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inder Chand Nayyar Vs. Sarvadeshik Arya Pratinidhi Sabha and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberF.A.O. No. 82 of 1969
Judge
Reported inAIR1977Delhi34; 1976RLR443
ActsSuccession Act, 1925 - Sections 2, 222, 223 and 236; Societies Registration Act
Appellantinder Chand Nayyar
RespondentSarvadeshik Arya Pratinidhi Sabha and anr.
Appellant Advocate R.K. Sharma and; Vijay Kishan, Advs
Respondent Advocate S.N. Marwaha, Adv.
Cases ReferredIn Benares Hindu University v. Gauri Dutt Joshi
Excerpt:
.....executor in 'will' in dispute either expressly or by necessary implication - held, order for grant of probate to contesting respondent with copy of 'will' attached not sustainable. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor..........propounder of the will. in respect of issues nos. 3, 4 and 5, the court returned a finding that in probate proceedings the only question for determination was - the genuineness or otherwise of the will while the questions of title or authority of the testator to dispose of the property by will were not to be decided in these proceedings and they had to be decided in the civil suit and grant of probate could not debar the opposite party from filing a civil suit to establish his right in a civil court. in other words, these issues were not decided one way or the other. so far as issue no. 6 is concerned, the court held that the petition had been filed in a proper form with due verification. finally, the court ordered grant of the probate to the contesting respondent with a copy of the will.....
Judgment:

1. This first appeal from order has been filed under Section 299 of the Indian Succession Act, 39 of 1925 (hereinafter referred to as 'the Act') and it is directed against the order of Mr. C. G. Suri, District Judge, Delhi, dated 20th January, 1969, by which he has granted a probate of the will (Ex. P-1) to the first respondent Sarvadeshik Arya Priti Nidhi Sabha. The second respondent is the State, which is not represented before me.

2. The material facts of the case are that Chander Wati, deceased owned a property bearing No. XVII/1550: Plot No. 3W/12, West Patel Nagar, New Delhi. She executed a will dated 27th April, 1967 (Ex. P-1), which was not registered, but was attested by three witnesses. She died at Delhi on 30th August, 1967. The contesting respondent applied for grant of a probate to the said will. On, issue of- a notice, the appellant' before me raised objections. He disputed the execution of the will and the sound disposing mind of the testator. He also contended that the property in dispute was ancestral and so could not form the subject-matter of a bequest by will. On the pleadings of the parties, the following issues were framed:

'1 Whether Smt. Chanderwati Devi deceased duly executed the will propounded by the petitioner while she was of a sound disposing mind O. P. Petitioner.

2. Whether the property has been correctly valued by the petitioner O. P. Petitioner.

3. Whether the will is inoperative because permission of the Land and Development Officer was not taken? O. P. Respondent.

4. Whether the will relates to ancestral property, and if so, what is the effect O. P. Respondent.

5. Whether the property has been mutated in the name of the respondent by the Land and Development Office and the Delhi Municipal Corporation and if so, what is the effect O. P. Respondent.

6. Whether the petition is not in proper form or is not properly verified O. P. Respondent.'

The court below by the impugned order answered issue No. 1 in favor of the propounder of the will and held that the deceased had duly executed the will in dispute while she was in sound disposing mind. Issue No. 2 was also answered in favor of the propounder of the will. In respect of issues Nos. 3, 4 and 5, the court returned a finding that in probate proceedings the only question for determination was - the genuineness or otherwise of the will while the questions of title or authority of the testator to dispose of the property by will were not to be decided in these proceedings and they had to be decided in the civil suit and grant of probate could not debar the opposite party from filing a civil suit to establish his right in a Civil Court. In other words, these issues were not decided one way or the other. So far as issue No. 6 is concerned, the court held that the petition had been filed in a proper form with due verification. Finally, the court ordered grant of the probate to the contesting respondent with a copy of the will attached with a direction to furnish a statement of account of the estate within one year.

