JAI KRISHNA SRIVASTAVA Vs. RAJESHWAR DAYAL AND OTHERS

JUDGEMENT

(1.) The petitioner, the son of late Sir J.P. Srivastava, moved the present petition under Sec. 302 of the Indian Succession Act for giving direction to the executor of the Will dated 14th Oct., 1960, by Lady Kailash (mother of the petitioner) not to give effect to the letter dated 15th Dec., 1984, issued to the petitioner and respondent No. 2 and letter 11th Jan., 1985, issued by the executor, and further for a direction to the executory to accept a sum of Rs. 3,50,000/ - from the petitioner towards petitioners liability to avail of the settlement of the entire premises "Kailash" and direct the executor to give his assent thereto.

(2.) Lady Kailash, widow of late Sri J.P. Srivastava, has two sons, namely, Jai Krishna Srivastava (petitioner) and Hari Krishna Srivastava (respondent No. 2) and five daughters, namely, Laxmi (since deceased) and her son Sidharth Narain (respondent No.3), Smt. Sushila (respondent No. 4), Smt. Sarla Sehgal (respondent No. 5) Smt. Shakuntala Masani (respondent No. 6) and Km. Malti Srivastava (respondent No. 7). She executed a Will on the 14th Oct., 1960 and appointed Sri Rajeshwar Dayal, Sri Narotiam Sehgal, ICS, Sri Venetachari, ICS and Rani Phul Kumari, Rani of Sherkot as the executor of the said Will. Lady Kailash died on 12th Nov., 1962. On the 7th Dec., 1963, the District Judge, Lucknow granted a probate in respect of the aforesaid Will. The dispute which is being raised from time to time between the parties is in respect of the interpretation of certain clauses under the Will. At one stage, it is alleged, that on account of delay in paying the liabilities by the sons an application was moved in the Delhi High Court that the sons forfeited the right of inheritance since they had not complied with the conditions imposed under the Will. However, subsequently the said application was withdrawn. Thereafter, Rajeshwar Dayal, on of the executor (son - law - of lady Kailash) moved a petition under Sec. 302 of the Indian Succession Act in 1972 in this Court at Lucknow Bench with the allegation that the two sons of the testatrix had refused to accept the gift and prayed for suitable directions. This Court by means of judgment dated 18th Aug. 1977, held that the intention of the testatrix was that the sons should get the property and there was no outer limit of time mentioned in the Will be indicate willingness by them and there was no refusal on the part of the sons to accept the conditional bequest for discharging the liability. Thereafter, this Court directed that the aforesaid sole executor to exercise his discretion in accordance with the Will. It is relevant to mention here that from time to time other executors ceased to function on one account of the other. It was only Sri Rajeshwar Dayal, who was left as the executor for the execution of the Will. In fact, even on account of circumstances arising even he fell and accordingly resigned and made such an application to the Court for its acceptance, which was declined by the Court and he thereafter continued as the executor of the said Will.

(3.) According to the petitioner's case, under paragraph 4 of the Will the premises "Kailash" located in Nawabganj, Kanpur,was to devolve two sons, viz. the petitioner and respondent No. 2 on their agreeing to pay the debts in respect of aforesaid property. In pursuance thereof the executor through letter dated 31st Jan., 1967, fixed the liability of the testatrix at Rs. 3,50,000/ - which was required to be paid by the sons in equal shares, namely, Rs. 1,75,000/ - each. However, since the amount was not encashed by the executor they treated it as refusal on the part of the sons to accept the gift. It is this stand of the executor this Court declined to accept that the sons refused to accept the gift made by lady Kailash under the said Will. Subsequently, on 23rd May, 1978, the executor demanded Rs. 1,75,000/ - from each of the two sons to which the petitioner objected. According to him, in view of paragraph 3(b) of the Will since the respondent No. 2 did not pay the fair rent of the premises which was in his occupation belonging to the daughters of the testatrix, he disentitled himself from any benefit in the Will. As aforesaid, on 17th Sept. 1980, Rajeshwar Dayal, the sole executor, submitted his resignation in the court of the District Judge, Lucknow, which was rejected by the court on 28th July, 1984, with a further direction to him to complete the execution of the administration of the Will. Thereafter, the executor on the 15th Dec., 1984, wrote two letters, one to the petitioner and the other to respondent No. 2 demanding Rs. 5.95,677.42 from the petitioner and requiring a further undertaking relating to the payment of the present and future taxes etc. relating to the entire estate and demanding only Rs. 1,75,000/ - along with Rs. 24,677.42 from the respondent no. 2 and it is this discriminatory demand, which the petitioner alleged shows the bias and collusion of the executor with the respondent No. 2. According to the petitioner, liability of lady Kailash was to be liquidated equally by the two sons to the extent of Rs. 1,75,000/ - . There was no justification for the executor to have demanded the aforesaid high amount from the petitioner and the low amount from the respondent No. 2. It was further urged that since the liability has to be borne by the sons only to the extent of the value of Kailash in accordance with the Will and as per the executor himself through letter dated 31st Jan., 1967, fixed the value of Kailash and thus the liability which the sons have to bear in order to liquidate the liability of their mother proportionately comes to 1,75,000/ - each, thus, there is no justification for the executor for making exorbitant demand from the petitioner. It is relevant to refer here that Sidharth Narain, son of one of the daughter of late lady Kailash, moved an application in the court of the District Judge, Lucknow regarding payment of lair rent of the premises in question in occupation of respondent No. 2 The District Judge on 12th Feb., 1985, rejected the said application by holding he had no jurisdiction in the matter after the grant of probate and further indicated such a direction could only be obtained under Sec. 302 of the Indian Succession Act from the High Court. Thereafter, the present petition by the elder son has been moved under Sec. 302. The petitioner sought for a direction by moving the present petition under Sec. 302 of the Indian Succession Act not to give effect to the assent given by the executor to the respondent No, 2 for his half share in Kailash through letter dated 11th Jan., 1985.