November 26,2012
Whether an Executor of a testamentary Will be deemed to be a trustee with the meaning of Indian Trust Act 1882 so as to try the Executor for breach of trust.
Case:
My Uncle, hereinafter referred to as the testator, died in January 2009 and had made a testamentary Will in respect of his movable and immovable properties to be distributed amongst five beneficiaries. On grant of probate by the High Court, the Executors distributed the shares in movable assets to the other beneficiaries on realisation of the movable assets. I did not accept the share because the Executors did not obtain a no tax due certificate, inspite of requesting them twice in writing, by submitting the income tax returns of the testator to the income tax department in respect of Assessment Years for which he had not filed his returns. The Executors visited my house in January 2012 to say that a chartered accountant was consulted and were advised that there is no need of obtaining a tax clearance certificate in respect of assesses who have expired.
As I still refused to accept my share in movable assets without receiving a tax clearance certificate from the income-tax Department, the Executors continued to retain my share in Executors account and obtained a “No-tax-Due” certificate in October 2012.
As the Executors have delayed the payment of income tax by filing the income tax returns in July 2012 though I had requested them to do so in December 2010 and distributed the share in immovable assets without payment of income tax, I shall be glad to know :
(1) Whether the Executors have Committed any breach of conditions laid down in Indian Succession Act 1925;
(2) Whether I can call for all documents viz. the bank accounts copy, funds flow statement, supporting vouchers ,if any, to ascertain whether my share in the movable assets have been correctly computed
(3) Can I claim interest on my share in the movable assets which has been lying with the Executors for more than a year.
(4) Can the Executors of an Testamentary Will be deemed to be an’ trustee’ within the meaning of the provisions laid in the Indian Trust Act 1882;
(5) Can the delay be considered to be criminal breach of trust within the meaning of provisions laid down in Indian Trust Act 1882.
