# Jai Bharat Mani Acharya Dixit v. Kunwar Anirudh Pratap Narain Singh. & others

- **Citation:** (2000) 3 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-bharat-mani-acharya-dixit-v-kunwar-anirudh-pratap-narain-singh-others-39497
- **Pages:** 6

## Text

279 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
 which relates to goods sold to the
writ petitioner on principal to principal
basis and for the amount due in respect of
these goods, the Corporation can enforce
the same as creditor pursuant to the
agreement mentioned herein before. It
also appears from Section 3(1)(d) of the
Act if any money is due and payable to
the State Government or the Corporation,
the same shall be recoverable as arrears of
land revenue. On proper interpretation of
Section 3(1) of the said Act it appears that
since the money is recoverable on the
basis of the goods sold to the writ
petitioner,
the
U.P.
State
Textile
Corporation can claim as creditor in terms
of Section 3(1) of the act. The said Act
has been enacted for the purpose of
speedy recovery of debts and as such we
are of view that the Corporation is right in
issuing the certificate for recovery of the
dues in the manner as it has done in the
instant case. Our view also finds support
from the decision of a Division Bench of
this Court in the case of M/s Jaishree
Poultry Feed Industries versus State of
U.P. and others (Allahabad Civil Journal
1991, Page 47).

8. Considering all aspects of the
matter, we are in view that there is no
scope for quashing the certificate as
prayed for by the writ petitioner. There
appears no merit in the writ petition and
the petition is liable to be dismissed.

In the result the writ petition fails
and is hereby dismissed. There shall be no
order as to costs.
Petition Dismissed.

25,*,1$/ -85,6',&
25,*,1$/ -85,6',&7,21
7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' $8*867
'$7(' $//$+$%$' $8*867
%()25(
%()25(
7+( +21·%/( 0& -$,1 -
7+( +21·%/( 0& -$,1 -
$SSOLFDWLRQ $ 2Q EHKDOI RI 9LVKQX
3UDVDG
$QG
$SSOLFDWLRQ $ 2Q EHKDOI RI $GLW\D
3UDWDS 1DUDLQ 6LQJK DQG DQRWKHU
,Q
7HVWDPHQWDU\ 6XLW 1R RI
,Q WKH PDWWHU RI HVWDWH RI ODWH 6PW 5DQL
5HRWL 'HYL

-DL %KDUDW 0DQL $FKDU\D 'L[LW «3ODLQWLII
9HUVXV
.XQZDU $QLUXGK 3UDWDS 1DUDLQ 6LQJK DQG
RWKHUV
«'HIHQGDQWV
5HVSRQGHQWV

&RXQVHO IRU WKH $SSOLFDQWV
6KUL 61 6LQJK
6KUL $. 6LQJK
&RXQVHO IRU WKH 5HVSRQGHQW
6KUL - 1DJDU $GPLQLVWUDWRU *HQHUDO)

$ ,QGLDQ 6XFFHVVLRQ $FW 6HF UHDG
ZLWK $GPLQLVWUDWRU *HQHUDO $FW
6 7HVWDPHQWDU\ VXLW RQ EDVLV RI ZLOO
UHQXQFLDWLRQ E\ H[HFXWRU ZLWK SUD\HU WR
DSSRLQW
$GPLQLVWUDWRU
*HQHUDO
LQ
KLV
SODFH ± 1R RQH DSSOLHG IRU VXEVWLWXWLRQ
DIWHU H[HFXWRU¶V GHDWK
+HOG ±
7KH SRLQW RI WKH PDWWHU LV WKDW DV SHU
6HFWLRQ RI WKH $GPLQLVWUDWRU *HQHUDO
$FW LQ FDVH QR DSSOLFDWLRQ IRU JUDQW RI
/HWWHUV RI $GPLQLVWUDWLRQ LV PDGH ZLWKLQ
RQH PRQWK DIWHU WKH GHDWK RI WKH SHUVRQ
FRQFHUQHG
WKH
$GPLQLVWUDWRU
*HQHUDO
PD\
DSSO\
IRU
JUDQW
RI
/HWWHUV
RI
$GPLQLVWUDWLRQ
IRU
WKH
HVWDWH
RI
WKH
GHFHDVHG
,W LV QRW GLVSXWHG WKDW WKH
3All] Jai Bharat Mani Acharya Dixit V. Kunwar Anirudh Pratap Narain Singh. & others 280
H[HFXWRU ZKR UHQRXQFHG WKH H[HFXWRU
VKLS E\ PHDQV RI DSSOLFDWLRQ $ ODWHU
RQ GLHG ,W LV D IDFW WKDW DIWHU KLV GHDWK
QR
SHUVRQ
FDPH
IRUZDUG
EHIRUH
WKLV
FRXUW IRU VXEVWLWXWLRQ WR FRQWLQXH WKH
SUHVHQW SURFHHGLQJV 7KH $GPLQLVWUDWRU
*HQHUDO WKHUHIRUH KDG D ULJKW XQGHU
6HFWLRQ RI WKH $GPLQLVWUDWRU *HQHUDO
$FW WR PRYH WKLV &RXUW IRU FRQWLQXLQJ WKH
SURFHHGLQJV 3DUD
%
&RGH
RI
&LYLO
3URFHGXUH

