1. The present application has been filed under Order 7 Rule 11 Code of Civil Procedure by the respondent no.3.
2. Mr. Prosenjeet Banerjee, learned counsel for the applicant submits that only an executor can seek a probate of the Will qua which he/she has been appointed as the executor. He states that as the petitioner is not the executor of the Will, present probate petition is barred by law. He points out that under Section 222 of the Indian Succession Act, 1925, (hereinafter referred to as 'Act, 1925') a probate can be granted only to an executor appointed under the Will.
3. Learned counsel for the applicant further submits that as the present petition for probate had not been properly signed and verified in accordance with Section 280 of Act, 1925, there is no petition in the eyes of law. He draws this Court’s attention to Order 6 Rule 15 as well as Order 4 Rule 1(3) of the Code of Civil Procedure, 1908.
4. Learned counsel for the applicant also submits that as the petitioner does not reside within the State of Delhi, the present petition is liable to be dismissed being in breach of Section 242 of Act, 1925.
5. On the other hand, learned counsel for the petitioner/nonapplicant states that a proceeding for grant of probate or letters of administration is initiated for protecting the interest of legatees under a will and to ensure that the benefit arising out of a will are granted to them. He further submits that the essence of the enquiry in both the proceedings is the same and relates to the genuineness and authenticity of the will and there is no reason as to why the law be construed in a restricted manner to prohibit the petitioner from filing the present petition, especially when the Executor did not perform his responsibilities as mandated in the Will. In support of his submission, he relies upon the judgment in Shambhu Prasad Agarwal and Others Vs. Bhola Ram Agarwal, (2000) 9 SCC 714 wherein it has been held as under:-
'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 substituted 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 today 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 as possible and we should not dismiss this appeal merely on highly technical 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………'
6. In the alternative, learned counsel for the petitioner orally prays that the present probate petition be converted into a letters of administration petition under Sections 229 and 230 read with Section 232(b) of Act, 1925. He states that the respondent no.4 (Executor) appointed by the deceased father, on affidavit dated 23rd April, 2016 in para no.3 had renounced his rights vide letter dated 07th April, 2015 to execute the Will. He contends that as the Executor appointed by the deceased-father had failed to fulfil his responsibility, even after repeated requests, the petitioner who is one of the legatees/beneficiaries under the said Will had inadvertently filed the present probate petition under Section 276 of Act, 1925. He emphasises that the petitioner is in law entitled to maintain a letters of administration petition.
7. As far as the allegation of lack of verification in accordance with Section 280 of Act, 1925, is concerned, learned counsel for the petitioner undertakes that a formal amendment application along with the requisite verification shall be filed. He further states that the petitioner shall appoint an attorney/agent who is residing within the State of Delhi within two weeks.
8. In rejoinder, Mr. Prosenjeet Banerjee, learned counsel for the applicant submits that as the petitioner is not the executor of the Will, she is not entitled in law to maintain either a probate petition or seek its conversion into a letters of administration. In support of his submission, he relies upon a judgment of a Coordinate Bench of this Court in Raj Rani Bhasin Vs. State, MANU/DE/0540/2009 wherein it has been held as under:-
'9. The person to whom Letters of Administration are granted does not thereby become entitled to the property or estate of the deceased. The estate still succeeds according to the law of succession applicable to the deceased. The purpose of Letters of Administration is merely to enable the administrator so appointed by the court to collect/ assimilate the properties of the deceased, and/or to deal with the various authorities with whom the properties of the deceased may be vested or recorded and to realize the same and/or to have the same transferred in the names of the successors in accordance with law of succession applicable to the deceased. The administrator is required to, from time to time, file accounts in the court with respect to the administration of the estate and/or as to how the estate has been settled/transferred to the successors in accordance with law of succession applicable to the deceased and upon the administrator defaulting in the same, the court retains the power to revoke the grant.
10. The aforesaid would show that the proceeding for grant of Letters of Administrator is for appointment to the personal office as the administrator of the estate of the deceased. Such administration even when granted, ceases with the demise of the administrator and it is not as if the legal heirs of the administrator so appointed by the court are entitled to continue with the administration which was vested by the court in the administrator.
11. Viewed in this light, the proceeding for grant of Letters of Administration is for a right to personal office. If that is so then the question of the right to sue surviving to the legal heirs of the petitioner does not arise. The right to the grant of Letters of Administration is a personal right and does not survive……'
9. Having heard learned counsel for the parties, this Court is of the view that in the present case since respondent no.4-Executor had refused to act, the petitioner, who is one of the legatees is entitled to maintain a petition for letters of administration with Will annexed.
10. The Supreme Court in Vatsala Srinivasan Vs. Shyamala Raghunathan, (2016) 13 SCC 253 has held that, probate and letters of administration proceedings are similar in nature. It has further been held that the essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the Will. It was also held, following a decision of the Gujarat High Court in Jadeja Pravinsinhji Anandsinhji Vs. Jadeja Mangalsinhji Shivsinhji and others, 1961 SCC OnLine Guj 62, that if the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a 'formal modification' that the prayer be read for letters of administration with the Will annexed.
11. The judgment in Raj Rani Bhasin (supra) does not advance the case of the applicant as in the said case it was only held that right to sue does not survive upon the legal heirs of the administrator to whom letters of administration had been granted as the office of the administrator of the estate of the deceased is a personal office and the same does not devolve upon his legal heirs.
