- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION APPEAL NO.83 OF 2007 IN NOTICE OF MOTION NO.117 OF 2006 IN SUIT NO.35 OF 1996 IN PETITION NO.84 OF 1993 Thrity Sam Shroff, ) Indian Parsi, Inhabitant, ) aged about 55 years, ) permanently residing at "Roxana", ) Block No.5, 2nd Floor, ) 109, M.Karve Marg, ) Mumbai - 400 020. ).. Appellant Vs. 1. Shiraz Byramji Anklesaria, ) residing at 1980, ) Convent Street, Sakar Villa, ) Camp, Pune - 411 001. ) 2. Aspi Byramji Anklesaria, ) residing at 1980, ) Convent Street, Sakar Villa, ) Camp, Pune - 411 001. ).. Respondents -- Shri Rustom M.Bhagalia i/b Bhuta & Associates for the Appellant. S/Shri Gaurav Joshi with B.G.Saraf for the Respondents. -- CORAM : R.M.S.KHANDEPARKAR & DR.D.Y.CHANDRACHUD, JJ - 2 - DATED : 7TH MARCH, 2007 JUDGMENT: ( Per R.M.S.KHANDEPARKAR, J ) JUDGMENT: ( Per R.M.S.KHANDEPARKAR, J ) JUDGMENT: ( Per R.M.S.KHANDEPARKAR, J ) 1. Heard. Admit. The learned advocate waives service for the respondents. By consent, heard forthwith. 2. The appeal arises from an order dated 11th January, 2007 passed by the Learned Single Judge in Notice of Motion No.117 of 2006 in Suit No.35 of 1996 in Petition No.84 of 1993. By the impugned order, the Learned Single Judge has discharged the notice of motion while imposing costs of Rs.10,000/- on the appellant. By the impugned order, the Learned Single Judge has held that in the civil suit the plaintiffs have died and it is not in dispute that the original petition was filed by them for probate of the Will of the deceased in their capacity as the executors as named in the Will, the suit abates and therefore, obviously the notice of motion in the suit, which does not remain pending for interim orders, cannot be entertained. 3. The appellant herein had taken out the said notice of motion seeking various reliefs including the relief for appointment of an Official Administrator - 3 - for administration and governance of the estate of Late B.R.B.Vakil. The said notice of motion was opposed on behalf of the respondents contending the same to be not maintainable on account of abatement of the suit while contending that the right to sue does not survive on account of death of all the executors of the Will. 4. On 23rd February, 1988, a Will came to be executed by B.R.B.Vakil and he expired on 9th October, 1989. Probate Petition No.84 of 1993 came to be filed by the Executors of the Will on 2nd March, 1993. During the pendency of the probate proceedings and by 17th October, 2005, all the five executors to the Will had expired. The appellant herein is one of the legal heirs of B.R.V.Vakil. It is her contention that the property was mismanaged and being wasted and therefore, it is necessary to appoint an Administrator consequent to the death of all the five Executors of the Will. On the other hand, it is the case of the respondents that the suit wherein the notice of motion was sought to be taken out itself had abated and therefore, the notice of motion in such a suit was not maintainable and therefore, no interference is called for in the impugned order. - 4 - 5. The learned advocate appearing for the appellant, taking us through the provisions of Section 247 and Section 295 of the Indian Succession Act, 1925 and Order XXII Rule 4A of the Code of Civil Procedure and placing reliance in the decisions of the Gujarat High Court in Jadeja Pravinsinhji Anandsinhji v. Jadeja Pravinsinhji Anandsinhji v. Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji Shivsinhji & Ors., Jadeja Mangalsinhji Shivsinhji & Ors., Jadeja Mangalsinhji Shivsinhji & Ors., reported in AIR 1963 Gujarat 32 and Smt.Indira Vinayak Sawant & Ors. Smt.Indira Vinayak Sawant & Ors. Smt.Indira Vinayak Sawant & Ors. v. Mr.Vijayendra Umakant Shetye & Ors., v. Mr.Vijayendra Umakant Shetye & Ors., v. Mr.Vijayendra Umakant Shetye & Ors., reported in 2007(1) All MR 181, submitted that the contention of the respondents that the suit abates is totally devoid of substance, and in any case the Court’s powers to issue an appropriate direction in the interest of protection of the estate of the deceased and for its proper distribution are not restricted, nor the provisions of the Indian Succession Act prohibit appropriate steps being directed to be taken in that regard and proper person being appointed as the