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Judgment
Masud, J.—This is an application for removal of an executor and for certain directions under Sections 301 and 302 of the Indian Succession Act. The Petitioner is the youngest wife of the late Maharajadhiraja Sir Kameshwara Singh Bahadur of Barbhariga who died on October 1, 1962, without any children leaving a Will dated July 5, 1961. Under the said Will, the Respondent was appointed the sole executor. The probate was duly granted by this Hon''ble Court on September 26, 1963. The relevant provisions of the said Will are set out below:
(1) I bequeath the property mentioned in Schedule ''A'' to my wife Maharani Rajyalakshmi for her life for her residence purposes (and for no other purposes). She shall be entitled to reside in the said house and use the furniture and fittings solely without any hindrance from anybody. After her demise the said property shall vest in my youngest nephew, Rajkumar Subheswara Singh absolutely.
(2) Similarly, I bequeath the property mentioned in Schedule ''B'' to my wife Maharani Kamsundari for her life for her residence only (and for no other purposes) and at her demise the said property shall vest in my youngest nephew Rajkumar Subheswara Singh absolutely.
(3) I further bequeath to my wife Maharani Rajyalakshmi assets to the value of Rs. 15,00,000 (Rupees fifteen lacs) and to my wile Maharani Kamsundari assets of the value of Rs. 15,00,000 (Rupees fifteen lacs).
(4) Subject to the disposition and bequests mentioned above my entire residue of my estate shall vest in a Board of Trustees consisting of persons named and described in Schedule ''C'' who will hold the property in trust for my two wives and the children and for my aforesaid three nephews (sons of my deceased brother). The trustees shall pay out of capital assets of Rs. 8,00,000 (Rupees eight lacs) to Maharani Rajyalakshmi and Rs. 12,00,000 (Rupees twelve lacs) to Maharani Kamsundari and keep the properties, particularly the house properties in proper repairs. On the demise of my two wives 1 / 3rd of the properties shall vest in the children of my youngest nephew, Rajkumar Subheswara Singh born of a wife of his own Brahmin community, and l/3rd will be divided among the children of my other two nephews, Rajkumar Jeeweswara Singh and Rajkumar Yajneswara Singh and l/3rd will remain in trust for public charitable purposes.
(5a) The properties bequeathed to my wife Maharani Rajyalakshmi shall be held in trust for her life by a Board of Trustees consisting (1) Shri Girindra Mohan Misra. (2) Shri Lakshmi Kanta Jha and (3) Shri Mukunda Jha, who will hold the property in trust for the said legatee, and shall pay to her after payments of taxes and other public darnands Rs. 3,000 (Rupees three thousand) per month to her, and should the net income of the properties after payment of taxes and other similar liabilities be not found in any year to be sufficient to enable the trustees to pay to her Rs. 3,000 (Rupees three thousand) per month, they will be at liberty to make up the deficit from out of the capital assets.
(5b) Similarly, the property bequeathed to my wife Maharani Kamsundari shall be held in trust for the life by a board of trustees composed of the same persons, namely, (1) Shri Girindra Mohan Misra, (2) Shri Lakshmi Kanta Jha and (3) Shri Mukunda Jha, who shall pay to her monthly Rs. 3,000 (Rupees three thousand) from out of the income of the property and should the net income of the property after payment of taxes and other public demands be not sufficient in any year to enable the payment of the net amount of Rs. 3,000 (Rupees three thousand) to her, the trustees will be at liberty to make up the deficit from out of the capital assets to the legatee.
(6) The trustees aforesaid shall keep in proper repairs the house properties mentioned in Schedules ''A'' & ''B'' and spend the necessary amount for their maintenance from out of the properties bequeathed to Maharani Rajyalakshmi and Maharani Kamsundari respectively.
(7) In case of any vacancy in the office of a trustee by resignation, death or otherwise, the vacancy shall be filled by the remaining trustees. If such vacancy is not so filled up within 6 (six) months, the principal, either on suit, motion or on the application of any person interested in the properties, will fill up the vacancy.
(8) The trustees shall terminate on the death of my wives except the trust in respect of public charitable purposes.
(9) I appoint Shri Lakshmi Kanta Jha, son of Pandit Ajaib Jha, deceased of Balia, Thana Madhubani, District Darbhanga, and Advocate Supreme Court, as the executor of this my last Will and testament. The aforesaid executor shall, on my demise, pay all expenses incidental to or consequent on my demise and also pay all liabilities that I might have incurred before my demise including all public demands after my demise in respect of my estate. He shall also get all my assets valued by an approved valuer and shall make distribution of the bequests as per directions given above. In making such distribution of the assets, the properties mentioned in Schedules ''A'' and ''B'' and also properties situated within Rambag compound will not take into account. The executor shall take all the necessary steps to the administration of the estate in accordance with the directions hereinbefore laid down.
The Sch. A and Sch. B to the Will relate to the residential house at Rambag and the palace known as Nargauna palace respectively. The Petitioner has admitted that the Respondent has been paying to her a sum of Rs. 5,000 per month since the Respondent took charge of the estate. The Respondent in his reply dated January 13, 1966, (annex. B to the petition) has, inter alia, stated:
(i) Rs. 5,000 may have to be shown by the Petitioner in her. income tax returns, and
(ii) Rs. 27 lacs (Rs. 15 lacs and Rs. 12 lacs) form the ''corpus of the year'' and might have to be shown in her wealth-tax return.
The Petitioner has contended that the Respondent''s statements in the said letter amount to an assent by the executor to her legacy. The Petitioner''s main grievance is that, although the Respondent has assented to the said bequests and although the estate is large enough to meet all the legacies, the Respondent has not made over any of them either to the elder Maharani or to the Petitioner in spite of requests. She has alleged that even with respect to the monthly payment of the said sum of Rs. 5,000, the Respondent has threatened to stop the payment if the Petitioner chooses to take any steps with regard to her rights under the Will. Correspondence started between the parties on the handing over of the legacies to the Petitioner. But, she was told that the Respondent was not bound to make over the bequests to the Petitioner before the completion of the administration. According to her, there is unusual delay in completing the administration and the Respondent should not be allowed to administer the estate. It has also been alleged in the petition that the Respondent has been grossly negligent and is guilty of serious dereliction of duty. The Petitioner has set out in para. 27 of the petition particulars showing harassment, defaults, negligence and maladministration on the part of the Respondent which I shall deal with in details later. The Petitioner has complained that as a result of the Respondent''s conduct the Petitioner is also not in a financial position to protect and recover her rights under the Will. The Petitioner on the basis of the said allegations has prayed for the following relief�s:
(a) The Respondent be forthwith discharged from his office as executor ;
(b) That your Petitioner be appointed executor in place of the Respondent ;
(c) In the alternative, the Administrator-General of West Bengal or such other person as to your Lordships may seem fit be appointed to take charge of the estate of your Petitioner''s husband in his place and stead and to be appointed executor in his place and stead;
(d) Appropriate orders be passed vesting the estate in the Administrator-General of West Bengal;
(e) Directions be given to the new executor to pay the legatee under the Will of the late Maharajadhiraja of Darbhanga Sir Kamesliwara Singh forthwith to your Petitioner and other legatees;
(f) Directions for payment forthwith of at least Rs. 9,000 p.m. out of the estate to your Petitioner pending delivery and payment of the legacies to the Petitioner;
(g) Your Petitioner be allowed to have the choice of two cars for her use from amongst the cars of the estate;
(h) Rs. 50,000 be paid forthwith to the Petitioner out of the estate to meet the expenses and costs of litigation.
(i) That the Respondent be restrained by injunction for dealing with or disposing of assets and properties of the estate without prior sufficiently written notice to your Petitioner;
(j) That pending her application, a receiver be appointed to take charge of the assets and properties of the estate ;
(k) Such other or further order or orders be passed as to this Hon''ble Court may seem fit.
