GRACE SHANTHAPPA Vs. VIJAY SHROFF

JUDGEMENT

(1.) THIS appeal by the plaintiff in O. S. No. 8052/1980 is directed against the judgment and decree passed by the XIX Addl. City Civil Judge, Bangalore city, dated 29-2-1992 in so far as it pertains to dismissal of the suit of the plaintiff in part.

(2.) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows: The plaintiff filed the suit, O. S. No. 863/ 80, later numbered as O. S. No. 8052/1980 seeking for the following reliefs :

(3.) THE suit was resisted by the defendants. The 1st defendant filed the written statement, which was adopted by 2nd and 3rd defendants by filing a memo. It is averred in the written statement filed by the 1st defendant that he is one of the executors of the last Will dated 13th September, 1971 executed by Dharam Singh Suraiya, who died in Bangalore on 4th July, 1972. It is denied that any cash or jewellery were found in the house of the deceased upon his death and were taken by the executors. The executors were not aware prior to the death of D. S. Suraiya that they had been appointed as executors. They arrived at bangalore subsequent to the death of D. S. Suraiya i. e. , after a couple of days. Until that time, it was the plaintiff who was present in the deceased's house. The family members of the deceased as well as his executors found no cash other than a paltry amount which was found in the deceased's wallet. The averments made in para 4 of the plaint were admitted. As regards the allegations in para 5 of the plaint, it was averred that the plaintiff was friendly with the deceased in a personal capacity only. The plaintiff and the deceased were not connected in any business with each other. The averments made regarding the dereliction of duty, misconduct and breach of trust on the part of the executors are denied as false. It is further averred that grant of probate was considerably delayed for want of a provisional estate Duty Clearance Certificate without which the Court would not grant the probate and the said Certificate was not issued by the Estate Duty Authorities as the Executors could not pay earlier the provisional estate Duty demanded by the Estate Duty officer. It is a further averred' that the immovable property bequeathed to the plaintiff was transferred to her as far back as 25-8-1978 by transferring the khatha of the property from the name of the deceased to the name of the plaintiff and the title deeds relating to the said immovable property were handed over to the plaintiff. The fact that both the legacies bequeathed to the plaintiff are still in the hands of the defendants, is not correct. It is averred that as regards 1500 shares of Food Specialities Limited bequeathed to the plaintiff, that as per the last will of the deceased, 12,175 shares of the said Company were bequeathed to various beneficiaries including 1500 shares to the plaintiff. However, the executors realized that the deceased at the time of his death held only 12000 shares. Out of the said 12000 shares, 3000 shares had been pledged with Syndicate Bank, Cantonment branch, Bangalore, as security for the overdraft facility in the current account extended by the said Bank to the deceased. Another 3000 shares of the said Company had been pledged with United Commercial Bank, Mahatma Gandhi Road, Bangalore, also as security for the overdraft facility in the current account extended to the deceased by the said Bank. The debit balance in the current account with Syndicate Bank as at the deceased's death was Rs. 20,671. 79 and the debit balance in the current account with the United Commercial Bank was rs. 237. 71. After the death of the deceased, syndicate Bank, under the terms of the pledge sold 3000 shares and after adjustment of the amount due to the Bank, paid the balance to the Estate Duty Authorities towards the arrears of Estate Duty (provisional ). The executors efforts to prevent the sale of these shares by the said Bank did not bear fruit. The shares pledged with the united Commercial Bank were released after clearing the debt balance by the executors. The share certificates for 6000 shares which were in the custody of the deceased at the time of his death and which the Executors took possession had to be handed over to the Estate Duty Authorities as security for payment of provisional estate duty in order to obtain provisional estate duty clearance for the purpose of obtaining the probate. The shares bequeathed to the plainiff after due abetment thereof would be delivered to her on the completion of the final estate duty assessment and payment of additional estate duty, if any and the share certificates are released by the estate duty officer. It is averred that the suit is not properly valued for the purpose of payment of court fee and the suit is not maintainable in view of the pendency of the case before the High Court of Calcutta. Subsequently, the written statement was got amended by the defendants by including averments to the effect that the bequest made in favour of the plaintiff was not a specific legacy and it was a demonstrative legacy, to which the plaintiff filed a rejoinder denying the averments made in the written statement as amended.