Padmaja Kumari Parmar v. Lakshyaraj Singh Mewar and Ors.

16. Respondent No.1 further states that the Will was drafted after discussions held with the deceased in July 2024 at Udaipur and was prepared by Advocate Puneet Jain, now a Senior Advocate, after which it was finalised and read over to the deceased before its execution. It is stated that the Will was thereafter registered on 07.02.2025, and the deceased executed it after understanding its contents and in the presence of witnesses and the Sub-Registrar. It is also claimed that prior to the execution of the Will, the deceased was examined by his family doctor Dr. Shailendra Singh, who certified that the deceased was of sound mind and capable of understanding the nature and consequences of executing a Will.

17. According to the Respondent No.1, the deceased had reposed complete trust and confidence in him and had already entrusted him with the management of family properties and trust activities during his lifetime by executing a registered GPA dated 28.07.2023 in his favour, thereby authorising him to manage properties and affairs on his behalf. In the said Petition, the Respondent No.1 herein claims that he discharged the responsibilities to the satisfaction of the deceased and he was also nominated in several bank accounts and DeMAT accounts by the deceased. According to the Respondent No.1, the deceased was satisfied with his services and even issued a Letter of Appreciation dated 22.07.2024 acknowledging the manner in which he was managing the estate. Respondent No.1 further contends that during the lifetime of the deceased, certain shares of companies had been transferred to the daughters and they had also been appointed as directors in some companies. However, with a view to avoid future disputes regarding the estate, the deceased requested both daughters to transfer the shares back to him and resign from the directorships. It is stated that both daughters complied with the request and executed gift deeds dated 28.08.2024, 29.08.2024 and 21.12.2024, returning the shares to the deceased and resigning from their positions as Directors through letters dated 20.12.2024 and 04.01.2025.

18. It is further stated by the Respondent No.1 that after the execution of the Will, the deceased passed away approximately five weeks later on 16.03.2025. Respondent No.1 claims to have continued managing the properties as the universal legatee and successor under the Will after the death of the deceased. According to him, certain bank accounts including one at Bank of Baroda, Excelsior Branch, Mumbai, and another at HSBC, Mumbai, have already been transferred in his favour on the basis of the Will dated 07.02.2025.

19. In the said Petition, the Respondent No.1 herein has disclosed about the Petition filed by his sister, i.e. the Petitioner herein, before the High Court of Judicature at Bombay seeking the grant of Letters of Administration to administer the estate of the deceased. It is stated that her sister, i.e. the Petitioner herein, has filed the Petition without making him or any other member of the family a party to the said proceedings.

20. Respondent No.1 herein filed Transfer Petition No(s). 3626/2025 before the Apex Court, seeking transfer of his Petition under Section 276 of the Indian Succession Act from High Court of Rajasthan at Jodhpur to the High Court of Judicature at Bombay. The Petitioner herein also filed Transfer Petition No(s). 3625/2025 before the Apex Court, seeking transfer of her Testamentary Petition from the High Court of Judicature at Bombay to High Court of Rajasthan at Jodhpur. The Apex Court, vide Order dated 18.12.2025, transferred both the Petitions to this Court by passing the following Order:

21. The matters came up for hearing before this Court on 12.01.2026. The Petition filed by the Petitioner in Bombay, on transfer to this Court was numbered as TEST.CAS. 2/2026 and the Petition filed by the Respondent No.1 herein, on transfer to this Court was numbered as TEST.CAS. 4/2026. On 12.01.2026 learned Senior Counsel for the Petitioner in TEST.CAS. 4/2026 sought some time to file the Memo of Parties and for other compliances in accordance with the Delhi High Court (Original Side) Rules,

2018. Memo of Parties in both the cases were filed. On the next date of hearing, i.e. on 20.01.2026, learned Senior Counsel appearing for the Respondent No.1 in the present case raised a preliminary objection that the present Petition i.e. TEST.CAS. 2/2026, which has been filed by the Petitioner under Section 278 of the Indian Succession Act for grant of Letters of Administration without the Will but disclosing the presence of Will dated 07.02.2025, is not maintainable in law. Arguments on the maintainability of the present Petition were advanced by both the sides and the matter was reserved on 17.02.2026 to consider the maintainability of the present Petition.

22. The said Order was taken up before the Apex Court by filing SLP (C) No.10536/2026. The Apex Court vide Order dated 23.02.2026 dismissed the said SLP by passing the following order:- “We have heard learned senior counsel for the petitioner(s) at a considerable length. We do not find any adverse order(s) passed by the High Court in relation to prayer for appointment of an Administrator/Oath Commissioner for the purpose of making inventories. It seems that an application to this effect is still pending consideration before the High Court.

3. That being so, we dispose of these Special Leave Petitions with liberty to the petitioner ( s) to plead the cause of urgency before the High Court and seek an appropriate interim protection with reference to the pending prayers.

4. It is clarified that the observations made hereinabove and/or the order that may be passed by the High Court shall be without prejudice to the outcome of the issue re: maintainability of the suit.”

