Probate proceedings
Querist :
Anonymous
(Querist) 26 August 2011
This query is : Resolved
Executor and one of the beneficiary initiated probate proceedings and other beneficiaries are arrayed as respondents.
Registry returned papers for want of petitioner can be either executor or one of beneficiary and not both.
What is valid on the eye of Law.
Whether the beneficiary got right to initiate proceedings with the executor as petitioner or not?
Advocate Rajkumarlaxman
(Expert) 26 August 2011
JUST READ THIS
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta
Chandka 1 A-1009-10-JUDGMENT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 1009 OF 2010
IN
CHAMBER SUMMONS NO. 92 OF 2010
IN
TESTAMENTARY SUIT NO. 49 OF 2003
IN
TESTAMENTARY PETITION NO. 482 OF 2003
Smt. Vatsala Srinivasan ]
Hindu, Inhabitant of Bangalore ]
and residing at "Dhanya", ]
126, Nandidurg Road, ]
Jaya Mahal Extension, ]..Appellant Bangalore 368 046 ](Ori. Defendant/ State of Karnataka ] Caveator) versus
1. Narisimha Raghunathan ]..Plaintiff/ since deceased ](Ori.Petitioner)
2. Smt. Shyamala Raghunathan ]
aged 68 years, Hindu, ]
Resident of Mumbai, and ]
residing at 7, Priya CHS Ltd. ]
K. A. Gaffar Khan Road, ]..Respondent
Worli, Mumbai 400 030 ](Ori.Applicant)
Mr. Ashutosh Kumbhakoni with Mr. Saikumar Ramamurthy and Mr. Kapil Gor i/b. Mr. Ramesh Ramamurthy for Appellant.
Mr. S. U. Kamdar, Sr. Advocate with Ms. Pooja Patil, Mr. Farid Karachiwala and Mr. Bhavik Manek i/b. Wadia Ghandy & Co. for Respondents.
Chandka 2 A-1009-10-JUDGMENT CORAM : DR. D. Y. CHANDRACHUD &
ANOOP V. MOHTA, JJ.
19 January 2011.
ORAL JUDGMENT (Per: Dr. Justice D. Y. Chandrachud):
The gist of the case .
1. This Appeal raises the issue as to whether a sole beneficiary under a will can seek substitution instead and in place of an executor who has died during the pendency of a testamentary proceeding. The Testamentary Suit for probate of the will of the testatrix is pending for over seven years; evidence is complete and the suit was ripe for final hearing when the sole executor died. The learned Single Judge allowed the Chamber Summons by the Respondent for substitution and granted the prayer for converting the proceeding formally into one for Letters of Administration with the will annexed. The Appellant contends that the remedy open to the Respondent is to file a fresh Petition for Letters of Administration with the will annexed and the probate proceedings which came to an end with the death of the executor cannot be continued. For the reasons which follow, we have concluded that the law is not what the Appellant contends it is. A purposive interpretation which safeguards litigants against a multiplicity of proceedings and the attendant delay and expense is in accordance with the intent and the letter of the Indian Succession Act, 1925. Chandka 3 A-1009-10-JUDGMENT Facts.
2. The Appellant is the original Defendant in a Testamentary Suit instituted by the sole executor named under a will alleged to have been executed by the deceased testatrix. The Respondent is the sole beneficiary under the will. The executor had filed a Petition for probate which was converted into a Testamentary Suit upon a contest. The trial commenced and the evidence of seven witnesses was recorded. Evidence is complete and the suit was to be heard. At this stage the executor died. On his death the Respondent took out a Chamber Summons for substitution in place of the sole executor and for seeking the grant of letters of administration with the will annexed, instead of a probate. The application was allowed, following which an Appeal has been filed.
3. The relevant facts are that the will is alleged to have been executed on 4 January 2001 by the mother of the Appellant and the Respondent. Under the will the property is bequeathed to the Respondent. The testatrix died on 1 March 2003. The sole executor appointed under the will applied for probate on 24 June 2003. The sole executor died on 3 July 2010. The Chamber Summons was lodged on 29 July 2010 and was allowed by the impugned order of the learned Single Judge dated 16 August 2010. Chandka 4 A-1009-10-JUDGMENT Submissions.
