w w w . L a w y e r S e r v i c e s . i n



In The Matter of The Goods of Late Basheshwar Dayal v/s Bina Gupta & Another


    Testamentary Suits No. 2 of 1994

    Decided On, 15 March 2021

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAJEEV MISRA

    For the Plaintiff: A.B. Saran, Kartikey Saran, Manish Goyal, Manish Goyal (Senior Adv.), Parmatma Rai, Siddharth Singhal, Advocates. For the Defendant: Saurabh Srivastava, Anil Sharma, Varun Dev Sharma, Advocates.



Judgment Text

1. Heard Mr. Manish Goyal, learned Senior Counsel assisted by Mr. Siddharth Singhal, learned counsel for plaintiff/decree holder and Mr. Anil Sharma, learned Senior Counsel assisted by Mr. Varun Dev Sharma, learned counsel for defendants/judgement debtors.

2. Sahu Basheshwar Dayal (the testator) executed a will dated 01.04.1993. Same was sealed in an envelop and handed over to Smt. Bina Gupta. The testor, thereafter, died on 15.06.1993. Accordingly, Smt. Bina Gupta filed Testamentary Case No. 13 of 1993 seeking grant of probate of will dated 01.04.1993 executed by the testator Late Sahu Basheshwar Dayal and for letters of administration regarading estate of deceased i.e. Late Sahu Basheshwar Dayal. In this application, following were mentioned as legal and natural heirs and representatives of Late Sahu Basheshwar Dayal:

i. Smt. Kumkum Mittal W/o Late Sri Suresh Mittal, R/o 8, Commissioner Lane Delhi.

ii. Sri Sandeep Mittal S/o Late Sri Suresh Mittal r/o 8 Commissioner Lane, Delhi.

iii. Sri Ravi Mittal S/o Late Sri Suresh Mittal R/o 8 Commissioner Lane, Delhi.

iv. Mrs. Malti Mangala (deceased died on 11.09.2001, W/o Sri Pratap Singh Mangla R/o C-6/6-1 Safdarganj Dwevelopment Authority, New Delhi.

v. Mrs. Meena Gupta W/o Mahendra Gupta R/o 8-335, New Friends Colony, New Deelhi.

vi.Mrs. Sarojani Agrawal W/o Sri Keshav Chandra Agrawal, (Advocate), Civil Lines, Moradabad.

vii. Mrs. Manju Gupta W/o Sri Harish Gupta, r/o 4 Swami Vivekanand Marg, Khar, Bombay.

viii. Mrs. Asha K, Gupta, W/o Sri Kamlesh Gupta, Santi Niketan, 95A, Marine Drive Road, Bombay.

3. Upon contest raised by Smt. Kumkum Mittal, D/o Late Sahu Basheshwar Dayal and her two sons namely Sandeep Mittal and Ravi Mittal, the case was converted into a suit. Consequently, Testamentary Suit No. 02 of 1992 came to be registered.

4. During pendency of suit, original plaintiff Smt. Bina Gupta died on 01.03.2002 leaving behind following as her legal and natural heirs and representatives:

I. Chandra Mohan Gupta H/o Smit Bina Gupta

II. Sanjay Gupta S/o Chandra Mohan Gupta.

III. Vivek Gupta S/o Chandra Mohan Gupta.

5. Accordingly, Civil Misc. Substitution Application No. 123727 of 2002 was filed. Same was allowed vide order dated 02.09.2005. As a consequence of above, substitution was carried out in cause titile of application/plaint. Resultantly, Chandra Mohan Gupta, Sanjay Gupta and Vivek Gupta came to be substituted in place of original applicant/plaintiff i.e. Smt. Bina Gupta (since deceased).

6. Unfortunately, Smt. Malti Mangla, D/o Late Sahu Basheshwar Dayal, who was also authorized to execute the will, pre-deceased Smt. Bina Gupta as she died on 11.09.2001. Accordingly, Civil Misc. Substitution Application No. 123736 of 2002 dated 01.07.2002 was filed in respect of aforesaid deceased proposing to bring on record her following legal and natural heirs and representatives:-

I. Mr. Pratap Singh Mangla H/o Smt. Malti Rani Mangla

II.Mr. Kamal Mangla S/o Pratap Singh Mangla

III. Mr. Puneet Mangla

IV. Smt. Kamini Raizada W/o Mr. Deepak Raizada

V. Smt. Kalpna Mangalia Wo. Mr. Sanjay Nagalia

7. Aforesaid substitution application remained pending. Irrespective of above, matter was finally heard and judgement was reserved on 03.10.2006. Ultimately judgement was pronounced on 01.11.2006, whereby above mentioned testamentary suit came to be decreed by this Court. The operative portion of the judgement, which is relevant for the controversy in hand is reproduced herein-under:-

"The testamentary suit is consequently decreed. Since Smt. Bina has expired, before the grant of probate, according to the wishes of the testator in his will his daughter Smt. Malti Mangal is now entitled to execute the will. Let the probate with will dated 01.04.1993 be issued to Smt. Malti Mangala wife of Shri Pratap Singh Mangla, C-6/61, Safdarjang Development Authority, New Delhi for its due execution in accordance with law, after she pays the Court fees determined by the office to the satisfaction of the Registrar General, and after execution of the administration bonds. "

