Will | Person Directed To Make Payments From A Particular Fund But Not Out Of The Entire Estate Is Not Executor: Bombay High Court

The Bombay High Court recently observed that when directed to make payments from a particular fund in a Will, a person cannot be deemed an executor of the Will by implication if they lack the general power to receive and pay from the entire estate of the deceased.

Justice Manish Pitale stated –

“even when a person is directed to make certain payments out of a particular fund but not out of the general estate, it cannot be said that such a person has been appointed as an executor by implication.”

The court was dealing with a petition filed by one Dimple Rakesh Doshi seeking Letters of Administration (LoA) with Will annexed concerning a Will dated May 29, 2022.

In the Will, the petitioner, niece of the deceased, was named as the sole owner of the movable and immovable property of the deceased. Further, the Will gave instructions that the petitioner should distribute the proceeds of the investments of the deceased to certain family members, with the petitioner's husband assisting her in implementing the Will. This direction in the Will to distribute the proceeds led to the Registry to raise an objection.

The Registry contended that the petitioner should have filed a probate petition instead of seeking LoA as she was appointed as an executor and her husband as co-executor by “necessary implication” as per Section 222(2) of the Indian Succession Act, 1925.

Advocate Rubin Vakil for the petitioner argued that the petitioner's appointment as an executor could not be implied from the language of the Will.

The court examined the language of the Will and noted that the Will primarily bequeathed all movable and immovable properties to the petitioner, without explicitly appointing her as an executor. The court emphasized that for someone to be considered an executor by necessary implication, they must have the right to receive and pay debts and legacies of the estate.

The court relied on various precedents such as the Calcutta High Court judgment in Nimai Charan Chatterjee v. Lakshmi Narayan Chatterjee which gave the tests applied for ascertaining whether a person has been appointed as an executor. The court observed that even when directed to make payments from a specific fund, a person cannot be deemed an executor by implication if they lack the general power to receive and pay from the estate. In this case, the court found no indication in the Will that the petitioner had such powers.

Consequently, the court ruled in favour of the petitioner, stating that the petition for grant of letters of administration with Will annexed was maintainable. It emphasized that since the deceased had not appointed an executor in the Will, the legatee could be admitted to prove the Will, and letters of administration could be granted accordingly.

With all other objections resolved by the petitioner and considering the uncontested nature of the proceeding, the court directed the Registry to proceed further and issue the grant in accordance with the law.

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