Padmaja Kumari Parmar vs Lakshyaraj Singh Mewar on 17 March, 2026

Delhi High Court

Padmaja Kumari Parmar vs Lakshyaraj Singh Mewar on 17 March, 2026

1. TEST.CAS. 2/2026 has been filed by the Petitioner under Section 278
of the Indian Succession Act, 1925 (hereinafter referred to as „the Indian
Succession Act‟) for grant of Letters of Administration to the Petitioner to
administer the estate left behind by Mr. Arvind Singh Mewar (hereinafter

SPONSORED

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referred to as „the deceased or the testator‟), who passed away on
16.03.2025 at Udaipur. The present Petition was originally filed in the High
Court of Judicature at Bombay and was numbered as (Testamentary and
Intestate Jurisdiction) Petition No. 5773 of 2025.

2. It is stated that the deceased was survived by four Class I legal heirs,
namely (i) Padmaja Kumari Parmar (Petitioner herein), who is the daughter
of the deceased; (ii) Bhargavi Kumari Mewar (Respondent No.2 herein),
who is the other daughter of the deceased; (iii) Lakshyaraj Singh Mewar
(Respondent No.1 herein), who is the son of the deceased; and (iv) Vijayraj
Kumari Mewar (Respondent No.3 herein), who is the wife of the deceased.
Each of the heirs is stated to be entitled to an equal one-fourth (1/4th) share
in the estate of the deceased upon intestate succession.

3. The Petitioner further states that the estate of the deceased consists of
numerous assets and properties, details of which have been set out in the
Petition and are not being stated here as they are not relevant at this juncture.

4. The Petitioner states that she is seeking Letters of Administration in
intestacy as she is unaware of any valid testamentary writing executed by
the deceased. However, in paragraph No.11 of the plaint she also states that
although two documents have been represented as testamentary writings,
neither of them constitute a legally valid Will capable of governing the
estate of the deceased and accordingly, the estate of the deceased must
devolve under the provisions of the Hindu Succession Act, 1956.

5. One of the purported testamentary instrument as mentioned in the
Petition is a testamentary writing dated 07.02.2025 (hereinafter referred to
as „the testamentary writing or the Will‟), executed by the deceased
approximately four weeks before his death. The Petitioner challenges the

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authenticity and validity of this alleged testamentary writing. She contends
that it is extremely doubtful whether such a document was ever genuinely
executed by the deceased. It is further alleged that at the time when the
alleged document was said to have been executed, the deceased was non
compos mentis, i.e. not of sound mind, and was suffering from severe mental
and physical infirmities, failing eyesight, and general frailty. She further
alleges that the deceased had been rendered largely incommunicado and kept
under constant surveillance by the Respondent No.1, and that the
testamentary writing dated 07.02.2025 appears to have been procured
through undue influence.

6. At paragraph No.13, the Petition sets out in detail the suspicious
circumstances surrounding the alleged testamentary writing dated
07.02.2025. The Petitioner asserts that the signature appearing on the
document does not match the known signatures of the deceased and
therefore, the said testamentary writing could not have possibly been
executed by the deceased. She further states that the signatures do not
correspond with those appearing on earlier instruments such as the General
Power of Attorney (“GPA”) dated 28.07.2023 or the Letter of Authority
(“LOA”) dated 22.12.2022, which are relied upon for comparison. The
Petition also points out that the „endorsement of execution‟ of the alleged
testamentary writing does not contain the photograph of the deceased,
suggesting that the deceased was not present at the time the said document
was executed. Another irregularity highlighted by the Petitioner is that the
thumb impression appearing in the „endorsement of execution‟ is completely
misplaced. According to the Petitioner, this indicates that even if the
deceased was compelled to execute the document, he was unable to locate

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the designated space for the impression because of his severe visual
impairment and incapacity. The Petitioner further asserts that even assuming
the signatures were genuine, the deceased was mentally incapacitated and
therefore incapable of executing a valid testamentary instrument, rendering
the alleged writing void.

