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Kanai Lal Mahato and Ors. Vs Gopal Shaw — Calcutta HC (2025) — LawSathi Research

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Calcutta HC
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Kanai Lal Mahato and Ors. Vs Gopal ShawKanai Lal Mahato and Ors. v. Gopal Shaw

Dismissed¶¶18

Kanai Lal Mahato and Ors. v. Gopal Shaw

Calcutta HC8 Jan 2025FMA/625/2022

Case brief

AI extract

What is this about?

Kanai Lal Mahato & ors. v. Gopal Shaw, FMA 625 of 2022 (with CAN 1 of 2022), decided 08.01.2025; Bench: Harish Tandon, J. and Prasenjit Biswas, J. Appeal against probate-court order appointing the defendants/appellants as administrators pendente lite dismissed: appellants, in possession of the testatrix's estate and willing to act as administrators pendente lite, held not to be 'aggrieved persons'; no order as to costs; connected application also dismissed. Question whether an executor applying for an administrator pendente lite impliedly refuses to act left open. Keywords: probate, administrator pendente lite, aggrieved person, executor, Will, contentious cause, testamentary appeal.

What did the court decide?

The defendants/appellants, having conveyed no objection to discharging the duties and functions of administrators pendente lite and being admittedly in possession of the estate left by the testatrix, cannot be regarded as aggrieved persons.

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the defendants/appellants satisfy the core ingredients of an aggrieved person so as to maintain the appeal against the impugned order appointing them administrators pendente lite. +1 more

Court's answer

The defendants/appellants, having conveyed no objection to discharging the duties and functions of administrators pendente lite and being admittedly in possession of the estate left by the testatrix, cannot be regarded as aggrieved persons.

Ratio / Principle

The confusion alleged in the language/finding of the impugned order — whether the executor or the appellants was appointed administrator pendente lite — does not arise, since the executor himself applied for the appointment and consented to the appellants being appointed.

Detailed headnote1 paragraphs

Testamentary appeal (FMA 625 of 2022, with connected CAN 1 of 2022) against an order of the probate court appointing the defendants/appellants — who were in occupation of the property bequeathed under the Will — as administrators pendente lite, on the executor's own application and with the consent of the plaintiff/respondent. At the hearing, counsel for the appellants conveyed that his clients had no objection to acting as administrators pendente lite and objected only to the language/finding of the impugned order. Holding that persons who accept the office while admittedly in possession of the estate cannot be regarded as 'aggrieved persons', and that the alleged confusion in the impugned order does not arise since the executor himself applied for and consented to the appointment, the Court dismissed the appeal without any order as to costs and also dismissed the connected application CAN 1 of 2022. The Court expressly refrained from deciding whether an executor who applies for appointment of an administrator pendente lite impliedly refuses, or is unable, to act as executor, as neither party raised the point.

A

08.01.2025 sayandeep Sl. No. 68 Ct. No. 08

FMA 625 of 2022 With CAN 1 of 2022

Kanai Lal Mahato & ors.

-Versus-

Gopal Shaw

Mr. R. Mahata Mr. A.S. Ray

…. For the appellants

After meaningful reading of the Judgment impugned in the instant appeal, the quarry was raised to the appellants as to whether they satisfy the core ingredients of an aggrieved person.

Undeniably, an application for grant of probate was taken out by the executor appointed under the Will which was converted into a contentious cause. Certain difficulties were faced by the executor in administering and/or managing the estate of the testatrix and interestingly, an application was taken out by him for appointment of administrator pendente lite to administer and manage the estate left by the testatrix.

It immediately attracts a question whether an executor is entitled to take out such application or it would be presumed that he is unable to administer and manage the estate or in other words, an implied refusal to act in a capacity of an executor. Since neither of the parties raises such issue, we need not have to delve into the aforesaid point.

2

It is evident from the record, more particularly, the impugned order that the executor categorically averred in the said application that the defendants/appellants are in occupation of the property bequeathed to the beneficiaries under the said Will and, therefore, they should be appointed as an administrator pendente lite. The impugned order further revealed that a consent was given by the plaintiff/respondent to appoint the appellants as administrator pendente lite as they are in possession of the estate.