4. On behalf of the Appellant, the following submissions have been urged:
(i) On the death of a sole Plaintiff or of the last surviving Plaintiff where there is more than one, the proceeding in a suit abates where the right to sue does not survive. Abatement is automatic and does not require the passing of an order of the Court. Upon the proceedings having abated the consequence in law is that those proceedings do not survive at all. An application for setting aside the abatement can arise only when the right to sue survives in favour of the applicant;
(ii) Proceedings which have abated cannot be resurrected by taking recourse to Section 151 or Order I Rules 8 / 10 of the Code of Civil Procedure 1908;
(iii) An application for substitution or for continuation of the proceedings which have abated cannot be filed or entertained unless the abatement is first set aside;
(iv) Section 222 of The Indian Succession Act 1925 provides that the probate can be granted only to an executor. Under the Act proceedings for grant of probate cannot survive either on the death of the sole executor or of the last of the surviving Chandka 5 A-1009-10-JUDGMENT executors. Upon the death of the sole executor or, as the case may be, the last surviving executor the right to sue does not survive in favour of any one including the beneficiary since that right is personal to the executor. Hence an application for substitution or for conversion of the proceedings from one for the grant of probate to a proceeding for the issuance of letters of administration cannot be maintained; and
(v) The judgment of a Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji Anklesaria & Ar.1, of which Bench one of us (Dr. D. Y. Chandrachud, J.) was a part concludes the issue that upon the death of the sole executor under a will, the right to sue would not survive and an application for substitution is not maintainable.
5. On the other hand, it has been urged on behalf of the Respondent that: (i) An order of a learned Single Judge allowing an application for substitution or for impleadment does not amount to a judgment under Clause 15 of the Letters Patent and an Appeal against the order is not maintainable;
(ii) In the case which arose before the Division Bench of this Court (Thrity Sam Shroff) the issue before the Court was whether an 1 2007 (4) Mh.L.J. 56
Chandka 6 A-1009-10-JUDGMENT application by which the legal representative of an executor sought substitution under Order XXII Rule 4A was
maintainable. The issue as to whether upon the death of the sole executor, the legatee or a sole beneficiary under the will could seek substitution and for a conversion of the proceedings into one for the issuance of letters of
administration was not in question;
(iii) In the event that this Court comes to the conclusion, as submitted on behalf of the Appellant that the Judgment of the Division Bench precludes a beneficiary or legatee under the will from seeking substitution upon the death of the sole executor, the judgment would require to be reconsidered particularly since it is inconsistent with the judgment of the Supreme Court in Shambhu Prasad Agarwal & Ors. vs.
Bhola Ram Agarwal.1
The preliminary issue of maintainability of the appeal.
6. The rival submissions would now fall for determination. At the outset it would be necessary for the Court having regard to the preliminary point which has been raised in these proceedings to consider as to whether the appeal is maintainable. On behalf of the Respondent, reliance has been 1 (2000) 9 SCC 714
Chandka 7 A-1009-10-JUDGMENT sought to be placed on the judgment of a Division Bench of this Court in Madhukar Venkatesh Ullal vs. Anita Hermy D'souza & Ors.1 The Division Bench in that case held that an order which is passed by a Single Judge under the provisions of Order 1 Rule 10 directing the addition of a party does not possess the characteristic and trapping of finality inasmuch as it decides nothing and is only 'initiatory'. The Court held that such an order does not adversely affect a valuable right of the party directly nor does it decide an important aspect of the trial in ancillary proceedings since it is only procedural in nature. Hence it was held that the addition of a party would not result in a judgment within the meaning of Clause 15 of the Letters Patent. We are not pursuaded to accept the submission. This, as the facts before the Court would indicate is not a situation where the addition of a party is sought simpliciter on an application under Order 1 Rule 10. That was the situation which arose before the Division Bench in Ullal's case. In the present case the sole executor who had filed a Petition for probate, which was converted into a suit died during the pendency of the proceedings. The legatee under the will sought substitution and for the conversion of the proceedings from a proceeding for grant of a probate into a proceeding for the grant of letters of administration. A decision on the maintainability of the application would, in our view, affect the Appellant and that decision is a judgment under Clause 15. An appeal against the 1 2006(2) Mh.L.J. 483
Chandka 8 A-1009-10-JUDGMENT judgment of the learned Single Judge is therefore maintainable.
