SATISH KUMAR JAIN v. STATE

2. The respondent No.3 has contested the application and taken a preliminary objection that Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as „CPC') is not applicable to probate proceedings since the order of probate or letter of administration is neither a decree or an order passed in a suit, nor are the proceedings under Section 278 of Indian Succession Act, 1925 (hereinafter referred to as „Succession Act') commenced on a suit or a plaint. For this, reliance has been placed on decision of the High Court of Judicature at Allahabad in Panzy Ferhantus v. M.F. Queoros[AIR 1963 All 153(FB)]and in Barumal Singh v. 3^rd Additional District Judge, Saharanpur, and Ors. [AIR 1986 All 307]. Moreover, the right to claim probate/letter of administration was a right personal to the deceased petitioner and the right to sue does not survive in favour of his legal heirs after his demise for which reliance has been placed on the decisions of the Calcutta High Court in Sarat Chandra Banderjee v. Nani Mohan Banerjee, [1909 Vol. III Indian Cases 995(Calcutta)] and in Hari Bhusan Datta v. Manmatha Nath Datta, [1919 Vol. II Indian cases 76 (Calcutta)].

3. It is submitted that the deceased petitioner in his petition had claimed himself to be the executor of the Will dated 29^thDecember,1980 even though he had not been appointed as an executor by the testator in his Will. It is only an executor who can be granted a probate of a Will in view of Section 222 of the Succession Act. Moreover, Section 226 of the Succession Act specifically provides that on demise of the executor, right to represent would survive on the surviving executor(s). Thus,the combined reading of Section 222 and 226 of the Succession Act makes it evident that probate petitions can be filed only by the executor and survives only in favour of the

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surviving executor(s).

4. In the instant case, the deceased petitioner had claimed to be the executor, and on his demise, the right to sue does not survive on his legal heirs who are not the named executors and cannot claim a grant of probate. Reliance has been placed on Thrity Sam Shroff v. Shiraz Byramji Anklesaria & Anr. [AIR 2007 Bom. 103].

5. The respondent No. 4(A)- Smt. Adesh Rani Jain has also contested the application by filing a detailed reply. A preliminary objection which has been takenthat the proceedings for grant of probate/ letter of administration are not a proper suit, but fall in the category of "like a suit" as mentioned in Section 295 of the Succession Act, and the application on behalf of the legal heirs of the deceased petitioner is liable to be dismissed on this ground itself.

6. Smt. Nidhi Jain-respondent No. 4(D) in her reply has taken a similar technical plea in view of Sections 222 and 226 of Succession Act. It is therefore asserted that not only did the deceased petitioner -Shri Satish Kumar Jainnot only claimed himself to be the executor appointed under the Will of late Shri Daya Chand Jain but also assumed the position and started acting accordingly during his lifetime. The testator Shri Daya Chand Jain had under the Will, bequeathed 50% of his share in Jain Wool Shop(tenanted property) situated at 16/2872, Ajmal Khan Road, Karol Bagh, New Delhi-110005 to the deceased Petitioner -Shri Satish Kumar Jain, who forged a Partnership Deed dated 20^thJune, 1983 to induct himself as a partner, and thereafter by misleading the landlord, purchased the rented shop vide Sale Deed dated 21^stMarch,2014. The deceased petitioner therefore not only claimed himself to be the executor but also acted as an executor.

7. Section 227 of the Succession Act, on grant of probate renders valid

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all the intermediate acts done by the executor.However, the intermediary acts are not validated on the grant of letters of administration.

8. The applicants/ legal heirs of Shri Satish Kumar Jain- deceased petitioner even if impleaded, cannot continue the petition for grant of probate since they are not the executors. Moreover, even if a letter of administration is granted in their favour, then too intermediary acts done by Shri Satish Kumar Jain professing himself to be an executor would not stand validated in terms of Section 227 of the Succession Act, 1925. Furthermore, four issues were framed vide order dated 21^stNovember, 1988 which are as under:

"(i) Whether the petition for grant of probate is not maintainable? OPR

(ii) Whether the Will dated December29, 1980 was executed by Shri Daya Chand Jain? OPP

(iii) Whether the registration of the Will is illegal? OPR

(iv) Relief."

9. However, no issue was framed in regard to issue of Letter of Administration. 32 years have passed since the date of framing of issues, and no endeavour was made by the deceased petitioner to ever seek modifications of the issues.

10. At this stage, if the applicants are allowed to be brought on record and are held entitled to grant of letter of administration, it would be the violation of fundamental principles of civil procedure, and the same cannot be permitted. It is therefore stated that the application for substitution is liable to be dismissed.

11. Submissions heard.

12. The basic premise on which the application was substitution of legal

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heirs of the petitioner is contested is that the petitioner Shri Satish Kumar Jain had claimed himself to the executor appointed under the Will and had sought Probate. The fundamental principle underlined by the High Court of Judicature at Allahabad in Barumal Singh (supra) is that there can be no substitution of legal heirs under Order XXII Rule 3 of the CPC if the right to sue does not survive. Similarly, in Sarat Chandra Banerjee (supra), in a contested petition for probate by the sole executor, on the demise of the executor, his widow applied for her name to be substituted and that the petition for probate may be amended by substituting a prayer for letter of administration. The application was rejected on the ground that the right to sue did not survive and the suit had abated. Likewise, in Manekji Manchersha Javeri"s (supra) while dealing with the application for substitution of the applicant in place of deceased petitioner and for necessary amendments in the petition for probate, it was held that the right to sue does not survive in the cases where an application for probate is filed. Section 295 of the Succession Act provides that the proceedings when taken as the contentious case may assume "the form of a regular suit", however on the demise of the executor, no right to sue survives in the testamentary proceedings.