Mr. Sankar Das Banerji, learned Counsel for the Petitioner, has strenuously argued that his client has been compelled to make this application for removal of the executor under extra-ordinary circumstances. The Maharaja died on October 1, 1962. The probate of the Maharaja''s Will was obtained by the executor on September 26, 1963. Since the grant of the probate one year expired on September 26, 1964. The executor has failed to complete the administration within the said period. The present application has been filed on December 3, 1967. There seems to be no definite indication when the administration of the estate will be completed by the executor. The Petitioner is being paid Rs. 5,000 per month as an allowance by the executor. But, the executor seems to have taken an attitude that the said sum was and is being paid ex gratia. The Maharaja was perhaps the richest landlord in whole of India and he maintained the members of his family with great pomp and dignity. Under the said Will, the Maharaja bequeathed to Maharani Rajya-lakshmi residential house at Rambag for her life and also bequeathed to the Petitioner Nargauna palace with attached garden for her life for her exclusive residence. The Maharaja further bequeathed to each of his two wives assets to the value of Rs. 15 lacs each. It is also provided in the Will that after {he said dispositions and bequests, the entire residue of his estate would vest in a Board of Trustees consisting of the Respondents Girindra Mohan Misra and Mukunda Jha who are directed to hold the property in trust for the Petitioner and Maharani Rajyalakshmi for life and after their death for the residuary legatees. The said trustees are further directed to pay out of the capital assets Rs. 8 lacs to Maharani Rajyalakshmi and Rs. 12 lacs to the Petitioner and also to keep the properties, particularly the house properties, in proper repair. The Maharaja specifically provided that on the death of his two wives 1/3rd of the properties was to vest in the children of the youngest nephew Rajkumar Subheshwara Singh, l/3rd to be divided equally among the children of the other two nephews, Rajkumar Jeeweshwara Singh and Rajkumar Yajneshwara Singh and l/3rd to remain in trust for public charitable purposes. The trustees are further directed to pay to each of the two Maharanis after payment of taxes and other payments Rs. 3,000 per month. Mr. Banerji has, therefore, argued that, as a result of the intentional delay in completing the administration of the estate by the executor, the Petitioner is being denied the beneficial interests which have been provided in her favour by her husband. If the administration could have been completed with reasonable diligence, the Petitioner would have got assest of the value of Rs. 15 lacs and Rs. 12 lacs under the said Will. According to" Mr. Banerji, the administration of the estate is being prolonged and as a result thereof the trust is not constituted and the Petitioner is being deprived of not only the assets to the value of Rs. 15 lacs which the executor is directed to pay to her at the first instance, but also assets to the value of Rs. 12 lacs out of the trusts estate. Under the Will, his client is entitled to the said sum of Rs. 3,000 in any case and the executor''s attitude is that the Petitioner is not entitled to get the monthly grant, of Rs. 5,000 or any part thereof as a matter of right. Mr. Banerji has also drawn my attention to the various acts of omission and commission set out in the petition which, according to him, would demonstrably show that the executor is guilty of negligence, mismanagement and devastavit.
Mr. Asoke Sen and Gouri Mitter (with Mr. Dipak Sen) have argued the case on behalf of the executor at different stages. According to them, the administration of the estate could not be and has not yet been completed in spite of the executor''s best and diligent efforts. There are still large liabilities of the estate which has to be paid off before the distribution of the legacies. The allegations of negligence, mismanagement and devastavit have been denied. It is also submitted by them that, in any event, apart from the right to residence in the Nargauna palace, the Petitioner is not entitled to get any sum in excess of Rs. 3,000 per month under the said Will and even the said monthly payment of Rs. 3,000 would only arise after the administration is complete and the trust is constituted. It is stated that having regard to the executor''s connection with Darbhanga Raj estate and particularly with the testator and keeping in mind the status of the Petitioner, he has been regularly paying to the Petitioner a sum of Rs. 5,000 p.m. which he expects and intends to subsequently adjust against the sums and assets payable or distributable by the Board of Trustees.
It is now necessary for me to examine the contentions of the parties in the light of the materials that are available before me. Mr. Banerji has argued that u/s 337 of the Indian Succession Act, the executor is normally entitled to get one year from testator''s death for completing the administration of the estate. Admittedly, the one year period expired on October 1, 1963. According to him, no legatee has a right to come and demand anything until the executor''s year is over. We are now in the year 1968, and the administration is still incomplete. In the premises, Mr. Banerji has argued that the onus is entirely on the executor to prove that the estate has been administered with reasonable diligence. It is obvious that there is no statutory presumption that on the expiry of the executor''s one year, the executor is guilty of maladministration and, as such, is liable to be removed as a matter of course. The allegations of maladministration or negligence or devastavit are questions of fact which the Court must scrutinise before an executor is removed. In evaluating the facts and circumstances relating to the administration of the testator''s estate, two broad principles should not be overlooked. Firstly, the testator has chosen a particular person as executor on whose integrity and ability the testator had confidence and trust and, therefore, the executor should not be removed unless a serious dereliction of duty or insolent refusal to implement the provisions of the Will, causing material loss to the legatees and beneficiaries, is proved. Secondly, u/s 106 of the Indian Evidence Act, the executor in whom the estate is vested has alone the special knowledge of the facts relating to the administration of the estate. The legatee or beneficiaries cannot possibly have any special knowledge about the acts of the executor in the administration of the estate. Thus, although an executor is not liable to be removed only because the administration has not been completed within one year of the grant of probate, I agree with the contention of Mr. Banerji that the burden of proof is on the executor to satisfy the Court that the estate has been administered without any fault or unreasonable delay on the part of the executor. Reliance may be placed on Re Tankard v. Midland Bank Executor and Trustee Co. Ltd. (1942) Ch. 69 (72, 73) where the following observations are made:
There is, in my opinion, no rule of law that it is the duty of executors to pay such debts within a year from testator''s death. Apart from any provisions in the Will which expressly or impliedly deal with the payment of debts, it is the duty of executors as matter of the due administration of the estate to pay debts with due diligence, having regard to assets in their hands which are properly applicable for the purpose.... If debts are not paid within the year, the onus is on the executors to justify the delay.
It appears that the estate of the late Maharajadhiraja comprised very valuable properties consisting of movables and immovable extending over the State of Bihar and the cities of Calcutta and Delhi. Since the abolition of zamindari in or about 1952, the income has been mainly confined to the investments in various shares and securities and to some house properties. It is stated by the executor in his affidavit that the Maharajadhiraja during his lifetime had to spend every year large amounts varying between Rs. 10 lacs and Rs. 15 lacs out of the capital assets to meet his expenses and tax liabilities. Admittedly, numerous items of jewelleries were sold by the Maharajadhiraja himself during the period between 1952 and 1962. Further, annex. D to the affidavit-in-opposition shows palaces and properties worth lacs of rupees were sold by the Maharaja during his lifetime during the period from 1951 to 1962. The said annexures also show that the Maharaja sold zirat land with an area of about five thousand bighas for a sum of about Rs. 47 lacs. There is also evidence to show that the Maharaja had overdraft liability of Rs. 32,49,499 with the Lloyds Bank (National and Grindlays Bank Ltd., Calcutta) and also an overdraft liability of Rs. 10,26,677 with the State Bank of India. The assessment of wealth-tax as also the income tax for a number of years prior to the death of the testator had been pending particulars of which are set out in annex. E to the executor''s affidavit. Naturally, when the executor took charge of the estate there were heavy liabilities payable by the estate. The estate duty alone was assessed at Rs. 2,10,14,097-15 P. There is no doubt that it is colossal task to make a final assessment of the assets and liabilities of the estate. Pressing liabilities for estate duties, wealth-tax and income tax have got to be finalised to enable the executor to find out whether the assets are sufficient to pay off such liabilities. In fact, the executor had to prepare an accurate statement of the affairs and of the properties of the said estate with the help of chartered accountants in making the valuation of most of the properties by approved values as enjoined in the Will. Various legal proceedings relating to the taxation and the administration of the estate had to be attended to. Annexure C to the affidavit-in-opposition is a statement showing (the total tax liabilities "and bank overdrafts and payments made up-to-date. The entire debt in respect of bank overdraft of the testator and the foreign estate duty amounting to Rs. 42,76,176 and Rs. 25,13,395-69 P. respectively have been fully paid off by the executor. Apart from the said bank overdraft and the foreign estate duty, there were various other tax liabilities amounting to Rs. 2,91,50,934-62 P. Till January 10, 1968, a sum of Rs. 2,17,62,329-71 P. has been paid off by the executor leaving a sum of about Rs. 73,91,492-75 P. outstanding.
