J.N.PATEL, C.J. - (1.) THESE are appeals arising out of the common judgment and order delivered on 27th August, 2010 on two applications GA 3714 of 2008 and GA 3718 of 2008 filed in connection with PLA No. 242 of 2004 whereby those were disposed of by putting the estate for the time being in the custody of three independent persons who would act as Joint Administrators pendente lite in and over all the estates left by the deceased. The relevant portion of the said judgment is noted below:- ".......They will make inventory of the estate and take possession of the same except the properties which are under possession of the Joint Special Officer for the time being. They shall submit report of inventory within four weeks from the date of assumption of charges. They will take custody of all original share scripts of all the companies and other valuable documents viz. Boards, fixed deposits' receipts etc. which belonged to and held by the said deceased, shall operate the bank account or accounts and collect dividends, and meet outgoings both statutory and non-statutory which are due and payable by the estate of the said deceased. In one words they will take all lawful steps for general Administration of the estate left by the said deceased. In the process they will take steps in accordance with law for their participating in all the meetings of Shareholders of the companies and also take all lawful steps as shareholders in accordance with law. However while exercising voting rights for the purpose of appointment of any Director or Constitution or reconstitution of Board of Directors they shall give prior intimation to this Court in the form of report indicating the reason and need for appointment of new Director and constitution or reconstitution of Board of Directors of the Companies in which the deceased had shareholdings whereever possible under law..........."
(2.) IN this context it is appropriate to mention that before the learned Single Judge parties had prayed for appointment of Administrator Pendente Lite ("APL for short") as evident from their respective applications. In application being GA 3731 of 2008, the relevant prayers are as follows:- "a) The petitioner No.1, Harsh Vardhan Lodha, be specifically authorized/empowered to carry out and discharge the following acts and functions relating to the Estate of Late Priyamvada Devi Birla as administrator pendente lite thereof: i) Operation of bank accounts pertaining to Estate of Late Priyamvada Devi Birla including the Bank Account No. 0100002100579690 opened by Late Rajendra Singh Lodha with Punjab National Bank Brabourne Road Branch, Kolkata. ii) Collection of dividends and all other incomes of the Estate of Late Priyamvada Devi Birla and deposit of the same in the said Bank Account No. 0100002100579690......." In the application being GA 3714 of 2008, the relevant prayers are extracted hereunder:- "a) The petitioners herein being the executors of the Will of P Birla dated 13th July 1982 be authorized to take possession and custody of the estate and to act as such executors in accordance with law. b) An Administrator pendente lite and/or a Receiver be appointed to take over possession of all moveable and immoveable assets and properties of the deceased including the shareholding of those companies as specified in the Schedule annexed hereto and marked "D" by substituting the name in stead and place of the deceased and/or RS Lodha wherever his name had been substituted in place of the deceased. c) Such Administrator pendente lite and/or Receiver be directed to take all decisions and exercise all his rights in regard to shareholdings of P Birla in the companies referred to in Annexure "C".............." Priyamvada Devi Birla (for short "PBD") died on 3rd July, 2004. Incidentally, Madhav Prasad Birla ("MPB" for short) her husband had expired on 30th July, 1990. PDB had executed her Will dated 18th April, 1999 (the 1999 Will) and got it registered. In the said Will Rajendra Singh Lodha (for short "RSL") was appointed as the sole executor. RSL was the legatee of the Will with the direction that: "4. I, by this will and testament, nominate Sri Rajendra S. Lodha, a devoted friend of the family and a chartered accountant of repute, to take over the management-administrative, financial, legal � and every other aspect relevant to complete the ownership, control and full management of all the business and properties possessed or owned by me, either directly or indirectly, and the entire right, title and interest of all of which I hereby bequeath to him ......"