13. It is quite evident that all the aforementioned judgements pertained to demise of the executor. It is also abundantly clear from these judgements that where the probate proceedings are contested, it assumes the form of suit and the provisions of CPC would apply to an extent that they are not inconsistent with the provisions of law comprised under the Succession Act.

14. Section 222 of the Succession Act, 1925 clearly specifies that a probate can be granted only to an executor. In other words, the probate

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proceedings are essentially at the instance of the executors so named in the Will and can survive till the executors survive. The moment the sole executor dies or all the executors die, the question of proceedings being kept alive does not arise as there would be no occasion in such a case to grant any probate. Such proceedings would die a natural death as a consequence of non-survival of any executor, and in such circumstances, the question of applicability of Order XXIII of the CPC would not arise at all.

15. The executor is a person whom the testator's appoints for the execution of his last Will of the deceased person. An executor is named in the Will and derives his authority from the Will to dispose of the estate of the deceased testator in terms of the Will. In case any dispute arises between the beneficiaries and legal heirs then the executor of the Will is expected to play an important role i.e.to ensure smooth, peaceful and proper disposition of the state. The executor by its very definition is a person who is a nominee of the deceased testator appointed solely for the purpose of execution of the terms of the Will. By the very definition in case of demise of the executor, no cause of action survives as it is personal to the executor. However, the rule is not the same when it comes to the beneficiaries. In case a beneficiary dies, then his legal heirs by operation of law step into the shoes and are entitled to the estate as bequeathed in the Will.

16. In the present case, the deceased petitioner in the plaint had asserted that his father Shri Daya Chand Jain had executed a Will dated 29^th December, 1980, dividing his movable and immovable properties amongst his legal heirs.The Will was accepted by all the family members andwas duly acted upon. The petitioner himself had averred that although no executor has been named in the Will of the deceased but from the tenor of

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the Will, it is clear that the deceased wanted the petitioner to act as such. Hence, a prayer was made for grant of probate/ letter of administration in the original petition itself.

17. From the averments of the petition, it is clear that deceased Shri Satish Kumar Jain was not a named executor but was a beneficiary. This is further corroborated from the perusal of the Will wherein different properties had been bequeathed to the legal heirs in minute precision. Neither by implication nor from the express contents can it be inferred that Shri Satish Kumar Jain was appointed as the executor under the Will. Shri Satish Kumar Jain may have assumed the responsibility of the executor, but by no stretch of imagination can he be interpreted as an executor appointed under the Will. He was a beneficiary, and on his demise, the right to sue has survived in favour of the applicants who are his wife and sons, who areentitled to be impleaded as his legal heirs.

18. Learned counsel on behalf of respondent no. 4(D) has argued that by wrongly assuming the role of an executor, he forged a partnership deed dated 20^thJune, 1983 to induct himself as a partner in Jain Wool Shop, and thereafter by misleading the landlord, he purchased the said rented shop from the landlord vide sale deed dated 21^stMarch, 2014. However, it is a matter of evidence where these alleged acts were undertaken by Shri Satish Chand Jain as an executor.

19. Furthermore, as argued on behalf of the respondents, Section 227 of the Succession Act provides that once a probate of a Will is granted all the intermediate acts done by the executor, are rendered valid. In fact, because Shri Satish Kumar Jain is claimed to be not an executor, Section 227 of the Succession Act comes to the rescue of the respondents to question

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andchallenge any acts which may have been undertaken by him in the capacity of an executor. Furthermore, merely claiming himself to be an executor even though not so named in the Will, would not make Shri Satish Kumar Jain, an executor. It is a question dependent upon the interpretation of the contents of the Will which shall be considered at the appropriate stage.

20. It was further argued on behalf of the respondent no. 4(D) that issues were framed on 21^stNovember, 1988 but no issue was framed in regard to letter of administration. Issue no.1 was framed as "Whether the petition for grant of probate is not maintainable?"

21. Firstly, it may be noted that the issue has been framed in negative. Moreover, if the petition for probate isheld to be not maintainable then necessarily the other relief as claimed would have to be considered. Merely because the issues have not been framed in respect of Letter of Administration despite a specific prayer, cannot be a factor to determine the impleadment of the parties.

22. It is thus held that Shri Satish Kumar Jain was prima facie a beneficiary under the Will, and on his demise, the right to sue survives in favour of the applicants/his legal heirs. The application is accordingly allowed and his wife- Smt. Anila Jain and two sons- Mr. Ankit Jain and Mr. Ankur Jain, are impleaded as a party.

23. Amended memo of parties is hereby taken on record.

24. Application hereby stands disposed off.

TEST. CAS. 84/1986

1. List for reframing of issues on 13^thJuly, 2022.

2. List for petitioners' evidence before the Joint Registrar on 01^st

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September, 2022.

(NEENA BANSAL KRISHNA)

JUDGE

May 20, 2022/pa

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