Calcutta High Court
For The vs Shyamala on 12 September, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD - 31
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
ORIGINAL SIDE
IA NO. GA/3/2025
In TS/1/2020
IN THE GOODS OF :
RATAN CHANDRA SETT, DECEASED
BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 12th September, 2025
Appearance:
Mr. Rahul Karmakar, Adv.
Mr. Lalratan Mondal, Adv.
Mr. S. Mukherjee, Adv.
..for the Plaintiff
Mr. Subrata Kumar Dutt, Adv.
Mr. S. Misra, Adv.
...for the Defendant
The Court: GA 3 of 2025 is filed on behalf of one Smt. Susmita Pal, praying for
recording death of the sole Executrix of the probate proceeding; conversion of the
instant Testamentary suit into one for grant of Letters of Administration,
transposition of the Petitioner in the place of the Executor; leave to amend the plaint
and other alive directions. It is contended that the sole Executrix and beneficiary
who was the wife of the Testator expired on 24/09/2022. The present Petitioner, her
sister and the Caveator are the legal heirs and successors.
The application is objected to principally on the ground that the deceased
Manika Sett, being the wife of the Testator was the sole Executrix cum sole
beneficiary of the purported will of Ratan Chandra Sett. On death of sole Executrix,
the instant proceeding has become infructuous and the assets should devolve on the
legal heirs and representatives, namely, the Petitioner, the Caveator/Defendant and
on the other daughter. At the time of argument, the Learned Counsel for the
Defendant submitted that the office of the Executor is not heritable and on death of
the sole Executor or the last Executor right to sue does not survive for which the
probate proceeding becomes infructuous. It was further contended that the
Petitioner is even not the beneficiary. Therefore, she has no locus standi to pray for
conversion of the proceeding into one of Letters of Administration or to proceed
with.
Mr. Karmakar, the Learned Counsel for the Petitioner submitted that on death
of the Executor it behaves on the beneficiaries to convert the proceeding for grant of
probate into one for Letters of Administration. Therefore, the instant application is
maintainable. Mr. Karmakar relied on Vatsala Srinivasan Vs. Shyamala
Raghunathan [(2016) 13 SCC 253] as well as a Single Bench judgment of this
Court In the Goods of Samarendra Nath Bal (Deceaed) [(2010) SCC
OnLine Cal 23].
Law is well-settled. In Shambhu Prasad Agarwal & Ors. Vs. Bhola
Ram Agarwal [(2000) 9 SCC 714] Three Judges Bench of the Supreme Court of
India observed that where an Executor dies, his heirs cannot be substituted because
the Executor possessed personal right but this is not applicable where the heirs of a
legatee apply for issue of Letters of Administration. In other words, heirs of a legatee
may carry on the proceeding but in the form of a proceeding for issue of Letters of
Administration. In Vatsala Srinivasan's case the Supreme Court of India
approved the view of the Division Bench of the Bombay High Court that essence of
the proceedings both for grant of probate as well as grant of Letters of
Administration are of the same nature and cannot abate; they relate to ascertainment
of genuineness and authenticity of a will. The main purpose of the probate
proceeding is to establish of a will. The function of an Executor is to execute the will.
The main function can be well-achieved by obtaining of a Letter of Administration so
that property can be administered by the Administrator as par Section 232 of the
Succession Act, 1925.
The sole Executor died in this case. She was the sole beneficiary. Though the
office on Executorship cannot devolve and right to sue does not survive yet the
interest of a legatee or beneficiary devolves upon her heirs and successors and right
to sue survive. The sole Executrix was also the sole beneficiary. In the later capacity
her right, title, interest as well as right to sue survives. In that capacity, being the
legal heir and successor of sole beneficiary, the present Petitioner can well-maintain
the proceeding converting the same into want of Letters of Administration.
Therefore, for grounds aforesaid, the instant application is considered
favorably.
Prayers (a) to (e) of the Masters Summon are allowed.
GA 3 of 2025 stands disposed of. The Petitioner may be arrayed as a Plaintiff.
Let the suit appear in the list for further order on 19th November, 2025.
(SUGATO MAJUMDAR, J.)
