Allowed

Sitaram Sharma, Son of Late Shri Kanhaiya Lal Ji Joshi v. District Collector

Rajasthan HC24 Aug 2021CW/12504/2018

Case brief

AI extract

What is this about?

High Court allowed an executor to be relieved of responsibility under Section 301 of Indian Succession Act, 1925, permitting petitioners (will beneficiaries) to be transposed as applicants-plaintiffs to continue probate proceedings in civil suit.

What did the court decide?

Executor relieved from obligation; petitioners transposed as applicants-plaintiffs; writ petition allowed; probate proceedings directed to be decided within 6 months.

Sitaram Sharma, Son of Late Shri Kanhaiya Lal Ji Joshi… — Property and Title | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 6758/2018

¶3

Aashish, Son Of Shri Kaushal Kishore Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Govind Marg, Jaipur Rajasthan

¶4

Anurag, Son Of Shri Kaushal Kishore Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Govind Marg, Jaipur Rajasthan

¶5

----Petitioners

¶6

Versus

¶7

Sitaram Sharma, Son Of Late Shri Kanhaiya Lal Ji Joshi, Resident Of Plot No 186-187, Girnar Colony, Gandhi Path, Vaishali Nagar, Jaipur In The Capacity Of As Executor In Will Dated 27.09.2004 Of Smt Gyan Devi Narnoli, Wife Of Late Shri Kunj Bihari Lal Ji Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Govind Marg, Jaipur

¶8

District Collector, Collectorate Office, Banipark, Jaipur

¶9

Sub Registrar, No 4, Collectorate Premise, Banipark, Jaipur

¶10

Bal Kishan Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur Died During Suit Through Natural Lr’S -

¶11

Smt Premlata Agarwal, Wife Of Late Shri Bal Kishan Agarwal, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur

¶12

Dinesh Agarwal, Son Of Late Shri Bal Kishan Agarwal, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur

¶13

Smt Priti Agarwal, Daughter Of Late Shri Bal Kishan Agarwal, Wife Of Shri Manoj Kumar, Resident Of Plot No 13, Mahaveer Marg, C-Scheme, Jaipur

¶14

Smt Minakshi Garg, Daughter Of Late Shri Bal Kishan Agarwal, Wife Of Shri Anil Garg, Resident Of House No 60, Rajamal Ka Talab, Jaipur

¶15

Smt Krishna Mukut, Daughter Of Late Shri Bal Kishan Agarwal, Wife Of Shri Deepak Mukut, Resident Of Dwarkapuri, Rajmahal Hotel Ke Samne, Sardar Patel Marg, Jaipur

¶16

Chandra Mohan Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur

¶17

Kaushal Kishore Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur

¶18

Ram Prakash Agarwal, Son Of Late Shri Kunj Bihari Lal

¶19

(2 of 8)

¶20

[CW-6758/2018]

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Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur

¶22

Sunil Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No 3, Sethani Ka Bagh, Moti Doongari Road, Jaipur

¶23

Smt Chandra Kanta, Wife Of Shri Trilok Agarwal, Daughter Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No 18, Dhuleshwar Garden, Ajmer Road, Jaipur

¶24

Smt Shakuntala Kotawala, Wife Of Shri Vinod Ji Kotawala, Daughter Of Late Shri Kunj Bihari Lal Narn, Resident Of Bardiya Colony, Museum Ke Piche, Ram Niwas Bagh Ke Pass, Jaipur

¶25

----Respondents

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Connected With

¶27

S.B. Civil Writ Petition No. 12504/2018

¶28

Sitaram Sharma, Son Of Late Shri Kanhaiya Lal Ji Joshi, Aged About 64 Years, Resident Of Plot No. 186-187, Girnar Colony, Gandhi Path, Vaishali Nagar, Jaipur In The Capacity Of As Executor In Will Dated 27.09.2004 Of Smt. Gyan Devi Narnoli, Wife Of Late Shri Kunj Bihari Lal Ji Narnoli, Resident Of Plot No. 3, Sethani Ka Bagh, Moti Doongari Road, Govind Marg, Jaipur.

¶29

----Petitioner

¶30

Versus

¶31

District Collector, Collectorate Office, Bani Park, Jaipur.

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Sub Registrar, No. 4, Collectorate Premise, Bani Park, Jaipur.

