IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CASE NO.: F.A.O. 5280 of 2002

DATE OF DECISION : July 23rd,2009

Lalit Kumar Sharma and others

.......Appellants

versus

General Public and others

......Respondent

CORAM :

HON'BLE MS. JUSTICE NIRMALJIT KAUR

PRESENT: Mr. Anil Kshetarpal, Advocate

with Mr. Pankaj Gupta, Advocate

for the appellants.

Mr. Ashwani Chopra, Sr. Advocate

with Ms. Shilpa Malhotra, Advocate

for respondents No.3, 4, 6, 8, 9 and

Legal Representatives of respondent No.1.

Mr. Animesh Sharma, Advocate

for Mr. Akshay Bhan, Advocate

for respondents No.11 to 17.

NIRMALJIT KAUR, J.

Late Piare Lal executed a Will in favour of Hari Narain,

bequeathing his property in favour of his son Hari Narain. Admittedly, the

present application for grant of probate was filed by late Hari Narain. Late

Hari Narain and the present appellants, who are the legal heirs of late Hari

Narain, moved an application for grant of probate of Will dated 25-07-1962.

The District Judge, Ambala granted probate in favour of late Hari Narain

vide order dated 04-11-1969. However, one Subhash son of Santosh filed

an application for revival of probate proceedings and permission to contest

the Letter of Probate on the ground that he was not represented by his

F.A.O. 5280 of 2002

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father properly and since he was minor, he has jurisdiction to challenge the

proceedings after attainment of majority. The application was dismissed by

the Court below, whereas, the appeal filed by the appellants came to be

allowed in favour of the appellants. However, the Hon'ble Supreme Court of

India, on the appeal, filed by Subhash, set aside the judgment of this Court

vide order dated 13-09-1995 and remanded the matter back to the District

Judge to decide the case on merits after hearing of Subhash.

On receipt of the file, the Additional District Judge, Ambala

proceeded to record the evidence of both the parties. Thereafter, the

matter was transferred to the Court of District Judge, Jagadhri. The District

Judge, Jagadhri, dismissed the probate application, on the ground that the

same was not maintainable as the probate can be granted only to an

executor and there is no executor in the present case.

Learned counsel for the appellants has impugned the said

judgment on the following ground :-

“ That admittedly, in the present case, there is

only one legatee in the Will. The total property has

been bequeathed by Late Shri Piare Lal in favour of

Hari Narain. In view of provisions of Sub Section 2 of

Section 222 of the Indian Succession Act, Hari Narain

would be deemed to be executor of the WILL.”

Learned counsel for the respondents-Mr. Ashwani Chopra

submitted that the application for probate was not maintainable, in view of

Section 222 of the Indian Succession Act. A perusal of the Will shows that

no executor was appointed. For the grant of probate, the appointment of

executor was necessary as the probate can only be granted to an executor.

F.A.O. 5280 of 2002

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Late Hari Narain had filed an application for probate. He was not the

executor but a beneficiary. Hence, he could not file the probate. The

present appellant, having impleaded himself as the legal heir of late Hari

Narain is, therefore, a beneficiary and by no stretch of imagination held to

be an executor. For proper adjudication of this case, it is relevant to read

Section 222 of the `Indian Succession Act, 1925' which is as follows :-

“222. Probate only to appointed executor

(1) Probate shall be granted only to an executor

appointed by the Will.

(2)

The appointment may be expressed or by

necessary implication.”

Learned counsel for the appellants, however, tried to make out

his case under Sub Section 2 of Section 222 of the Indian Succession Act,

1925 and vehemently argued that the appointment of the executor may be

expressed by necessary implication. The father of the appellant-Hari

Narain, being the only beneficiary and th