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Lallubhai Chhotabhai by Lrs. and ors. Vs. Vithalbhai Parshottambhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 78 of 1980
Judge
Reported inAIR1982Guj222
ActsSuccession Act, 1925 - Sections 2, 102, 138, 222, 232, 235, 276, 281 and 282
AppellantLallubhai Chhotabhai by Lrs. and ors.
RespondentVithalbhai Parshottambhai
Appellant Advocate R.N. Shah, Adv.
Respondent Advocate Akshay H. Mehta, Adv.
Cases ReferredPriya Nath v. Saila Bala Debi
Excerpt:
family - probate - section 222 of succession act, 1925 - probate can be granted only to executor appointed by will - appointment may be in express terms or it may be inferred by necessary implication - respondent would be entitled to probate of will when he shows that he was appointed executor by will - if he fails to prove such appointments - he may be entitled to grant of letters of administration with will annexed - provided he shows that he is universal or residuary legatee and he proves will. - - (1) that the application for probate was not maintainable because the will did not name the respondent as the execucutor, (2) that the assertion of the respondent in the application that he was the executor appointed tinder the will was incorrect and there was no due compliance with.....p.d. desai, j. 1. this letters patent appeal is directed against the decision rendered on august 16, 1979 in first appeal no. 514 of 1975 by m. k. shah, j. the appeal before m. k. shah, j. was under see. 299 of the indian succession act, 1925 (hereinafter referred to as 'the act') and it was directed against the decision dated dec. 30, 1974 rendered by the second joint civil judge. senior division, nadiad, in miscellaneous application no. 7 of 1970 purported to have been made under see. 276 of the act, where under probate of the will dated april 13, 1961 executed by one dahyabhai nanabhai patel. who died on october 21/22, 1967, was granted to the respondent. m. k. shah, j. dismissed the appeal and hence the present letters patent appeal.2. on jan. 29, 1970. the respondent made the.....
Judgment:

P.D. Desai, J.

1. This Letters Patent Appeal is directed against the decision rendered on August 16, 1979 in First Appeal No. 514 of 1975 by M. K. Shah, J. The appeal before M. K. Shah, J. was under See. 299 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') and it was directed against the decision dated Dec. 30, 1974 rendered by the Second Joint Civil judge. Senior Division, Nadiad, in Miscellaneous Application No. 7 of 1970 purported to have been made under See. 276 of the Act, where under probate of the will dated April 13, 1961 executed by one Dahyabhai Nanabhai Patel. who died on October 21/22, 1967, was granted to the respondent. M. K. Shah, J. dismissed the appeal and hence the present Letters Patent Appeal.

2. On Jan. 29, 1970. the respondent made the application giving rise to this appeal in the Court of the District Judge, Kaira, stating, inter aha, that the document annexed to the application was the last will and testament of Dahbhai Nanabhai Patel and that the respondent was the executor named in the said will. The respondent prayed that the probate of the will might be granted to him in the interest of justice. The appellants were shown as opponents in the cause title of the said application. The appellants appeared and filed their written statement, Ex. 14. In para 4. of the written n statement, the appellants specifically contended that the respondent was not the executor appointed under the will. In view of the aforesaid dispute, the respondent made an application, Ex. 53, for amendment and sought permission to amend the application by insertion of an averment to the effect that he was 'the sole legatee of all the properties under the will' and an alternative prayer for the grant of Letters of Administration with the will annexed. The application was duly granted. The trial Court raised two principal 8 issues; (1) whether the respondent proved valid execution and attestation of the will and (2) whether the, respond, Proved that he was the executor burned in the will. The parties led evidence in support of their rival cases. The' trial Court answered both the aforesaid issues in favor of the respondent. It held that the execution of the will was duly proved and that on a fair and comprehensive reading of the will, it was clear that the respondent was the executor of the will. The trial Court, therefore, made an order directing the issuance of a probate with the copy of the will annexed in favour of the respondent on usual terms.

3. In the appeal, five contentions were advanced before M. K. Shah, J. on behalf of the appellants. They were; (1) that the application for Probate was not maintainable because the will did not name the respondent as the execucutor, (2) that the assertion of the respondent in the application that he was the executor appointed tinder the will was incorrect and there was no due compliance with Section 276(1)(e) of the Act, (3) that there was non-compliance with Section 281 Of the Act inasmuch as the application for Probate was not verified bevy at least one of the witnesses to the w ill as required by law, (4) that the will was a forged document and it was not proved to have been duly executed by the (testator and (5) that the respondent had failed to clear the suspicious circurnstances surrounding the alleged execution of the will.

