Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 69 (CAL)

In The Matter Of Narendra Nath Mitra v. .

2012-01-19

I.P.MUKERJI

body2012
Judgment : I.P. MUKERJI, J. The dispute in this case emanates out of the last will and testament dated 23rd July, 1960 of Narendra Nath Mitra. He died on 15th December, 1963. In his will the testator had appointed Smt. Amiya Bala Mitra and Mr. Sunil Krishna Mitra as executrix and executor respectively. Amiya Bala Mitra died on 29th November, 1985. Sushil Krishna Mitra continued to function as the sole executor. He applied for probate of this will in this High Court. The application was numbered as PLA No. 359 of 2008. It became contentious. Debasish Kumar Sinha one of the sons of the deceased second daughter of the testator Shanti Sinha opposed the grant. The proceeding has been declared to be contentious by this Court and numbered as a suit being testamentary suit no. 14 of 2009. Now, Sushil Krishna Mitra died on 7th January, 2011. On 6th July, 2011 Anindya Mitra filed an application. He is one of the sons of a deceased legatee and son of the testator, Anil Krishna Mitra. He wants the Court to record the death of Sushil Krishna Mitra. He wants the application for grant of probate to be treated as an application for grant of letters of administration with a copy of the will dated 23rd July, 1960. He wants to prosecute the application for grant of probate. On 19th September, 2011, an application was filed by Sudhir Krishna Mitra. He is the surviving legatee under the will of the testator. He seeks to be added as a co-applicant with Mr. Anindya Mitra for grant of letters of administration with a copy of the will annexed. He says that he is 68 years of age and ailing. He lives in New Delhi. It would not be possible for him to prosecute the application for letters of administration, all alone. Hence, he wants to be joined as co-applicant with Anindya Mitra. This application by Anindya Mitra is opposed by the caveators to the will. It is submitted that on a construction of sections 232, 233, 234 and 235 of the Indian Succession Act, 1925, in the absence of the appointed executor, a universal or residuary legatee may be admitted to prove the will. Anindya Mitra is neither a universal nor a residuary legatee, being the son of a deceased legatee. It is submitted that on a construction of sections 232, 233, 234 and 235 of the Indian Succession Act, 1925, in the absence of the appointed executor, a universal or residuary legatee may be admitted to prove the will. Anindya Mitra is neither a universal nor a residuary legatee, being the son of a deceased legatee. The caveators do not have any objection to the Court permitting Sudhir Krishna Mitra to apply for letters of administration, as he is a surviving legatee. Section 232 states inter alia, that if an appointed executor dies 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 a part of it. A residuary legatee is defined in Section 102 of the Act. It says that a person who will take the surplus or the residue of the property is a residuary legatee. A universal legatee according to the definition of universal succession in Black’s Law Dictionary and of universal legatee by P. Ramanatha Aiyar in Concise Law Dictionary is one who takes the whole estate. Now, let me come to Section 233 which says that when a residuary legatee with a beneficial interest dies after the testator, his representative will have the same right. Section 234 states inter alia that in the absence of a representative of a residuary legatee administration could be granted to an heir who would have succeeded on intestacy, a creditor or any other legatee having a beneficial interest. Section 235 stipulates that letters of administration will not be granted to any legatee other than a universal or residuary legatee unless citation has been issued. Before dealing with contention of the caveators some other provisions of the Act have to be examined. Generally, the legatee has a vested interest from the date of the death of the testator. If the legatee dies after the testator, without receiving the bequest, it shall pass to his representatives (See Sections 104 and 105). Under Section 105, if the legatee does not survive the testator the legacy lapses. Generally, the legatee has a vested interest from the date of the death of the testator. If the legatee dies after the testator, without receiving the bequest, it shall pass to his representatives (See Sections 104 and 105). Under Section 105, if the legatee does not survive the testator the legacy lapses. However, Section 109 provides that where a bequest is made to a testator’s child or lineal descendant and that legatee dies in the lifetime of the testator, the bequest will not lapse but shall take effect as if the death of the legatee had happened immediately after the death of the testator. Reading these sections together one forms an opinion that if a legatee dies without receiving the legacy, after the death of the testator, the legacy passes to his representatives. Therefore, in my judgment the heirs of such a legatee are also treated like legatees, under sections 104 and 105. Even if the legatee dies before the testator and he happens to be his child or lineal descendant, his heirs are treated similarly. The father of Anindya Mitra was Anil Krishna Mitra. The latter was the eldest son of the testator. The last will and testament was published on 23rd July, 1960. The testator died on 15th December, 1963. Anil Krishna Mitra died on 5th November, 1996. Undisputedly, Anil Krishna Mitra was a legatee under the will. Therefore, Anil Krishna Mitra the eldest son of the testator