Can the court grant probate to the legatee or executor of the will only?

  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

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Whether the sale agreement remains a stand-alone document if mentioned in the disputed Will, and obligations thereunder are purportedly passed on to the legatee?

 In our view, looking to the nature, purport and contents of these documents, time gap between the two is not of much relevance when examining the questions about their validity and genuineness; and in any case, the sale agreement (Ex. B-10) did not remain an independent or stand-alone document once it was found that this document was indeed mentioned in the disputed Will and the obligations thereunder were purportedly passed on to the legatee. Moreover, the Will also required the legatee to pay the debts of Annapurnamma. The defendants also suggested the indebtedness of Annapurnamma to be the reason for sale of the property in question.{Para 51.1. }

51.2. Putting all the things together, it is beyond cavil that indebtedness of Annapurnamma and her agreeing to sell the property to defendant 15 formed an integral part of the alleged Will. Therefore, the two documents could not have been segregated.

51.3. As noticed, the Trial Court as also the High Court have recorded concurrent findings that the document of Will (Ex. B-9) was a highly suspicious document and the propounders have failed to remove the suspicious circumstances. We are not suggesting that all such considerations against the Will in question would ipso facto apply to the agreement Ex. B-10 but, while examining preponderance of probabilities about existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct cannot be kept at bay. It gets perforce reiterated, that the alleged agreement is intertwined with the rejected Will because of the specific contents of the latter. Obviously, therefore, the repercussions of findings against genuineness of the Will are bound to impact the agreement too. In this view of the matter, the consideration of the High Court appears to be suffering from the fundamental error of approach.

 In the Supreme Court of India

(Before Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ.)

Venigalla Koteswaramma  Vs Malampati Suryamba

Civil Appeal No. 9546 of 2013

Decided on January 19, 2021

Citation: 2021 SCC OnLine SC 26

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Whether a legal representative of the deceased partner of a partnership firm can seek reference of the dispute to arbitration?

While right to sue for rendition of accounts of partnership firm survives on the legal representative of a deceased partner, he is also entitled to invoke the arbitration clause contained in the partnership deed. In the instant case, the appellant being the only son of his deceased mother, undisputedly a partner in the partnership firm with the respondents especially where the dispute concerning the partnership affairs had arisen already during her life time. The view taken in the impugned order with the appellant has no presently establishable binding arbitration agreement with the respondent is erroneous in law and facts. The impugned order is also bad in law in the teeth of the law laid down by this Court in Smt. Premlata and Anr. v. Ishwar Dass Chamanlal and Ors. AIR 1955 SC 714. This apart, the appointment of arbitrator could not be rejected on the ground of non-production of the will executed by the mother when no family member is disputing the will and the appellant's claim vis-a-vis the partnership firm, even otherwise also the appellant is the legal heir of the deceased partner being her only son. In our view, non-probate of will is not a germane factor to be considered at the time of appointment of arbitrator under Section 11 of the Arbitration Act. In our opinion, the partnership deed clearly recites that all the disputes touching the affairs of the partnership firm were referable to arbitrator and it cannot be gainsaid that the dispute regarding accounts of the partnership firm is a dispute touching the affairs of the firm. As already stated, it was not legally essential to specifically make a mention that the partners included their legal heirs, representatives, assigns or legatees etc. and the arbitration clause could be invoked by the appellant as the legatee as well as the legal heir/legal representative of the deceased Dulari Devi particularly where the dispute had arisen during her life time. The appellant's claim in the instant case is based on the will as well as being a legal heir of the deceased Dulari Devi. The appellant, in our opinion, possessed a legal and enforceable right to invoke arbitration clause and moved application under Section 11 of the Arbitration Act before the High Court for appointment of arbitrator. The word "party" as used in the partnership deed does not exclude inclusion of legal heirs, legal representatives etc. as being canvassed by the respondents. Thus, in our opinion, in view of the provisions of Sections 40 and 46 of the Partnership Act read with Section 40 of the Arbitration Act, the appellant has a legal right to commence arbitration by moving an application under Section 11 of the Arbitration Act in the High Court as in our view, the right to sue survives on him as legal representatives of the deceased Dulari Devi and he is entitled to invoke Clause 13 of the partnership deed. Moreover, the dispute referable to arbitration had already arisen during the life time of Dulari Devi which is also well settled that where a dispute is referable to arbitration, the parties cannot be compelled to take recourse to in the civil courts.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1526 of 2007

Decided On: 21.03.2007

Ravi Prakash Goel  Vs.   Chandra Prakash Goel and Ors.

Hon'ble Judges/Coram:

A.R. Lakshmanan and Altamas Kabir, JJ.

Citation: (2008) 13 SCC 667,MANU/SC/7232/2007

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Whether legal representative/legatee of original tenant can set up claim contrary to tenant?