Administrator in case of death of all the executors of the Will. 6. The learned advocate appearing for the respondents, placing reliance in the decision in the matter of Manekji Manchersha Javeri v. Phiroze Boman Manekji Manchersha Javeri v. Phiroze Boman Manekji Manchersha Javeri v. Phiroze Boman Javeri, Javeri, Javeri, reported in 1969 Vol.72 Bom.L.R. 21 as well as drawing attention to the various provisions of the - 5 - Indian Succession Act as also Rules 374 and 375 of the High Court (Original Side) Rules, 1980, submitted that consequent to the death of all the Executors the suit has abated, the proceedings for issuance of probate have come to an end and the remedy, if any, available to the appellant could be by way of the proceeding for administration of the estate. 7. Undisputedly all the executors of the Will expired during the pendency of the proceedings instituted by them for grant of probate. Being so, what is the effect of death of all the executors pending the proceedings initiated by them for grant of probate is the point for consideration in this appeal. 8. It is not in dispute that there is no specific provision in the said Act providing either for survival or abatement of the proceedings for grant of probate on the death of all the executors. However, it is the contention on behalf of the appellant that such proceeding being in the nature of suit in terms of Section 295 of the said Act, the provisions of Order XXII Rule 4A of Code of Civil Procedure are clearly attracted which contention is sought to be seriously disputed on behalf of the respondents. It cannot be disputed that in such proceeding the final - 6 - order is in the form of grant of probate, and the same is passed "in rem" and not "in personam". It is, therefore, sought to be contended that such proceedings would not abate on the death of the executors. However, referring to Section 226 of the Indian Succession Act, it is strenuously argued on behalf of the respondents that the very fact that a right to sue survives only in favour of the surviving executor or executors under the said Section, and the probate can be granted only to the executors in terms of Section 222 of the said Act, it must be held that on the death of all the executors, the proceeding for grant of probate would stand abated. 9. Section 226 of the said Act provides that 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. Obviously, therefore, in cases where there are number of executors, if one or more dies, the entire representation of the testator would accrue to the surviving executor or executors, as the case may be. At the same time, Sub-section (1) of Section 222 of the said Act provides that probate shall be granted only to an executor appointed by the Will. Can it be, therefore, said that in case of death of all the - 7 - executors, the testamentary proceedings for grant of probate would stand abated ? 10. Section 295 of the said Act relates to the procedure in contentious cases. It provides that such proceedings shall take form of a regular suit according to the provisions of Code of Civil Procedure. The question then is whether it would make the proceeding to be "the suit" within the meaning of the said expression under the Code of Civil Procedure and therefore the provisions of Order XXII of the Code of Civil Procedure would apply ? Section 295 of the said Act in fact reads thus:- "295. Procedure in contentious cases. - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." - 8 - 11. Undoubtedly, Section 295 of the said Act is in relation to procedure that is to be followed in respect of probate proceedings, once the same becomes contentious. The petitioner for the probate becomes the plaintiff whereas the person who opposes the grant of probate becomes the defendant and the proceedings proceed in the form of a regular suit according to the Code of Civil Procedure. The provision of law, however, nowhere states that the proceeding for grant of probate would be a suit under the Code of Civil Procedure. The framers of law, on the contrary, have cautiously used the expression "take, as nearly as may be, the form of a regular suit according to the provision of Code of Civil Procedure". Firstly, it is not stated to be a suit under the Code of Civil Procedure. Secondly, it is specifically stated