Probate Proceedings End With Death Of Will's Executor, Substitution Of Legal Heirs Not Permissible: Patna High Court

The Patna High Court has said that upon the death of Will's executor, his/her legal heirs cannot be substituted in place of the executor, adding that probate proceedings come to an end upon the death of the Will's executor.

Placing reliance on Section 222 of the Indian Succession Act, 1925, Justice Arun Kumar Jha noted that the right to obtain probate is confined to the executor and it can by no means devolve upon the heir of the executor appointed by the Will. For context probate is the legal procedure to establish whether the will is made correctly or not.

“Reading of Section 222 of the Act makes it amply clear that probate shall be granted only to an executor appointed by the will. Thus, the right to obtain a probate is confined to the executor and it can by no means devolve upon the heir of the executor appointed by the will as held by the Division Bench of this Court in the case of Musammat Phekni v. Musammat Manki, reported in 1929 SCC OnLine Pat 113 : AIR 1930 Pat 618. On the same proposition, reliance could be placed on another decision of Division Bench of this Court in the case of Bihari Lal Mahton Tetak Gayawal vs. Ganga Dai Tatkain & Ors., reported in AIR 1917 Patna 209. Thus, after the death of the executor and before the will could be proved no beneficiary or claimant can be permitted to get himself or herself substituted in place of the executor. In other words, the probate proceedings come to an end with the death of the executor. Furthermore, the substitution of heirs/legal representatives of an executor is not permissible in a probate proceeding though such heirs/legal representatives could maintain a petition under Section 276 of the Act for grant of letters of administration.”, the court added.

Section 222 states that Probate shall be granted only to an executor appointed by the will and that this appointment "may be expressed or by necessary implication". Section 276 states that an application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in certain sections of the Act, a copy, draft, or statement of the contents thereof will be annexed. The plea among other things must state the time of the testator's death, that the writing annexed is his last will and testament, that it was duly executed, the amount of assets which are likely to come to the petitioner's hands.

The petitioner was aggrieved by the trial court's decision to allow the substitution of the Will's executor's legal heirs upon the death of the executor. The petitioner questioned the substitution process, as the Executor's legal heirs, who were defendants, became the plaintiff without following the statutory process.

Setting aside the trial court's decision, the Court noted that the trial court committed an error in substituting the executor's legal heirs as plaintiffs upon the death of the executor. The court agreed to the petitioner's contention that there exists no provision in the law that permits substitution of the heirs/legal representatives of the executor.

Accordingly, the petition was allowed.

Case Title: Sanjay Tribedi @ Munna Tribedi vs. Kanti Devi & Ors.

CIVIL MISCELLANEOUS JURISDICTION No.313 of 2022

Counsel For the Petitioners : Advocates Dineshwar Mishra, Ruchi Arya

Counsel for Respondents : Advocates Damodar Prasad Tiwary, Braj Bhushan Mishra

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