Oral Judgment: (Dr. Justice D. Y. Chandrachud)

The gist of the case.

1. This Appeal raises the issue as to whether a sole beneficiary under a will can seek substitution instead and in place of an executor who has died during the pendency of a testamentary proceeding. The Testamentary Suit for probate of the will of the testatrix is pending for over seven years; evidence is complete and the suit was ripe for final hearing when the sole executor died. The learned Single Judge allowed the Chamber Summons by the Respondent for substitution and granted the prayer for converting the proceeding formally into one for Letters of Administration with the will annexed. The Appellant contends that the remedy open to the Respondent is to file a fresh Petition for Letters of Administration with the will annexed and the probate proceedings which came to an end with the death of the executor cannot be continued. For the reasons which follow, we have concluded that the law is not what the Appellant contends it is. A purposive interpretation which safeguards litigants against a multiplicity of proceedings and the attendant delay and expense is in accordance with the intent and the letter of the Indian Succession Act, 1925.

2. The Appellant is the original Defendant in a Testamentary Suit instituted by the sole executor named under a will alleged to have been executed by the deceased testatrix. The Respondent is the sole beneficiary under the will. The executor had filed a Petition for probate which was converted into a Testamentary Suit upon a contest. The trial commenced and the evidence of seven witnesses was recorded. Evidence is complete and the suit was to be heard. At this stage the executor died. On his death the Respondent took out a Chamber Summons for substitution in place of the sole executor and for seeking the grant of letters of administration with the will annexed, instead of a probate. The application was allowed, following which an Appeal has been filed.

3. The relevant facts are that the will is alleged to have been executed on 4 January 2001 by the mother of the Appellant and the Respondent. Under the will the property is bequeathed to the Respondent. The testatrix died on 1 March 2003. The sole executor appointed under the will applied for probate on 24 June 2003. The sole executor died on 3 July 2010. The Chamber Summons was lodged on 29 July 2010 and was allowed by the impugned order of the learned Single Judge dated 16 August 2010.

Submissions.

4. On behalf of the Appellant, the following submissions have been urged:

Facts.

(i) On the death of a sole Plaintiff or of the last surviving Plaintiff where there is more than one, the proceeding in a suit abates where the right to sue does not survive. Abatement is automatic and does not require the passing of an order of the Court. Upon the proceedings having abated the consequence in law is that those proceedings do not survive at all. An application for setting aside the abatement can arise only when the right to sue survives in favour of the applicant;

(ii) Proceedings which have abated cannot be resurrected by taking recourse to Section 151 or Order I Rules 8 / 10 of the Code of Civil Procedure 1908;

(iii) An application for substitution or for continuation of the proceedings which have abated cannot be filed or entertained unless the abatement is first set aside;

(iv) Section 222 of The Indian Succession Act 1925 provides that the probate can be granted only to an executor. Under the Act proceedings for grant of probate cannot survive either on the death of the sole executor or of the last of the surviving executors. Upon the death of the sole executor or, as the case may be, the last surviving executor the right to sue does not survive in favour of any one including the beneficiary since that right is personal to the executor. Hence an application for substitution or for conversion of the proceedings from one for the grant of probate to a proceeding for th