¶33

Bal Kishan Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No.3, Sethani Ka Bagh, Moti Doongri Road, Jaipur (Died During Suit) Through Natural Lrs-

¶34

Smt. Premlata Agarwal, Wife Of Late Shri Bal Kishan Agarwal, Resident Of Plot No. 3, Sethani Ka Bagh, Moti Doongri Road, Jaipur.

¶35

Dinesh Agarwal, Son Of Late Shri Bal Kishan Agarwal, Resident Of Plot No. 3, Sethani Ka Bagh, Moti Doongri Road, Jaipur.

¶36

Smt. Priti Agarwal, Daughter Of Late Shri Bal Kishan Agarwal, Wife Of Shri Manoj Kumar, Resident Of Plot No. 13, Mahaveer Marg, C-Scheme, Jaipur.

¶37

Smt. Minakshi Garg, Daughter Of Late Shri Bal Kishan Agarwal, Wife Of Shri Anil Garg, Resident Of House No. 60, Rajamal Ka Talab, Jaipur.

¶38

Smt. Krishna Mukut, Daughter Of Late Shri Bal Kishan Agarwal, Wife Of Shri Deepak Mukut, Resident Of Dwarkapuri, Rajmahal Hotel Ke Samne, Sardar Patel Marg, Jaipur.

¶39

Chandra Mohan Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No. 3, Sethani Ka Bagh,

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(3 of 8)

¶41

[CW-6758/2018]

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Moti Doongri Road, Jaipur.

¶43

Kaushal Kishore Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No. 3, Sethani Ka Bagh, Moti Doongri Road, Jaipur.

¶44

Ram Prakash Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No. 3, Sethani Ka Bagh, Moti Doongri Road, Jaipur.

¶45

Sunil Agarwal, Son Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No. 3, Sethani Ka Bagh, Moti Doongri Road, Jaipur.

¶46

Smt Chandra Kanta, Wife Of Shri Trilok Agarwal, Daughter Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Plot No. 18, Dhuleshwar Garden, Ajmer Road, Jaipur.

¶47

Smt. Shakuntala Kotawala, Wife Of Shri Vinod Ji Kotawala, Daughter Of Late Shri Kunj Bihari Lal Narnoli, Resident Of Bardiya Colony, Museum Ke Piche, Ram Niwas Bagh Ke Pass, Jaipur.

¶48

----Respondents

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For Petitioner(s) : Mr. Mohd. Adil with Mr. Sudesh Bansal For Respondent(s) : Mr. Ram Mohan Sharma Ms. Ishita Rawat for Mr. Gunjan Pathak Mr. Shashi Shekhar Gaur with Ms. Aakansha Mathur

¶50

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order

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24/08/2021 Reportable

¶52

The matter comes up on an application for extension of stay order passed by this Court earlier. Taking into consideration that the writ petition is pending since 2018, this Court deems it appropriate to decide the petition itself.

¶53

The petitioners in SBCWP No.6758/2018 submits that an application was moved by the petitioner for being transposed as petitioners-plaintiffs in the application filed for probate by the executor. At the same time, the petitioner in SBCWP No.12504/2018 also moved an application stating therein that on account of his old age, he is unable to pursue the probate

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(4 of 8)

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[CW-6758/2018]

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proceedings as an executor and requested that in his place the beneficiary of the will i.e. the applicants and the petitioners in the writ petition bearing No.6758/2018 be allowed to continue the probate proceedings.

¶57

The learned trial Court vide its order dated 15.02.2018 dismissed both the applications, viz: the application to relieve the executor on the ground that power is only available under Section 301 of the Indian Succession Act, 1925 with the High Court alone to suspend, remove or discharge the executor and rejected the application of the petitioner for impleadment also on the ground that the executor alone can move application for probate.

¶58

Learned counsel for the petitioner submits that as per Section 231 of the Indian Succession Act, 1925, the Court had ample power to relieve the executor and allow the proceedings to be continued by the beneficiaries.

¶59

Learned counsels appearing for the respondent Nos.4/1, 4/2, 5, 7, 8 & 10 submits that the proceedings relating to probate can only be initiated by the executor in terms of Section 222 of Indian Succession Act, 1925.

¶60

I have considered the submissions.

¶61

Sections 222, 231 and 301 of the Indian Succession Act,

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1925 deserve to be noted as under:-

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“ 222. Probate only to appointed executor. —(1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. Illustrations (i) A wills that C be his executor if B will not. B is appointed executor by implication. (ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do

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(5 of 8)

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[CW-6758/2018]

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constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication. (iii) A appoints several persons executors of his will and codicils’ and his nephew residuary legatee, and in another codicil are these words,—“I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates”. The nephew is appointed an executor by implication.

