NARENDRA NATH MITRA Vs. STATE

JUDGEMENT

(1.) The dispute in this case emanates out of the last will and testament dated 23rd July, 1960 of Narendra Nath Mitra. He died on 15th December, 1963. In his will the testator had appointed Smt. Amiya Bala Mitra and Mr. Sunil Krishna Mitra as executrix and executor respectively. Amiya Bala Mitra died on 29th November, 1985. Sushil Krishna Mitra continued to function as the sole executor. He applied for probate of this will in this High Court. The application was numbered as PLA No. 359 of 2008. It became contentious. Debasish Kumar Sinha one of the sons of the deceased second daughter of the testator Shanti Sinha opposed the grant. The proceeding has been declared to be contentious by this Court and numbered as a suit being testamentary suit no. 14 of 2009. Now, Sushil Krishna Mitra died on 7th January, 2011. On 6th July, 2011 Anindya Mitra filed an application. He is one of the sons of a deceased legatee and son of the testator, Anil Krishna Mitra. He wants the Court to record the death of Sushil Krishna Mitra. He wants the application for grant of probate to be treated as an application for grant of letters of administration with a copy of the will dated 23rd July, 1960. He wants to prosecute the application for grant of probate. On 19th September, 2011, an application was filed by Sudhir Krishna Mitra. He is the surviving legatee under the will of the testator. He seeks to be added as a coapplicant with Mr. Anindya Mitra for grant of letters of administration with a copy of the will annexed. He says that he is 68 years of age and ailing. He lives in New Delhi. It would not be possible for him to prosecute the application for letters of administration, all alone. Hence, he wants to be joined as co-applicant with Anindya Mitra. This application by Anindya Mitra is opposed by the caveators to the will.

(2.) It is submitted that on a construction of sections 232, 233, 234 and 235 of the Indian Succession Act, 1925, in the absence of the appointed executor, a universal or residuary legatee may be admitted to prove the will. Anindya Mitra is neither a universal nor a residuary legatee, being the son of a deceased legatee. The caveators do not have any objection to the Court permitting Sudhir Krishna Mitra to apply for letters of administration, as he is a surviving legatee.

(3.) Section 232 states inter alia, that if an appointed executor dies a universal or a residuary legatee may be admitted to prove the will and letters of administration with the will annexed may be granted to him of the whole estate or a part of it. A residuary legatee is defined in Section 102 of the Act. It says that a person who will take the surplus or the residue of the property is a residuary legatee. A universal legatee according to the definition of universal succession in Black s Law Dictionary and of universal legatee by P. Ramanatha Aiyar in Concise Law Dictionary is one who takes the whole estate. Now, let me come to Section 233 which says that when a residuary legatee with a beneficial interest dies after the testator, his representative will have the same right. Section 234 states inter alia that in the absence of a representative of a residuary legatee administration could be granted to an heir who would have succeeded on intestacy, a creditor or any other legatee having a beneficial interest. Section 235 stipulates that letters of administration will not be granted to any legatee other than a universal or residuary legatee unless citation has been issued.