- (1.) THE judgment of the Court was as follows:- THE stand taken by the executor conjures up visions of a forlorn figure clasping the staff of justice on a burning deck of righteousness. This apparently disinterested executor has travelled from Alipore to New Delhi with a brief stop-over in this Court in his altruistic endeavour to uphold the cause of law. He is indignant at the attempt by a beneficiary under the Will to dislodge him from his high office of executor that, he believes, confers on him the authority to undo an act of illegality committed by the testator in the matter of a bequest. He has carried an independent cause to vindicate the stand that he has taken on a question of law and steadfastly holds his ground.
(2.) THE executor is a son of the executants of a joint and mutual Will of July 30, 2001. THE subject-matter the present proceedings is the bequest therein relating to the tenancy rights in respect of the north-west ground floor flat at premises No.10, Lower Rawdon Street, Calcutta - 700020 which the father of the executor held as a monthly tenant under a trust. THE Will stipulates that such tenancy is to go to a grandson of the testators through another son. Probate of the joint and mutual Will was granted by this Court on September 6, 2007. The grandson legatee complains in AORC No. 1 of 2010 of the insolent refusal by his uncle, the executor, to implement the relevant provision of the Will. This legatee has prayed for removal of the executor and even for the impounding of the legacy to the executor and the executor's share in the residuary bequest. The Will is clear as to the relevant bequest. Clause 4.3 thereof instructs as follows:- "4.3. The tenancy right in the said Flat at No. 10 Lower Rawdon Street, Calcutta, shall stand bequeathed to our grand-son Pramod Kumar Jalan, son of our son Shree Gopal Jalan, subject to the condition that in case our younger son Om Prakash Jalan and his family consisting of his wife, son, daughter-in-law, daughter or his any other relative etc., who are presently residing at Hyderabad or elsewhere come to visit Calcutta on business or for any other work then they shall be entitled to stay in the said Flat without any hindrance or obstruction on the part of Pramod Kumar Jalan or any other person/persons occupying the said Flat." The grandson says that despite demands made by him on the executor, the latter has refused to give assent to such legacy in favour of the rightful legatee or make over possession of the said flat to the legatee. The grandson claims that the executor in his other role as one of the trustees of the landlord trust is seeking to surrender the tenancy to the landlord with a view to frustrate the bequest.
(3.) THE grandson instituted a suit before the Alipore Court in 2009 against the executor and the trustees of the landlord trust seeking a declaration that he was entitled to the tenancy rights in respect of the flat; perpetual injunction restraining the defendants and their agents from effecting surrender of the said flat to the landlord or preventing the plaintiff from taking possession thereof; a further injunction restraining the second, third and fourth defendants in that suit from acting in a manner inconsistent with the plaintiff's entitlement to the tenancy right; a decree for recovery of possession from the landlord trust in the event possession of the flat had already been made over to it; a decree for delivery up of the instruments which may have been prepared for surrendering the tenancy in respect of the flat in favour of the trust; and, the other usual reliefs. THE grandson emphasises that the executor was impleaded in the Alipore suit twice over; as the first defendant in his capacity as executor and as the fourth defendant as one of the trustees of the landlord trust. Apart from the legal question that the grandson raises - of the obligation of an executor to give effect to the wishes of the testators unless impossible - he insists that the conduct of the executor has been so reprehensible that it would merit his disqualification from further continuing in that office. Towards such end, the grandson has relied on the executor's written statement in the Alipore suit, filed on behalf of both the first and fourth defendants therein, where the executor has claimed that he was "bound to deliver possession of the said flat to the said Trust" (Paragraph XVI) and that he had "made over vacant possession of the said ground flood flat, which is the suit property, to the said Trust" (Paragraph XVII). The grandson asserts that not only is such stand of the executor of having allegedly made over possession of the flat to the landlord belied by the contrary statements made in the written statements filed by the two other trustees of the landlord trust, the subsequent stand of the executor as recorded in an order passed by this Court was that the tenancy had not been surrendered.;