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CALCUTTA HIGH COURT
Kalyan Jyoti Sengupta, J.
In the Goods of Priyamvada Devi Birla (since deceased) R.S. Lodha —Appellant
versus
Ajay Kumar Newar & Ors. —Respondents
G.A. No. 3465 of 2009, T.A. No. 96 of 2009, G.A. No. 3434 of 2008 and T.S. No. 6 of 2004
Arising out of P.L.A. No. 204 of 2004
Decided on 5.2.2010
IMPORTANT POINTS
1. Concession cannot be determinative factor for deciding a legal issue.
2. Right of obtaining probate is purely personal one and such right ceases with death of executor.
Headnote:(i) Civil Procedure Code, 1908—Order XX, Rule 1—Decision of suit— Concession made on fact can always be accepted by Court to act upon further treating same as being admission under law—Concession cannot be determinative factor for deciding a legal issue. (Para 3)
(ii) Civil Procedure Code, 1908—Order 22, Rule l—Indian Succession Act, 1925—Section 222—Probate case—Substitution and abatement—If executor dies during pendency of probate proceedings right to obtain probate abates as probate can only be granted to executor and executor alone and none else—Right of obtaining probate is purely personal one and such right ceases with death of executor—If there be more than one in proceeding neither heirs and legal representatives of deceased executor nor legatee in any sense of Will can ask for substitution for obtaining probate of Will. (Para 15)
(iii) Indian Succession Act, 1925—Section 232—Civil Procedure Code, 1908—Order 1, Rule 8—Legal representative—Executor is not the representative—Interest of the executor is quite distinct and different from that of legatee—Right to take action is also different—Legatee can come to Court to establish genuineness of Will only when executor refuses to act or renounces or dies and not otherwise. (Para 15)
(iv) Indian Succession Act, 1925—Sections 268, 272 and 276—Probate of Will—In testamentary proceedings right to sue is really right to establish genuineness of Will—But, different relief is granted for different proceedings and to different persons as in case of executor probate is granted while legatee is granted letters of administration with Will annexed—Notwithstanding death of executor right to establish genuineness of Will does not extinguish and it survives upon legatee in terms of will. (Para 15)
(v) Indian Succession Act, 1925—Sections 268, 272 and 276—Probate of Will—In technical sense probate proceedings cannot be allowed to be continued by person who is not executor-But, in substance if such a proceedings is completed in such a manner that Will bring real object establishing genuineness of the Will, it is not impermissible under law. (Para 15)
(vi) Indian Succession Act, 1925—Sections 268, 272 and 276—Probate of Will—Conversion of testamentary suit into suit for Letters of Administration—Such conversion is permissible in law—Amendment application allowed. (Paras 14 to 19)
AIR 1963 Guj. 32: 158 (2009) DLT 713: AIR 1963 Madras 456—Assented to. (2005) 1 CHN 27: (1950) ILR 2 Cal. 653: AIR 1932 Madras 114 (1950) ILR 2 Cal. 653: AIR 1997 Cal. 197: AIR 1932 Cal. 206: (1948) ILR Cal. 300: (1918) ILR XLV 862: (1909) ILR XXXVI Cal. 799—Referred to.
Result: Application allowed.
Kalyan Jyoti Sengupta, J.—The above application has been filed on Notice of Motion dated 18th March, 2009 by one Sushila Devi Lodha, Aditya Vikram Lodha, Harsh Vardhan Lodha praying for following relief’s:
(a) Death of Rajendra Singh Lodha, the plaintiff, be recorded;
(b) The petitioners be brought on record as plaintiffs in T.S. No.6 of 2004 and be allowed to continue with T.S. No.6 of 2004.
(c) Amendment as proposed in ‘red’ on a copy of the plaint in T.S. No.6 of 2004 annexed hereto and marked with the letter ‘X’ be allowed.
(d) Harsh Vardhan Lodha on behalf of the petitioners be given liberty to re-verify the plaint in T.S. No. 6 of 2004 after the amendment is carried out and the Department to take necessary steps on the basis of the order that may be passed herein.
(e) Leave be granted to the petitioners to serve a copy of the amended plaint on the advocates of the defendants appearing in the suit.
(f) Dispensation with service of amended plaint personally on the defendants in the suit.
2. The said application was being opposed by filing affidavits by the defendants in the aforesaid testamentary suit, affirmed by one Arvind Kumar Newar and one Devendra Kumar Mantri. The said testamentary suit came to be registered on an application being made by one Rajendra Singh Lodha since deceased (hereinafter referred to as the deceased Lodha) for grant of probate to a testamentary instrument dated 18th April 1999, said to be the last Will of one Priyamvada Devi Birla. The said application was made by deceased Lodha for the grant as aforesaid in the capacity of the sole Executor. Several persons including Krishna Kumar Birla, Basant Kumar Birla, Ganga Prasad Birla, Yashovardhan Birla, Radha Devi Mohta and Laxmi Devi Newar (since deceased), defendant No.2 and predecessor-in-interest of the defendant No. 1(a) to (d) lodged caveat intending to oppose the said grant. On application being made by the said deceased Lodha, the caveats lodged by Krishna Kumar Birla, Basanta Kumar Birla, Yashovardhan Birla were discharged and caveat lodged by Ganga Prasad Birla was retained. Thereafter affidavits in support of caveats having been filed the said application for grant of probate was registered as a regular Testamentary Suit. The said propounder plaintiff Lodha died intestate leaving him surviving the aforesaid applicants. The instant application was being opposed strenuously contending that the said testamentary suit has abated on the death of the sole Executor of the said deceased Lodha as the right to sue does not and cannot survive. On the other hand it was contended by the applicants the right to sue in a testamentary Suit does survive for a Testamentary suit seeks to establish genuineness of the Will nor the relief asked for. A large number of decisions were cited by learned counsels of both the sides. For a good number of days the matter was heard and hearing concluded. Immediately after conclusion of the hearing and before the judgment was prepared an application being G.A. No.3465 of 2009 had been filed by one Ajay Kumar Newar, Arvind Kumar Newar and Nand Gopal Khaitan defendant Nos. 1(a), (b) and (c) praying for following reliefs :
(a) Prayers in G.A. No. 3434 of 2008 made by Harsh Vardhan Lodha and other be granted and they may be allowed to proceed with the application for appointment of administrator pendente lite, being G.A. No.3731 of 2008 without prejudice to the petitioners’ contentions stated in paragraph 18 hereinabove;
(b) Leave be granted to the petitioners to file an additional written statement in T.S. No. 6 of 2004 after re-verified amended plaint is served on them;
(c) The locus standi of the heirs of Rajendra Singh Lodha to apply for grant of Letters of Administration with a copy of Will annexed be tried as a preliminary issue at the suit.
Thereafter on 23rd December 2009 the defendant Nos. 1(d) and 2 made application separately praying identical reliefs.
3. It is clear from the aforesaid prayers