The original tenant who died in the trial court did not dispute title of respondents' predecessor. He, rather, averred that premises were taken for a firm of which appellant was the partner but the suit having been filed against him alone was defective. When he died his daughter, the pro-forma respondent was brought on record. She set up a Will executed by her father in favour of appellants. Therefore they were, also, impleaded. Plaint was amended and written statement was filed. The appellant claimed adverse possession. But the High Court rejected it as the appellants were either legal representative or legatee. In either case they could not set up a claim contrary to the one set up by the tenant through whom they were inducted into possession. No exception can be taken to it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1448(N) of 1976

Decided On: 19.09.1990

Rameshwar Lal Vs. Raghunath Das 

Hon'ble Judges/Coram:

T.K. Thommen and R.M. Sahai, JJ.

Citation: (1990) 4 SCC 729

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Whether suit filed on basis of will is tenable if probate of will is not obtained?

Sub-section (1) of Section 213 of the Indian Succession Act which is relevant for the purpose reads as follows:--

"213. Right as executor or legatee when established--

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed."

8. From a perusal of the provision aforesaid it is apparent that no right as executor or legatee can be established in any court of justice unless the 'Will' is probated by the competent court. In the present case the 'Will' was not probated on the date of institution of the suit as such the suit was itself incompetent. If the impugned order would have been passed in favour of the petitioner whole suit would have been dismissed.

IN THE HIGH COURT OF PATNA

Civil Revision No. 293 of 2010

Decided On: 10.01.2019

Sushila Devi Vs.  Chandra Bhushan Chaudhary and Ors.

Hon'ble Judges/Coram:

Birendra Kumar, J.

Citation: AIR 2019 Patna 51

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Whether legatee can prove execution of will?

All these three requirements by its nature would show the mandate to be complied with in the execution of a Will or Codicil apart from a document required by law to be attested. A mere attestation as in the case of a document required by law to be attested is not sufficient in the matter of execution of a Will or Codicil and it should satisfy the requirements as enumerated under clauses (a) and (b) to Section 63 of the Indian Succession Act, besides the requirement as enumerated in clause (c). Different treatments were given to a Will and Codicil apart from other document required by law to be attested by insisting compliance under Clause (a) to (c) to S. 63 of Indian Succession Act. Apart from the above said requirement regarding execution of a Will or Codicil, in the matter of proof also, a different treatment was given apart from a document required by law to be attested under S. 68 of Indian Evidence Act. The reason is quite obvious that the question of genuineness of signature of testator and due execution of a Will or Codicil would arise only after his or her death. The Clause (b) to S. 63 mandates that the signature or mark of the testator or the person who signed on behalf of the testator, "shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will" which stands for affixture of signature by the testator or person under his instruction, in his presence, to give effect to the document with full knowledge at his free volition, free from any vitiating circumstance. It is by virtue of clause (b) to S. 63 of the Act, a burden cast upon the proponder to explain and clear out all suspicious circumstance attached to the execution of the Will or Codicil. But no such requirement is mandated in the matter of a document required by law to be attested, such as gift, settlement, etc. When legatee is permitted to stand as an attesting witness that itself amounts to a suspicious circumstance within the meaning of clause (b) to S. 63 of Indian Succession Act when read along with the other two mandate - clauses (a) and (c) to S. 63 of the Act Needless to say that a Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document. It would destruct the legislative intention demanding compliance of mandate incorporated both under S. 68 of Indian Evidence Act and S. 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned. Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under S. 68 of the Evidence Act. In short, a legatee under the Will or a person who is interested in the bequest cannot be an independent witness for the purpose of attestation to a last testament either as a Will or Codicil and hence mere examination of a legatee who stand as one of the attesting witness would not be a sufficient compliance of mandate under S. 68 of the Evidence Act. In the instant case, the only witness examined to prove the due execution of Ext. A4 is the first defendant and the Will was executed in favour of his children by giving major portion of the property and hence he cannot be an independent witness for the purpose of mandate under S. 68 of Indian Evidence Act in proof of execution of Ext. A4 Will.

IN THE HIGH COURT OF KERALA

S.A. No. 717 of 2002

Decided On: 29.01.2019

Raveendran Nair Vs. Raman Nair

Hon'ble Judges/Coram:

P. Somarajan, J.

Citation: AIR 2019 Kerala 91

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Whether application for removal of executor of will can be made by person who seeks to dislodge will?

For the aforesaid reasons, we find that finding of the
learned Single Judge that application under Section 301 for removal
of executor can be made only by a beneficiary and legatee who
accepts the Will and cannot be made by a person who seeks to

dislodge the Will or contest the application for probate or Letters of
Administration with Will annexed, is not sustainable. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.56 OF 2017

 Smt. Radhika Bhargava V/s  Dr. Arjun Sahagal, 

CORAM:
B. R. GAVAI &
RIYAZ I. CHAGLA, JJ.