7. The Petitioner has elaborated on the deteriorating medical condition
of the deceased to support her assertion that he lacked testamentary capacity.
It is stated that the deceased was suffering from multiple serious ailments
including chronic kidney disease, acute kidney injury, severe ocular
conditions causing near blindness, hypothyroidism, hypertension and
diabetes. His eyesight had deteriorated to the extent that he had no
perception of light in one eye and extremely limited vision in the other,
meeting the threshold of legal blindness. It is the case of the Petitioner that
she had to announce herself while meeting him because he could not
recognize people due to his impaired vision.

8. According to the Petitioner, the health of the deceased had been
deteriorating progressively since around 2019, with the onset of serious
neurological and psychiatric conditions including Parkinson‟s disease,
epilepsy, dementia, schizophrenia, anxiety disorder, nerve damage and other
neurological impairments. These illnesses allegedly caused significant
cognitive impairment affecting his ability to think clearly, exercise judgment
and comprehend his surroundings. According to the Petitioner, the
deceased‟s mobility and communication were restricted. Further, he was
deprived of access to a mobile phone from early 2022 onwards on the
pretext of eyesight issues, and his interactions with friends and
acquaintances were limited. It is stated that cameras were allegedly installed

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in the bedroom and other areas of the deceased, and his conversations were
monitored. The Petitioner asserts that this environment created a situation in
which the deceased became dependent on the Respondent No.1 for physical
and emotional support, thereby enabling undue influence to be exerted upon
him.

9. It is stated that the medical records of the deceased reveal that due to
the deteriorating health of the deceased, he had to be airlifted to Mumbai for
medical treatment in January 2022, where he was hospitalized and treated
again in April 2022. Material on record further indicates that the deceased
suffered from visual disturbances, confusion and disorientation with respect
to time, place and persons. It is stated that the deceased was under the
delusion that the walls in his room were moving and that construction work
was being carried out while he was sleeping. It is stated that even though the
deceased could not walk, he would say that he was walking around the
Palace and would concoct various imaginary incidents. It is stated that the
monologues and utterances by the deceased were vague and meaningless
and this unusual behaviour of the deceased was a matter of concern to the
family. It is stated that the deceased was also under psychiatric care and was
prescribed anti-psychotic and anti-depressant medications. It is stated that
the attending psychiatrist, Dr. Ashit Sheth, issued a letter dated 14.05.2022
noting that the deceased was experiencing hallucinations and progressive
neurobehavioral changes and was unable to take appropriate decisions
regarding financial or legal matters. The Petitioner further states that due to
the declining health and eyesight of the deceased, a GPA dated 28.07.2023
was executed in favour of the Respondent No.1, primarily to enable him to
handle litigation and administrative matters on behalf of the deceased. The

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GPA dated 28.07.2023 records the deceased‟s deteriorating health condition
and states that the deceased was suffering from chronic clonidine toxicity,
acute kidney injury apart from chronic kidney disease, bilateral eye exposure
keratitis and left eye glaucomatous disc, extensive central retinal artery
occlusion (CRA), vision fallen in the right eye with no perception of light
and the left eye vision down to 3/60 which is the threshold for legal
blindness, hypothyroidism, hypertension and diabetes mellitus type II.

10. It is further stated that the purported testamentary writing dated
07.02.2025 is suspicious because it disinherits the daughters and the ailing
widow of the deceased and leaves the estate exclusively to the son of the
deceased, i.e. Respondent No.1. According to the Petitioner, such a
disposition is inconsistent with the nature and temperament of the deceased,
who had maintained a close relationship with his daughters and wife. It is
therefore alleged that if any such document was executed, it has been done
as a result of coercion, undue influence, or manipulation by the Respondent
No.1.

11. In addition to the disputed document dated 07.02.2025, the Petitioner
also states that she became aware in August 2025 of another purported
testamentary writing dated 21.04.2015. However, no original of this
document has been produced and no person has sought probate of the same.
The Petitioner therefore reserves her right to challenge the validity of such a
document, if it is ever propounded.

