SMT. KUMKUM DEVI  Vs THE STATE (NCT OF DELHI) & ORS. -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th January, 2024
Pronounced on:31st January, 2024

+ TEST.CAS. 60/2018
SMT. KUMKUM DEVI ….. Petitioner
Through: Mr.Vikram Singh Nayal, Mr.Sush Kumar, Mr.Mukesh Kumar, Mr.Prince Kumar, Mr.Rohit Singh and Mr.Chandan Jha, Advocates

versus

1. THE STATE (NCT OF DELHI) …..Respondents
2. SMT. MADHURI DEVI
(Deceased Daughter Late Shri Ram Prasad Singh)
Through her LRS:-

(i) PARTIBHA SINGH @GURIA
W/O Shri Mahesh Singh,
Durgapur-2, Banik More,
Nababedi Basti,
P.O.: Durgapur,
District (Bardhaman), West Bengal-713201.

(ii) SONI DEVI,
W/O Bharat Kumar Singh,
C/O Dharmveer Rathi,
House No.319, Gali No. 1,
Shiv Colony, Near Hanuman Mandir,
Rewari, Haryana-123401

(iii) VIKAS KUMAR,
PUI Oxford Caps Presidency,
Hostel Opposite Side Of The Reva,
University, Karantiveera Sangolli Rayanna Nagar,
Kattigenahalli, Yelahanka Neer Reva University
Bangaluru, Karnataka-560064
Mobile NO. 08825133237.

(iv) RINKI KUMARI,
D/O Rajender Singh,
C/O Arvind Master,
Sewa Nivash (Near Indu Wala Press),
Bhagat Singh Chowk,
Rajender Nagar, District Nawada,
Bihar-805110.
Mobile No.9471070988, 9931054277

3. SMT. KAKULI DEVI,
W/O Shri Sudhir Singh,
D/O Late Ram Prasad Singh,
R/O Village Donipar, P.O. Chhata
P.S. Masauri, District Patna (Bihar)

4. SMT. SHOBHA DEVI,
W/O Shri Dharam Rah Singh,
R/O Late Ram Prasad Singh,
R/O Village Dhelabad, Distt. Rohtas (Sasaram)
P.O. Amjhor (Bihar).

5. SHIV KUMAR ALMAST,
S/O Late Ram Prasad Singh,
R/O Village Akona & Po Akna,
P.S. Masauri.
District Patna (Bihar)
Through: Appearance not given.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The petitioner, Smt. Kumkum Devi, has filed the present petition under Section 276 of the Indian Succession Act, 1923 for grant of Probate in respect of Will dated 08.01.2015 executed by her father late Shri Ram Prasad Singh.
2. The petitioner has stated that the deceased Shri Ram Prasad Singh was a resident of C-34, GF, Vikas Nagar, Part II, Uttam Nagar New Delhi 110059. He was working as a clerk at the Plant protection and Agricultural Department, Bhagalpur, Bihar, from where he retired in the year 2002. Thereafter, he resided with his wife Smt. Raj Malti Devi, daughters (petitioner and respondent Nos. 2 to 4) and son (respondent No. 5). His wife, Smt. Raj Malti Devi, predeceased him in 2012.
3. It is submitted in the petition that Late Shri Ram Prasad Singh had filed a Writ Petition bearing number CWJC No. 1979 of 2007 before the Patna High Court, as his employer had illegally withheld salary arrears and retiral dues. The Petition was disposed vide Order dated 12.08.2011 directing the Agricultural Department to reconsider the Show Cause Notice issued by the deceased and pass a fresh order on the issue. However, the Department failed to comply with the aforesaid Order. Subsequently, Shri Ram Prasad Singh had thereafter expired on 20.03.2015 and he was survived by four daughters and a son.
4. It is further submitted that the deceased had executed his last and only Will dated 08.01.2015 in Hindi language duly notarized vide Reg. No. 819 bearing E-Stamp no. IN-DL55126532126357N wherein he had bequeathed the retiral benefits in favour of the petitioner. The relevant portion of the Will from its English typed copy has been produced below:
�That I am Ram Prasad Singh working as a Clerk in the Plant Protection, Agriculture Department Bhagalpur, and I was retired in the year 2002 from the aforesaid department and thereafter I have been residing at the present address with my daughter Kumkum Devi.
*** *** ***
That the life is evanescent and when the death comes so, I of my own freewill, without any pressure, fear and greed, execute this Will in favour of my daughter that after my demise, my aforesaid retiral benefits by way of amounts or by way of pension or other benefits to be received by me from the aforesaid department, shall only go to my daughter Kumkum Devi. None else shall have any share in the benefits in any manner.�

5. In view of the rights bequeathed under the Will dated 08.01.2015, the petitioner filed a Contempt Petition bearing number M.J.C No. 1655 of 2015 against the Agricultural Department due to their failure to comply with Order dated 12.08.2011. The Contempt Petition was decided vide Order dated 18.08.2015 wherein it was observed that the despite directions issued by the Patna High Court, the Agriculture Department failed to conclude the departmental enquiry. Since the employee of the Department had expired, the court had ordered them to not complete the enquiry and pay the arrears of salary until the date of superannuation i.e. 30.01.2002 and pensionary dues thereafter to the petitioner (daughter and sole heir of the deceased) within three weeks.
6. A prayer is, therefore, made that a Probate in respect of the last Will dated 08.01.2015 of Late Shri Ram Prasad Singh may be granted.
7. Citations were published in daily newspaper ‘The Statesman’ Delhi, (English Newspaper) on 09.01.2019 and ‘Veer Arjun’ Delhi, (Hindi Newspaper), on the same date.
8. The other legal heirs of the deceased Shri Ram Prasad Singh, Respondent Nos. 2 to 4, have not appeared before this court despite service. Also, no third person has filed objections to the petition pursuant to the citation.
9. The Valuation Report by the Agriculture Department Ex PW/9 whereby a valuation of Rs. 16,16,765.001(Rupees Sixteen Lakh Sixteen Thousand Seven Hundred Sixty-Five only) was done. Rs. 3,13,765.80/- (Rupees Three Lakh Thirteen Thousand Seven Hundred Sixty-Five and Eighty Paise only) had already been received by Late Sh. Ram Prasad Singh, while the amount of Rs. 13,02,999.201- (Rupees Thirteen Lakh Two Thousand Nine Hundred Ninety-Nine and Twenty Paise only), remained pending.
10. PW1 Shri Amarjeet Singh the attesting witness to the Will Ex PW2/5, tendered his affidavit as Ex. PW1/A to prove the execution of original Will of Late Shri Ram Prasad.
11. PW2 Kumkum Devi , the petitioner tendered her evidence by way of affidavit. She produced her Adhaar card Ex PW2/1, Copy of death certificate dated 21.04.2015 of the deceased Ex PW2/2, detailed list of near relatives of the deceased Ex PW2/3, List of all arrears and retirement benefits that the deceased is entitled to Ex PW2/4, Will Ex PW2/5, Copy of order dated 12.08.2011 passed by Hon’ble High Court of Patna in WJC No. 1979/2007 Ex PW2/6, Copy of order dated. 18.08.2015 passed by Hon’ble High Court Patna in MJC No. 1655/2015 in WJ/1979/2007 Ex PW2/7, Copy of order dated. 07.03.2018 passed by High Court Patna in LPA 1582/2015 in Case 1655/2015 PW2/8, and the Valuation Report by Dept. of Agriculture is Ex PW2/9.
12. Submissions heard.
13. Section 63(c) of the Indian Succession Act, 1925 provides for the mode for execution of Will. It states that it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.
14. PW-2 Ms. KumKum, the petitioner had deposed that the Will dated 8.01.2015 Ex. PW2/5 was executed by her father Sh. Shri Ram Prasad which bears his signature and thumb impression, which he had put in the presence of two attesting witnesses. She also deposed that her father was of sound mind and in good health at the time of execution of his last Will.
15. Section 68 of Indian Evidence Act, 1963 further provides the mode of proof of the Will and requires that at least one attesting witness to the Will must be examined.
16. PW-1 Shri Amarjeet Singh, attesting witness to the Will Ex PW2/5 was examined who deposed that deceased Ram Prasad Singh had put his signature and thumb impression on the said Will in the presence of the deponent and the other attesting witness Mrs. Arti, W/O Sh. Sanjay Kumar, R/O 1987, Pilanji Kotla, Ramesh Nagar, West Delhi, Delhi-110015. He further deposed that at the time of signing the WILL, the deceased Sh. Ram Prasad Singh was having full knowledge and understanding of the contents of the said Will. The deceased had read and understood the contents of his said Will and had admitted the correctness of the contents of the Will and that it was the last Will and testament of the deceased.
17. The petition is not contested by the respondent Nos. 2 to 5 who are the other legal heirs of the deceased. Also, no third person has filed any objection pursuant to the citation in the newspapers.
18. Pertinently. the petitioner is only a legatee and not the executor of the Will dated 08.01.2015. Yet, a prayer has been made for the grant of a Probate instead of a Letter of Administration.
19. According to Section 222(1) of the Indian Succession Act, 1925 a probate shall be granted only to an executor appointed by the will.
20. Further, Section 232 of the Indian Succession Act, 1925 provides the remedy available to the legatee if no executor is appointed or the one named in the will expires, becomes incapable or refuses to act. The provisions reads as under:
�232. Grant of administration to 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
(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased,
an 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.�

21. Albeit the present petition has not been contested by the respondents, it is concomitant to determine if a probate petition filed by a legatee in the absence of an executor named in the Will by the testator, is maintainable under law.
22. The Division Bench of the Madras High Court in Govind M Asrani vs Jairam Asrani, 1963 SCC OnLine Mad 46 held that when the executor to a will expires during the pendency of the probate proceedings, there can be no objection to convert a petition for probate into a proceeding for grant of a letter of administration on an application by a legatee.
23. In judgement of the Apex Court in Vatsala Srinivasan vs Shyamala Raghunathan, (2016) 13 SCC 253, the executor who had filed the probate petition had expired when the proceedings were pending and thereafter the respondent, who was the legatee under the will, applied for the grant of a letter of administration in the same proceedings. While addressing the question of whether the proceedings stood abated on the demise of the executor, it was held that the essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the Will. 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 Indian Succession Act, 1925.�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 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�.
24. The Madras High Court applied the findings in Vatsala Srinivasan (supra), in Madhy vs Vairamanai, CRP No 3381/2021 decided on 27.10.2022 while deciding the maintainability of a probate petition under Order VII Rule 11 of the Code of Civil Procedure, 1906 on the objection that the same can only be filed by the executor named in the Will and not by a beneficiary. It was observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
25. It is therefore observed that the present petition seeking for a Probate is hereby treated as a petition for Letter of Administration.
26. The unchallenged and unrebutted testimony of PW2 petitioner who is supported by the testimony of the attesting witness namely PW1 Shri Amarjeet Singh, proves the genuineness and the authenticity of the Will dated 08.01.2015 Ex PW2/5 of late Ram Prasad, which is held to be proved.
27. A Letter of Administration in respect of the Will dated 08.01.2015 is hereby granted in favour of the Petitioner, subject to payment of requisite court fees.
28. Petitioner shall furnish Administrative Bond with one Surety to the satisfaction of the learned Joint Registrar General of this court.
29. The valuation of both properties filed by the Agriculture Department concerned, is on record.
30. On payment of the requisite court fee and other formalities noted above, the Letter of Administration in respect of the Will dated 08.01.2015 shall be issued by the Registry.
31. The petition stands allowed and accordingly disposed of in the above terms.
32. List before the Joint Registrar on 15.02.2024 for depositing of the bond.

(NEENA BANSAL KRISHNA)
JUDGE

JANUARY 31, 2024/Ek

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