Satinder Singh and Another Vs. Bhupinder Kaur and Others

Satinder Singh and Another vs Bhupinder Kaur and Others

Type Court Judgment Court Punjab and Haryana Decided Mar 05, 1991

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Citation: sooperkanoon.com/610557
Court: Punjab and Haryana High Court
Judge: A.L. Bahri, J.
Decided On: Mar 05, 1991
Case Number: Civil Misc. No. 3273-CII of 1989 in Probate Appln. No. 8 of 1986
Subject: Property

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Property
Acts & sections: Succession Act, 1925 - Sections 2, 226, 258 and 368; Code of Civil Procedure (CPC), 1908 - Order 22, Rule 2

Parties & Advocates

Appellant / Petitioner

Satinder Singh and Another

Advocate Rajive Bhalla, Adv.

Respondent

Bhupinder Kaur and Others

Advocate H.S. Sangha, Sr. Adv.,; Kirti Kumar,; B.S. Shant and

Legal References

Acts: Succession Act, 1925 - Sections 2, 226, 258 and 368; Code of Civil Procedure (CPC), 1908 - Order 22, Rule 2
Cases Referred: In Srish Chandra Nandy v. Supravat Chandra
Reported In: AIR1992P& H29

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - a..........act is to fix liability of the executor for mis-applying the estate of the deceased or causing loss or damage thereto which is to be made good. once this liability is determined, the same can be recovered from the executor or from hisestate. if estate of the deceased-executor is inherited by his real heirs, to that extent, the legal heirs would be liable.6. the perusal of s. 368 of the succession act would further show that on account of negligence, action or inaction on the part of the executor, loss to the estate of the deceased may occur. furthermore, in some cases it may result in gain to the executor. in that eventuality also the executor or his legal heirs inheriting his estate would be liable to meet the liability. in srish chandra nandy v. supravat chandra, air 1940 calcutta 337. the division bench in the case while dealing with the liabilities of the trustees and the legal representatives observed as under :--'the loss occasioned by the negligent acts and omissions or wilful defaults of the late trustee must be made good from his assets in the hands of his legal representative. the cause of action survives as the loss is the result not of a mere tort committed by the late trustee but of the breach of a fiduciary relation, of a failure to perform a duty.'the ratio of the decision of the calcutta highcourt can aptly be applied to the case of anexecutor appointed under the will. theposition of an executor would be more or lessalike with that of the trustee. thus, there is nomerit in the objection petition filed byravinder kaur and the same is dismissed. nofurther comment on merits of the case isrequired at this stage as on merits decisionwould be given after affording opportunity tothe parties to prove their respective allegations.7. petition dismissed.

Full Judgment

ORDER

1. The short question involved in this application is as to whether legal heirs of an executor named in the will can be substituted as respondents to be made liable for loss occasioned on account of neglegence of the executor in the management of the properties.

2. Gurdial Kaur deceased left benind aWill naming four persons as executors, namely, Umrao Singh, Pritam Kaur, Bhu-pinder Kaur and Brig. Jasbir Singh. Likewise Pritam Kaur aforesaid left behind a Will naming four persons as executors, namely, Umrao Singh, Gurdial Kaur aforesaid Bhu-pinder Kaur and Brig. Jasbir Singh. Both Gurdial Kaur and Pritam Kaur were wives of Umrao Singh. The beneficiaries Satinder Singh and others filed a petition u/S. 368 of the Succession Act for taking action against the executors for causing loss to the estate of the two deceased aforesaid. A direction was required to be given to the executors to make good the loss. At that time only two executors were supposed to manage the properties; namely, Bhupiner Kaur and Brig. Jasbir Singh. It was during the pendency of the aforesaid petition that Bhupinder Kaur died. On an application filed Ravinder Kaur, her daughter was impleaded as a party in place of Bhupinder Kaur. This order was passed on May 18, 1989. After she was served, Ravinder Kaur filed objections which are being disposed of. The objections are that she should not be impleaded as a party as legal heirs on the death or Bhupinder Kaur as she could not act as executor either to meet the loss occurred or to minimise it. The personal liability of Bhipinder Kaur, if any, extinguished with her death. These objections are opposed by the beneficiaries. I have heard learned counsel for the parties.

3. On behalf of the objector reliance has been placed on Ss. 226 and 258 of the Succession Act, which are reproduced below:--

'226. Accrual of representation to surviving executor:-- When probate has been granted to several executors, and one of them dies, the entire representation of the testator accrues to the surviving executor or executors.

258. Grant of effects unadministered:-- If an executor to whom probate has been grant-ed has died, leaving a part of the testator's estate unadministered, a new representative may be appointed for the purpose of adminis-tring. such part of the estate.'

4. The contention of Sh. B. S. Shaht, learned counsel, (on?) the death of Bhupinder Kaur, one of the executors, it is the remaining executor Brig. Jasbir Singh, who is to act as executor to manage the properties of the deceased u/S. 226 of the Act and further if one of the executors was not properly managing the properties, the Court could appoint another one for the purposes of administering the part of the estate. Ravinder Kaur could not be appointed as an executor to manage the properties of the two deceased in view of Ss. 226 and 258 of the Act and, therefore, Ravinder Kaur is not a necessary party to be impleaded or substituted in place of Bhupinder Kaur deceased. Reference has also been made to the definition of the word 'executor' as provided u/S. 2(c) of this Act. The 'executor' means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. Revinder Kaur, the objector, thus cannot be treated as an executor. These arguments, though appearing to be fancy and attractive, are without any merit. There is no question of appointment of a new executor on account of the death of named executor in the Will involved in this case. Admittedly Bhupinder Kaur, one of the named executors, has already died and the properties of the two deceased can well be managed by the remaining executor namely Brig. Jasbir Singh.

5. The purpose of filing a petition under S. 368 of the Succession Act is to fix liability of the executor for mis-applying the estate of the deceased or causing loss or damage thereto which is to be made good. Once this liability is determined, the same can be recovered from the executor or from hisestate. If estate of the deceased-executor is inherited by his real heirs, to that extent, the legal heirs would be liable.

6. The perusal of S. 368 of the Succession Act would further show that on account of negligence, action or inaction on the part of the executor, loss to the estate of the deceased may occur. Furthermore, in some cases it may result in gain to the executor. In that eventuality also the executor or his legal heirs inheriting his estate would be liable to meet the liability. In Srish Chandra Nandy v. Supravat Chandra, AIR 1940 Calcutta 337. The Division Bench in the case while dealing with the liabilities of the trustees and the legal representatives observed as under :--

'The loss occasioned by the negligent acts and omissions or wilful defaults of the late trustee must be made good from his assets in the hands of his legal representative. The cause of action survives as the loss is the result not of a mere tort committed by the late trustee but of the breach of a fiduciary relation, of a failure to perform a duty.'

The ratio of the decision of the Calcutta HighCourt can aptly be applied to the case of anexecutor appointed under the Will. Theposition of an executor would be more or lessalike with that of the trustee. Thus, there is nomerit in the objection petition filed byRavinder Kaur and the same is dismissed. Nofurther comment on merits of the case isrequired at this stage as on merits decisionwould be given after affording opportunity tothe parties to prove their respective allegations.

7. Petition dismissed.

Same Court & Year Punjab and Haryana · 1991 Same Parties Satinder Singh and Another vs Bhupinder Kaur and Others Same Subject Property Same Judge A.L. Bahri, J. Acts & Sections Succession Act, 1925 - Sections 2, 226, 258 and 368; Code of ...

Property