12. It is, therefore, the case of the Petitioner that the Petitioner‟s father
has died intestate. In these circumstances, the Petitioner approached the
High Court of Judicature at Bombay, seeking the grant of Letters of
Administration under Section 278 of the Indian Succession Act to

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administer the estate of the deceased on behalf of all the Class I heirs,
namely the widow, the two daughters, and the son of the deceased. In the
said Petition it was also prayed that the grant of Letters of Administration
should have effect throughout India, since the assets of the deceased are
located not only in Maharashtra but also in Rajasthan and other parts of the
country.

13. The said Petition was filed on 30.09.2025. Notice in the said Petition
was issued on 13.11.2025 and the Respondent No.1 herein was directed to
file Affidavit-in-Reply before the next date of hearing, i.e. 28.11.2025. It is
stated that on the next date of hearing, the Respondent No.1 herein sought
some time to file Affidavit-in-Reply to the Petition as well as to the
Application for appointment of interim administrator pendente lite and the
matter was adjourned to 12.12.2025. It is stated that Affidavit-in-Reply was
filed by Respondent No.1 on 08.12.2025.

14. At this juncture, it is pertinent to mention that on 06.12.2025, the
brother of the Petitioner, i.e. the Respondent No.1 herein, also filed a
Testamentary Petition before the High Court of Rajasthan at Jodhpur, under
Section 276 of the Indian Succession Act seeking issuance of Letters of
Administration with the Will annexed in respect of the Will dated
07.02.2025 claiming that as the universal legatee under the Will he is
entitled to administer the estate and manage the assets of the deceased in
accordance with the testamentary writing dated 07.02.2025. The Petition
was numbered as Testamentary Petition No.1 of 2025 in the High Court of
Rajasthan at Jodhpur (Testamentary and Intestate Jurisdiction). In the said
Petition, Respondent No.1 herein has stated that the deceased passed away
on 16.03.2025 at City Palace, Udaipur. It is stated that at the time of his

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death, the deceased was survived by four Class-I legal heirs: Vijayraj
Kumari Mewar (wife of the deceased, i.e. Respondent No.3 herein),
Lakshyaraj Singh Mewar (son of the deceased, i.e. Respondent No.1 herein),
Bhargavi Kumari Mewar (elder daughter of the deceased, i.e. Respondent
No.2 herein), and Padmaja Kumari Parmar (younger daughter of the
deceased, i.e. the Petitioner herein). It is stated that the wife and son of the
deceased are residents of City Palace, Udaipur, while the elder daughter
resides at The Bagh, Nadra Nai, Udaipur and the Petitioner herein, who is
the younger daughter of the deceased, resides partly in the United States of
America and also maintains an address at City Palace, Udaipur.

15. In the Petition filed by the brother of the Petitioner, i.e. the
Respondent No.1 herein, it is stated that during his lifetime, the deceased
was engaged in managing various family properties and charitable
institutions associated with the Mewar Royal Estate. It is further stated that
apart from movable and immovable properties owned by him, the deceased
also held positions in several trusts connected with the family legacy and
charitable activities. According to the Respondent No.1, the deceased
executed his last Will and Testament on 07.02.2025, which was written on a
stamp paper and duly registered before the Sub-Registrar-I, Udaipur under
serial number 202501102002870. The said Will is stated to have been
executed in the presence of two attesting witnesses, namely Mr. Anwarul
Ghani and Mr. Laxman Singh Karnot. The Respondent No.1 further asserts
that through this Will, the deceased bequeathed all his self-acquired movable
and immovable properties exclusively in his favour, thereby making him the
universal legatee and successor of the estate.

16. Respondent No.1 further states that the Will was drafted after

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discussions held with the deceased in July 2024 at Udaipur and was
prepared by Advocate Puneet Jain, now a Senior Advocate, after which it
was finalised and read over to the deceased before its execution. It is stated
that the Will was thereafter registered on 07.02.2025, and the deceased
executed it after understanding its contents and in the presence of witnesses
and the Sub-Registrar. It is also claimed that prior to the execution of the
Will, the deceased was examined by his family doctor Dr. Shailendra Singh,
who certified that the deceased was of sound mind and capable of
understanding the nature and consequences of executing a Will.

