Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

V.Prabha vs State on 13 July, 2022

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          $~26
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     TEST.CAS. 4/1987 & CCP(O) 26/2015
                                V.PRABHA                                           ..... Petitioner
                                                Through: Appearance not given.
                                                versus
                                STATE                                          ..... Respondent
                                                Through: Ms. Francesca Kapur & Ms. Pritha
                                                           Katesar, Advocates.
                                CORAM:
                                HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                                ORDER

% 13.07.2022 I.A. 3266/2021

1. The present application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') and Section 232 of the Indian Succession Act, 1925 (hereinafter referred to as 'Succession Act') has been filed on behalf of the petitioner seeking amendments in the petition.

2. It is submitted that the present petition was filed by the Executor for issue of Probate in respect of registered Will dated 04th November, 1985 executed by Late Raja Partap Bhan Prakash Singh in favour of (1) Smt. V Prabha (deceased) (2) Smt. Madhulikha Tripathi (3) Sh. Harish Tripathi (4) Capt. Vikram Kumar Sharma @ Capt. Vikram Sharma (5) Sh. Narottam Kumar in respect of movable and immovable properties.

3. The Executor/ petitioner Smt. V. Prabha expired on 15th September, 2020. After her death, her legal heirs who are also the beneficiaries under the Will, had moved an application under Order XXII Rule 3 of the CPC to be brought on record.

4. Section 232 of the Succession Act clearly enumerates for Grant of Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:44:31 Letter of Administration in favour of the legatees/beneficiaries after the death or incapability of the Executor. On account of the substitution of the legal heirs, technical amendments/ modifications are sought to convert it into a suit for Grant of Letter of Administration under Section 278 of the Succession Act in favour of the beneficiaries.

5. A prayer is therefore made that the amendments may be allowed in the Memo of Parties, Cause Title, Paras 1, 5, 11, 12, 15 and Prayer clause for making the necessary amendments. Learned counsel for the petitioner has relied on Vatsala Srinivasan v. Shyamala Raghunathan (2016) 13 SCC 253 and Shambhu Prasad Agarwal v. Bhola Ram Agarwal, 2000 (9) SCC 714 in support of his assertions.

6. The respondents in their reply have submitted that the probate proceedings pending in this Court cannot be continued on the passing away of the Executor, as per Section 222 of the Succession Act. The right of the Executor is personal and on his demise, his legal heirs cannot be made a party. All the averments in the application are denied and it is submitted that all the objections taken in the Written Statement may be read as a part of this application. It is thus submitted that the application is liable to be dismissed.

7. Submissions heard.

8. A petition for Grant of Probate in respect of the last Will executed by late Raja Pratap Bhan Praksh Singh, Son of Shri Pratap Bahadur Singh was filed by Smt. V. Prabha seeking probate of the last Will dated 04.11.1985 registered on 05.11.1985 of the testator- Raja Pratap Bhan Praksh. It was mentioned in the petition that there were 5 beneficiaries in all which included the petitioner- Smt. V. Prabha, and her daughter and son namely, Smt. Madhulika Tripathi and Captain Vikram Kumar Sharma.

9. Furthermore, the Will appointed Smt. V. Prabha as the sole Executor of the Will. Smt. V. Prabha (since deceased) thus filed the petition for grant of Probate in respect of the Will dated 04.11.1985. Smt. V.Prabha during the pendency of this petition, has died on 23.10.2020. An application under Order XXII Rule 3 was filed by her legal heirs namely- Smt. Madhulika Tripathi and Captain Vikram Kumar Sharma were also the named beneficiaries under the Will. They have been substituted in place of the original petitioner-V.Prabha vide Order dated 21.01.2021.

10. The petitioner by way of the present application has sought the corresponding amendments in the paragraphs of the petition and in the prayer paragraphs to seek Letter of Administration in place of Probate since the sole Executor-Smt. V. Prabha has expired. The sole argument opposing amendments is that the Executor has a personal right which does not devolve on the legal heirs on the demise of the Executor and thus the amendments cannot be allowed.