M. K. Shah, J. held that: (1) the respondent was appointed as an executor under the will by necessary implication and that such appointment was valid, having regard to the provisions of Section 222 of the Act, (2) though the respondent was not specifically named as an executor, he was entitled to the probate having regard to the fact that he was, in the eye of law, an executor appointed under the will, (3) the statement made in the application that the respondent was the executor under the will was, therefore, correct and the provisions of See. 276 (1) (e) were duly complied with, t4) in any event; Section 276(1)(e) was a procedural section and it cannot override the provisions of Section 222 which was subtantive provision and since an executor whether appointed express sly '. or by necessary implication was entitleded to the grant. of probate, the application of the respondent could not have been rejected on the ground that the procedural requirements were not satisfied (5) the due execution of the will in a sound and disposing state of mind was proved and (6) the trial Court was justified in granting the probate to the respondent.

4. At the hearing of the Letters Patent Appeal, the following submissions were made on behalf of the appellants:-

(1) That the application for probate was not maintainable as the respondent was not the executor named in the will and the mandatory requirements Of S. 276(1)(e) could not, therefore. be treated as having been complied with.

(2) That the mandatory requirement of S. 281 was also not compiled with because the application for probate was not verified by at least one of the witnesses to the will.

(3) That the respondent having committed an offence by making a false declaration in the application that he was an executor appointed under the will ought to have been appropriately dealt with under S, 282 of the Act; and

(4) That it was an error to hold that S. 222 was the substantive provision which overrides S. 276(1)(e) and that, therefore, the application for probate was maintainable.

5. Section 217 of the Act, which occurs in part IX entitled 'probate, Letters of Administration and Administration of Assets of Deceased 'provides that save as otherwise provided by the Act or by any other law for the -time being in force. all grants of probate and letters of administration with the will annexed and the administration of the assets of. the deceased in cases of internal estate succession shall be made or carried out, as the. case may be, in accordance with the provisions of the said Part. S. 222, which is material for the purposes of the, decision of this case and which occurs in, Chapter I of Part IX. reads as under:-

'222(1) probate shall be granted only to an executor appointed by the will.

(2) The appointment may be expressed or by niecessary: implication.' .

Section 232, - which - also is material and: which ,Occurs. in the same Chapter, read as under-

(a) the deceased has made a vn1% but has not appointed an executor. Or

(b) the deceased has appointed an executor who is legally incapable or refuses 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.11

6. On a combined reading of these sections. it would appear that probate can be granted only to an executor appointed by the will and that the appointment~ may be in express terms or it may be inferred by necessary implication. In cases where (1) a will has been made but an executor has not been appointed or (2) an executor is appointed who is legally incapable or refuses to act or who has died before the testator or before he has Proved the will, or (3) 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. It is clear, therefore, that the respondent would be entitled to the probate of the will only if he shows that he was the executor appointed by the will, either expressly or by necessary implication, and that if he fails to prove such appointment, all that he may be entitled to is the grant of letters of administration with the will annexed, provided he shows that he is a universal or a residuary legatee and he proves the will. On the question of the proof of the will, the dispute does not any longer survive herein. The short question which. therefore. re.. quires consideration is whether the respondent is the executor appointed by the will. either expressly or by necessary implication, because then only the grant of probate to him can be held to be legally valid,

7. The will in question. which was registered before the Sub-Registrar at Nadiad on April 13. 1961. consists of six material paras. in para. I the testator stated that he was a bachelor and that he had no issues. He then referred to his cousin brother Shamalbbai Kishor, bhai and to his son Parasottam and proceeded to state that Parsottam had two sons, namely. Vithalbhai (the respondent) and Jayantibhai. He stated that Vithal.v bhai was looking after and rendering services to him There were no other near relatives, The testator then 'set out the particulars of his immovable property. in para. 2 the testator stated that he had no movable property, in para, 3 it is stated that the testator had no debts or out standings. Para, 4 is material for the purpose of the decision of this case and, when translated into English. it reads as under;

'The aforesaid are my immovable and movable properties. I have full authority and right to mortgage. sell or make a gift of my aforesaid properties or any part thereof till I am alive. After my death, whatever remains out of my aforesaid properties. subject to accretions and diminutions, and if there be any other property which is not mentioned in this will and which is 6ubsequently found to be belonging to me, all such property shall be considered to be my property, and I hereby declare Patel Vithalbhai Parsottam, aged about 30, elder son of my nephew parsottam, Shamalbhai to be the real heir entitled to such properties. as already, decided by me. After my death, he shall take possession of my properties as an independent and absolute owner and he shall be entitled to use and enjoy such properties as an independent and absolute owner, No one shall raise any objection or obstruction in such enjoyment and use of the properties. After taking possession of the properties in the aforesaid manner as an independent and absolute owner. he 6hali act as follows:

(i) My debts if any shall be paid by him out of my , properties.

