6. Civil suit by legattee.
Whether maintainable against Administrator
The scope and ambit of sec. 141 fell for consideration on the factual matrix of
Himanshu v Sudhansu 2004(1) CHN 626.
There was no dispute as regards the
following facts:
- Both the plaintiff and defendant were appointed as joint executors under the Will.
- The plaintiff did not join hands as executor to get the probate.
- On an application by the defendant, probate was granted.
- As regards the entitlement of legacy also there was no dispute. In spite of the above admitted position the plaintiff brought a civil suit seeking various reliefs including:
- due administration of the estate,
- rendition of accounts,
- injunction etc.
The trial court took up the maintainability of the suit as a preliminary issued
and dismissed the suit under Order 7 rule 11 C.P. Code. But, the appellate court
set aside the order of dismissal and directed the trial court to decide all the
issues involved in the suit. This order of the appellate court gave rise to the
miscellaneous appeal before the High Court. The High Court observed:
...there is a specific bar against a legatee to get legacy unless and until he
fulfils the terms and conditions under section 141 of The act..if the law is not
read in such manner then section 141 of the Indian Succession Act, 1925 will
have redundant face value. Yet the appellant is not interested to refuse from
giving legacy but subject to completion of the administration. But the
respondent/plaintiff is not only impatient but also forgetful that unless
administration is complete title cannot pass. Therefore, if the legacy is
directed to be passed on the strength of this so-called administrative suit
keeping the administration under the Will pending, it will be obviously hit by
the principles of Order
7, rule 11(d) substantially.
It is crystal clear that the jurisdiction of the Civil Court will be either
expressly or impliedly barred.
The Indian Succession Act, 1925 is comprehensive in nature. If one is aggrieved
by any action of an Administrator who is appointed for a limited purpose
including representing the suits or with an unlimited power, pendente lite, he
can very well apply before the court for the purpose of revocation or annulment
for just cause. Administrator is a representative of the court on behalf of dead
person who can not Carry out the proceedings.
Written By: S Kundu & Associates
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[email protected], Ph No: +9051244073
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