8. After judgement dated 10.11.2006 was pronounced in open court, a statement was made by Mr. Anil Sharma, learned counsel appearing on behalf of contesting defendants/judgement debtors that under the judgement, Smt. Malti Mangla, has been appointed as an executor of the will but she has already expired. A substitution application was filed to bring on record her legal and natural heirs and representatives, but the same has remained pending. In the light of aforesaid, Court observed as under:

"As soon as the judgment was pronounced in open Court, Shri Anil Sharma, learned counsel for the defendants pointed out that Smt. Malti Mangala expired on 11.09.2001 and that an application was filed to bring her heirs on record. There is no opposition to the application. The application is accordingly allowed.

Now since Smt. Bina Gupta and Smt. Malti Mangala, the named executors have expired, let the parties file appropriate application for appointment of an executor of the will, along with his/her consent."

9. The effect of above was that legal and natural heirs and representatives of deceased Smt. Malti Mangla came to be substituted in her place. However, consequential substitution was not carried out in cause title of application/plaint. Accordingly, court passed an order dated 24.07.2019 directing office to carryout substitution. Same was carried out by office on 30.07.2019. As a result, following came to be substituted as legal and natural heirs and representatives of Smt. Malti Mangla (since deceased):-

I. Mr. Pratap Singh Mangla H/o Smt. Malti Rani Mangla

II.Mr. Kamal Mangla S/o Pratap Singh Mangla

III. Mr. Puneet Mangla

IV. Smt. Kamini Raizada W/o Mr. Deepak Raizada

V. Smt. Kalpna Mangalia Wo. Mr. Sanjay Nagalia

10. At this stage, it would be relevant to reproduce paragraph 7 of the will which contains method and methodology regarding management of estate of testator, upon his death.

"That in case there is any other property of assets of which I am the owner at my death and of which I have not made a disposition that shall be taken by my daughters Malti and Bina in equal shares as absolute owners; and in case it becomes necessary to prove this will by taking a Probate thereof, either of them shall be entitiled to apply for the same as an Executor, or to apply for letters of administration with the will annexed if that becomes necessary."

11. According to terms of the testament, either of the two executors i.e. Smt. Malti Mangla or Smt. Bina Gupta, who were appointed under the will dated 01.04.1993 itself, were entitled to apply for appointment as an executor of the will or for grant of letters of administration regarding estate of testator.

12. Unfortunately, Smt. Bina Gupta and Smt. Malti Mangla both have died. However by virtue of judgement and order dated 10.11.2006 (relevant portion of which has been quoted above) parties have been granted liberty to file appropriate application for appointment of an executor of the will alongwith his/her consent.

13. Record shows that after death of Smt. Bina Gupta (who died on 01.03.2002) and Smt. Malti Mangla (who pre-deceased Smt. Bina Gupta as she died on 11.09.2001) Chandra Mohan Gupta husband of Smt. Bina Gupta and brother-in-law of Malti Mangla filed an application dated 17.02.2008 which was registered as Civil Misc. Application No. 45175 of 2008 praying therein that he be appointed as an executor of the will.

14. While aforesaid application dated 17.02.2008 bearing no. 47175 of 2008 was pending adjudication before this Court, applicant Chandra Mohan Gupta died on 10.06.2010.

15. Consequently, another application dated 04.09.2010 registered as Civil Misc. Application No. 264599 of 2010 was filed by Sanjay Gupta S/o Chandra Mohan Gupta and Smt. Bina Gupta claiming appointment of himself as an executor of the will in terms of judgement and order dated 10.11.2006.

16. On the facts as noted above, office has submitted reports whereby and whereunder above-noted applications have been posted for orders. Accordingly, said applications have come up today for consideration by this Court.

17. Civil Misc. Application No. 45175 of 2008 filed by Chandra Mohan Gupta has been rendered infructuous, on account of death of applicant-Chandra Mohan Gupta. Accordingly aforesaid application stands dismissed as infructuous.

18. Civil Misc. Application No. 264594 of 2010 has been filed by Sanjay Gupta S/o Chandra Mohan Gupta and Smt. Bina Gupta praying therein that he be appointed as an executor of the will. This application has not been opposed by Pratap Singh Mangla, Kamla Mangla, Punit Mangla, Kamini Rayjada and Smt. Kalpna Nagaliya (legal and natural heirs and representatives of Smt. Malti Mangala) inasmuch as they have accorded their consent to the appointment of Sanjay Gupta as an executor of the will by filing Civil Misc. Application No. 8 of 2021. Apart from above, Vivek Gupta S/o Chandra Mohan Gupta and Smt. Bina Gupta and also brother of Sanjay Gupta has also given his consent for appointment of Sanjay Gupta as an executor of the will by filing Civil Misc. Application No. 7 of 2021. Thus all interested parties have given their consent for appointment of Sanjay Gupta as an executor of the will.

