Madras High Court
Madhy vs Vairamanai on 27 October, 2022
1 C.R.P.(NPD)No.3381 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:27.10.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
C.R.P.(PD)No.3381 of 2022
in CMP.No.17967 of 2022
Madhy
...Petitioner/plaintiff
Versus
1.Vairamanai
2.Subramanian
3.Abinaya
4.Anuja
5.Adhavan
6.Poounkuzhali
...Respondents/defendants
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, praying to set aside the order passed by the Principal
District Judge, Pondicherry, dated 08.09.2022 passed in I.A.No.136 of 2022
in O.P.No.44 of 2020.
For Petitioner :Mr.V.Vasantha Kumar
https://www.mhc.tn.gov.in/judis
2 C.R.P.(NPD)No.3381 of 2022
O R D E R
The Civil Revision Petition is filed challenging the order passed by the Court below, dismissing the petition filed by the revision petitioner, seeking to reject the probate Original Petition filed by the first respondent.
2. The first respondent herein filed original petition in O.P.No.44 of 2020, seeking grant of Probate of the Will, dated 25.06.2009, allegedly executed by his father Selvarassou @ Puduvai Selvam. The petitioner herein, who was arrayed as 6th respondent in the Original Petition, filed the instant application in I.A.No.136 of 2022, seeking rejection of the Original Petition under Order VII Rule 11(d) r/w 151 of CPC on the ground that the Probate Original Petition was filed by the first respondent, who is the sole beneficiary under the Will was not maintainable. It was the case of the petitioner that the probate Original Petition under Section 276 of the Indian Succession Act, 1925, can be filed only by the executor named in the Will in view of Provision of Section 222 of Indian Succession Act. The Court below rejected the said contention of the revision petitioner by relying https://www.mhc.tn.gov.in/judis 3 C.R.P.(NPD)No.3381 of 2022 on the judgment rendered by Division Bench of Karnataka High Court that the sole beneficiary can apply for probate of Will since no executor had been appointed in the Will. Aggrieved by the said order, the petitioner has come up by way of this revision.
3. The learned counsel for the petitioner by taking this Court to provisions of Section 222 and 276 of Indian Succession Act, submits that only in cases where executor had been named in the Will, he is entitled to seek grant of Probate, in other cases where no executor is named in the Will, the legatee under the Will can only seek letters of administration. Therefore, it is the contention of the learned counsel for the petitioner that original petition seeking Probate is not maintainable and liable to be set aside.
4. I do not agree with the contention made by the learned counsel for the petitioner. The executor of the Will seeks grant of Probate not for his own benefit, but he acts for the benefit of the legatees of the Will.
https://www.mhc.tn.gov.in/judis 4 C.R.P.(NPD)No.3381 of 2022
5. The Hon'ble Apex Court of India in a decision reported in 2016 (13) SCC 253 in Vatsala Srinivasan vs. Shyamala Raghunathan, when a question arose, whether the Probate Original Petition filed by a executor Will abate on the death of executor or it can be continued by legatees under the Will. It was held that the proceedings for grant of Probate and letters of administration are of same nature and both the proceedings relate to assessment of genuineness and authenticity of Will. After referring to various judgments of the Supreme Court of India, it was held that the legatees in the Will can continue Probate proceedings and letters of administration can be granted, however, treating the prayer as the one for letters of administration. The relevant observations of the Apex Court is as follows:
(vi) In view of law laid down in the aforesaid judgments, the Division Bench observed that both the proceedings with regard to the Probate and the letters 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 of genuineness and authenticity of the Will (Emphasis Supplied). By considering the aforesaid judgments, the Division Bench has rightly confirmed the view expressed by the learned Single Judge.
https://www.mhc.tn.gov.in/judis 5 C.R.P.(NPD)No.3381 of 2022
(vii) We also agree with the view expressed by the Division Bench of this Court which was followed in the judgment delivered in 1963 SCC online Mad 46 in Govind M. Asrani Vs. Jairam Asrani and other, 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 executors 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. In the instant case, the said practice has been rightly followed.
(viii) We are also in agreement with the view expressed in the impugned judgment, which has also relied upon the law laid in Jadeja Pravinsinhji Anandsinhji vs. Jadeja Mangalsinhji Shivsinhji and Ors, AIR 1963 Gujarat 32 in which it has been held:
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 https://www.mhc.tn.gov.in/judis 6 C.R.P.(NPD)No.3381 of 2022 objects is to propound the Will of the deceased for the benefit of those who take a interest of the Will.
IX. It is, therefore, clear that the executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the Will. Therefore, 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.
6. In view of the authoritative pronouncement made by the Hon'ble Apex Court, the object for grant of Probate as well as letters of administration are one and the same. Both for the benefit of the legatee under the Will. Therefore, even though the first respondent herein prayed for grant of probate, having regard to the fact, he is the sole legatee under the Will, the Court can very well grant letters of administration instead of probate, in case, he succeeds in proving the validity and genuineness of the https://www.mhc.tn.gov.in/judis 7 C.R.P.(NPD)No.3381 of 2022 Will. Therefore, the order passed by the Court below, dismissing the petition to reject the Probate Original Petition, calls for no interference by this Court.
7. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
27.10.2022 Index: Yes/ No Speaking Order / Non-Speaking Order ub To The Principal District Judge, Pondicherry.
https://www.mhc.tn.gov.in/judis 8 C.R.P.(NPD)No.3381 of 2022 S.SOUNTHAR, J.
ub C.R.P(PD)No.3381 of 2022 27.10.2022 https://www.mhc.tn.gov.in/judis