Delhi High Court

Smt Raj Rani Bhasin vs State on 23 April, 2009

Author: Rajiv Sahai Endlaw

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     TEST CAS.No.37/1996

%                                     Date of decision: 23.04.2009

 SMT RAJ RANI BHASIN                               .......        Petitioner
                            Through: Ms Vaishali Deshpande, Advocate

                                   Versus

 STATE                                               ....... Respondent
                            Through: Mr Manoj Kumar Rathi proxy counsel
                            for Mr Vivek Kumar Tandon, Advocate for State.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.      Whether reporters of Local papers may
        be allowed to see the judgment? Yes

2.      To be referred to the reporter or not? Yes

3.      Whether the judgment should be reported
        in the Digest? Yes


RAJIV SAHAI ENDLAW, J.

1. The maintainability of the petition for grant of Letters of

Administration on demise of applicant/petitioner and

IA.No.14400/2007 for substitution of legal representatives moved

therein is for consideration.

2. The petition was filed originally by Smt Raj Rani Bhasin for

Letters of Administration of the estate of her son Shri C.P. Bhasin.

The said estate was pleaded to be comprising of land and built up

property at 180/2/272 situated Rajpur Road, Dehradun, plot of land

Q-37, Gurgaon, Haryana and a locker in State Bank of India, Rajpur

Road, Dehradun. Even though the entire estate of which

administration rights were sought was situated outside Delhi, the

petition was filed in this court pleading the deceased to be at the

time of his death residing in Delhi. It was further pleaded that the

deceased had not married and the petitioner Smt Raj Rani Bhasin

being his mother was the only class-1 heir. Though the petition did

not disclose the other close relatives of the deceased but the petition

was accompanied by the affidavit of Shri R.P. Bhasin as the brother

of the deceased, giving no objection to the grant of administration to

the mother Smt Raj Rani Bhasin.

3. During the pendency of the petition the original petitioner Smt

Raj Rani Bhasin died and IA.No.3514/2006 was filed in this court by

the aforesaid R.P. Bhasin and his another brother Shri Swarup

Prakash Bhasin, as legal representatives of Smt Raj Rani Bhasin for

substitution in her place. In the said application it was disclosed that

Smt Raj Rani Bhasin had left besides two sons aforesaid i.e., R.P.

Bhasin and Swarup Prakash Bhasin, two daughters, namely, Smt

Pomela Chopra and Smt Kiran Sachdeo and the widow and

daughter, namely, Neelam Bhasin and Ms Sunaina Khanna of a pre-

deceased son of the said Smt Raj Rani Bhasin. Notice of the said

application was issued to the other legal representatives of Smt Raj

Rani Bhasin. Ms Sunaina Khanna could not be served by ordinary

process and was ordered to be served by substituted service. None

filed any objections and vide order dated 5th March, 2007 the said

application was allowed and R.P. Bhasin and Swarup Prakash Bhasin

were substituted as petitioners in place of the original petitioner Smt

Raj Rani Bhasin. Letters of Administration was sought now jointly in

favour of the said Shri R.P. Bhasin and Shri Swarup Prakash Bhasin.

Affidavits of evidence were filed of both Shri R.P. Bhasin and Shri

Swarup Bhasin. Letters of Administration was sought in favour of

Shri R.P. Bhasin and Shri Swarup Prakash Bhasin on the plea that

Smt Raj Rani Bhasin had left a Will dated 5th June, 1996 and a codicil

dated 29th April, 2002 in favour of the said Shri R.P. Bhasin and Shri

Swarup Prakash Bhasin and to the exclusion of her other legal heirs.

However, before the petition could be considered on merits, Shri

R.P. Bhasin died and IA.No.14400/2007 has been filed for

substitution of his legal representatives. The said Shri R.P. Bhasin is

stated to have left his widow Smt Aneeta Bhasin and two sons,

namely, Koushik Bhasin and Raman Bhasin and two daughters Ms

Alka Sachdeo and Ms Rachna Mehta. The application does not state

that Shri Ram Prakash Bhasin had left any Will and as such all his

aforesaid heirs are sought to be substituted in his place.