that the proceedings should take the "form of a regular suit". Thirdly, it is specified to take the form of a suit "as nearly as may be" and not even fulfledge form of a suit. If the intention of framers of law was to give the character of a suit under the Code of Civil Procedure to such proceeding, then there was no need to incorporate all those expressions in Section 295 and it would have been sufficient to specify the proceeding to be a suit under the Code of Civil Procedure. Instead, the framers have specifically - 9 - clarified that the proceeding shall merely take the form of a suit according to the Code of Civil Procedure and that too as nearly as possible, meaning thereby that though the proceeding is not a suit within the meaning of the said expression under the Code of Civil Procedure, yet the provisions of the Code of Civil Procedure, to the extent they are not inconsistent with those of the said Act, may be followed bearing in mind the limited jurisdiction and function of the probate Court. We are fortified in taking this view by plethora of decisions, including those of the Apex Court. 12. In Ishwardeo Narain Singh v. Kamta Devi & Ishwardeo Narain Singh v. Kamta Devi & Ishwardeo Narain Singh v. Kamta Devi & Ors., Ors., Ors., reported in AIR 1954 SC 280, it was held by the Apex Court that:- "The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a The question whether a The question whether a particular bequest is good or bad is not particular bequest is good or bad is not particular bequest is good or bad is not within the purview of the Probate Court." within the purview of the Probate Court." within the purview of the Probate Court." - 10 - (Emphasis supplied) 13. In Chiranjilal Shrilal Goenka (deceased) Chiranjilal Shrilal Goenka (deceased) Chiranjilal Shrilal Goenka (deceased) through LRs. v. Jasjit Singh & Ors., through LRs. v. Jasjit Singh & Ors., through LRs. v. Jasjit Singh & Ors., reported in (1993)2 SCC 507, the Apex Court held that:- "....the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a The Succession Act is a The Succession Act is a self-contained code insofar as the question of self-contained code insofar as the question of self-contained code insofar as the question of making an application for probate, grant or making an application for probate, grant or making an application for probate, grant or refusal of probate or an appeal carried refusal of probate or an appeal carried refusal of probate or an appeal carried against the decision of the probate court. against the decision of the probate court. against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate The probate The probate proceedings shall be conducted by the probate proceedings shall be conducted by the probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and court in the manner prescribed in the Act and court in the manner prescribed in the Act and in no other ways. in no other ways. in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any - 11 - question of title or of the existence of the property itself." (Emphasis supplied) 14. The Apex Court in Chiranjilal Shrilal Goenka’s Chiranjilal Shrilal Goenka’s Chiranjilal Shrilal Goenka’s case (supra) case (supra) case (supra) further reiterated the settled principle of law that the consent cannot confer jurisdiction, nor there is an estoppel against statute, and held that:- "the jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by legislature. Jurisdiction is thus the authority or power of the Court to deal with a matter and make an order carrying binding force in the facts." It was further warned that the Court cannot confer a jurisdiction on itself which is not provided in the law. 15. In Delhi Development Authority v. Mrs.Vijaya Delhi Development Authority v. Mrs.Vijaya Delhi Development Authority v. Mrs.Vijaya C. Gurshaney & Anr., C. Gurshaney & Anr., C. Gurshaney & Anr., reported in 2003 AIR SC 3669, the Apex Court held that :- "A Testamentary Court is only concerned with finding out whether or not the testator - 12 - executed the testamentary instrument of his free will. It is settled law that the grant It is settled law that the grant It is settled law that the grant of a Probate or Letters of Administration does of a Probate or Letters of Administration does of a Probate or Letters