Mr. Banerji has, however, contended that even assuming that the executor has discharged the liabilities to the extent of Rs. 2,85,51,901-40 P., as set out in annex. C to the executor''s affidavit, there are sufficient assets with which even the outstanding sums also could have been paid off much earlier and- administration of the estate could have been completed. He has drawn my attention to the affidavit of assets filed in this Hon''ble Court on January 25, 1963, to show that the assets of the late Maharajadhiraja at the time of his death far exceeded his liabilities. Reference also has been made by him to the value of the jewelleries and the value of the building properties to prove that the surplus shown in the affidavit of assets has been made out at an undervaluation. He has even made a comment that such incorrect statements made on oath in connection with the probate proceedings1 are made criminal offences u/s 282 of the Indian Succession Act.
In my view, Mr. Banerjee�s comment on the under-valuation in the affidavit of assets is not fair. The affidavit of assets filed along with the application for grant of probate must suffer from some intrinsic discomfiture particularly when the estate of the deceased testator comprises enormous movable and immovable properties and the price of which are often fluctuating according to the market rate prevailing on different occasions. Secondly, it is not always possible at an early stage for the executor to get a complete picture of the assets and the liabilities of the deceased in their minutest details. Thirdly, the correct price or value of the assets shown in the affidavit of assets cannot be dislodged by proof of a higher value at a subsequent period. Lastly, far from having any mens rea, it is natural for every executor to protect the interests of the estate by not making exaggerated valuation on speculation or guess work which would increase the statutory liabilities of the estate.
It is now necessary for me to examine Mr. Banerjee�s main contention that the Respondent has failed to discharge the onus inasmuch as due diligence has not been proved by the executor in completing the administration of the estate. It cannot be denied that it is an enormous task to complete the administration of the estate of Maharajadhiraja the value of which exceeds Rs. 4 crores. There were huge tax liabilities of the testator which accrued during his lifetime; heavy estate duty had to be imposed and finally assessed as late as September 14, 1966, the assessment of which is still pending in the Appellate Court; a provisional probate duty was paid, but the final assessment could not be completed for no fault of the executor. There is no doubt that the testator had properties in India, Singapore, Malaya, United Kingdom and United States and separate assessments had to be done in different parts of the world. It is true that the executor has been paying conscientiously not only to each of the two Maharanis Rs. 5,000 per month but also the entire expenses relating to the palaces of the two Maharanis which would naturally include the payments to the employees costs of repairs and maintenance and electricity.
But, it appears to me that the difficulties which the Respondent naturally felt in administering the estate were not insuperable. Admittedly, five years expired since the death of the Maharajadhiraja. The two Maharanis have been well provided for by their husband in the Will. They have been made legatees or beneficiaries in their husband in the Will. They have been made legatees or beneficiaries in their husband''s estate for the period of their respective lives and no part of the income of the testator''s estate is to be diverted towards any person or charity until they die. In the background of those circumstances the interests of the Maharaja''s nephews and residuary legacy of charity should not override the immediate beneficial interests of the two Maharanis. It is very clear that the Maharaja had great affection and consideration for the Maharanis in making provisions for them in consonance with the comforts, dignity and grandeur with which they were used to live during their husband''s lifetime. It should, however, be remembered that the delay in completing the administration of the estate does not necessarily entitle the legatees to have the executor removed. Delay in completing the administration naturally involves continuing loss to the legatees. But loss to the legatees does not by itself entitle the legatees to apply for the removal of the executor. Removal can only arise when the executor acts mala fide or is guilty of misconduct or devastavit which again may arise due to dishonesty, misappropriation of fund or even gross negligence. Devastavit does not mean any failure of duty. It may be defined as a species of misconduct in the sense of ''a wasting of the assets'' Williams on Executor, 14th ed., Vol. 2, p. 1060. In this connection, reference may be made to Letterstadt v. Broers and Anr. 9 A.C. 371 (386) where Lord Blackburn has applied the principles underlying the removal of trustees to the cases of the removal of executors as set out in Story''s Equity Jurisprudence (s. 1289):
But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the act or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties or want of reasonable fidelity.
In my view, in the facts of this case, excepting that it may be stated that the two Maharanis are suffering for the delay, there is nothing to show that the executor is liable to be removed for any dishonesty, incapacity or loss to the estate. Nor has it been proved that) he has acted mala fide or that he is guilty of gross negligence. In fact, no such allegation has been made in the petition itself.
Reliance may be placed on the statutory powers of the executor under Sections 307 and 308 of the Act where wide powers are enjoyed by the executor in administering the estate. Unless such powers are abused in such a way that his act has resulted in endangering the estate or in causing substantial loss to the estate or ruinous litigations, delay in completing administration, does not by itself justify removal of the executor. The Court in examining the question whether the executor has discharged his onus should find out whether the executor has acted with due diligence. What amounts to due diligence would naturally depend upon the facts and circumstances of each case. Even if the executor has acted in good faith, in a proper case, due diligence may not be proved. The negligent, reckless or thoughtless conduct of the executor may result in permanent loss to the estate, loss of value of the property, or irreparable damage to the legatees without any reasonable justification. A prolonged duration of administration per se cannot justify his removal, unless the Court is satisfied that rectification of the executor or early completion of administration is not possible even by giving necessary directions to the executor. In the facts of this case, it does not appear that the executor''s act has caused substantial loss to the estate or jeopardized the ultimate interests of the legatees. Nor it is proved (that the executor has acted and is acting in such a way that without the removal of the executor the interests of the legatees cannot -be protected. In the premises, the Respondent cannot be held not to have acted with due diligence and, as such, should not be removed.
But, although the executor cannot be removed for the reasons stated above, it cannot be said that the estate could not have been more expeditiously administered. It is true that the executor cannot be held to be guilty of misconduct or having caused devastavit ; but even then there are many acts of omission and commission which could have been avoided in the interests of the legatees, because after all as Lord Blackburn in Letterstadt v. Broers and Anr. (Supra p. 387) has stated that the ''main guide must be the welfare of the beneficiaries''. The reasons why I express such view are as follows:
(a) Mr. Banerji has argued that as a result of the delay in completing the administration, the Petitioner is unable to make use of or invest with profits the assets to the value of Rs. 15 lacs which she is entitled to enjoy under the Will Both Mr. A.K. Sen and Mr. Gouri Mitter on behalf of the executor have contended that, on a proper construction of the Will, the Petitioner, apart from her right of residence in Nargauna palace, has no right to receive any sum of money save and except a sum of Rs. 3,000 p.m. from the trustees mentioned in the Will itself, which sum again can only lawfully be claimed as a matter of right after the administration is complete. The counsel for both the Petitioner and the Respondents have, however, submitted that there cannot be any final decision on the construction of the Will in the present application. It appears to me that the Petitioner or the Respondent could have made an application in this Court by way of originating summons for construction of the Will and for determination of the Petitioner''s right to assets worth Rs. 27 lacs which she is claiming to be her property under the said Will. The executor, not without reason, believes that after the completion of the administration Rs. 15 lacs and Rs. 12 lacs would be handed over to the trustees who would pay the Petitioner a sum of Rs. 3,000 per month. But, I fail to understand why the executor has been paying the Petitioner Rs. 5,000 p.m. on his own initiative. The obvious reason as explained by Mr. Mitter is that a sum of Rs. 5,000, according to the executor, is the proper sum which should be paid for the maintenance and personal expenses of the Maharanis on a consideration of their requirements and status. If a sum of Rs. 5,000 is not the sum which she is not entitled to under the Will, the payment of such sum would be obviously contrary to the intention of the testator. The executor has stated that any excess amount paid to the Maharani would have to be adjusted in future. Thus, the executor himself seems to have a doubt in his mind that the Will might or might not be construed in a way which is more favorable to the Maharanis (vide the Respondent''s letter dated January 13, 1966-B to petition). In such a situation the executor should have applied to the Court for a construction of the Will so that the executor and all the parties get a complete picture of the rights and liabilities of the estate. It is true that the Petitioner instead of making the present application could have more usefully moved the Court for the construction of the Will for her own sake. But, even then there is no difficulty for the executor, who has funds, to move the Court earlier so that the rival contentions of the parties could be finally determined.
