Ms.Kusum Kaur vs State & Ors.
2016 Latest Caselaw 4061 Del

*         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

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

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

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

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

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

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

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