In Re : Satyendra Nath Nandi

Jyotirmay Bhattacharya and Ishan Chandra Das, JJ. - This application has been taken out by the applicant being the Executor for modification of the order passed by this Court on 21st July, 2015. Since in the present application, permission is sought for by the Executor to sell the property to one of the beneficiaries under the Will of Satyendra Nath Nandi at a price lesser than the reserved price fixed by this Court, we feel it necessary to give the short background of this litigation before we take the ultimate decision on this application.

Satyendra Nath Nandi, the testator published a Will on 20th June, 2006 for bequeathing his various properties in favour of different persons. The applicant herein was appointed as an Executor under the said Will. Satyendra Nath Nandi died on 24th December, 2009. Subsequently the Will left by Satyendra Nath Nandi was probated by a competent court. However, the properties have not yet been given to the beneficiaries under the Will by the Executor. The estate is still under the management of the Executor.

Presently, we are concerned with only one of the properties belonging to the estate of Satyendra Nath Nandi. The said property is situated at Puduchery. During the lifetime of Satyendra Nath Nandi, he created a Trust known as S.N. Nandi Foundation Trust by execution of a trust deed dated 21st June, 2006. Satyendra Nath Nandi bequeathed his property at Puduchery to the said Trust by the said Will. It was provided in the Will that 40% of the income from the estate of the said testator will be given to the two daughters of the testator in equal share. It was also provided therein that 10% of the income from the estate of the said deceased will be retained by the Trust. It was further provided therein that 10% of the income from the estate of the deceased will be spent for the maintenance of the wife of the testator. It was also provided therein that 20% of the income from the estate of the deceased will be spent for the protection of the properties belonging to the estate of the said deceased. It was also provided therein that 20% of the income from the estate of the said deceased will be spent for public charity.

Thus, we find that the said Trust which was created by said Satyendra Nath Nandi was partly in the nature of private trust and partly in the nature of public trust. Both the Executor under the said Will and the Trustee under the said Trust is the same person. The Executor under the said Will and/or the Trustee under the said Trust has decided to sell the property at Puduchery and to transfer the sale proceeds to the trust fund, so that out of the sale proceeds of the said property, the direction given by the testator in the Will dated 20th June, 2006 can be carried out by the Trustee.

Accordingly, permission was sought for from this Court for sale of the property at Puduchery. Such permission was granted earlier by an order passed by the other Division Bench of this Court on 22nd April, 2015 by making a reserved price of Rs.1,30,00,000/- (Rupees one crore thirty lakh). Such reserved price was fixed by this Court after taking into consideration the report of the valuer submitted before this Court wherein it was indicated that the valuation of the said property will not be less than Rs.1,30,00,000/- (Rupees one crore thirty lakh).

Thereafter advertisements were published in three newspapers inviting purchaser for purchasing the said property at a price which is not less than the reserved price. Nobody responded to the said advertisement. Under such circumstances, the Executor again applied before this Court seeking permission to negotiate with the intending purchaser personally, so that the said property can be sold to the intending purchaser at a price which is not lesser than the reserved price. Such permission was granted by this Court on 21st July, 2015.

Despite attempts were made, no purchaser could be found out. Under such circumstances, the Executor has taken out the present application seeking leave to sell this property to one of the granddaughters of the said Satyendra Nath Nandi viz. Smt. Anannya Parthivan who expressed her intention to purchase the property at a price of Rs.90,00,000/- (Rupees ninety lakh). Incidentally it may be mentioned herein that Smt. Anannya Parthivan has become a beneficiary under the Will left by Satyendra Nath Nandi upon the death of her mother being one of the daughters of the testator.

It is mentioned in the present application that no other suitable purchaser could be found out who intends to purchase the said property at a price which is more than the price offered by the said granddaughter of the said Satyendra Nath Nandi.

We have already indicated above that the valuation of the property was assessed earlier by a valuer who reported that the valuation of the said property will be not less than rupees one crore thirty lakh. No further valuation report is forthcoming before us to show that the valuation of the property has been reduced subsequently. Thus, if we now permit the Executor to sell the said property at Puduchery at a price of rupees ninety lakh, then we find that the Trust may lose financially to the extent of rupees forty lakh.

We are informed by Mr. Kar, learned senior counsel appearing for the appellant/applicant that neither the trustee nor the beneficiaries under the said Will objected to sell the said property to one of the above-named beneficiaries under the said Will at a price of rupees ninety lakh.

However, considering the objects for which the Trust was created, we find that if we permit the property to be sold at rupees ninety lakh, then the Trust may lose rupees forty lakh meaning thereby that out of this rupees forty lakh, 20% which was directed to be spent for the public charity, cannot be spent for the public charity and thereby public charity will suffer to the extent of rupees eight lakh i.e. 20% of the rupees forty lakh. As such, we asked Mr. Kar to take instruction from his client as to whether his client is agreeable to pay a further sum of rupees eight lakh to the trust fund, so that last wishes of the testator for spending a part of the income out of the properties belonging to his estate, is fulfilled.

Mr. Kar has informed this Court today that his client is agreeable to pay a further sum of rupees eight lakh to the trust fund in addition to the price which she quoted for purchasing the property at Puduchery i.e. rupees ninety lakh.

Since the trustee and the other beneficiaries under the Will have agreed to sell the property to one of the beneficiaries as named above at a price of rupees ninety lakh and the said intending purchaser has also agreed to pay a sum of rupees eight lakh to the trust fund in addition to the price which she quoted for purchasing the said property at Puduchery, we allow the applicant''s prayer for modification of our earlier order passed on 21st July, 2015.

We, thus, permit the Executor to sell and/or transfer the said property at Puduchery unto the granddaughter of Satyendra Nath Nandi viz. Smt. Anannya Parthivan and/or her nominee for a consideration of rupees ninety lakh provided the said purchaser pays a sum of rupees eight lakh to the trust fund before completion of such sale.

The Executor is also directed to transfer the sale proceeds to the trust fund immediately on receipt of the same from the purchaser.

The order dated 21st July, 2015 is modified accordingly.

The application being CAN 4370 of 2016 thus stands disposed of.

Let this matter appear in the list on 10th November, 2016 under the heading "For Order" for submission of compliance report by the Executor.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.