19. Contesting defendants/judgement debtors have opposed above mentioned application filed by Sanjay Gupta claiming appointment of himself as an executor of the will. They have filed Civil Misc. Application No. 104698 of 2014 whereby it has been prayed that matter be consigned to record as no probate or letters of Administration can now be granted in the matter. Further, a counter affidavit has been filed by contesting defendants to the application filed by Sanjay Gupta seeking appointment as an executor of the will. Apart from above, a supplementary counter affidavit has also been filed by contesting defendant no.2 Ravi Mittal. Alongwith supplementary counter affidavit, an application has also been filed which has been registered as Civil Misc. Application No. 5 of 2020, whereby, it has been prayed that present testamentary suit be dismissed as infructuous.

20. The crux of objections raised by contesting defendants/judgement debtors to the application filed by Sanjay Gupta seeking appointment of himself as an executor of the will is to the effect that the suit itself has been finally decided on 10.11.2006. Therefore, no further application can be filed. As such, above mentioned application filed by Sanjay Gupta is wholly misconceived. It is also urged that once the executors appointed under the will have already expired then in no eventuality the heirs of the erstwhile executors can file an application for being appointed as an executor of the will in their place as same is personal. Appropriate remedy for applicant Sanjay Gupta is to initiate appropriate proceedings regarding grant of probate/letters of administration before competent court and not by filing an application in present suit which already stands decided vide judgement dated 06.11.2006 Reference has also been made to the provisions of Sections 222 of the Indian Succession Act and on basis thereof it is sought to be urged that since executors appointed under the will have expired during the pendency of suit, same shall stand abated, as the right to claim appointment as an executor is personal to the executor. Suit has been wrongly decreed. Judgement dated 10.11.2006 rendered in present suit has already been challenged by contesting defendants/judgement debtors by filing Special Appeal Defective No.1049 of 2006 (Kumkum Mittal and another Vs. Chandra Mohan and another). Consequently, aforesaid judgement has not become final. Plea has also been raised that pursuant to judgement dated 10.11.2006, requisite court fees has not been deposited till date. A maximum period of 12 years is providied for executiion of a decree other than a decree of mandatory injunction. As aforesaid period has elapsed, the decree passed in present suit has become inexecutable. As such, application filed by Sanjay Gupta is liable to be consigned to record.

21. On the pleadings of the parties, as noted above, the only issue which requires consideration by this Court is:- Whether the application filed by Sanjay Gupta seeking appointment as an executor of the will on account of death of Smt. Bina Gupta and Smt. Malti Mangla (who were appointed executors under the will) and died during pendency of suit can be allowed even after decision of the suit or the application has to be consigned to records in spite of observation contained in judgement dated 01.11.2006, (relevant portion of which has been quoted in paragraph-8 of this judgement)..

22. Mr. Manish Goyal, learned Senior Counsel assisted by Mr. Siddharth Singhal, learned counsel for plaintiff/decree holder contends that under the will dated 01.04.1993 executed by the testator namely Late Sahu Basheshwar Dayal, two persons namely Smt. Bina Gupta and Smt. Malti Mangla were appointed as executors of the will, apart from being legatees under the will. However, during pendency of suit, Smt. Malti Mangla died on 11.09.2001 whereas Smt. Bina Gupta died on 01.03.2002. Upon death of aforesaid executors, who were appointed under the will, substitution applications were filed. Surprisingly, substitution application pertaining to Smt. Bina Gupta was allowed vide order dated 02.09.2005 whereas substitution application in respect of Smt. Malti Mangala (since deceased) remained pending, till the disposal of the suit.

23. Judgement in present suit was delivered on 10.11.2006. Just after delivery of judgement, Court was informed about death of Smt. Malti Mangla as well as pendency of substitution application that was filed to bring on record her legal and natural heirs and representatives. Accordingly, after pronouncement of judgement on 10.11.2006, Court allowed the substitution application pertaining to Smt. Malti Mangala (since deceased) and further observed that parties may file appropriate application for appointment of an executor of the will alongwith his/her consent.

24. It is, thereafter, that Sanjay Gupta S/o Chandra Mohan Gupta and Bina Gupta filed an application seeking appointment of himself as an executor of the will. Legal and natural heirs and representatives of Chandra Mohan Gupta/Smt. Bina Gupta are already on record of Original Suit. Vivek Gupta has already given his consent to the appointment of Sanjay Gupta as an executor of the will. Similarly, the legal and natural heirs and representatives of Smt. Malti Mangal, who are also on record, have also given their consent to the appointment of Sanjay Gupta as an executor of the will.

25. On the aforesaid premise, Mr. Manish Goyal, learned Senior Counsel appearing for plaintiff/decree holder, in support of the application filed by Sanjay Gupta, contends that the genuineness of the will dated 01.04.1993 has already been upheld by this Court vide judgement dated 10.11.2006. This judgement was carried in appeal by contesting defendants/judgement debtors by filing Special Appeal Defective No. 1049 of 2006 (Kumkum Mittal and another Vs. Chandra Mohan and another), which has been dismissed for default vide order dated 11.05.2017. He, therefore, contends that the issue regarding appointment of an executor upon the death of Original Executors appointed under the will during the pendency of testamentary suit is a residuary issue and can be dealt with by the Court. There does not exist any legal impediment in doing so.

