Delhi District Court
Subhash Chand Goyal vs . State & Ors. Pc No. 18/11 on 2 June, 2014
Subhash Chand Goyal Vs. State & Ors. PC No. 18/11
IN THE COURT OF SHRI MANISH YADUVANSHI :
ADDITIONAL DISTRICT JUDGE06: CENTRAL: DELHI
PC No. 18/11
Subhash Chand Goyal
son of Late Sh. Phool Chand Goyal
R/o E20, Ranjit Singh Road
Adarsh Nagar, Delhi 110033.
Vs.
1. State
2. Sh. Rajendra Kumar Goyal
Son of Late Sh. Phool Chand Goyal
R/o D94, Lord Kirshna Road
Adarsh Nagar, Delhi 33.
3. Sh. Naresh Kumar Goyal
Son of Late Sh. Phool Chand Goyal
R/o A9, (F.F), Main G. T. K. Road
Adarsh Nagar, Delhi 33.
4. Sh. Mhesh Chand Goyal
Son of Late Sh. Phool Chand Goyal
R/o 2557, Chaman Wada
Tilak Bazaar, Delhi 6.
5. Sh. Sundeep Goyal
Son of Late Sh. Phool Chand Goyal
R/o C326, F.F., Gali no. 9,
Majlish Park, Delhi 33.
6. Smt. Geeta Rani
W/o Sh. Ravinder Kumar
R/o C580/2, Gali No. 10
Shivaji Square Road,
Application dismissed 1/9
Subhash Chand Goyal Vs. State & Ors. PC No. 18/11
Majlish Park, Delhi 33.
7. Smt. Savita Rani
W/o Sh. Ramesh Chand
R/o Ratanlal Om Prakash
Kath Mandi, Rohtak, Haryana State
O R D E R :
Present : Sh. Sanjay Goel, Advocate for LRs deceased petitioner.
Sh. S. K. Gupta, Ld. Counsel for objectors.
1. This order disposes off an application of LRs of deceased petitioner under order 22 Rule 1 & 3 CPC heard. File perused.
2. The deceased petitioner filed petition under section 276 and 278 of the Indian Succession Act 1925 for grant of letters of administration with Will annexed in regard to moveable properties as per scheduleA. According to him, his father Sh. Phool Chand Goyal executed Will dated 21.02.2002 which was duly registered on the same day. At the stage recording of his evidence, he died intestate on 27.05.2013. The application in hand was filed on 03.07.2013. It has been vehemently opposed.
3. The main contention is in regard to whether any right to sue survives to the LRs of the deceased petitioner or not.
4. The LRs rely on Pradeep Bhalla Vs. Sangeeta & Ors, reported in 2007 (94) DRJ 548 : Surjit Kaur Gill Vs. State & Ors., reported in Application dismissed 2/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11 154 (2008) Delhi Law Times 516 : Harbans Singh Vs. State & Ors., reported in 2010 II AD (Delhi) 191, in support of their contentions while the respondents rely on Thirty Sam Shroff Vs. Shiraz Byramji Anklesaria, reported in AIR 2007 Bom 103; 2007 (109) Bom LR 606.
5. In Pradeep Bhalla's case (supra), the Hon'ble High Court of Delhi dealt with the issue as to who should be brought on record as legal representative of deceased plaintiff. The objection was that the Will was not probated and therefore, wife of deceased could not make any claim under the Will. However, she was brought on record by virtue of the order impugned before the Hon'ble High Court. The petition was dismissed.
6. In Surjit Kaur's case (supra) similar question came up before the Hon'ble High Court of Delhi. The Ld. ACJ had allowed two applications under order 22 Rule 4 CPC for impleadment LRs of the deceased respondents. The petition was for obtaining succession certificate and not applicable to proceedings in respect of grant of probate or letters of administration.
7. In Harbans Singh's case (supra), a petition under section 276 of Indian Succession Act for grant of Probate was filed. The beneficiary died during pendency of proceedings. His LR's sought substitution. Same was allowed. The matter went in Civil Revision before the Hon'ble High Court of Delhi. It was noted that the Application dismissed 3/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11 petition was at an advance stage of recording of evidence. Legal heirs had also sought relief to approach before Ld. ADJ for seeking appropriate amendment in the probate petition so as to claim relief of grant of letters of administration to which counsel for petitioner recorded no objection.
8. On the contrary, the judgment of the Bombay High Court in Thirty Sam Shroff's case (supra), provides the scope of section 222, section 295 and section 226 Indian Succession Act as well as order 1 Rule 8 CPC and order 24 CPC. It discussed the case law on the subject and referred to various judgment of the Hon'ble Apex Court as well as various other High Courts. It was held that once all the executors of a Will are dead deed, such proceedings for grant of probate are bound to abate.
9. In the instant case, the LRs are relying on section 233 of the Indian Succession Act, 1925 which speaks of Right to administration of representatives of deceased residuary legatees. The same is as under :
XXXX "233. 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."