7. The question however that arises before the Court is whether upon the death of the sole executor during the pendency of the proceedings initiated for the grant of probate, the beneficiary under the will is entitled in law to continue the proceeding by seeking the issuance of letters of administration and whether in aid of that relief the beneficiary can seek substitution in the proceedings.
The Indian Succession Act, 1925.
8. Section 213 of the Indian Succession Act 1925 provides that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed or has granted letters of administration with the will or an authenticated copy annexed. Section 220 provides that letters of administration entitle the Administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. The effect of a probate under Section 227 is that probate when granted establishes a will from the death of the testator and renders valid all intermediate acts of the executor as such. Under Section 222 a probate can be granted only to an executor appointed by the will. Chandka 9 A-1009-10-JUDGMENT When probate has been granted to several executors and one of them dies, Section 226 stipulates that the entire representation of the testator accrues to the surviving executor or executors. Section 232 then provides as follows:- "232. Grant of administration to 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, an 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."
(emphasis supplied)
Section 232 deals with three identified situations. The first is where no executor has been named in the will executed by the deceased. The second is where though an executor has been appointed by the deceased in the will the executor (i) is legally incapable; or (ii) refuses to act; or (iii) has died before the testator; or (iv) had died before he has proved the will. The third situation deals with a case where the executor after having proved the will has died but before the estate of the deceased has been administered. In either of these situations Section 232 provides that (i) a universal or a residuary legatee may be admitted to prove the will; and (ii) letters of administration with the will annexed may be granted to him of the whole Chandka 10 A-1009-10-JUDGMENT estate or of such part of the estate as remains to be administered. The law does not postulate a vacuum in the administration of the estate of a deceased testator. Hence in the several situations to which a reference has been made in Section 232, the Act contemplates that the universal or a residuary legatee may be admitted to prove the will with a consequential issuance of letters of administration with the will annexed. The second set of eventualities to which a reference has been made earlier contemplates a situation where the executor under a will of the deceased has died before the will was proved. The death of the testator before the will is proved may occur either before the presentation of a Petition for probate or, for that matter, even after the presentation of a Petition but before probate has actually been granted upon the will being proved. Whether as a matter of fact the death of the executor takes place before or after the institution of a Petition for probate, the death in such a case is prior to the will being proved. Hence in both the situations, a residuary legatee is entitled in law to be admitted to prove the will and to the issuance of letters of administration.
9. The submission that has been urged on behalf of the Appellant is that while the right of the legatee to institute a proceeding for the grant of letters of administration cannot be questioned and is not questioned, the legatee must necessarily institute a separate proceeding for the grant of Chandka 11 A-1009-10-JUDGMENT administration. In other words what is sought to be urged is that the proceeding for the grant of probate initiated by the sole executor abates on the death of the executor since the right to obtain a probate is personal to the executor. Therefore it is urged that the legatee under the will must institute a separate proceeding for the issuance of letters of administration and cannot seek continuation of the proceedings which were instituted by the sole executor, which must be construed as having died a natural death following the death of the executor. It is that submission which must now fall for consideration.
10. This issue which the Court is called upon to decide has been considered in judgments of several High Courts to which it would be necessary to turn. The first set of judgments which holds the field are judgments which take the view that it is only an executor appointed under a will who can seek probate and that consequently upon the death of the sole executor or as the case may be of the last surviving executor, the heirs of the executor are not entitled to be impleaded as parties to the proceeding.