(b) The executor in para. 23(g) has stated:.... I have been taking steps for raising necessary funds for meeting some of the urgent and pressing tax liabilities, viz. for liabilities for estate duty, wealth-tax and income tax by disposing of in the first instance any unproductive assets of the estate which do not yield any income and on the contrary entail heavy expenses by way of taxes and maintenance.
The probate was granted on September 26, 1963, and an inventory of the properties of the estate was filed in this Court in November 1964. Admittedly, jewelleries are assets which do not yield any income of profit. There was no justification for sale of jewelleries as late as March 24, 1967. In fact, if the Wealth-tax authorities would not have asked the executor to pay Rs. 40 lacs towards the tax liabilities, the executor might not have decided to sell the jewelleries at all. Under the Will there is an express provision that the assets should be valued and the executor should have valued the jewelleries by competent Valuer of international reputation and get them sold at the latest by 1965. The sale proceeds of the jewelleries could have been paid towards the debts and liabilities of the estate at least provisionally which would have reduced the wealth-tax dues of 1966 and 1967. Even now expensive jewelleries like Mary Antoinette necklace, Golkonda ring and other jewelleries have not yet been disposed of. There is no reasonable ground for postponing the sale on sentimental grounds or on the ground that a syndicate was formed among the jewelers for not purchasing the same beyond a sum which is much less than the sum which they ought to fetch normally. The executor, in fact, decided to sell those jewelleries in March 1967 and sentimental grounds did not stand in the way. Similarly, the formation of a syndicate cannot be the basis of postponement of sale for an indefinite length of time. If the sale would have taken place in 1965 or 1966 or at a much later period, similar situation might have arisen. If the collusion and conspiracy of the jewelers to have the jewelleries disposed of at a much reduced price has to be given importance to and is used as a plea for not selling the remaining jewelleries, the said properties would never be disposed of. There is no evidence before me that the executor apprehended the formation of such syndicate in the earlier years. There is no doubt that u/s 307 of the Indian Succession Act an executor has the power to dispose of the property of the testator either, wholly or in part, in such manner as he may think fit. The discretion to be exercised by the executor under the said section should not be ordinarily interfered with or commented upon. But, on a construction of Section 307 read with Sections 325 and 337 such discretion, as stated earlier, cannot be said to be absolute. u/s 337, an executor or administrator is not bound to pay or deliver any legacy until the expiration of one year from the testator''s death. Obviously, the section contemplates that an executor cannot be compelled by the legatee to pay the legacy within one year from the testator''s death. Logically, in a proper case, a legatee can compel the executor to make payment in accordance with the provisions of the Will after a year. Section 325 provides that debts of every description must be paid by the executor before any legacy. Under this section, it is a mandatory duty of the executor to pay off the debt or the debts of the testator''s estate. If the executor fails to discharge the debts of the deceased or his estate within the executor''s one year or within a reasonable period there after, the Court can certainly examine the exercise of discretion vested in the executor u/s 307 of the Act. It is true that the Court will not lightly interfere with the discretion reposed on the executor by the testator as laid down in Stainton v. The Carron Company 58 E.R. 58 (63), but even then the exercise of such discretion by an executor is justifiable particularly when allegations of sale of property at an undervaluation are made. Further, the Court should find out whether due diligence has been shown in making the payment of legacies. Reference may be made to Eames v. Hacons (1881) 18 Ch.D. 347 where it is laid down that in an admittedly solvent estate the payment of legacy may not be postponed until all the creditors are paid off. The affidavit of assets annexed to the application for the grant of probate shows that the valuation of the movable and immovable properties of the Maharajadhiraja and the liabilities of his estate amount of Rs. 4,07,07,822-10 P. and Rs. 3,04,09,765-51 P. respectively leaving a balance of Rs. 1,02,98, 056-59 P. Thus, on January 24, 1963, more than a sum of Rupees one Crore happened to be the property of the deceased after consideration of its liabilities. I have already stated earlier that these figures cannot obviously be correct in the very nature of the case. I shall presently show the incorrectness of the statement as shown in the affidavit of assets. Admittedly, the estate is a solvent estate at all material stages, and Mr. Mitter has reiterated the said fact even before me. Mr. Mitter has strenuously argued that the ascertained and unascertained liabilities of the estate could not be determined and naturally the debts could not be paid off and, therefore, the legatees must wait. He has argued that the legatees have no legal right to demand payment of the legacy until the liabilities are discharged, although towards the concluding part of his argument, he has made an observation that he would be able to pay off the debts and liabilities of the estate within August 1968. Nobody would be more happy than myself if that happens. But, then Mr. Mitter has emphasized the facts that there are many unascertained liabilities and also liabilities which are accruing from year to year and, unless those obligations are discharged, the administration of the estate cannot be completed. Surely, such contention cannot be accepted. The tax liabilities will arise in any event from year to year. Litigations might remain pending bona fide or mala fide even if the Tax authorities or the trial Courts finally decide the matter one way or the other, there might be appeals to the High Court and the Supreme Court. And in these days of mounting arrears of cases, would the legatees remain as helpless spectators to the legal drama and depend upon the charity of the executor ? It is true that the Petitioner could not reasonably complain of any pecuniary difficulties in maintaining herself. But, even then the Petitioner''s husband has clearly indicated in his Will how the income of the estate is to be utilized for her benefit. Admittedly, the residuary legatees like the Maharaja''s nephews or the public charity do not come into the picture at all until the death of the two Maharanis. The Maharanis have at least a life-estate in at least some of the properties. There are uncertainties in human life. The primary intention of the Maharajadhiraja is to provide the Maharanis with the legacies contemplated by him and in the context of all those circumstances the administration of the estate should be completed with all the expeditions that are necessary. The payment of the liabilities accrued after the death of the testator and the final adjudication of pending litigations cannot and should not stand as a bar to the completion of the administration of the estate for indefinite length of time. Even with respect to the debts and liabilities of the testator at the time of his death, a sum covering such debts could have been set apart at a little exaggerated figure, although the calculations may prove to be incorrect later and payment of legacies should not have been postponed all these years if the estate is otherwise solvent. In the present case, there are sufficient assets which could be disposed of or set apart to pay off all the liabilities including the contingent ones. House properties have been sold and are being sold even now. Only a portion of jewelleries were disposed of as late as March 1967. Even some of the valuable shares worth lacs of rupees could have been sold or set apart. The executor, to be fair to the Petitioner, should not burden himself with the worries of the residuary legatees, whose claims are to be satisfied after payment of the legacies to the two Maharanis. Even with respect to the residuary legatees, reference may be made to the following observations in Williams on Wills (2nd ed., p. 318):
the right of a residuary legatee is not to any particular asset of the testator''s estate. The only right of such a beneficiary is to have the clear residue ascertained and such residue or the beneficiary''s share of it paid over. Despite this, however, there is authority that an executor can properly let a residuary legatee into possession of part of the estate before the residue is finally ascertained, and it is quite a common practice, where the residuary legatees are absolutely entitled and the state is obviously more than sufficient to meet liabilities, to make a partial distribution of residue from time to time as administration proceeds.
