Syed Sadat Abdul Masud, J. - (1.) This is an application for removal of an executor and for certain directions under Ss. 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.
(2.) 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.
(3.) 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.;