Full Text
HIGH COURT OF DELHI
Date of Decision: 26th August, 2022
PAWAN PURI .....Petitioner Represented by: Mr. Akshay Makhija, Sr. Advocate with Mr. Arpit Kr. Singh, Advocates.
NEENA BANSAL KRISHNA, J. (ORAL)
JUDGMENT
1. An Application under Section 232 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act") read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") has been filed by the applicants namely Ms. Kiran Puri, Mr. Kunal Puri and Ms. Namita, wife, son and daughter respectively of the deceased petitioner Sh. Pawan Puri for converting the present petition into one for grant of Probate/Letter of Administration of the Will dated 21st April, 1994 of late Shri. Sadhu Ram Puri.
2. The factual matrix is that the deceased petitioner had originally filed the petition under Section 272 of the Indian Succession Act, 1925. The Will, Ex P[2] states that Late Shri. Sadhu Ram Puri was married to Smt. Savitri Devi (who was dead at the time of execution of the Will). From their wedlock, four sons namely Shri. Ramesh Chander, Shri. Pawan kumar, Shri. 2022:DHC:3674 Naresh Kumar, Shri. Raj Kumar and two daughters namely Smt. Sarvesh Kumari and Smt. Vijay Kumari (who are impleaded as the respondents) were born. As per the contents of the Will, Shri. Pawan Kumar was named as the sole Executor of the Will.
3. The issues were framed on 14th August, 2014 and the evidence was led by the parties. From the evidence led by the petitioner and his witnesses, the Will was found to be validly executed. The petition was allowed and Probate was directed to be issued in favour of Late Mr. Pawan Puri, the petitioner being the named Executor (and also a beneficiary), in respect of afore mentioned Will which was held to be validly executed by Late Shri Sadhu Ram Puri, vide judgement dated 22nd May, 2019.
4. The Certificate of Probate was directed to be issued subject to furnishing of requisite court fee/ Stamp duty and on furnishing of one surety by the petitioner. However, due to Covid-19 Pandemic restrictions, the requisite Probate could not be issued by the Registry. In the meanwhile, the petitioner died on 17th December, 2020. He is survived by his Wife, Ms. Kiran Puri, son Mr. Kunal Puri and daughter Ms. Namita Puri.
5. I.A. 14666/2021 of Code of Civil Procedure, 1908 was filed by the applicants for impleadment as petitioners in the petition. However, the application was dismissed vide Order dated 30th November, 2021 by observing that when an Executor dies before or after proving of the Will, the remedy available to the remaining Executors/Legatees under the Will is for grant of Letter of Administration with the Will annexed under Section 232 of the Indian Succession Act, 1925, as has been held in Smt. Vatsala Srinivasan Ig v. Narsimha Raghunathan, bearing Appeal No. 1009 of 2010.
6. Pursuant to dismissal of application under Order XXII Rule 3 of the Code, arose a situation where the Probate was issued but Shri. Pawan Puri expired before the Certificate of Probate could be issued leaving the estate un-administered. Hence, the present application under Section 232 of the Act has been filed on behalf of the legal heirs of Pawan Puri for issue of Letter of Administration annexed with the Will.
7. Submissions heard.
8. The issue before this Court for consideration is whether the Legal heirs of deceased petitioner are entitled to issue of Letter of Administration once the petition has been allowed and Probate granted. The answer to this situation lies in Section 232 of the Act.
9. Section 232 of the Indian Succession Act, 1925 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.”
10. The question which has arisen is who would administer the estate of the deceased. Chapter (I) of Part IX of the Indian Succession Act, 1925 deals with grant of Probate and Letter of Administration. There are three situations envisaged under the Act: (1) 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. (2) 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. (3) 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.
11. 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.
12. The situation as envisaged under Section 232 of the Executor having died leaving part of the estate unexecuted, is addressed under Section 258 which provides for grant of effects un-administered. It reads as under: “258. Grant of effects unadministered.—If an executor to whom probate has been granted has died, leaving a part of the testator’s estate unadministered, a new representative may be appointed for the purpose of administering such part of the estate.”
13. According to this Section a new representative may be appointed for the purpose of administering such part of the estate which is left un-administered at the time of the death of the Executor.
14. Section 259 is an explanation to Section 258 which provides that for the Testator's estate left un-administered under Section 258, a Letter of Administration may be granted, but the same shall be governed by the rules applicable to original grants and shall grant Letter of Administration to only those persons to whom original grant may have been granted.
15. The conjoint reading of Sections 258 and 259 provide that where the Executor dies leaving entire or part of the estate un-administered, Section 218 would again become applicable and the Letter of Administration be granted to the representatives as defined therein.
16. Section 233 provides that where a deceased residuary legatee, who has a beneficial interest survives the Testator, but dies before the estate is fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee.
17. Section 235 provides that Letter of Administration with the Will annexed shall not be granted to any legatee other than the universal or the residuary legatee unless the citation has been published. Citation is mandatorily required to be issued only in such cases where the representative to whom the Letter of Administration is being granted is neither a universal nor a residuary legatee.
