Delhi High Court - Orders
Shiv Hazari vs State & Ors on 17 May, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 89/2011 & I.A. 1530/2021.
SHIV HAZARI ..... Petitioner
Through: None.
versus
STATE & ORS. ..... Respondents
Through: Ms. Kshirja Agarwal, Advocate for
Respondents No. 3 & 4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 17.05.2022 I.A. No. 1529/2021 (u/Section 232 of the Indian Succession Act, 1925 r/w Section 151 of the Code of Civil Procedure, 1908, for grant of letter of administration for the second floor with roof rights for property bearing no. F-1, Jangpura Extension, New Delhi)
1. The Applicants pray for grant of Letters of Administration of the Will in view of the demise of the Executor - in whose favour the probate was granted vide Judgment dated 27th May, 2013.
2. For the afore-noted relief, Applicants have invoked Section 232 of the Indian Succession Act, 1925, which reads as follows:
"232. Grant of administration of 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 Signature Not Verified Digitally Signed By:SAPNA SETHI TEST.CAS. 89/2011 Page 1 of 4 Signing Date:20.05.2022 10:14:18
(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a 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."
3. Late Mr. Shiv Hazari - the Petitioner herein - was the named executor of the Will dated 4th December, 2008, under which, the Applicants are joint beneficiaries. The other near relations of the deceased testator had given no objection to the grant of probate and the same was granted vide judgment dated 27th May 2013 in the following terms:
"10. Accordingly, the petition is allowed. Probate is ordered to be granted to the petitioner Mr. Shiv Hazari of the Will dated 4th December, 2008 of the deceased Mrs. Kamini Kaul earlier resident of F-1, Second Floor Jangpura Extension, New Delhi with a copy of the Will Ex. PW2/2 annexed, subject to complying with the formalities i.e. depositing the stamp paper of the requisite amount as per valuation done/to be done of the property and furnishing the requisite administration bond/security bond."
4. The executor unfortunately passed away on 27th February, 2019 after having proved the Will, but before he could administer the entire estate of the deceased. In these circumstances, a universal legatee can be admitted under Section 232(c) for grant of Letters of Administration with Will annexed in respect of the whole estate or so much thereof, as maybe unadministered. In the instant case, the Applicants jointly seek the Letters of Administration of the Will annexed in respect of the unadministered estate i.e., the Second Floor and Roof Rights of property bearing no. F-1, Jangpura Extension, New Delhi.
5. At this juncture, it must be noted that Section 232(c) also uses the words "maybe admitted to prove the Will" in relation to the legatees who may be admitted for the grant of Letters of Administration. On this aspect, counsel for the Applicants has drawn the Court's attention to a very old judgment rendered in the year 1941 by the Full Bench of the Oudh Chief Signature Not Verified Digitally Signed By:SAPNA SETHI TEST.CAS. 89/2011 Page 2 of 4 Signing Date:20.05.2022 10:14:18 Court, reported In Re: B. Lakhshmi Shanker and Anr.1 In the said case, although Section 232(c) was not directly in question, however the Court had the occasion to deal with the said provision and express an opinion on expression "maybe admitted to prove the Will" as found in sub-section (c) of Section 232 of the Act. Relevant portion of the said judgment reads as under:
"8. It has been suggested that the words "may be admitted to prove the will" in S. 232 cannot mean "be allowed to establish the will by evidence," but must have some other meaning, because the contingency referred to in clause (c) of that section is that "the executor dies after having proved the will" and therefore no further proof is necessary. But the words have also to be considered in connexion with the two previous contingencies referred to in cls. (a) and (b), in which it would certainly be necessary for the legatee to establish the validity of the will by evidence. No doubt where the will has already been proved by the executor it would not be necessary for the legatee to do more than produce the "probate" (as defined in the Act). It may also be that the words "to prove the will" mean more than merely to establish the validity of the will by evidence; they may mean "to do whatever may be necessary to obtain probate or letters of administration," as the case may be; but that would in most cases include establishing the will by evidence. So that it does not appear possible to hold that wherever these words are used they refer to a stage subsequent to the establishing of the validity of the will by evidence.
9. It has also been suggested that it would be anomalous if an executor who has disputed a will propounded by another executor is allowed subsequently to claim probate jointly with him, and yet be barred from asserting his right as executor under a will which has been successfully propounded by a legatee. But it is to be noted that in the former case the successful executor is not displaced by the unsuccessful executor; he merely becomes a joint executor with him, while if an executor who has disputed a will propounded by a legatee is allowed subsequently to obtain probate he ousts altogether the legatee, although the latter has won his case and the executor has lost it.
xx ... xx ... xx
11. It seems to have been held in England that the old practice was not abrogated by the statute and the Court is not itself concluded, but may permit a retraction of an executor's renunciation in a fit case.... It is fruitless to endeavour to interpret the rules relating to procedure under the Indian Act by reference to what has been decided with regard to another statute in England on different considerations even if the language of the two statutes had been the same.
12. We do not consider that we should read into the sections of the Indian Succession Act under consideration a construction which is at variance with the ordinary 1 AIR 1941 OUDH 293 Signature Not Verified Digitally Signed By:SAPNA SETHI TEST.CAS. 89/2011 Page 3 of 4 Signing Date:20.05.2022 10:14:18 meaning of the words used merely because there is a distinction in English law between a citation to propound and prove a will and a citation to take probate. We can find no such distinction in the Indian Act. We hold that the word "prove" in Ss. 231, 232 and 234 of that Act is used primarily in its ordinary meaning and we accordingly answer the question which has been referred to us in the affirmative."
6. In this case, the Will stands proved and this Court had already granted a probate in favour of the deceased executor. A copy thereof has been produced before this Court.
7. The Court is therefore satisfied that the Applicants can be admitted for the purpose of grant of Letters of Administration for the Will for which the probate has been granted, in respect of the unadministered estate i.e., the Second Floor and Roof Rights of property bearing no. F-1, Jangpura Extension, New Delhi.
8. The application is allowed.
9. Letters of Administration is granted jointly in the name of joint beneficiaries/ legatees in respect of the unadministered estate described above. The Registry is directed to draw up the Letters of Administration with Will dated 4th December, 2008 annexed thereto.
10. Applicants are exempted from furnishing any security bond in terms of the Judgment dated 27th May, 2013. The Applicants shall, however, file their personal administration bonds.
11. List before the Joint Registrar for completion of formalities for acceptance of administration bonds on 30th May, 2022.
SANJEEV NARULA, J MAY 17, 2022/as Signature Not Verified Digitally Signed By:SAPNA SETHI TEST.CAS. 89/2011 Page 4 of 4 Signing Date:20.05.2022 10:14:18