Probate petitions must be filed by named executors only, as personal rights to seek probate do not survive the executor's death; legal heirs may only be beneficiaries.

JUDGMENT

Neena Bansal Krishna, J. (Oral)

I.A. 10299/2019(Application under Order 22 Rule 3 read with Section 151 CPC for impleadment of legal representatives of petitioner)

1. The present petition has been filed for grant of letter of administration/probate in respect of Will dated 29th December, 1980 executed and left by late. Shri Daya Chand Jain. The petitioner is survived by his wife, Smt. Anila Jain and two sons-Mr. Ankit Jain and Mr. Ankur Jain, who have moved this application to be impleaded as the petitioners in place of deceased Petitioner-Shri Satish Kumar Jain.

2. The respondent No.3 has contested the application and taken a preliminary objection that Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as `CPC') is not applicable to probate proceedings since the order of probate or letter of administration is neither a decree or an order passed in a suit, nor are the proceedings under Section 278 of Indian Succession Act, 1925 (hereinafter referred to as `Succession Act') commenced on a suit or a plaint' For this, reliance has been placed on decision of the High Court of Judicature at Allahabad in Panzy Ferhantus v. M.F. Queoros, AIR 1963 All 153 (FB) and in Barumal Singh v. 3rd Additional District Judge, Saharanpur, and Ors., AIR 1986 All 307. Moreover, the right to claim probate/letter of administration was a right personal to the deceased petitioner and the right to sue does not survive in favour of his legal heirs after his demise for which reliance has been placed on the decisions of the Calcutta High Court in Sarat Chandra Banderjee v. Nani Mohan Banerjee, 1909 Vol. III Indian Cases 995 (Calcutta) and in Hari Bhusan Datta v. Manmatha Nath Datta and Ors., 1919 Vol. II Indian cases 76 (Calcutta).

3. It is submitted that the deceased petitioner in his petition had claimed himself to be the executor of the Will dated 29th December,1980 even though he had not been appointed as an executor by the testator in his Will. It is only an executor who can be granted a probate of a Will in view of Section 222 of the Succession Act. Moreover, Section 226 of the Succession Act specifically provides that on demise of the executor, right to represent would survive on the surviving executor(s). Thus,the combined reading of Section 222 and 226 of the Succession Act makes it evident that probate petitions can be filed only by the executor and survives only in favour of the surviving executor(s).

4. In the instant case, the deceased petitioner had claimed to be the executor, and on his demise, the right to sue does not survive on his legal heirs who are not the named executors and cannot claim a grant of probate. Reliance has been placed on Thirty Sam Shroff v. Shiraz Byramji Anklesaria, AIR 2007 Bom. 103.

5. The respondent No. 4(A) - Smt. Adesh Rani Jain has also contested the application by filing a detailed reply. A preliminary objection which has been takenthat the proceedings for grant of probate/letter of administration are not a proper suit, but fall in the category of "like a suit" as mentioned in Section 295 of the Succession Act, and the application on behalf of the legal heirs of the deceased petitioner is liable to be dismissed on this ground itself.

6. Smt. Nidhi Jain-respondent No. 4(D) in her reply has taken a similar technical plea in view of