11. In the judgment of a Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji Anklesaria & Anr, (supra), the will executed by a testatrix in 1989 was sought to be administered in a Petition filed in Chandka 12 A-1009-10-JUDGMENT 1993. Five executors appointed under the will had died. The petition had been amended after the death of the first two executors. However, no steps were taken after the death of the third executor. The applicant had not sought a continuation of the suit by substitution of herself in place of the deceased executors but had applied for various reliefs in the administration of the estate of the deceased. The Division Bench held that probate proceedings are essentially at the instance of the executors named in the will and can survive until the executors survive. If the sole executor dies or upon the death of all the executors named in the will no question would arise of the proceeding being kept alive as there would be no occasion to grant a probate. The Division Bench was of the view that such a procedure would die a natural death as a consequence of the non survival of any executor and the applicability of the provisions of Order XXII would not arise. The Division Bench relied interalia upon the judgment of the Calcutta High Court in Sarat Chandra Banerjee vs. Nani Mohan Banerjee1 That was a case where pending the hearing of a contested application for probate by a sole executor the executor had died. His widow as legal representative applied that her name be substituted for the deceased executor and the petition for probate be amended by substituting a prayer for the grant of letters of administration. The application was rejected on the ground that the right to sue did not survive and the suit stood abated. In Hari Bhusan 1 1909 Vol. III Indian Cases 995 (Calcutta)
Chandka 13 A-1009-10-JUDGMENT 1
Datta vs. Manmatha Nath Datta & Ors., a residuary legatee under a will had applied for letters of administration with a copy of the will annexed. During the pendency of the proceedings the legatee died and his son applied for being substituted in the place of the deceased father and to be granted letters of administration. The Calcutta High Court held that the right of the legatee to obtain a grant was personal and would not devolve on his heir. In Manekji Manchersha Javeri vs. Phiroze Boman Javeri,2, a learned Single Judge of this Court followed the decision of Harington J. of the Calcutta High Court in Sarat Chandra Banerjee (supra) and held that in the case of an application for probate no question of a right to sue arises at all. The learned Single Judge was of the view that when a petition is filed on the testamentary side for the grant of representation it is not a suit in any sense of the word for, if it remains non contentious. It does not even assume the form of a suit. Though Section 295 provides that the proceedings take as nearly as may be a form of the regular suit, that does not really render the proceedings a suit in the real sense of the term and no question would arise of the right to sue surviving on the death of the executor even though the executor had died after the testamentary proceedings had become contentious. These decisions were followed in the judgment of the Division Bench of this Court in Thrity Sam Shroff vs. Shiraz Byramji 1 1919 (Vol.II) Indian Cases 76 (Calcutta)
2 1970 Mh.L.J. 324
Chandka 14 A-1009-10-JUDGMENT Anklesaria & Anr., where the Court came to the conclusion that the proceedings for the grant of a probate under Section 295 are not proceedings in a suit. Following this, the Division Bench held that an application of the nature that was made before the learned Single Judge was not maintainable.
12. Now from a reading of the facts contained in the judgment of this Court in Thrity Sam Shroff it is evident that the situation which arose before the Court in the case was one where during the pendency of the probate proceedings all the executors appointed under the will had died. The appellant was one of the legal heirs of the deceased testator. It was her contention that the property was mismanaged and was being wasted and that it was necessary to appoint an administrator consequent upon the death of the executors named in the will. The appellant took out a motion seeking various reliefs including the appointment of an official administrator and for the governance of the estate of the deceased testator. It was in this background that the Division Bench came to the conclusion that the suit stood abated and the motion in such a suit for interim orders could not be entertained. No question of the substitution of the legatee upon the death of a sole executor in testamentary proceedings arose before the Division Bench. The ratio of the judgment is on what arose before the Court for determination and hence what the Court has decided on that issue. Chandka 15 A-1009-10-JUDGMENT
13. The Madras High Court has had occasion to consider as to whether in a pending application for the issue of a probate, upon the death of a sole executor before proving the will it would be competent for a legatee or any other person interested to intervene and continue the proceedings to prove the will and obtain letters of administration in his own right. This issue was considered initially in a judgment of a Division Bench in P. Rama Naidu & Ors. vs. Rangayya Naidu & Ors.1 One of the Judges constituting the Division Bench, Venkatasubba Rao, J. held that the proper view is that the object of the executor in commencing the proceeding is to get an adjudication in the interest not only of himself but of others that the will which is propounded is genuine and valid. Reilly, J. in a separate judgment dealt with the contention that when an executor prays for probate, he prays for something which is personal to himself since no one but the executor can get the probate. Holding that the submission looks more at the form of the proceedings while ignoring the real effect, the learned Judge held as follows:
"An executor who prays for probate prays in form for something which can be granted to no one else. But the essence of the proceedings is that he seeks to establish a will, not for himself, but as the representative of those who take benefits under it. If he fails in his duty, any of those whom he represents may intervene to carry on the proceedings, having in effect by representation through 1 AIR 1933 Madras 114
Chandka 16 A-1009-10-JUDGMENT the executor been a party to the proceedings from the outset. And, if in the course of the proceedings the executor drops out through death, it follows that any of those he has represented may similarly carry on the
proceedings with the unessential modification that the prayer must then be for letters of administration with the will annexed."
