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2024 Supreme(Online)(Bom) 2007
HIGH COURT OF BOMBAY
MANISH PITALE, J
DIMPLE RAKESH DOSHI – Appellant
Versus
JAYSHREE MANMOHANDAS SANGHAVI (DECEASED) – Respondent
TP/2808/2023
Mr. Rubin Vakil a/w. Mr. P. N. Vora i/b. M/s. Pramodkumar & Co. for Petitioner.
A Will must explicitly appoint an executor; lack of clear intent means letters of administration can be granted without a probate petition.
Headnote:(A) Indian Succession Act, 1925 - Sections 222 and 232 - Grant of letters of administration with Will annexed - The petitioner filed for letters of administration based on a Will dated 29.05.2022, which did not explicitly appoint her as executor - The department questioned the maintainability of the petition, suggesting a probate petition was necessary - The court found that the Will did not appoint an executor by necessary implication, thus affirming the maintainability of the letters of administration petition. (Paras 2, 10, 19, 20)
(B) Executor by implication - The court clarified that a person cannot be deemed an executor unless the Will explicitly indicates such an intention, emphasizing the need for clear language in the Will to establish executor status. (Paras 11, 12, 16)
Facts of the case:
The petitioner sought letters of administration with Will annexed for a Will that bequeathed all property to her, with provisions for distribution to family members. The department raised concerns about the lack of an explicit executor appointment.
Findings of Court:
The court concluded that the petitioner was not appointed as an executor by implication and that the petition for letters of administration was maintainable.
Issues: The main issue was whether the petitioner was appointed as an executor by necessary implication and if the petition for letters of administration was maintainable.
Ratio Decidendi: The court ruled that the Will did not appoint an executor, and the language used did not support the department's claim that the petitioner was an executor by implication. The court emphasized the necessity for clear intent in the Will regarding executor appointment.
Result: The petition for grant of letters of administration with Will annexed is maintainable.
ORDER :
. The present petition has been circulated before this Court in the light of a specific explanation sought by the department from the advocate for the petitioner in this petition filed for grant of letters of administration with Will annexed. The department has sought an explanation as to how the present petition is maintainable and why a probate petition has not been filed.
2. The petitioner has filed the present petition for grant of letters of administration with Will annexed in the context of Will dated 29.05.2022. It appears that according to the department, considering the contents of the said Will, the petitioner has been appointed as an executor, and therefore, she ought to have filed a probate petition. Reference is made to Section 222 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘Succession Act’). In order to appreciate the backdrop in which the said objection is raised by the department and explanation is called from the advocate for the petitioner, it would be necessary to refer to the relevant portion of the subject Will.
3. The relevant portion reads as follows:-
“I hereby give, devise and bequeath my all movable and immovable property to my niece DIMPLE RAKESH DOSHI, aged about 48 years, residing at 7th Floor, Harmony Building, B-703, Nr. Pawandham, Mahavir Nagar, Kandivali (West), Mumbai - 400 067, after my death the said DIMPLE RAKESH DOSHI will be the sole and absolute owner of my movable and immovable property, the list annexed herewith and nobody shall have any right upon the said property and nobody can claim the same.
I hereby reiterate that after my death any or all property or investment being on my name be given to Dimple Rakesh Doshi and she will be the sole and absolute owner of all my movable and immovable property. Further, God Forbid in circumstances where after my death if something happens to my niece Dimple Rakesh Doshi and she no longer exist then all my aforementioned movable and immovable property shall be transferred to Rakesh Harshadrai Doshi (Husband of Dimple Doshi). In such case, he shall be the sole and absolute owner of all my property.
* * * * Further, after my death out of the proceeds from investments made by me as mentioned in list of Movable property attached herewith (at that point in time whatever cash is fetched from such investments), except my investment in Pradhanmantri Senior Citizen Saving Scheme (Scss-2004), I wish to transfer a certain amount to below mentioned family members (List of which is attached herewith for ease of reference). However, possession of all such investment documents shall first be given to Dimple Rakesh Doshi as mentioned above. Later, she is authorized to sell & distribute the proceeds to list of members as mentioned below.
In case, realized cash from such investment is less in comparison of my wish to transfer a certain amount to my Niece and Nephews as per the given list then Dimple is not under any obligation to pay full amount to mentioned Family members (my Niece & Nephews). Under such a situation she shall make the payment proportionately out of available cash realized from the mentioned investments.
I wish that her husband Rakesh Harshadrai Doshi shall assist, co-operate and help Dimple Rakesh Doshi, to implement this Will.
IN WITNESS WHEREOF I have hereunto set my hands on this 29th day of May 2022 at Mumbai.”
4. The department is proceeding on the basis that the above-quoted contents of the Will indicate that the petitioner has been appointed as the executor by necessary implication.
5. Mr. Rubin Vakil, learned counsel appearing for the petitioner submits that on a proper interpretation of the above-quoted portion of the Will and applying the relevant provisions of the Succession Act in the backdrop of relevant decisions rendered in that regard, it would be evident that in the facts and circumstances of the present case, the petitioner cannot be said to have been appointed as an executor by necessary implication. In this
