: 28.09.2017

 Vitthalrao  Vs. Domaji Pandurang Kokate and Ors.

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