Surabji Nasarwanji Vs. J.N. Dubas and ors. - Court Judgment

Excerpt:
- - the impugned order is, therefore, bad in law and is fit to be set aside. mehar rustamji dubas is not well founded. ' 18. it is well settled, that where application for probate of a will is applied for, the schedule of assets annexed to the application, must include the entire estate possessed by the testator, and the affidavit of valuation thereof is for the purpose of stamp duty to be levied for grant of the probate.ordern.p. singh, j.1. this is a revision by the applicant, against the order dated 5-1-1994 passed by the ist additional district judge, murwara in probate case no. 5 of 1991, rejecting the petition, under order 6, rule 17 of the code of civil procedure, for amendment of the probate application.2. the applicant, executor of the will, executed by smt. tehmina dubas on 6-12-1961 to her various relations, made an application, under section 276 of the indian succession act, 1925 for probate of the will. the collateral non-applicant no. 6, widow of her predeceased son, and her son, non-applicant no. 7, raised objection about the maintainability of the application for probate, on the ground that in schedule of assets, annexure-6, annexed to the application lacked in full discretion of the entire estate of the testator and the affidavit of valuation, annexed thereto, was grossly under valued.3. in order to meet objection, the applicant moved an application under order 6, rule 17 of the code of civil procedure for substituting the schedule of assets, annexure-6, annexed to the petition and the affidavit of valuation by fresh annexure. the collateral non-applicants nos. 6 and 7 resisted the amendment sought for, on the plea that, the assets of mohan talkies, katni was still not included in annexure-6 sought to be substituted.4. the learned trial court disallowed the amendment, granting leave to the applicant, to move another amendment application, giving the entire assets possessed by the testator and the affidavit of valuation of the assets.5. pursuant to the leave granted by the court, the applicant, moved another amendment application, under order 6, rule 17 of the code of civil procedure, for substituting schedule of the assets, annexure-6.6. the non-applicants nos. 6 and 7 resisted the amendment on the ground that only a fractional value of mohan talkies was mentioned in the schedule of assets, annexure-6, sought to be substituted and not the entire assets and valuation of mohan talkies was incorporated.7. the learned trial court disallowed the amendment sought for by the impugned order stating that the entire assets of the testator must be included in order to obtain the probate of the will.8. shri s. c. jain, learned counsel for the applicant, has contended that as per pious wishes of the testator the applicant-executor had distributed almost the entire assets of the testator, to the beneficiaries named in the will, in the year 1984; only diamond necklace, golden ornaments and rural bonds had remained to be distributed, on account of non-cooperation of collateral beneficiaries non-applicants nos. 6 and 7. in the application for probate, the applicant under misconception, had simply included the undistributed three movables, diamond necklace, golden ornaments and rural bonds in the schedule of assets, annexure-6, annexed to the petition and affidavit of valuation was given accordingly.9. in the first amendment petition, the entire distributed and undistributed assets of the testator, was sought to be substituted by a fresh, annexure-6.10. the learned additional district judge however, found that still some assets was left to be included in annexure-6 sought to be substituted and therefore, he disallowed the amendment by his order dated 3-4-1992.11. then, second amendment petition was moved under order 6, rule 17 of the code of civil procedure for substituting annexure-6, by a fresh annexure, incorporating detailed descriptions of the entire distributed and undistributed assets, possessed by the testator, including 1/9th share of the testator in mohan talkies, which she was entitled to inherit, according to the parsi law of inheritance, on account of premature death of her son rustamji dubas, who had predeceased the testator.12. shri jain, next contended that, it is evident from item no. 13 of the will, that the testator had made a gift of assets of mohan talkies to her son rustamji dubas, who unfortunately predeceased the testator. subsequently the testator died in the year 1983.13. lastly, shri jain contended that in application for probate of will, entire assets possessed by the testator, at the time of his death is required to be incorporated in the schedule of assets to the petition and the affidavit of valuation thereof is required to be given for the levy of stamp duty. the testator smt. tehmina dubas did not possess the assets of mohan talkies at the time of her death, therefore, entire assets of mohan talkies was not required to be incorporated in annexure-6 sought to be substituted. the impugned order is, therefore, bad in law and is fit to be set aside.14. smt. mehar rustamji dubas, non-applicant no. 6, personally argued her case and she contended that disposal of a part property, given in will does not amount to revocation of will, the will executed by smt. tehmina dubas in favour of her son rustamji dubas, therefore, does not amount to revocation of her will. she placed reliance in the case of thakar singh and ors. v. arya pratinidhi sabha, punjab and ors., air 1928 lahore 934, and in smt. jaswant kaur v. smt. amrit kaur and ors., air 1977 sc 74.15. contention of smt. mehar rustamji dubas is not well founded. in the application for probate, there is no pleading whatsoever that the will executed by smt. tehmina dubas stood revoked by gift deed made to her by her son rustamji dubas, nor any such argument was advanced by shri jain. the decisions referred to above relied upon by smt. dubas, therefore, has no relevance and bearing in this case.16. secondly, she contended that in the application for probate of a will, entire assets, possessed by the testator has to be included and placed reliance in the case of vrandavanla v. kamla bai, air 1970 ap 109.17. in the case of vrandavanla (supra), a division bench of andhra pradesh high court has observed :-'under section 213, where an executor has to establish his right as an executor or legatee in a court, he cannot do so without obtaining a probate. but there is nothing to prevent an executor from dealing with the property of the deceased (e.g., collecting assets, selling any property to pay debts, etc.) without obtaining probate because, as we said earlier, under section 211, the executor is the legal representative of the deceased for all purposes, and all the property vests in him as such, so that the grant of probate is not a condition precedent to such acts. but these provisions however do not indicate that when an executor intends to obtain probate of a will, he could only obtain probate of a part of a will at his choice. the general rule is that a probate should be granted in respect of the entire estate of the deceased because under section 211, the entire estate of the deceased vests in the executor appointed by the will.'18. it is well settled, that where application for probate of a will is applied for, the schedule of assets annexed to the application, must include the entire estate possessed by the testator, and the affidavit of valuation thereof is for the purpose of stamp duty to be levied for grant of the probate.19. as regards the assets of mohan talkies, katni is concerned, it is admitted that the testator had made a gift of the assets of mohan talkies to her son, rustamji dubas in the year 1964, the testator was therefore, not in possession thereof, at the time of her death, except to the extent of 1/9th share, which she is said to have inherited on the premature death of her son, rustamji dubas, who had predeceased the testator. the assets of mohan talkies which the testator did not possess was, therefore, not liable to be included in the schedule of assets of the testator, annexure-6, annexed to the application, sought to be substituted, in the second amendment petition. the decision relied upon by smt. mehar rustamji dubas in vrandavanla (supra) does not support her case.20. for the reasons mentioned aforesaid, the impugned order cannot be sustained. it is accordingly set aside and in the result the petition succeeds and is allowed.21. it is however, made clear, that the order, will not prejudice the rights of the parties, under the law, and disposal of the application of probate, on merit.

