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2007 DIGILAW 1620 (PAT)

Ramjee Pandit v. Dhramdeo Pandit

2007-10-03

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellants as well as learned counsel for respondent no. 1. Inspite of valid service of notice, respondent no. 2 has not appeared, although his brother respondent no. 1 has appeared and is contesting the appeal. 2. This Miscellaneous Appeal is directed against order dated 26.9.2002 by which the learned Additional District Judge, 1st Court, Begusarai rejected the petition filed by the applicants (appellants) for substituting them in place of deceased plaintiff no. 1 Ramasis Pandit and consequently dismissed Title Suit No. 01 of 1987 as abated. 3. Probate Case No. 58 of 1983 was filed by Ramasis Pandit and his brother Fudan Pandit under the provision of Sec. 276 of the Indian Succession Act. 1925 (hereinafter referred to as the "Act" for the sake of brevity) for probate of the Will executed on 1.4.1921 by one Most. Sukhia Devi in favour of her grand sons (Natis). namely Fudan Pandit and Ramasis Pandit. The plaintiffs claim was that the said Most. Sukhia Devi was the exclusive owner of the property in question and it was recorded in her name and when she became old, the said applicants, who were the sons of her only daughter, started looking after her and her properties on her behalf and Most. Sukhia Devi being pleased with their services executed the aforesaid Will in their favour on 1.4.1921 and subsequently died on 7.12.1930 and the said Will was her last Will. 4. On 6.5.1985 the respondents filed an application under Order I, Rule 10 of the Code of Civil Procedure for being added as objectors in the Probate Case and, challenged the genuineness of the Will, genealogy and, also the manner of devolution of the estate, although the said objectors were complete strangers to the family. The said respondents were impleaded as parties by the learned court below in the Probate Case which was subsequently converted into a regular suit bearing Title Suit No. 01 of 1987 under the provision of Sec. 295 of the Indian Succession Act. 5. Thereafter Plaintiff No. 2 Fudan Pandit died on 23.7.1989 and a petition was duly filed in the court below on 20.11.1989 informing that Fudan Pandit had died issueless but inspite of that no order was passed by the learned court below on the said petition and the suit continued in the name of both the plaintiffs. 5. Thereafter Plaintiff No. 2 Fudan Pandit died on 23.7.1989 and a petition was duly filed in the court below on 20.11.1989 informing that Fudan Pandit had died issueless but inspite of that no order was passed by the learned court below on the said petition and the suit continued in the name of both the plaintiffs. Subsequently, the remaining legatee, plaintiff no. 1 Ramasis Pandit also died and a petition was filed by the appellants on 14.2.2002 (annexure-1) for being substituted in his place as the appellants being the son and daughters of Ramasis Pandit were his only heirs and legal representatives. 6. The defendants-respondents filed their rejoinder on 3.6.2002 ( annexure-2) to the aforesaid substitution petition on the ground that provision of Order XXII of the Code of Civil Procedure was not applicable to the cases governed by the Act and since both the executors of the Will, namely Ramasis Pandit and Fudan Pandit, had died, no executor of the Will survives and hence no right to sue also survives as according to the provisions of the Act only an executor has the right to get the Will probated. 7. The said issue was considered and decided by the learned court below by its impugned order dated 26.9.2002 holding that Sections 222 and 223 of the Act clearly bars the right of substitution of the heirs and legal representatives of executors and since both the executors had admittedly died during pendency of the suit, the suit was dismissed as abated. 8. The said order is being challenged by the appellants on the ground that Sec. 295 of the Act specifically provides that in any case before the District Judge in which there is contention, the proceedings shall take the form of a regular suit, according to the provisions of Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant, hence learned counsel for the appellants submitted that in the instant case, provisions of the Code of Civil Procedure including Order XXII shall be applicable. Learned counsel for the appellants also averred that no doubt earlier the case was merely a Probate Case, but due to contest by the defendants-respondents, it was converted into a regular Title Suit governed by the Code of Civil Procedure. In support of his contentions, learned counsel for the appellants relied upon several decisions of the Hon ble High Courts and Hon ble Apex Court, namely, in cases of Nira Kanta Chutia vs. Smt. Bedoi Chutiani and Another, reported in AIR 1977 Gauhati 70 (Full Bench): Smt. Kishori Devi vs. Rameshwar Singh & Ors., reported in 1981 ILR (Pat) 722; M/s Goodyear India Ltd. vs. State of Haryana and Another, reported in AIR 1990 Supreme Court 781; M/s. Zee Tele Films Ltd. and Another vs. Union of India and Others, reported in AIR 2005 Supreme Court 2677: and Shambhu Prasad Agarwal and Others vs. Bhola Ram Agarwal, reported in (2000) 9 SCC 714 . 9. On the other hand, learned counsel for defendant-respondent no. 1 submitted that the impugned order of the learned court below was quite legal and justified as in a Probate Case no petition for substitution of the heirs and legal representatives of an executor can be allowed even if it is converted into a title suit. He further stated that the law is well settled in that regard, according to which had the case been a case for grant of letter of administration such petition could have been allowed, but the case in hand is not for grant of letter of administration, rather it is for grant of probate in which no substitution can be allowed as the alleged heirs, namely the appellants, are admittedly not the executors. In this connection, he relied upon several decisions of this High Court, namely in cases of Mr. Phekni vs. Mr. Manki, reported in AIR 1930 Patna 618 (DB); Sheo Narain Prasad vs. Santoo Sao and Another, reported in 1967 BUR 326; Dr. Harish Chandra Prasad vs. Jagarnath Prasad & Others, reported in 1985 PLJR 918 (DB); and Sushila Devi vs. Bishwanth Ram & Others, reported in 1992(1) PLJR 495 (F.B.). 10. Having heard learned counsel for the parties and having perused the materials on record including the impugned order, it is quite apparent that the parties, their respective counsel as well as the learned court below are quite confused with regard to term "executor". 