Calcutta High Court
Advocates For The vs Bhola Ram Agarwal) on 4 July, 2023
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-3
ORDER SHEET
IA No.GA 1 of 2023
In
PLA 15 of 2022
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
ORIGINAL SIDE
IN THE GOODS OF :
DR. NIRENDRA LAL BHATTACHARYA, DECEASED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 4th July, 2023.
Mr. Udaynarayan Betal, Mr. Partha Sarathi Mondal, Advocates for the petitioner.
The Court : This is an application for substitution of the executor on his death during the pendency of the application for grant of probate being PLA 15 of 2022. The testator Dr. Nirendra Lal Bhattacharya is said to have left behind his last Will and Testament dated 23rd July, 1993 appointing Birendra Lal Aich as the executor in terms of Clause 5 of the said Will. Clause 5 of the Will dated 23rd July, 1993 reads as follows :
"5. I do hereby appoint Sri Birendra Lal Aich, Son of Late Nutan Chandra Aich, by occupation Business, by Nationality - Indian, by faith Hindu and residing at 55, DD Khanna Road, Calcutta - 700054, permanent residing at Shib Mandir, Sastri Jee Road, Nabapally, Barasat (M), P.O.Nabapally, P.S. Barasat, District 24 Parganas North as the Executor in respect of this Will only, who will obtain necessary probate from: the competent court of Law failing which and/or in case 2 of early demise of Sri Birendra Lal Aich before taking of the order of probate of the instant Will from the competent court of Law, either/any of his sons namely Sri Biplab Aich or Sri Surajit Aich will be the Executor in respect of this WILL, who will obtain necessary probate from the competent Court of Law.
It is submitted on behalf of the applicant that Clause 5 of the Will provides for either of the sons of Birendra Lal Aich to act as an executor to obtain probate in case Birendra Lal Aich fails and/or in case of his early demise. Birendra Lal Aich, according to the applicant, exercised his right as an executor but unfortunately before obtaining the probate had died. As Clause 5 of the Will includes in its fold either of the two sons of Birendra Lal Aich to act as an executor in his absence, either of the two sons is entitled to act as an executor and obtain the grant.
In this application, Surajit Aich, one of the sons of Birendra Lal Aich, since deceased, has come forward to have himself substituted in the place and stead of his father to act as an executor. The other son, namely, Biplab Aich appears to have consented in favour of Surajit Aich to act as an executor.
The Learned Advocate for the applicant has relied upon the provisions of Sections 211 and 312 of the Indian Succession Act, 1925 (hereinafter referred to as the 1925 Act) in support of his contention to substitute the applicant in place of the deceased executor. The said Learned Advocate has also relied upon two judgments one delivered by a Division Bench on 5th January, 2023 (In the goods of Smt. Jharna Law, deceased) and the other by a Single Bench reported in 2005 (2) ICC 701 (Cal) : 2004 SCC Online 3 Cal 578.
The provisions of Section 211 and 312 of the 1925 Act as also the two judgments in Smt. Jharna Law (supra) and 2005 (2) ICC 701 are not applicable to the facts of the case. Section 211 has limited application in case of a Will left behind by a Hindu as in this case. Section 312 of the 1925 Act takes into its fold a case of more than one executor named in the Will which is also not the case over here.
The position on the death of the executor has been very clearly set out by a Single judgment of this Court reported in 2010 (3) Cur CC 299 (In the goods of Priyambada Devi Birla) which is almost in the same line as in 2000 (9) SCC 714 (Shambhu Prasad Agarwal vs. Bhola Ram Agarwal).
Executorship is a private right and there can be no substitution in case of death of the executor as held in Shambhu Prasad Agarwal (supra). The ordinary process is that any legatee or if there are more can come forward to seek conversion of the application for grant of probate into an application for grant of letters of administration and can proceed with such application. However, in the instant case, since the Will provides that any of the sons of Birendra Lal Aich shall in his absence act as an executor, two courses are open. The first course is to permit Surajit Aich, the applicant and one of the sons of Birendra Lal Aich, to be substituted as an executor in his place and stead by honouring the last wish of the testator without going into strict interpretation of law that the proceedings abate on the death of the executor. The other course which is open is to convert this application into an application for letters of administration and permit the applicant to proceed with such letters of administration.4
Keeping in mind that the prime concern of a probate court is to honour the last desire of the testator/testatrix, I am inclined to follow the first course, however, with a caveat that the applicant, Surajit Aich will be substituted in the place and stead of his father but the Will being the subject matter of the application has to be proved in solemn form.
In the aforesaid facts and circumstances, the application being GA 1 of 2023 filed in PLA 15 of 2022 is allowed by directing the department to carry out the amendment as shown in red ink in a copy of the application for grant of probate being PLA 15 of 2022 which is annexed as Annexure-H to this application. The affidavit of assets and other cause papers which it is necessary to incorporate the amendment shall also be amended accordingly. The amendment has to be carried out within a period of three weeks from date. The applicant shall render all co-operation to the department for carrying out the amendment. After the amendment is carried out, the applicant shall be at liberty to re-verify the application for grant of probate and reaffirm the affidavit of assets. The persons, if any, have given consent affidavit or the attesting witness, if any have filed affidavit to prove the Will, will be entitled to file fresh affidavit on the amended cause title within a period of one month from the date of the amendment being carried out. The department shall accept such affidavits, if filed, within the time provided for the purpose of scrutinising the application for grant of probate being PLA 15 of 2022. After the scrutiny is completed, the applicant/petitioner shall be at liberty to pray for inclusion of the matter in the list for the Will being proved in solemn form.
There is an apparent mistake as to the date of death of the executor in 5 the Master's Summons. The correct date of death has been indicated in the affidavit filed in GA 1 of 2023 to which the death certificate is also annexed. The department shall ignore the date of death in the Master's Summons and take into account the date of death of the executor as provided in the affidavit in support of the Master's Summons.
GA 1 of 2023 is, accordingly, disposed of.
(ARINDAM MUKHERJEE, J.) pa