A subsequent judgment of the Madras High Court in Govind M. Asrani vs. Jairam Asrani & Anr.1, reiterated the same view. The Division Bench held that both in a case where an executor applies for issue of a 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 that has to be decided is the same, namely, (i) whether the will is true; (ii) whether it was executed in accordance with law; (iii) whether there was capacity in the testator to make the will; and (iv) there being no fraud or other infirmity attending the execution of the document. Whether it be an executor or an administrator, the right or interest possessed by them in the properties of the testator is the same and both have to administer them in accordance with the directions contained in the will. In this context the Division Bench held as follows: " To put it in other words, the proceedings taken out either for the grant of probate or letters of administration with the will annexed are in the interest of the legatees and the question involved in such proceedings will be the same, namely, about the truth and genuineness of the will. In both the cases it will be open to a person interested to intervene. Final adjudication as to the genuineness of the will in both cases will operate as a 1 AIR 1963 Madras 456
Chandka 17 A-1009-10-JUDGMENT judgment in rem.
"..... It is true that in form a probate is different from a letters of administration with the will annexed; there is also difference in procedure regarding necessity to take security; but it cannot be denied that an adjudication in an application or suit for obtaining probate or letters of administration will be binding on all the persons
interested in the estate of the deceased testator."
The Division Bench recognized that the impleading of a legatee in the place of the deceased executor would involve an alteration of the petition which was originally filed for the issue of the probate into one for the grant of letters of administration but held that this was a technicality not affecting the substance of the matters to be decided in the case.
14. The Supreme Court had occasion to consider a similar issue in Shambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal.1 In that case the testatrix had by her will bequeathed her estate to a nephew. On the death of the testatrix the legatee filed a petition for probate. The legatee died during the pendency of the proceedings and on his death his heirs filed an application in the probate proceedings for substitution in place of the deceased legatee. Another application for amendment of the petition was filed by which it was prayed that instead of a probate, the legal heirs may be granted letters of administration. These applications having been dismissed and the order of dismissal having been confirmed in revision by 1 (2000) 9 SCC 714
Chandka 18 A-1009-10-JUDGMENT the High Court an appeal was filed before the Supreme Court. The Supreme Court noted that the legatee, it was true should have applied for the issuance of letters of administration and not for probate. However, this would not debar his heirs from getting the probate petition amended. The Supreme Court ruled that the view of the trial Court in rejecting the applications on the ground that the probate petition filed by the legatee related to his personal right and hence no right accrued to the appellants for substitution in his place was incorrect. The judgment of the Supreme Court lays down that while it is true that where an executor dies his heirs cannot be substituted because the executor possesses a personal right, this is not applicable where the heirs of a legatee apply for issue of letters of administration. The Supreme Court noted that it could not be disputed that the heirs of the legatee could file a petition for the issuance of letters of administration. Having regard to the time that had elapsed, the interest of justice would require that the proceeding should come to an end as early as possible and the appeal should not be rejected on what was regarded as being a "highly technical ground".
15. The judgment of the Supreme Court is therefore authority for the principle that the right to seek probate of a will executed by a deceased testator is personal to the executor appointed under the will. Upon the death Chandka 19 A-1009-10-JUDGMENT of the executor the heirs of the executor cannot be substituted in his place. However, this would not debar the legatee and upon the death of the legatee his heirs from seeking substitution.
16. The Court in a proceeding for probate, it is well settled, does not decide questions of title. The Court is in probate proceedings only concerned with the issue as to whether the document set forth has been duly executed by the testator; and whether the testator was at the time of the execution of the document in a sound and disposing state of mind. The testamentary court, does not determine questions of ownership of or title to the property but whether the testator has executed his testamentary instrument voluntarily and with a free will.
