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2017 DIGILAW 2526 (RAJ)

Kalyan Sahai v. Mangi Lal Selibet Disciple

2017-11-16

ALOK SHARMA

body2017
JUDGMENT Alok Sharma, J. - Under challenge is the order dated 7.10.2013 passed by the District Judge, Ajmer whereby the petitioner-defendant''s (hereafter ''defendant'') application objecting to the probate proceedings qua the Will dated 24.9.1990 executed by the Chetan Puri initiated in the first instance by Mangi Lal being continued subsequent to his death at the instance of one Bal Mukund earlier substituted as his legal representative (hereafter LR) under Order dated 1.2.2010 passed under an application under Order 22, Rule 3 CPC, was dismissed. Inevitably now also under challenge belatedly in 2014 is the order dated 1.2.2010, whereby Bal Mukund was allowed to be substituted for Mangi Lal in the probate proceedings aforesaid. 2. Mangi Lal through his power of attorney holder Bal Mukund had filed a probate application under section 276 of the Indian Succession Act, 1925 qua the Will dated 24.9.1990 executed by one Chetan Puri. During the pendency of the aforesaid probate proceedings Mangi Lal died on 5.4.2008. On 3.5.2008, an application was moved by Bal Mukund seeking substitution for Mangi Lal on the strength of his Will dated 5.6.2007 in the said proceedings qua Chetan Puri''s Will dated 24.9.1990. Vide order dated 1.2.2010, Bal Mukund was substituted for the deceased Mangi Lal without any right being conferred on him from the substitution. Admittedly the said order dated 1.2.2010 was not put to challenge and probate proceedings continued. 3. An application then came to be filed by petitioner Kalyan Sahai before the trial court on 16.4.2013 objecting to the very maintainability of the proceedings for probate of Chetan Puri''s Will dated 24.9.1990 in view of the death of Mangi Lal, the executor. It was submitted that the proceedings for grant of probate of the Will dated 24.9.1990 being personal in nature, following the sole executor Mangi Lal''s death on 5.4.2008, the proceedings abated and be so held. The trial court has dismissed the said application vide its order dated 7.10.2013. Hence this petition. 4. Mr. Rajeev Surana appearing for the petitioner relied upon the judgment of the Mumbai High Court in the case of Thrity Sam Shroff vs. Shiraz Byramji Anklesaria and anr. reported in 2007 Mh. The trial court has dismissed the said application vide its order dated 7.10.2013. Hence this petition. 4. Mr. Rajeev Surana appearing for the petitioner relied upon the judgment of the Mumbai High Court in the case of Thrity Sam Shroff vs. Shiraz Byramji Anklesaria and anr. reported in 2007 Mh. L.J. 56 to submit that probate proceedings being personal in nature in the event of the death of the executor/s and in the absence of any legatee/s seeking substitution in the probate proceedings, the application for grant of probate deserved dismissal as having abated. 5. Per contra, Mr. Reashm Bhargava appearing for the respondent Bal Mukund submitted that the judgment of the Mumbai High Court in the case of Thrity Sam Shroff (supra) was eventually held to be not good law by a subsequent Division Bench judgment of the Mumbai High Court in the case of Smt. Vatsala Srinivasan vs. Narisimha Raghunathan and anr. Appeal No. 1009 of 2010; decided on 19.1.2011. It was submitted that in the aforesaid case, the Mumbai High Court has held that the case of Thrity Sam Shroff (supra) was not correctly decided for having failed to notice the judgment of the Apex Court in the case of Shambhu Prasad Agarwal and others vs. Bhola Ram Agarwal reported in (2000) 9 SCC 714 , where it was held that in the event of death of an executor seeking probate of a Will, he was entitled to be substituted by his LRs for the reason that probate proceedings effectively were with regard to the genuineness and authenticity of the Will sought to be probated and hence representative in character. Mr. Reashm Bhargava further submitted that on the statement of law by the Apex Court in the case of Shambhu Prasad Agarwal (supra), Bal Mukund as the legatee of Mangi Lal under his Will dated 5.6.2007 was entitled to be substituted for continuing with the probate proceedings filed in the first