Judgment:
ORDER

N.P. Singh, J.

1. This is a revision by the applicant, against the Order dated 5-1-1994 passed by the Ist Additional District Judge, Murwara in Probate Case No. 5 of 1991, rejecting the petition, under Order 6, Rule 17 of the Code of Civil Procedure, for amendment of the probate application.

2. The applicant, executor of the will, executed by Smt. Tehmina Dubas on 6-12-1961 to her various relations, made an application, under section 276 of the Indian Succession Act, 1925 for probate of the will. The collateral non-applicant No. 6, widow of her predeceased son, and her son, non-applicant No. 7, raised objection about the maintainability of the application for probate, on the ground that in schedule of assets, Annexure-6, annexed to the application lacked in full discretion of the entire estate of the testator and the affidavit of valuation, annexed thereto, was grossly under valued.

3. In order to meet objection, the applicant moved an application under Order 6, Rule 17 of the Code of Civil Procedure for substituting the schedule of assets, Annexure-6, annexed to the petition and the affidavit of valuation by fresh annexure. The collateral non-applicants Nos. 6 and 7 resisted the amendment sought for, on the plea that, the assets of Mohan Talkies, Katni was still not included in Annexure-6 sought to be substituted.

4. The learned trial Court disallowed the amendment, granting leave to the applicant, to move another amendment application, giving the entire assets possessed by the testator and the affidavit of valuation of the assets.

5. Pursuant to the leave granted by the Court, the applicant, moved another amendment application, under Order 6, Rule 17 of the Code of Civil Procedure, for substituting schedule of the assets, Annexure-6.

6. The non-applicants Nos. 6 and 7 resisted the amendment on the ground that only a fractional value of Mohan Talkies was mentioned in the schedule of assets, Annexure-6, sought to be substituted and not the entire assets and valuation of Mohan Talkies was incorporated.

7. The learned trial Court disallowed the amendment sought for by the impugned order stating that the entire assets of the testator must be included in order to obtain the probate of the will.

8. Shri S. C. Jain, learned counsel for the applicant, has contended that as per pious wishes of the testator the applicant-executor had distributed almost the entire assets of the testator, to the beneficiaries named in the will, in the year 1984; only diamond necklace, golden ornaments and rural bonds had remained to be distributed, on account of non-cooperation of collateral beneficiaries non-applicants Nos. 6 and 7. In the application for probate, the applicant under misconception, had simply included the undistributed three movables, diamond necklace, golden ornaments and rural bonds in the schedule of assets, Annexure-6, annexed to the petition and affidavit of valuation was given accordingly.

