ANOOP SINGH & ANR vs STATE & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th February, 2024
% Pronounced on:20thMarch, 2024

+ TEST.CAS. 18/2009

ANOOP SINGH & ANR ….. Petitioners
Through: Mr. Sanjeev Sindhwani, Sr. Advocate with Mr. Sanjay Dua, Advocate.

versus

STATE & ORS. ….. Respondents
Through: Mr. Harsh Kaushik and Mr. Harsh Prakash, Advocates for R-2 & R-3.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 19319/2022 (u/O VI Rule 17 r/w Section 151 of CPC, 1908)

1. By way of present application under Or. VI Rule 17 r/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”), the applicant/petitioners seek amendment of the Probate Petition.
2. It is submitted that the present Petition for grant of Probate of the Will dated 21.09.1998 of Shri Gurmit Singh, was filed by the petitioner No. 1/Anoop Singh (deceased), the erstwhile petitioner, who was the named sole Executor in the Will dated 21.09.1998.
3. The petitioner No. 2 Digvijai Singh was also impleaded being the son /beneficiary/legatee under the Will of the Testator, since he had admitted the execution of the Will dated 21.09.1998.
4. It is submitted that petitioner No. 1 Anoop Singh died on 02.12.2011 and left the Will dated 02.11.2011 bequeathing his entire estate in favour of his brother petitioner No. 2 Digvijai Singh. Application No. I.A. 3723/2012 under Order XXII Rule 3 of the CPC, 1908 was filed for deletion of the name of deceased petitioner No. 1Anoop Singh (Executor) from the array of parties and for continuation of the petition by the other petitioner No. 2 Digvijai Singh, who was the beneficiary under the Will. The Application No. I.A. 3723/2012 was not opposed by the respondents and was allowed vide Order dated 21.08.2012. The amended memo of parties was taken on record.
5. Thus, after the demise of the sole Executor, the petition was continued by the Petitioner/beneficiary and the evidence was recorded and concluded. The matter is now at the stage of final arguments.
6. It is submitted that in order to obviate any technical objections and pursuant to the Order dated 05.09.2022, the petitioner seeks amendment in the cause title to read as a Petition under Section 276 of the Indian Succession Act, 1925 for grant of Letter of Administration with the Will annexed in respect of the Will dated 21.09.1998 of Late Shri Gurmit Singh and to make consequential amendment in Paragraph-8 and the prayer clause to claim Relief of Letter of Administration with Will annexed in place of prayer for Probate.
7. It is submitted that the amendments have been necessitated because of the demise of the sole Executor named in the Will and Petition was allowed to be continued by the sole beneficiary. The amendment does not, in any manner, change the cause of action or the nature of proceedings and it is necessary for the effective adjudication of the present petition. The prayer is made that the amendment may consequently be allowed.
8. The Learned Counsel for the applicant/petitioner has relied upon A.K. Gupta and Sons vs. Damodar Valley Corporation, AIR 1967 SC 96, Vijay Agarwal and Ors.vs. Harinarayan G. Bajaj and Ors. MANU/MH/0885/2013, Preethi Swaminathan vs. Govt. of NCT of Delhi and Ors. MANU/DE/2526/2018, Pawan Puri vs. The State MANU/DE/3515/2022, Prem Prakash Dabral vs. State and Ors. MANU/DE/1654/2019, Simrit Singh vs. State of Delhi and Ors. MANU/DE/2796/2012, in support of his arguments.
9. The respondent No. 2/Kanwal Chaudri and the respondent No. 3/Karanraj in their Reply to the present application have asserted that the present application is totally misconceived and demonstrates a complete lack of bona fide on the part of the applicants/petitioners. Section 222 of the Indian Succession Act, 1925 clearly specifies that the probate can be granted only to an Executor appointed under the Will. The cause of action to seek probate of the Will is personal to the Executor and upon his demise, no right to sue survives. It is also claimed that if the amendment is allowed, it would change the entire nature of proceedings and, therefore, cannot be granted.
10. The proposed amendment is also barred by limitation as it has been filed beyond a period of three years from the date when the right accrued in favour of the petitioner. The petitioner No. 1/Anoop Singh, the sole Executor had expired on 02.12.2011 and the relief of Probate no longer survives and cannot be granted to any party including the beneficiary. Upon the demise of the Executor of the Will, in terms of Section 232(b) of the Indian Succession Act, 1925, a residuary legatee is entitled to prove the Will and to seek the Letter of Administration with the Will annexed. The right to seek the Letter of Administration of the Will dated 21.09.1998 had accrued on the applicants/petitioners on 02.12.2011 on the demise of the sole Executor. The present application has been filed only on 15.11.2022 i.e., almost after eight years of expiry of the limitation period of three years. The proposed amendment is hopelessly barred by limitation under Article 137 of the Limitation Act, 1963 and cannot be allowed.
11. To buttress the arguments advanced, the learned Counsel for the respondent has relied upon Harinarayan G. Bajaj and Another vs. Vijay Agarwal and Others 2012 (2) Mh. L.J., Satish Kumar Jain vs. State 2022 SCC OnLine Del 1841, Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Others (2008) 8 SCC 463, Mukesh vs. State & Ors. FAO No. 466/2016.
12. Submissions heard and the judgments relied upon by both the parties perused.
13. Section 222 of the Indian Succession Act, 1925 specifies that a Probate can be granted only to an Executor who is the person appointed for execution of the Will by the deceased person. The Executor derives its power only from the Will to dispose of the estate of the deceased in terms of the Will. In case any disputes arises between the beneficiaries and the legal heirs, then the Executor of the Will is expected to play a pivotal role to ensure the smooth, peaceful and proper disposition of the estate. The Executor by its very deification, is a person who is a nominee of the deceased.
14. By its very definition, in case the Executor died, no cause of action survives in favour of the beneficiaries to seek Probate as it is personal to the Executor. However, the role is not the same when it comes to the beneficiaries. In case the beneficiary dies, then his legal heirs by operation of law step into the shoes and are entitled to the estate as bequeathed in the Will.
15. Thus, the question remains that upon the death of the sole Executor, are the other petitioners/beneficiaries entitled to issue of Letter of Administration with the Will annexed, since the Probate cannot be granted. The answer to this situation lies in Section 232 of the Act, which states 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.”