17. According to the Respondent No.1, the deceased had reposed
complete trust and confidence in him and had already entrusted him with the
management of family properties and trust activities during his lifetime by
executing a registered GPA dated 28.07.2023 in his favour, thereby
authorising him to manage properties and affairs on his behalf. In the said
Petition, the Respondent No.1 herein claims that he discharged the
responsibilities to the satisfaction of the deceased and he was also nominated
in several bank accounts and DeMAT accounts by the deceased. According
to the Respondent No.1, the deceased was satisfied with his services and
even issued a Letter of Appreciation dated 22.07.2024 acknowledging the
manner in which he was managing the estate. Respondent No.1 further
contends that during the lifetime of the deceased, certain shares of
companies had been transferred to the daughters and they had also been
appointed as directors in some companies. However, with a view to avoid
future disputes regarding the estate, the deceased requested both daughters
to transfer the shares back to him and resign from the directorships. It is
stated that both daughters complied with the request and executed gift deeds

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dated 28.08.2024, 29.08.2024 and 21.12.2024, returning the shares to the
deceased and resigning from their positions as Directors through letters
dated 20.12.2024 and 04.01.2025.

18. It is further stated by the Respondent No.1 that after the execution of
the Will, the deceased passed away approximately five weeks later on
16.03.2025. Respondent No.1 claims to have continued managing the
properties as the universal legatee and successor under the Will after the
death of the deceased. According to him, certain bank accounts including
one at Bank of Baroda, Excelsior Branch, Mumbai, and another at HSBC,
Mumbai, have already been transferred in his favour on the basis of the Will
dated 07.02.2025.

19. In the said Petition, the Respondent No.1 herein has disclosed about
the Petition filed by his sister, i.e. the Petitioner herein, before the High
Court of Judicature at Bombay seeking the grant of Letters of
Administration to administer the estate of the deceased. It is stated that her
sister, i.e. the Petitioner herein, has filed the Petition without making him or
any other member of the family a party to the said proceedings.

20. Respondent No.1 herein filed Transfer Petition No(s). 3626/2025
before the Apex Court, seeking transfer of his Petition under Section 276 of
the Indian Succession Act from High Court of Rajasthan at Jodhpur to the
High Court of Judicature at Bombay. The Petitioner herein also filed
Transfer Petition No(s). 3625/2025 before the Apex Court, seeking transfer
of her Testamentary Petition from the High Court of Judicature at Bombay
to High Court of Rajasthan at Jodhpur. The Apex Court, vide Order dated
18.12.2025, transferred both the Petitions to this Court by passing the
following Order:

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“4. During the course of the hearing and upon a
suggestion being made by this Court, learned Senior
Counsel for the parties fairly agreed that all the
proceedings pending between the parties be
transferred to the High Court of Delhi. In view of such
a fair stand having been taken by the parties, we
dispose of both the Transfer Petitions in the following
terms:

(i) Testamentary Petition No.5773/2025, pending before
the High Court of Bombay, is ordered to be transferred
to the High Court of Delhi;

(ii) Testamentary Case No.1/2025, pending before the
High Court of Rajasthan (Jodhpur Bench) is also
ordered to be transferred to the High Court of Delhi;

(iii) Both the above-stated petitions shall be tagged and
heard together; and

(iv) If there is any other litigation pending between the
parties, liberty is granted to them to seek transfer thereof
also to the High Court of Delhi.”

21. The matters came up for hearing before this Court on 12.01.2026. The
Petition filed by the Petitioner in Bombay, on transfer to this Court was
numbered as TEST.CAS. 2/2026 and the Petition filed by the Respondent
No.1 herein, on transfer to this Court was numbered as TEST.CAS. 4/2026.
On 12.01.2026 learned Senior Counsel for the Petitioner in TEST.CAS.
4/2026 sought some time to file the Memo of Parties and for other
compliances in accordance with the Delhi High Court (Original Side) Rules,
2018. Memo of Parties in both the cases were filed. On the next date of
hearing, i.e. on 20.01.2026, learned Senior Counsel appearing for the
Respondent No.1 in the present case raised a preliminary objection that the

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present Petition i.e. TEST.CAS. 2/2026, which has been filed by the
Petitioner under Section 278 of the Indian Succession Act for grant of
Letters of Administration without the Will but disclosing the presence of
Will dated 07.02.2025, is not maintainable in law. Arguments on the
maintainability of the present Petition were advanced by both the sides and
the matter was reserved on 17.02.2026 to consider the maintainability of the
present Petition.

