Patna High Court - Orders
Mostt. Sunaina Kuer vs Bikram @ Dipak And Ors on 16 August, 2019
Author: Vikash Jain
Bench: Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
TEST SUIT No.5 of 2015
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Mostt. Sunaina Kuer
... ... Petitioner/s
Versus
Bikram @ Dipak and Ors.
... ... Respondent/s
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Appearance :
For the I.A. applicants : Mr. Jitendra Kumar Verma, Advocate
Mr.Rewti Kant Raman, Advocate
For the Respondent/s : Mr.Rounak Kumar Singh "Pankaj",Advocate
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CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
41 16-08-2019I.A. No. 1377 of 2017 and I. A. No. 4420 of 2017 I.A. No. 1377 of 2017 has been filed for substitution of the legal heirs of Sunaina Kuer who died on 02.02.2017 and was the executrix of the Will executed by late Radhika Devi.
2. I. A. No. 4420 of 2017 has been filed by the legal heirs of the said Sunaina Kuer for a formal amendment in the plaint of this test suit, with a prayer for grant of letters of administration with a copy of the Will annexed in their favour, instead of probate, inasmuch as Sunaina Kuer who is now deceased was both an executrix as well as a legatee under the Will.
3. Mr. Jitendra Kumar Verma, learned counsel appearing on behalf of the applicants, submits that the legal heirs are entitled to be substituted in place of the deceased sole plaintiff Sunaina Kuer. It is stated that the said Sunaina Kuer was not merely an executrix appointed under the Will of late Radhika Devi, but was also the sole legatee under the Will. As such, there would be no legal bar in substituting the applicants who are the legal heirs of Sunaina Kuer, the sole plaintiff, in her place as her heirs are entitled Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 2/14 to an interest in the property upon her death. In this view of the matter, Sunaina Kuer's heirs are entitled to grant of letters of administration with a copy of the Will annexed in their favour by a formal amendment in the prayer for the purpose under the provisions of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').
Learned counsel further submits that an executor of a Will per se does not have a personal interest in the estate of the deceased as he acts only in the interest of the legatee/legatees under the Will. However, the position would be different where he acts in a dual capacity as both executor as well as legatee. In such a case, the doctrine of 'actio personalis moritur cum persona' does not apply as he, as legatee, has an interest in the property in his own right. His heirs are therefore legally competent to continue the proceeding after his death by making a formal modification in the prayer for grant of probate to one for grant of letters of administration with a copy of the Will annexed.
Strong reliance has been placed upon a recent decision of the Hon'ble Supreme Court in Vatsala Srinivasan vs. Shyamala Raghunathan, (2016) 13 SCC 253, approving a decision of the Hon'ble Bombay High Court in Smt. Vatsala Srinivasan vs. Narisimha Raghunathan and Anr., AIR 2011 Bombay 76. Counsel has further relied on a judgment of this Court in Ramjee Pandit & Ors. vs. Dharamdeo Pandit & Anr., 2008(1) PLJR 98, the facts whereof are more akin to those of the present case.
4. It is further submitted that the line of decisions taking Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 3/14 the view that a suit abates upon death of an executor and his/her legal heirs cannot be substituted, are distinguishable on facts, inasmuch as those cases did not involve an executor having rights of a legatee under the Will and the executor was merely acting in the interest of other legatees, unlike as in the present case.
5. By way of elaboration, learned counsel has referred to more than a century-old decision of a Division Bench of this Court in Bihari Lal Mahton Tatak Gayawal vs. Ganga Dai Tatkain and others, AIR 1917 Patna 209, a case with as many as six executors appointed under the Will. However, none of the executors approached this Court for grant of probate, rather an application for grant of probate was filed by the legatee. The suit was tried and the trial court dismissed it on the ground that the applicant was not an executor but a legatee under the Will and could not be granted probate. An oral prayer was made in appeal for converting the prayer to one for grant of letters of administration, but considering the stage of the case, the prayer was denied.
