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2003 DIGILAW 187 (JHR)

Gokul Chandra Das v. Susanta Kumar Das

2003-02-10

M.Y.EQBAL

body2003
ORDER M.Y. Eqbal, J. 1. One Smt. Biraja Bala Das executed a Will in which the petitioner, Gokul Chandra Das and one Suresh Chandra Das were appointed as executors of the said Will. After the death of Smt. Biraja Bala Das who died on 27.7.1977 later Suresh Chandra Das, one of the executors, filed an application for grant of probate of the Will. In the said probate case the petitioner who was also one of the executors, was made opposite party. In the said probate case the petitioner appeared and filed his show cause denying and disputing the existence of the Will. The petitioner contested the case alleging that the Will is a forged document and the applicant was not entitled to get probate of the said Will. The said probate case was, therefore, converted into a title suit being No. 1/97. During the pendency of the said probate case the applicant, Suresh Chandra Das died on 22.4.2000 and his heirs who are opposite parties, applied for substitution of their names in place of the deceased - applicant. The opposite parties also filed an application for amendment of the application and prayed for grant of letter of administration in respect of the said Will. Both the applications were opposed by the petitioner. The Court below, in terms of the impugned order dated 6.6.2002, allowed both the applications and, held that the opposite parties are entitled to be substituted in place of the deceased- applicant and they are entitled to get letter of administration. 2. Mr. Debi Prasad learned Senior Counsel appearing on behalf of the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that in a probate proceeding the provisions of the CPC do not apply and therefore, the question of; substitution of the legal heirs of the deceased-applicant does not arise. Learned counsel submitted that admittedly the petitioner is also one of the executors of the Will and even if the petitioner had denied the existence of the Will, he is entitled to the grant of probate in his favour on the death of one of the executors. According to the learned counsel denial of existence of the Will by the petitioner will not amount to renouncement of the Will. According to the learned counsel denial of existence of the Will by the petitioner will not amount to renouncement of the Will. Learned counsel relied upon the decisions rendered in the case of Sailabala Dasi v. Baidya Nath Rakshit and Anr., AIR 1928, Cal 580; Most. Phekni v. Most. Manki, AIR 1930 Pat 618 and Edward Waston Coleston v. Mrs. Theresa Chitty and Ors., AIR 1934, Alld. 1053. 3. Mr. P.K. Prasad, learned counsel appearing on behalf of the opposite party, on the other hand, submitted that the petitioner renounced his executorship by denying and disputing the existence of the Will which is evident from the written statement filed by him. Leaned counsel submitted that in view of the renouncement of Will by the petitioner the heirs of the deceased- applicant who are the beneficiaries are entitled to substitution and grant of letter of administration. Learned counsel relied upon the decisions of Most. Triveni Kuer and Anr. v. Shankar Tiwari and Ors., AIR 1971 Pat 391 ; Arjun Prasad and Ors. v. Biteshwar Singh, AIR 1982 Pat 208 and Ramlal Sah v. Birendra Kumar, 1986 BBCJ 680. 4. Before appreciating the rival contentions of the parties it would be useful to refer some of the relevant provisions of the Indian Succession Act, 1925 (in short the Act). 5. Section 222 of the Act provides that probate shall be granted only to an executor appointed by the Will expressly or according to tenor. Section 224 of the Act provides that when several executors are appointed, probate may be granted to them all simultaneously or at different times! Section 229 of he Act lays down the circumstances where letter of administration can be granted. Section 229 reads as under : "Grant of administration where executor has not renounced.--When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship : Provided that, when one or more of several executors have proved a Will, the Court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved." 6. Section 230 of the Act prescribes the form, effect and renunciation of the executorship and Section 231 of the Act prescribes the procedure where the executor renounces or fails to accept within the time limited Sections 230 and 231 of the Act reads as under :-- Section 230. Form and effect of renunciation of executorship.--The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor. Section 231. Procedure where executor renounces or fails to accept within time limited.--If an Executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the Will may be proved and letters of administration, with a copy of the Will annexed, may be granted to the person who would be entitled to administration in case of intestacy. 7. From reading of the aforesaid provisions it is clear that probate can be granted only to an executor appointed by the Will expressly or according to the tenor of the Will. Where there are more than one executor, probate must be granted to all who apply. It some of the executors apply and others do not, who do not apply, may renounce or their right may be reserved if they do not renounce. The right of an executor to apply for probate of the Will is personal to the executor and does not survive if he dies without obtaining the probate. Sections 229 to 231 of the Act, reading together, makes it clear that when one of the executors renounces or falls to accept the executorships of the Will then on the death of another executor letter of administration may be granted to his legal heirs/representatives. 8. In the light of the fore-going provisions of the Act the question that falls for consideration is whether the act of the petitioner in the probate proceeding will amount to renouncement of the Will and, therefore, the heirs of the deceased executor applicant are entitled to be substituted and make a claim for the grant of letter of administration of the said Will. 9. Now I shall refer some of the decisions relied upon by the counsel appearing for the parties. 