Probate Shall Be Granted Only To An Executor Appointed By The Will: Gujarat High Court

The Petitioners contested that the order of the Trial Judge was contrary to the provisions of law as laid down by the Supreme Court in Shambhu Prasad Agarwal & Ors. v. Bhola Ram Agarwal, (2009) 9 SCC 714. Consequently, the petition under Article 227 was made to fill up the lacuna of the probate application. The Trial Judge had incorrectly stated that if the amendment was allowed, the very nature of the suit will have changed. It was further averred that it was within the object and scope of provisions of Order 6 Rule 17 of CPC to deal with the amendment of pleadings. To bolster these contentions, reliance was placed on Govind M. Asrani v. Jairam Asrani and Another, AIR 1963 (Madras) 456 to submit that "the learned trial Judge ought to have considered the fact that the proceedings taken out either for the grant of Probate or Letter of Administration with the Will annexed, are in the interest of the legatees and the question involved in such proceedings will be the same as also the object of Sections 222 and 232 of the Indian Succession Act are the same in nature." It was further contested that it was a well accepted rule that whether it be an executor or administrator, the right possessed by him in the properties of the testator is the same.

Per contra, the Respondent resisted the petition and averred that the Court was not required to interfere with the petition filed under Article 227.

Justice Joshi after appreciating the facts of the case, referred to Section 222 of the Indian Succession Act wherein the term 'probate' was envisaged. Averring that it was abundantly clear that by virtue of Section 222, probate shall be granted only to an executor appointed by the will and if the deceased had made a will but not appointed the executor, the Bench opined that the letter of administration could be granted by virtue of Section 232(a) of the Act.

The Court rejected the reliance placed on Shambhi Prasad Agarwal since therein the executor had died and his heirs, the legatees had requested for substitution from 'probate' to the 'letter of administration' which was granted. It was also opined that Govind M Asrani could not be relied on since it has been observed by the Court "where an executor applies for the issue of probate and also where a legatee or other person applies to the Court for the grant of letters of administration with the will annexed, the question to be decided will be the same, namely, whether the will is true, whether it was executed in accordance with law, there being the capacity in the testator to make the Will and no fraud or other infirmity attending the execution of the document."

Accordingly, per the Bench no error had been committed by the Trial Judge and therefore, the petition was rejected.

Case Title: Mahendra Harilal Parekh vs Meenaben Hirenbhai Parekh

Case No.: C/SCA/16538/2017

Citation :

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