XXXX Application dismissed 4/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11
10.It is clear from the reading of the same that the right is in respect of 'administration'. The residuary legatee having the beneficial interest who dies before the estate has been fully administered leaves behind him the right of administration of the estate of the deceased to his representatives. The constitution of a 'residuary legatee' is provided under section 102 of the Indian Succession Act. The residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property. It is therefore clear that for purposes of section 233 or for that matter section 234, either probate or letters of administration should have been granted. This is not the case before me. The judgment cited by the LRs are not applicable to the present facts. In Pradeep Bhalla's case (supra), the main thrust was only the plea of nonprobation pertaining to Hindus and in relation to Wills executed in Union Territory of Delhi. It was held that probate of the Will is not sine qua non for enforcing a right under the Will. There was also an issue in respect of section 57 and section 213 of the Succession Act. Section 57 of the Act pertains to applicability of certain provisions of para 6 of the Act, to a class of Wills made by Hindus etc. Section 213 of the Succession Act provides that no right as executor or legatee can be established in any Court unless the 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 with the copy of an authenticated copy of the Will annexed. The section does not apply in the case of Application dismissed 5/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11 Wills made by Mohammedans or Indian Christians. It is in this context that order 22 Rule 3 CPC 1908, was examined. Judgment in Rajan Suri Vs. State & Anr. 2005 VII AD Delhi 878 was noted on the point that for Hindus, pertaining to Will executed in Delhi, there is no requirement of obtaining probate as sine qua non before enforcing a right under the Will. Thus, Pradeep Bhalla's case, does not appear to be on the point i.e. in issue before this court.
In Surjit Kaur Gill's case (supra) order 22 Rule 3 CPC was considered. It is pointed out that in case of succession and probate, the court has to intimate public at large and invite objections of surviving LRs. It is observed that the petitioner is supposed to inform the court about legal heirs by making them a party or by filing separate memo of parties. I have already pointed out that the matter pertains to grant of succession certificate wherein the Ld. ACJ concerned had allowed the applications under order 22 Rule 4 CPC for substituting the LRs of the respondents. The case therefore does not pertain to substitution of LRs of deceased petitioner/beneficiary under the Will.
In Harbans Singh's case (supra) leave was granted to the LRs of deceased petitioner for seeking amendment in probate petition to claim grant of letters of administration. The relief was probably granted on the no objection of the other party. It is therefore, also not pertaining to the point in issue before this court.
11.On the contrary, it has been held in Thirty Sam Shroff's judgment (supra) that the proceedings under order 22 CPC have not Application dismissed 6/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11 applicability to the proceeding for grant of probate or letters of administration. After having dealt with the law on subject , the following was held :
30. "Considering all the above decisions, it is abudantly clear that the probate proceeding, though on being contested, becomes contentious proceeding, and therefore, it is to be proceeded in the form of a suit, but that by itself does not transform the proceeding into a suit under the Code of Civil Procedure. The provisions of Code of Civil Procedure would apply to such proceedings to the extent they are not inconsistent with the provisions of law comprised under the said Act. Section 226 of the said Act specifically provides that in case of death of an executor, representation would survive to the surviving executor or executors, as the case may be.
At the same time, Section 222 clearly specifies that the probate can be granted only to an executor. In other words, the probate proceedings are essentially at the instance of the executors so named in the Will, and can survive till the executors survive. Moment the sole executor dies or all the executors die, the question of proceeding being kept alive does not arise at all, as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death as a consequence of non survival of any executor. In such circumstances, the question of applicability of Order XXII of the Code of Civil Procedure does not arise at all."
31. "Merely because the proceeding may be appearing to be in the form of a representative character in relation to the execution of the Will of the deceased, that by itself will not make the proceeding to be a representative suit within the meaning of the said expression under the provisions of the Code of Civil Procedure. Order I Rule 8 of the Code of Civil Procedure which deals with the concept of a representative suit speaks of representation of interest of numerous persons and not the numerous interest of same person. Merely because the probate proceedings may relate to numerous properties of the deceased person, having so covered by the Will executed by the deceased person, that will not Application dismissed 7/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11 transform the proceeding into a representative suit within the meaning of the said expression as understood under Order I Rule 8 of the Code of Civil Procedure."
32. "Once it is clear that the proceeding does not survive on the death of last surviving executor, such proceeding is bound to abate. The question of entertaining any application for substitution in an abated proceeding cannot arise, till and until the abatement is set aside. The question of setting aside the abatement would arise only in a case where right to sue survives and sufficient case is made out by moving the Court to set aside the abatement and to bring the legal representatives on record. Once it is clear that in a probate proceeding, there is no right to sue which can survive, the question of setting aside of the abatement does not arise. Once the abatement cannot be set aside, it means, proceedings cannot be revived. Once a proceeding is dead, the question of entertaining any application therein does not arise. Hence, the contention about the substitution of the deceased executor and thereafter transforming the proceeding into a proceeding for Letters of Administration does not arise."
36. "As regards Rule 4 A of Order XXII of the code of Civil Procedure is concerned, it would have no application to such proceedings. Firstly, that the right to sue does not survive in such proceeding. Secondly the said rule applies to "suits" within the meaning of the said expression under the Code of Civil Procedure and not to proceedings like those for grant of probate. Thirdly, Section 226 read with section 222 of the said Act clearly indicates that the proceeding would abate on the death of all the executors. Being so, in probate proceedings, the provisions of Order XXII Rule 4A of the Code of Civil Procedure are not attracted."
12.In view thereof, the applicants have to seek letters of administration in respect of the estate left by the beneficiary/legatee Sh. Subhash Chand Goyal. The application is therefore dismissed. In a result, Application dismissed 8/9 Subhash Chand Goyal Vs. State & Ors. PC No. 18/11 the present proceedings stands abated.
13.File be consigned to Record Room.
Announced in the open court (Manish Yaduvanshi)
on 02.06.2014 (J) ADJ06(Central)Delhi
Application dismissed 9/9