23. Within three days of the said Order, the Petitioner herein filed an Application being I.A. No. 5379/2026 in the present case, seeking the following reliefs: “a) list the present proceedings alongwith pending applications as expeditiously as this Hon'ble Court deems appropriate; b) pass such further order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

24. The said Application was numbered and came up for hearing on 26.02.2026, wherein this Court had adjourned the hearing on the said Application till 18.03.2026, so that the judgment could be pronounced on the aspect whether the present Petition is maintainable or not.

25. On a pointed query by this Court as to whether the present petition seeking grant of Letters of Administration on intestacy, despite disclosure of the Will dated 07.02.2025, is maintainable in its present form, or whether the Petitioner ought to seek a declaration regarding the invalidity of the said Will, learned Senior Counsel for the Petitioner submits that such a prayer for declaration is not mandatory. He places reliance on the Judgment passed by the Division Bench of this Court in Lalitkumar vs. Sunita & Ors., 2025 SCC OnLine Del 4904, judgment passed by the Bombay High Court in Sambhaji Vishnu Kharat vs. Sarjerao Kharat, 2020 SCC OnLine Bom 427, and the judgment passed by the Apex Court in Venigalla Koteswaramma vs. Malam Pati Suryamba & Ors., (2021) 4 SCC 246, to contend that the burden of proving the Will lies upon the propounder and not upon the person disputing it. He states that the onus to disprove the Will cannot be placed on the Petitioner herein on the first instance and the Petitioner does not have to seek a decree of declaration for declaring the Will as void. He states that once the Petitioner has disputed the Will in her pleadings, it is for the Respondent No.1 to either obtain Probate of the same or to prove the same in the Suit if the Respondent No.1 intended to rely on the Will and the Petition as framed claiming that the Testator has died in the state of intestacy, is maintainable under Section 278 of the Indian Succession Act.

26. Learned Senior Counsel for the Petitioner further contends that mere execution of the Will is not sufficient and the Will must be an operative Will. He places reliance on Section 3(g) of the Hindu Succession Act which defines intestacy to state that if the Will is void or incapable of taking effect, it should be deemed that the Testator has died intestate. Learned Senior Counsel for the Petitioner places reliance on the Judgment of the Apex Court in Angurbala Mullick vs. Debabrata Mullick, 1951 SCC 420 & Parmanand Ahuja vs. Satyadev Ahuja, 1972 ILR Delhi 682, to contend that before a Court of law can determine whether a male Hindu has died intestate or not, it will have to determine whether or not he has, as a matter of law, left a valid Will which can be acted upon, and in accordance with which the properties can devolve upon the successors of the deceased. He, therefore, states that the present Petition, as framed, is maintainable. He submits that Respondent No. 1 is at liberty to propound the alleged Will and establish its validity in the present proceedings, which were instituted at an earlier point of time. It is contended that the pendency of any rival testamentary claim does not preclude this Court from continuing with the present Petition. Accordingly, he prays that this Court may proceed with the adjudication of the present Petition and, in the interim, appoint an administrator pendente lite of the estate pending final determination of the testamentary issues.

27. Per contra, learned Senior Counsel appearing for the Respondent No.1 contends that the present Petition is not maintainable in law. He places reliance on Sections 218, 232, 276 and 278 of the Indian Succession Act to contend that once the existence of a Will is discovered, any grant of Letters of Administration on the footing of intestacy under Section 278 would necessarily stand liable for revocation under Section 263 of the Indian Succession Act. It is submitted that in such circumstances, a petition seeking Letters of Administration without the Will annexed cannot be permitted to continue, particularly when a separate proceeding has already been instituted seeking Letters of Administration with the Will annexed under Section 276 of the Indian Succession Act in relation to the same estate. Learned Senior Counsel further contends that a Petition under Sections 218 and 278 founded on intestacy, while simultaneously acknowledging the existence of a testamentary document, is contrary to the scheme of the Indian Succession Act and is therefore liable to be rejected at the very threshold. It is urged that once a Will has surfaced, the estate cannot be treated as intestate until the validity of the Will is adjudicated in accordance with the provisions of the Indian Succession Act. It is further submitted that questions relating to the due execution, genuineness or validity of the Will fall exclusively within the jurisdiction of a testamentary court in proceedings for grant of probate or for Letters of Administration with the Will annexed, and cannot be adjudicated in proceedings instituted on the basis of intestacy. Learned Senior Counsel emphasises that proceedings for probate or for grant of Letters of Administration with the Will annexed operate in rem, and the final determination therein conclusively establishes the validity or otherwise of the Will as against the world at large. Accordingly, it is contended that such issues cannot be incidentally examined in a Petition seeking Letters of Administration without the Will annexed, where the very foundation of the proceeding is the assertion of intestacy, despite the acknowledged existence of a testamentary instrument.

