RAKESH BIHARI SHARAN Vs. ALKA SHARAN

JUDGEMENT

(1.) A very short question of law has been raised in the present appeal arising out of Testamentary Suit No. 1/2010. Since the learned Single Judge refused relief for substitution or transposition to the present appellant Rakesh Bihari Sharan in place of the executor, therefore, the appeal has been filed against the order dated 27.03.2014.

(2.) The learned Single Judge while dealing with the matter came to a considered opinion keeping in mind the law which has been laid down by the Patna High Court as early as AIR 1917 Patna 209 (DB) as well as the statutory provisions as it stands in The Indian Succession Act, 1925 and declared that 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. The probate proceedings comes to an end with the death of the executor.

(3.) The learned senior counsel representing the appellant on the basis of certain decision of Madras High Court reported in AIR 1963 Madras 456 as well as an analogy sought to be drawn on some observations made by a Division Bench of the Bombay High Court reported in AIR 2011 Bombay 76 and the decision of the Hon'ble Supreme Court reported in (2016) 13 SCC 253 tried to prevail upon this Court that in the interest of cutting down on litigation time and keeping in mind that the appellant is supposed to be one of the beneficiaries of the will, he should have been allowed to be substituted and then the proceedings converted into a proceedings for grant of letter of administration.