12. In fact, this Court finds that in Shirin Boman Faramarzi Vs. Zubin Boman Faramarzi and others, 2014 (4) Mh. L. J. 217, the Bombay High Court on identical facts had allowed conversion of the petition for probate into a petition for letters of administration. The relevant paragraphs of the aforesaid judgment are reproduced hereinbelow:-
'2. Petitioner is widow of late Boman Dinyar Faramarzi who died on 29th August, 2007. According to the petitioner, the said deceased had executed his last Will and testament dated 22nd January, 2002. The said deceased had appointed Mr. Diniar Darab Mehta and Mr. Himanshu Kode, Advocate as executors of the said Will. It is the case of the petitioner that since executors appointed by the said deceased did not take any steps to file any probate petition and in view of the fact that the earlier advocate on record appearing for the petitioner inadvertently filed petition for probate of the last Will and testament of the said deceased in this Court, in spite of filing petition for letters of administration with the Will annexed, petitioner by her advocates' letter dated 4th August, 2011 addressed to the Executors of the said Will placed on record that since petitioner through her son on several occasions both orally and in writing had requested the executors to carry out their duties as executors of the Will but as they failed to do so, petitioner was constrained to file petition for probate of the Will herself......
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18. On perusal of the record produced by parties, in my view both the executors who were alleged to have been appointed by the said deceased in the Will in question have not come forward to act as an executors. Though this Court had passed an order impleading the executors with a view to ascertain whether any of those executors who would act as executor or would renounce the executorship, as far as Mr. Himanshu Kode is concerned, he neither appeared before this Court nor filed any affidavit in reply. There was no response given by Mr. Himanshu Kode to any of the letters addressed by the petitioner. As far as Mr. Diniar Mehta is concerned, he made a statement through his counsel that he did not want to act as an executor in respect of the Will in the form as annexed or produced with the petition by the petitioner. Since Mr. Himanshu Kode has not come forward to act as an executor though served with notice and proceedings and since Mr. Diniar Mehta has refused to act as an executor in respect of the Will in the form in which it is produced by the petitioner, in my view in this situation, the beneficiary would have been entitled to file a petition for Letters of Administration with Will annexed. It is the case of the petitioner that since none of the executors had come forward to act as executors and in view of the erstwhile advocate filing a petition for probate instead of filing petition for Letters of Administration, petitioner had filed such proceedings. In my view, no prejudice would be caused to the caveator if the petition filed for probate is allowed to be converted into the petition for Letters of Administration in the circumstances referred to above.
19. Supreme Court in case of Shambhu Prasad Agarwal has considered a similar situation and has held that the petitioner in that case who had filed a petition for probate instead of filing petition for letters of administration would not be debarred to get the petition for probate amended. The petitioner in that case was a legatee and not an executor under the Will. It is held that the legal heirs could file a petition for issuance of letters of Administration even on the demise of the original petitioner and in the interest of justice proceedings would not come to an end and the appeal would not be dismissed merely on technical ground. I am respectfully bound by the judgment of the Supreme Court in case of Shambhu Prasad Agarwal (supra). In my view, the judgment of Supreme Court in case of Shambhu Prasad Agarwal (supra) squarely apply to the facts of this case.
20. In the facts of this case, it is clear that the petitioner who claims to be the sole beneficiary under the Will in question is 69 years old. On filing of the caveat and affidavit in support by the caveator, petition for probate has been already converted into a suit. Whether Will propounded by the petitioner was executed or not or validly attested or not would be an issue which would be tried at the time of trial of the petition. Merely because a probate petition is allowed to be converted into a petition for Letters of Administration with Will annexed, it would not prove the existence and/or execution of the Will in question. The caveator who has disputed the Will would be entitled to treat the caveat as well as affidavit in support of the caveat filed as caveat and affidavit in support in the petition for Letters of Administration with the Will annexed.'
13. Consequently, the oral prayer of learned counsel for the petitioner is allowed and the present petition is directed to be converted into letters of administration with Will annexed, as the executor had refused to act. This Court may mention that its approach is in consonance with Sections 229 and 230 read with Section 232 of Act, 1925. The undertaking given by the learned counsel for petitioner that he shall file an amended petition with requisite power of attorney within a period of four weeks is accepted by this Court.
14. It is further settled law that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient p
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ower vested in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. The Supreme Court has repeatedly held that technical pleas like defective verification and wrong nomenclature can always be cured. [See: United Bank of India Vs. Naresh Kumar & Ors., (1996) 6 SCC 660 and Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, (2006) 1 SCC 75]. 15. Consequently, this Court is of the view that alleged defective verification and non-execution of power of attorney in favour of a resident of Delhi, are curable defects and not threshold bars to the maintainability of the petition. 16. Accordingly, the present application is dismissed and the petitioner is directed to file an amendment application under Section 229 read with Section 232 of Act, 1925 within two weeks. Upon an amended petition being filed along with proper verification and power of attorney, respondents shall be at liberty to file fresh objections within four weeks. 17. It is pertinent to mention that today learned counsel for the respondent no.3 has without prejudice to the rights and contention of his client has handed over a cheque bearing no. 585807 dated 18th July, 2018 for Rs.8,52,086/- drawn upon Canara Bank, Green Park Extension, New Delhi in favour of respondent no. 2. Test.Cas. 11/2015 & Crl.M.A. 7732/2017 List on 23rd October, 2018.