The instant appeal is filed at the behest of the defendants/appellants who are in possession of the estate left by the testatrix despite having appointed as administrator pendente lite.

In course of hearing, the counsel for the appellants did not make a single whisper that the appellants are not interested to act as an administrator pendente lite; rather Mr. Mahata, learned advocate for the appellants conveys the intention of his client that they have no objection to act as an administrator pendente lite but raises an issue on the language and/or finding returned in the impugned order which according to him creates a confusion whether the executor is appointed as an administrator pendente lite or the appellants. Such confusion in our opinion does not arise at all taking into account the fact that the executor himself applied for appointment of the administrator pendente lite and gave consent in course

3

of the hearing before the probate Court that the appellants being in possession of the estate left by the testatrix, they should be appointed as administrator pendente lite.

In view of the stand of the appellants that they have no objection to discharge the duties and functions of the administrators pendente lite as they are admittedly in possession of the estate left by the testatrix, they cannot be regarded as an aggrieved person.

The appeal is, thus, dismissed without any order as to costs.

The connected application being CAN 1 of 2022 is also dismissed.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)

Issues for consideration

2 issues framed by the court

AI extract

1.
Whether the defendants/appellants satisfy the core ingredients of an aggrieved person so as to maintain the appeal against the impugned order appointing them administrators pendente lite.¶¶8
The court held
The defendants/appellants, having conveyed no objection to discharging the duties and functions of administrators pendente lite and being admittedly in possession of the estate left by the testatrix, cannot be regarded as aggrieved persons.ratio¶¶17
2.
Whether an executor who takes out an application for appointment of an administrator pendente lite is thereby presumed unable, or to have impliedly refused, to act as executor — a question the Court noticed but expressly declined to decide as neither party raised it.¶¶10

Procedural history

How this case reached the court

AI extract

Order under challenge
Order of the probate court appointing the defendants/appellants as administrators pendente lite on the executor's application, with the consent of the plaintiff/respondent, as they were in occupation/possession of the estate.¶¶12
probate Court
Prior proceeding
Application for grant of probate taken out by the executor appointed under the Will; converted into a contentious cause.¶¶9
Prior proceeding
The executor, facing difficulties in administering and/or managing the estate of the testatrix, took out an application for appointment of an administrator pendente lite.¶¶9
Prior proceeding
Consent recorded before the probate Court that the appellants, being in possession of the estate left by the testatrix, be appointed administrators pendente lite.¶¶16

Parties & counsel

AI extract

appellant
Kanai Lal Mahato & ors.¶¶3
Mr. R. Mahata, Mr. A.S. Ray
respondent
Gopal Shaw¶¶5

Coram

AI extract

Harish Tandonmember¶¶20
Prasenjit Biswasmember¶¶21

Case details

As recorded by the court registry

Court: Calcutta HC
Decided on: 8 Jan 2025 · January
Registered: 7 Apr 2022
Case no.: FMA/625/2022
CNR: WBCHCA0133512022
Bench: Harish Tandon Prasenjit Biswas
Disposal: DISMISSED
Case type: FMA

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Cite this judgement

Kanai Lal Mahato and Ors. v. Gopal Shaw, FMA/625/2022 (CAL), decided on 8 January 2025.

The Calcutta High Court publishes no neutral citation for this judgement — cite it by case number and date of decision.

Procedural history4

Order of the probate court appointing the defendants/appellants as administrators pendente lite on the executor's application, with the consent of the plaintiff/respondent, as they were in occupation/possession of the estate.probate Court
Application for grant of probate taken out by the executor appointed under the Will; converted into a contentious cause.
The executor, facing difficulties in administering and/or managing the estate of the testatrix, took out an application for appointment of an administrator pendente lite.

View full history

Bench / Coram

Harish Tandon and Prasenjit Biswas

Parties & counsel