Mr. Banerji has strongly criticized the manner in which the jewelleries were sold by the executor. According to him, the jewelleries sold by the executor on March 1967 for 92 lacs of rupees are really worth Rs. 2 crores. The reason why the jewelleries did not fetch the correct price are that the executor did not give sufficient publicity to the sale and that the sale was completed in a hurry within a month. While I agree with Mr. Banerji that the sale of the jewelleries should have been decided long'' ago and a proper valuation of the jewelleries should have been made by a Valuer of international reputation and much longer time should have been given between the advertisement for sale of those jewelleries and the actual sale. I cannot accept that there is any satisfactory evidence before me by which I can come to the conclusion that the said jewelleries were worth more than Rs. 92 lacs and that such sale on the part'' of the executor has caused loss to the estate. It appears from the executor''s affidavit that advertisements were made in various papers from March 6, 1967 to March 9, 1967. Inspections were taken by the intending purchasers from March 10, 1967 to March 16, 1967 ; the tenders reached the executor on March 18, 1967; the offers were closed on March 24, 1967. The undated letter of the 13 well-known jewelers of Calcutta, Bombay and Jaipur, annex. F to the petition, on. which the Petitioner has relied upon, reveal the following facts:
(a) Jewelers from whole of India were given time to inspect.
(b) Well-known jewelers came from important cities to Darbhanga.
(c) Persons desirous of taking inspection were given facilities to inspect them.
(d) Further tenders were received. The executor also wanted from the tenders fresh tenders giving a valuation of each item.
(e) Originally, the highest tender for the whole lot was for only Rs. 85 lacs. But, as a result of calling tender for each item of the jewelers separately, the valuation was increased to Rs. 92 lacs.
(f) The offer of the said 13 aggrieved jewelers at no stage exceeded Rs. 85 lacs.
The letter of Man Radio and Electrical Private Ltd. dated March 23, 1967, confirms the executor''s case that a syndicate consisting of Indian jewelers, some of whom happened to be the agents of foreign principals was formed which decided not to offer tenders beyond a sum of Rs. 85 lacs. This letter admits that the syndicate was ultimately broken and the executor by clever manipulation persuaded Nanubhai to leave the syndicate and to increase the bid to Rs. 92 lacs which was subsequently accepted. There is no statement in the petition that the higher offer was actually made and the executor did not accept it. Sealed tenders-were asked for and were opened in the presence of the trustees mentioned in the Will. The Maharani had knowledge of the proposed sale of jewelleries as early as March 2, 1967 (vide: K.L. Mathura''s letter to Mr. P.L. Vora, the Petitioner''s Advocate). There was no complaint on the part of the Petitioner or her Solicitor to sell the jewelleries in a different way, nor did the Petitioner or her Solicitor demand that tender should be opened in her presence or in the presence of her representative. Advertisement appeared in the newspapers from March 6, 1967. The complaining jewelers instead of tendering prices higher than Rs. 85 lacs were writing to the Taxing authorities and also to the Petitioner for taking steps. The detailed descriptions of the jewelleries, as set out in the list of jewelleries annexed to the petition, show that the competing jewelers had full information about the items of the jewelleries including quality, size, shape and weight. The sale was concluded on March 24, 1967, and until that date there was no offer from other sources beyond the said sum of Rs. 85 lacs. In the affidavit of assets, the valuation of jewelleries including Mary Antoinette necklace and Golkonda ring were shown as Rs. 16,97,785-82 P. The Estate Duty authorities assessed them at Rs. 57,83,005 in spite of the complaints by the interested jewelers. The letters of jewelers written to different Government departments show that jewelleries were worth over Rs. 2 crores. But, in the valuation given by them on March 28, 1967, they showed it at Rs. 1,20,30,000. But the fact remains that the said'' jewelers never offered any sum beyond Rs. 85 lacs as the price of the jewelleries before the sale was concluded. Even assuming all the allegations of Mr. Banerji are correct, I have no materials to conclude that the executor in selling the said jewelleries for Rs. 92 lacs has caused loss or devastavit to the estate. It is quite possible that if the jewelleries would have been valued by international Valuer and wide publicity was given to leading papers in countries outside India, higher price might have been obtained, but such a conclusion would be based upon surmises.
(c) There is an express provision in the Will that the executor shall get all the assets of the testator valued by an approved Valuer and shall make distribution of the bequests as per directions in the Will. The probate was granted to the Respondent on September 26, 1963. I do not find any evidence of the valuation of the jewelleries of the testator by an approved Valuer in terms of the said Will. A proper valuation of the entire unproductive assets would have given a convenient picture of the estate of the deceased to the executor and the executor could also have got the correct value of the jewelleries soon after the grant of the probate. The testator himself during his lifetime got the jewelleries valued by a Valuer of international reputation. The jewelleries admittedly did not yield any income. On the contrary, the value of the jewelleries was being added up for determining the wealth-tax of the subsequent years.
(d) It is significant that the executor has filed his affidavit and a large number of annexures, but the Court does not get any correct picture of the present assets of the estate. The statements of ascertained liabilities has been given ; payment of statutory liabilities have been shown in details; unascertained liabilities have been referred to ; but one does not find any statement of the present assets in the annexure. As stated earlier, the affidavit of assets annexed to the application for the grant of probate filed by one Bindeswari Prosad Verma, an accountant in the office of the late Maharajadhiraja, sets out the assets and liabilities of the estate at the time of death of the Maharaja. In the annexure to the affidavit-in-opposition filed by the executor on January 10, 1968, revealed the position of the liabilities of the estate. Even with respect to the liabilities, I find there is substantial difference. The liabilities shown in the said affidavit of assets and in the affidavit-in-opposition differ in extra-ordinary manner. The wealth-tax was shown as Rs. 25,23,649 by Mr. Verma, whereas in the affidavit of the Respondent the same was shown as Rs. 9,14,322-37 P. Similarly, agricultural income tax was shown as Rs. 1,00,000 in the earlier affidavit, whereas the Respondent has mentioned a sum of Rs. 19,39,141-13 P. The estate duty was assessed by Mr. Verma at Rs. 96,42,494, whereas the Respondent has mentioned Rs. 2,10,14,097-15 P. on this account. The undisputed probate duty was not even considered in the affidavit of Mr. Verma, whereas the statement in the affidavit-in-opposition shows that the said duty amounts to Rs. 7,12,013-50 P. The income tax liabilities were shown by Mr. Verma to be Rs. 4,31,706-42 P. It is not clear that this tax was calculated upto a particular year. I suppose that the said figure amounts to tax payable by the estate upto January 24, 1963, when Mr. Verma affirmed his affidavit. The executor, however, in the annexures to his affidavit, has shown income tax liabilities to be Rs. 39,40,618. The tax liabilities shown in annex. C to the affidavit are supposed to be the liabilities as were ascertained ''up-to-date'' which date I suppose would be the end of 1967 or early January 1968. Even a sum of Rs. 50 lacs, payable to the Maharanis under a Will was shown as a liability by Mr. Verma, and the said affidavit of Mr. Verma has been relied upon by the executor. The expenditure tax was shown by Mr. Verma to be Rs. 7,18,988 whereas the executor has mentioned it to be Rs. 1,61,000. I do not dispute for a moment that it was not possible for Mr. Verma to give as complete account of the liabilities of the estate at that stage when the assessment proceedings were not finalised. But, at the same time, the affidavit of assets do not give reliable picture of the assets and liabilities of the estate. I would have fully appreciated if the executor, after ascertainment of the liabilities as far as possible, could at least tell the Court the present value of the estate of the Maharajadhiraja. I have been told again and again by the learned Counsel for the executor that the assets are sufficient to pay off the liabilities. But to what extent the assets exceeded the liabilities, the Court has not been given any idea. There is another aspect of the matter which I cannot help commenting upon. Annexure D to the affidavit of the Respondent shows that the houses and properties were sold during the life-time of the testator. It would have been convenient if another statement would have been given which would show conveniently the house properties which could be sold to pay off the liabilities. In para. 30 of the said affidavit the executor has stated that in November 1965 the executor negotiated the sale of the premises Nos. 42A and 42B Chowringhee Road measuring about 3 bighas, 7 cotts, 9 chhs. and 35 sq. ft. and entered into an agreement for '' the sale of the same with Jajodia Enterprises at a price of Rs. 80,000 per cottahs. The said party failed to complete the purchase and the earnest money amounting to Rs. 50,000 was forfeited in or about April 1966. Mr. Mitter has stated before me that the executor has been negotiating with the Government for the sale of the residential house of the Maharaja at Mansingh Road, New Delhi, and his client is expecting a sum of Rs. 58 lacs as the price of the said property. I do not know whether the said two properties would have yielded substantial rent if the executor did not decide to sell the same. The jewelleries which did not fetch any income, as stated earlier, should have been sold first. Besides, if the executor has decided to sell the house properties, there is no reason why he did not decide to sell such properties earlier.