In Mt. Phekni vs. Mt. Manki, AIR 1930 Patna 618, a legatee applied for letters of administration, but the suit was dismissed on the ground that the genuineness of the Will was not proved. An appeal was filed against the dismissal but the legatee died during pendency of the appeal. While allowing the prayer by the legal heirs of the deceased legatee that they be substituted in his place, it was reiterated that an executor's right to obtain probate does not carry to his heirs, but the provisions for substitution of legal heirs of a legatee are not so stringent and the legal heirs would have a right to Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 4/14 continue the proceeding for grant of letters of administration.
Learned counsel submits that based on the observations in the aforesaid two judgments, various subsequent decisions of this Court have taken the consistent view that the legal heirs of a deceased executor do not have a right to be substituted and the suit would abate. This principle however does not militate against the proposition being advanced in the present case, based on the distinct facts obtaining herein.
6. Learned counsel for the defendant nos. 1 to 7 have opposed the prayer of the applicants to be substituted, submitting that heirs of an executor cannot be substituted nor can the request for an amendment for grant of letters of administration be allowed. It is well settled that probate under Section 222 of the Act shall be granted only to an executor appointed under the Will, and the proceeding for grant of probate ends with death of the executor. It is submitted that the amendment sought by the applicants is such that it would change the nature of the suit itself, and thus cannot be granted.
Moreover, the applicants have no locus standi and cannot claim to be legatees till such time that the Will is proved and cannot therefore apply for letters of administration at this stage.
7. Having heard the parties and upon careful consideration of the materials on record, I am in agreement with the submissions made on behalf of the I.A. applicants.
8. In Smt. Vatsala Srinivasan vs. Narisimha Raghunathan and Anr., AIR 2011 Bombay 76, the Hon'ble Division Bench of the Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 5/14 Bombay High Court held that the learned Single Judge was not in error in granting the prayer of the sole legatee under the Will, seeking substitution in place of the deceased executor who had died during the pendency of the testamentary proceeding, and conversion of the proceeding formally into one for grant of letters of administration with the Will annexed. The principle of discouraging ever increasing litigation and multiplicity of proceeding was applied, observing as follows --
"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 legatee from seeking to continue the proceedings upon the death of the sole executor and as incidental thereto for seeking 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. ... There is no dispute about the position that in any event the legatee would have been entitled to institute separate proceedings independently for the grant of letters of administration. That right can well be Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 6/14 espoused by the legatee by seeking a continuation of the existing proceedings. It must be noted, that this right which is available is recognized with reference to a legatee 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 legatee 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."
9. The said judgment of the Bombay High Court was affirmed in Vatsala Srinivasan vs. Shyamala Raghunathan, (2016) 13 SCC 253, summarising the issue whether proceedings abate upon the death of the executor during the pendency of the test suit proceeding. It was noted that after the executor of the Will expired, the sole legatee had applied for grant of letters of administration with regard to the Will and had sought an amendment to the plaint and to the petition in the said proceedings. The view of the Division Bench of the Bombay High Court was approved in the following words -
"6. In view of law laid down in the aforestated judgments, the Division Bench observed that both the proceedings with regard to the probate and the letter of administration are of the same nature and therefore, the proceedings cannot abate. The essence of both the proceedings is the same and they relate to ascertainment Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 7/14 of genuineness and authenticity of the Will. By considering the aforestated judgments, the Division Bench has rightly confirmed the view expressed by the learned Single Judge.
7. We also agree with the view expressed by the Division Bench of the High Court, which has followed the judgment delivered in Govind M. Asrani [Govind M. Asrani v. Jairam Asrani, 1963 SCC OnLine Mad 46], as the logic behind dismissing the appeal, in our opinion, is just and proper. In any case, so as to establish the Will, the probate proceedings are required. The function of the executor is to execute the Will. The main purpose can be very well achieved by obtaining a letter of administration so that the property can be administered by the administrator as per Section 232 of the Succession Act, 1925. In the instant case, the said practice has been rightly followed.
8. We are also in agreement with the view expressed in the impugned judgment, which has also relied upon law laid down in Jadeja Pravinsinhji Anandsinhji [Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji Shivsinhji, 1961 SCC OnLine Guj 62] , in which it has been held: (SCC OnLine Guj paras 6 & 9) "6. ... An executor, in the capacity of an executor, has no personal interest in the estate of the deceased. ... The object of the executor in these proceedings is to get an adjudication not of any dispute in which he is personally interested but the object is to propound the Will of the deceased for the benefit of those who take an interest in the Will.