16. Chapter (I) of Part IX of the Indian Succession Act, 1925 deals with grant of Probate and Letter of Administration. It envisages three situations as to who would administer the estate of the deceased:
(a) when the person dies intestate, the Letter of Administration in respect of his estate may be granted to any person who will be entitled to whole or any part of the estate of the deceased, as encapsulated in Section 218 of the Act.
(b) when the deceased leaves a Will appointing an Executor to execute the Will, Section 222 provides that a Probate in such circumstances for the administration of the estate shall be granted only to the Executor appointed by the Will.
(c) when the deceased leaves a Will but does not appoint an Executor to execute the Will, Section 232 provides that a Letter of Administration with the Will annexed may be issued to the universal or a residuary legatee for the administration of the estate.
17. The scheme as decipherable from the provisions of the Indian Succession Act, 1925 does not thus, postulate a vacuum in the administration of the estate of the deceased testator. The Act under Section 232 of the Act, therefore, contemplates that the universal or a residuary legatee may be admitted to prove the Will with a consequential issuance of letters of Administration with the Will annexed.
18. Further, Section 234 of the Act, deals with the grant of Letter of Administration in cases where neither Executor nor residuary legatee nor representative of such legatee exist or declines, or is incapable of acting or cannot be found, then the beneficiary would have been entitled to file an application for the Letter of Administration.
19. The Supreme Court in Smt. Vatsala Srinivasan Ig v. Narsimha Raghunathan, (2016) 13 SCC 253, observed that Section 232 deals with three identified situation which are:
“(i) Where no executor has been named in the Will executed by the deceased.
(ii) Where though an executor has been appointed by the deceased in the Will, the executor is:
(a) Legally incapable
(b) Refuses to act
(c) Has died before the testator
(d) Had died before he has proved the Will.
(iii) Where the executor after having proved the Will has died but before the estate of the deceased has been administered.”

