Case Note & Summary
The appeals arose from an order dated 13 March 2014 of the learned Trial Judge in a notice of motion taken out by the plaintiffs in a suit seeking to set aside a Deed of Apartment dated 29 October 2010. The deed was executed by the appellants in Appeal (L) No.275 of 2014 (defendants Nos. 1 & 2), who were the executors of the Will of the deceased, in favour of the appellant in Appeal No.239 of 2014 (defendant No.10), transferring their right, title and interest as executors and putting defendant No.10 in possession of the suit flat on Napean Sea Road, Mumbai. The executors had propounded the Will in a probate petition filed on 10 February 2006. The plaintiffs, who filed a petition for letters of administration on 19 June 2009, claimed a 20% share in the estate of the deceased, including the suit flat, and valued the total estate at Rs.9.74 crores. The trial court took the view that since the executors transferred the suit flat before obtaining probate, the transaction was contrary to law, and therefore the purchaser (defendant No.10) could remain upon the suit flat only as an agent of the Court Receiver. The trial court appointed the Court Receiver as Receiver of the suit flat, allowed defendant No.10 to continue occupation upon execution of usual undertakings and payment of royalty based on the true market value, and directed that if defendant No.10 deposited 20% of the valuation shown by the plaintiffs or as determined by the Court Receiver, the Receiver would stand discharged. The appellants challenged this order, contending that the trial court erred in appointing a Receiver without considering the balance of convenience and the plaintiffs' own valuation. The High Court, after hearing the parties, set aside the impugned order and remanded the matter to the trial court for fresh consideration, directing that the trial court should consider the balance of convenience and the plaintiffs' valuation before passing any interim order.
Headnote
A) Succession Law - Executor's Power to Transfer - Transfer by Executor Before Probate - Indian Succession Act, 1925, Sections 211, 213 - The executors transferred the suit flat to defendant No.10 before obtaining probate. The trial court held such transfer contrary to law and appointed a Court Receiver, directing defendant No.10 to occupy only as Receiver's agent upon payment of royalty. The High Court, however, found that the trial court had not considered the balance of convenience and the plaintiffs' valuation of the estate at Rs.9.74 crores, and that the impugned order was passed without proper application of mind. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in appointing a Court Receiver over a flat transferred by executors before obtaining probate, and whether the purchaser could be allowed to remain in possession only as an agent of the Receiver.
Final Decision
The High Court allowed the appeals, set aside the impugned order dated 13 March 2014, and remanded the matter to the trial court for fresh consideration of the notice of motion, directing the trial court to consider the balance of convenience and the plaintiffs' valuation before passing any interim order.
Law Points
- executor's power to transfer property before probate
- court receiver appointment
- interim relief
- balance of convenience
