Whether executor of will can represent estate of deceased testator without obtaining probate?

Division Bench of this Court in the case of Ramesh Sippy Vs. Suresh Gopaldas Sippy & Ors. (supra) has after adverting to the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) and several other judgments has allowed an executor to proceed with the proceedings filed by the original testator without obtaining probate at that stage and merely on the statement made by the applicant that he would file a petition for probate within one month from the date of the said order. The judgment of the Division Bench would squarely apply to the facts of this case. I am respectfully bound by the said judgment.

28. Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) after construing Section 211 of the Indian Succession Act, 1925 and Order XXII Rule 10 of the Code of Civil Procedure, 1908 held that the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order XXII, Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the title of the testator stands vested in the executor on the his death. In my view, the judgment of the Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) would squarely apply to the facts of this case. I am respectfully agree with the views expressed by the Orissa High Court in the said judgment.

29. Order XXII Rule 3 read with Order XXII Rule 1 of the Code of Civil Procedure, 1908 clearly indicates that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Even if the sole plaintiff dies and if the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under Section 2(11) of the Code of Civil Procedure, 1908, since an executor/executrix represents the estate of the deceased person, he is a legal representative within the meaning off Section 2(11) of the Code of Civil Procedure, 1908 and is thus entitled to sue or is sued under Section 211 of the Indian Succession Act, 1925.

30. The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. In my view, since the executor/executrix has alleged to have been appointed under the last Will and Testament of the original plaintiff, she being a legal representative of the said estate and the property forming part of the estate vests in her. The right to sue survives considering the nature of the relief sought in the plaint and thus she deserves to be impleaded as party-plaintiff in place of the original plaintiff.

IN THE HIGH COURT OF BOMBAY

Chamber Summons No. 424 of 2015 in Suit No. 341 of 2014 

Decided On: 08.01.2019

 Geeta Patel D'Souza  Vs. Girnar Apartments Co-operative Housing Society Ltd. and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: AIR 2019 Bom 34,2019(3) MHLJ 745

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Whether execution of will can be challenged on ground that testator was suffering from paralytic attacks?

 It is the Defendant's case that Jaswantbhai was not of sound mind and body. In paragraph 7 of her Affidavit in support of Caveat,³³ Purnima says that after Veenaben died, Jaswantlal was confined to bed and was suffering from paralytic attacks. This is not enough to show testamentary incapacity. The law does not require a testator to be in absolutely perfect health; were it so, almost no testator could ever make a Will (though perfectly capable of rendering judgment in Court). Persons with speech, hearing or visual impairments may make Wills.³⁴ A person not of sound mind may also do so in an interval of lucidity.³⁵ What is relevant is testamentary capacity on the date of execution of the Will.

IN THE HIGH COURT OF BOMBAY

Testamentary Suit No. 74 of 2011 in Testamentary Petition No. 970 of 2009

Decided On: 14.10.2016

 Panna Surendra Mehta

Vs.

Purnima Latik Shah

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: 2017(2) ALLMR 278

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Whether execution of will in English can be doubted on ground that testator was not knowing English language?

The lack of knowledge of English even if can be

attributed to the testator would not fundamentally alter the

situation inasmuch as before registration of the Will the

contents thereof can be understood to have been explained

to the testator or ascertained from her by the Sub

Registrar, PW-4, who had deposed that such a practice is

normally adhered to. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9282 OF 2010

LEELA RAJAGOPAL & ORS

V

KAMALA MENON COCHARAN & ORS.(S)

Citation:(2015) 8 SCC 615

RANJAN GOGOI, J.

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Whether testator can execute valid will in respect of property of which he is not owner?

 From the judgment impugned, it is evident that learned lower court has relied upon Vikas Singh & others vs. Devesh Pratap Singh reported in 2001(2) P.L.J.R. Page-184 on this score, but on minute observation, it is evident that the principle so decided therein has not been properly considered during course of consideration of the controversy relating to adjudication over nature of property. Though the aforesaid judgment while dealing with the issue has not taken into account the definition incorporated under Section 2(h), on the contrary dealt with the issue in terms of Section 59, however, laid down in following way under Para-6:-