±
$SSRLQWPHQW RI 5HFHLYHU LQ SDUWLWLRQ VXLW
LQ

5HFHLYHU
REMHFWLQJ
WR
DSSRLQWPHQW RI $GPLQLVWUDWRU *HQHUDO DV
FXVWRGLDQ RI SURSHUW\ DW $OODKDEDG +HOG
&RXUW LV FXVWRGLDQ OHJLV RI SURSHUW\ QRW
WKH UHFHLYHU +HQFH UHFHLYHU¶V REMHFWLRQ
XQWHQDEOH
+HOG ± 3DUD
$V
D
PDWHU
RI
IDFW
WKH
UHFHLYHU
DSSRLQWHG LV 6XLW 1R RI E\ WKH
FRXUW
RI
FLYLO
-XGJH
'HRULD
KDV
QR
EXVLQHVV WR REMHFW WR WKH DSSRLQWPHQW RI
$GPLQLVWUDWRU *HQHUDO DV WKH FXVWRGLDQ
RI
WKH
SURSHUW\
DW
$OODKDEDG
DV
DQ
LQWHULP
PHDVXUH
+H
FDQ
KDYH
QR
LQGHSHQGHQW
ULJKW
LQ
WKH
PDWWHU
WR
DVVHUW 7KH ODZ LV ZHOO VHWWOHG WKDW ZKHQ
D FRXUW SXWV WKH UHFHLYHU LQ SRVVHVVLRQ RI
WKH SURSHUW\ LW SURSHUW\ FRPHV XQGHU
FRXUW¶V
FXVWRG\
WKH
UHFHLYHU
EHLQJ
PHUHO\ DQ RIILFHU RU DJHQW RI WKH FRXUW
,W LV WKH FRXUW ZKLFK EHFRPHV FXVWRGLD
OHJLV RI WKH SURSHUW\ LQ UHVSHFW RI ZKLFK
WKH UHFHLYHU
7KH FRQWHQWLRQ UDLVHG E\
WKH 5HFHLYHU LV ZKROO\ XQWHQDEOH WKDW D
GLUHFWLRQ
VKRXOG
EH
PDGH
WKDW
WKH
SURSHUW\
RI
WKH
GHFHDVHG
VLWXDWH
DW
$OODKDEDG VKDOO EH PDQDJHG E\ KLP
&DVHV UHIHUUHG
 $/- 12&

By the Court

1. I have heard Sri S.N. Singh
learned
counsel
for
the
applicant/defendants on application A-96
and Sri A.K Singh learned counsel for
applicant of application A-80 and Sri J.
Nagar
learned
counsel
for
the
Administrator General.

