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IN THE HIGH COURT OF BOMBAY
(J. R. Vimadalal J.)
MANEKJI MANCHERSHA JAVERI, Original applicant (deceased) - Appellant
v.
PHIROZE BOMAN JAVERI, Applicant (seeking substitution) - Respondent
Advocated appeared
For applicant-J. I. Mehta instructed by Gagrat & Co.
INDIAN SUCCESSION ACT - SECTION 268 - SUBSTITUTION OF EXECUTOR - APPOINTMENT OF SOLE EXECUTOR CONTINGENT ON NO SURVIVING CO-TENANTS - SURVIVING CO-TENANTS RENUNCIATION OF RIGHT TO APPLY FOR PROBATE - APPLICANT NOT ENTITLED TO APPLY FOR PROBATE - APPLICATION FOR SUBSTITUTION DISMISSED.
Fact of the Case:
Applicant sought to be substituted as executor in place of deceased executor, Manekji Manchersha Javeri, for the probate of Bomanji Manchersha Javeri's Will. Bomanji died in 1967, leaving a Will appointing surviving co-tenants as executors and, in their absence, the applicant, Phiroze. Manekji, a surviving co-tenant, applied for probate but died before the grant. Tehmina and Cooma, the other surviving co-tenants, renounced their right to apply for probate due to old age and ill-health.
Finding of the Court:
The Court held that the applicant was not entitled to apply for probate as the contingency for his appointment as sole executor, i.e., the absence of surviving co-tenants, had not occurred. The surviving co-tenants' renunciation of their right to apply for probate did not fulfill this condition. The Court distinguished between the right of an executor to apply for probate and the right to obtain Letters of Administration, emphasizing that the applicant needed to establish his right to the latter.
Issues: 1. Whether the applicant, Phiroze, was entitled to apply for probate of Bomanji's Will despite the existence of surviving co-tenants who had renounced their right to apply for probate. 2. Whether the provisions of Order 1, rule 10(2) of the Civil Procedure Code, read with section 268 of the Indian Succession Act, allowed for the substitution of the applicant in the probate petition.
Ratio Decidendi: 1. The Court interpreted clause 2 of Bomanji's Will, which appointed the applicant as sole executor only in the absence of surviving co-tenants. It held that this contingency had not occurred since Tehmina and Cooma, the surviving co-tenants, were still alive, albeit they had renounced their right to apply for probate. 2. The Court rejected the argument that the applicant could apply for Letters of Administration with the Will annexed instead of probate, as his right to do so was distinct from that of an executor applying for probate. 3. The Court found no provision in the Civil Procedure Code that would justify the substitution of the applicant in the probate petition.
Final Decision: The Court dismissed the applicant's application for substitution as executor and held that he was not entitled to apply for probate of Bomanji's Will.
"Clause 2. AFTER payment of all necessary expenses I GIVE AND BEQUEATH all the rest and residue of my property whatsoever and wheresoever and to which I am or may become entitled to absolutely to the same surviving co-tenants referred to above, and in case there is no such surviving co-tenant then to Phiroze (Tingchu) Bomanji Javeri AND I APPOINT the surviving Co-tenants, Executors of this my Will and if there are no such surviving Co-tenants then I APPOINT Phiroze (Tingehu) Bomanji Javeri, Sole Executor of this my Will."
On December 20, 1967, the said Manekji Manchersha Javeri who was the brother of the deceased Bomanji and one of the surviving co-tenants, applied for probate of the said Will of Bomanji, reserving the rights of the deceaseds sisters Tehmina Munchersha Javeri and Cooma Manchersha Javeri, the other surviving co-tenants to apply for probate later on. Probate duty as well as estate duty was paid by the said Manekji Manchersha Javeri, but before a grant of probate could be made to him, the said Manekji died on April 17, 1968. The said Tehmina and the said Cooma have, due to their old age and ill-health, expressed their inability to apply for probate of the Will of the estate of Bomanji and have, by a Deed of Renunciation dated July 9, 1968, renounced their rights in respect of the same. It is under these circumstances that the said Phiroze, mentioned in clause 2 of the Will of Bomanji, has made the present application that he be substituted in place of the said Manekji as far as the petition for Probate of the Will of Bomanji is concerned.
2. It was sought to be contended by Mr. Mehta on behalf of the applicant that by virtue of the provisions of clause 2 of the Will of Bomanji, the applicant is entitled to apply for probate of the Will of the said Bomanji, and that in order to avoid probate. duty and estate duty having to be paid over again pending the obtaining of refund of the amounts already paid by the said Manekji, instead of the applicant being compelled to file a fresh petition, his name should be substituted in the petition for Probate already filed by the said Manekji. The application is sought to be made under the provisions of Order 1, rule 10(2) of the Civil Procedure Code which, it is contended, would be applicable in view of section 268 of the Indian Succession Act.
3. I do not accept the contention of Mr. Mehta for the applicant that his client is entitled to apply for probate of the Will of the said Bomanji. The concluding portion of clause 2 of the Will of Bomanji on which he relies appoints the applicant sole executor only "if there are no surviving co-tenants", an event which, in my opinion, has not occurred. On the facts of the present case, there are surviving co-tenants viz. the said Tehmina and the said Cooma, but they have renounced their right to apply for probate. As a matter of plain language, the concluding portion of clause 2 of the Will cannot come into play in a case in which there are surviving co-tenants but they have merely renounced their right to obtain probate. The said Phiroze would, in my opinion, therefore, have to apply for the grant of Letters of Administration with the Will annexed, and is not entitled to apply for probate. In order that a person may be entitled to a grant of
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