* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 3/2001
% MAY 27, 2016
MS.KUSUM KAUR ..... Petitioner
Through: Mr. Abhijat and Mr. Rishabh Bansal,
Advocates.
versus
STATE & ORS. ..... Respondents
Through: Mr. K.R. Chawla, Advocate for R-3.
Mr. Abhay Narula, Advocate for R-4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
I.A. No. 1237/2011 (under Order XXII Rule 4 CPC)
1. This is an application filed under Order XXII Rule 4 of the Code of Civil Procedure, 1908 („CPC‟) by one Smt. Simrin C. Singh, and dehors the prayer clause, as of today, the applicant seeks to be substituted in place of the original petitioner, namely, Smt. Kusum Kaur.
2. Probate petition was filed by the original petitioner/Smt. Kusum Kaur seeking probate of the Will dated 5.6.1996 of her late husband Sh. Sant Singh. The Will dated 5.6.1996 stated that Smt. Kusum Kaur would TEST.CAS. 3/2001 Page 1 of 8 be the executor of the Will. Smt. Kusum Kaur was also the sole beneficiary under the Will. If the Will was therefore proved, Smt. Kusum Kaur would be entitled to probate as per Section 222 of the Indian Succession Act, 1925. Many events have however transpired after the probate petition was filed.
3. There are a total of four respondents in the probate petition. Respondent no. 1 is the State. Respondent no. 2 is the son of the petitioner/Smt. Kusum Kaur and late Sh. Sant Singh. Respondent nos. 3 and 4 are the daughters of the petitioner/Smt. Kusum Kaur and late Sh. Sant Singh.
4. Respondent no. 2 supported his mother Smt. Kusum Kaur/petitioner with respect to probate of the Will dated 5.6.1996 of late Sh. Sant Singh. Respondent nos. 3 and 4 were the contesting respondents in the probate petition.
5. First event which transpired after filing of the probate petition was that Smt. Kusum Kaur expired on 4.2.2008 leaving behind her stated Will dated 30.9.2002 bequeathing her properties in favour of the son Sh. Harkirat Singh/respondent no.2 and who was one legal heir of Smt. Kusum Kaur. He was also the executor under this Will. Sh. Harkirat Singh had vide application being I.A. No. 2975/2008 applied for TEST.CAS. 3/2001 Page 2 of 8 transposition in place of the petitioner/Smt. Kusum Kaur, but, he died in the meanwhile on 19.10.2010 during the pendency of I.A. No. 2975/2008 leaving behind the present applicant Smt. Simrin C. Singh-daughter as his one legal heir besides his wife Smt. Andrea M. Singh as the second legal heir. Smt. Andrea M. Singh however also expired and therefore now the applicant/Smt. Simrin C. Singh is the sole legal heir of the estate of respondent no. 2. Applicant/Smt. Simrin C. Singh therefore seeks impleadment by virtue of the provision of Section 232 of the Indian Succession Act on the ground that she is the legatee of the original petitioner/Smt. Kusum Kaur through Sh. Harkirat Singh who left a Will dated 4.4.2004 in her favour.
6. Section 232 of the Indian Succession Act reads as under:-
"232. Grant of administration of universal or residuary legatees.--When--
(a) the deceased has made a Will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or
(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased.
a universal or a residuary legatee may be admitted to prove the Will, and letters of TEST.CAS. 3/2001 Page 3 of 8 administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered."
(underlining added)
7. Sub-Section (b) read with the residuary part of Section 232 of the Indian Succession Act makes it clear that if an executor of the Will dies before the Will is proved, a legatee, i.e, a person who inherits the property of the deceased, can be substituted in place of the original petitioner who had sought probate, and, instead of granting probate; since the executor of the Will has died; letters of administration with the Will annexed would be granted to the legatee.
8. Therefore in view of Section 232 of the Indian Succession Act, subject to the applicant proving firstly the Will of Smt. Kusum Kaur in favour of Sh. Harkirat Singh, and thereafter proving the Will of Sh. Harkirat Singh dated 4.4.2004 in her favour; or in any case showing that she is the natural legal heir of Sh. Harkirat singh; Smt. Simrin C. Singh since will inherit the estate of Smt. Kusum Kaur through Sh. Harkirat Singh, she being a legatee can be substituted in place of the original petitioner, inasmuch as, under the Will dated 5.6.1996 of late Sh. Sant Singh the property of late Sh. Sant Singh fell to the ownership of the original petitioner Smt. Kusum Kaur, wife of late Sh. Sant Singh and TEST.CAS. 3/2001 Page 4 of 8 mother of Sh. Harkirat Singh and then to Sh. Harkirat Singh and then to the applicant.