9. It is, therefore, clear that an executor in applying for probate is not fighting a personal action but fighting for the interests of all the legatees under the Will. Therefore Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 8/14 the action of an executor in applying for a probate is not in substance a personal action and as observed earlier by me the maxim actio personalis moritur cum persona could not apply to such a case. 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 must then be for letters of administration with the Will annexed."
10. The I.A. applicants have also appropriately relied upon the judgment of a learned Single Judge of this Court in Ramjee Pandit & Ors. vs. Dhramdeo Pandit & Anr., 2008(1) PLJR 98, in a Miscellaneous Appeal against rejection of the petition filed by the appellant therein for substitution in place of the deceased Ramashish Pandit who was one of two executors of the Will. In that case, a petition for probate was filed under Section 276 of the Act by the executors of the Will, namely, Ramashish Pandit and his brother Sudama Pandit, which had been executed by their grandmother in their favour. The said Sudama Pandit died issueless. Subsequently the other legatee, Ramashish Pandit, also died, and his legal heirs filed a petition for being substituted in his place as appellants. The substitution was allowed, having regard to the distinction between an executor who merely executes or performs the Will, and an executor who has also been bequeathed property under the Will and is thereby a legatee. In doing so, this Court held as follows -
"14. From the aforesaid provisions of law and case laws it is quite apparent that if an executor dies, his heirs cannot be substituted in a proceeding/suit for probate because the executor possesses a personal right only to execute the Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 9/14 Will, but where a legatee dies the matter would be different as his heirs would have an interest under the Will itself and they are competent persons to obtain letter of administration and there is nothing in law which stands in the way of the heirs of the legatee to apply for carrying on proceedings as persons interested in the Will. In a similar matter in case of Shambhu Prasad Agarwal and others vs. Bhola Ram Agarwal, (2000) 9 SCC 714, the Hon'ble Supreme Court has held as follows --
"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 a considerable time, we direct the lower court to decide the matter expeditiously. The appeal is allowed. There shall be no order as to costs."
15. In the instant case, although the original applicants/plaintiffs filed the probate case as executors, but in fact they were legatees and had an interest in the Will as the testator had bequeathed her property to them and hence after their deaths their heirs have inherited their interest under the Will and accordingly they are legally competent to obtain letter of administration in their favour with respect to the Will. In the said circumstances, in my view the appellants could not legally be substituted as heirs of executors, but they were definitely entitled to be substituted as heirs of the legatees and hence the appellant should have been substituted in place of the deceased applicants/plaintiffs not as executors but as legatees in the court below with permission to modify the reliefs by claiming issuance of letters of administration in place of probate for the ends of justice. Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 10/14 This is requirement of equity and justice as propounded by the aforesaid judicial pronouncements."
11. I am in agreement with the submission of the I.A. applicants that the facts in the cases of Bihari Lal Mahton Tatak Gayawal vs. Ganga Dai Tatkain and others, AIR 1917 Patna 209 as well as Mt. Phekni vs. Mt. Manki, AIR 1930 Patna 618 are quite distinguishable those of the present one, as in this case, the executrix Sunaina Kuer was acting in the dual capacity of executrix and legatee in her own right. Upon death of the executrix Sunaina Kuer who had an interest in the estate of the testatrix Late Radhika Devi as legatee, the I.A. applicants being the legal heirs of the executrix acquired right and interest therein after her death.
12. At this stage, I deem it proper to refer to a decision of a Division Bench of this Court in Rakesh Bihari Sharan vs. Alka Sharan, 2017 (3) PLJR 951 (LPA No. 1370 of 2014) wherein the aforesaid decision of the Hon'ble Supreme Court in Vatsala Srinivasan vs. Shyamala Raghunathan, (2016) 13 SCC 253 affirming the decision of the Bombay High Court in Smt. Vatsala Srinivasan vs. Narisimha Raghunathan and Anr., AIR 2011 Bombay 76 was cited. The Hon'ble Division Bench opined, as did the learned Single Judge in Test Suit No. 1 of 2010 from which the appeal arose, that in view of the well settled law as expounded in Mt. Phekni vs. Mt. Manki, AIR 1930 Patna 618 and Bihari Lal Mahton Tatak Gayawal vs. Ganga Dai Tatkain and others, AIR 1917 Patna 209 respectively, and also having regard to Section 222 of the Act providing for grant of probate only to an executor appointed by the Will, the heirs of the Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 11/14 executor, upon the latter's death, could not be substituted.