28. Learned Senior Counsel appearing for the Respondent No.1 also states that the Petition as filed by the Petitioner herein before the High Court of Judicature at Bombay, is completely contrary to the Bombay High Court (Original Side) Rules, 1980. He has drawn the attention of this Court to Rule 376 contained in Chapter XXVI of the Bombay High Court (Original Side) Rules, 1980 which deals with Testamentary and intestate Jurisdiction to state that an application for letters of administration in cases where the deceased has died intestate shall be made by a Petition and that the Petition shall be in Form No. 103 with such variations as the circumstances of each case may require and shall be accompanied by the administrator‟s oath which is in Form No. 104. He states that Form No.103, which gives the Proforma of a petition for Letters of Administration, states that the Petition requires a specific averment that the deceased died intestate and that due and diligent search has been made for a Will but none has been found and Form No.104, which is the format for administrator‟s oath, states that it has to be solemnly affirmed that the deceased died without leaving a Will. He, therefore, states that the Petition, as filed by the Petitioner before the High Court of Judicature at Bombay, is not in accordance with the Form as mentioned in the Bombay High Court (Original Side) Rules, 1980 and, therefore, the Petition must be returned back.

29. Challenging the averments made by the learned Senior Counsel for the Respondent No.1, learned Senior Counsel appearing for the Petitioner states that reliance placed by the learned Senior Counsel on Section 232 of the Indian Succession Act is misplaced and erroneous, as Section 232 of the Indian Succession Act only enables a universal or residuary legatee to file for Letters of Administration with the Will annexed, where the Will has to be proved. He states that in the present case, it is the case of the Petitioner that the deceased has died intestate and the so-called Will is not a valid Will in accordance with law and, therefore, this argument cannot affect the maintainability of the present Petition and that the present Petition would have to be considered as framed and it is for the Respondent No.1 to prove the correctness or otherwise of the Will in the present Petition, which has been filed in prior point of time. He further submits that Section 240 of the Indian Succession Act expressly enables the Court to grant Letters of Administration even in circumstances where it is asserted that a Will had been executed by the testator, but the same is not presently forthcoming or traceable. It is contended that, until such time as the alleged Will surfaces and is duly proved in accordance with law, the estate cannot remain unadministered, and therefore, the Court is empowered to grant Letters of Administration for the preservation and management of the estate pending proof or production of the testamentary instrument. Learned Senior Counsel appearing for the Petitioner states that the Testamentary Petition filed by Respondent No.1 before the High Court of Rajasthan at Jodhpur, under Section 276 of the Indian Succession Act, seeking issuance of Letters of Administration with the Will annexed, was filed at a later point of time and the correctness or otherwise of the Testamentary instrument, i.e. the Will, will be decided in the present Petition, which was filed prior to the filing of the Testamentary Petition before the High Court of Judicature for Rajasthan at Jodhpur.

30. Learned Senior Counsel appearing for the Petitioner also contends that the argument of the learned Senior Counsel for the Respondent No.1 that the Petition, as filed before the High Court of Judicature at Bombay, is not in the prescribed format, is without any basis. He submits that in paragraph 11 of the present Petition, the Petitioner has expressly stated that she has knowledge of two alleged testamentary writings, though she disputes their validity and contends that no valid Will exists in law. He further submits that Rule 376 of the Bombay High Court (Original Side) Rules, 1980 provides that a Testamentary Petition may be filed in Form No. 103 with such variations as the circumstances of each case may require. According to him, the scope of such permissible variation is wide enough to encompass situations like the present, where the Petitioner does not accept the existence or validity of the alleged Will. It is therefore contended that, even in a case where a testamentary instrument is alleged but is disputed or treated as non-est in the eyes of law, the Petitioner is entitled to institute the present Petition by asserting intestacy, leaving it open to the propounder of the alleged Will to establish its validity in appropriate proceedings. He also states that Forms cannot over-ride the provisions of the statute. He submits that the Petitioner has approached the Court with clean hands, having candidly disclosed her knowledge of a purported Will dated 07.02.2025, and having also placed on record a copy of the said document, which was received from Respondent No. 1 through WhatsApp. It is the specific case of the Petitioner that no valid testamentary disposition exists in law, and that the alleged Will is surrounded by suspicious circumstances and is therefore invalid and unenforceable. On this basis, it is contended that the present Petition, as framed on the footing of intestacy, is maintainable in law notwithstanding the existence of the disputed testamentary document. He further submits that, in any event, the Petition was duly scrutinised, numbered and notice was issued by the High Court of Judicature at Bombay, and therefore, the contention advanced by learned Senior Counsel for Respondent No. 1 that the Petition was not in conformity with the Bombay High Court (Original Side) Rules, 1980, is untenable and liable to be rejected.

31. Learned Senior Counsel for the Petitioner places reliance on Section 3(g) of the Hindu Succession Act which defines intestacy and state that a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. He states that the allegations in the Petition are of such nature which conclusively points out that the Testator had died intestate as he was not capable of executing a valid Will. He further submits that upon Transfer Petitions being preferred, the Apex Court was pleased to transfer both testamentary proceedings to this Court and directed that they be heard and decided together. It is contended that such direction was issued in view of the fact that both parties are seeking grant of Letters of Administration in respect of the same estate, albeit on different foundations - one with the Will annexed and the other on the footing of intestacy. Accordingly, it is submitted that since the question of the validity and due execution of the alleged Will is a common and central issue arising in both Petitions, and the subject-matter of administration pertains to the same estate of the deceased, the proceedings are liable to be heard and tried conjointly to avoid conflicting findings and multiplicity of litigation.