(ii) If there are any out standings, the same shall be recovered by him as an independent owner.

(iii) All my obsequies ceremonies shall be Performed and expenses connected therewith shall be incurred by, him out of my properties as per his volition.'

Para. 5 contains a recital that the testator had not executed any previous will. Para 6 contains a declaration that the will was to be acted upon only after his death. These are the material, recitals in the will.

8. The question whether the respondent is an executor appointed by the will, either expressly or by necessary implication, falls to be resolved on true interpretation of the relevant provisions of the will extracted above. Para. 4 of the will is the material provision which requires to be closely analyzed in this context. The contents of the said para unmistakably indicate that there was an absolute bequest of all the properties of the testator in favour of the respondent, that the respondent was entitled to immediate possession. enjoyment and user of the properties bequeathed and that the possession was to be taken and enjoyment and user was to be made in the capacity of a full and absolute owner. In other words, upon the death of the testator, all his properties were to immediately vest solely in the respondent, both in interest as well as in possession. a' an absolute owner and that he was to take possession of those properties in the capacity of a absolute owner and to use and enjoy them as such. The disposition in such clear terms constitutes the respondent an universal legatee to whom the testator gave the whole of his properties which he left at the time of his death. The will contained certain directions with regard to the payment of debts, if any, and the performance of obsequies ceremonies and meeting of expenses incurred in that behalf. However, those directions do not have the effect of constituting the respondent either an executor or a residual legatee. An executor is. '..... the person appointed, ordinarily by the testator by his will or codicil, to administer the testator's property and to carry into effect the provisions of the will '(see Halsbury's Laws of England, Fourth Edition, Vol. 17, paragraph 702 at A 373). S. 2(c) of the Act defines the word 'executor' to mean a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. A residuary legatee, according to S. 102 of the Act, may be constituted by any words that show no intention on the part of the testator that the person designated shall take the surplus or residue of his property. A residuary legatee is not, in law, entitled to immediate possession of the testator's estate or any part thereof and has no right to claim any interrest. whether legal or equitable. in any specific asset or each and every asset of which the estate consists. The only right of a residuary legatee would be to require the executors or administrators to administer the estate completely and having ascertained the residue to Put him in possession of the same and to complete his title to the legacy. It is only then that the legatee would be entitled to say for the first time as regards the property distributed : 'this now belongs to me' and thenceforward such property would vest in him in possession as owner. If the residuary legatee is himself the executor or administrator, he may take possession of the estate but such possession would not be referable to his character of legatee and his assent, express or implied in his capacity as executor or administrator, would be necessary on completion of the administration to invest him with title to his own legacy (see Navnitlal Sakarlal v. C. 1. T. : [1977]106ITR512(Guj) :

9. On a true construction of the will and. more particularly, para. 4 of the will read in juxtaposition with the other provisions of the will. there ii no manner of doubt that the properties, of the testator that were bequeathed to the respondent vested in him in interest as well as in possession immediately upon the death of the testator as an absolute owner. The respondent was not appointed either expressly or by necessary implication, as an executor to administer the testator's property and to carry into effect the provisions of the will. Nor was he a residuary legatee who was entitled only to the residue of the estate after the administration was completed and who was entitled to be put in possession of the residue and to the completion of his title to the legacy only after the executors or administrators had discharged their obligations with regard to the satisfaction of debts and legacies. The directions contained in para. 4 of the will with regard to the payment of debts, if any, and the performance of obsequies ceremonies and incumbent of expenses in that behalf, have not the effect of constituting the respondent an executor or a residuary legatee because the testator's intention clearly was to vest his properties in interest as well as in possession in the respondent immediately upon his death and not after the expenses with regard to obsequies ceremonies were met and debts, if any. were paid by him in the process of administration of the properties. At the highest, the absolute bequest in favour of the respondent imposed an obligation on him to carry out those directions as a part and parcel of the bequest. Be it noted in this connection that so far as expenses with regard to obsequial ceremonies are concerned, it was left to the respondent to act as per his volition and that even a regards the outstandings, the direction was that the respondent was to collect them as an independent owner thereof. On a fair, proper and comprehensive reading of the material provisions of the will, there is no manner of doubt ' therefore, that the respondent was constituted the sole/universal legatee under the will, in whom the properties of the testator vested, both in interest as well as in possession, immediately upon the death of the testator and that. the respondent was not appointed as an exiecutor by the will, either expressly or !by necessary implication, nor was he constituted a residuary legatee. The view taken by M. K. Shah, J. that the respondent was appointed as an executor by necessary implication by the will is, with respect, not correct in the light of the true legal position and the recitals contained in the will in question.