¶67

231. Procedure where executor renounces or fails to accept within time limited. —If an executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the will may be proved and letters of administration, with a copy of the will annexed, may be granted to the person who would be entitled to administration in case of intestacy.

¶68

301. Removal of executor or administrator and provision for successor. — The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any' such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.”

¶69

In the present case, grandmother of the petitioner- Smt. Gyan Devi executed a will on 27.09.2004 bequeathing to both the petitioners her properties as mentioned therein. The respondent No.2 was made executor to disclose and implement the will and distribute the properties accordingly. The petition was filed by the executor after death of Smt. Gyan Devi for issuance of probate with letters of administration on the basis of will dated 27.09.2004. The respondents except respondent No.6 contested the benefit and therefore the same was completed as a civil suit. Issues were framed and at the stage of plaintiff’s evidence the respondent No.1 moved an application stating therein on account of his old age. He was unable to pursue the probate proceedings

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(6 of 8)

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[CW-6758/2018]

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and in his place the beneficiaries of the will i.e. present petitioners be impleaded. The petitioners also on account of application for retirement by respondent No.1, moved application under Order 1 Rule 10 read with Section 151 and under Order 6 Rule 17 CPC for impleadment as party-plaintiffs so that they may be allowed to continue the proceedings.

¶73

This Court finds that as per the Indian Succession Act, 1925 the provisions of Chapter 1 Part IX of the Act of 1925 are applicable for issuance of letter of administration or probate. If an executor has been appointed by will as per Section 222 of the Act of 1925, the probate shall be granted only to the executor appointed by the will.

¶74

However, as per Section 231 if the executor fails to accept the executorship within time limited for the acceptance will may be granted to the person who would be entitled to administration in case of intestacy. 11. As per Section 301, the application may be made to the High Court to remove and discharge private executor or administrator. As per the said provisions in normal course, executor who has moved an application for probate, would not be allowed to ease out of his responsibilities. However, in special circumstances the executor has to move an application in terms of Section 301 for seeking himself absolved of the responsibility specially if the will has already been handed over and the concerned beneficiaries are already there before the Court.

¶75

In the present case, however, while the will itself mentions about the beneficiaries, the concerned beneficiaries have not been allowed to be impleaded as party by the trial Court.

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(7 of 8)

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[CW-6758/2018]

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In the opinion of this Court the scheme as noticed above for execution of will and grant of probate does not envisage a forceful retention of an executor of the will by the Court. In other words if the executor wants himself to be relieve from his obligation, the Court can, as per Section 301 relieved him from his responsibility. In such circumstances, if the beneficiaries have already moved an application for being impleaded as the plaintiff-applicants for receiving the letter of administration, the Court need not reject their application. Admittedly, the suit has now been registered on account of dispute being raised by the respondent/s.

¶79

The law with regard to impleadment is well settled by the Supreme Court in case of Udit Narain Singh Malpaharia Versus Additional Member Board of Revenue reported in AIR 1963 SC 786. 15. While this Court agrees with the observations of the learned Trial Court that an application has to be moved before the High Court by the executor, taking into consideration the prayer made in the writ petition filed by the executor bearing No.12504/2018 and considering the powers contained under Section 301 of the Act of 1925, this Court finds that at this stage where an application has been moved before this Court, the persons who are contesting the will on merits do not have power with regard to discharging the private executor.

¶80

Accordingly, this Court exercising powers under Section 301 of the Act of 1925 allows the application moved by the executor and relieve him from the obligation getting the will executed and

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in his place transpose the petitioner Nos.1 and 2 who are mentioned as beneficiaries to the will, as applicants-plaintiffs.

¶82

(8 of 8)

¶83

[CW-6758/2018]

¶84

Application under Order 1 Rule 10 is accordingly decided.

¶85

The proceedings before the trial Court may now be continued. Accordingly, the writ petition is allowed. After considering that the probate proceedings are pending since 2016, it is directed that the District Judge shall decide the probate proceedings expeditiously preferably within a period of six

¶86

months.

¶87

(SANJEEV PRAKASH SHARMA),J

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NITIN /24-25

Sitaram Sharma, Son of Late Shri Kanhaiya Lal Ji Joshi v. District Collector

Case brief

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Sitaram Sharma, Son of Late Shri Kanhaiya Lal Ji Joshi v. District Collector

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