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2006 DIGILAW 3183 (RAJ)

Group Captain Satish Kapoor v. Suman Wadehra

2006-12-07

R.S.CHAUHAN

body2006
JUDGMENT 1. - Callous and uncaring for his father, but coveting his father's property, the son, Group Captain Kapoor, has challenged the orders dated 9.5.2005 and 15.7.2005 passed by the District Judge, Jaipur City, Jaipur. By the former Order, the learned Judge had dismissed an application filed by the appellant challenging the continuation of the proceeding for probate. By the latter Order, the learned judge had granted the probate in favor of the respondents. 2. The brief facts of the case are that the family of Mr. Kundan Lal Kapoor consisted of his wife, Mrs. Kanta Kapoor, their only son, the appellant, and the two daughters, the respondents. On 3.5.2000, Mr. Kundan Lal Kapoor expired. On the basis of his will, his wife and daughters filed an application under Section 276 of the Indian Succession Act, 1925 (henceforth to be referred to as 'the Act', for short) before the learned Judge for probate/letter of administration. According to the plaint, Mr. Kundan Lal Kapoor had left a will, dated 9.9.1997, in the favor of the plaintiffs. Since Mr. Kundan Lal Kapoor was unhappy about the way his son had maltreated him, he had intentionally disinherited the son and left him out of the will. Although he was disinherited, still the appellant filed an application for being arrayed as a necessary party in the suit. However, the learned judge dismissed the said application vide Order dated 4.10.2002. On 5.11.2002, Mrs. Kanta Kapoor, the mother, also expired. When the appellant came to know about his mother's demise, he moved an application stating that when one of the executor dies, the right to get a letter of administration or probate does not survive for the others, for such a right is a personal one and does not devolve upon the heirs. Therefore, the application filed by the respondents should be dismissed. However, vide Order dated 9.5.2005, the learned Judge dismissed the said application. Subsequently, vide Order dated 15.7.2005, the learned Judge granted the probate in favor of the plaintiffs-respondents. Hence, this appeal before this court. 3. Mr. B.L. Agarwal, the learned counsel for the appellant, has vehemently argued that the application for seeking probate was filed by the two daughters, the respondents, and by their mother Smt. Kanta Kapoor. However, as the mother has expired, the son, the appellant, has a right to the property left in favour of his mother. 3. Mr. B.L. Agarwal, the learned counsel for the appellant, has vehemently argued that the application for seeking probate was filed by the two daughters, the respondents, and by their mother Smt. Kanta Kapoor. However, as the mother has expired, the son, the appellant, has a right to the property left in favour of his mother. Hence, the proceedings initiated by the respondents cannot be continued. According to the learned counsel, the learned judge has erred in dismissing the said application. Moreover according to the learned counsel, two persons who were witnesses to the alleged will left by Smt. Kanta Kapoor have filed their affidavits stating therein that they did not see Smt. Kanta Kapoor signing the will. But instead, they were asked to sign on blank piece of papers. Therefore, the validity of Smt. Kanta Kapoor's will is in question. However, the learned judge has erred in not relying on these witnesses. As far as the order dated 15.7.2005 is concerned, the learned counsel did not submit any argument against the said order. 4. On the other hand, Mr. G.C. Lunia and Mr. L.L. Gupta, the learned counsels for the respondents, have strenuously argued that the appellant's application for being impleaded as a party, was rejected vide order dated 4.10.2002. Subsequently, the application moved by the appellant was not for impleadment, but was for setting aside the proceeding for obtaining probate/letter of administration by the remaining beneficiaries. Since he was not a party and since his application for impleadment was rejected, the appellant has no locus-standi to question the continuation of the proceedings. Moreover, even if one of the beneficiaries expires, the proceedings can be continued by other beneficiaries. Furthermore the question of validity of Smt. Kanta Kapoor's will cannot be raised in this proceeding. Therefore, the affidavits filed by the two witnesses of the will is immaterial. Lastly, that the order dated 9.5.2005 has merged with the final order dated 15.7.2005. Therefore, the same cannot be challenged after passing of the final order. 