and legatee under the will, surviving the testator, died almost 33 years after the testator. Therefore, under sections 104 and 105 of the Act, Anil Krishna Mitra had a vested interest in the legacy from the date of death of the testator on 15th December, 1963 and after his death the said interest passed to his son Anindya Mitra. As I have said before, the representative of a deceased legatee, who died after the death of the testator is also to be treated as a legatee. Anindya Mitra can be treated as such legatee. Now, Section 232 inter alia, provides that when an executor dies before he has proved the will a universal or residuary legatee may by admitted to prove the will and letters of administration with the will annexed may be granted to him of the whole estate or a part of it. Anindya Mitra can be treated as such legatee. Now, Section 232 inter alia, provides that when an executor dies before he has proved the will a universal or residuary legatee may by admitted to prove the will and letters of administration with the will annexed may be granted to him of the whole estate or a part of it. Now, Sudhir Krishna Mitra the applicant in G.A. No. 2906 of 2011 is the only surviving original legatee. But on a reading of the aforesaid sections of the said Act he cannot be called a universal legatee because he does not get the whole of the estate. Anindya Mitra is also treated, in the facts and circumstances mentioned above as a legatee. So both are legatees or to be treated as legatees as the case may be but not universal or residuary legatees. Next section 234 comes into play. It seems to provide that when there is no executor or residuary legatee letters of administration can be granted to any other legatee. It is in this context that the Division Bench of the Madras High Court in Soundararaja Peter and Others vs. Florance Chellaih and Others AIR 1975 Madras 194 said in paragraph 6 of the judgment as follows: “6. Section 232 applies to a case where the testator has not appointed an executor. The section states that where an executor has not been appointed under a Will or the executor appointed is incapable of or has refused to act or has died before the testator or before proving the will, 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 estate. Section 235 provides that letters of administration with the will annexed shall not be granted to any legatee other than an universal or a residuary legatee, until a citation has been issued and published in the manner prescribed by the provisions of that Act. Mr. Parasaran contends that though letters of administration could be granted under Section 232 to an universal or a residuary legatee, the plaintiff not being an universal or a residuary legatee, is not entitled to the letters of administration under the said provision. Mr. Parasaran contends that though letters of administration could be granted under Section 232 to an universal or a residuary legatee, the plaintiff not being an universal or a residuary legatee, is not entitled to the letters of administration under the said provision. It is also further pointed out that no citation having been issued or published in the manner prescribed by the Indian Succession Act, no letters of administration could be issued to the plaintiff even if she is treated as an universal or a residuary legatee in view of the prohibition contained in Section 235. It is true that the plaintiff is not an universal or a residuary legatee under the terms of the will Ex. A-1. She is one of the four legatees under the terms of the will Ex. A-1 and all the properties covered by the will have been bequeathed to them and there is no residue to be administered. We do not understand the provisions in Section 232 as enabling only a residuary or an universal legatee to prove the Will and claim letters of administration. Section 234 specifically provides that any legatee having beneficial interest may also prove the will and seek a letters of administration. The plaintiff being a legatee under the will and there being no universal or residuary legatee, the provisions of Section 234 will come into play. The plaintiff is therefore entitled to prove the will and get letters of administration in relation to that will.” Letters of administration should be for the interest of all the legatees as held in Govind M. Asrani vs. Jairam Asrani and Another AIR 1963 Madras 456. (See paragraph 13 and 14 of the judgment) The surviving legatee under the will Sudhir Krishna Mitra has specifically stated in paragraph 12 of the application that he resides in New Delhi and is of indifferent health. Furthermore he says that it would not be practicable for him to apply solely for letters of administration and that letters must be granted to him jointly with Anindya Mitra. I accept such submission. On the basis of my discussion above I admit Anindya Mitra and Sudhir Krishna Mitra jointly to prove the last will and testament of Narendra Nath Mitra, by recording the death of Sunil Kumar Mitra, the executor. I pass an order in terms of prayers (c) (d) (f) of G.A. 1998 of 2011. I accept such submission. On the basis of my discussion above I admit Anindya Mitra and Sudhir Krishna Mitra jointly to prove the last will and testament of Narendra Nath Mitra, by recording the death of Sunil Kumar Mitra, the executor. I pass an order in terms of prayers (c) (d) (f) of G.A. 1998 of 2011. I direct the department to carry out the amendments within three weeks of communication of this order. Both the applications G.A. 1998 of 2011 and G.A. 2906 of 2011 are allowed to the above extent. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.