32. Heard the learned Senior Counsels for the parties and perused the material on record.

33. It is well settled that proceedings for grant of probate or Letters of Administration under the Indian Succession Act are proceedings in rem and fall within the exclusive jurisdiction of the testamentary court. However, this does not imply a total exclusion of the jurisdiction of civil courts under Section 9 of the Code of Civil Procedure, 1908. Civil courts continue to retain jurisdiction in matters relating to declaration of title, construction of Wills, and other proprietary disputes arising out of succession. The bar operates only to the limited extent that the validity and due execution of a Will, for the purpose of grant or refusal of Probate or Letters of Administration, must be adjudicated in accordance with the scheme of the Indian Succession Act.

34. Before this Court proceeds to analyse the rival contentions, it is necessary to reproduce the following provisions of the Indian Succession Act:

35. Section 218 of the Indian Succession Act provides that if the deceased has died intestate, then administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate and if there are more than one person who apply for such administration, then it shall be in the discretion of the Court to grant the Letters of Administration to any one or more of them.

36. Section 232 of the Indian Succession Act provides when the deceased has made a Will, but has not appointed an executor, or 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 the executor dies after having proved the Will, but before he has administered all the estate of the deceased, then 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 such a person/persons of the whole estate, or of so much thereof as may be un-administered.

37. Section 247 of the Indian Succession Act, which deals with administration of the estate pending litigation, provides that pending any Suit touching the validity of the Will of a deceased person or for obtaining or revoking any Probate or any grant of Letters of Administration, the Court may appoint an administrator and such a person shall take control of the estate subject to the directions of the Court.

38. Section 263 of the Indian Succession Act gives the circumstances where the grant of Probate or Letters of Administration may be revoked or annulled. Illustration (v) of Section 263 provides that even if a Letters of Administration is granted to a person as if the deceased has died intestate, but if the Will is later on discovered then such Letters of Administration can be revoked.

39. Section 273 of the Indian Succession Act provides that the Probate or Letters of Administration shall have effect over all the property and estate throughout the State in which the same is or are granted and is conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him and, therefore, the grant of probate or Letters of Administration is in rem.

40. Section 276 of the Indian Succession Act deals with the Petition for probate or for Letters of Administration, with the Will annexed. Section 276 gives the particulars which have to be given along with the Petition and the documents which have to be produced.

41. Section 278 of the Indian Succession Act deals with grant of Letters of Administration where there is no Will attached.

42. It is now trite law that the questions regarding grant of Probate of a will or grant of Letters of Administration with or without a will are determined exclusively by a Testamentary Court in a proceeding for grant of Probate or Letters of Administration with the Will annexed and in accordance with the provisions of the Indian Succession Act. The Apex Court in Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507, while holding that probate proceedings shall be conducted by a probate court in a manner prescribed in the Indian Succession Act, has observed as under:

18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh v. Muni Subrat Dass [(1969) 2 SCR 432] an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal [(1969) 1 SCC 59: AIR 1970 SC 838]. In Ferozi Lal Jain v. Man Mal [(1970) 3 SCC 181: AIR 1970 SC 794] a compromise dehors grounds for eviction was arrived at between the parties under Section 13 of the Delhi and Ajmer Rent Control Act. A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs. [(1990) 1 SCC 193: JT 1989 (Suppl) SC 329] the civil court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (11 of 1973). It was held that the decree was without jurisdiction and its nullity can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune [AIR 1990 Bom 45: (1989) 3 Bom CR 535] a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned under Section 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is non est. In Ghellabhai case [ILR 21 Bom 336] Sir C. Farran, Kt., C.J. of Bombay High Court held that the probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.

19. In Gopi Rai case [AIR 1930 All 840: 1930 ALJ 1584: 128 IC 817] Sulaiman, J. as he then was, speaking for the Division Bench held that the civil court has no jurisdiction to allow the dispute relating to the genuineness of a will in a probate proceedings pending before him to be referred to the arbitration of an arbitrator. He has got to be satisfied that the will is a genuine document before the order of granting probate is passed. He cannot delegate those functions to a private individual and decide the point through him. Similar was the view laid in Monmohini Guha case [ILR 31 Cal 357: 8 CWN 197], Sarda Kanta Das v. Gobinda Das [6 IC 912: 12 CLJ 91] and Khela Wati v. Chet Ram Khub Ram [AIR 1952 Punj 67: 1952 Bh LR Punj 80]. When the plea of estoppel was raised, Sulaiman, J. in Gopi Rai case [AIR 1930 All 840: 1930 ALJ 1584: 128 IC 817] held that “We cannot hold that there is any estoppel against Gopi Rai on this question of jurisdiction. That is a matter which we can take into account only when ordering costs”. The decision in Nalla Ramudamma v. Nalla Kasi Naidu [AIR 1945 Mad 269: (1945) 1 MLJ 396: ILR (1946) Mad 134] relied on by Shri Chidambaram does not help his clients. Therein the question was the matrimonial dispute. The arbitrator had decided at the request of the parties and a decree was passed. It was held that the dispute would come under Section 21 of the Arbitration Act. The question of jurisdiction was not raised therein. Equally the decision in Mt. Mahasunder Kuer v. Ram Ratan Prasad Sahi [AIR 1916 Pat 382: 35 IC 416: 1 PLW 370] is also of little assistance. The question of adoption, it was held, cannot be decided in the probate proceedings.

