Bombay High Court Grants Letters of Administration Instead of Probate, Cites Lack of Appointed Executor in the Will

Court’s Decision:

The Bombay High Court modified the Trial Court’s order and granted Letters of Administration with Will annexed in favor of the applicant instead of Probate, due to the absence of an appointed executor in the Will. The court ruled that the grant of Probate is restricted to cases where an executor is explicitly appointed, which was not the case here. The court remitted the matter back to the Trial Court for issuing Letters of Administration and dismissed the appeal challenging the Trial Court’s decision.

Facts:

1. The appeal arose out of a Probate proceeding initiated under Sections 276 and 278 of the Indian Succession Act, 1925, in respect of the Will dated 30th July 1956, executed by the deceased, who expired on 21st February 1975.
2. The Will bequeathed specific properties to the applicant, the grandson of the deceased, while excluding other heirs.
3. The applicant discovered the existence of the Will only in 2005 after his father’s death while going through his documents. A certified copy of the Will was obtained as the original Will could not be located.
4. The Trial Court had partly allowed the application, granting Probate of the Will and rejecting the Letters of Administration.

Issues:

1. Whether the evidence of the applicant and the legal heir of the deceased attesting witness was sufficient to prove the execution of the Will.
2. Whether secondary evidence of the Will was admissible under Section 65(c) of the Indian Evidence Act, 1872.
3. Whether the Trial Court was right in granting Probate instead of Letters of Administration.
4. Whether the applicant had discharged the burden of removing the suspicious circumstances surrounding the execution of the Will.

Petitioner’s Arguments:

1. The petitioner contended that the original Will was not produced, and the ingredients of Section 65(c) of the Indian Evidence Act were not satisfied to lead secondary evidence.
2. It was argued that the Will was executed in suspicious circumstances, as the properties were bequeathed to one grandson to the exclusion of other heirs.
3. The petitioner challenged the grant of Probate, asserting that the Trial Court had erred in granting a relief not specifically prayed for.

Respondent’s Arguments:

1. The respondent argued that the Will was executed and registered and that there were no suspicious circumstances surrounding the bequest.
2. It was contended that the time gap of 50 years between the execution of the Will and its discovery justified the loss of the original document, thereby permitting the use of secondary evidence.
3. The respondent further submitted that Probate could be granted, as there was no executor appointed by the Will.

Analysis of the Law:

1. Section 65(c) of the Indian Evidence Act allows secondary evidence when the original is lost or destroyed or when the party offering evidence cannot produce it for any other reason not arising from his own neglect. The court found that the applicant’s inability to produce the original Will was adequately justified, permitting secondary evidence.
2. Section 222 of the Indian Succession Act restricts the grant of Probate to cases where the Will explicitly appoints an executor. Since the deceased did not appoint an executor, Section 232 allowed the applicant to seek Letters of Administration.

Precedent Analysis:

1. Banga Behera v. Braja Kishore Nanda: The court held that it is obligatory to establish the loss of the original Will beyond reasonable doubt. The present case differed as the respondent’s inability to trace the original was not due to his neglect.
2. Kavita Kanwar v. Pamela Mehta: The court reiterated that the propounder must satisfy the court that the Will represents the last free wish of the testator without suspicion.

Court’s Reasoning:

The court concluded that the absence of an appointed executor warranted the grant of Letters of Administration with the Will annexed rather than Probate. It emphasized that the long-standing delay in propounding the Will did not necessarily indicate fraud or suppression. The court accepted the respondent’s explanation for the delay and the exclusion of other heirs as reasonable.

Conclusion:

The Bombay High Court partly modified the Trial Court’s order by granting Letters of Administration instead of Probate and remitted the matter back for issuing the same.

Implications:

This ruling reiterates the principles governing the grant of Probate and Letters of Administration under the Indian Succession Act, emphasizing the distinction between the two and clarifying the necessity of appointing an executor in a Will for granting Probate. The decision upholds the strict compliance with statutory requirements and ensures that the distribution of estates respects the true intentions of the testator.

Also Read – Madras High Court Upholds Property Attachment Under Section 33 of UAPA: “Attachment During Trial is a Standalone Power of the Court”