Judgment pronounced on 11th January, 2019.
Citation: AIR 2019 Bom 68

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Whether beneficiary of will can seek letters of administration if executor of will refuses to act?

The Supreme Court in Vatsala Srinivasan Vs. Shyamala Raghunathan, MANU/SC/0498/2016 : (2016) 13 SCC 253 has held that, probate and letters of administration proceedings are similar in nature. It has further been held that the essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the Will. It was also held, following a decision of the Gujarat High Court in Jadeja Pravinsinhji Anandsinhji Vs. Jadeja Mangalsinhji Shivsinhji and others, MANU/GJ/0045/1963, that 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 be read for letters of administration with the Will annexed.

IN THE HIGH COURT OF DELHI

Test. CAS. 11/2015

Decided On: 18.07.2018

Preethi Swaminathan Vs.  Govt. of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Manmohan, J.

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Whether application for removal of executor of will can be moved prior to grant of probate?

 I return now to the question of when an application under Section 301 can be brought and, specifically, whether the grant of probate is a condition precedent to the maintainability of the application for removal. Here, Ms. Iyer is correct in saying that such an application can be brought at any time. The findings and observations in FSC Amalnathan⁴ are apposite:

"5. The learned Counsel for the respondent, during arguments, contended that as the will is still not probated this petition is not a maintainable under Section 213 of the Act. According to him the petitioners want to rely on the terms of the Will to contend that the respondent has acted against the wishes of the testatrix and that as such he is liable to be removed and that the petitioners cannot rely on the terms of the Will without the same having been probated. The sum and substance of the argument was that the contents of the Will cannot be looked into without the Will being probated and that as admittedly the Will is till not probated this petition itself is not maintainable. The learned counsel for the petitioners, however, contended that (sic) the Will cannot be made use of for the purpose to establish rights under the Will without the same being probated, there is no bar for the Will being relied upon for a collateral purpose. He relied upon the decision reported in John Guruprakasam v. Yovel Nesal (MANU/KE/0015/1979 : AIR 1979 Ker 96 : ILR (1978) 2 Kar 335. Relying the decision in Bali Ram Dhote v. Bhupendra Nath Banerjee, (MANU/WB/0130/1978 : AIR 1978 Cal 559) he contended that the property vests in the executor immediately on the death of the deceased and the probate is not necessary to make an executor act and that the executor can even effect a sale. He therefore contended that for removal of a private executor under Section 301 probate of the Will is not a condition precedent.

6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.

7. Section 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executorship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannotassert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301. Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.

8. Section 213(1) reads as hereunder:

"No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."

9. The Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose (MANU/SC/0399/1962 : AIR 1962 SC 1471) : 1962 All LJ 695 : ILR (1962) 2 All 683 has held that Section 213 acts as a bar to the establishment of rights under a Will by an executor or a legatee, unless probate or letters of administration of the Will have been obtained and that it is immaterial whether the right is claimed as the plaintiff or as a defendant. Thus the bar comes into play only when a right as an executor or a legatee under a Will is sought to be established. However an unprobated will can be admitted in evidence for collateral purposes in any proceeding other than a probate proceeding. This position is made clear in several decisions and also in the decision reported in John Guruprakasham's case (see also Mr. Sen's Indian Succession Act, 1955, second edition p. 425). As under law an executor is competent to administer the estate even without grant of probate, it has to be held that to maintain an application for his removal probate of the Will is not a condition precedent. The proceeding to remove an executor cannot be considered to be proceeding for establishment of right of an executor or a legatee. In the present case it is undisputed that the petitioners and respondent have been appointed as executors under the Will and that they have accepted executorship. As such it cannot be said that the petition is not maintainable under Section 301 only on the ground that probate of the Will has till not been granted.

IN THE HIGH COURT OF BOMBAY

Miscellaneous Petition No. 38 of 2011 in Testamentary Suit No. 9 of 2007 in Testamentary Petition No. 223 of 2006

Decided On: 14.12.2016

 Radhika Bhargava  Vs.  Arjun Sahgal and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: 2017 (1) ALLMR 652

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Whether application for removal of executor of will can be made by person who seeks to dislodge will?

Where a Will is propounded and an application for removal of an executor is made under Section 301, that application can only be made by a beneficiary or legatee who accepts the Will. It cannot be made by a person who seeks to dislodge the Will or contests the application for probate or Letters of Administration with Will Annexed. The application for removal posits the acceptance of a Will.

IN THE HIGH COURT OF BOMBAY

Miscellaneous Petition No. 38 of 2011 in Testamentary Suit No. 9 of 2007 in Testamentary Petition No. 223 of 2006

Decided On: 14.12.2016

 Radhika Bhargava  Vs. Arjun Sahgal and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: 2017 (1) ALLMR 652

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