20. On a conspectus of the above legal scenario we conclude that the probate court has been conferred with exclusive jurisdiction to grant probate of the will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 299. Thus the necessary conclusion is that the probate court alone has exclusive jurisdiction and the civil court on original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the will and is a legal representative entitled to represent the estate of the deceased but the heirs cannot get any probate before the probate court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings. We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit.” (emphasis supplied)

43. Part IX of the Indian Succession Act deals with Probate, Letters of Administration and administration of assets of deceased. Section 217 of the Indian Succession Act specifically states that all grants of Probate and Letters of Administration with the Will annexed and the administration of the assets of the deceased in cases of intestate succession shall be carried out in accordance with the provisions of Part IX of the Indian Succession Act.

44. The scheme of the Indian Succession Act distinguishes between cases of intestate succession and testamentary succession. Where a person dies intestate, the grant of Letters of Administration serves the purpose of enabling proper administration and preservation of the estate pending determination of rights of succession. In contrast, where a testamentary instrument is propounded, the court is required to examine the due execution and validity of such instrument in accordance with the statutory procedure.

45. At this juncture, it is pertinent to highlight the difference in language employed in Sections 276 and 278 of the Indian Succession Act. In an Application filed under Section 276 of the Indian Succession Act, which is an Application for grant of probate or Letters of Administration with a Will annexed needs the following averments: “a) the time of the testator‟s death, b) that the writing annexed is his last Will and testament, c) that it was duly executed, d) the amount of assets which are likely to come to the petitioner‟s hands, and e) when the application is for probate, that the petitioner is the executor named in the Will.”

46. On the other hand, an Application under Section 278 of the Indian Succession Act which is for grant of Letters of Administration which applies in a case of intestacy requires the following averments: “a) the time and place of the deceased‟s death; b) the family or other relatives of the deceased, and their respective residences; c) the right in which the petitioner claims; d) the amount of assets which are likely to come to the petitioner‟s hands; e) when the application is to the District Judge, that of abode, or had some property, situate within the f) when the application is to a District Delegate, that of abode within the jurisdiction of such Delegate.”

47. Under Section 276 of the Indian Succession Act, the Applicant who is seeking Probate of the Will or an Applicant seeking Letters of Administration on the basis of the Will has to prove it in accordance with the requirements of the Indian Succession Act read with Indian Evidence Act, 1872 or Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), as the case may be. Whereas, in an Application under Section 278 of the Indian Succession Act, the Applicant has to show in what capacity he is claiming to administer the estate of the deceased and how that Applicant is the most suitable to administer the assets of the deceased, till the assets are distributed in accordance with the succession law applicable to the parties.

48. It is well settled that in proceedings for grant of Letters of Administration, the Court is primarily concerned with determining whether the applicant is a fit and proper person to be entrusted with the administration of the estate of the deceased till the estate is distributed to the legatee of the deceased in accordance with the applicable laws. Such proceedings are summary in nature, and therefore intricate or complex questions of title or proprietary rights are not ordinarily amenable to adjudication within the limited scope of such testamentary jurisdiction.

49. Since there is no Will produced in a Petition under Section 278 of the Indian Succession Act, there is no question of proving the Will under the said proceedings. The Will can be proved only in a Petition under Section 276 of the Indian Succession Act and not under Section 278 of the Indian Succession Act as the requirements of the ingredients applicable under Section 276 and 278 of the Indian Succession Act are different.

50. Further, Section 263 of the Indian Succession Act states that even if Letters of Administration is granted under Section 278 of the Indian Succession Act, it can be revoked or annulled for a „just cause‟. The explanation to Section 263 of the Indian Succession Act gives the instances where „just cause‟ is deemed to exist. The illustrations under the said Section also give a fair idea as to under what all circumstances, powers under Section 263 of the Indian Succession Act can be invoked. As rightly stated by the learned Counsel for the Respondent No.1 that if a Letters of Administration stands granted under Section 278 of the Indian Succession Act, it can be revoked under Section 263 of the Indian Succession Act, when the Will surfaces. Thus, it can be discerned that if an Application for grant of Letters of Administration has been filed without a Will under Section 278 of the Indian Succession Act and during the pendency of such an Application, if an Application for Letters of Administration has been filed with a copy of the Will annexed thereto, in such case the validity of the Will is ordinarily adjudicated in proceedings seeking probate or grant of Letters of Administration with the Will annexed.