5. We have heard the learned counsels for both the parties, have perused the impugned orders and the record which was produced before us. We have also gone through the will of Mr. Kundan Lal Kapoor. 6. Undoubtedly, the will contains the last wishes of the deceased which he communicates to the world through the will. 5. We have heard the learned counsels for both the parties, have perused the impugned orders and the record which was produced before us. We have also gone through the will of Mr. Kundan Lal Kapoor. 6. Undoubtedly, the will contains the last wishes of the deceased which he communicates to the world through the will. These wishes are to be respected not only morally, but also to be implemented legally. A bare perusal of the will of Mr. Kundan Lal Kapoor clearly reveals the extreme pain and agony caused to him by maltreatment and by the mistreatment of his only son. Mr. Kundan Lal Kapoor has given detailed reasons for disinheriting the appellant. He has even gone to the extent of saying that in case the house constructed by him is not needed for residential purpose the same should be used for setting up a senior citizen home for those who are maltreated by their son(s). According to his will, the beneficiaries were his wife and his two daughters. Since the appellant was specifically left out in the will, the learned Judge was justified in dismissing the application filed by the appellant for being impleaded as a party. Therefore, the right to seek a probate was left only with the wife and the two daughters. With the death of Smt. Kanta Kapoor, the right to seek a probate survives only on the other two beneficiaries of the will, namely, the respondents, in the case of Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji Shivsinhji and others, AIR 1963 Gujarat 32 , the Hon'ble Gujarat High Court has clearly held that an executor, named in the will and who may happen to be a beneficiary under the will, in applying for probate does not fight a personal action but fights for the interests of all the beneficiaries under the will. Therefore, the action of an executor in applying for, a probate is not in substance a personal action. In case of his demise pending the probate proceedings the maxim action persona is mortiur cum persona does not apply. On the death of the executor the action which he started does not come to an end and any of those whom he was representing are entitled to intervene and carry on the proceedings with a modification by way of an amendment praying the Court to grant letters of administration with the will annexed". On the death of the executor the action which he started does not come to an end and any of those whom he was representing are entitled to intervene and carry on the proceedings with a modification by way of an amendment praying the Court to grant letters of administration with the will annexed". Clearly, the executors and the beneficiaries in the will of Mr. Kundan Lal Kapoor were the daughters and the wife and not the appellant. Therefore, even after the death of Smt. Kanta Kapoor, the respondents had a right to continue proceedings for probate/for letter of administration. In fact the application was filed for probate and/or for letter of administration. Therefore, the learned judge was justified in rejecting the appellant's application, vide Order dated 9.5.2005. 7. Admittedly, Smt. Kanta Kapoor's will could not be challenged in the proceedings pending before the trial court. In case the appellant wanted to challenge the same, he was free to pursue the legal remedy in accordance with the law. Therefore, the affidavits submitted by the two witnesses of Smt. Kanta Kapoor's will is immaterial to the proceedings pending before the trial court. Hence the trial court has rightly not relied and has rightly not commented about the affidavits filed by the two witnesses. 8. Moreover, once a final order has been passed vide order dated 15.7.2005, it is too late in the day for the appellant to challenge the order dated 9.5.2005. For, the order dated 9.5.2005 has merged with the final order dated 15.7.2005. In case the appellant was eager to challenge the order dated 9.5.2005, he should have challenged the order immediately after it was pronounced and not after the final order has been passed. 9. Considering the will of Mr. Kundan Lal Kapoor, a will which is Self-explanatory, the learned judge has validly and legally passed the order dated 15.7.2005 issuing probate in favour of the respondents.In the result, there is no merit in this appeal. It is, hereby, dismissed. There shall be no order as to costs.Appeal Dismissed. *******