10. Having heard learned counsel for the parties and having perused the materials on record including the impugned order, it is quite apparent that the parties, their respective counsel as well as the learned court below are quite confused with regard to term "executor". "Executor" means a person who is appointed by the testator to see that the Will created by him is carried into effect and hence executor is a person who merely executes or performs the Will. But here the case is a bit different as the testator, namely Sukhiva Devi, had executed the Will leaving legacy in favour of the original plaintiffs and had bequeathed her personal property in their favour and hence the plaintiffs were the "legatees" in the strict term thereof, which means persons to whom the legacy is left by way of a bequest in their favour by the testator, namely the original owner. 11. No doubt Sec. 295 of the Act provides that in any case in which there is contention, the succession proceeding shall take the form of a regular suit according to provision of the Code of Civil Procedure in which the petitioner shall be the plaintiff and the person who opposes shall be defendant but Sec. 268 of the Act provides that the provisions of the Code of Civil Procedure shall be applicable only so far as the circumstances of the case permit and hence all the provisions of the Code of Civil Procedure cannot be made legally applicable to such a suit. In addition to that Sections 222 and 223 of the Act specifically provide that probate shall be granted only to an executor appointed by the Will and not to any other person. 12. So far the case laws relied upon by the learned counsel for the appellants are concerned the decisions of the Hon ble Apex Court in cases of M/s Goodyear India Ltd. (Supra) as well as in case of M/s Zee Tele Films Ltd. (supra) are not applicable to the facts and circumstances of the instant matter regarding probate. So far the decision of the Full Bench of Gauhati High Court in case of Nira Kanta Chutia (supra) is concerned, it is with respect to an application under Order IX of the Code of Civil Procedure and not with respect to a matter concerning Order XXII of the Code. So far the decision of the Full Bench of Gauhati High Court in case of Nira Kanta Chutia (supra) is concerned, it is with respect to an application under Order IX of the Code of Civil Procedure and not with respect to a matter concerning Order XXII of the Code. So far the decision of this court in case of Smt. Kishori Devi (supra) is concerned it has been held that in case of demise of executor pending the probate proceedings the maxim actio peronalis moriture-cum-persona does not apply as 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 in the relief. From the aforesaid proposition of law it is quite apparent, that the Hon ble Court had held that when an executor dies, his heirs cannot be substituted, rather the legatees whom he was representing are entitled to intervene and carry on the proceeding with a modification in the relief, i.e. for issuance of a letter of administration in place of probate. 13. So far the case laws relied upon by learned counsel for the respondents is concerned, this court has repeatedly held in case of Most. Phekni (supra), in case of Sheo Narain Prasad (supra), in case of Dr. Harish Chandra Prasad (supra), in case of Sushila Devi (supra) that the legal representatives of the executor cannot be substituted in the original proceeding/ suit. However, a distinction has been made with regard to substitution in an appeal against judgment of the original/trial court in a case under the Act. There is no problem or difficulty in allowing a substitution at the appellate stage because the judgment of the trial court either granting or refusing to grant probate or a letter of administration is a judgment in rem and will affect everybody who is entitled to any benefit under the Will and if the substitution at the appellate stage is not allowed, the said judgment of the trial court, however, bad in law it may be, shall remain final and binding not only on the parties to the appeal, but also on other persons. But this proposition of law cannot be made applicable in case of substitution of the heirs of executor at the trial stage. 14. But this proposition of law cannot be made applicable in case of substitution of the heirs of executor at the trial stage. 14. From the aforesaid provisions of law and case laws it is quite apparent that if an executor dies, his heirs cannot be substituted in a proceeding/suit for probate because the executor possesses a personal right only to execute the Will, but where a legatee dies the matter would be different as his heirs would have an interest under the Will itself and they are competent persons to obtain letter of administration and there is nothing in law which stands in the way of the heirs of the legatee to apply for carrying on proceedings as persons interested in the Will. In a similar matter in case of Shambhu Prasad Agarwal and others (supra), the Hon ble Supreme Court has held as follows: "6. For the aforesaid reason, we set aside the orders under challenge and send the case back to the trial court. We permit the appellants to be substituted in the proceedings and also permit them to amend the petition. It goes without saying that after the remand, it will be open to the parties to take such plea as may be available to them under the law. Since the matter is pending for a considerable time, we direct the lower court to decide the matter expeditiously. The appeal is allowed. There shall be no order as to costs." 15. In the instant case, although the original applicants/plaintiffs filed the probate case as executors, but in fact they were legatees and had an interest in the Will as the testator had bequeathed her property to them and hence after their deaths their heirs have inherited their interest under the Will and accordingly they are legally competent to obtain letter of administration in their favour with respect to the Will. In the said circumstances, in my view the appellants could not legally be substituted as heirs of executors, but they were definitely entitled to be substituted as heirs of the legatees and hence the appellants should have been substituted in place of the deceased applicants/ plaintiffs not as executors but as legatees in the court below with permission to modify the reliefs by claiming issuance of letters of administration in place of probate for the ends of justice. This is requirement of equity and justice as propounded by the aforesaid judicial pronouncements. 16. In the aforesaid circumstances, the impugned order is hereby set aside and the matter is remitted to the trial court with a direction that the appellants should be substituted in the proceeding in place of the plaintiffs and permit them to amend their petition/plaint in the court below. However, it will be open to the parties to take any such plea, as is available to them in accordance with law. 17. With the said directions/observations, this appeal is allowed with a direction to the learned court below to decide the matter expeditiously. However, in the facts of this case, there would be no order as to costs.