9. Now I shall refer some of the decisions relied upon by the counsel appearing for the parties. In Sailabala Dasi, case (supra), the fact of the case was that the widow was named as executrix alongwith other executors in her husbands Will. The executors applied for probate and joined the widow as opposite parties, as she did not apply for probate. The widow presented a petition alleging that she did not admit the Will nor did she admit that the Will had been properly executed or attested according to law. She, however, stated that if the Will be proved to have been properly executed and attested she was willing and claimed to get the probate as executrix. The said widow in her evidence disputed the genuineness of the Will. In spite of her evidence it was found that the Will was properly executed and probate was granted to the respondents. Thereupon the lady presented a petition stating that she should also be granted probate alongwith the respondents. That prayer was disallowed by the learned Judge mainly on the ground that widow had renounced her executor- ship. The widow challenged the said order before the Calcutta High Court. A Division Bench while setting aside the order passed by the Judge held as under : "It is contended on behalf of the respondents that Section 230 does not apply to the present case. That section must be read along with Section 229. Section 229 provides that letters of administration cannot be granted unless the executor has renounced his ex-ecutorship and without citation being issued calling upon the executor either to accept or to renounce his executor-ships and Section 230 refers to the manner of renunciation in such a case. That argument seems to me to be sound. Leaving the question of applicability of Section 230 of the Act aside there does not appear to be any other provision in the Act which precludes an executor from asking for probate at any time. Under Section 224, Succession Act, where several executors are appointed probate may be granted to them all simultaneously or at different times. Leaving the question of applicability of Section 230 of the Act aside there does not appear to be any other provision in the Act which precludes an executor from asking for probate at any time. Under Section 224, Succession Act, where several executors are appointed probate may be granted to them all simultaneously or at different times. Where there is a statutory law governing the question of grant of probate to executors, I do not think that it is open to us to apply any general principles of law and to refuse grant of probate to a named executor on the ground of his disputing the Will or any other ground of his disputing the Will or any other ground for which the law does not authorize the Court to refuse grant of probate. In this case, therefore, in our judgment we do not think that it would be right to refuse grant of probate to the appellant on the ground that she actually gave evidence against the due execution of the Will. To do so might seriously affect her right to any legacy under the Will." 10. In the case of Most. Phekni v. Most. Manki, (supra), the question that arose for consideration was as to whether heirs of sole legatee for grant of letter of administration can be substituted. Their lordships observed : "Where the sole legatee under a will whose application for grant of letters of administration is rejected appeals from the order, but dies during the pendency of the appeal, the heir of the sole legatee can be substituted in his place for the purpose of carrying on the litigation and obtaining a final adjudication as to whether the will is genuine or not ." 11. In the case of Edward Waston v. Mr. Theresa Chitty, (supra) the question that arose for consideration was as to whether probate or letters of administration could be granted in the event the executor who had originally applied has died during the pendency of the probate proceeding. A division bench of Allahabad High Court considering the aforesaid question held as under : "The serious difficulty arises from the fact that the learned Judge had no jurisdiction to order probate to be granted to the Administrator-General who had not been named in the Will. A division bench of Allahabad High Court considering the aforesaid question held as under : "The serious difficulty arises from the fact that the learned Judge had no jurisdiction to order probate to be granted to the Administrator-General who had not been named in the Will. Section 222 Succession Act, is perfectly clear and specific and lays down that "Probate shall be granted only to an executor appointed by the Will," though the appointment may be expressed or by necessary implication. But there is no exception to this and therefore no person, who has not been named in the Will either expressly or by necessary implication, can be granted probate of the Will. The order passed to that effect is therefore illegal and cannot be upheld. The executor, who had originally applied, has died since, and the legatees and other litigants have filed appeals under the Letters Patent. The proper course to adopt would be to proceed under Section 232 of the Act. Under which when the executor dies after having proved the Will, but before having administered all the estate of the deceased a 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. The question of granting letters of administration can be considered when a proper application is made by such a person." 12. In the case Tribeni Kuer v. Shankar Tiwari, (supra) a Division Bench of Patna High Court has held that in the probate proceeding provisions of Code of Civil Procedure is applicable and the Court has powered to set aside the ex parte order revoking the probate. The Honble Bench of the Patnna High Court after having considered the provisions of the Code of Civil Procedure held that Universal legatee, upon prima facie proof that he is the legal representative is entitled to be substituted as the legal representative, in place of the deceased testator, whose legal representative he claims to be under the Will, even if probate or letters of administration with a copy of the Will annexed has not been granted in respect of that will. 13. 13. In the case of Ram Lal Sah v. Birendra, (supra), learned Single Judge of the Patna High Court has held that Code of Civil Procedure applies to a proceeding for grant of probate or letters of administration. The provisions under Order XXII of the Code can be excluded only if it is clear that it is not possible to apply the rules prescribed therein. 14. In the instant case, as noticed above, there were two executors named in the Will. One of the executors namely, the deceased applicant Suresh Chandra Das applied for grant of probate of the Will. In the said probate case citation was issued to the petitioner who is another executor named in the Will. Petitioner appeared in the probate case and filed his written state-ment denying and disputing the existence and the genuineness of the Will. Since the petitioner took the stand that the Will is a forged one and thereafter renounced the executorships and contested the probate case, it was converted into a Title Suit. In the show cause filed by the petitioner in the probate case it was categorically alleged that Will is a forged document. It is very important to mention here that when after the death of applicant, his heirs filed application for their substitution the petitioner filed rejoinder to the substitution petition and even in the rejoinder the petitioner did not accept the existence of the Will and executorships rather he took the same stand as taken in the written statement that the Will is a forged one. 15. In view of the stand taken by the petitioner it can therefore safely be held that the petitioner denied the existence of the Will and thereby renounced the executorships. In such situation the heirs and legal representatives of the deceased executor are entitled to be substituted and prosecute the case for grant of letter of administration. The Court below rightly passed the impugned order and allowed substitution petition and the prayer for grant of letter of administration. 16. For the aforesaid reasons, the impugned order passed by the Court below needs no interference. Both the revision applications are accordingly dismissed.