20. It was reiterated in Smt. Vatsala Srinivasan Ig (supra) that in any of these situations as provided under Section 232 of the Act, the universal or the residuary legatee may be admitted to prove the Will and the Letter of Administration with the Will annexed may be granted to him for the whole of estate or such part of the estate as remains to be administered. It was also observed that the right of beneficiary to seek Letter of Administration continues to survive on the death of the Testator.
21. When an Executor resigns or refuses to act as such, the beneficiary named under the Will, can assert his right to seek Letter of Administration. In a situation where the Executor, even after the presentation of the petition has failed to act, it is open to the beneficiary or legatee under the Will to seek issuance of Letter of Administration.
22. It was thus held in Smt. Vatsala Srinivasan Ig (supra) that in all these situations, there are no conceivable reasons as to why the beneficiary or the legatee should be relegated to file independent proceedings. The Executor does not derive any interest in the Probate which forms the subject matter of the bequest unless he is also the beneficiary under the Will. It was thus, concluded that the law does not prohibit the beneficiary from seeking to continue the proceedings upon the death of sole Executor and seek formal conversion of the proceedings from grant of Probate to one for issuance of Letter of Administration.
23. The Supreme Court in Shambu Prasad Agarwal & Ors. Vs. Bhola Ram Agarwal, (2000) 9 SCC 714 considered a situation where a legatee had filed a petition for probate. He died during the pendency of the proceedings and on his demise, the legal heirs filed an application in the Probate proceedings for substitution in place of the deceased legatee. Another application was filed for amendment of petition of the prayer to seek grant of Letter of Administration instead of Probate. The Supreme Court observed that while on demise of the Executor, his heirs cannot be substituted since the right in the Executor was personal, but this is not applicable where the heirs of a legatee apply for issue of Letter of Administration. The procedure may require amendment but such technicality cannot stand in dismissing the petition for grant of Probate on demise of executor.
24. The Division Bench in the case of Govind M. Asrani Vs. Jairam Asrani & Anr. AIR 1963 Madras 456 held that in any of the situations, the question involved is about the truth and genuineness of the Will. In both the cases, it is open to the “persons interested” to intervene. The final adjudication as to the genuineness of the Will, in both cases will operate as a judgment. It was further observed that though a Probate in its form is different from the Letter of Administration with the Will annexed; there is also different procedure regarding necessity to take security but it cannot be denied that an adjudication in an application or suit obtaining Probate or Letter of Administration, will be binding on all the persons interested in the estate of the deceased testator.
25. The Division Bench recognized that any impleadment of legatee in place of deceased executor, would involve an alteration of the petition which was originally filed for the issue of the Probate, into one for grant of Letter of Administration but held that this technicality does not affect the substance of the matters to be decided in the case.
26. Similar observations have been made in the decisions of the Supreme Court in FGP Ltd. vs. Saleh Hooseini Doctor,(2009) 10 SCC 223 and various High Courts in Shirin Baman Farazarzi of Bombay Zoroastrian Iranian inhabitant v. Zubin BomanFaramarzi, 2014 (4) MHLj 217, Inder Chand Nayyar v. Sarvadeshik Arya PratinidhiSabha, AIR 1997 Del 34, Sanjay Suri v. State & Ors, AIR 2004 Del 9 and Lallubhai Chhotabhaiu by LRs v. Vithalbhai Parshottambhai, AIR 1982 Guj 222, that Petition seeking grant of Probate of a Will can be allowed to be converted into a petition for Letters of Administration with Will annexed.
27. In the present case, the petition seeking Probate of the Will of the deceased Testator had been sought by petitioner No. 1/Anoop Singh, who was the sole Executor. He along with petitioner no.2 Digvijai Singh were also the joint beneficiary under the Will and both the Petitioners together had filed the petition seeking Probate of the Will of their father in the name of Petitioner No.1 who admittedly has died on 02.12.2011, during the pendency of the present Petition. On demise of the Executor, no Probate proceedings survive as the right is personal to the Executor. However, this would have happened had only Late Anoop Singh/ Petitioner No. 1 filed the present petitioner as the named sole Executor in which circumstances the proceedings seeking Probate of the Will would have died a natural death as a consequence of non-survival of the Executor and the question of applicability of Order XXII Rule 3 of CPC, 1908 would not have arisen. However, the other beneficiary under the Will dated 21.09.1998, namely, petitioner No. 2/Digvijai Singh, was the petitioner No. 2 in the original petition itself.