22. The said Order was taken up before the Apex Court by filing SLP (C)
No.10536/2026. The Apex Court vide Order dated 23.02.2026 dismissed the
said SLP by passing the following order:-

“We have heard learned senior counsel for the
petitioner(s) at a considerable length. We do not find
any adverse order(s) passed by the High Court in
relation to prayer for appointment of an
Administrator/Oath Commissioner for the purpose of
making inventories. It seems that an application to this
effect is still pending consideration before the High
Court.

3. That being so, we dispose of these Special Leave
Petitions with liberty to the petitioner ( s) to plead the
cause of urgency before the High Court and seek an
appropriate interim protection with reference to the
pending prayers.

4. It is clarified that the observations made
hereinabove and/or the order that may be passed by
the High Court shall be without prejudice to the
outcome of the issue re: maintainability of the suit.”

23. Within three days of the said Order, the Petitioner herein filed an
Application being I.A. No. 5379/2026 in the present case, seeking the

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following reliefs:

“a) list the present proceedings alongwith pending
applications as expeditiously as this Hon’ble Court
deems appropriate;

b) pass such further order/orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances
of the case.”

24. The said Application was numbered and came up for hearing on
26.02.2026, wherein this Court had adjourned the hearing on the said
Application till 18.03.2026, so that the judgment could be pronounced on
the aspect whether the present Petition is maintainable or not.

25. On a pointed query by this Court as to whether the present petition
seeking grant of Letters of Administration on intestacy, despite disclosure of
the Will dated 07.02.2025, is maintainable in its present form, or whether
the Petitioner ought to seek a declaration regarding the invalidity of the said
Will, learned Senior Counsel for the Petitioner submits that such a prayer for
declaration is not mandatory. He places reliance on the Judgment passed by
the Division Bench of this Court in Lalitkumar vs. Sunita & Ors., 2025 SCC
OnLine Del 4904, judgment passed by the Bombay High Court in Sambhaji
Vishnu Kharat vs. Sarjerao Kharat, 2020 SCC OnLine Bom 427, and the
judgment passed by the Apex Court in Venigalla Koteswaramma vs. Malam
Pati Suryamba & Ors., (2021) 4 SCC 246, to contend that the burden of
proving the Will lies upon the propounder and not upon the person disputing
it. He states that the onus to disprove the Will cannot be placed on the
Petitioner herein on the first instance and the Petitioner does not have to
seek a decree of declaration for declaring the Will as void. He states that

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once the Petitioner has disputed the Will in her pleadings, it is for the
Respondent No.1 to either obtain Probate of the same or to prove the same
in the Suit if the Respondent No.1 intended to rely on the Will and the
Petition as framed claiming that the Testator has died in the state of
intestacy, is maintainable under Section 278 of the Indian Succession Act.

26. Learned Senior Counsel for the Petitioner further contends that mere
execution of the Will is not sufficient and the Will must be an operative
Will. He places reliance on Section 3(g) of the Hindu Succession Act which
defines intestacy to state that if the Will is void or incapable of taking effect,
it should be deemed that the Testator has died intestate. Learned Senior
Counsel for the Petitioner places reliance on the Judgment of the Apex
Court in Angurbala Mullick vs. Debabrata Mullick, 1951 SCC 420 &
Parmanand Ahuja vs. Satyadev Ahuja, 1972 ILR Delhi 682, to contend that
before a Court of law can determine whether a male Hindu has died intestate
or not, it will have to determine whether or not he has, as a matter of law,
left a valid Will which can be acted upon, and in accordance with which the
properties can devolve upon the successors of the deceased. He, therefore,
states that the present Petition, as framed, is maintainable. He submits that
Respondent No. 1 is at liberty to propound the alleged Will and establish its
validity in the present proceedings, which were instituted at an earlier point
of time. It is contended that the pendency of any rival testamentary claim
does not preclude this Court from continuing with the present Petition.
Accordingly, he prays that this Court may proceed with the adjudication of
the present Petition and, in the interim, appoint an administrator pendente
lite of the estate pending final determination of the testamentary issues.

