PUSHPALATHA Vs. NIL

JUDGEMENT

(1.) Heard the learned counsel for appellant.

(2.) The Trial Court rejected the petition only on the ground that in the Will not appointed the executor wherein referred the judgment of Delhi High Court in case of Chand Nayyar V/s Sarvadeshik Arya Pratinidhi Sabha and another reported in AIR 1977 Delhi 34 wherein it is held that "a probate cannot be granted to any person unless and until he has been named as an 'Executor' in the Will " on referring this judgment, comes to the conclusion that petitioner is not entitled for the relief.

(3.) The counsel relies upon the order passed by this Court in M.F.A.No.4399/2023 wherein this Court discussed the Division Bench judgment of this Court in M.F.A.No.3238/2019 and this Court discussed the judgment of Chand Nayyar V/s Sarvadeshik Arya Pratinidhi Sabha and another reported in AIR 1977 Delhi 34 and the very similar issue is considered in M.F.A.No.3238/2019 dtd. 7/11/2019 by this Court and also taken note of factual aspects of the case. This Court taking into note of the very proviso under Sec. 276 of the Act wherein there is no executor appointed and whether the Court can grant the probate of the Will on a petition filed by a beneficiary. This Court in paragraph No.14 discussed with regard to the provisions of Sec. 222(1), 231 and 243 of the I.S Act and no doubt Sec. 234 of the Act states that when there is no executor, then the persons who entitled to the administration of estate of the deceased, if he died intestate or any other legatee having beneficial interest, or creditor may be admitted to prove the Will and letters of administration may be granted to him or them accordingly. Thus from concise pleading of Sec. 222(2) and Sec. 234 of the Act, it is clear that it is not only executor named in the Will can seek for a probate, but depending on the circumstances whether other persons also seeks such probate. Taking into note of the judgment of the Division Bench of this Court, granted the relief even in the absence of the executor also Court can grant the probate, the same discussion has also made in paragraph No.15 of the judgment in M.F.A.No.4399/2023. When a similar issue was decided and in the present case, claim is made by grand daughter of the executant and sought the relief and regarding proving of the Will, examined one of the witness and only sole ground for rejection of P & SC.No.6/2022 is that no executor has been appointed.