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 -2- 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 -3- 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 the only son, was an executor by necessary implication. Learned counsel for the parties have been heard. It is difficult to accept the arguments of learned counsel for the appellants that the original Hari Narain being the only son was, therefore, an executor by implication. A perusal of the Will shows that Hari Narain was, in fact, the only beneficiary. If the argument of learned counsel for the appellants is accepted that the son who is the beneficiary, amounts to be an executor by implication, then, every beneficiary become an executor. Such an argument does not answer a situation, where there are more than one beneficiaries. Thus, a person cannot be held to be an F.A.O. 5280 of 2002 -4- executor, just by virtue of his being a sole beneficiary. Moreover, a reading of Section 226 read with Section 22 of the Act clearly indicates that the proceedings would abate on the death of all the executors and the provisions of Order 22 Rule 4-A of the C.P.C will not be attracted. Section 226 of the Indian Succession Act, 1925 reads thus :- “ 226. Accrual of representation to surviving executor.- When probate has been granted to several executors, and one of them dies the entire representation of the testator accrues to the surviving executor or executors.” Learned counsel for the respondent relied on the judgment of Bombay High Court, titled as Thirty Sam Shroff vs. Shiraz Byramji Anklesaria & Anr.2007(3) R.C.R. (Civil) 713, wherein, it was held that who immediate but sole executor dies or all the executor die, the question of proceedings kept alive, does not arise. The executor having died, the probate shall abate. The facts of the present case are worse, in as much as, Hari Naraian deceased, who filed the probate, was not even an executor. Learned counsel for the appellants, at this stage, requested that the present probate application may be converted and proceedings be transferred into the proceedings for letters of Administration by substituting legal representatives of deceased executor. I am unable to accept this prayer of learned counsel for the appellants, in as much as, no application under Section 232 has been moved till date. The impugned order is of dated 01-10-2002 vide which the F.A.O. 5280 of 2002 -5- application to grant probate was dismissed on the ground that it is not maintainable. Instead of moving an application at that stage for transforming the present proceedings for letters of Administration, the appellants chose to file the present appeal. The present appeal is pending in this Court since 2002. As per the own submission of learned counsel for the appellants, when the case taken up on 12-01-2009 for final hearing, the matter was adjourned to enable him to move application. No such application was moved. The matter was adjourned again on 02-07-2009, on the request of learned counsel for the appellants. Still, no application was moved. Even otherwise, the appellants are always free to move application under Section 232 for the grant of Administration of reversal or residuary legatees before the appropriate Court or a Civil suit, if advised. Learned counsel for the appellants has relied on the judgment of Hon'ble the Apex Court, titled as Shambhu Prasad Agarwal and others vs. Bhola Ram Agarwal 2000(9) Supreme Court Cases 714, to substantiate his arguments that the appeal should not be dismissed on technical grounds and the application of the appellants for substitution and amendment for issuance of the letters of Administration, should be allowed and the matter should be remanded back for trial after allowing such an application. The said judgment is not applicable in the facts of the present case as no such application has been moved in this Court till date. Even otherwise, as held above, the appellants can always move application before appropriate Court under Section 232 or file a civil suit in the F.A.O. 5280 of 2002 -6- circumstances or as advised or if he so desires. The present appeal is, accordingly dismissed, being devoid of merits. (NIRMALJIT KAUR) JUDGE July 23rd,2009 gurpreet Whether to be referred to the Reporter : Yes / No