27. Per contra, learned Senior Counsel appearing for the Respondent

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No.1 contends that the present Petition is not maintainable in law. He places
reliance on Sections 218, 232, 276 and 278 of the Indian Succession Act to
contend that once the existence of a Will is discovered, any grant of Letters
of Administration on the footing of intestacy under Section 278 would
necessarily stand liable for revocation under Section 263 of the Indian
Succession Act. It is submitted that in such circumstances, a petition seeking
Letters of Administration without the Will annexed cannot be permitted to
continue, particularly when a separate proceeding has already been instituted
seeking Letters of Administration with the Will annexed under Section 276
of the Indian Succession Act in relation to the same estate. Learned Senior
Counsel further contends that a Petition under Sections 218 and 278 founded
on intestacy, while simultaneously acknowledging the existence of a
testamentary document, is contrary to the scheme of the Indian Succession
Act and is therefore liable to be rejected at the very threshold. It is urged that
once a Will has surfaced, the estate cannot be treated as intestate until the
validity of the Will is adjudicated in accordance with the provisions of the
Indian Succession Act. It is further submitted that questions relating to the
due execution, genuineness or validity of the Will fall exclusively within the
jurisdiction of a testamentary court in proceedings for grant of probate or for
Letters of Administration with the Will annexed, and cannot be adjudicated
in proceedings instituted on the basis of intestacy. Learned Senior Counsel
emphasises that proceedings for probate or for grant of Letters of
Administration with the Will annexed operate in rem, and the final
determination therein conclusively establishes the validity or otherwise of
the Will as against the world at large. Accordingly, it is contended that such
issues cannot be incidentally examined in a Petition seeking Letters of

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Administration without the Will annexed, where the very foundation of the
proceeding is the assertion of intestacy, despite the acknowledged existence
of a testamentary instrument.

28. Learned Senior Counsel appearing for the Respondent No.1 also
states that the Petition as filed by the Petitioner herein before the High Court
of Judicature at Bombay, is completely contrary to the Bombay High Court
(Original Side) Rules, 1980. He has drawn the attention of this Court to Rule
376 contained in Chapter XXVI of the Bombay High Court (Original Side)
Rules, 1980 which deals with Testamentary and intestate Jurisdiction to state
that an application for letters of administration in cases where the deceased
has died intestate shall be made by a Petition and that the Petition shall be in
Form No. 103 with such variations as the circumstances of each case may
require and shall be accompanied by the administrator‟s oath which is in
Form No. 104. He states that Form No.103, which gives the Proforma of a
petition for Letters of Administration, states that the Petition requires a
specific averment that the deceased died intestate and that due and diligent
search has been made for a Will but none has been found and Form No.104,
which is the format for administrator‟s oath, states that it has to be solemnly
affirmed that the deceased died without leaving a Will. He, therefore, states
that the Petition, as filed by the Petitioner before the High Court of
Judicature at Bombay, is not in accordance with the Form as mentioned in
the Bombay High Court (Original Side) Rules, 1980 and, therefore, the
Petition must be returned back.

