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1985 Supreme(Pat) 70
PATNA HIGH COURT
Hari Lal Agrawal and Lalit Mohan Sharma JJ.
Harish Chandra Prasad
Versus
Jagarnath Prasad
Appeal from Original Decree No. 715 of 1968 ;
Decided On : FEBRUARY 26, 1985
The appointment of an executor by necessary implication from the language of a will is valid, and the substitution of an executor's heirs and legal representatives is permissible in probate proceedings.
Headnote:
SUCCESSION ACT - PROBATE - EXECUTOR - APPOINTMENT BY NECESSARY IMPLICATION - SUBSTITUTION OF EXECUTORS - JUDGMENT IN REM.
Fact of the Case:
The testator executed a will in favor of his nephews, appointing them as executors and beneficiaries. After the testator's death, the nephews applied for probate of the will. The defendant-objector challenged the genuineness of the will and claimed that the testator had executed a subsequent will in his favor. The trial court granted probate to the nephews, holding that the will propounded by the defendant-objector was not genuine. The defendant-objector appealed.
Finding of the Court:
The High Court upheld the trial court's decision. It held that the nephews were validly appointed as executors by necessary implication from the language of the will, which imposed upon them the duty to perform the testator's Sradh and other pious acts and to obtain probate of the will. The court also held that the substitution of the nephews' heirs and legal representatives as executors was permissible, as the judgment in probate proceedings operates as a judgment in rem and binds all persons.
Issues: 1. Whether the nephews were validly appointed as executors by necessary implication from the language of the will? 2. Whether the substitution of the nephews' heirs and legal representatives as executors was permissible?
Ratio Decidendi: 1. The court held that the nephews were validly appointed as executors by necessary implication from the language of the will, which imposed upon them the duty to perform the testator's Sradh and other pious acts and to obtain probate of the will. The court found that these duties are essential duties of an executor and that the testator's intention to appoint the nephews as executors was clear from the language of the will. 2. The court held that the substitution of the nephews' heirs and legal representatives as executors was permissible, as the judgment in probate proceedings operates as a judgment in rem and binds all persons. The court found that the substitution of the nephews' heirs and legal representatives was necessary to ensure that the testator's will was properly executed.
Final Decision: The appeal was dismissed with costs.
HARI LAL AGRAWAL, J.
1. This is an appeal under S.299 of the Succession Act by the defendant-objector against the judgment and order of the 2nd Additional District Judge, Patna, granting probate of the will said to be executed by one Raghunandan Khalifa on 15-6-1938 in favour of the two plaintiffs who died one after the other during the pendency of this appeal and have been substituted by their heirs and legal representatives.
2. The appeal was heard in part earlier and was adjourned for comparison of the signature of the executant by a handwriting expert. After receipt of the report of the expert, it has been heard again.
3. According to the case of the plaintiffs, the testator was residing in mohalla Sadiqepur in the town of Patna City. Undisputedly he did not have any child. The will in question (Ext. 2) is dated 15-6-1938 in favour of his nephews with respect to all his properties, namely, three houses which were his self acquired property and an Akhara which was his ancestral property, on account of the services faithfully rendered to the testator and his wife.
3A. According to the stipulation in the will, the testator was to remain the absolute owner of the properties till his lifetime and thereafter his wife Basanti Devi in possession of the same but as a limited owner, having no right of alienation. After her death the plaintiffs were to become the owners of the properties in question. Admittedly the testator died on 11-9-1959 but according to the case of the appellant, he had executed a will on 16-1-1959 bequeathing two of the houses and the Akara in favour of Sri Mahabirjee. This will, which has been marked as Ext. B in this case is registered. This document also contained similar stipulation with respect to the right of the testator over the properties during his life-time and after his demise, the life interest in favour of his wile. He also nominated five persons of the locality to manage the properties and perform the necessary religious obligations of the deity.
4. As already said earlier, the testator died on 11-9-1959 and thereafter his wife Basanti Devi got herself mutated in the municipal record in respect of the properties. Although some objection was raised by the aforesaid members of the committee to the mutation of the name of the widow. Basanti Devi also died on 4-5-1962 and then an application for probate of the will was filed by the plaintiffs on 31-7-1962 in the court of the District Judge, Patna. In the application it was claimed by the plaintiffs that they had performed the funeral of the testator Raghunandan, his widow as well as their Sradh ceremony and were already in possession of the property in question. It was further alleged that the deceased had left behind no near relation on whom notice was necessary to be issued.
5. The appellant, however, filed an objection petition on 22-8-1963 challenging the genuineness of the will According to the appellant the plaintiffs had no manner of concern with the testator or his wife nor they used to look after and serve them, rather it was the objector who lived with and served them and it was Mostt. Basanti Devi who performed the Sradh ceremony of Raghunandan. According to them, Ext. B was the true and genuine will propounded by the testator. Some further allegations were also made regarding the right and title of the testator over the properties in question. It is not necessary to go into them. On filing of the objection, the proceeding was converted into a regular title suit.
6. The suit was earlier decided in favour of the plaintiffs by the judgment dated 31-1-1964 holding that the win (Ext.2) was genuine. On 24-1-1964 i.e. a few days after the judgment the defendant had filed a petition along with certified copy of the will Ext.B praying to call for the original of the said win from the custody of the punches aforesaid and not to decide the matter finally until that time. This petition was, however, rejected by the predecessor of the learned