17. Under the Indian Succession Act, 1925 the effect of the grant of letters of administration is to entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. Under the Act, probate of a will, when granted establishes the will from the death of the testator and renders valid intermediate acts of the executor as such. Where an executor is named in the will probate can be granted only to an executor named in the will. On the other hand where the will does not appoint an executor a universal or Chandka 20 A-1009-10-JUDGMENT residuary legatee may be admitted to prove the will. The right of the beneficiary to seek letters of administration continues to survive notwithstanding the death of the testator. Where an executor resigns or refuses to act as such the beneficiary named under the will can assert his right to seek letters of administration. In a situation where the executor has, even after the presentation of a petition, failed to act it is open to the beneficiary or legatee under the will to seek the issuance of letters of administration. In all these situations, there is no conceivable reason as to why the beneficiary or legatee should be relegated to file independent proceedings. The executor does not derive any interest in the property which forms the subject matter of the bequest unless he is also a beneficiary under a will.
18. Both a proceeding for the grant of probate as well as a proceeding for the grant of letters of administration with the will annexed is initiated for protecting the interest of the legatees under the will. The essence of the enquiry in both the proceedings is the same and relates to the genuineness and authenticity of the will. Having regard to these fundamental similarities in both the proceedings there is no conceivable reason as to why the law must be regarded as prohibiting a beneficiary from seeking to continue the proceedings upon the death of the sole executor and as incidental thereto Chandka 21 A-1009-10-JUDGMENT for seeking formal conversion of the proceeding from one for the grant of a probate to one for the issuance of letters of administration. If there were to be a specific prohibition in law enacted by the legislature the position may have well been different. In the absence of a legal prohibition to the contrary the Court would not readily accept a submission, the effect of which would be to result in delaying the proceedings for the administration of the estate and a resultant multiplicity of proceedings. This is amplified in the present case where the recording of evidence is complete. Nearly eight years have elapsed since the institution of the suit. Evidence of seven witnesses has been recorded and the suit is ripe for final hearing. There is no dispute about the position that in any event the beneficiary would have been entitled to institute separate proceedings independently for the grant of letters of administration. That right can well be espoused by the beneficiary by seeking a continuation of the existing proceedings. It must be noted, that this right which is available is recognized with reference to a beneficiary under the will. A fundamental difference has to be made between a situation where the legal heirs of a sole executor seek impleadment in the proceedings on the death of the executor. The legal heirs of the sole executor cannot be brought on record since the right to seek probate of the will subsists in the executor alone. But that is not to say that a beneficiary under the will is prohibited from continuing the existing proceedings. The Chandka 22 A-1009-10-JUDGMENT proceedings enure to the benefit of the legatee. The appointment of the administrator is but a step in aid of the proper administration of the estate of the deceased. Section 273 provides that probate or letters of administration shall have effect over all the properties and estate of the deceased through the State in which the same is or are granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him. Parties, documents and facts are similar in both sets of proceedings. In this view of the matter and particularly having regard to the judgment of the Supreme Court to which we have made a reference earlier we are of the considered view that the learned Single Judge was not in error in allowing the Chamber Summons.
19. We have not considered it necessary to refer the judgment of the Division Bench of this Court in Thrity Sam Shroff's case to a larger Bench for reconsideration. A judgment is authority for the issues which the Court decides; the issues being those which arose before the Court for decision. In that case after all the executors under the will of the testator had died, an application for interim reliefs was made by one of the heirs of the deceased testator. The facts in that case were therefore on a completely different foundation. The issue as to whether a legatee can upon the death of a sole executor continue the proceeding and seek formal conversion of the Chandka 23 A-1009-10-JUDGMENT proceedings from one for probate into a proceeding for grant of letters of administration did not fall for determination. We are in respectful agreement with the view taken by two Division Benches of the Madras High Court which is also consistent with the law laid down by the Supreme Court subsequently. The judgment of the Supreme Court was not cited before the Court in Thrity Sam Shroff. The law laid down by the Supreme Court is binding and must be followed.
20. For these reasons, we do not find any merit in the Appeal. The Appeal shall accordingly stand dismissed.
21. The suit has been instituted nearly eight years ago. Evidence has been recorded. The suit now awaits final arguments. In these circumstances, we do not find that there is any justification to stay the operation of this judgment. Stay is accordingly refused.
(Dr. D. Y. Chandrachud, J.)
(Anoop V. Mohta, J.)
prabhakar singh
(Expert) 26 August 2011
i agree with Expert Advocate Rajkumarlaxmans'
citation.
