ORAL ORDER

I.A. No. 1377 of 2017 and I. A. No. 4420 of 2017

I.A. No. 1377 of 2017 has been filed for substitution of the legal heirs of Sunaina Kuer who died on 02.02.2017 and was the executrix of the Will executed by late Radhika Devi.

2. I. A. No. 4420 of 2017 has been filed by the legal heirs of the said Sunaina Kuer for a formal amendment in the plaint of this test suit, with a prayer for grant of letters of administration with a copy of the Will annexed in their favour, instead of probate, inasmuch as Sunaina Kuer who is now deceased was both an executrix as well as a legatee under the Will.

3. Mr. Jitendra Kumar Verma, learned counsel appearing on behalf of the applicants, submits that the legal heirs are entitled to be substituted in place of the deceased sole plaintiff Sunaina Kuer. It is stated that the said Sunaina Kuer was not merely an executrix appointed under the Will of late Radhika Devi, but was also the sole legatee under the Will. As such, there would be no legal bar in substituting the applicants who are the legal heirs of Sunaina Kuer, the sole plaintiff, in her place as her heirs are entitled to an interest in the property upon her death. In this view of the matter, Sunaina Kuer’s heirs are entitled to grant of letters of administration with a copy of the Will annexed in their favour by a formal amendment in the prayer for the purpose under the provisions of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’).

Learned counsel further submits that an executor of a Will per se does not have a personal interest in the estate of the deceased as he acts only in the interest of the legatee/legatees under the Will. However, the position would be different where he acts in a dual capacity as both executor as well as legatee. In such a case, the doctrine of ‘actio personalis moritur cum persona’ does not apply as he, as legatee, has an interest in the property in his own right. His heirs are therefore legally competent to continue the proceeding after his death by making a formal modification in the prayer for grant of probate to one for grant of letters of administration with a copy of the Will annexed.

Strong reliance has been placed upon a recent decision of the Hon’ble Supreme Court in Vatsala Srinivasan vs. Shyamala Raghunathan, (2016) 13 SCC 253, approving a decision of the Hon’ble Bombay High Court in Smt. Vatsala Srinivasan vs. Narisimha Raghunathan and Anr., AIR 2011 Bombay 76. Counsel has further relied on a judgment of this Court in Ramjee Pandit & Ors. vs. Dharamdeo Pandit & Anr., 2008(1) PLJR 98, the facts whereof are more akin to those of the present case.

4. It is further submitted that the line of decisions taking the view that a suit abates upon death of an executor and his/her legal heirs cannot be substituted, are distinguishable on facts, inasmuch as those cases did not involve an executor having rights of a legatee under the Will and the executor was merely acting in the interest of other legatees, unlike as in the present case.

5. By way of elaboration, learned counsel has referred to more than a century-old decision of a Division Bench of this Court in Bihari Lal Mahton Tatak Gayawal vs. Ganga Dai Tatkain and others, AIR 1917 Patna 209, a case with as many as six executors appointed under the Will. However, none of the executors approached this Court for grant of probate, rather an application for grant of probate was filed by the legatee. The suit was tried and the trial court dismissed it on the ground that the applicant was not an executor but a legatee under the Will and could not be granted probate. An oral prayer was made in appeal for converting the prayer to one for grant of letters of administration, but considering the stage of the case, the prayer was denied.

In Mt. Phekni vs. Mt. Manki, AIR 1930 Patna 618, a legatee applied for letters of administration, but the suit was dismissed on the ground that the genuineness of the Will was not proved. An appeal was filed against