29. Challenging the averments made by the learned Senior Counsel for
the Respondent No.1, learned Senior Counsel appearing for the Petitioner
states that reliance placed by the learned Senior Counsel on Section 232 of

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the Indian Succession Act is misplaced and erroneous, as Section 232 of the
Indian Succession Act only enables a universal or residuary legatee to file
for Letters of Administration with the Will annexed, where the Will has to
be proved. He states that in the present case, it is the case of the Petitioner
that the deceased has died intestate and the so-called Will is not a valid Will
in accordance with law and, therefore, this argument cannot affect the
maintainability of the present Petition and that the present Petition would
have to be considered as framed and it is for the Respondent No.1 to prove
the correctness or otherwise of the Will in the present Petition, which has
been filed in prior point of time. He further submits that Section 240 of the
Indian Succession Act expressly enables the Court to grant Letters of
Administration even in circumstances where it is asserted that a Will had
been executed by the testator, but the same is not presently forthcoming or
traceable. It is contended that, until such time as the alleged Will surfaces
and is duly proved in accordance with law, the estate cannot remain un-
administered, and therefore, the Court is empowered to grant Letters of
Administration for the preservation and management of the estate pending
proof or production of the testamentary instrument. Learned Senior Counsel
appearing for the Petitioner states that the Testamentary Petition filed by
Respondent No.1 before the High Court of Rajasthan at Jodhpur, under
Section 276 of the Indian Succession Act, seeking issuance of Letters of
Administration with the Will annexed, was filed at a later point of time and
the correctness or otherwise of the Testamentary instrument, i.e. the Will,
will be decided in the present Petition, which was filed prior to the filing of
the Testamentary Petition before the High Court of Judicature for Rajasthan
at Jodhpur.

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30. Learned Senior Counsel appearing for the Petitioner also contends
that the argument of the learned Senior Counsel for the Respondent No.1
that the Petition, as filed before the High Court of Judicature at Bombay, is
not in the prescribed format, is without any basis. He submits that in
paragraph 11 of the present Petition, the Petitioner has expressly stated that
she has knowledge of two alleged testamentary writings, though she disputes
their validity and contends that no valid Will exists in law. He further
submits that Rule 376 of the Bombay High Court (Original Side) Rules,
1980 provides that a Testamentary Petition may be filed in Form No. 103
with such variations as the circumstances of each case may require.
According to him, the scope of such permissible variation is wide enough to
encompass situations like the present, where the Petitioner does not accept
the existence or validity of the alleged Will. It is therefore contended that,
even in a case where a testamentary instrument is alleged but is disputed or
treated as non-est in the eyes of law, the Petitioner is entitled to institute the
present Petition by asserting intestacy, leaving it open to the propounder of
the alleged Will to establish its validity in appropriate proceedings. He also
states that Forms cannot over-ride the provisions of the statute. He submits
that the Petitioner has approached the Court with clean hands, having
candidly disclosed her knowledge of a purported Will dated 07.02.2025, and
having also placed on record a copy of the said document, which was
received from Respondent No. 1 through WhatsApp. It is the specific case
of the Petitioner that no valid testamentary disposition exists in law, and that
the alleged Will is surrounded by suspicious circumstances and is therefore
invalid and unenforceable. On this basis, it is contended that the present
Petition, as framed on the footing of intestacy, is maintainable in law

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notwithstanding the existence of the disputed testamentary document. He
further submits that, in any event, the Petition was duly scrutinised,
numbered and notice was issued by the High Court of Judicature at Bombay,
and therefore, the contention advanced by learned Senior Counsel for
Respondent No. 1 that the Petition was not in conformity with the Bombay
High Court (Original Side) Rules, 1980, is untenable and liable to be
rejected.

31. Learned Senior Counsel for the Petitioner places reliance on Section
3(g) of the Hindu Succession Act which defines intestacy and state that a
person is deemed to die intestate in respect of property of which he or she
has not made a testamentary disposition capable of taking effect. He states
that the allegations in the Petition are of such nature which conclusively
points out that the Testator had died intestate as he was not capable of
executing a valid Will. He further submits that upon Transfer Petitions being
preferred, the Apex Court was pleased to transfer both testamentary
proceedings to this Court and directed that they be heard and decided
together. It is contended that such direction was issued in view of the fact
that both parties are seeking grant of Letters of Administration in respect of
the same estate, albeit on different foundations – one with the Will annexed
and the other on the footing of intestacy. Accordingly, it is submitted that
since the question of the validity and due execution of the alleged Will is a
common and central issue arising in both Petitions, and the subject-matter of
administration pertains to the same estate of the deceased, the proceedings
are liable to be heard and tried conjointly to avoid conflicting findings and
multiplicity of litigation.