51. A Co-ordinate Bench of this Court in Administrator General v. State, 2016 SCC OnLine Del 6407, while dealing with the scope of proceedings under Indian Succession Act, has observed as under: “58...... (B) Though in these proceedings Issue No. 3 aforesaid was framed but it is the settled position in law that the Court of probate is only concerned with the question, whether the document put forward as the last Will and testimony of the deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind (see Ishwardeo Narain Singh v. Srimati Kamta Devi AIR 1954 SC 280). The same is the position in a proceeding seeking letters of administration. The Court in such proceedings also is concerned only with, whether the person seeking letters of administration is a fit person to be granted the letters of administration of the estate of the deceased (see Bai Parvatibai v. Rahunath Lakshman AIR 1941 Bom 60, Mahadeo Shankar Shinde v. Maruti Shankar Shinde AIR 2003 Bom 312 and Delhi Development Authority v. Vijaya C. Gurshaney (2003) 7 SCC 301). Neither of the said proceedings is concerned with, what was the estate of the deceased Smt. Dropadi Devi, whether the bequest is bad or not or amongst whom is the estate to be distributed. The Court in such proceedings does not enter into the question of title to the property. Reference in this regard can be made to Leelawati Singh v. State (1998) 75 DLT 694, Anjan Kumar Singhi v. Ranjan Kumar Singhi (2011) 126 DRJ 56 (DB), Ramchandra Ganpatrao Hande alias Handege v. Vithalrao Hande AIR 2011 Bom 136 and Ganesh Mohapatra v. Udaynath Mohapatra. Such proceedings are summary in nature and complicated questions of title cannot be properly conducted in summary proceedings. The question whether the objectors are related to the deceased Smt. Dropadi Devi as agnate is a complicated question of relationship which could not have been properly adjudicated in these proceedings.”

52. In the present case, two parallel testamentary proceedings have been instituted in respect of the estate of the deceased. The first has been initiated by the Petitioner before the High Court of Judicature at Bombay, seeking grant of Letters of Administration on the ground of intestacy, i.e., without the Will being annexed. The second proceeding has been instituted by Respondent No. 1 before the High Court of Judicature for Rajasthan at Jodhpur, seeking grant of Letters of Administration with the Will annexed. In the said proceeding, it is asserted that it was the express wish of the testator/deceased that his estate be administered by Respondent No. 1, and the relief sought therein is founded upon the validity and due execution of the purported Will.

53. The short question that arises for consideration is whether the Petition filed by the Petitioner before the High Court of Judicature at Bombay seeking grant of Letters of Administration on the ground of intestacy is maintainable in circumstances where the Petitioner has herself acknowledged the existence of a Will, a copy whereof has been annexed to the Petition, can continue after a Will has surfaced and a Letters of Administration is being sought on the basis of that Will.

54. The Petitioner, while disputing the validity of the said testamentary instrument, has contended that the testator/deceased lacked the requisite testamentary capacity owing to his alleged mental and physical condition, and that the purported Will is surrounded by suspicious circumstances, including the allegation that the deceased was under the complete control and influence of Respondent No. 1 at the relevant time, an issue which now can be considered in TEST.CAS. 4/2026. In the opinion of this Court, the above question must be answered in the negative.

55. The present petition proceeds on the premise that the alleged Will is invalid. However, the validity of a testamentary instrument is required to be adjudicated within appropriate proceedings in accordance with the statutory framework.

56. When a person dies intestate, Letters of Administration may be granted to a suitable person to administer the estate of the deceased until the property devolves upon the lawful heirs in accordance with law. However, where the deceased has left behind a Will, the testamentary instrument must be proved in the proceedings wherein it is propounded, and not in any collateral or parallel proceedings founded on intestacy.

57. In the opinion of this Court, once a Petition seeking Letters of Administration with the Will annexed has been instituted, the question of the due execution, genuineness and validity of the Will must be adjudicated within those proceedings, wherein the testamentary instrument is propounded. The Will cannot be proved or disproved in proceedings instituted on the basis of intestacy, i.e. in a Petition seeking Letters of Administration without the Will annexed.

58. Although the Will does not name an executor, the Respondent No. 1, being the universal legatee under the alleged Will, is competent in law to propound and prove the Will. Consequently, the present Petition, as framed i.e. seeking grant of Letters of Administration without seeking any declaratory relief regarding the invalidity of the Will cannot be entertained, particularly when another testamentary proceeding has already been instituted in respect of the same estate with the Will annexed. The mere assertion that a testamentary instrument is invalid does not render the estate intestate, since intestacy arises only upon failure to establish a valid testamentary disposition.

59. As stated earlier, this Court may derive guidance from Section 263 of the Indian Succession Act, which provides that a grant of probate or Letters of Administration may be revoked or annulled for “just cause.” The explanation appended to the said provision enumerates circumstances in which „just cause‟ shall be deemed to exist. In particular, explanation (d) to the said provision contemplates situations where the grant has become useless and inoperative due to subsequent events, or where it has been obtained fraudulently by false suggestion or by concealment of material facts. Further, Illustration (v) to Section 263 exemplifies a case where Letters of Administration as granted on the footing that the deceased died intestate, but a Will is subsequently discovered. In such circumstances, the earlier grant is liable to be revoked upon due proof of the Will.

