AMBALAL KILACHAND Vs. AMRISH KILACHAND

JUDGEMENT

(1.) THIS petition has been taken out by the petitioner No.3 - Dipak Shukla for being discharged from the office of the executorship of the estate of the said late Ambalal Kilachand as well as for discharge as a trustee of the Ambashree Charity Trust. An objection to the petition being taken up by this Court for decision on the ground that this petition has not been assigned to this Court is raised by the learned counsel for Shri Amrish Kilachand, who was one of the beneficiaries. However, the same Amrish Kilachand had filed suit No.2233 of 1996 wherein he, the plaintiff had taken out notices of motion and there also in those motions, certain allegations have been made against the petitioner No.3 and it is in view of those allegations the petitioner No.3 is seeking his discharge, in my opinion, therefore, this matter being connected with suit No.2233 of 1996 and having already been directed to be heard together, the petition can be heard and disposed off by this Court. So for as the prayer of the petitioner No.3 for discharge is concerned, the petitioner No.3 seeking a discharge because the beneficiaries are taking serious allegations against him. From those allegations, the petitioner No.3 found that the beneficiaries have no faith in him, therefore he does not wish to take part in further administration of the estate. The petitioner No.3 is willing to submit an undertaking to this Court that he will continue to be liable for any acts done by him till the date of his discharge and he will put up the defence of his discharge in relation to any acts done by him before the date of discharge. He is willing to further undertake to this Court that he will make good any loss which the competent Court may find to have caused to the estate due to his acts as an executor of the estate till the date of his discharge. The learned counsel appearing for the petitioner No.3 stated before me that full accounts of the estate till 31st October 2001 shall be submitted to the Court with a copy to the plaintiff and to other beneficiaries within four weeks from today. The above referred Amrish Kilachand has taken out notice of motion No.911 of 2001 in this petition for certain directions to the petitioners. The first prayer in that motion is for direction to the petitioners to render full and complete accounts of the estate of the deceased. The second prayer is to disclose to the respondent the estate realised till date by the petitioners. The third prayer is for a direction to the petitioners to disclose as to whether they have obtained any probate or legal representation in respect of Hong Kong and United Kingdom estates of the deceased. The fourth prayer is for appointment of a Court Receiver as a result of the discharge of the petitioner No.3 as executor. The fifth prayer is for direction to the petitioners to make good the loss caused to the estate by the petitioner No.3 for his acts and omissions. The sixth prayer is prayer for interim order to operate during the pendency of this petition.

(2.) NOW , so far as the first prayer is concerned, as observed above, the learned counsel appearing for the petitioners has stated that full and complete accounts have already been submitted upto 31st March 2001 and that full and complete accounts upto 31st October 2001 would be submitted within four weeks from today with copies to all the beneficiaries. Therefore, in view of this statement, no order obviously is called for on the first prayer. So far as the second prayer is concerned, if the accounts are submitted, it would obviously include disclosure of realisation of the estate. Therefore, no order on the second prayer is necessary. So far as the third prayer is concerned, the probate of the will of the deceased has already been obtained. In fact, Suit No.2233 of 1996 filed by the respondent - Amrish Kilachand is based on that probate and that probate included all the estate of the deceased including the estate at Hong Kong and United Kingdom. The learned Counsel appearing for the petitioners stated that all the relevant papers relating to the proceedings taken in respect of the assets at Hong Kong and United Kingdom have already been furnished to the respondent - Amrish. He further states that despite that, the petitioners are willing to give one more copy of the relevant orders in relation to the above referred assets to the respondent within a period of four weeks from today. In view of this statement, no order is necessary on the third prayer. So far as the fourth prayer is concerned, even if the petitioner No.3 is discharged, there are two more executors. Looking to the nature of the estate, in my opinion, it will not be appropriate to appoint a Court Receiver for administering the estate and therefore, a suggestion was made to all the beneficiaries that if all the beneficiaries agree on any three names, then all the three executors can be discharged and the execution of the estate can be taken up by the persons nominated by the beneficiaries. However, the beneficiaries have not been able to come up with any agreed names. The learned counsel for the petitioners states that even if in future, all the beneficiaries agree on any names, the petitioner Nos.1 and 2 are ready to resign themselves and let the persons agreed by all the beneficiaries take charge of the estate for administration. In this view of the matter therefore, no further order is necessary on the fourth prayer. The fifth prayer is in the nature of an interim order to be passed during the pendency of this petition. Therefore, as the petition itself is being disposed off, no order on that prayer can be passed.

(3.) MISCELLANEOUS petition No.4 of 2000 is granted in terms of prayer clause (a) subject to the petitioner No.3 submitting within a period of one week from today an undertaking to this Court undertaking therein that in any action that may be brought against him in relation to his duties and conduct as executor of the estate of the deceased done before today, he will not put up his discharge from executorship by this order as a defence and that he undertakes that he will be liable for prosecution, if found by any competent Court, for any acts done by him as executor of the estate of the deceased till today.