11. This aspect was considered by the Supreme Court in its decision reported in Shambhu Prasad Agarwal and others vs. Bhola Ram Agarwal (2000) 9 SCC 714. It was observed that though it is true when an Executor dies, his heirs cannot be substituted because the executor possessed a personal right, but this is not applicable where the heirs of a Legatee apply for issue of Letters of Administration. In case of demise of Executor, there is nothing which prevents the Legatees to be substituted and to seek the relief of Letter of Administration by amending the petition.

12. In Govind M. Asrani vs. Jairam Asrani (1963) SCC OnLine Mad. 46, a reference was made to Muthuram vs. Alliance Book Co. A.I.R. 1929 Lah. 546 wherein it was observed that where a Will has to be proved by any Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:44:31 person other than the Executor, application for the grant of Letter of Administration with the will annexed, has to be made whether the Executor applies for Probate or the Legatees seek grant of Letter of Administration in respect of the Will, the question to be decided will be the same namely, "whether the Will is true?", "whether it was executed in accordance with the law?", "whether the testator had capacity to make the Will?", and "whether no fraud or other infirmity was attending the execution of the document?". It is also a well accepted rule that whether it be an Executor or Administrator, the right or interest possessed in the property of the testator is the same. In essence, a Probate is nothing more than a copy of the Will granted to an Executor appointed under it, certified under the seal of the Court. Letter of Administration with the Will annexed is granted in cases where no Executor is appointed or the appointment of the Executor fails, but is also fulfils the same purpose. The form of probate is no doubt different from the Letter of Administration with the Will annexed and there is also a difference in procedure regarding necessity to take security, but it cannot be denied that an adjudication in an application or suit for obtaining Probate or Letters of Administration will be binding on all the persons interested in the estate of the deceased testator.

13. It was held that though impleading the legatees in place of deceased executor would involve alteration of the petition which was originally filed for issue of Probate into one for grant of Letter of Administration, but this technicality does not affect the substance of the matter to be decided in the case. It was thus, held that there is no bar under the Law to permit the Legatees to be substituted in case of demise of the sole Executor.

14. In Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji Shivsinhji Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:44:31 and others 1961 SCC OnLine Guj. 62 it was held that the object of the Executor in the 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. The action of an Executor in applying for a Probate is not a personal action and the maxim "action personalis moritur cum personal" would not apply in such cases. Where the Executor fails in its duties, any of those whom he represents are entitled to intervene and carry on the proceedings with a formal modification and the prayer must then be for Letters of Administration with the Will annexed.

15. The apex Court in Vatsala Srinivasan (Supra) made a reference to Govind M. Asrani (Supra) and Jadeja Pravinsinhji Anandsinhji (Supra) and held that the amendment to the plaint to convert it from Probate to Letter of Administration with Will annexed cannot be declined merely on the ground that on the demise of the Executor the proceedings have abated or that it cannot be continued. It was thus held that on demise of the Executor, the legatees can be substituted and with appropriate amendments be allowed to continue with the proceedings.

16. The law as propounded in abovementioned various judgments is consistent that on demise of an Executor, the legatees/beneficiaries can be substituted to continue the proceedings with requisite amendment seeking Letter of Administration with Will.

17. In the present case, though Smt. V. Prabha had been appointed as the sole Executor but she was also a beneficiary. Likewise Smt. Madhulika Tripathi and Captain Vikram Kumar Sharma who have already been allowed to be substituted as petitioners in place of Smt. V. Prabha, are also the Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:44:31 legatees/beneficiaries under the Will.

18. Having been impleaded as the petitioners, the requisite amendments in the petition are mandatorily required to be carried out. The proposed amendments in the body of the petition as well as in the prayer are accordingly, allowed.

19. The amendment in application is accordingly allowed. The proposed amended plaint is taken on record as the amended plaint. Written Statement to the amended plaint be filed within 4 weeks with a replication, if any, within 2 weeks thereafter.

20. Be listed before learned Joint Registrar on 16.08.2022 for completion of pleadings.

TEST.CAS. 4/1987 & CCP(O) 26/2015 List for amended issues if any/ evidence on 20th September, 2022.

NEENA BANSAL KRISHNA, J JULY 13, 2022/PA Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:44:31