26. In support of aforesaid submission, reliance is placed upon provisions of Section 233 of the Indian Succession Act. He thus vehemently submits that though the suit has been finally decided wherein the will dated 01.04.1993 has been found to be genunine, coupled with the fact that executors appointed under aforesaid will have died, the issue regarding appointment of an executor of the will is a residuary issue and can be decided by this Court in terms of Section 233 of Indian Succession Act to give effect to the pious wish of the testator even after the disposal of the suit.

27. Learned Senior Counsel further submits that this Court vide judgement and order dated 10.11.2006 has allowed the substitution application in respect of Smt. Malti Mangla and further observed that parties may file appropriate application for appointment of an executor of the will alongwith his/her consent. He, therefore, contends that in view of above, no exception to the same can be taken. Application filed by Sanjay Gupta seeking appointment of himself as an executor of the will is in conformity with the judgement and order dated 01.11.2016. As long as judgement and order dated 01.11.2006 stands, defendants/judgement debtors have no right to oppose the same. Legal and natural heirs and representative of Smt. Malti Mangla are already on record. They have neither come forward for appointment as an executor of the will nor they have filed any objection to the application dated 04.09.2010 bearing no. 264599 of 2010 filed by Sanjay Gupta seeking his appointment as an executor of the will pursuant to the judgement and order dated 10.11.2006. To the contrary, they have given their consent for appointment of Sanjay Gupta as an executor of the will. Similarly Vivek Gupta brother of Sanjay Gupta has also given his consent in favour of appellant Sanjay Gupta. As such, application filed by Sanjay Gupta remains unopposed and therefor liable to be allowed.

28. Per Contra, Mr. Anil Kumar Sharma, learned Senior Counsel has opposed the application filed by Sanjay Gupta seeking appointment as an executor of the will. He contends that in view of the provisions contained in Section 222 of Indian Succession Act, no further application regarding appointment of an executor of the will can be entertained after the suit has been finally adjudicated upon, as the right to claim appointment as an executor is personal to the executor and the same dies with the death of the executor. The suit has, therefore, been wrongly decreed. Furthermore, since judgement dated 10.11.2006 has been challenged by filing Special Appeal, therefore, it cannot be said that same has become final. The correctness of judgement dated 04.11.2016 is pending consideration before Special Appeal Bench. He thus contends that applicant Sanjay Gupta may be relegated to the appropriate forum available in law and the application filed by Sanjay Gupta seeking appointment of himself as an executor of the will is liable to be consigned to the record.

29. In continuation of his opposition to the application filed by Sanjay Gupta seeking appointment as an executor of the will, it is urged by Mr. Anil Sharma, learned Senior Counsel that legal and natural heirs and representatives of Smt. Malti Mangla and Smt. Bina Gupta, who are already on record, have not given their consent for appointment of Sanjay Gupta as an executor of the will. He thus contends that since the condition precedent for appointment of an executor under judgement and order dated 10.11.2006 having not been satisfied, no occasion arises before this Court to allow the application filed by Sanjay Gupta seeking appointment as an executor of the will.

30. On the rival submissions urged by counsel for the parties, the Court has to first decide as to whether application filed by Sanjay Gupta, who is an heir of one of the executors appointed under the will and also an heir of one of the legatees under the will can claim appointment as an executor of the will in this suit, when same has already been decided vide judgement and decree dated 10.11.2006.

31. Before proceeding to deal with the said issue, it would be prudent to reproduce the will to ascrtain the status of Sanjay Gupta i.e. whether he is an heir of a legatee under the will or simply an applicant seeking appointment as an executor. The testament reads as under:-

"THE LAST WILL AND TESTAMENT OF SAHU BASHESHUR DAYAL, son of Sahu Bansi Dhar, resident of Chandpur, District Bijnor Uttar Pradesh.

Whereas I had only one son Suresh Kumar Mittal, who unfortunately died on the 14th December 1986, leaving him surviving his widow Smt. Kum Kum Rani and two sons, Ravi Mittal and Sandeep Mittal, and a daughter sow. Smita as also his mother, namely my wife, Smt. Sudama Devi, as his only heirs. My wife also died on 22nd November 1992. I have six duaghters, Sarojini, Malti, Manju, Bina, Asha and Meena.

I DO HEREBY REVOKE AND CANCEL ALL MY EARLIER WILLS AND DECLARE THE FOLLOWING TO BE MY LAST WILL AND TESTAMENT :-

1. I bequeath and give all my right, title and intest in the residential house along with the NOHRAH at Chandpur, of wich I am the sole owner now, and the grove on plot No. 2105 of Qasba Chandpur having an area of 6 Bighas and 14 Biswas with all the land and trees and everything thereon, of which I am the sole Bhumidhar, to my daughters Bina and Meena, in equal shares to have and hold the same as absolute owners.

2. I bequeath and give all the shares in the Delhi Cold Storage (P) Ltd., which I hold, being 500 shares of the paid up value of Rs. 50,000/- to my daughter Malti, wife of Pratap Singh Mangla as their sole owner.