60. Applying the said statutory analogy to the present case, it follows that if a grant of Letters of Administration made on the premise of intestacy is liable to be revoked upon the subsequent proof of a Will, no useful purpose would be served in permitting parallel continuation of proceedings founded on intestacy, particularly when another testamentary proceeding has already been instituted for the same estate on the basis of the alleged Will. The legislative scheme thus militates against the continuation of proceedings premised on intestacy where the existence and validity of a Will is the subject matter of adjudication in contemporaneous testamentary proceedings. The illustration relating to discovery of a Will after grant on intestacy underscores the legislative intent to avoid multiplicity of inconsistent grants. This statutory principle reinforces the need for careful judicial scrutiny where competing testamentary claims are pending, so as to ensure that administration of the estate proceeds in a coherent and legally sustainable manner.

61. Further, the judgments relied upon by learned Senior Counsel for the Petitioner, in support of the contention that a specific prayer for declaration is not mandatory, are distinguishable on facts. In Lalitkumar (supra), the proceedings arose out of a suit for partition, wherein the defendants sought to rely upon a Will to defeat the claim of the Plaintiff. Although the Plaintiff therein asserted that the Will was void ab initio, no formal relief seeking a declaration to that effect had been prayed. In that context, the Division Bench held that the onus of proving the Will rested upon the party propounding it, namely the Defendant. In such circumstances, the burden of proving the Will rested upon the party propounding it. Testamentary proceedings under the Indian Succession Act stand on a different footing, as they are specifically designed for adjudication of the validity of testamentary instruments. Consequently, while the principle relating to burden of proof remains relevant, the procedural context in which such burden is to be discharged differs materially.

62. Similarly, the Judgment in Sambhaji Vishnu Kharat (supra) & Venigalla Koteswaramma (supra) arose in the context of suits for partition wherein a Will surfaced during the course of proceedings, and were not proceedings instituted under the Indian Succession Act. As observed earlier, the proof or disproof of a testamentary instrument must be undertaken strictly in accordance with the provisions of the Indian Succession Act, which governs the grant of Probate or Letters of Administration, both in cases of testamentary succession as well as intestacy.

63. In view of the aforementioned judgments, the contention advanced by learned Senior Counsel for the Petitioner that the Will can be proved in the present Petition, which has been instituted without the Will annexed and on the premise of intestacy, cannot be accepted. The validity of the Will can be adjudicated only in the Petition filed by Respondent No. 1, wherein the testamentary instrument has been placed on record.

64. Since a testamentary instrument can be proved only in accordance with the provisions of the Indian Succession Act, the grant of probate or Letters of Administration with the Will annexed is the statutory mechanism for determining the due execution and validity of a Will. However, a decree declaring a Will to be invalid, void, or vitiated by suspicious circumstances can be granted only by a competent civil court in appropriate proceedings instituted for that purpose.

65. In such cases, a person alleging that the Will is bad in law or unenforceable must seek declaratory relief by way of a civil Suit, and not through proceedings under the Indian Succession Act, which are confined to the limited question of grant or refusal of probate or Letters of Administration. The Indian Succession Act does not contemplate initiation of independent proceedings solely for obtaining a declaration regarding the invalidity of a Will. Further, such relief must be sought in a properly constituted civil action.

66. Consequently, while a Will may ultimately be proved or disproved in testamentary proceedings, a substantive declaration as to its invalidity at the instance of a party alleging infirmity can only be adjudicated in a civil Suit, and not within the summary framework of proceedings under the Indian Succession Act.

67. A co-ordinate Bench of the Bombay High Court in Bindia Kriplani v. Naresh Nathulal Pal, 2018 SCC OnLine Bom 2005, while dealing with two Petitions, one for grant of probate of a Will and the other for grant of Letters of Administration without annexing the Will, for the very same estate, held as under:

68. Further, the Apex Court in Chiranjilal Shrilal Goenka (supra) has observed as under:

69. Applying the above-said observations to the facts of the present case wherein Letters of Administration has been sought on the premise as if the testator has died intestate, this Court is of the opinion that the present proceedings cannot proceed further.

70. Yet another co-ordinate Bench of the Bombay High Court in Peter John D'Souza v. Armstrong Joseph D'Souza, 2014 SCC OnLine Bom 436, while dealing with a Petition under Section 263 of the Indian Succession Act for setting aside the Letters of Administration as the Will surfaced after grant of Letters of Administration, has observed as under:

71. In similar circumstances as the present case, a co-ordinate Bench of Karnataka High Court in M.A.I. Kovoor v. Thomas IPE Kovoor (Jr.), 2016 SCC OnLine Kar 8631, while dealing with two Petitions for grant of Letters of Administration - one on the ground that the testator has passed away without a Will and the other that a Will has surfaced later on, after quoting various provisions has held as under: “16. In view of the aforesaid legal provisions and the rival contentions raised by both sides, this Court is of the opinion that the present petition under Section 278 for grant of letter of administration to the petitioner deserves to be rejected but at the same time, these proceedings are not required to be converted into a regular trial for grant of probate to the respondents who have produced the unregistered Will of the deceased dated 4-1-2011 through Ms. Reena Puri. The reasons are as follows: Section 278 of the Act, as stated above, deals only with the grant of letter of administration in the case of intestate succession provided in Part V of the Act of 1925, whereas Part VI of the Act deals with testamentary succession. The present is not a case where Letters of Administration is sought with a copy of Will annexed, but the petitioner has come with a clear case that the deceased Elizabeth had died intestate. Annexure-B Will annexed by the petitioner is not the basis for claiming Letters of Administration but more to lay a challenge to it in advance, which was quite irrelevant while filing a petition under Section 278 of the Act. But when a contention is raised against a petition under Section 278 of the Act with a original but unregistered Will of the deceased produced before the Court, the provisions of Part v providing for intestate succession becomes inapplicable. The petitioner had filed this petition under Section 278 of the Act based on her right of share in the estate of the deceased on the basis of Section 47 of the Act which provides for an intestate death and the person concerned who died has left neither any lenial descendants nor father nor mother but such a right of share in the estate itself cannot be claimed by seeking a Letters of Administration under Section 278 of the Act. The moment a Will of the deceased is brought before the Court, there are two options before the Court: (I) either to allow the person producing the said Will to prove the same and obtain a probate in respect of the said Will by converting the proceeding into a regular trial in accordance with the provisions of CPC as provided under Section 295 of the Act quoted above; or (II) dismiss the petition under Section 278 of the Act for grant of letter of administration of estate of deceased dying intestate and leave the parties free to claim their share in the estate of the deceased either by way of a partition suit of by proving the Will in appropriate proceedings. This Court would adopt the second option, as this petition cannot be converted into a trial of a civil suit, which is a matter of original jurisdiction before a District Court.”

72. It is pertinent to mention that Section 295 of the Indian Succession Act also assumes critical significance in the present case. The provision mandates that where a testamentary proceeding becomes contentious, the same shall take, as nearly as may be, the form of a regular civil suit. The legislative intent underlying this provision is to ensure that disputes relating to the due execution, genuineness and validity of a testamentary instrument are adjudicated in a structured adversarial framework, with full opportunity to the parties to lead evidence. Once such contentious proceedings are instituted, the adjudication of testamentary validity must ordinarily be confined to those proceedings alone, so as to avoid parallel and potentially conflicting determinations concerning the same estate.

73. In the present case, Respondent No.1 has already instituted proceedings propounding the alleged Will. In the present Petition, the Petitioner alleges that at the relevant time, the deceased was suffering from serious medical conditions affecting his physical and cognitive faculties and was therefore not competent to execute a valid testamentary instrument. The dispute regarding the validity of the said Will, has thus assumed a contentious character within the meaning of Section 295 of the Indian Succession Act. Consequently, the statutory scheme contemplates that the issue of testamentary validity be adjudicated in the said proceedings, which are required to proceed in the nature of a civil suit. Permitting adjudication of the same issue in parallel proceedings founded on intestacy would run contrary to the legislative scheme and may result in inconsistent findings.

74. The only surviving question that remains for consideration in the present Petition is whether the proceedings ought to be kept in complete abeyance pending final adjudication of the Petition filed by Respondent No.1, namely TEST.CAS. 4/2026. In the opinion of this Court, no useful purpose would be served by keeping the present Petition in abeyance until the testamentary proceedings in TEST.CAS. 4/2026 is finally decided, for the reason that the Court is vested with powers under Sections 247 and 263 of the Indian Succession Act, to appoint an administrator pendente lite for the management and preservation of the estate during the pendency of testamentary proceedings.

75. In the proceedings in TEST.CAS. 4/2026, Respondent No.1 will be required to propound and prove the alleged Will in accordance with law. In the event that Respondent No.1 succeeds in establishing the due execution and validity of the Will, Letters of Administration with the Will annexed would be granted in his favour. Conversely, if Respondent No. 1 fails to prove the Will, the administrator appointed by this Court may continue to administer the estate of the deceased, at least until appropriate civil proceedings, such as a suit for partition for determination of the respective shares of the parties, are instituted and decided.

76. In the opinion of this Court, no cause of action subsists in TEST.CAS. 2/2026 after filing of Letters of Administration with Will. All the contentions raised in TEST.CAS. 2/2026 can be dealt with in TEST.CAS. 4/2026, including the appointment of an interim administrator till the Will propounded by the Petitioner in TEST.CAS. 4/2026 is proved.

77. Accordingly, the present Petition is dismissed. Pending applications, if any, also stands dismissed.

78. Liberty is, however, granted to the Petitioner to raise the very same grounds and contentions urged in the present Petition regarding the suspicious circumstances surrounding the Will by filing an appropriate Reply in TEST.CAS. 4/2026, wherein the issues concerning the validity and proof of the alleged Will are to be adjudicated. TEST.CAS. 4/2026

79. List on 04.05.2026 before the Joint Registrar for further proceedings.

SUBRAMONIUM PRASAD, J MARCH 17, 2026 Rahul/JR