18. The Supreme Court in Smt. Vatsala Srinivasan Ig (supra) 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.”
19. It is observed 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.
20. In Govind M. Asrani Vs. Jairam Asrani & Anr. AIR 1963 Madras 456, the Division Bench held that in both the cases, where an Executor applies for issuance of the Probate or where legatee or any other person applies for grant of Letter of Administration with the Will annexed, the question that has to be determined are the same namely: “(i) Whether the Will is true;
(ii) Whether it was executed in accordance with law;
(iii) Whether there was capacity in the testator to make the Will;
(iv) There being no fraud or other infirmity attending the execution of the document; and
(v) Whether it be an executor or an administrator, the right or interest possessed by them in the properties of the testator is the same and both have to administer them in accordance with the directions contained in the Will.”
21. The Division Bench 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.
22. 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.
23. The Supreme Court in Shambu Prasad Agarwal & Ors. Vs. Bhola Ram Agarwal, (2000) 9 SCC 714 considered a similar 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. In Smt. Vatsala Srinivasan Ig (supra) it was observed that the right of beneficiary to seek Letter of Administration continues to survive notwithstanding the death of the Testator. 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. 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.
25. A reference may also be made to Section 19-I of the Court Fees Act, 1870 which provides as under: "19-I. Payment of Court-fees in respect of probates and letters of administration.— (1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation.1[19-I. Payment of Court-fees in respect of probates and letters of administration.—(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No. 11 of the First Schedule has been paid on such valuation." (2) The grant of probate or letters of administration shall not be delayed by reason of any motion made by the Collector under section 19H, sub-section (4)."
26. This section makes it abundantly clear that essentially Probate or Letter of administration operates in the same zone as whether a Probate or Letter of Administration has been granted in respect of an estate or part of an estate, the fee chargeable under the Act once paid, shall not be chargeable when a like grant is made in respect of the same estate.
27. Though Section 232 of the Act envisages a situation where the Executor may die after the grant of probate but all the judgments referred to above deal only with the situation where the Executor dies before the grant of Probate. The question which thus arises before this Court is the course to be adopted once the Probate has already been granted in favour of the Executor-Late Shri. Pawan Kumar.
28. Order XXII Rule 6 of Code of Civil Procedure, 1908 provides that there shall be no abatement by reason of death after hearing. It provides that if after the conclusion of hearing but before the pronouncement of the judgment, a party dies, a judgment may in such case to be pronounced notwithstanding the death and shall have the same effect and force as if it has been pronounced before the death took place.
29. In the present case, the final judgment has already been pronounced on 22nd May, 2019 and a Probate granted in favour of the deceased petitioner-Mr. Pawan Kumar. Essentially, drawing of a decree is part of final adjudication and thus the impleadment of the legal heirs of deceased party for the purpose of drawing a decree which is a ministerial act, is not essential and the same can also be done by the legal heirs without formal impleadment. However, the said rule may not be applicable to the present proceedings which are in respect of grant of Probate which as discussed above, is personal to the Executor. The rights of Executor are personal and even if decree is prepared it would be an exercise in futility since there survives none after the Executor to execute the Will and as envisaged in Section 232 of the Act, the Letter of Administration with the Will annexed, has to be now issued. The question is what should be the procedure.
30. In the present case, Shri Pawan Kumar was the sole Executor appointed under the Will but was also one of the legatee/beneficiary along with his other siblings. The relief claimed in the petition was for Probate/letter of Administration of the Will of Shri Sadhu Ram Puri. Since Shri Pawan Kumar was the sole Executor, the Probate was granted. However, it cannot be ignored and overlooked that Shri Pawan Kumar was also the legatee/ beneficiary. Essentially the nature of the proceedings whether for grant of Probate or for Letter of Administration are the same and it is essentially the genuineness and authenticity of the Will has to be proved, as held in the case of Govind M. Asrani (supra).The authenticity of Will has already been established in the present case. Essentially there is no amendment which is required in the pleadings since relief for grant of Probate/ Letter of Administration was sought in the petition.
31. In the circumstances, though specific prayer has been made under Section 232 of the Indian Succession Act for grant of Letter of Administration annexed with the Will of Shri Sadhu Ram Puri, but considering the subsequent events and also that it is an old matter of 2007 and there is already a finding about genuineness of the Will, it has become imperative to invoke the inherent jurisdiction of this Court and amend the Final Order dated 22nd May, 2019 from that of Probate to Letter of Administration annexed with the Will to be issued in favour of the applicants/legal heirs of Shri Pawan Kumar in respect of the Will dated 21st April, 1994, Ex P[2]. The Letter of Administration with Will annexed, be issued on furnishing of requisite court fee/stamp duty and furnishing of administration bond and one surety of the like amount in favour of the legal heirs/applicants of Mr. Pawan Puri.
32. The application is accordingly allowed and any other application(s), if pending, is according disposed of.
JUDGE AUGUST 26, 2021 VA/PA