2. A-96 is an application by Aditya
Pratap Narain Singh and Anil Pratap
Narain Singh, Two of the defendants in
Testamentary Suit no. 4 of 1985 for
recalling the order dated 8.7.1993 passed
by the Court and to dismiss the present
Testamentary Suit no. 4 of 1985 in
question. The dispute relates to the estate
of the deceased Rani Reoti Devi widow of
Ravi Pratap Narain Singh. Originally,
Testamentary Case No. 10 of 1984 was
filed by Jai Bharat Mani Acharya Dixit
for grant of Letters of administration in
respect of the estate of the said deceased
lady on the basis of a will allegedly
executed by her on 14.4.1984 in which he
was the executor. As caveat had been
filed opposing the grant of Letters of
administration, Testamentary Case No. 10
of 1984 was converted into present
Testamentary Suit No. 4 of 1985.
Application A-25 was made by Jai Bharat
Mani Acharya Dixit that he be relieved of
the executorship on account of his ill
health and paucity of funds. His prayer
was that his renunciation from executor
ship
be
accepted
in
favour
of
Administrator General U.P. or any other
person the Court might find fit. The said
Jai Bharat Mani Acharya Dixit died after
making of such application. Another
application A-35 was made by the
Administrator General, U.P. that he be
substituted in place of deceased executor
Jai Bharat Mani Acharya Dixit. By the
impugned order dated 8.7.1993 this Court
accepted the renunciation of Jai Bharat
Mani Acharya Dixit from executor ship
and directed the Administrator General,
U.P. to continue the proceedings of the
Testamentary Suit.
281 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
3. The present two Applicants/
defendants Aditya Pratap Narain Singh
and Anil Pratap Narain Singh pray for
setting aside the said order on the ground
that a civil suit for partition had already
been filed by Rani Reoti Devi against her
father-in-law late Raja Brij Narain and
other co-sharers of the entire co-parcenery
property of his family, being Original Suit
No. 55 of 1945 which is still pending in
the court of Civil Judge, Deoria. It has
yet to be decided in the partition suit as to
whether Rani Reoti Devi actually had any
share in the property. In case it is found
that she had no share, then the present
Testamentary Suit No. 4 of 1985 has to be
dismissed. The alleged will is a forged
document. It having not yet any right on
the basis of the alleged will and the
question
of
renunciation
from
executorship in favour of Administrator
General, U.P. could not arise at all. The
deceased Rani Reoti Devi has left a
number of successors who have wrongly
been mentioned as near relatives and after
her death, if she had any share, the same
would devolve on her successors. Under
Section 9 of the Administrator General
Act, 1963, the Administrator General can
be permitted to administer the estate of
the deceased if there is apprehension of
misappropriation, deterioration or waste
of such assets. Nothing of the kind had
been shown in the question of substitution
of Administrator General in place of Jai
Bharat Mani Acharya Dixit. It has also
been
submitted
that
the
applicantdefendant
no.4
did
not
get
any
opportunity to contest the matter before
the passing of the order dated 8.7.1993.

4. The prayer made in the
application A-96 has been vehemently
opposed by the Administrator General by
filing a counter affidavit A-98. It is
submitted that this court has only to
decide the genuineness otherwise of the
will and not the title of the parties; under
Section 231 of the Indian Succession Act,
the
executor
could
renounce
the
executorship the will dated 14.4.1984is a
genuine document and under Section 9 of
the Administrator General Act, he could
apply
for
grant
of
Letters
of
administration for the estate of the
deceased
on
the
renunciation
of
executorship by Jai Bharat Mani Acharya
Dixit. It is relevant to state that in the
present Testamentary Suit the title or
rights of the parties are not to be
determined. This court has only to
determine the limited question as to
whether the will in question dated
14.4.1984 had actually been executed by
Rani Reoti Devi. Right and title of the
parties may have to be decided in the
partition suit but not in the present
testamentary proceedings. The parties are
at issue on this pertinent aspect of the
matter in the said suit which has not yet
reached the ripened state of decision after
the evidence of the parties. The apparent
state of things is that Jai Bharat Mani
Acharya Dixit has been named as
executor by the testator Rani Reoti Devi
in the will aforesaid.

5. It is significant to take note of the
provision contained in Section 231 of the
Indian Succession Act which reads as
under;

"
231.
Procedure
where
executor
renounces or fails to accept within time
limited- If an executor renounces, or fails
to accept an executorship within time
limited for the acceptance or refusal
thereof the will may be praved and letters
of administration with a copy of the will
annexed, may be granted to the person
3All] Jai Bharat Mani Acharya Dixit V. Kunwar Anirudh Pratap Narain Singh. & others 282
who would be entitled to administration in
case of intestacy."

