In the said backdrop, if the provisions of Probate and Letter
of Administration are referred to under the Indian Succession Act,
1925 (herein after referred to as “the Act”) the same are as under:
“222. Probate only to appointed executor. - (1)
Probate shall be granted only to an executor appointed by
the Will.
(2) The appointment may be expressed or by necessary
implication.
232. Grant of administration of universal or residuary legatees. - When -
(a) the deceased has made a Will, but has not appointed
an executor, or
(b) the deceased has appointed an executor who is
legally incapable or refused to act, or who has died before
the testator or before he has proved the Will, or
(c) the executor dies after having proved the will, but
before he has administered all the estate of the deceased,
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 of
so much thereof as may be unadministered.”
5.2 Thus, from a bare reading of the aforesaid provisions, it is
abundantly clear that by virtue of Section 222, Probate shall be
granted only to an executor appointed by the Will and if the
deceased has made a Will, but has not appointed an executor,
letter of administration can be granted by virtue of Section 232(a) of the Act.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16538 of 2017
MAHENDRA HARILAL PAREKH & 1 Vs MEENABEN HIRENBHAI PAREKH
CORAM: DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 16/03/2022
1. The petitioners - original applicants have preferred this
petition under Article 227 of the Constitution of India being
aggrieved and dissatisfied with the order dated 13.07.2017
passed by the learned 13th Additional Senior Civil Judge, Rajkot in
an application Exh. 13 filed under Order 6 Rule 17 of the Code of
Civil Procedure, 1908 for amendment in Misc. Civil Application
No. 15 of 2015, which came to be rejected by the learned trial
Judge.
2. The facts of the case in nutshell are that the petitioners are
the original applicants and the respondent is the original objector
in Civil Misc. Application No. 15 of 2015 filed by the petitioners.
The deceased mother of the petitioners was the owner of certain
movable and immovable properties, who had executed a Will
dated 15.01.2013 in favour of the petitioners. After the death of
the mother, the petitioners become the absolute owners of the
properties. The petitioners, therefore, preferred the aforesaid
application before the learned 13th Additional Senior Civil Judge,
Rajkot for obtaining the Probate of the Will, wherein the learned
trial Judge issued public notice inviting objections against the said
application. The respondent filed objection, Exh. 8, against
issuance of Probate in favour of the petitioners. It is further the
case of the petitioners that they being beneficiaries, are required
to apply for issuance of letter of administration instead of Probate
and as soon as they came to know about their bona fide mistake,
they preferred the application in question, at Exh. 13 under O.6
R.17 CPC on 14.06.2016 seeking amendment of Probate
application, whereby, it was prayed to replace the word “Probate”
by “Letter of Administration”. The said application came to be
rejected by the impugned order and hence this petition.
3. Heard, learned advocate Mr. Premal Rachh for the
petitioners and learned advocate Mr. Dhaval D. Vyas for the
respondent.
3.1 The learned advocate for the petitioners submitted that the
order passed by the learned trial Judge rejecting the application
Exh. 13 is unjust, contrary to the provisions of law, without
considering the evidence on records, unreasonable as also
against the law laid down by the Apex Court in Shambhu
Prasad Agarwal & Ors. v. Bhola Ram Agarwal, (2009) 9
SCC 714. He submitted that the learned trial Judge has failed to
take into consideration the ratio laid down in Shambhu Prasad
Agarwal & Ors. (supra) in its proper perspective. He submitted
that the learned trial Judge, while deciding the application for
amendment, has rejected the same on highly technical ground.
3.2 The learned advocate for the petitioners further submitted
that the petitioners have invoked the jurisdiction of this Court
under Article 227 of the Constitution of India on the ground that
the learned Civil Judge has erred in observing that the petitioners
have mainly sought the amendment of replacing the word as
“Letter of Administration with the copy of Will” instead of
“Probate” and that too, only for filling up the lacuna of the
probate application. He further submitted that the learned trial
Judge has wrongly come to the conclusion that if the amendment,
as sought for is granted, the very nature of the suit will be
changed. The learned advocate for the petitioners submitted
that by no stretch of imagination it can be said that such
amendment would change the nature of the suit. It is submitted
that the learned trial Judge has failed to appreciate the fact that
the amendment of the Probate application, sought by the
petitioners, is within the objects and scope of provisions of O.6
R.17 of the CPC, which deals with amendment of pleadings. He
submitted that as per the settled legal position, any amendment,
which are necessary for determining the real question in
controversy between the parties, are required to be allowed and
in the facts and circumstances of the present case, it becomes
amply clear that the amendment, as sought for, is necessary to
determine the real issue in question. It is also submitted by the
learned advocate for the petitioners that by amending the
application as prayed for, no prejudice and/or any injustice and/or
loss would be caused to the respondent.
3.3 Making such submissions, it is urged that this petition may
be allowed and the amendment, as prayed for may be granted.