of Administration does not confer title to property. not confer title to property. not confer title to property. They merely enable administration of the estate of the deceased." (Emphasis supplied) 16. The Calcutta High Court in Sushila Bala Saha Sushila Bala Saha Sushila Bala Saha v. Saraswati Mondal, v. Saraswati Mondal, v. Saraswati Mondal, reported in AIR 1991 Calcutta 166, it was held that :- "the Probate Court cannot go into the question of title, the Probate Court is not to be influenced by any agreement of the parties and if the Will was duly executed and the maker of the Will was of sound and disposing state of mind, then the Probate should be granted to that Will." 17. While holding as above, the Division Bench of Calcutta High Court had relied upon its earlier decision in A.E.G. Carapiet v. A.Y.Derderian, A.E.G. Carapiet v. A.Y.Derderian, A.E.G. Carapiet v. A.Y.Derderian, reported in AIR 1961 Cal 359, wherein it was held that:- "The testamentary rules and probate practice - 13 - in this court do not seem to indicate that there is such a procedure available here for making such terms of settlement a rule of the court. But nevertheless, it has formulated a practice, consistently followed, almost without exception, of making the terms if not a rule of the court but a record on the file of the court. That does not mean that these terms become a part of the grant or refusal of the probate or executable as such. But it only means this that the records of the court will show that the interested parties had arranged to dispose of the property according to such agreement when it reaches their hands, but then such agreement does not thereby become executable as a decree of court but can only be enforced by independent proceeding or suit in the ordinary way as an agreement." 18. In Balai Lall Banerjee & Ors. v. Debaki Balai Lall Banerjee & Ors. v. Debaki Balai Lall Banerjee & Ors. v. Debaki Kumar Ganguly & Ors., Kumar Ganguly & Ors., Kumar Ganguly & Ors., reported in AIR 1984 Calcutta 16, it was held that:- ".....a proceeding for grant of Probate or Letters of Administration is not strictly a suit though in some cases where the grant is - 14 - opposed it is deemed as such. That, in our view is only for the purpose of classification of the proceeding without changing its character. The order passed in such a proceeding may have the force of a decree but strictly it is not a decree not having been passed in a suit." 19. In Fr.V.M.Skaria & Ors. v. K.T.George & Fr.V.M.Skaria & Ors. v. K.T.George & Fr.V.M.Skaria & Ors. v. K.T.George & Ors., Ors., Ors., reported in AIR 1999 Kerala 320, it was held that :- "The language of S.295 of Succession Act is not precise enough to convert an appeal against such an order into a regular suit. In view of the words "as nearly as may be" and "form of a regular suit" in S.295, even where the probate proceedings become contentions, they are merely to assume the form of a regular suit though in reality they are not in the nature of a regular suit under the Civil P.C." Before arriving at the above conclusion, it had referred to Full Bench decision of Allahabad High Court in Panzy Ferhantus v. M.F.Queoros, AIR 1963 All Panzy Ferhantus v. M.F.Queoros, AIR 1963 All Panzy Ferhantus v. M.F.Queoros, AIR 1963 All - 15 - 153(FB) 153(FB) 153(FB), wherein it was held that:- "The order on a petition for letters of administration under S.278 of the Succession Act is not a decree as the order is not passed in a suit. Proceedings for letters of administration under the Succession Act are not commenced by the institution of a plaint. On the other hand, as Section 278 of the said Act shows, they are commenced by an "application" or a "petition". The decision appealed against is described in S.299 as an "order", and not a decree." 20. In Smt.Multivahuji w/o Goswami Goverdhaneshji Smt.Multivahuji w/o Goswami Goverdhaneshji Smt.Multivahuji w/o Goswami Goverdhaneshji Girdharlalji v. Smt. Kalindivahuji & Ors., Girdharlalji v. Smt. Kalindivahuji & Ors., Girdharlalji v. Smt. Kalindivahuji & Ors., reported in AIR 1994 Gujarat 42, it was held that :- "Once the proceeding becomes contentious Sec.295 provides that they shall take, as nearly as may be, the form of a regular suit. The word "as nearly as may be" undoubtedly suggest that as far as possible such proceeding is to be treated as a suit governed by the provision of the Code of Civil Procedure. ..........................However, - 16 - the limitations or restrictions under which the probate Court is acting shall remain and the Civil Court even while trying the proceeding as civil suit shall act within its limited jurisdiction." 