3. I bequeath and give all my share and interest in the partnership Firm Sahu Basheshur Dayal Sankers, subject to payment of all my liabilities and taxes and anything due from me and my estate, to my daughter-in-law Sm.Kum Kum Rani.

4. I bequeath and give all my funds and deposits in the name of Sahu Basheshur Dayal and Sons in the Delhi Cold Storage (P) Ltd., to my grandsons Ravi Mittal and Sandeep Mittal.

5. I give all my deposit in my name individually in the Delhi Cold Storage (P) Lts, which amounted to Rs. 2, 85, 000/- before the death of my son Suresh Kumar Mittal and from which there have been no withdrawals but only additions, to my daughter Malti wife of Pratap Singh Mangla, and bequeath the same to her as its sole absolute owner.

6. That besides the above assets and property I have already earmarked and given away all my deposits and other investments by joining the person to whom I wanted to give it as joint holder with me and making the same payable to either or survivor, and therefoire, no mention of the same is being made in this will.

7. That in case there is any other property or assets of which I am the owner at my death and of which I have not made a disposition, that shall be taken by my daughters Malti and Bina equal shares as absolute owners; and in case it becomes necessary to prove this will by taking a Probate thereof, either of them shall be entitled to apply for the same as an Executor, or , to apply for letters of administration with the will annexed if that becomes necessary.

IN WITNESS WHEREOF I Basheshur Dayal have executed this will on the day of the month of April of the year one thousand nine hundred ninety three in the presence of the attesting witnesses, who have also signed in my presence and in presence of each other.

TESTATOR

01.04.1993.

32. It is thus apparent that Smt. Bina Gupta and Smt. Malti Mangla were appointed as executors under the will. They are also legatees under the will. However, both have died before the estate of testatrix could be administered by them. Applicant Sanjay Gupta is son of Smt. Bina Gupta and therefore, an heir of a legatee under the will. Consequently, the issue involved in this application primarily falls for consideration in the light of provisions contained in Section 233 of Indian Succession Act, which reads as under:-

"233. Right to administration of representative of deceased residuary legatees.--When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee."

33. The genuineness of the will dated 01.04.1993 and the competence of the executors appointed under the will has already been examined and dealt with by this Court vide judgement and order dated 01.11.2006. The executors appointed under the will are also a legatees under the will. Once, the executors appointed under the will, are also the legatee under the will, therefore, upon their death their leagal and natural heirs will have a right to claim appointment as an executor of the will. According to learned Senior Counsel appearing for plaintiffs/decree holders, the issue, therefore, is a residuary issue and can be dealt with by this Court in terms of Section 233 of Indian Succession Act.

34. He further submits that the issue involved in this application i.e. whether the application filed by Sanjay Gupta seeking appointment as an executor of the will on account of death of Smt. Bina Gupta and Smt. Malti Mangla (who were appointed executors under the will) can be allowed even after decision of the suit or the application has to be consigned to records is no longer res-integra and stands settled by a Division Bench Judgement of Calcutta High Court in Gayaram Shaw and another Vs. Tarak Nath Shaw and others AIR 1981 Calcutta 211. He has relied upon paragraph 7, which reads as under:-

"7. This case, however, stands on different footing and the aforesaid disputed questions are not really involved in this case because of the fact that here the will had been proved and the grant had already been made in favour of the original applicants, the residuary legatees. The position in law, in our view, is that the grant having been made in favour of the applicants they have died before they could administer the estate. In such a situation the law contemplates under Section 233 of the Indian Succession Act that such of the legal representatives of the original grantees, who are otherwise eligible in law can come forward to administer the estate. However, inappropriately worded the application filed before the learned Judge in the trial court was such an application under Section 233of the Indian Succession Act and the learned Judge should have disposed of the application as such and not as an application for substitution. It should be pointed out that there is legal bar to the grant being in favour of a minor and the learned Judge has failed to take note of the fact that three or four of the applicants before him now are minors. Incidentally it was contend-ed by Mr. Banerjee before us thatSection 233 of the Indian Succession Act can have no application because the original grantees, namely, Raj Kumari Debi or Kunti Debi could not start, administration at all so that it could be said that the estate had not been fully administered. In our view, there is no substance in this contention because what is left unadministered whether in part or in full is left unadministered and comes within the scope of Section 233 of the Act : that section in our view is not intended to be limited in its application to estates partly administered and thus exclude the estate which has not been administered at all. The interpretation suggested by Mr. Banerjee does not appear to be reasonable or consistent with the scheme of the Act nor does its terms admit of such an interpretation."

35. Before proceeding to evaluate the rival submissions urged on behalf of the parties, it may be noticed that a similar issue came up for consideration before Apex Court in Sambhu Prasad Agarwal and others Vs. Bhola Ram Agarwal 2000 (9) SCC 714. The judgement is a small one and therefore reproduced in its entirity.

"1. This appeal is by heirs of the legatee MATADIN AGARWAL.