4. When IA.No.14400/2007 came up for consideration, it was felt

that these proceedings being for grant of Letters of Administration,

substitution of legal representatives could not be ordered. The

matter was as such listed for arguments on the said aspect. The

counsel has been heard.

5. The counsel for the petitioner has argued that since in the

present petition itself, earlier the legal representatives of the

original petitioner have been allowed to be substituted, on the same

reasoning, the legal representatives of Shri R.P. Bhasin are also

entitled to be substituted. Reliance is also placed on Devinder

Singh Vs State 72 (1998) DLT 385 in which in a proceeding for

grant of Letters of Administration, the legal heirs of the petitioner

were allowed to be substituted. However, I find that though in this

case, the substitution was allowed, but the question, whether

substitution can be allowed or not, did not fall for adjudication in this

case and there is no discussion on this aspect. This judgment cannot

thus be said to be a precedent on the issue falling for adjudication.

6. The ordinary rule is that an action/legal proceeding would

abate on the demise of a party thereto. However, Order 22 Rule 1 of

CPC and principles whereof will apply to these proceedings also,

provides that the death of a plaintiff or defendant shall not cause the

suit to abate if the right to sue survives. Thus, only if the right to sue

is found to survive can the ordinary rule of abatement on demise of a

party be interfered with and the legal representatives permitted to

be substituted. The right to sue in Order 22 Rule 1 means the right

to prosecute the proceedings and does not mean the original right of

the plaintiff/petitioner to sue. However, in cases of personal actions

i.e., in actions where the relief sought is connected with the

individuality of the deceased, the right to sue will not survive to or

against his relatives.

7. It is thus to be determined as to what is the nature of a

proceeding for grant of Letters of Administration.

8. Section 218 of the Indian Succession Act provides that where

the deceased has died intestate, administration of his estate may be

granted to any person who, according to the Rules for the

distribution of the estate applicable in the case of the deceased,

would be entitled to the whole or any part of such deceased's estate.

It is further provided that when several such persons apply for such

administration, it shall be in the discretion of the court to grant it to

any one or more of them. Under Section 220, the Letters of

Administration entitle the administrator to all rights belonging to the

interstate as effectually as if the administration had been granted at

the moment after his death. Section 236 prohibits the grant of

Letters of Administration to the minor or a person of unsound mind

or even to any association of individuals. Section 273 provides that

Letters of Administration shall have effect over all the property and

estate, movable and immovable of the deceased and shall be

conclusive as to the representative title against all debtors of the

deceased and all persons holding property which belongs to the

deceased.

9. The person to whom Letters of Administration are granted

does not thereby become entitled to the property or estate of the

deceased. The estate still succeeds according to the law of

succession applicable to the deceased. The purpose of Letters of

Administration is merely to enable the administrator so appointed by

the court to collect/assimilate the properties of the deceased, and/or

to deal with the various authorities with whom the properties of the

deceased may be vested or recorded and to realize the same and/or

to have the same transferred in the names of the successors in

accordance with law of succession applicable to the deceased. The

administrator is required to, from time to time, file accounts in the

court with respect to the administration of the estate and/or as to

how the estate has been settled/transferred to the successors in

accordance with law of succession applicable to the deceased and

upon the administrator defaulting in the same, the court retains the

power to revoke the grant.

10. The aforesaid would show that the proceeding for grant of

Letters of Administrator is for appointment to the personal office as

the administrator of the estate of the deceased. Such administration

even when granted, ceases with the demise of the administrator and

it is not as if the legal heirs of the administrator so appointed by the

court are entitled to continue with the administration which was

vested by the court in the administrator.

11. Viewed in this light, the proceeding for grant of Letters of

Administration is for a right to personal office. If that is so then the

question of the right to sue surviving to the legal heirs of the

petitioner does not arise. The right to the grant of Letters of

Administration is a personal right and does not survive. Mr Justice

Harington in Sarat Chandra Banerjee Vs Nani Mohan Banerjee

ILR 36 Calcutta 799 held that in a case where the executor named in

the Will, of which probate was sought dies, before obtaining grant,

his widow claiming to be his heir could not be substituted. It was

held that as the executor's right was derived under the Will, the

right did not survive to the widow.