10. In the view which we are taking, we find support from the decision in Ex parte Vittal Doss, (1892) ILR 15 Mad 360. In that case, the will which was propounded constituted the persons named therein as 'the heirs to my outstandings, debts my house, Takoorjee Seva (or idols), utensils, & Co., and my property whatever it may bell, The heirs applied for probate of the will on the ground that they were appointed executors by implication. It was held that the language used in the will was such that it could not be said that anyone was constructively appointed executor and that, therefore, the application for Probate was not maintainable, Though -each case will depend upon its own facts and the question a.1; to .vIiether any person is appointed as an executor by necessary implication will have to be answered in the light of the recitals contained in the will, the decision in Ex Parte Vittal Doss's case is helpful because there is a resemblance in the manner of disposition of the properties under will in question and the will in that case,

11. M. K. Shah, J. relied upon two decisions in support of his view that the respondent was appointed as an executor by implication. In Viramma v. Seshamma. AIR 1931 Mad 343, the question was examined in the light of the following recital in the will.

'It is devised that my nephew Ramarayudu is to discharge the debts due by me to the world.'

In Thenappa Chettiar v. Indian overseas Bank Ltd., AIR 1943 Mad 743, the will conferred on the person setting up the same a power to collect outstandings, pay debts and manage the properties. It is in the light of these provisions contained in the wills there under consideration that the view was taken in hose cases that the person concerned in 'each case was appointed as an executor by implication. It is manifestly apparent and requires no elaborate discussion to demonstrate that the relevant prorvisions of the wills there under consideration. and the will in hand are entirely different. The wills in those cases did not make an absolute bequest coupled with an obligation. They merely conferred power upon the persons named to discharge debts, in one case, and to collect oustandings, pay debts and manage the properties, in the other case. Under those circumstances, the view was rightly taken that there was an pointment of the person concerned as an executor by implication. Those decisions are clearly distinguishable and of no assistance whatever in deciding the question which has arisen in this case on the language of the will under consideration,

12. In view of the foregoing discussion, it is manifest that the respondent is not an executor appointed by the will, either expressly or by necessary implication although he might have honestly believed so. Probate of the will could not therefore have been granted to him, having regard to'the provision8l contained in S. 222 of the Act. indeed, his application, in SO far as it. prayed for the grant of probation was not maintainable at all. If that be the true legal position - and we hold so - the contentions based on the provisions of S. 276(1)(e), S, 281 and S, 282 must be rejected as misconceived, S. 276(1)(e), in so far as it is material for the purpose of this case, provides that an application for probate shall state that the petitioner is the executor named in the will, S, 281 provides that where the application is for probate, the petition shall be verified by at least one of the witnesses to the will in the manner or to the effect specified. S. 282 provides that if any petition or declaration which is required to be verified contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under S. 193 of the Indian Penal Code. It is apparent that none of these provisions would be attracted. having regard to the view which we are inclined to take herein.

13. The matter cannot, however, be disposed of straightway in favour of the appellants in the light of the aforesaid findings, in view of our finding that an application for probate was not maintainable and that probate could not have been granted to the respondent, it is true that the appellants would be entitled to succeed in this appeal, although on a different ground. The order made by the trial Court granting probate in favour of the respondent will require to be quashed and set aside, The question, however. is whether the respondent should be straightway thrown out of the Court or whether an alternative relief could be granted to him in the present proceedings.

14. While narrating the facts, we have pointed out that the application instituted by the respondent was subsequently amended and that an alternative prayer for the grant of letters of administration with the will annexed has been incorporated in the application. An averment has also been introduced in the body of the application to the effect that the respondent was the sole legatee of all the properties of the testator, In the light of this alternative plea and prayer, the precise question is whether the trial Court could be directed to grant to the respondent letters of administration with the will annexed,

15. We have pointed out earlier that S. 232 enables the grant of the letter of administration with the will annexed of the whole estate, or of so much thereof as may be unadministered, to a universal or a residuary legatee. provided such legatee proves the will, when the deceased has made a will, but has not appointed an executor. In the instant case, the deceased has made a will. He has not appointed an executor. However, as found earlier, the respondent has been constituted a universal legatee by testamentary disposition in respect of the whole of the property left by him at the time of his demise. The respondent has proved the will, Therefore, letters of administration with the will annexed can be legitimately granted to him in respect of the whole estate, especially in view of the alternative prayer made by him. Not to grant such a relief, under the aforesaid circurnstances, might result in multiplicity of proceedings and delay the due disposition of the properties in accordance with the last wishes of the testator. That the Court has the power, under such circumstances, to grant letters of administration with the will annexed in place and stead of probate cannot possibly be doubted.

