A legatee under a Will is entitled to apply for grant of letters of administration under section 232 of the Indian Succession Act, 1925, if the executor dies before proving the Will.

SUBHRO KAMAL MUKHERJEE, J.

( 1 ) AN application for grant of probate of the alleged last Will and testament of Satidas Mukherjee, since deceased, was filed by the executor named and appointed in the said Will.

( 2 ) SINCE a caveat was lodged, the proceeding became contentious.

( 3 ) UNFORTUNATELY, before the Will could be proved, the executor died on september 15, 2002.

( 4 ) THE present application has been filed by one of the legatees under the will for leave to proceed with the said application upon conversion of this proceeding for grant of probate into a proceeding for grant of letters of administration.

( 5 ) MR. Debasish Kundu, learned Advocate, appearing in support of the application, cites the cases of Shambhu Prasad Agarwal vs. Bhola Ram Agarwal, reported in 2000 (9) SCC 714 and Santi Swamp Sarkar vs. Pradip Kumar Sarkar and Ors. , reported in AIR 1997 Calcutta 197.

( 6 ) MR. Saha, learned Advocate, appearing for the caveator, opposes this application.

( 7 ) IN the case of Haripada Saha and Anr. vs. Gobinda Chandra Saha and Ors. , reported in 51 CWN 917, the sole executrix under the Will of one Rampada saha applied for grant of probate. Only six days after the said application was filed, the sole executrix died. Three persons made an application before the learned District Delegate, inter alia, praying for permission to continue the said proceeding instead and in place of the sole executrix and they prayed for letters of administration with a copy of the Will annexed. As objection was raised, the proceeding became contentious and the learned District Delegate returned the application with a direction to the applicants to present the said application before the learned District Judge. The learned District Judge granted letters of administration with a copy of the Will annexed to two of the petitioners inasmuch as one of the petitioners, in the meantime, abandoned his claim. The objectors appealed against the order granting letters of administration.

( 8 ) A Division Bench of this Court in the said case held "when in substance, the application for substitution was treated as one for letters of administration with a copy of the Will annexed on the basis of the respondents' own rights to the property left by the testator as heirs of Subasini, it would, we think, be sacrificing justice to mere technicality, if we are to set aside the entire proceeding at the present stage, and direct the plaintiffs to proceed afresh. There is undoubtedly a technical defect, but it is not a defect which has in any way affected the merits of the case or the jurisdiction of the Court. In substance the application of the plaintiffs contain all the particulars which are necessary for a proper petition for letters of administration with a copy of the Will annexed, as heirs of the sole legatee and we think that we can ignore the defective portion of it, and treat it as one made by the plaintiffs in their own right".

( 9 ) IN Santi Swamp Sarkar (supra) the application for grant of probate in respect of the Will of Charu Sila Sarkar, since deceased, was set down as contentious cause. During the pendency of the said proceeding, the sole surviving executor died. The said Santi Swarup Sarkar filed two applications before the court. The first application was for transposing him as the plaintiff instead and in place of the deceased testator and to grant him leave to proceed with the proceeding for grant of letters of administration with a copy of the Will annexed under section 232 of the Indian Succession Act; the second application was for amendment of the application for grant of probate into an application for letters of administration with a copy of the Will annexed in place of the prayer for probate.

( 10 ) IT has been held that the learned Trial Judge should have allowed the prayers made in the said applications. The learned Judge observed "if it is competent for a legatee to file fresh application for grant of letters of administration

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