12. Haribhusan Datta v. Manmatha Nath Datta AIR 1919 Cal

197 was a case of grant of Letters of Administration i.e., of the

deceased having died intestate. It was held by Greaves, J. that the

judgment in Sarat Chandra Banerjee (supra) applied. It was

further held that the right which a petitioner seeks in an

application/petition for Letters of Administration is a right from the

court and if he had obtained the grant his title would have been

derived from the court and cannot devolve on his heirs. This view

was upheld by Division Bench in Chandramani Maity

Vs. Bipin Behari Sasmal AIR 1932 Calcutta 203. All the said

judgments nevertheless hold that any other person who may claim to

be entitled to probate or letter of administration, though not entitled

to be substituted in a pending case, is entitled to apply

afresh/separately for the same.

13. The Division Bench of the Bombay High Court in Thrity Sam

Shroff Vs Shiraz Byramji Anklesaria and Aspi Byramji

Anklesaria AIR 2007 Bombay 103 upon the demise of all the

executors of the Will who had applied for probate held that a probate

proceedings even if contested is not transformed into a suit under

the CPC and the provisions of the CPC would apply to such

proceedings only to the extent they are not inconsistent with the

provisions of law comprised in the said Act. It was further held that

the moment the sole executor or all the executors die, the question

of proceeding being kept alive does not arise at all as there would be

no occasion in such a case to grant any probate. It was held that

such a proceeding would die a natural death as a consequence of

non-survival of any executor and the question of applicability of

Order 22 of the CPC does not arise at all. It was further held that

even the provisions of Order 1 Rule 8 of the CPC would not be

applicable in such cases and further that in such cases there is no

right to sue which can survive. Another single Judge of the Bombay

High Court in Manekji Manchersha Javeri Vs. Phiroze Boman

Javeri MANU/MH/0132/1969 also took the view that there could be

no substitution of the legatee on the demise of the executor.

14. What has however weighed with me against blindly following

the aforesaid dicta is the long span of time taken in the courts in

disposal of such proceedings. The present petition, even though

uncontested, has been pending for the last over 12 years. Though

most of the said long span is attributable to the laxity of the

petitioner, considerable time has also been taken in serving the

respondents, who even though subsequently filed no objection and/or

did not chose to contest, are under the law necessarily required to be

served. Time in such cases is also taken in issuance of citation, and

in obtaining valuation of the estate with respect to which the petition

is filed. If such petitions are contested, at least insofar as for grant

of probate, under Section 295 of the Indian Succession Act, the

procedure prescribed for disposal thereof is as of a suit. This entails

examination and cross examination of witnesses. The petition for

probate may not be instituted necessarily by the executor. The

petition may be instituted by a beneficiary under the Will, either in

absence of any executor or on the refusal of the executor to act.

Such petitioners may either be the sole beneficiaries under the Will

or may be only one of the beneficiaries. The question which arises

is, what is to happen in the case of demise of such a petitioner.

Since the petition even in those cases would be only for grant of

probate, i.e. only for determining the validity of the Will and not for

establishing any rights in any of the properties, if the judgments

aforesaid are to be applied, the position in those cases would also be

the same i.e., the petition would abate on the demise of the

petitioner. In such contested cases if substitution is not to be

permitted and the person who on the demise of the original

petitioner may be interested in seeking the probate/letters of

administration is required to institute a fresh petition, it would entail

waste of the proceedings undertaken till then and would require

fresh service of witnesses and examination of witnesses who may

have already been examined. Some of such witnesses may not even

survive for that long and possibility of disappearance of valuable

evidence which may swing the ultimate result of the proceedings,

cannot be ruled out.

15. The Supreme Court in B. Banerjee Vs. Smt. Anita Pan AIR

1975 SC 1146 (though dissented with on another point in Deena Vs

UOI AIR 1983 SC 1155) held that where two interpretations are

possible, that which validates the statute and shortens litigation,

should be preferred to the one which invalidates or proliferates. It

was further held that the courts must avoid multiplicity of litigation.

