Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 6 (JK)

Rattan Mani v. Mohinder Kumar

2009-01-02

SUNIL HALI

body2009
1. The question of law to be determined in this appeal, is whether in absence of naming executor in the will, probate can be granted in favour of beneficiary. In order to resolve the controversy involved in this appeal, some brief facts are required to be given. 2. An application was filed by the respondents seeking issuance of probate of will dated 19-8-1983 executed by testator late Misru Ram in their favour. It is mentioned that the applicants are the sons of Late Misru Ram, who has expired and prior to his death, he had executed a will dated 19-8-1983 registered with Sub Registrar, Billawar whereby he has bequeathed his property movable and immoveable in equal share in favour of respondents 1 to 3. The deceased Misru Ram was owner in possession of large chunk of land, details of which are not required to be given, as the same are not in dispute. The details of property are indicated in the impugned order. 3. Learned District Judge, Kathua after hearing the parties and examining the witnesses, issued a probate vide order dated 30-11-2007 in favour of the respondents. It is this order, which is the subject matter of challenge in this appeal. 4. I have heard the learned counsel for the parties. 5. Mr. A.P. Singh, learned counsel for the petitioner has contended that the respondents 1 to 3 could not be granted probate as they were not appointed as an executors in the said will. In order to appreciate this controversy, it is important to note certain provisions of the Probate and Administration Act, 1977 (hereinafter called the Act). Section-6 of the Act states that probate can be granted only to an executor appointed by the will. Section-7 of the Act states that appointment may be express or by necessary implication. Section 19 of the Act deals with the grant of administration to universal of residuary legatee. Section-6 of the Act states that probate can be granted only to an executor appointed by the will. Section-7 of the Act states that appointment may be express or by necessary implication. Section 19 of the Act deals with the grant of administration to universal of residuary legatee. For facility of reference, section-19 of the Act is reproduced as under : Grant of administration to universal of residuary legatee: When the deceased has made a will, but has not appointed an executor, or when he has appointed an executor who is legally incapable or refuses to act, or has died before the testator ,or before he has proved the will, or when the executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or 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 un-administered. 6. A conjoint reading of the aforementioned sections of the Act clearly reveals that probate can be granted in favour of the executor appointed by the will and letters of administration can be granted when the deceased made the will but has not appointed executor who is legally capable or has died before the testator or before he has proved the will. 7. The Act provides two different provisions for grant of probate and letters of administration. Another provision, which is relevant, is section 90 of the Act which defines power of executor or administrator to dispose of the property. For facility of reference, section 90 of the Act is quoted hereinbelow: 90. Power of executor or administrator to dispose of property. (1) An executor or administrator has, subject to the provisions of this section, power to dispose, as he thinks fit, of all or any of the property for the time being vested in him under section 4. For facility of reference, section 90 of the Act is quoted hereinbelow: 90. Power of executor or administrator to dispose of property. (1) An executor or administrator has, subject to the provisions of this section, power to dispose, as he thinks fit, of all or any of the property for the time being vested in him under section 4. (2) The power of an executor to dispose of immovable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order. (3) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,- (a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 4, or (b) lease any such property for a term exceeding five years. (4) A disposal of property by an executor or administrator in contravention of sub-section (2) or sub-section (3), as the case may be, is viodable at the instance of any other person interested in the property. (5) Before any probate or letters of administration is or are granted under this Act -there shall be endorsed thereon or annexed thereto a copy of sub-section (1), (2) and (4), or sub-section (1), (3) and (4), as the case may be. (6) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by the last foregoing sub-section not having been made thereon or attached thereto, not shall the absence of such an endorsement of annexure authorize an executor or administrator to act otherwise than in accordance with the provisions of this section. 8. The provision indicates the power of an executor or administrator to dispose of the property. It is clearly visible that an executor can dispose of property so vested in him, subject to any restriction which may be imposed in the Will itself. In essence, an executor can dispose of property without any limitation subject to the restriction imposed hereinabove. 8. The provision indicates the power of an executor or administrator to dispose of the property. It is clearly visible that an executor can dispose of property so vested in him, subject to any restriction which may be imposed in the Will itself. In essence, an executor can dispose of property without any limitation subject to the restriction imposed hereinabove. In case of an administrator, he has no power to dispose of property without prior permission of the court by which the letter of administration was granted. 9. A conjoint reading of the aforesaid provisions, clearly demarcates that an executor and an administrator have distinct identity under the Act. It cannot be said that grant of probate in favour of a legatee will be in consonance with the provisions of the Act. 10. Mr. A.P. Singh has relied upon various judgments of the courts to substantiate his plea. He relied upon the Division Bench Judgment of the Calcutta High Court entitled Pundit Prayrag Raj Vs. Goukaran Pershad Tiwari and others reported in Calcutta Weekly Notes 787. The judgment states that : Where probate was granted to an universal legatee by mistake: That such grant was invalid from the first and the person to whom such grant was made could not be constituted an executor so as to be empowered to exercise any of the powers conferred on executor under the Act. 11. Mr. Singh has also relied upon another judgment dated 20-11-2008 of Co-ordinate bench of this court passed in CIMA No. 116/08. In this judgment the court has held that : The probate and Administration Act, hereinafter referred to be as an Act, contemplates Probate of a Will to a person whom the execution of the last Will of the deceased, is, by the testators appointment confined. This appointment may in terms of section 7 of the Act be express or implied by necessary implication. The phraseology employed in section 6 of the Act may not contemplate grant of Probate to anyone other than the executor(s) appointed by the Will. 12. Delhi High Court in case titled Inder Chand Nayyar Vs. This appointment may in terms of section 7 of the Act be express or implied by necessary implication. The phraseology employed in section 6 of the Act may not contemplate grant of Probate to anyone other than the executor(s) appointed by the Will. 12. Delhi High Court in case titled Inder Chand Nayyar Vs. Sarvadeshik Arya Pratindhi Sabha and another reported in AIR 1977 Delhi 34 has held that: Where there were no words contained in the will which either expressly or by necessary implication entrusted the duty of execution of the will or the letters of administration of the estate of the deceased to R who was named as the sole beneficiary under the will and therefore the legatee. Held that R was not appointed executor in the will either expressly or by necessary implication and consequently probate could not be granted to him. 13. Mr. L.K. Sharma on the other hand relied upon a judgment of this court dated 10-9-1997 passed in CIMA No. 19/1994 in case titled Mool Raj Vs. Raman Gupta and others. In this judgment, the court has held that: where probate could not be granted, but the administration could be granted on the same application. In the circumstances, it is deemed under law that grant of probate under section-16 is legalized... 14. A conjoint reading of the aforementioned judgments clearly reveals that probate can be granted in favour of the executor nominated in the will and not in favour of beneficiary/legatee. The legatee has only right to seek letter of administration. 12. Another question arises in this appeal is, whether an application filed by an administrator for seeking probate can be converted into an application for the grant of letter of administration. The aforesaid judgments relied upon by the petitioner clearly state that an application for probate by a legatee/beneficiary cannot be treated as an application for grant of letter of administration. In case this application filed by the respondents is to be treated as an application for letter of administration, the present appellant would lose his right to appeal against the same. 13. I, therefore, allow this appeal and remand the case to the District Judge, who shall hear the parties afresh. I refrain in expressing my opinion on the merits of the case with regard to the genuineness or otherwise of the will. 13. I, therefore, allow this appeal and remand the case to the District Judge, who shall hear the parties afresh. I refrain in expressing my opinion on the merits of the case with regard to the genuineness or otherwise of the will. The trial court will hold an enquiry into the matter. Let the parties to appear before the Court below on 22-1-2009.