AMULYA DHAN PAUL Vs. STATE

JUDGEMENT

(1.) G.A. No. 3499 of 2006 is an application for removal of the executor under Section 301 of the Succession Act, 1925 with an alternative prayer for revocation of the grant of probate. The elder brother Applicant does not press the alternative prayer for revocation of the grant. G.A. No. 1121 of 2008 is by the same Applicant complaining of illegal conduct of the executor's part in connection with the creation of a tenancy in respect of a flat belonging to the estate.

(2.) The Will was made in March 1987. The testator died in August, 2000. The executor applied for grant of probate in 2001 to which the elder brother Applicant consented. Probate was granted on August 29, 2002. The assets forming part of the estate include five immovable properties. The principal immovable property is the land and building at 7A, Shyamananda Road, Kolkata-700025. It is the admitted position that this property is a four-storied building including the ground floor and is made up of what is described as the front portion and another described as the rear portion, the two being separated by the staircase running down the middle. There are three other properties mentioned in the affidavit of assets of which the testator was the one-third undivided owner. These properties are at 1A, Khetradas Lane, 25, Ganesh Chandra Avenue; and, P28, Benaras Road. These three properties fetch substantial monthly rent and the testator was entitled to the undivided l/3rd share thereof. The fifth immovable property mentioned in the affidavit of assets is a land and structure at Agarpara which also appears to be rented.

(3.) Clause 13(i)(a) of the Will provides that younger son and executor Ajit would have the front portion of the Shyamananda Road of the property which comprises of "the ground-floor, first-floor, second-floor, third-floor and the roof thereon shown in the plan annexed (to the Will) and marked 'X'....