2. one Maina devi, wife of late Baiddyanath Agarwal executed a will on 14.06.1976 nominating her nephew Matadin agarwal to be the owner of her house, landed properties and other immovable propereties. On 23-9-1981 died. In the year 1982, Matadin Agaarwal filed a probate petition (Probate Case NO. 1 of 1982) which was converted into Title Suit No. 1 of 1985. In the probate petitiion, Matadin Agarwal claimed grant of probate in his favour. On 13-7-1987, Matadin Agarwal died. On the death of matadin Agarwal, his heirs who are appellants before us, filed an application in Title Suit No. 1 of 1985 for their substitution in place of Matadin Agarwal. They also filed another application for amendment of the petition. In the legal heirs may be granted lettters of administratiion. This application filed by the appellants herein were reejected by the court. The revision filed by them was also dismissed by the High Court. It is against these orders, the appellants are before us.

3. Learned counsel appearing for the appellant urged that the view taken by both the courts below is erroneous inasmuch as the appllants being the heirs of the legatee were entitled to be substituted and to pray for issue of loetters of administration. However, this is contested by the learned counsel for the respondent.

4. We have heard learned counsel for the parties and perused the record.

5. We find that it is not disputed that Matadin Agarwal was a legatee under the will. It is true that Matadin Agarwal ought to have applied for issue of letters of administration and not for probate. However, this did not debar his heirs to get the probate petition amended. The trial court rejected both the applications of the appellants on the ground that since the probate petition filed by the legatee related to his personal right, therefore no right accrued to the appellants for their substitution in his place. This view, according to us, is not correct. Matadin Agarwal, as stated above, was a legatee and not an executor under the will. It is true that where an executor dies, his heirs cannot be substitued because the executor possessed personal right, but this is not applicable where the heirs of a legatee apply for issue of letters of administration. It is not disputed that tody the appellants can file a petition for issue of letter of administration. Since considerable time has elapsed, we feel that the interest of justice demands that the proceedings should come to an end as early asw possible and we should not dismiss this appeal merely on highly tecal ground.

6. For the aforesaid reason, we set aside the orders under challenge and send the case back to the trial Court. We permit the appellants to be substituted in the proceedings and also permit them to amend the petition. It goes without saying that after the remand, it will be open to the parties to take such plea as may be available to them under the law. Since the matter is pending for considerable time, we direct the lower court to decide the matter expeditiously. This appeal is allowed. There shall be no order as to costs."

36. Subsquent to aforesaid judgement of Apex Court, an identical issue also came up for consideration before the Bombay High Court in Smt. Vatsala Srinivasan Vs. Narisimha Raghunathan & Anr. AIR 2011 Bombay 76. Court considered the issue in the light of provisions of Indian Succession Act as well as the judgement of Apex Court in Shambhu Prasad Agrawal (Supra). Paragraphs 1,7,8,9,10,12,14, 15,16 17, 18 of aforesaid judgement are relevant for the controversy in hand. Accordingly, same are reproduced herein under:-

"1. This Appeal raises the issue as to whether a sole beneficiary under a will can seek substitution instead and in place of an executor who has died during the pendency of a testamentary proceeding. The Testamentary Suit for probate of the will of the testatrix is pending for over seven years; evidence is complete and the suit was ripe for final hearing when the sole executor died. The learned Single Judge allowed the Chamber Summons by the Respondent for substitution and granted the prayer for converting the proceeding formally into one for Letters of Administration with the will annexed. The Appellant contends that the remedy open to the Respondent is to file a fresh Petition for Letters of Administration with the will annexed and the probate proceedings which came to an end with the death of the executor cannot be continued. For the reasons which follow, we have concluded that the law is not what the Appellant contends it is. A purposive interpretation which safeguards litigants against a multiplicity of proceedings and the attendant delay and expense is in accordance with the intent and the letter of the Indian Succession Act, 1925.

7. The question however that arises before the Court is whether upon the death of the sole executor during the pendency of the proceedings initiated for the grant of probate, the beneficiary under the will is entitled in law to continue the proceeding by seeking the issuance of letters of administration and whether in aid of that relief the beneficiary can seek substitution in the proceedings.

8. Section 213 of the Indian Succession Act 1925 provides that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted letters of administration with the will or an authenticated copy annexed. Section 220 provides that letters of administration entitle the Administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. The effect of a probate under Section 227 is that probate when granted establishes a will from the death of the testator and renders valid all intermediate acts of the executor as such. Under Section 222 a probate can be granted only to an executor appointed by the will.