6. The above provision contained in
Section 231 of the Indian Succession Act
leaves not the slightest doubt that the
executor Jai Bharat Mani Acharya Dixit
could renounce the executor ship which
he did by making application A-25. I do
not think that the substitution of the
Administrator
General
in
place
of
executor Jai Bharat Mani Acharya Dixit
suffers from any defect of any nature
whatsoever. It is of no consequence that
in application A-25 the executor Jai
Bharat Mani Acharya Dixit had stated that
his
renunciation
was
in favour of
Administrator General, U.P. or any other
person as this court may find fit. What is
material is that he renounced his executor
ship which he could have very well done.

7. The point of the matter is that is
as per Section 9 of the Administrator
General Act, in case no application for
grant of Letters of administration is made
within one month after the death of the
person
concerned,
the
Administrator
General may apply for grant of Letters of
administration for the estate of the
deceased. It is not disputed that the
executor who renounced the executor ship
by means of application A-25 later on
died. It is a fact that after his death, no
person came forward before this court for
substitution
to
continue
the
present
proceedings. The Administrator General,
therefore, had a right under Section 9 of
the Administrator General Act to move
this Court for continuing the proceedings.

8. The matter may be considered yet
from another angle. Rule 39 of Chapter
XXX of the Rules of the Court states that
after the proceedings are converted into a
suit, procedure in such suit shall, as nearly
as may be, be according to the provisions
of the court (C.P.C.). Order XXII Rule
4A(1) of the Code of Civil Procedure says
that if, in any suit, it appears to the court
that any party who had died during the
pendency of the suit had no legal
representative, the court may on the
application of any party to the suit,
proceed in the absence of a person
representing the estate of the deceased
person, or may by order appoint the
Administrator General, or an officer of
the court or such other person for the
purpose of the suit. Therefore, the
Administrator General could very well be
substituted in place of the deceased
executor Jai Bharat Mani Acharya Dixit
who had renounced the executor ship by
making the application A-25.

9. The contention of the applicant of
A-96 that Rani Reoti Devi left a number
of successors cannot be taken note of at
this stage to oust the Administrator
General from prosecuting the suit. Really
speaking, the applicants of application A96 being defendants in the case have
challenged the genuineness of the will in
question and it has to be tested as to
whether the same is a genuine document
or
otherwise.

Non-
suiting
the
Administrator would tantamount to the
acceptance
of
the
case
of
the
applicants/defendants offering challenge
to the will without any contest. After all,
it has to be determined on the anvil of
reliability after weighing the evidence of
the two sides as to whether the will in
question is a genuine document or a
forged one.

10. It is not case of the applicant of
application A-96 that they were not
parties in the suit before the passing of the
283 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
order dated 8.7. 1993. They have not at
all been prejudiced by the substitution of
the Administrator General in place of Jai
Bharat Mani Acharya Dixit, executor,
who renounced the executor ship by
application A-25 where after he died. It
makes no difference to them as to whether
the proceedings were carried on by Jai
Bharat Mani Acharya Dixit or the same
are now being carried on by the
Administrator General.

11. It may be observed that the
proceedings before the testamentary court
are the proceedings in rem.

12. As held by this Court in the case
of
Subhash
chandra
Pandey
vs.
Administrator General, U.P. 1983 ALJ,
NOC 12, the right of Administrator
General to make an application for the
grant of Letters of administration and
obtain the same is governed by Sections 7
and 9 of the Administrators General Act
1963. The whole object of conferring
powers on him and casting an obligation
on
him
to
apply
for
Letters
of
administration is that the assets of the
deceased may be saved from the danger
of
misappropriation,
deterioration
or
waste etc. There is no inherent bar to the
Administrator
General
applying
for
probate or Letters of administration for
the benefit of a third party. This is clearly
indicated by Section 2(2) of the Act
which defines "letters of administration ".
The
term
includes
any
Letters
of
administration "whether general or with a
copy of the will annexed or limited in
time or otherwise". So, the Administrator
General comes in his own rights under
Section 9 read with Section 2 of the Act.
The purpose of making such application is
that after administering the estate, he
would give the remaining assets to the
legatee.

13. In view of the above discussion,
I do not find any merit in application A96 whereby the prayer has been made to
recall the order dated 8.7.1993. This
application is bound to be rejected.