Any interpretation of a statute which will obviate purposeless

proliferation of litigation, without whittling down the effectiveness of

the effectiveness of the protection for the parties sought to be helped

by the legislation, should be preferred to any literal, pedantic,

legalistic or technically correct alternative. In that case also the

Apex Court was conscious that to shorten litigation in the manner

directed therein, they were straining the language to the little extent

of interpreting the expression in the statue under consideration.

However, it was held that public justice and social gain ought to be

promoted. Such considerations are germane to the larger concept of

justice, which it is the duty of the courts to promote.

16. Recently this court had undertaken a financial audit and which

discloses that the costs per minute of proceedings in the court is in

excess of Rs 6000/-. I have wondered, whether this court should

adopt an interpretation which would have consequence of not only

waste of judicial time but also be harmful to the litigants. In my

view, the same ought to be avoided unless one finds that the other

view is totally impermissible in law, or would result in prejudice to

the opposing / competing party and which prejudice cannot be taken

care of.

17. Having examined the matter in the said light, I do not see any

prejudice which would be caused to the opposition/competing party

if the proceedings are permitted to be continued by a person other

than original petitioner, whether by way of substitution or by way of

impleadment. Order 23 Rule 1A also provides that in the case of

withdrawal or abandonment of a suit by the plaintiff, a defendant

may apply to the transposed as the plaintiff under Order 1 Rule 10

of the CPC. In a case for grant of Letters of Administration or a

probate, the particulars of the close relatives of the deceased who

may be interested in contesting the petition or who may have an

interest in the estate are required to be given and are treated as

respondents. Any one of them, on the demise of the original

petitioner, may be interested in continuing the proceedings and can

be so substituted. As far as the question of suffering the prejudice is

concerned, I find that the fear of the administration/probate being

granted to a person other than that to whom the respondents have

given no objection/consent can be eliminated by providing that upon

so happening the court may again seek the no objection/consent of

such persons/respondents. In most of the cases requirement may

not be found for the same. Even if in the cases where the petition is

by the named executor or by a person being one of the several

successors under the personal law applicable to the deceased, I feel

that if any of the beneficiaries and/or another heir is interested in

continuing the proceedings, the same ought to be permitted. The

same will save the time and costs of the court and also may be

beneficial to the litigants.

18. This should however not be understood as entitling the

proceedings to be continued by a person who otherwise has no

interest in outcome thereof or by the heirs/legal representatives of

an executor simplicitor and which heirs/legal representatives do not

themselves have any right to or interest in the estate of which

administration is sought or probate of Will with respect whereto is

sought. The right to continue proceedings is of the person who on

demise of original petitioner is desirous of seeking administration or

interested in the probate.

19. The question however arises, as to how, if the right to sue does

not survive, the proceedings are to continue. The provision of Order

23 Rule 1A has already been considered. In my view, that can be

pressed into service. Similarly Order 1 Rule 10 CPC can also be

invoked. The proceedings for letter of administration and probate, in

a way are also in a representative capacity because relief is sought

for the benefit of all the successors/beneficiaries under the Will.

Upon demise of representative, another interested in the subject

matter can continue the proceedings. Similarly, the principles

enshrined in Order 7 Rule 7 and of courts granting relief which may

be just, as if asked for and the courts taking notice of and moulding

the relief, according to subsequent events would also be applicable.

20. Looking in this direction, I find that different courts have

devised different means, including aforesaid for allowing such

proceedings to be continued, even after demise of original petitioner.