When probate has been granted to several executors and one of them dies, Section 226 stipulates that the entire representation of the testator accrues to the surviving executor or executors. Section 232 then provides as follows:-

"232. Grant of administration to universal or residuary legatees.- When -

(a) the deceased has made a Will, but has not appointed an executor, or

(b) the deceased has appointed an executor who is legally incapable or refuses

to act, or who has died before the testator or before he has proved the Will, or

(c) the executor dies after having proved the Will, but before he has administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered."(emphasis supplied)

Section 232 deals with three identified situations. The first is where no executor has been named in the will executed by the deceased. The second is where though an executor has been appointed by the deceased in the will the executor (i) is legally incapable; or (ii) refuses to act; or (iii) has died before the testator; or (iv) had died before he has proved the will. The third situation deals with a case where the executor after having proved the will has died but before the estate of the deceased has been administered. In either of these situations Section 232 provides that (i) a universal or a residuary legatee may be admitted to prove the will; and (ii) letters of administration with the will annexed may be granted to him of the whole estate or of such part of the estate as remains to be administered. The law does not postulate a vacuum in the administration of the estate of a deceased testator. Hence in the several situations to which a reference has been made in Section 232, the Act contemplates that the universal or a residuary legatee may be admitted to prove the will with a consequential issuance of letters of administration with the will annexed. The second set of eventualities to which a reference has been made earlier contemplates a situation where the executor under a will of the deceased has died before the will was proved. The death of the testator before the will is proved may occur either before the presentation of a Petition for probate or, for that matter, even after the presentation of a Petition but before probate has actually been granted upon the will being proved. Whether as a matter of fact the death of the executor takes place before or after the institution of a Petition for probate, the death in such a case is prior to the will being proved. Hence in both the situations, a residuary legatee is entitled in law to be admitted to prove the will and to the issuance of letters of administration.

9. The submission that has been urged on behalf of the Appellant is that while the right of the legatee to institute a proceeding for the grant of letters of administration cannot be questioned and is not questioned, the legatee must necessarily institute a separate proceeding for the grant of administration. In other words what is sought to be urged is that the proceeding for the grant of probate initiated by the sole executor abates on the death of the executor since the right to obtain a probate is personal to the executor. Therefore it is urged that the legatee under the will must institute a separate proceeding for the issuance of letters of administration and cannot seek continuation of the proceedings which were instituted by the sole executor, which must be construed as having died a natural death following the death of the executor. It is that submission which must now fall for consideration.

10. This issue which the Court is called upon to decide has been considered in judgments of several High Courts to which it would be necessary to turn. The first set of judgments which holds the field are judgments which take the view that it is only an executor appointed under a will who can seek probate and that consequently upon the death of the sole executor or as the case may be of the last surviving executor, the heirs of the executor are not entitled to be impleaded as parties to the proceeding.

12. Now from a reading of the facts contained in the judgment of this Court in Thrity Sam Shroff it is evident that the situation which arose before the Court in the case was one where during the pendency of the probate proceedings all the executors appointed under the will had died.

The appellant was one of the legal heirs of the deceased testator. It was her contention that the property was mismanaged and was being wasted and that it was necessary to appoint an administrator consequent upon the death of the executors named in the will. The appellant took out a motion seeking various reliefs including the appointment of an official administrator and for the governance of the estate of the deceased testator. It was in this background that the Division Bench came to the conclusion that the suit stood abated and the motion in such a suit for interim orders could not be entertained. No question of the substitution of the legatee upon the death of a sole executor in testamentary proceedings arose before the Division Bench. The ratio of the judgment is on what arose before the Court for determination and hence what the Court has decided on that issue.

14. The Supreme Court had occasion to consider a similar issue in Shambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal.1 In that case the testatrix had by her will bequeathed her estate to a nephew. On the death of the testatrix the legatee filed a petition for probate. The legatee died during the pendency of the proceedings and on his death his heirs filed an application in the probate proceedings for substitution in place of the deceased legatee. Another application for amendment of the petition was filed by which it was prayed that instead of a probate, the legal heirs may be granted letters of administration. These applications having been dismissed and the order of dismissal having been confirmed in revision by the High Court an appeal was filed before the Supreme Court. The Supreme Court noted that the legatee, it was true should have applied for the issuance of letters of administration and not for probate. However, this would not debar his heirs from getting the probate petition amended. The Supreme Court ruled that the view of the trial Court in rejecting the applications on the ground that the probate petition filed by the legatee related to his personal right and hence no right accrued to the appellants for substitution in his place was incorrect. The judgment of the Supreme Court lays down that while it is true that where an executor dies his heirs cannot be substituted because the executor possesses a personal right, this is not applicable where the heirs of a legatee apply for issue of letters of administration. The Supreme Court noted that it could not be disputed that the heirs of the legatee could file a petition for the issuance of letters of administration. Having regard to the time that had elapsed, the interest of justice would require that the proceeding should come to an end as early as possible and the appeal should not be rejected on what was regarded as being a "highly technical ground".

15. The judgment of the Supreme Court is therefore authority for the principle that the right to seek probate of a will executed by a deceased testator is personal to the executor appointed under the will. Upon the death of the executor the heirs of the executor cannot be substituted in his place.

However, this would not debar the legatee and upon the death of the legatee his heirs from seeking substitution.

16. The Court in a proceeding for probate, it is well settled, does not decide questions of title. The Court is in probate proceedings only concerned with the issue as to whether the document set forth has been duly executed by the testator; and whether the testator was at the time of the execution of the document in a sound and disposing state of mind. The testamentary court, does not determine questions of ownership of or title to the property but whether the testator has executed his testamentary instrument voluntarily and with a free will.