14. Application A-80 has been
moved o behalf of one Vishnu Prasad,
attorney of the Receiver appointed in O.S.
No. 55 of 1945 of the court of Civil
Judge, Deoria with the prayer that it be
directed
that
the properties of the
deceased situate at Allahabad shall be
managed by the said Receiver appointed
by the order of the Civil Judge, Deoria in
Suit No. 55 of 1945 during the pendency
of the present Testamentary Suit. The
application is supported by an affidavit. It
may be stated that by order dated
13.3.1989,
this
court
permitted
the
Administrator General and the Official
Trustee to take charge, as an interim
measure, of the property at no.2 N.K.
Mukerji Road, Allahabad (which also
forms the subject matter of the will dated
14.4.1984 executed by Rani Reoti Devi).
One Yadvendra Dutt Dubey is putting up
claim in respect of the said property and
he is also a party before this court.

15. The argument of the learned
counsel for the applicant of application A80 is that the Administrator General has
no right to be replaced as executor in
place of Jai Bharat Mani Acharya Dixit
and to prosecute the above Testamentary
Suit. It is urged that Jai Bharat Mani
Acharya Dixit left behind one son and
five daughters and there could be no
justification for execution of renunciation
by him. The genuineness of the will in
question has also been challenged. It has
3All] High Court Judicature at Allahabad & others V. Manglesh Singh& others 284
been argued that Jai Bharat Mani
Acharya Dixit had died before making of
the purported application A-25 (which
was made on 19.7.1988). The sheet
anchor of the application A-80 is that
Rani Reoti Devi claimed half share in the
entire property of Padrauna Raj by filing
suit no 88 of 1945 in the court of Civil
Judge, Deoria and the property is custodia
legis
since
2.1.1946
under
the
management of Receiver appointed from
time to time by the order of the court of
Civil Judge, Deoria and presently, Sri
Ram Autar Kesriwal is the Receiver. He
alone and none else has the right to
manage the property of Rani Reoti Devi
also which is included in the properties of
Padrauna Raj.

16. Prayer made in application A-80
too
has
been
opposed
by
the
Administrator General. I have held above
while deciding Application A-96 that the
Administrator
General
could
be
substituted in place of Jai Bharat Mani
Acharya Dixit who had renounced the
executor ship by making application A-25
on 19.7.1988. It is not disputed that Jai
Bharat Mani Acharya Dixit had actually
died. There is no evidence from the side
of the applicant of application A-80 to
back the contention that he died even
before making the application A-25. As a
matter of fact, the receiver appointed in
Suit No. 55 of 1945 by the court of Civil
Judge, Deoria has no business to object to
the appointment of Administrator General
as the custodian of the property at
Allahabad as an interim measure. He can
have no independent right in the matter to
assert. The law is well settled that when a
court puts the receiver in possession of
the property, it (property) comes under
court's custody, the receiver being merely
an officer or agent of the court. It is the
court which becomes custodia legis of the
property in respect of which the receiver
is appointed. Such de jure possession of
the court is through receiver. The
contention raised by the Receiver is
wholly untenable that a direction should
be made that the property of the deceased
situate at Allahabad shall be managed by
him. This application, therefore, also
does not have any merit and is to be
rejected.

17. In view of the above discussion,
the application A-96 and A-80 are hereby
rejected.

18. The office is directed to list
application A-97 for orders/hearing.
Application Rejected.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( 3. -$,1 -
7+( +21·%/( 3. -$,1 -

6SHFLDO $SSHDO 1R RI

+LJK &RXUW RI -XGLFDWXUH DW $OODKDEDG
WKURXJK LWV 5HJLVWUDU DQG RWKHUV
«$SSOLFDQWV
9HUVXV
0DQJOHVK 6LQJK
«5HVSRQGHQW

&RXQVHO IRU WKH $SSHOODQWV
6KUL 60$ .D]PL
6KUL 6XGKLU $JDUZDO
&RXQVHO IRU WKH 5HVSRQGHQW
6KUL 5DQMHHW 6D[HQD
6KUL 6DWLVK &KDWXUYHGL
83
6XERUGLQDWH
&RXUW¶V
VWDII
3XQLVKPHQW DQG $SSHDO 5XOHV
VHFWLRQ L I UHDGZLWK &RQVWLWXWLRQ RI
,QGLD
$UWLFOH

±
5HYHUVLRQ