28. Significantly, on demise of petitioner No. 1/Anoop Singh on 02.12.2011, the Application No. I.A. 3723/2012 under Order XXII Rule 3 of CPC, 1908 was filed which was allowed vide Order dated 21.08.2012 and the amended memo of parties has already been directed to be taken on record, thereby allowing the petition to be continued.
29. Section 232 of the Indian Succession Act, 1925 provides that the beneficiary cannot claim a Probate but is entitled to Letter of Administration with the Will annexed. In these circumstances, where the Executor had died or there is no other named Executor as in the present case, no objection had been taken at the time of deletion of his name and continuation of the Petition by the Petitioner No.2 Digvijai Singh, who was a party since beginning when the Application under Order XXII Rule 3 of CPC, 1908 was allowed. Since, the Application No. I.A. 3723/2012 was allowed vide Order dated 21.08.2012 with no objection from the respondents, the only consequence which now follows is that a corresponding amendment is made in the prayer paragraph.
30. Also, in the present case, the beneficiary i.e. Petitioner No.2 and the Executor/ Petitioner No.1 had jointly filed the Petition originally and he was always a party to the Petition. Also, after the demise of the Executor, he was allowed to continue with the petition way back in 2012 by the Orders of this Court, the question of limitation as agitated by the respondent Nos. 2 and 3 does not arise. The judgment in Harinaryan G. Bajaj vs. Vijay Agarwal and Others, 2012 (2) Mh. L.J., Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Others (2008) 8 SCC 463, Mukesh vs. State & Ors. FAO No. 466/2016. are distinguishable on the facts and is not applicable to the present circumstances.
31. The ld. Counsel for the Respondents have placed reliance on the case of Satish Kumar Jain vs. State 2022 SCC OnLine Del 1841, to submit that after the demise of the Executor, the probate proceedings die a natural death because no occasion would arise to grant probate if there are no surviving executors and hence, the applicability of Order XXIII of the CPC would not arise at all. However, the above cited case does not assist the respondents as the same was for impleadment of the legal heirs of the petitioner/beneficiary who was not the named Executor and had expired during the pendency of the proceedings. It was held that the right to sue survived in favour of legal heirs of the deceased petitioner who was the beneficiary under the Will, entitling them to be impleaded as petitioners and the case was permitted to be continued by the legal heirs of the deceased petitioner. It emerges that the facts of the case, rather support the stand of the petitioners, as in the present case, the surviving petitioner/ Digvijay Singh, is also a beneficiary under the will of the deceased Testator, and the same was allowed to be continued by him way back in 2012.
32. It is also a crystallised proposition of law that procedural defects which do not go to the root of the matter, should not be permitted to defeat a just cause. There is sufficient power vested in the Courts to ensure that injustice is not done to any party who has a just case and a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. It has been held in United Bank of India Vs. Naresh Kumar & Ors., (1996) 6 SCC 660 and Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, (2006) 1 SCC 75 that technical pleas can always be cured.
33. Thus, there is no conceivable reason as to why the beneficiary/Petitioner herein must be prevented from continuing the proceedings for grant of Probate or Letter of Administration for protecting the interest of legatees under a Will and to ensure that the benefit arising out of a Will, are granted to them.
34. In the facts and circumstances of the case, the present application is allowed and the applicants/petitioners are permitted to amend the original petition.
35. Amended petition be filed within 30 days.
36. The respondents are at liberty to file a Reply, if any, to the amended petition within 30 days thereafter.
37. Accordingly, the present application is disposed of.
TEST.CAS. 18/2009
38. List before the Joint Registrar for completion of pleadings on 24.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE

MARCH 20, 2024
S.Sharma

TEST.CAS. 18/2009 Page 12 of 12