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Madhy v. Vairamanai
Factual and Procedural Background
The first respondent filed an Original Petition (O.P.No.44 of 2020) seeking the grant of Probate of a Will dated 25.06.2009, allegedly executed by his father. The petitioner, arrayed as the sixth respondent in the Original Petition, filed an application (I.A.No.136 of 2022) seeking rejection of the Probate Original Petition on the ground that it was not maintainable because only the executor named in the Will can file for probate under Section 222 of the Indian Succession Act, 1925. The petitioner contended that since the first respondent was the sole beneficiary and not the executor, the petition should be rejected. The Court below dismissed the petition, relying on a Division Bench judgment of the Karnataka High Court which held that a sole beneficiary can apply for probate if no executor is named in the Will. The petitioner challenged this dismissal by filing the present Civil Revision Petition under Article 227 of the Constitution of India.
Legal Issues Presented
- Whether a Probate Original Petition under Section 276 of the Indian Succession Act, 1925, can be filed by a sole beneficiary under the Will when no executor is named therein.
- Whether the Probate Original Petition filed by a non-executor legatee is maintainable or liable to be rejected under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure.
Arguments of the Parties
Petitioner’s Arguments
- Only an executor named in the Will is entitled to seek grant of Probate as per Section 222 of the Indian Succession Act.
- In cases where no executor is named, the legatee can only seek letters of administration and not probate.
- The Probate Original Petition filed by the first respondent, who is the sole beneficiary, is therefore not maintainable and should be set aside.
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vatsala Srinivasan vs. Shyamala Raghunathan, 2016 (13) SCC 253 | Probate proceedings and letters of administration are of the same nature; legatees can continue probate proceedings if executor dies, treating the prayer as for letters of administration. | The Court relied on this Apex Court decision to hold that the legatee can seek probate or letters of administration and that the Probate Original Petition by the sole beneficiary is maintainable. |
| Govind M. Asrani Vs. Jairam Asrani, 1963 SCC online Mad 46 | Executor's function is to execute the Will; probate proceedings establish the Will; letters of administration can be granted to administer property under Section 232 of the Succession Act. | The Court agreed with this precedent to affirm that the probate and letters of administration serve the same purpose and that the practice followed in the case is proper. |
| Jadeja Pravinsinhji Anandsinhji vs. Jadeja Mangalsinhji Shivsinhji and Ors, AIR 1963 Gujarat 32 | An executor has no personal interest in the estate; executor acts for the benefit of beneficiaries; probate proceedings are not personal actions and do not abate with executor's death. | The Court cited this case to emphasize that the executor acts for all beneficiaries and that legatees can continue probate proceedings with modification to letters of administration if executor fails. |
Court's Reasoning and Analysis
The Court analyzed the legal provisions under Sections 222 and 276 of the Indian Succession Act and considered authoritative pronouncements by the Supreme Court of India and High Courts. It observed that the executor does not seek probate for personal benefit but acts on behalf of the legatees. The Court relied on the Apex Court's decision in Vatsala Srinivasan vs. Shyamala Raghunathan which held that probate and letters of administration proceedings are essentially similar and can be continued by legatees even if the executor is not present or has died. Further, the Court referred to the Jadeja Pravinsinhji case to reinforce that probate proceedings are for the benefit of all beneficiaries and do not constitute personal actions of the executor. Hence, even if the first respondent was the sole beneficiary and not the executor, he could maintain the Probate Original Petition. The Court concluded that the dismissal of the petition to reject the Probate Original Petition was correct and did not warrant interference.
Holding and Implications
The Civil Revision Petition is dismissed.
The Court upheld the order of the Principal District Judge, confirming that a sole beneficiary under a Will may file a Probate Original Petition when no executor is named. The direct effect is that the Probate Original Petition filed by the first respondent is maintainable and the petition seeking its rejection is dismissed. No new precedent was set beyond affirming existing authoritative principles, and no costs were imposed.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:27.10.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
C.R.P.(PD)No.3381 of 2022 in CMP.No.17967 of 2022 Madhy
...Petitioner/plaintiff
Versus
1.Vairamanai 2.Subramanian 3.Abinaya 4.Anuja
5.Adhavan 6.Poounkuzhali ...Respondents/defendants PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the order passed by the Principal District Judge, Pondicherry, dated 08.09.2022 passed in I.A.No.136 of 2022 in O.P.No.44 of 2020.
For Petitioner :Mr.V.Vasantha Kumar
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O R D E R
The Civil Revision Petition is filed challenging the order passed by the Court below, dismissing the petition filed by the revision petitioner, seeking to reject the probate Original Petition filed by the first respondent.