21. The Patna High Court in Sidhnath Bharti Sidhnath Bharti Sidhnath Bharti (Objector) v. Jai Narayan Bharti, (Objector) v. Jai Narayan Bharti, (Objector) v. Jai Narayan Bharti, reported in AIR 1994 Patna 144, held that:- ".....contentious proceeding is not a suit in the point of fact and substance. On the other hand, for the purpose of classification of the proceeding after it becomes contentious, it is treated as suit in form only. An order passed in such a proceeding is not a decree nor there is any requirement in law to draw up a decree after a contentious proceeding is decided by passing a final order." 22. In Barumal Singh v. 3rd Additional District Barumal Singh v. 3rd Additional District Barumal Singh v. 3rd Additional District Judge, Saharanpur, & Ors., Judge, Saharanpur, & Ors., Judge, Saharanpur, & Ors., reported in AIR 1986 Allahabad 307, the Allahabad High Court held that the provisions of Order 22 Rule 3 of the Code of Civil Procedure do not apply to the proceedings under Part VII of the Indian Succession Act and right to sue in - 17 - such proceedings does not survive, and therefore, the application under Section 192 of the said Act filed by the widow of the deceased in regard to the estate of the deceased was not maintainable and there could not be substitution as such. In that regard, reliance was sought to be placed in the decision of Patna High Court in Deo Kumar Singh v. Kailash Singh, Deo Kumar Singh v. Kailash Singh, Deo Kumar Singh v. Kailash Singh, reported in AIR 1961 Patna 304, wherein, it was held that on the death of the applicant for a succession certificate, the proceeding lapses and there could be no substitution of the heirs of the alleged heirs of the applicant. Relying upon the said ruling, it was held by the Allahabad High Court that unless the right to sue survives, it is not open to the applicant to make an application for substitution in proceedings under the said Act. 23. In Sarat Chandra Banerjee v. Nani Mohan Sarat Chandra Banerjee v. Nani Mohan Sarat Chandra Banerjee v. Nani Mohan Banerjee, Banerjee, Banerjee, reported in 1909 Vol.III Indian Cases 995 (Calcutta), pending the hearing of a contested application for probate by a sole executor, the executor died and his widow as legal representative applied that her name may be substituted for the deceased executor and that the petition for probate may be amended by substituting a prayer for letters of administration. The said application came to be - 18 - rejected on the ground that the right to sue does not survive and the suit had abated. 24. In Hari Bhusan Datta v. Manmatha Nath Datta & Hari Bhusan Datta v. Manmatha Nath Datta & Hari Bhusan Datta v. Manmatha Nath Datta & Ors., Ors., Ors., reported in 1919 (Vol.II) Indian Cases 76 (Calcutta), a residuary legatee under a Will had applied for grant of Letters of Administration to the estate of the testator with the copy of the Will annexed. However, during the pendency of the application he died leaving his son as his heir and legal representative. The latter applied to be substituted in the place of his deceased father and to be granted Letters of Administration with the copy of the Will annexed. It was held that a right of legatee to obtain a grant was a personal right and it does not devolve on his heir. 25. In Manekji Manchersha Javeri’s case (supra) Manekji Manchersha Javeri’s case (supra) Manekji Manchersha Javeri’s case (supra), while dealing with the application for substitution of the applicant in place of the deceased petitioner and for that purpose to make necessary amendment in the petition for probate, it was held that an application for obtaining the grant does not place an executor in any situation similar to the one contemplated by O. I, r.8 of the Civil Procedure Code, as he does not represent anybody when he makes that application. It - 19 - was further held that:- ".....in the case of an application for probate no question of any right to sue arises