9. I am making no observations with respect to the validity of the Will of Sh. Sant Singh dated 5.6.1996 in favour of the original petitioner Smt. Kusum Kaur, or Will dated 30.9.2002 of Smt. Kusum Kaur in favour of Sh. Harkirat Singh, and with respect to Smt. Simrin C. Singh being the legal heir of Sh. Harkirat Singh either because of testamentary instrument or otherwise, because these aspects will be aspects and issues in the probate petition to be decided at the stage of final arguments, however, there is no reason why this application be not allowed subject to the rights of respondent nos. 3 and 4, to raise all objections including with respect to any testamentary instrument having been executed by the late petitioner/Smt. Kusum Kaur in favour of Sh. Harkirat Singh and Sh. Harkirat Singh having executed a further testamentary instrument in favour of the present applicant/Smt. Simrin C. Singh.
10. Learned counsel for respondent nos. 3 and 4 have opposed the application. Counsel for respondent no. 3 has placed reliance upon two judgments to seek dismissal of the application. First judgment is of the Division Bench of the Bombay High Court in the case of Thrity Sam Shroff Vs. Shiraz Byramji Anklesaria & Anr. AIR 2007 Bombay 103 TEST.CAS. 3/2001 Page 5 of 8 and second of Allahabad High Court In Re: H.S. Bhatnagar, 2001 AIHC
165.
11. In my opinion the judgments which are relied upon by respondent no. 3 cannot in any manner cause dismissal of the subject application because in the Division Bench judgment of the Bombay High Court there arose no issue of a universal or a residuary legatee being entitled to continue with the probate petition on the death of the original executor, and in terms of Section 232 of the Indian Succession Act. The judgment in the case of H.S. Bhatnagar (supra) will also not apply because it is nowhere held in the said judgment that a person who is a legal heir and was entitled to the assets of the deceased cannot be substituted in place of an original petitioner seeking grant of probate of the Will, of course, with the fact that on account of death of the executor what will be granted is not a probate but a letter of administration with the Will annexed.
12. In view of the above, the application is allowed and Smt. Simrin C. Singh is substituted in place of the original petitioner/Smt. Kusum Kaur. This is of course without prejudice to the respective rights of all the parties and the entitlement of respondent nos. 3 and 4 to contest the testamentary instruments stated to have been executed by Smt. Kusum TEST.CAS. 3/2001 Page 6 of 8 Kaur in favour of Sh. Harkirat Singh and Sh. Harkirat Singh in favour of the present applicant/Smt. Simrin C. Singh.
13. Amended memo of parties be filed by Smt. Simrin C. Singh, the new petitioner, within two weeks from today.
14. I.A. stands disposed of.
I.A. No. 2975/2008
15. The same will stand disposed of in view of the aforesaid order passed in I.A. No. 1237/2011.
I.A. Nos. 7916/2005, 2717/2006 and 11149/2015
16. Counsel for the applicant says that these applications have already been disposed of and therefore need not be shown in the list.
17. Ordered accordingly.
TEST.CAS. No. 3/2001
18. In view of allowing of I.A. No. 1237/2011 the following additional issues are framed:-
(i) Whether Smt. Kusum Kaur died leaving behind her last valid Will dated 30.9.2002? OPP
(ii) Whether Sh. Harkirat Singh died leaving behind his last TEST.CAS. 3/2001 Page 7 of 8 valid Will dated 4.4.2004? OPP
(iii) Whether it is not required for the present petitioner Smt. Simrin C. Singh to prove the testamentary instrument dated 4.4.2004 of Sh. Harkirat Singh, inasmuch as, the petitioner is the daughter and the natural heir of late Sh. Harkirat Singh, and to what effect? OPP
19. List before the Joint Registrar for further proceedings on 24 th August, 2016.
VALMIKI J. MEHTA, J MAY 27, 2016 AK TEST.CAS. 3/2001 Page 8 of 8