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IN THE HIGH COURT OF DELHI AT NEW DELHI
Prateek Jalan, J.
Lalit Kumar Arora – Appellant
Versus
The State & Ors. – Respondents
TEST.CAS. 5 of 2022
Decided On : 26-05-2023
Amendment - Probate of Will - The court allowed the amendment of the petition from probate to Letters of Administration with the Will annexed, as the petitioner was not the executor named in the Will and probate cannot be granted to the petitioner under Section 222 of the Indian Succession Act, 1925.
Fact of the Case:
The petitioner filed a petition for probate of the document stated to be the Will of his father. As the petitioner was not the executor named in the Will, an amendment was sought for Letters of Administration with the Will annexed.
Finding of the Court:
The court allowed the amendment and disposed of the petition with directions to grant Letters of Administration with the Will annexed, as the evidence demonstrated no impediment to the grant.
Issues: Amendment of petition from probate to Letters of Administration with the Will annexed, and dispensation of administration bond or surety.
Ratio Decidendi: The court allowed the amendment in the interest of justice and based on the evidence presented, and dispensed with the requirement of furnishing an administration bond or surety as the petitioner was the sole beneficiary under the Will.
Final Decision: The petition for Letters of Administration with the Will annexed was granted, and the requirement of furnishing an administration bond or surety was dispensed with.
JUDGMENT
Prateek Jalan, J. (Oral)
I.A. No.______/2023 (to be numbered) (under Diary No. 946162/2023)
1. Pursuant to the order dated 18.05.2023, the petitioner has filed an application under Order VI Rule 17 of Code of Civil Procedure, 1908 ["CPC"] for amendment of the petition.
2. Although the application is not listed today, a copy has been handed over in Court and is taken on Board.
3. The Registry is directed to number the application.
4. The application for amendment is necessitated by the fact that the petition was originally filed for probate of the document dated 22.02.2012 stated to be the Will of the petitioner's father - Mr. Kherati Lal Arora, whereas the petitioner is not the executor named in the Will. As probate cannot be granted to the petitioner in view of Section 222 of the Indian Succession Act, 1925, the petitioner has filed the present application for an amendment to the effect that he be granted the Letters of Administration with the Will annexed. It is stated that the error has occurred by inadvertence.
5. The testamentary proceedings are uncontested. It appears that the evidence led by the parties is also adequate to dispose of the petition for Letters of Administration.
6. In the interest of justice, and in view of the statements made in the application, it is allowed and the amended petition filed therein is taken on record.
7. The application stands disposed of.
TEST.CAS. 5/2022
8. The present petition has been filed for Letters of Administration in respect of a document dated 22.02.2012 stated to be the Will of the petitioner's late father - Mr. Kherati Lal Arora.
9. It is stated in the petition that Mr. Kherati Lal Arora died on 23.04.2021. The purported Will is a registered document. It is signed by the testator and by two witnesses namely, Mr. Tilak Gogia and Ms. Prerna Jain. There is no named executor stated in the Will.
10. The petition states that the testator's wife, Mrs. Urmila Rani had predeceased him. Other than the plaintiff, the testator is survived by one son, Mr. Deepak Arora, and one daughter, Mrs. Renu Madan. A second son of the testator namely, Mr. Sunil Arora, also predeceased him. The wife and two daughters of late Mr. Sunil Arora namely- Mrs. Poonam Arora, Ms. Pooja Arora, Ms. Priyanka Arora have been arrayed as respondents in the present petition.
11. Notice was issued on 25.01.2022 and citations were also directed to be published in an English newspaper and a Hindi newspaper. The respondent Nos. 2, 3, 4, 5 and 6, being the other heirs of the testator, were present before the learned Joint Registrar on 04.05.2022 and stated that they will file their affidavits of no objection. The affidavits were filed on behalf of the said respondents on 01.06.2022 and have been placed on record. No other objections have been received pursuant to publication of citations.
12. The petitioner examined himself as PW-1 and one of the attesting witnesses namely, Mr. Tilak Gogia as PW-2.
13. The petitioner filed an affidavit dated 29.08.2022 by way of examination-in-chief. He exhibited the death certificates of the testator, Mrs. Urmila Rani (wife of the testator) and Mr. Sunil Arora (predeceased son of the testator) [Ex.PW-1/1 and Ex.PW1/2 respectively]. The documents demonstrate that Mrs. Urmila Rani died on 10.06.2019 and Mr. Sunil Arora died on 05.03.2015, prior to the date of death of the testator.
14. The evidence adduced by the attesting witness, both by way of affidavit and by way of oral evidence, makes it clear that he had singed the original Will in the presence of the testator and Ms. Prerna Jain, being the other attesting witness. The Will has been exhibited as Ex.PW-1/4. PW-2 has identified his own signature, as well as the signature of the other attesting witness and the signature and thumb impression of the testator.
15. In these circumstances, I do not find any impediment to grant of Letters of Administration with the Will annexed, in respect of the Will dated 22.02.2012
The court has the discretion to allow amendment of a petition from probate to Letters of Administration with the Will annexed, and may dispense with the requirement of furnishing an administration bo....
Letters of Administration granted upon establishment of legal heir status and valid execution of a Will under the Indian Succession Act, 1925.
The duty of parties to come forward with a true case and true evidence, and the significance of prompt action in seeking probate of a Will.
Letters of Administration may be granted for a foreign will if authenticated copies are provided, and there are no objections contrary to the law.
Letter of Administration - Court cannot ignore non-service of notice even if person not served had knowledge about probate proceedings
A proceeding for grant of Letters of Administration under Section 278 of the Indian Succession Act can continue despite the death of executors, as the provisions governing probate do not apply.
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