CECIL LIBOVITZ Vs. OFFICIAL TRUSTEE OF WEST BENGAL

JUDGEMENT

(1.) THIS is an appeal from the judgment and order of Gr. K, Hitter, J. answering certain questions on an originating summons. The applicant who is called the plaintiff in this procedure took out this originating summons on or about the 5thmay, 1961. The questions on this originating summons arise on the clauses and the interpretation of the will of one Ezekiel Elias David Ezra who died on the 19th December, 1943. Before his death he published his last will and testament en the 8th October, 1940 and a codicil 1 hereto on the 1st November, 1940 in the United Kingdom. Probate of that Codicil was granted' to the Official Trustee of West Bengal by this Court on the 11th September, 1944. The testator left an estate consisting of numerous properties in Calcutta. These properties were jointly held by the Official Trustee along with certain other co-shares. The properties which were jointly held by the testator and the said other co-sharers and which still remained joint ft the date of the application are set out in the schedule to the petition and the defendant Official Trustee has an undivided l6th share in such properties. The plaintiff claims to be entitled to a 2/6th share in the estate of the testator and as such entitled to a 1/18th share absolutely in the said properties held jointly by the defendant and the other co-sharers. Some of these properties have been sold from time to time and particulars of the properties sold have also been set out in the schedule to the petition.

(2.) THE co-sharers holding 5/6th share of the remaining properties have recently sold their 5/6th share in respect of certain properties belonging to them and held jointly with the defendant as representing the estate of the testator. These co-sharers are desirous of selling the remaining properties belonging to them and held jointly with the defendant as representing the estate of the testator. It is alleged that they have in fact entered into an agreement for sale of the properties known as 17, 18 and 19, Old Court House Street and 1a, Larkin Lane, known as Bathgate Block. They are also negotiating for sale of No, 16, Old Court House Street. The plaintiff-applicant says that he has given his consent to such sales, but the defendant did not join in the sale of the said properties on the ground that the sale prices offered by the different purchasers were not acceptable to him. Difference between the plaintiff and the defendant arose over this question and the plaintiff called upon the defendant to transfer Ms share in the sale proceeds of the said properties which had already been sold and requested the defendant to transfer to the plaintiff his undivided 1/18th share in the properties not sold.

(3.) THE plaintiff-applicant Cecil Libovitz is a legatee 2nd beneficiary under the will. On this difference arising between him and the Official Trustee, he took out the present originating summons for an answer by the Court of the fallowing questions;- (1) Whether in the events that have happened the plaintiff's l/18th share should be sold along with the 5/6th share of the other co-sharers who have entered into an agreement for sale of such 5 /6th share in the properties concerned. (2) Whether the plaintiff is not in the facts and circumstances of the case entitled to the transfer of his 1/18th share in the properties and in the income thereof by the defendant in his favour. (3)Whether any, if so, what provision should be made for payment by the defendant of income tax, wealth tax etc. , and whether such provision, should he made out of the income of the plaintiff's 1/18 share. (4)Whether in the events that have happened plaintiff is not entitled to the appropriation of his 1/8th share in the specie in satisfaction of the legacy given to him under the said Will, (5) Whether the plaintiff is not entitled to require the defendant if the properties are not sold with in such time as the Honorable court considers reasonable to transfer the same and the accumulated income thereof to the plaintiff. (6) Whether the defendant is bound to obtain the consent of the other beneficiaries under the said will before transferring the plaintiffs 1/18th share to him.