2. The first respondent herein filed original petition in O.P.No.44 of 2020, seeking grant of Probate of the Will, dated 25.06.2009, allegedly executed by his father Selvarassou @ Puduvai Selvam. The petitioner herein, who was arrayed as 6threspondent in the Original Petition, filed the instant application in I.A.No.136 of 2022, seeking rejection of the Original Petition under Order VII Rule 11(d) r/w 151 of CPC on the ground that the Probate Original Petition was filed by the first respondent, who is the sole beneficiary under the Will was not maintainable. It was the case of the petitioner that the probate Original Petition under Section 276 of the Indian Succession Act, 1925, can be filed only by the executor named in the Will in view of Provision of Section 222 of Indian Succession Act. The Court below rejected the said contention of the revision petitioner by relying
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on the judgment rendered by Division Bench of Karnataka High Court that the sole beneficiary can apply for probate of Will since no executor had been appointed in the Will. Aggrieved by the said order, the petitioner has come up by way of this revision.
3. The learned counsel for the petitioner by taking this Court to provisions of Section 222 and 276 of Indian Succession Act, submits that only in cases where executor had been named in the Will, he is entitled to seek grant of Probate, in other cases where no executor is named in the Will, the legatee under the Will can only seek letters of administration. Therefore, it is the contention of the learned counsel for the petitioner that original petition seeking Probate is not maintainable and liable to be set aside.
4. I do not agree with the contention made by the learned counsel for the petitioner. The executor of the Will seeks grant of Probate not for his own benefit, but he acts for the benefit of the legatees of the Will.
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5. The Hon'ble Apex Court of India in a decision reported in 2016 (13) SCC 253 in Vatsala Srinivasan vs. Shyamala Raghunathan, when a question arose, whether the Probate Original Petition filed by a executor Will abate on the death of executor or it can be continued by legatees under the Will. It was held that the proceedings for grant of Probate and letters of administration are of same nature and both the proceedings relate to assessment of genuineness and authenticity of Will. After referring to various judgments of the Supreme Court of India, it was held that the legatees in the Will can continue Probate proceedings and letters of administration can be granted, however, treating the prayer as the one for letters of administration. The relevant observations of the Apex Court is as follows:
(vi) In view of law laid down in the aforesaid judgments, the Division Bench observed that both the proceedings with regard to the Probate and the letters of administration are of the same nature and therefore, the proceedings cannot abate. The essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the Will
(Emphasis Supplied). By considering the aforesaid judgments, the Division Bench has rightly confirmed the view expressed by the learned Single Judge.
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(vii) We also agree with the view expressed by the Division Bench of this Court which was followed in the judgment delivered in 1963 SCC online Mad 46 in Govind M. Asrani Vs. Jairam Asrani and other, as the logic behind dismissing the appeal, in our opinion, is just and proper. In any case, so as to establish the Will, the Probate proceedings are required. The function of the executors is to execute the Will. The main purpose can be very well achieved by obtaining a letter of administration, so that the property can be administered by the administrator as per Section 232 of the Succession Act. In the instant case, the said practice has been rightly followed.
(viii) We are also in agreement with the view expressed in the impugned judgment, which has also relied upon the law laid in Jadeja Pravinsinhji Anandsinhji vs. Jadeja Mangalsinhji Shivsinhji and Ors, AIR 1963 Gujarat 32 in which it has been held:
6.....An executor, in the capacity of an
executor, has no personal interest in the estate of the deceased.
..........The object of the executor in these proceedings is to get an adjudication not of any dispute in which he is personally interested, but the
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objects is to propound the Will of the deceased for the benefit of those who take a interest of the Will.
IX. It is, therefore, clear that the executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the Will. Therefore, the action of an executor in applying for a probate is not in substance a personal action and as observed earlier by me the maxim, actio, personalis moritur cum persona could not apply to such a case. If the executor fails in his duty, any of those whom, he represents are entitled to intervene and carry on the proceedings with a formal modification that the prayer must then be for letters of administration with the Will annexed.
6. In view of the authoritative pronouncement made by the Hon'ble Apex Court, the object for grant of Probate as well as letters of administration are one and the same. Both for the benefit of the legatee under the Will. Therefore, even though the first respondent herein prayed for grant of probate, having regard to the fact, he is the sole legatee under the Will, the Court can very well grant letters of administration instead of probate, in case, he succeeds in proving the validity and genuineness of the
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Will. Therefore, the order passed by the Court below, dismissing the petition to reject the Probate Original Petition, calls for no interference by this Court.
7. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
27.10.2022
Index: Yes/ No Speaking Order / Non-Speaking Order ub
To
The Principal District Judge, Pondicherry.
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S .SOUNTHAR , J.
ub
C.R.P(PD)No.3381 of 2022
27.10.2022
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