Calcutta High Court (Appellete Side)
Delho Hembram vs Barku Tudu @ Dhudu Tudu on 19 March, 2015
Author: Harish Tandon
Bench: Harish Tandon
1
05 19.03.15 C.O. 206 of 2014
akd
Delho Hembram.
Vs.
Barku Tudu @ Dhudu Tudu.
--------
Ms. Shila Sarkar.
... for the petitioner.
Mr. Priyabrata Mukherjee, Mr. Murari Chakraborty.
... for the opposite party.
Admittedly an application for grant of probate was filed by the legatee before the District Judge, Malda, even when the executor appointed under the will is still alive. It further appears that an objection was raised by the caveator and the proceeding was converted into a contentious cause. The moment the matter reached the stage of trial, an application under Section 229 of the Indian Succession Act, 1925 read with Section 151 of the Code of Civil Procedure was taken out praying for an order to issue citation calling upon the executor to accept or renounce his executorship.
The Trial Court rejected the said application as it is mis-conceived and is filed with an intention to delay the disposal of the case.
It appears from the impugned order that the learned advocate for the petitioner was candid enough in his submission that there is incurable defects in the said probate proceeding, which cannot be cured under Section 229 of the Indian Succession Act.
Ms. Shila Sarkar, learned advocate for the 2 petitioner, submits that there is no embargo in converting the probate proceeding into a letters of administration under Section 229 of the said Act and places reliance upon a judgement of the Supreme Court in case of Sambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal reported in (2000) 9 SCC 714. She further submits that the Court should not have taken a hyper-technical approach and should not have been swayed by the submissions advanced on behalf of the petitioner.
It is no longer res-integra that the concession on law by the lawyer cannot bind the parties.
In case of Sambhu Prasad Agarwal (supra) the executor appointed under the will filed the probate proceeding, which was subsequently converted into a contentious cause. During the pendency of the said proceeding, the executor died and an application for amendment was taken out for converting the probate proceeding into a letters of administration. The Trial Court rejected the said application, which was affirmed by the High Court. The Apex Court held that there is no difficulty in converting a probate application into an application for issuance of letters of administration by allowing an amendment.
It would be apt to quote paragraph 5 of the said judgement, which runs thus:
"5. We find that it is not disputed that Matadin Agarwal was a legatee under the will. It is true that Matadin Agarwal ought to have applied for issue of letters of administration and 3 not for probate. However, this did not debar his heirs to get the probate petition amended. The trial court rejected both the applications of the appellants on the ground that since the probate petition filed by the legatee related to his personal right, therefore no right accrued to the appellants for their substitution in his place. This view, according to us, is not correct. Matadin Agarwal, as stated above, was a legatee and not an executor under the will. It is true that where an executor dies, his heirs cannot be substituted because the executor possessed personal right, but this is not applicable where the heirs of a legatee apply for issue of letters of administration. It is not disputed that today the appellants can file a petition for issue of letter of administration. Since considerable time has elapsed, we feel that the interest of justice demands that the proceedings should come to an end as early as possible and we should not dismiss this appeal merely n highly technical ground."
Section 222 of the Indian Succession Act, 1925 clearly stipulates that the probate shall be granted only to the executor appointed by the will. Such appointment may be expressed or can be reasonably ascertained from the said will.
Section 229 of the said Act postulates that when a person appointed an executor has not renounced the executorship, letters of administration shall not be 4 granted to any other person until a citation has been issued calling upon the executor to accept or renounce his executorship.
It is, therefore, clear that an application for probate can only be granted to an executor appointed under the will and unless the executor renounces, the legatee or the beneficiaries under the will has no right to claim the letters of administration of the said will. Section 229 of the said Act provides for issuance of citation upon the executor whether he has renounced the executorship or not and if the Court is satisfied that the executor has renounced such executation, there is no impediment in proceeding with the letters of administration at the instance of a legatee.
Though the application was captioned as an application for probate, this Court does not find any fetter in converting the same into the application for letters of administration, as the purpose and object in both the cases are one and identical.
The Apex Court in case of Sambhu Prasad Agarwal (supra) have laid down that a probate proceeding can be converted into a proceeding for letters of administration and, therefore, this Court find support in the aforesaid statement made in the preceding paragraph. Even if it is conceived that the application is not maintainable at the instance of the legatee, this Court does not find any fetter on the part of the legatee to abandon the said proceeding and to file an application seeking issuance of letters of administration stating that the appointed executor 5 has renounced the executorship. It will only give a new number and a year to the proceeding and the caveator will raise the same objection as has been raised in the probate proceeding and the Court shall convert the same into a contentious cause.
This Court, therefore, finds that if there is no impediment in converting a probate proceeding into a letters of administration, there is no justification in dismissing the said application at the stage, when this citation is sought against the appointed executor to ascertain whether he has renounced his executorship or not.
This Court, therefore, set aside the impugned order.
The application under Section 229 of the said Act filed by the petitioner in the Court below stands allowed.
The Probate Court is directed to issue citation on the appointed executor named therein and in the event, the said executor signifies his decision of renouncement, the Court shall proceed to decide the matter treating the said application to be an application for letters of administration.
However, in the event the executor is ready and willing to perform his obligation as an executor, the Probate Court would pass necessary order in accordance with law.
With these observations, the revisional application is disposed of.
There will be no order as to costs.
6(HARISH TANDON, J.)