IMPORTANT POINT
Submission of surety – There is distinction between probate and letters of administration – Provision for submission of surety is provided for only in case of issuance of letters of administration and not for issuance of probate of Will.

ORDER (ORAL)

Biren Vaishnav, J.—This First Appeal is filed under Section 299 of the Indian Succession Act, 1925. Challenge is to the order dated 22.08.2023 passed by the City Civil Judge, Ahmedabad, in Civil Misc. Application No.1039 of 2022. By the order so passed, the Court has been pleased to grant probate of the Will dated 01.06.2019 made by Ms. Gira Sarabhai who expired on 15.07.2021. However, the grant of probate certificate has been made subject to fulfillment and compliance of the requirement and condition of surety and bond as per para 256 of Civil Manual and under Section 291 of the Indian Succession Act, 1925 and as stipulated in the City Civil Court Rules, 1921. The order is challenged only to the extent that it requires submission of bond and surety.

2. Facts in brief are that it is the case of the applicants that Gira Sarabhai executed a Will and testamine on 01.06.2009 in the presence of witnesses and the said Will was notarized. The applicants/appellants before this Court are appointed as executors of her Will for effective implementation thereof. The application therefore was filed to get probate of the Will. On the application so made by the appellants and based on the evidence so produced in support of the application, after inviting objections and having noted that nobody had objected, the learned Judge, City Civil Court, Ahmedabad, considering the material on record, allowed the application and directed that a probate certificate be issued in the joint name of the applicants/appellants herein. However, he further directed that the grant of probate shall be subject to fulfillment and compliance of condition of surety and bond as per para 256 of Civil Manual and under Section 291 of the Indian Succession Act, 1925. On receipt of the order, the appellants filed an application Exh.15 to dispense with the requirement to submit surety. The Trial Court by an order below Exh.15 dated 06.09.2023 rejected the application on the ground that after pronouncement of the final order except for any correction relating to typographical mistake, no correction can be made and the application was therefore rejected.

3. Mr. Mihir Thakore learned Senior Advocate appearing with Ms.Delshad Kapadia learned advocate for the appellants made the following submissions:

3.1 Inviting our attention to the provisions of Section 291(2) of the Indian Succession Act (for short ‘the Act’) he would submit that it is only in cases of letters of administration and not for issuance of probate of Will that there needs to be a provision for submission of a surety. Reading Section 291(2)(b), he would submit that even the submission of bond is also not mandatory for the grant of probate and there is a power / discretion on the Court to impose or not impose such condition. He would therefore submit that the imposition of condition for submission of surety is not justified and the order therefore suffers from non-application of mind.

3.2 Section 218 of the Indian Succession Act was read to submit that letters of administration is granted to a legal heir or legatee of the deceased in case of deceased dying intestate or has not named any executor. He would read Section 220 of the Act to submit that letters of administration entitle the administrator to all the rights to effectually administrate the properties. Provisions of Sections 232, 234 and 278 were read in context of letters of administration.

3.3 Mr.Thakore would submit that a probate can be granted to an executor appointed by a Will. A petition for grant of probate has to be filed under Section 276 of the Act.

3.4 Mr.Thakore would therefore submit that there is difference between probate and letters of administration. In case of a probate, the legator appoints a person he trusts to execute his Will whereas in the case of letters of administration a legatee or an heir is appointed by a Court. He would therefore submit that Section 291 which provides for giving of bonds and/or surety, applies only