Delhi High Court
Mr. Dalip Bhatia vs State And Ors. on 19 July, 2002
Equivalent citations: 99 (2002) DLT 581, 2002 (64) DRJ 317
Author: B Chaturvedi
Bench: B Chaturvedi
JUDGMENT
B.N. Chaturvedi, J.
1. On a petition under Section 276 of the Indian
Succession Act, 1925(Probate No. 42/99) for grant of
Probate/Letters of Administration, made by the
applicant Shri Dalip Bhatia, Letters of Administration
in respect of the Will dated 20.5.82, with a copy
thereof annexed, was granted in his favor on 27th of
September, 2001, subject to his supplying requisite
court fee and completion of necessary formalities.
2. The applicant has now approached this Court with
instant application seeking the requirement of
furnishing an Administration Bond and a Surety Bond to
be dispensed with, on the plea "that the petitioner is
not only the executor but also the beneficiary and
legal heir of the deceased and is t he beneficiary of
the property bequeathed to him under the aforesaid
will. As such, the petitioner was not to do or carry
out any act in compliance and direction under the Will."
3. Section 2.(c) of the Indian Succession Act, 1925
defines an 'executor' to mean a person to whom the
execution of the last Will of a deceased person is, by
the testator's appointment, confided.
4. Unlike an administrator, who is appointed by the
Court, an executor is appointed by the will. An
executor owes his position as such to an appointment
by the testator. Where there is no entrustment of the
duty of execution of the will or the administration of
the estate of the deceased, in the will in favor of a
person, whether expressly or by necessary implication,
such person cannot claim to occupy the position of an
'executor'. In the case on hand, there is no
appointment of the applicant, in express terms or by
necessary implication, as an executor. Thus, to plead
that by virtue of being an executor of the will in
question, furnishing of Administration and Surety bond
by the applicant should be dispensed with, is
misconceived. Being a beneficiary under the Will or a
legal heir of the testator is not enough to dispense
with the Administration/Surety bond.
5. To support the application, learned counsel for
the applicant referred to Single Bench decisions of
this Court in " Subhash Chopra and Anr. v. State",
, and " Sambhu P. Jaisinghani v.
Kanayalal P. Jaisinghani and Ors.", .
In the former case, which related to grant of letters
of probate, it was observed:
"5. This being a petition for grant
of probate of a Will, Section 291 of the
Indian Succession Act, 1925 which
applies only to Letters of
Administration (which is not sought in
the present proceedings), does not apply
to the instant case."
6. In the latter case too, which again pertained to
grant of Probate, following the decision in Subhash
Chopra's case(supra), same legal position was
reiterated.
7. In yet another matter concerning grant of
probate, being IA.1069/2001 in Probate Case No. 46/95,
based on the aforesaid two decisions, same principle
of law was laid down and Administration and Surety
bonds were dispensed with.
8. Present case is clearly distinguishable from the
one referred to above in as much as the cited cases
pertained to grant of probate, unlike the case on hand
where only letters of administration has been granted.
9. Subhash Chopra's case(supra) instead of
advancing the plea for dispensing with administration
and surety bonds rather makes the requirement thereof
more pronounced. For a better understanding of the
legal position in the present context, it sounds
useful to reproduce Section 291 of the Indian
Succession Act, 1925, which reads in the following
words:-
"91. Administration bond.
(1) Every person to whom any grant of
letters of administration, other than a
grant under Section 241, is committed,
shall give a bond to the District Judge
with one or more surety or sureties,
engaging for the due collection, getting
in, and administering the estate of the
deceased, which bond shall be in such
form as the Judge may, by general or
special order, direct.
(2) When the deceased was Hindu,
Muhammadan, Budhist, Sikh or Jaina or an
exempted person-
(a) the exception made by
Sub-section (1) in respect of a
grant under Section 241 shall not
operate;
(b) the District Judge may demand
a like bond from any person to
whom probate is granted."
10. Clearly, Section 291 of the Act does not
contemplate grant of letters of administration without
furnishing the administration and surety bonds. In
other words, in every case where a letter of
administration is granted, requirement of Section 291
of the Act must be satisfied by furnishing the bonds
specified therein. The expression "Every person to
whom any grant of letters of administration,.....
is committed shall give a bond....." are quite
significant. An order granting letters of
administration is simply characterised as a
'commitment' which would fructify only in the event of
the administration and surety bonds being furnished.
By virtue of Section 291(2)(b), it is left to the
discretion of the probate Court to demand a like bond,
as provided in Sub-section (1) in relation to the letters
of administration, from any person to whom probate is
granted. It is in this sense of the matter that
Section 291 of the Act is held in Subhash Chopra's
case (supra), to be not applicable in case of grant of
probate.
11. In the result, the plea for dispensing with
administration and surety bonds is held misconceived
and the application for the same is, accordingly,
liable to be turned down.
12. The application is dismissed.