instance by Mangi Lal qua Will dated 24.9.1990 executed by Chetan Puri. Mr. Reashm Bhargava further submitted that the Calcutta High Court in the case of Subodh Gopal Bose and Dipak Kumar Sarkar and Aloke Sen and ors. Mr. Reashm Bhargava further submitted that the Calcutta High Court in the case of Subodh Gopal Bose and Dipak Kumar Sarkar and Aloke Sen and ors. reported in (2015) 3 WBLR (Cal) 662 has held that even if a Will is not probated, it does not prevent the vesting of the property of the deceased in the executor and consequently, any right of action to represent the estate of the executor can be initiated even before the grant of probate. It was submitted that in this view of the matter, even though the Chetan Puri''s Will dated 24.9.1990 could not be got probated by Mangi Lal, despite having taken proceedings therefor before the Civil Court, for reasons of his death, Mangi Lal was not denuded of his right to execute a Will, in regard to the matters in the probate proceedings, as set out in favour of Bal Mukund on 5.6.2007. It was submitted that in this view of the matter, the impugned order dated 7th October, 2013 dismissing the application at the instance of the petitioner for holding probate proceedings initiated qua Chetan Puri''s Will dated 24.9.1990 as having abated for reason of Mangi Lal''s death is a valid and legal order warranting no interference. Mr. Reashm Bhargava further pointed out that in any event the substitution of Bal Mukund for Mangi Lal in the probate proceedings qua Chetan Puri''s Will dated 24.9.1990 was allowed vide order dated 1.2.2010 and that order was not put to challenge for a period of 4 years till the filing of this petition, as if on second wind, on 8.1.2014. Such belated challenge to the order dated 1.2.2010 should not be countenanced by this Court in the exercise of its supervisory jurisdiction. Heard. Considered. 6. The only ground agitated by the petitioner before the trial court of the probate proceedings initiated by Mangi Lal qua Chetan Puri''s Will dated 24.9.1990 as having abated on his death was based on the judgment of the Mumbai High Court in the case of Thrity Sam Shroff (supra). As pointed out by Mr. Reashm Bhargava, the said judgment has been held to be per incuriam and not good law by a subsequent Division Bench judgment of the Mumbai High Court in the case of Smt. Vatsala Srinivasan (supra) based upon the judgment of the Apex Court in the case of Shambhu Prasad Agarwal and others (supra). As pointed out by Mr. Reashm Bhargava, the said judgment has been held to be per incuriam and not good law by a subsequent Division Bench judgment of the Mumbai High Court in the case of Smt. Vatsala Srinivasan (supra) based upon the judgment of the Apex Court in the case of Shambhu Prasad Agarwal and others (supra). In the instant case, it is not in dispute that subsequent to having commenced proceedings for probate of the Will dated 24.9.1990 executed by Chetan Puri, Mangi Lal himself came to execute a Will dated 5.6.2007 in favour of Bal Mukund. Mangi Lal then died prior to the grant of probate. I am of the considered view that in view of the judgment of the Apex Court in Shambhu Prasad Agarwal and others (supra) and of the Calcutta High Court in the case of Subodh Gopal Bose (supra), on the basis of Will executed by Mangi Lal in favour of Bal Mukund on 5.6.2007, he was entitled to be substituted for Mangi Lal in the probate proceedings, albeit as has been held by the courts, with the nature of the proceedings changing from one for probate to one for the grant of letters of administration. Further as the trial court has observed in its order dated 1.2.2010, Bal Mukund''s substitution for Mangi Lal was limited for the purposes of conclusion of the proceedings before it and would not confer any right on Bal Mukund. The Court is also informed that Bal Mukund on his own has moved an application for grant of succession certificate on the strength of the Will dated 5.6.2007 executed by Mangi Lal in his favour. 7. For the aforesaid reasons, I am disinclined to interfere in the impugned orders dated 1.2.2010 and 7.10.2013 passed by the trial court. The petition is accordingly dismissed. Order of Trial Court Not Interfered With - Petition Dismissed.