13. The Hon'ble Division Bench did not therefore allow conversion of the probate proceedings to one for grant of letters of administration, however, further observing that dismissal of the appellant's application for transposition would not come in the way of taking recourse to the appropriate provisions of the Act, by way of filing an application for grant of letters of administration. The decision has since been challenged in SLP (Civil) No. 27624 of 2017 (Rakesh Bihari Sharan vs. Alka Sharan & Others) and is pending, some of the respondents having already filed their counter affidavits.
14. Learned counsel for the opposite parties has also contended that the applicants have no locus standi and allowing the prayer of the I.A. applicants would change the nature of the suit itself. This submission is directly in the teeth of the Apex Court judgment affirming the view of the Hon'ble Bombay High Court in Vatsala Srinivasan's case (supra), which had expressed its unequivocal view that proceedings for grant of probate and for grant of letters of administration both are 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. They are of the same nature and the proceedings cannot abate.
On the larger question whether the right of a legatee is entitled to continue the probate proceeding after death of the executor, the same decision in Vatsala Srinivasan's case (supra) may Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 12/14 be referred, wherein it was opined that the law cannot be regarded as prohibiting a legatee from seeking to continue the proceedings with formal conversion to one for grant of letters of administration, and that a legatee's independent right to institute separate proceedings for the grant of letters of administration can well be espoused by seeking a continuation of the existing proceedings. While the legal heirs of a deceased sole executor cannot be brought on record, legatees under the Will are not prohibited from continuing the existing proceedings, and appointment of the administrator is merely a step towards proper administration of the estate of the deceased.
The Hon'ble Supreme Court also approved of the observations of the decision of the Gujarat High Court in Jadeja Pravinsinhji Anandsinhji vs. Jadeja Mangalsinhji Shivsinhji, 1961 SCC OnLine Guj 62, explaining that it is not a personal action of an executor in applying for probate as he merely acts for the interests of all the legatees under the Will. The maxim "actio personalis moritur cum persona," a latin expression meaning "a personal right of action dies with the person," was held to be not applicable. It was therefore ensured that failure or inability of an executor to perform his duty may not prejudice a legatee having a right under the Will.
This principle would apply a fortiori in the case of an executor who was also a legatee in the Will, as his right and interest in the estate as legatee would not be extinguished upon his death but would pass on to his legal heirs who may come on record to continue the proceedings with formal conversion. Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 13/14
15. In similar circumstances as in the present case, a Bench of this Court in Ramjee Pandit's case (supra) remitted the matter to the trial court "with a direction that the appellants should be substituted in the proceeding in place of the plaintiffs and permit them to amend their petition/plaint in the court below." As such, the right of the legal heirs of the deceased executor-cum- legatee for substitution as well as for converting the proceedings to one for grant of letters of administration was upheld.
16. In view of the aforesaid discussion and in the facts and circumstances of the case, I have no hesitation in holding that the I.A. applicants are entitled to be substituted in place of the deceased executrix Sunaina Kuer and to come on record to continue the proceedings as legal heirs of Sunaina Kuer in her capacity as a legatee under the Will of late Radhika Devi, as they have acquired right and interest in the estate of the testatrix after the death of the executrix and legatee Sunaina Kuer.
17. However, in view of the clear provisions of Section 222 of the Act, the I.A. applicants are not entitled to grant of probate. Instead, they are entitled for amendment of the prayer in the probate petition for converting the same to one for grant of letters of administration with a copy of the Will annexed.
18. Accordingly, I.A. No. 1377 of 2017 for substitution and I. A. No. 4420 of 2017 for formal conversion, both stand allowed.
Patna High Court TEST SUIT No.5 of 2015(41) dt.16-08-2019 14/14 (Vikash Jain, J) Chandran/-
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