(e) Mr. Verma''s affidavit shows the value of the shares in the account of the Maharajadhiraja as on October 1, 1962, amounted to Rs. 1,60,48,485-15 P. Similarly, the list of Malayan dollars holdings in the said affidavit shows the value of the shares amounted to Rs. 15,00,251. The executor has not given any idea as to the present value of shares now in his possession. Nor there is any material on the basis of which I can come to the conclusion which shares are yielding income and which shares do not. It has been submitted that the shares should not have been sold which would have prejudiced the interest of the estate. According to Mr. Mitter, the executor was to pay Rs. 10,000 to the Maharanis, meet the expenses of the palace, pay the salaries to the staff, and all these necessary expenses could not be met if the estate is deprived of the dividends from the shares. Apart from such general statement, I do not find sufficient data to check up the said contention of Mr. Mitter.
(f) Admittedly, there were outstanding ascertained liabilities and also some unascertained liabilities. The jewelleries, the house properties and even substantial portion of the shares should have been sold and the sale proceeds should have been earmarked or set apart to meet the liabilities if and when they were to be finally paid. It is impossible to accept the contention of Mr. Mitter that until the pending cases and the assessment appeals are disposed of, the administration of the estate cannot be completed and the legacies cannot be paid. Maximum tax liabilities could have been calculated and, on the basis of such calculation, properties could have been sold to meet such possible liabilities and thereafter legacies could have been paid. In this connection, reference may be made to Lala Goverdhone Das v. Harish Chandra and Ors. 38 C.W.N. 457 (458) where Buckland J. did not agree with the view that Section 325 of the Indian Succession Act is a bar to pay any legacy before discharge of debts. The learned Judge has observed:
This cannot mean that it is the duty of the executor in every case whether the estate is solvent or insolvent to pay each creditor before he pays any legatee.... It only lays clown, in my view, priority, and though the matter does not arise in this appeal, I should not be prepared to lend support to the view that it would stand in the way, in an admittedly solvent estate, of the executor paying a legatee before he has discharged the debts of the deceased.
In the present case, according to the executor himself, the Petitioner is to get only a beneficial interest in the legacy, and such beneficial share, according to him, cannot exceed Rs. 3,000 per month. Mr. Mitter has stated that the final assessment of the estate duty took place on September 14, 1966, and there is also an appeal still pending against some of the items there. A sum of Rs. 40 lacs was paid towards the estate duty on March 31, 1967. The balance liabilities on this account alone amounting to Rs. 50,52,357-10 P. still remains unpaid. Thus, according to Mr. Mitter, the administration in spite of the best endeavors on the part of the executor still remains incomplete. He has argued before me that the entire outstanding liabilities of the estate amounting to Rs. 73,91,492-75 P. would be discharged within three months even without the sale of the shares. But, then he adds that the payment of these outstanding liabilities by itself do not mean the completion of the administration and handing over of the legacy to the Petitioner. The tax liability would accrue from year to year. Assessment will also continue from year to year. Appeals against the order of assessment of the previous years and the current years would take several years. It would be a painful joke for the holder of a life estate to be told at the time of death that the legacies could not be paid in spite of diligent attempts on the part of the executor to complete the administration. Thus, some practical and effective remedies must be found out. The executor should be in a position to calculate the total liabilities accrued or which might accrue, and sufficient properties, movable or immovable, should be set apart to meet such contingencies. Mr. Mitter has relied upon Spod v. Smith 38 E.R. 667 in support of his contention that the executor would be personally answerable, although the executor, acting bona fide, allows the special legatees to take the legacies, under a belief that the assets are amply sufficient for the payment of the testator''s debts and although in fact the deficiency is occasioned by subsequent events which he had no reason to anticipate. In the facts of that case, the Lord Chancellor Lyndhurst was not convinced that independently of the property specifically bequeathed, there will be a fund equal to the payment of debts. In the present case, Mr. Mitter has laid emphasis on the fact that the estate is very solvent and the payment of legacy is postponed because administration could not be completed even with utmost diligence. The executor should have made up his mind all these years to know the correct legal position of the Petitioner on the construction of the Will by applying to the Court or otherwise to enable him to ascertain the residue and to pay the Petitioner her dues or at least transfer the legacy to the trustees. To expedite the completion of administration, he could have applied u/s 356 after placing before the Court present assets of the estate and the possible risks involved in payment of legacies.
(g) By an order dated November 24, 1965, Ray J. permitted the executor to invest a sum upto Rs. 10 lacs in Asoke Papers Ltd. and about Rs. 10,50,000 in Walford Transport Ltd. I am glad to find that the executor did not invest any money in Asoke Papers Ltd. The Petitioner had knowledge of the said order and she cannot now complain of the contents of the said order. The executor is protected under the said order of this Hon''ble Court, and any act in pursuance of the said order cannot now be raised as an act proving the mismanagement of the estate. But, it is not very clear to me under what compelling circumstances the executor had to invest a large sum amounting Rs. 7,89,427 to maintain the controlling interest in the Walford Transport Ltd. Admittedly, the Maharajadhiraja held more than 50 % of the shares and had controlling interest. It is argued that by purchasing the additional shares the income of the estate has increased because they yield dividend varying between 27 to 30 %. We are not concerned here with the question of a good investment. The income of the property might be utilized in equally good or better investment. The question is whether the investment was at all necessary. Any further investment is relevant when already the testator''s estate is solvent enough to meet the liabilities. It is nobody''s case that as a result of purchase of the shares in Walford Transport Ltd. the executor has caused loss to the testator''s estate. The standard by which good administration of a receiver or a trustee or a sebait is to be measured is not always the same as the administration of an executor under a Will. The executor''s primary duty is to pay off the debts of the estate and to hand over the surplus estate to the legatees under the Will. The interest of the specific legatees require the discharge of all liabilities by the executor. Similarly, with respect to Asoke Papers Ltd., although the Respondent has not invested any additional amount in pursuance of the order of this Hon''ble Court, a sum of Rs. 8,35,000 was, however, paid by the executor to the credit of 3,34,000 shares belonging to the estate. The Petitioner has stated that in the accounts filed on January 20, 1965, this sum was shown as the price for the said 3,34,000 shares. It appears from the executor''s affidavit that the said order was sought because the Industrial Finance Corporation agreed to be the guarantor of the said company. Mr. Mitter has, however, submitted before me that the executor did not purchase the shares amounting Rs. 10 lacs as authorised by the order of this Hon''ble Court dated November 24, 1965, because the said Industrial Finance Corporation withdrew the guarantee which was previously agreed upon by the Corporation to pay off the liabilities of the company and which was the basis of the order of this Hon''ble Court. However, it appears from the account filed on January 24, 1965, for the period between October 2, 1963 and March 31, 1964, a sum of Rs. 8,35,000 was paid as prices for 3,34,000 shares of the company. Mr. Mitter has submitted before me that the said sum was spent long prior to the order Ray J. and it was not paid for purchasing any new shares of the company, but the payment was made towards the final call money in respect of the shares previously purchased by the Maharajadhiraja. I do not find the said call money as a debt in the affidavit of assets filed on January 24, 1963. The circumstances under which the said final call money had to be paid for the period between October 2, 1963 and March 31, 1964, are not clear. Nor is it clear to me whether the payment of the said call money could have been postponed by negotiation to some future date. All these facts are relevant because five years have already expired since the death of the Maharajadhiraja and, yet the legacies specifically provided for the Maharanis by their husband have not been paid.