"6. As regards the use of the words "his property", it is clear and, if I may say so, implicit that a person can execute a Will like any transfer-deed, only with respect to his own property and not someone else's property and, therefore, nothing much turns on use of those words in Section 59 as to confer jurisdiction on the probate Court to decide any dispute relating to title, ownership, etc. of the testator/testatrix in the property which is the subject-matter of the Will. It is settled legal position that it is not the duty of the probate Court to consider any issue as to title of the testator to the property with which the Will propounded purports to deal or to the disposing power the testator may have possessed over such property or as to the validity of the bequeaths made. See, for example, the case of Kashi Nath v. Dulhin AIR 1941 Patna 475. Proceedings for grant of Probate or Letters of Administration is not suit in the real sense, it only takes the "form" of a regular suit according to the provisions of the Code of Civil Procedure, "as early as may be" vide Section 295 of the Act. Reference may be made to a Division Bench decision of this Court in Sidhnath Bharti v. Jai Narayan Bharti 1994 (1) PLJR 644, a Full Bench decision of the Allahabad High Court in Panzy Ferondes v. M.F. Queoros, AIR 1963 Allahabad 153, and a Division Bench decision of the Calcutta High Court in Batai Lall Banerjee v. Debaki Kumar Ganguly, AIR 1984 Calcutta 16. The grant of Probate or Letters of Administration is decisive only of the Will propounded and not of the title, etc. of the testator to the property. As the issues relating to title, ownership etc. are not to be gone into in such proceedings, it follows that even a favourable decision in favour of the petitioner/plaintiff granting Probate or Letters of Administration in his favour does not operate as res judicata in any future suit which the Objector is at liberty to bring seeking declaration of his right, title, interest, etc. in the property. In the above premises the objection of the objector as to disposing capacity, i.e., ownership of the testatrix is rejected".

33. After careful scrutiny of the aforesaid finding, it is crystal clear that will is to be executed with regard to the property which the testator possesses, and the dispute, if any, relating to the same is not to be scuttle down under proceeding brought under probate. However, different kind of picturization has to be perceived whereunder admittedly the property not belonging to testator have been bought up under deed of will. Then, is it found out of domain of probate proceeding, and if the principle so laid down, as referred above, is appreciated in its true spirit wherein, execution of Will relating to own property of testatrix is to be effected. Then certainly, it will come within the purview, as with regard to these properties neither probate nor letter of administration could be granted, otherwise it will allow multiplicity of the proceeding, which does not happens to be intention of legislature. Aforesaid view is found supported with Smt. Radhika Devi vs. Ajay Kumar Sharma reported in 2011(1) P.L.J.R. 845.

Patna High Court

Most Kewala Devi & Anr vs Sri Krishna Devi & Anr on 15 December, 2015

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Whether failure of testator to affix signature on one of pages of Will,will make will incomplete or inoperative?

There is an omission on the part of Kuttappu to affix his signature at page 3 of the will, at the place where he was expected to affix his signature. That there is an omission to sign the will at page 3 is also brought out from the evidence of PWs 2 and 3, who were confronted with the will in that regard. The question is whether the fact that Kuttappu failed to sign the will in one of the pages, should lead to a finding that the will cannot be said to be one duly executed by Kuttappu. No decision was brought to my notice in support of the proposition that failure to sign one of the middle pages of the will would make a will incomplete or inoperative. In the Goods of R. Porthouse (1897) ILR 24 Cal 784, it was held that omission of a testator to insert his name and description at the head of the document and to append his signature thereto, would not make the will incomplete, if he had affixed his signature in the attestation clause and completed the disposition clause bequeathing all his properties. The position appears to be that a will is not rendered invalid by the circumstances that the signature is placed among the words of the testamentary clause or the clause of attestation, if the Court is satisfied that the deceased intended by signing his name in attestation clause to execute his will. This position is accepted by the decision of the Punjab High Court in the decision in In re Mahabir Singh, AIR 1963 Punjab 66. Here, in Ext. X3 will, is clearly appended the signature of the testator Kuttappu at the bottom of the will, accepting the bequest made by him earlier and that signature is followed by the signature of the attestors. Pages 1 and 2 of the will are also signed by Kuttappu. There is no case that page 3 of the will to which Kuttappu had not affixed his signature has been substituted for the original or has been tampered with and was not part of the original will. In the absence of any such case, it cannot be held that the Courts below were unjustified in accepting Ext. X3 will as duly executed and complete. Section 63 of the Indian Succession Act also supports this position. Section 63(a) indicates that what is needed is for the attestor to sign or affix his mark to the will or authorise some other person to sign it on his behalf in his presence and at his direction. Section 63(b) indicates that the signature or mark of the attestor shall be so placed that it shall after that it was intended thereby to give effect to it as a will. The signature placed at the end of the will after the schedule of properties set out in the will and the attestation clearly satisfies the requirements of Section 63 of the Indian Succession Act. I have therefore no hesitation in overruling the contention on behalf of the plaintiff that the will could not be accepted since it had not been signed by the testator in page 3 of the will.
Will--Failure of testator to affix signature on one of the pages of the Will--Does not make the Will incomplete or inoperative as long as the testator signed at the bottom of the Will followed by attestors.

Kerala High Court

Baburajan vs Parukutty And Ors. on 27 February, 1998

Equivalent citations: AIR 1998 Ker 274

Bench: P Balasubramanyan

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