(3.) PDB also executed a codicil/document dated 15th April, 2003. After the death of PDB, application for probate was filed by RSL. Caveats were filed. Some of the caveats filed were discharged by the High Court and the judgment was upheld by the Supreme Court in Krishna Kumar Birla vs. Rajendra Singh Lodha: (2008)4 SCC 300. Caveats of GPB and two sisters of MPB were retained. The probate matter was marked as Testamentary Suit No.6 of 2004. After the conclusion of hearing of the application for discharge of caveats and when judgment was awaited, the Birlas and Newar filed before the High Court three separate applications for appointment of APL on the ground that RSL was not managing the estate properly including the companies stated to be part of the M.P Birla group of companies. The said applications for appointment of APL were disposed of by the learned Single Judge by the judgment and order dated 19th May, 2006, the relevant portions of which are extracted hereunder:- "73. Under such circumstances I feel that those facts and bundle of facts and law as discussed above, supported by the documents. Constitute the absolute necessity appointment of the Administrator, pendente lite, at least for a brief period. 74. Allegations and contentions as regard his alleged misconduct as a Chartered Account are not germane for the time being in this matter. So I cannot make any comment nor I wish to do so. According to me, the aforesaid facts and circumstances are sufficient for such appointment. 75. Hence I appoint Joint Administrator, pendente lite, consisting of following persons (i) Mr. Hiranmoy Dutta, Bar-at-law of Bar Library Club; (ii) Promotha Nath Chatterjee, Learned Advocate of Bar Association, Room No.1; (iii) Mr. Prabir Kumar Roy, ex-Sheriff of this Court of 10 S. N. Roy Road, Behala, Kolkata 700 019; (iv) Mr. Sujit Bhattacharjee of 52-C, Ballygunga Circular Road, Kolkata-700 019, who shall take charge and control of all the shareholding of the deceased lady in all the companies and they should function as could be functioned under law by virtue of the controlling shareholding of all the Companies left behind by the said lady. They shall take step for rectification of all the share registers of the Companies recording their names. They shall immediately make an enquiry as to the dealings of Lodha vis-a-vis dividends and investment of the dividends and submit a report to the Court they shall place themselves in the Board of Directors whereever it is possible by virtue of the shareholding. They shall, in consultation with each other, decide to dissolve the Board if necessary under law for the benefit of the Companies, wherever possible. 76. Of course they must consult and take the views of Lodha in each and every step while taking decision. If his views and advice are accepted by the Administrators then the views of the contesting defendants shall be taken and if there is a difference in the two views the matter should be placed before the Court for obtaining direction. They shall remain in the office of the Administrator, pendente lite, for a period of two years or till the disposal of the probate proceedings whichever is earlier. Therefore, Lodha shall hand over all the charges to the aforesaid appointed Administrators, pendente lite. Interim order passed earlier will continue till possession is taken by the Administrator." Aggrieved appeals being APO No 153 of 2006 and APO No 197 of 2006 were preferred. By judgment and order dated 11th October, 2007 the Division Bench set aside the judgment and order of the learned Single Judge, the relevant portion of which is reproduced hereunder:- "307. Therefore, on that question also, after considering the facts and circumstances of the case and the materials on record placed before us. We have to come to the conclusion, with utmost respect to His Lordship, that His Lordship has mis-appreciated the fact and held that the Estate is "in medio". Such conclusion of His Lordship, in our opinion, cannot be sustainable in the eye of law in the facts and circumstances of this case. 308. The further question that whether the Court has jurisdiction to apply discretion in the facts and circumstances of this case, it is needless to mention here that the Court will apply its discretion providing that the case is being made out by the parties calling for such discretion in a case where the case of necessity for appointment of Administrator Pendente Lite has been made out. 309. Hence, we are unable to find out such situation in this matter and unable to uphold the decision of His Lordship and according to us, the Court has not appreciated the facts of the case properly and has not exercised its discretion properly in appointing the Administrator Pendente Lite. 310. Hence, we pass an order of injunction restraining the appellant not to deal with and not to transfer any of the assets and properties of the Estate of PDB, in any manner whatsoever, and further, in our opinion, the order so passed by the Hon'ble First Court at the ad-interim stage is enough to preserve the Estate of PDB. We direct the Executor, RSL to give a details of the dividends so collected in respect of the shares of PDB and the accounts, therefor, to be furnished to the parties. We also direct RSL to maintain an account in respect of the dividend so received on the shares of PDB and to retain the same in a separate account and no amount to be spent out of the said fund by RSL excepting for preservation of the Estate. 311. In the cross-appeals, we do not find that a case has been made out by Mr. S. B. Mokherjee's client nor we have been able to find our that there is any mismanagement on the part of the appellant." ;