Mr. Banerji has made a comment that the Petitioner is suffering loss of interest on assets to the value of Rs. 27 lacs which have been provided in the Will as a legacy to his client. The executor bona fide believes that the said sum of Rs. 15 lacs and Rs. 12 lacs, as provided in the Will, would be made over to the Board of Trustees and not to the Petitioner.'' Mr. Banerji, on the contrary, is of opinion that, on a proper construction of the Will, the sum of at least Rs. 15 lacs, if not the entire Rs. 27 lacs, has got to be paid to his client at the first instance. In my opinion, the Court is not competent u/s 301 or u/s 302 of the Indian Succession Act to determine the disputed question of title. In fact, the counsel for both the parties have submitted that the construction of the Will should be the subject-matter of other proceedings, and it is not necessary for me to decide the same. Reliance may be placed in this connection on Provas Chandra Sinha Vs. Ashutosh Mukherji and Others, . If Mr. Banerji felt that the executor had no right to postpone payment of the said sum of Rs. 15 lacs to his client, his client! should have first taken proper legal steps to determine his client''s title to the assets mentioned in the Will. It may be argued that as the Petitioner had no money to institute legal proceedings, the executor would have taken the necessary steps. But, if the Petitioner could have made the present application, I see no reason why she did not institute necessary legal proceedings to determine the nature and character of her legacy.
Mr. Banerji has next drawn my attention to certain facts in para. 27 of his petition which, according to him, would show that the continuance of the Respondent in the office of the executor is positively detrimental to his client''s interest. Firstly, it has been alleged that the Maharani is compelled to use hired taxi inasmuch as the executor is refusing to allow her to vise a car of her own. During the lifetime of her husband she used to avail herself of the motor cars of her husband besides the four cars that were specially meant for her personal use. But, after the death of her husband she is not free to make use of any one of those cars. The executor, however, has stated that the Maharanis were provided with cars for use at Darbhanga, and the Petitioner had to write letter dated April 8, 1966, to which exceptions were taken by the Petitioner''s lawyer under the following circumstances. The Petitioner and her party while going to Delhi in April 1965 by train took two cars belonging to the estate to reach Barauni junction Railway station. One of the two cars happened to be one of the best cars belonging to the estate. The Petitioner, however, instead of boarding the train at the Barauni junction, proceeded to Calcutta with the two cars, which happened to be Bentley model (1951) and a Chevrolet, without any intimation to the executor either before or after her departure. The Petitioner has admitted that she and her party went to Calcutta by the said two cars and then from Calcutta she took the train for Delhi. According to her, it is not true to say that she under the pretension of taking the cars to Barauni station went to Calcutta by road. She and her party left Darbhanga in two cars and there was no question of her going to Barauni station and then changing her plan without any intimation to the executor. In any event, the Cheverolet car gave trouble in Calcutta and after necessary repair was sent back by her to Darbhanga. The Bentley car, however, was taken by her driver from Calcutta to Delhi by road. According to the Petitioner, the Bentley car is an old car and has been consistently giving trouble, and there is no question of the car being used roughly or recklessly. The car is not driven by herself; she does not know driving and the car is used by an experienced driver. In my view, the executor is right when he has stated that under the Will she has no lawful right to use any car at any place according to her wish. The executor had to write the said letter dated April 9, 1966, in reply to the Petitioner''s Solicitor''s letter dated March 25, 1966, and naturally the executor had to explain his duties as executor in the matter. If the Maharani herself would have requested the executor directly, the executor might have reacted in a different way. But, as the executor out of consideration for the Maharani''s exalted status allowed her to use the Bentley car in Delhi, it is desirable that the executor should allow the Petitioner to use a good serviceable car which she may use according to her desire. If the Bentley car is really giving trouble, the Petitioner should return the same to the executor.
(h) The next allegation against the executor is that he is refusing to hand over the jewelleries which originally belonged to the junior Rajmata Sahiba of Darbhanga and which were subsequently kept in the Darbhanga Treasury by the Maharaja in the. names of the Petitioner and the other Maharani. The said jewelleries, admittedly, are still lying in the Treasury and, according to the Petitioner, there is no reason why they should not be returned to the Maharanis who are exclusively entitled to the same in equal shares. At the suggestion of the executor, the matter was referred to Mr. M. C. Setalvad, the ex-Attorney-General of India, for his legal opinion and, although the said opinion was in favour of the Petitioner, the executor is refusing to hand over the same to the Maharanis. The executor, however, feels that unless the heirs of the Maharajadhiraja''s brother, Raja Bahadur and sister Lakshmi Debi, consent the executor''s personal liability to the heirs of Raja Bahadur and Lakshmi Debi remains. Further, according to the Petitioner herself, the said jewelleries belonged to the two Maharanis jointly. There is nothing to show that the Maharani Rajyalakshmi has asked for the same, nor could there be an effective partition effected in the absence of the elder Maharani. In any event, as the said jewelleries had been claimed by the Petitioner to be her personal property and not as a subject-matter of legacy, the Petitioner can take other steps to recover the same from the executor. The executor also can get the position clarified by getting the title decided by the Court if it cannot be settled otherwise. In any event, the executor could have formally written to the Maharani Rajyalakshmi and the heirs of Raja Bahadur and Lakshmi Debi about the Petitioner''s claim on the said jewelleries and their reaction to the said demand would have justified the executor''s position in clear terms.
(i) Mr. Banerji has then made a grievance that the executor is even refusing to return the personal jewelleries and valuables of the Petitioner which were sent to the Darbhanga Raj Treasury in sealed boxes and for which receipts were granted. As stated above, the said jewelleries the Petitioner is claiming as her personal property and, naturally, she ought to take steps to get back her property from the executor by taking other legal steps. The receipts which were granted to the Petitioner show that the deposits were made by the two Maharanis. Thus, it cannot be said that the said jewelleries belonged to the Petitioner alone. But, it appears from the affidavit of the executor and also the supporting affidavits of Dwarka Nath Jha and Durgananda Jha that the said ornaments and jewelleries were not the personal property of the Maharani but the said properties belonged to the estate of the Maharajadhiraja. It appears from the registers of the Darbhanga Raj Treasury, according to the executor, that some ornaments had been requisitioned by the late Maharajadhiraja during his lifetime from the Raj Treasury, but the same had not been returned to the Treasury. The said ornaments had also been shown in the wealth-tax return of the testator filed during his lifetime. The statements of the executor Dwarka Nath Jha and Shyamananda Jha, who happened to be high officers of the estate; show that the said ornaments actually correspond to the ornaments which were taken away by the late Maharajadhiraja during his lifetime. There were, however, certain articles of gold which were not mentioned in the registers of the Raj Treasury which had been duly returned to the Maharanis. The said articles of gold other than jewelleries not belonging to the estate were, however, allowed to be declared by the two Maharanis under the Gold Control Order and were handed over to them. In my view, the executor has the duty in ascertaining the true ownership of these jewelleries. There is no reason why the executor did not take any steps all these years to find out the title to these ornaments on notice to all the parties. If the executor''s statement is correct that the ornaments and jewelleries belonged to the Raja''s estate, they should be sold and the sale proceeds could have been utilized to pay off the liabilities of the estate. There is no justification for the said jewelleries to remain in the Treasury when, admittedly, these jewelleries do not yield any income and the estate has liabilities.
