IMPORTANT POINT
Legal heirs can be substituted in place of the deceased applicant in probate proceedings, and they have an independent right to apply for Letters of Administration in their own capacity.

JUDGMENT :

1. This is an application for substitution by some of the legal heirs of the petitioner Smt. Padmarani Dhawa.

2. The background behind making of this application is as follows:-

Smt. Padmarani Dhawa the mother of Samar Dhawa being the deceased abovenamed, filed an application for grant of probate being PLA/402/2022. During the pendency of the said application Padmarani Dhawa died on 27th December, 2022. The applicants claim that Padmarani Dhawa died intestate. The applicants are the sons and daughters of Padmarani Dhawa except her pre-deceased son Samar Dhawa. Samar Dhawa as claimed by Padmarani Dhawa and the applicants died intestate on 28th May, 2021. Samar was survived by his mother Padmarani Dhawa, his widow Lipika Dhawa and his son Suman Dhawa. So, in case of intestate death of Samar 1/3rd of his estate would go to his mother Padmarani Dhawa since deceased being the original applicant for the letters of administration. The present applicants being the heirs in intestacy of Padmarani Dhawa in case of intestate death of Padmarani Dhawa inherit a portion of the estate of Samar Dhawa along with the widow and son of Samar Dhawa that would go to his mother Padmarani Dhawa. The applicants, therefore, after the intestate death of Padmarani Dhawa are seeking to be substituted in her place and stead.

3. The widow and the son of Samar Dhawa has opposed the application on the ground that substitution should not be allowed and the applicant should be directed to make separate application for Letters of Administration, if permissible in law as according to their claim have accrued an independent and individual right to apply for Letters of Administration. Moreover, the estate of Padmarani Dhawa and that of Samar Dhawa are different.

4. On behalf of the applicant, it is submitted that substitution in case of Letters of Administration is permissible in view of the judgments reported in (2000) 9 SCC 714 (Shambhu Prasad Agarwal And Others Vs. Bhola Ram Agarwal), (2003) 10 SCC 691 (Mithailal Dalsangar Singh And Others Vs. Annabai Devram Kini And Others), AIR 1997 Cal 197 (Santi Swarup Sarkar Vs. Pradip Kumar Sarkar And Others), (2005) 1 CHN 27 ( In the Goods of Satidas Mukherjee alias S.D. Mukherjee, Decd. AND In the matter of Sudip Mukherjee), 2009 SCC OnLine Del 1054 ( Raj Rani Bhasin Vs. State) and (2010) 2 CHN 157 (R.S. Lodha Vs. Ajay Kumar Newar & Ors.).

5. After hearing the respective parties and considering the materials on record as also the judgments cited at the Bar, I find that a distinction has been made in respect of probate proceedings and a proceeding for grant of Letters of Administration.

6. In case of probate proceedings, if the subject Will has a named executor, the right to obtain the probate is a private right of the executor so named. On the death of the executor prior to obtaining the grant, the probate proceeding gets abated and is permitted to be continued as a proceeding for grant of Letters of Administration with the Will annexed at the instance of a person who is entitled to apply for a Letters of Administration. On the other hand, in case of Letters of Administration, the legal heirs of the applicant, in case of death of the applicant, can be permitted to continue with the Letters of Administration with or without the Will annexed thereto. The Letters of Administration with a Will annexed thereto is permitted in a situation where there is no executor named in the Will or the executor named therein has renounced his executorship as a result whereof the Letters of Administration has been filed. While an application for Letters of Administration simplisitor arises in a situation where there is no Will but the estate requires to be administered for which a person who is entitled to administer the estate applied for the same.

7. In the instant case, the mother of the deceased, on the death of his son Samar Dhawa became entitled to 1/3rd share of the estate left behind by the deceased son under the normal rule of s