Madhy vs Vairamanai
2022 Latest Caselaw 16870 Mad

Citation : 2022 Latest Caselaw 16870 Mad
Judgement Date : 27 October, 2022

Madras High Court

Madhy vs Vairamanai on 27 October, 2022

                                                                1           C.R.P.(NPD)No.3381 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                 DATED:27.10.2022
                                                          CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
                                              C.R.P.(PD)No.3381 of 2022
                                               in CMP.No.17967 of 2022

                     Madhy

                                                                             ...Petitioner/plaintiff

                                                            Versus

                     1.Vairamanai
                     2.Subramanian
                     3.Abinaya
                     4.Anuja
                     5.Adhavan
                     6.Poounkuzhali
                                                                       ...Respondents/defendants


                     PRAYER: Civil Revision Petition filed under Article 227 of the
                     Constitution of India, praying to set aside the order passed by the Principal
                     District Judge, Pondicherry, dated 08.09.2022 passed in I.A.No.136 of 2022
                     in O.P.No.44 of 2020.




                                         For Petitioner     :Mr.V.Vasantha Kumar




https://www.mhc.tn.gov.in/judis
                                                                2            C.R.P.(NPD)No.3381 of 2022

                                                     O R D E R

The Civil Revision Petition is filed challenging the order

passed by the Court below, dismissing the petition filed by the revision

petitioner, seeking to reject the probate Original Petition filed by the first

respondent.

2. The first respondent herein filed original petition in

O.P.No.44 of 2020, seeking grant of Probate of the Will, dated 25.06.2009,

allegedly executed by his father Selvarassou @ Puduvai Selvam. The

petitioner herein, who was arrayed as 6th respondent in the Original Petition,

filed the instant application in I.A.No.136 of 2022, seeking rejection of the

Original Petition under Order VII Rule 11(d) r/w 151 of CPC on the ground

that the Probate Original Petition was filed by the first respondent, who is

the sole beneficiary under the Will was not maintainable. It was the case of

the petitioner that the probate Original Petition under Section 276 of the

Indian Succession Act, 1925, can be filed only by the executor named in the

Will in view of Provision of Section 222 of Indian Succession Act. The

Court below rejected the said contention of the revision petitioner by relying

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on the judgment rendered by Division Bench of Karnataka High Court that

the sole beneficiary can apply for probate of Will since no executor had

been appointed in the Will. Aggrieved by the said order, the petitioner has

come up by way of this revision.

3. The learned counsel for the petitioner by taking this Court to

provisions of Section 222 and 276 of Indian Succession Act, submits that

only in cases where executor had been named in the Will, he is entitled to

seek grant of Probate, in other cases where no executor is named in the Will,

the legatee under the Will can only seek letters of administration.

Therefore, it is the contention of the learned counsel for the petitioner that

original petition seeking Probate is not maintainable and liable to be set

aside.

4. I do not agree with the contention made by the learned

counsel for the petitioner. The executor of the Will seeks grant of Probate

not for his own benefit, but he acts for the benefit of the legatees of the

Will.

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5. The Hon'ble Apex Court of India in a decision reported in

2016 (13) SCC 253 in Vatsala Srinivasan vs. Shyamala Raghunathan, when

a question arose, whether the Probate Original Petition filed by a executor

Will abate on the death of executor or it can be continued by legatees under

the Will. It was held that the proceedings for grant of Probate and letters of

administration are of same nature and both the proceedings relate to

assessment of genuineness and authenticity of Will. After referring to

various judgments of the Supreme Court of India, it was held that the

legatees in the Will can continue Probate proceedings and letters of

administration can be granted, however, treating the prayer as the one for

letters of administration. The relevant observations of the Apex Court is as

follows:

(vi) In view of law laid down in the aforesaid judgments, the Division Bench observed that both the proceedings with regard to the Probate and the letters of administration are of the same nature and therefore, the proceedings cannot abate. The essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the Will (Emphasis Supplied). By considering the aforesaid judgments, the Division Bench has rightly confirmed the view expressed by the learned Single Judge.

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(vii) We also agree with the view expressed by the Division Bench of this Court which was followed in the judgment delivered in 1963 SCC online Mad 46 in Govind M. Asrani Vs. Jairam Asrani and other, as the logic behind dismissing the appeal, in our opinion, is just and proper. In any case, so as to establish the Will, the Probate proceedings are required. The function of the executors is to execute the Will. The main purpose can be very well achieved by obtaining a letter of administration, so that the property can be administered by the administrator as per Section 232 of the Succession Act. In the instant case, the said practice has been rightly followed.

(viii) We are also in agreement with the view expressed in the impugned judgment, which has also relied upon the law laid in Jadeja Pravinsinhji Anandsinhji vs. Jadeja Mangalsinhji Shivsinhji and Ors, AIR 1963 Gujarat 32 in which it has been held:

6.....An executor, in the capacity of an executor, has no personal interest in the estate of the deceased.

..........The object of the executor in these proceedings is to get an adjudication not of any dispute in which he is personally interested, but the

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objects is to propound the Will of the deceased for the benefit of those who take a interest of the Will.

IX. It is, therefore, clear that the executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the Will. Therefore, the action of an executor in applying for a probate is not in substance a personal action and as observed earlier by me the maxim, actio, personalis moritur cum persona could not apply to such a case. If the executor fails in his duty, any of those whom, he represents are entitled to intervene and carry on the proceedings with a formal modification that the prayer must then be for letters of administration with the Will annexed.

6. In view of the authoritative pronouncement made by the

Hon'ble Apex Court, the object for grant of Probate as well as letters of

administration are one and the same. Both for the benefit of the legatee

under the Will. Therefore, even though the first respondent herein prayed

for grant of probate, having regard to the fact, he is the sole legatee under

the Will, the Court can very well grant letters of administration instead of

probate, in case, he succeeds in proving the validity and genuineness of the

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Will. Therefore, the order passed by the Court below, dismissing the

petition to reject the Probate Original Petition, calls for no interference by

this Court.

7. Accordingly, this Civil Revision Petition is dismissed. No