(j) Similar observations could made with respect to the property which might be claimed as the property of the Maharajadhiraja under the debater trust known as Kameshwara Religious Trust. A decision from a Court of law would "assist the executor in the administration of the Raja''s estate if the persons on whom the trust properties under the Deed of Trust dated March 6, 1949, referred to in para. 27(d)(i) of the said petition would devolve are known. This is another aspect of the matter to which steps should have been taken by the executor as early as possible. If the said properties had devolved in law on the legal representatives of the Maharajadhiraja, the executor would be in better position in completing the administration of the estate.
The only other point Mr. Banerji has argued is that by the executor''s letter dated January 13, I960, the executor has assented to the legacies, and, as such, there is no justification for the executor to postpone delivery of the legacies. In my view, the letter dated January 13, 1966, cannot be treated as an assent by the executor to the legacies. The said letter is written in reply to the letter of the Maharani in connection with her enquiry as to the debts which were necessary for filing the income tax and wealth-tax returns. The executor has made it clear that the sum of Rs. 5,000 per month may have to be shown in the income tax'' returns. The executor has further stated in the said letter that Rs. 27 lacs as mentioned in the Will form the corpus of the Petitioner''s wealth and, as such, the same have to be shown in the Petitioner''s wealth-tax return. By using the word ''may'' obviously the executor was really giving her an advice on the matter. It is true that the executor has made a categorical statement in his letter that Rs. 27 lacs form the corpus of the Petitioner''s wealth. Even assuming that the executor by such statements has made an admission that Rs. 27 lacs would be the Petitioner''s property under the Will, it cannot be said that the executor meant that the said sum of Rs. 27 lacs would be handed over to the Petitioner forthwith contrary to the provisions of the Will. Admittedly, statutory liabilities of the estate remained unpaid in January 1966 ; the administration remained incomplete ; and the executor could not have agreed to hand over Rs. 27 lacs to the Petitioner. The executor had a feeling and still� cherishes the same hope that assets to the value of Rs. 27 lacs would be provided for, as set out in the Will for her benefit. But, it is clear from the Will itself and also the subsequent conduct of the executor that the executor had good reasons to believe that the said amount was to be handed over to the trustees under the Will and not to the Petitioner. As stated earlier, a decision has got to be found out first whether the whole or part of the legacy is receivable by the Board of Trustees or by the Petitioner. In my view, where there is a bona fide dispute with special reference to a particular legacy, the executor''s conduct can-not be construed as an assent to the legacy unless an unconditional assent is spelt out from the surrounding circumstances. In the correspondences, the executor has stated that the administration could not be completed and that there are heavy liabilities. Thus, taking into consideration the said letter dated January 13, 1966, and all the other surrounding circumstances, in my view, it cannot be said that the executor assented to the legacies. Reliance has been placed by Mr. Banerji on Stubbs v. Wrightwick where the executor was made accountable for loss caused to the residuary legatee. There no question of removal of an executor arose. The executor, instead of securing the residue at the end of year after testator''s death, retained the canal shares and ran the mine which subsequently became unproductive, although he had no right whatever, under any circumstances, to run the mine. The facts are clearly distinguishable from the facts of the present case, although the general principles laid down cannot be questioned.
In my view, this is not a fit and proper case where the executor should be removed from his office. Apart from the reputation and the status the executor enjoys in his private and public life, the executor has been chosen as a trusted man by the testator. There has been no allegation against him for any misappropriation of fund, breach of trust, dishonesty. The delay on the part of the executor in completing the administration cannot be said to have been caused by deliberate intention to prolong the administration. An error of judgment or error in the exercise of discretion in matters of management of the estate by themselves cannot be a ground for the executor''s removal. Admittedly, the estate involves properties worth several crosses of rupees comprising all kinds of properties, movables and immovable, and it is a tremendous job to complete the administration in a normal way. There are still valuable assets which can be rightly utilized. I have been told by Mr. Mitter that the market value of the quoted shares amounted to Rs. 1,20,30,547. The value of shares in private limited companies amounts to Rs. 33,61,225 approximately. There are still gold bonds to the value of Rs. 21,71, 450. The balance of jewelleries even, according to the estate duty valuation, might fetch approximately another sum of Rs. 50 lacs to 55 lacs. The price of Man Singh Road property in New Delhi has finally been settled with the Government of India at a sum of Rs. 58 lacs which amount will be available soon. Another sum of Rs. 16 lacs might be available from the Rajmata''s trust estate. Further, there are still valuable immovable. properties including premises Nos. 42-A and 42B Chowringhee Road, Calcutta (areas 3 bighas, 3 cottahs, 7 chataks), 42-1 Chowringhee Road, Calcutta (area one bigha, 7 cottahs), premises No. 3 Esplanade East, Calcutta (area 11 coltah (9) 10 E.R. 1278 with four-storied building) and No. 56 Radha Bazar Street, Calcutta (area 10 cottahs, 11 chataks with three-storied building). Out of the total ascertained liabilities amounting to Rs. 3,59,40,506-31 P. payments to the extent of Rs. 2,85,51,901-40 P. have been made leaving only a sum of Rs. 73,91,492-75 P. outstanding. Sale of Man Singh Road property which has been finalised and the sale of a portion of the jewelleries would be sufficient to pay off the said outstanding liabilities. In my view, at this stage, it would take several months for any new man to have an idea of the estate. A new executor or a new administrator would, instead of completing the administration, might further delay the administration and, in fact, might be ruinous also. I, accordingly, hold that the present executor should continue to administer the estate. But, it is necessary for me to give the following directions which are necessary to expedite the matter.
Firstly, unless the Maharanis and the executor agree, otherwise the executor should forthwith apply to the Court on notice to all the legatees and beneficiaries for the construction of the Will of the Maharajadhiraja on the point whether the said sum of Rs. 50 lacs or any part thereof should be handed over to the Maharanis separately or to the two Board of Trustees. Secondly, the title to the jewelleries of Rajmata and the personal jewelleries of the two Maharanis should be determined in a Court of law, unless all the parties agree to settle the same outside the Court. Thirdly, the petition should be given an option to keep the said Bentley car (1951 model) for her use or any other equally good car belonging to the estate of Maharajadhiraja. Fourthly, the marketable shares of the value of Rs. 30 lacs or immovable properties of equivalent value should be set apart separately forthwith to meet the bequests of Rs. 30 lacs provided in the Will, subject to determination by the Court as to whom it has to be given. Fifthly, the executor should continue to pay the sum of Rs. 5,000 every month to the Petitioner on the basis that if the said sum is in excess of what is payable to the Petitioner under the Will, the excess amount received by her is to be adjusted against her future claims. The costs of the parties as of hearing and as actually paid to the counsel will be paid out of the estate as requested by the counsel for all the parties. The executor is directed to make a payment of a sum of Rs. 20,000 to the Petitioner''s Solicitor at the first instance within three weeks from today. The said sum, however, will be adjusted after taxation. Certified for three counsel.