3.4 In support, the learned advocate for the petitioners has
relied upon certain decisions. Relying on a decision of the Apex
Court in Shambhu Prasad Agarwal & Ors. v. Bhola Ram
Agarwal – (2000) 9 SCC 714, more particularly, paragraphs 5
and 6 thereof, he submitted that conversion of application of
Probate into grant of Letter of Administration with copy of Will is
permissible by way of amendment application under O.6 R.17
CPC. Further, citing the decision of the Division Bench of the
Madras High Court in Govind M. Asrani v. Jairam Asrani and
Another, AIR 1963 (Madras) 456, more particularly
paragraphs 12, 13 and 14, he submitted that the learned trial
Judge ought to have considered the fact that the proceedings
taken out either for the grant of Probate or Letter of
Administration with the Will annexed, are in the interest of the
legatees and the question involved in such proceedings will be
the same as also the object of Sections 222 and 232 of the Indian
Succession Act are the same in nature. It is submitted that in
paragraph 12 of the said decision, it has been observed that,
“where an executor applies for the issue of probate and also
where a legatee or other person applies to the Court for the grant
of letters of administration with the will annexed, the question to
be decided will be the same, namely, whether the will is true,
whether it was executed in accordance with law, there being the
capacity in the testator to make the Will and no fraud or other
infirmity attending the execution of the document. It is also a
well accepted rule that whether it be an executor or
administrator, the right or interest possessed by him in the
properties of the testator is the same. Both have to administer
them in accordance with the directions contained in the Will”.
The learned advocate for the petitioners further referred to the
decision of the Bombay High Court in Smt. Vatsala Srinivasan
Hindu, Inhabitant v. Narisimha Raghunathan since
deceased and Smt. Shyamala Raghunathan Hindu, (2011)
AIR (Bombay) 76 and submitted that in paragraph 18 of the
said decision, the Court has taken the same view as taken by the
Madras High Court in Govind M. Asrani (supra).
4. Per contra, the learned advocate for the respondent has
heavily resisted this petition and submitted that the reasons
recorded by the learned trial Judge are absolutely correct and this
Court may not interfere with the same in the petition filed by the
petitioners under article 227 of the Constitution of India and the
petition deserves no consideration and it is requested to be
dismissed.
5. Regard being had to the submissions canvassed and having
considering the impugned order dated 13.07.2017 so also,
considering the material placed on record, as the facts go, the
deceased, who was the mother of the petitioners, made a Will
dated 15.01.20013 in favour of the petitioners herein for the
movable and immovable properties belonged to her. The
deceased died on 19.05.2013 and subsequently, the petitioners
filed the Misc. Civil Application No. 15 of 2015 before the learned
civil Court concerned at Rajkot for issuance of Probate. In the
said application, the petitioners, by an application Exh. 13,
sought amendment under O.6 R.17 CPC, to substitute the word
“Probate” by “Letter of Administration with the copy of Will”. The
said application came to be rejected by the learned trial Judge by
the impugned order dated 13.07.2017 and hence, the grieved
petitioners are before this Court.
5.1 In the said backdrop, if the provisions of Probate and Letter
of Administration are referred to under the Indian Succession Act,
1925 (herein after referred to as “the Act”) the same are as
under:
“222. Probate only to appointed executor. - (1)
Probate shall be granted only to an executor appointed by
the Will.
(2) The appointment may be expressed or by necessary
implication.
232. Grant of administration of universal or
residuary legatees. - When -
(a) the deceased has made a Will, but has not appointed
an executor, or
(b) the deceased has appointed an executor who is
legally incapable or refused to act, or who has died before
the testator or before he has proved the Will, or
(c) the executor dies after having proved the will, but
before he has administered all the estate of the deceased,
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 of
so much thereof as may be unadministered.”
5.2 Thus, from a bare reading of the aforesaid provisions, it is
abundantly clear that by virtue of Section 222, Probate shall be
granted only to an executor appointed by the Will and if the
deceased has made a Will, but has not appointed an executor,
letter of administration can be granted by virtue of Section 232(a)
of the Act. Indisputably, in the case on hand the petitioners are
the executors of the Will and therefore, they are entitled to
Probate as referred to herein above.
5.3 Much emphasis have been laid by the learned advocate for
the petitioners on a decision of the Apex Court in Shambhu
Prasad Agarwal & Ors. (supra). There cannot be any dispute
as to the ratio laid down in the same, however, in the facts and
circumstances of the case on hand, the same is not applicable,
inasmuch as, in the case before the Apex Court, the executor had
died and his heirs (the appellants therein), the legatees, had
requested for substitution from “Probate” to the “Letter of
Administration”, which came to be granted, whereas, in the case
on hand, it is the executors who have urged so and hence, the
said decision would be of no avail to the petitioners.
5.4 So far as the decisions in Govind M. Asrani and in Smt.
Vatsala Srinivasan Hindu, Inhabitant (supra), are
concerned, it has been observed by the Court (Govind M. Asrani)
that where an executor applies for the issue of probate and also
where a legatee or other person applies to the Court for the grant
of letters of administration with the will annexed, the question to
be decided will be the same, namely, whether the will is true,
whether it was executed in accordance with law, there being the
capacity in the testator to make the Will and no fraud or other
infirmity attending the execution of the document. The question
in the case on hand is not related to proving of the same and the
procedure thereto, but the question which goes to the root is, as
to for what the petitioners are entitled for in accordance with
their status in the Will. As said earlier, the petitioners are the
executors and hence, as per the provisions of the Act, they are
entitled to Probate and hence, the aforesaid decisions also, would
be of no help to the petitioners.
6. Thus, the learned trial Judge appears to have committed no
error, much less an error apparent on the face of it, which
requires interference at the hands of this Court under Article 227
of the Constitution of India.
7. In the backdrop as aforesaid, the petition fails and is
dismissed accordingly. The impugned order dated 13.07.2017
passed by the learned 13th Additional Senior Civil Judge, Rajkot in
application Exh. 13 filed under Order 6 Rule 17 of the Code of
Civil Procedure, 1908 for amendment in Misc. Civil Application
No. 15 of 2015 is confirmed. Rule is discharged. No order as to
costs. Interim relief, if any, granted earlier, shall stand vacated
forthwith.
[ A. C. Joshi, J. ]
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