17. Under the Indian Succession Act, 1925 the effect of the grant of letters of administration is to entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. Under the Act, probate of a will, when granted establishes the will from the death of the testator and renders valid intermediate acts of the executor as such. Where an executor is named in the will probate can be granted only to an executor named in the will. On the other hand where the will does not appoint an executor a universal or residuary legatee may be admitted to prove the will. The right of the beneficiary to seek letters of administration continues to survive notwithstanding the death of the testator. Where an executor resigns or refuses to act as such the beneficiary named under the will can assert his right to seek letters of administration. In a situation where the executor has, even after the presentation of a petition, failed to act it is open to the beneficiary or legatee under the will to seek the issuance of letters of administration. In all these situations, there is no conceivable reason as to why the beneficiary or legatee should be relegated to file independent proceedings. The executor does not derive any interest in the property which forms the subject matter of the bequest unless he is also a beneficiary under a will.

18. Both a proceeding for the grant of probate as well as a proceeding for the grant of letters of administration with the will annexed is initiated for protecting the interest of the legatees under the will. The essence of the enquiry in both the proceedings is the same and relates to the genuineness and authenticity of the will. Having regard to these fundamental similarities in both the proceedings there is no conceivable reason as to why the law must be regarded as prohibiting a beneficiary from seeking to continue the proceedings upon the death of the sole executor and as incidental thereto for s

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eeking formal conversion of the proceeding from one for the grant of a probate to one for the issuance of letters of administration. If there were to be a specific prohibition in law enacted by the legislature the position may have well been different. In the absence of a legal prohibition to the contrary the Court would not readily accept a submission, the effect of which would be to result in delaying the proceedings for the administration of the estate and a resultant multiplicity of proceedings. This is amplified in the present case where the recording of evidence is complete. Nearly eight years have elapsed since the institution of the suit. Evidence of seven witnesses has been recorded and the suit is ripe for final hearing. There is no dispute about the position that in any event the beneficiary would have been entitled to institute separate proceedings independently for the grant of letters of administration. That right can well be espoused by the beneficiary by seeking a continuation of the existing proceedings. It must be noted, that this right which is available is recognized with reference to a beneficiary under the will. A fundamental difference has to be made between a situation where the legal heirs of a sole executor seek impleadment in the proceedings on the death of the executor. The legal heirs of the sole executor cannot be brought on record since the right to seek probate of the will subsists in the executor alone. But that is not to say that a beneficiary under the will is prohibited from continuing the existing proceedings. The proceedings enure to the benefit of the legatee. The appointment of the administrator is but a step in aid of the proper administration of the estate of the deceased. Section 273 provides that probate or letters of administration shall have effect over all the properties and estate of the deceased through the State in which the same is or are granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him. Parties, documents and facts are similar in both sets of proceedings. In this view of the matter and particularly having regard to the judgment of the Supreme Court to which we have made a reference earlier we are of the considered view that the learned Single Judge was not in error in allowing the Chamber Summons." 37. Court in above-noted judgement has categorically held in paragraph 18 that There is no dispute about the position that in any event the beneficiary would have been entitled to institute separate proceedings independently for the grant of letters of administration. That right can well be espoused by the beneficiary by seeking a continuation of the existing proceedings. It must be noted, that this right which is available is recognized with reference to a beneficiary under the will. This Court does not find any good ground to differ with the view expressed by the Division Bench or to improve upon the same. 38. It is thus apparent that the heir of a legatee can be substituted in proceedings regarding grant of Probate. Admittedly, applicant Sanjay Gupta is an heir of one of the legatees under the will. Therefore, in view of the circumstance that original executors appointed under the will having expired before the estate could be administered by them and the heirs of some of the legatee have given their consent in favour of applicant for his appointment as an executor of the will, the application filed by Sanjay Gupta for seeking appointment of himself as an executor of the will is very much maintainable. 39. The objections raised by Mr. Anil Sharma, learned Senior Counsel representing contesting defendants/judgement debtors do not require a de-novo examination by this Court as the objection so raised stands settled in Gayaram Shaw and another Vs. Tarak Nath Shaw and others AIR 1981 Calcutta 211, Sambhu Prasad Agarwal and others Vs. Bhola Ram Agarwal 2000 (9) SCC 714. and Smt. Vatsala Srinivasan Ig vs Narisimha Raghunathan. Furthermore, this Court vide judgement and order dated 01.11.2006 has itself observed that parties may file appropriate application for appointment of an executor of the will alongiwth his/her consent. Special Appeal filed against above judgement and order dated 01.11.2006 has already been dismissed vide order dated 11.05.2017. As such above judgement and order has attained finality upto this stage. As such no execption can be taken to the same. 40. In view of the discussion made above, the applications succeeds and is allowed. Mr. Sanjay Gupta is now entitled to execute the will. Let the probate with will dated 01.04.1993 be issued to Sanjay Gupta S/O Chandra Mohan Gupta, R/o 18-A, Kanpur Road, Allahabad for its due execution in accordance with law, after he pays the Court fees determined by the office to the satisfaction of the Registrar General, and after execution of the administration bonds.
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