16. In Dilip Kumar v. Subhadra : AIR1974Ori130 and Soundararkia Peter v. Florance Chellaih. AIR 1975 Mad 194, the grant of letters of a& ministration with the will annexed was found to be the proper remedy when it was found that probate could not be granted as no executor was appointed by the will. Under the circumstances having regard to the fact that we have found that the respondent is a universal legatee and in view of the fact that the finding with regard to the Proof of the will is not in question. we are inclined to remand the matter to the District Court with a direction that letters of adminisration with the will, annexed should be granted to the respondent as alternatively prayed by him.

17. It was, however, strenuously contended on behalf of the appellants that having regard to the provisions of S. 235, letters of administration with the will, annexed cannot be granted in the instant case until a citation has been issued and published in the manner prescribed in S. 283, sub-see, (21 and that since, in the instant case. there is no evidence to show that citation was issued and published as required by law, no direction should be issued to the District Court to straightway issue letters of administration with the will annexed in favour of the respondent, The submission made on behalf of the appellants raises the question of interpretation of S. 235, S. 235 reads as under,-

'235, Letters of administration with the will annexed shall not be granted to any legatee other than a universal or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned, calling on the next-of-king to accept or refuse letters of administrations.'

On a bare reading of the section, it would appear that its requirements are to be satisfied when letters of administration with the will annexed are to be granted to any legatee other than an universal or a residuary legatee. In other words. the prohibition against grant of letters of administration with the will annexed until a citation has been issued and published will not apply when the grant is to be made in favour of a universal or a residuary legatee, It must be remembered that a Citation answars two purposes it either Compels a representation to be taken by those who are primarily entitled to it, or where they do not take it, the process Provides a substitute for a voluntary renunciation on their part (see Coote's Probate Practice, 12th Edition, I:L 242). Therefore. in case of a universal legatee, where he alone would be primarily entitled- to the rementation and applies for the grant of letters of administration with the will annexed, the legislature appears to have dispensed with the issuance and Publication of the citation. Contrary view. however, appears to have been taken in Priya Nath v. Saila Bala Debi, AIR 1929 Pat 385, where it has been held that the section does not relieve an applicant for letters of administration, even though he be a universal or a residuary legatee from the obligation to call upon reversioners and to give them an opportunity of protecting their vested interests in the reversion. in Soundararaja Peter's case (supra also there are observations to the effect that the section specifically refers to the case of a M Versal or a residuary legatee applying for letters of administration and Prohibits the grant of letters of administration unless citation has been issued and published in the manner prescribed. We are, however, unable to agree with the view expressed by the Patna and Madras High Courts because it runs counter to the express exclusionary words in S. 235 which dispensed with the requirement of issuance and Publication of citation when letters of administration are to be granted to a universal or a residuary legatee, Besides, in the instant case, the appellants were cited as opponents in the application and they appeared and contested the proceedings, Moreover, there is an order passed on the application by the learned trial Judge directing the issuances of a Public notice (general and special) and the Rojnama shows that process was paid and notices were issued accordingly, The object of S. 235 appears to be- to protect the possible rights of next-of-kin to effect the administration of the estate when no executor has been appointed, Having regard to the fact that the appellants who were interested in opposing the grant of Probate and/or letters of administration were specifically cited as Opponents and that public notice was issued and that none of the next-of-kin has appeared and contested the proceeding. (sec) we might have seriously considered the question whether to entertain this objection at this later stage of the proceeding at the instance of the appellants even if S. 235 was held applicable.

18. In the result. the appeal succeeds and it is allowed, The impugned judgment and order passed by M. K, Shah, J. in First Appeal No. 514 of 1975 are set aside, The order passed by the trial Court granting Probate to the respondent is also set aside, The case is remanded to the District Court with a direction that it shall issue letters of administration with the will annexed to the respondent under S. 290 of the Act in accordance with law and in the light of the obzervations made In this judgment, upon the respondent applying with the other requirements of law, if any. in regard to such grant, There shall be no. order as to costs throughout.

19. Appeal allowed.


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