9. In the first amendment petition, the entire distributed and undistributed assets of the testator, was sought to be substituted by a fresh, Annexure-6.

10. The learned Additional District Judge however, found that still some assets was left to be included in Annexure-6 sought to be substituted and therefore, he disallowed the amendment by his order dated 3-4-1992.

11. Then, second amendment petition was moved under Order 6, Rule 17 of the Code of Civil Procedure for substituting Annexure-6, by a fresh annexure, incorporating detailed descriptions of the entire distributed and undistributed assets, possessed by the testator, including 1/9th share of the testator in Mohan Talkies, which she was entitled to inherit, according to the Parsi Law of inheritance, on account of premature death of her son Rustamji Dubas, who had predeceased the testator.

12. Shri Jain, next contended that, it is evident from item No. 13 of the will, that the testator had made a gift of assets of Mohan Talkies to her son Rustamji Dubas, who unfortunately predeceased the testator. Subsequently the testator died in the year 1983.

13. Lastly, Shri Jain contended that in application for probate of will, entire assets possessed by the testator, at the time of his death is required to be incorporated in the schedule of assets to the petition and the affidavit of valuation thereof is required to be given for the levy of stamp duty. The testator Smt. Tehmina Dubas did not possess the assets of Mohan Talkies at the time of her death, therefore, entire assets of Mohan Talkies was not required to be incorporated in Annexure-6 sought to be substituted. The impugned order is, therefore, bad in law and is fit to be set aside.

14. Smt. Mehar Rustamji Dubas, non-applicant No. 6, personally argued her case and she contended that disposal of a part property, given in will does not amount to revocation of will, the will executed by Smt. Tehmina Dubas in favour of her son Rustamji Dubas, therefore, does not amount to revocation of her will. She placed reliance in the case of Thakar Singh and Ors. v. Arya Pratinidhi Sabha, Punjab and Ors., AIR 1928 Lahore 934, and in Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors., AIR 1977 SC 74.

15. Contention of Smt. Mehar Rustamji Dubas is not well founded. In the application for probate, there is no pleading whatsoever that the will executed by Smt. Tehmina Dubas stood revoked by gift deed made to her by her son Rustamji Dubas, nor any such argument was advanced by Shri Jain. The decisions referred to above relied upon by Smt. Dubas, therefore, has no relevance and bearing in this case.

16. Secondly, she contended that in the application for probate of a will, entire assets, possessed by the testator has to be included and placed reliance in the case of Vrandavanla v. Kamla Bai, AIR 1970 AP 109.

17. In the case of Vrandavanla (supra), a Division Bench of Andhra Pradesh High Court has observed :-

'Under section 213, where an executor has to establish his right as an executor or legatee in a Court, he cannot do so without obtaining a probate. But there is nothing to prevent an executor from dealing with the property of the deceased (e.g., collecting assets, selling any property to pay debts, etc.) without obtaining probate because, as we said earlier, under section 211, the executor is the legal representative of the deceased for all purposes, and all the property vests in him as such, so that the grant of probate is not a condition precedent to such acts. But these provisions however do not indicate that when an executor intends to obtain probate of a will, he could only obtain probate of a part of a will at his choice. The general rule is that a probate should be granted in respect of the entire estate of the deceased because under section 211, the entire estate of the deceased vests in the executor appointed by the will.'

18. It is well settled, that where application for probate of a will is applied for, the schedule of assets annexed to the application, must include the entire estate possessed by the testator, and the affidavit of valuation thereof is for the purpose of stamp duty to be levied for grant of the probate.

19. As regards the assets of Mohan Talkies, Katni is concerned, it is admitted that the testator had made a gift of the assets of Mohan Talkies to her son, Rustamji Dubas in the year 1964, the testator was therefore, not in possession thereof, at the time of her death, except to the extent of 1/9th share, which she is said to have inherited on the premature death of her son, Rustamji Dubas, who had predeceased the testator. The assets of Mohan Talkies which the testator did not possess was, therefore, not liable to be included in the schedule of assets of the testator, Annexure-6, annexed to the application, sought to be substituted, in the second amendment petition. The decision relied upon by Smt. Mehar Rustamji Dubas in Vrandavanla (supra) does not support her case.

20. For the reasons mentioned aforesaid, the impugned order cannot be sustained. It is accordingly set aside and in the result the petition succeeds and is allowed.

21. It is however, made clear, that the order, will not prejudice the rights of the parties, under the law, and disposal of the application of probate, on merit.