3. Feeling aggrieved the appellant has challenged the order. Mr. R. K. Sharma, counsel for the appellant has raised two questions of law, namely, (1) in view of Section 222 of the Act, probate could not be granted to a person, who was not named an executor by the will and as such the impugned order is illegal and without jurisdiction; and (2) the respondent is an association and so neither probate nor letters of administration can be granted to it. These points had not been raised in the Court below or in the grounds of appeal in this Court. But by my order dated 21st April, 1976, 1 have allowed them to be raised and given an opportunity to Mr. Marwaha to meet them.

4. One of the questions raised at the bar is that the order of the Court below is without jurisdiction under Section 222 of the Act as by the will the testator had not appointed any executor. Section 222 of the Act reads as follows:

'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.'

In Edward Waston Coleston. v. Theresa Chetty : AIR1934All1053 , and Smt. Sushilabai v. Govind Ganesh, : AIR1958MP372 , it has been held that a probate cannot be granted to any person unless and until he has been named an executor in the will. As such it is contended that the grant of probate was illegal and without jurisdiction.

5. Mr. Marwaha has submitted in reply that the executor is defined in clause (c) of Section 2 as follows:

'(c) 'executor' means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided.'and that in view of the definition of the contesting respondent it must be considered to be an executor entitled to the grant of probate.

6. The will (Ex. P-1) which has arrived in court in a sealed cover has been opened in the presence of the counsel for the parties. The operative portion of the will reads as follows:

'This building (Immovable Property) detailed above which I am entitled to sell or dispose of during my lifetime, I give and device in trust. The Sarvadeshik Arya Pratinidhi Sabha , Daya Nand Bhavan, opposite Ram Lila Ground, 5/3, Asaf Ali Road, New Delhi-1.

'The purpose of the Trust, named after me shall be: 'To run an Arya Samaj School which inter alias should impart Shudda Vedik teachings as preached and practiced by Maharishi Daya Nand Sarswati Maharaj and named as Chandra Wati Arya School (Chandra Wati Arya Pathshala)''.

There are no other words or phrases in the will to indicate that the execution of the will has been confided to the contesting respondent. From the above expressions, I am unable to hold that the contesting respondent has been named as an executor of the will or that its execution has been confided to it. it is true that the property had been bequeathed to the contesting respondent upon trust for the purpose of running Arya Samaj School, but that only makes the contesting respondent a legatee under the will. The respondent cannot be called an executor.

7. Mr. Marwaha has cited Viramma v. Seshamma Air 1931 Mad 343. P. Rama Naidu v. Rangayya Naidu Air 1933 Mad 114 and Deveeramma v. M. S. Nanjappa. Air 1961 Mys 150 to show how an executor may be deemed to have been appointed expressly or by necessary implication. These authorities turn on their own facts and do not give any assistance in resolving the controversy raised before me. In Viramma's case AIR 1931 Mad 343 the alleged will stated that 'it is devised that my nephew is to discharge the debts due by me to the world', and it was held that the said nephew was appointed an executor of the will by implication and that probate should be granted to him. In P. Rama Naidu's case AIR 1933 Mad 114 It was held that an executor who prayed for probate prayed in form for something which could be granted to no one else, but the essence of the proceedings was that he sought to establish a will, not for himself, but as the representative of those who took benefits under it, and if he failed in his duty, any of those whom he represented might intervene to carry on the proceedings. In Deveeramma's case AIR 1961 Mys 150 the court held as follows:

'The Courts should always lean against regarding a person as having been appointed an executor by necessary implication. An executor by necessary implication or according to the tenor must have the right to receive for the estate what is due to it and to pay what is due from it. That is the correct test to be employed to determine whether a person is an executor even according to the tenor.'

The facts of that case show that the will contained the following provisions, namely 'during my lifetime, I shall myself conduct the charitable acts and the entire management of other family affairs, which are to be done by me. After my death, my family members should conduct all the affairs under the supervision of the Government as stated above and N son of my uncle S, shall supervise so that everything takes place properly.' On a construction of this language, it was held that only members of the family of the testator were the persons who were entrusted with the administration and neither the Government nor N was entrusted with, such duties as would make them executors under the will even by necessary implication and thereforee, N was not entitled to the grant of probate.

