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High Court Of Delhi
INDER CHAND - Appellant
Versus
S.ARYA PRATINIDHI SABHA - Respondent
First Appeal Order 82 of 1969
Decided On : 04/22/1976
PROBATE - APPOINTMENT OF EXECUTOR - ESSENTIAL - SECTION 222 OF THE INDIAN SUCCESSION ACT, 1925 - ASSOCIATION NOT AN EXECUTOR - LETTERS OF ADMINISTRATION CAN BE GRANTED TO IT - SECTIONS 223 AND 236 OF THE ACT.
Fact of the Case:
A will was made in favor of an association, and the association applied for a grant of probate. The appellant challenged the will and raised objections, including that the association was not an executor and could not be granted probate.
Finding of the Court:
The court held that the association was not an executor as it was not appointed as such in the will. The court also held that the association could be granted letters of administration under section 232 of the Indian Succession Act, 1925.
Issues: 1. Whether the association was an executor and could be granted probate. 2. Whether the association could be granted letters of administration.
Ratio Decidendi: 1. The court held that the association was not an executor as it was not appointed as such in the will. The court relied on section 222 of the Indian Succession Act, 1925, which provides that probate shall be granted only to an executor appointed by the will. 2. The court held that the association could be granted letters of administration under section 232 of the Act. The court relied on the decision of the Allahabad High Court in Ganga Sahai v. Bhart Bhan, AIR 1950 Allahabad 480, which held that letters of administration could be granted to a corporate body registered under the Societies Registration Act.
Final Decision: The court set aside the order granting probate to the association and remanded the case to the trial court for appropriate action.
( 1 ) ONE Smt. Chanderwati made a will of her property on 27-4-67 in favour of Respondent. Latter applied for grant of probate after her death on 30-8-67. Appellant questioned the will and raised other objections. Trial Court held the will genuine and held that other objections could not be gone into in probate proceedings. Appellant appealed to High Court. Para 3 onwards, judgment is :
( 2 ) MR. R. K. Sharma, counsel for the appellent has raised two questions of law, namely. (1) in view of section 222 of the Act, probate could not be granted to a person, who was not named an executor by the will and as such the impugned order is illegal and without jurisdiction ; and (2) the respondent is an association and so neither probate nor letters of administration can be granted to it. These points had not been raised in the court below or in the grounds of appeal in this court. But by my order dated 21st April, 1976, I have allowed them to be raised and given an opportunity to Mr. Marwaha to meet them. One of the questions raised at the bar is that the order of the court below is without jurisdiction under section 222 of the Act as by the will the testator had not appointed any executor. Section 222 of the Act reads :
"probate only to appointed executor : (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. "
( 3 ) IN Edward Waston Coleston v. Theresa Chitty. AIR 1934 All. 1053, and Smt. Sushilabai v. Govind Ganesh, AIR 1958 M. P. 372, it has been held that a probate cannot be granted to any person unless and until he has been named an executor in the will. As such it is contended that the grant of probate was illegal and without jurisdiction.
( 4 ) MR, Marwaha has submitted in reply that the executors is defined in clause (c) of section 2 as follows:
" (C) executor means a person to whom the execution of the last will of a deceased person is, by the testator s appointment, confided. "and that in view of the definition of the contesting respondent, it must be considered to be an executor entitled to the grant of probate.
( 5 ) THE will (Ex. P 1) which has arrived in court in a sealed cover has been opened in the presence of the counsel for the parties. The operative portion of the will reads as follows :
"this building (Immovable Property) detailed above which I am entitled to sell or dispose of during my life time, I give and devise in trust the (sic) Sarvadeshik Arya Pratinidhi Sabha, Daya Nand Bhavan, opposite Ram Lila Ground, 5/3, Asaf Ali Road, New Delhi-1. . . . . . . .
"the purpose of the Trust, named after me shall be :
"to run an Arya Samaj School which inter alia should impart Shuddha Vedic teaching as preached and practiced by Maharishi Daya Nand Sarswati Maharaj and named as Chandra Wati Arya School (Chandra Wati Arya Pathshala ). "
( 6 ) THERE are no other words or phrases in the will to indicate that the execution of the will has been confided to the contesting respondent. From the above expressions, I am unable to hold that the contesting respondent has been named as an executor of the will or that its execution has been confided to it. It is true that the property had been bequeathed to the contesting respondent upon trust for the purpose of running Arya Samaj School, but that only makes the contesting respondent a legatee under the will. The respondent cannot be called an executor.
( 7 ) MR. Marwaha has REFERRED TO Arumilli Viramma v. Arumilla Seshamma, AIR 1931 Madras 343, P. Rama Naidu v. Rangayya Naidu AIR 1933 Madras 114, and Deveeramma v. M. S. Majappa, AIR 1961 Mysore 150, to show how an executor may be deemed to have been appointed expressly or by necessary implication. These authorities turn on their own facts and do not give any assistance in resolving the controversy raised before me. In Arumilli Viramma s case (AIR 1931 Madras 343) the alleged will stated that "it is devised that my nephew is to discharge the de
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