21. A Single Judge of the Calcutta High Court in Santi Swarup

Sarkar Vs. Pradip Kumar Sarkar AIR 1997 Calcutta 197 allowed

the beneficiary under the Will to proceed with and continue probate

proceedings upon demise of the surviving executor who had

originally applied therefor. In doing so, while not overruling the

earlier judgments of the same High Court noted by me hereinabove,

it was held that in doing so the substance of the matter to be decided

in the case was not affected. Similarly, in In Re: Satidas

Mukherjee alias S.D. Mukherjee Vs. In Re: Sudip Mukherjee

MANU/WB/0360/2004 also continuance of proceedings was allowed

on the principle of taking note of subsequent events and not as

substitute. The Division Bench of the Madras High Court in Govind

M.Asrani Vs. Jairam Asrani AIR 1963 Madras 456 held that, on the

demise of the executors who had applied for probate, legatees under

the Will were permitted to continue the petition. There also, while

upholding the principle that in applying for probate/letters of

administration the right asserted is a personal right, continuance of

proceedings was allowed placing reliance on the doctrine / principle

that the court is entitled to take note of the subsequent events and to

mould the reliefs accordingly. The court, however, held that the

application for coming on record should be made as one seeking the

direction of the court and not under Order 22 Rule 3 of the CPC.

22. The Division Bench of the Karnataka High Court in

Kamalamma Vs. Somasekharappa AIR 1963 Mysore 136 held that

under Section 2 of the CPC legal representative is a person who in

law represents the estate of the deceased and includes also the

person on whom the estate devolves on the death of a party who is

sued in a representative character. It was thus held that the

definition would bring the heirs into the category of legal

representatives and the proceedings would be taken in a

representative character i.e. representing the interest of those on

whom the estate is devolved. It will thus be seen that the Karnataka

High Court also though not disturbing the proposition of there being

no right to sue, got past the said obstacle by allowing the

proceedings to continue on other grounds.

23. The Gujarat High Court in Jadeja Pravinsinhji Anandsinhji

Vs. Jadeja Mangalsinhji Shivsinhji AIR 1963 Gujarat 32 while

similarly not disturbing the finding that the right to apply for probate

is personal to the executor and does not survive after the death of

the executor, however, relied upon the provisions of the Indian

Succession Act enabling the beneficiary to apply for probate on the

failure of the executor. It was held that upon the demise of the

executor, the beneficiary under the Will is entitled to continue the

proceedings. It was held that the executor was also seeking to

establish the will not for himself but for the benefit of the beneficiary

and thus the action of the executor was a representative action

which can be continued by those who he represents. Reliance on the

principle contained in Order 1 Rule 8 CPC was made.

24. In fact the Apex Court in Shambhu Prasad Agarwal v. Bhola

Ram Agarwal 2000(9) SCC 714 also disapproved of the dismissal of

the applications for substitution of the petitioner in a probate case

on the ground of the petitions having been filed in a personal right.

It was held that where an executor dies though his heirs cannot be

substituted because the executor possessed personal right but this is

not applicable where the heirs of a legatee apply for issuance of a

letters of administration. It was held that since there is no dispute

that the applicants could file an independent petition for issuance of

letters of administration, there can be no objection to allow them to

continue the petition.

25. Coming now to the facts of the present case, the estate of

which administration is sought is of the deceased brother of one of

the petitioners and of the deceased brother of the predecessor of the

other petitioners. They are claiming the rights through the mother

of the deceased upon whom alone the said estate devolved by

succession. All close relatives who could possibly have had objection

have either consented to the grant of administration or chosen not to

oppose. The only difference today is that of the two petitioners who

were substituted in place of the original petitioner, one has expired.

The        result      of        declining          the        application           for

substitution           would             be               to    compel            them

to     institute            proceedings         afresh.         With          respect,

I     am      unable        to     concur            with           the              old

Calcutta        judgments          and        the          recent    judgment         of

the    Division       Bench       of   Bombay High Court. With respect, the

Division Bench of the Bombay High Court has proceeded on a

technical view of the matter and with respect whereto there can be

no disagreement. However, the court in that case was not faced

with the practical difficulties/delays arising in disposal of such

petition and with the contention considered by me above of the

waste in following such an interpretation/procedure. I, applying the

principles discussed above, hold the petition to be maintainable.

Accordingly, IA.No.14400/2007 for substitution is allowed.

26. Otherwise on merit it is the unrebutted position that the

deceased was at the time of his demise an ordinary resident within

the jurisdiction of this court. This court would thus have jurisdiction

to entertain the petition. The petitioners, who are now found entitled