8. In the instant case, there are no words contained in the will which either expressly or by necessary implication entrust the duty of execution of the will or the administration of the estate of the deceased to the respondent. The contesting respondent has been made the sole beneficiary and is, thereforee, the legatee. Even in the application filed in the court below, by which the proceedings were initiated, it is stated in paragraph 3 that the contesting respondent was the sole beneficiary named under the will. This statement of fact is no doubt true, and it is clear that the respondent is neither in fact an executor nor has it ever claimed to be the executor of the will. As such I hold that the contesting respondent has not been appointed executor in the will in dispute either expressly or by necessary implication. Consequently, the order for grant of probate to the contesting respondent with the copy of the will -attached is not sustainable and is set aside.

9. The question next arises for consideration is what should be done. Under the provision of law, the contesting respondent if it succeeds in proving the will, will be entitled to the grant of letters of administration with a copy of the will attached under Section 232 of the Act. The problem is whether the letters of administration should be granted by this Court in exercise of its appellate powers or the case should be remanded to the Court of first instance.

10. I have heard the counsel for the parties. Mr. Marwaha has very seriously contended that the present proceedings commenced on 16th December, 1967 and they relate to the estate of the deceased, who died in August, 1967 and a long time has elapsed and the technical mistake that had been committed by the Court - below may be corrected by the appellate Court and for this purpose he has cited Karnalamna v. Somasekharappa Air 1963 Mys 136 L. Shiv Dayal Kapoor v. Union of India, , Govind M. Asrani v. Jairam Asrani, : AIR1963Mad456 , and Soundaraja Peter v. Florance Chellaih, : AIR1975Mad194 , and submits that in the same proceedings, the error may be corrected by this Court. Mr. Sharma has, however, opposed this course of action. He submits that he will be entitled to raise other objections to the amendment of the application. Moreover, he submits that he will be deprived of a right of appeal if the matter is decided by this Court at this stage. In the circumstances of the case, I consider that it will be in the interests of justice if the matter is remanded to the Court below for appropriate action.

11. Mr. Sharma has raised another point that Sections 223 and 236 of the Act prohibit grant of letters of administration to any association of individuals, unless it is a company which satisfies the conditions prescribed by rules to be made in this behalf. Mr. Sharma has cited Mahashaya Krishna v. Mt. Maya Devi, Air 1948 Lah 54 This authority was considered by the High Court of Allahabad in a Division Bench, Ganga Sahai v. Bharat Bhan, : AIR1950All480 . In Benares Hindu University v. Gauri Dutt Joshi, : AIR1950All196 , also the view taken was that the aforesaid statutory provisions do not prohibit the grant of probate or letters of administration to corporate bodies.

12. I have considered the matter and am in agreement with the view of the High Court of Allahabad in Ganga Sahai's case : AIR1950All480 , This was a case of Arya Prati Nidhi Sabha and it was held that letters of administration could be granted to such a body which was registered under the Societies Registration to agree with the view taken by the High Court of Lahore in Mahashaya Krishna's case AIR 1948 Lah 54 As a last resort it will still be open to the contesting respondent to obtain letters of administration under Section 232 of the Act in the name of its President through whom the society is entitled to sue and this will meet the technical objection raised by the appellant. I, thereforee, repel the contention of the appellant.

13. I am, however, not expressing any opinion on the appreciation of evidence or the merits of the case with regard to the genuineness or otherwise of the will. These will be decided by the court below afresh according to law. The appeal is consequently allowed. The case is remanded to the learned District Judge, who will keep it on his file and decide the matter afresh. He will consider the application of the contesting respondent for amendment of the main petition sympathetically in accordance with law and will decide the case according to law. The decision of the court below on issues 3, 4 and 5 is not disturbed. No opinion is expressed on the answer given by the court below on issue No. 1, Since this is an old matter, the learned District Judge will decide it as quickly as possible. Costs of this appeal will abide by the result of the proceedings in the court below.

14. The parties are directed to appear before the learned District Judge on 17th May, 1976, for further proceedings.

15. The original will be put in the sealed cover and returned along with the record. The court will also call upon the respondent propounder to file two photostat copies of the will and place them on the record for ready reference, while the will may remain in the sealed cover, unless otherwise needed.

16. Appeal allowed.


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