32. Heard the learned Senior Counsels for the parties and perused the

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material on record.

33. It is well settled that proceedings for grant of probate or Letters of
Administration under the Indian Succession Act are proceedings in rem and
fall within the exclusive jurisdiction of the testamentary court. However, this
does not imply a total exclusion of the jurisdiction of civil courts under
Section 9 of the Code of Civil Procedure, 1908. Civil courts continue to
retain jurisdiction in matters relating to declaration of title, construction of
Wills, and other proprietary disputes arising out of succession. The bar
operates only to the limited extent that the validity and due execution of a
Will, for the purpose of grant or refusal of Probate or Letters of
Administration, must be adjudicated in accordance with the scheme of the
Indian Succession Act.

34. Before this Court proceeds to analyse the rival contentions, it is
necessary to reproduce the following provisions of the Indian Succession
Act :

“2. Definitions.

In this Act, unless there is anything repugnant in the
subject or context,–

(a) administrator means a person appointed by
competent authority to administer the estate of a
deceased person when there is no executor;

***

(f) probate means the copy of a will certified under the
seal of a court of competent jurisdiction with a grant of
administration to the estate of the testator;

***

(h) will means the legal declaration of the intention of
a testator with respect to his property which he desires
to be carried into effect after his death.

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***
Section 218. To whom administration may be granted,
where deceased is a Hindu, Muhammadan, Buddhist,
Sikh, Jaina or exempted person.–(1) If the deceased
has died intestate and was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina or an exempted person,
administration of his estate may be granted to any
person who, according to the rules for the distribution
of the estate applicable in the case of such deceased,
would be entitled to the whole or any part of such
deceased’s estate.

(2) When several such persons apply for such
administration, it shall be in the discretion of the Court
to grant it to any one or more of them.

(3) When no such person applies, it may be granted to
a creditor of the deceased.

***

Section 227. Effect of probate.–Probate of a will
when granted establishes the will from the death of the
testator, and renders valid all intermediate acts of the
executor as such.

***

Section 232. Grant of administration to universal or
residuary legatees.–When–

(a) the deceased has made a will, but has not
appointed an executor, or

(b) the deceased has appointed an executor who is
legally incapable or refuses to act, or who has died
before the testator or before he has proved the will, or

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an 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 of so much thereof as may be
unadministered.

***

Section 240. Administration until will produced.–
Where no will of the deceased is forthcoming, but there
is reason to believe that there is a will in existence,
letters of administration may be granted, limited until
the will or an authenticated copy of it is produced.

***

Section 263. Revocation or annulment for just cause.–
The grant of probate or letters of administration may
be revoked or annulled for just cause.

Explanation.–Just cause shall be deemed to exist
where–

(a) the proceedings to obtain the grant were defective
in substance; or

(b) the grant was obtained fraudulently by making a
false suggestion, or by concealing from the Court
something material to the case; or

(c) the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify
the grant, though such allegation was made in

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ignorance or inadvertently; or

(d) the grant has become useless and inoperative
through circumstances; or

(e) the person to whom the grant was made has wilfully
and without reasonable cause omitted to exhibit an
inventory or account in accordance with the provisions
of Chapter VII of this Part, or has exhibited under that
Chapter an inventory or account which is untrue in a
material respect.

Illustrations

(i) The Court by which the grant was made had no
jurisdiction.

(ii) The grant was made without citing parties who
ought to have been cited.

(iii) The will of which probate was obtained was forged
or revoked.

(iv) A obtained letters of administration to the estate of
B, as his widow, but it has since transpired that she
was never married to him.

(v) A has taken administration to the estate of B as if he
had died intestate, but a will has since been
discovered.

(vi) Since probate was granted, a later will has been
discovered.

(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the appointment
of executors under the will.

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(viii) The person to whom probate was, or letters of
administration were, granted has subsequently become
of unsound mind.

***

Section 273. Conclusiveness of probate or letters of
administration.–Probate or letters of administration
shall have effect over all the property and estate,
movable or immovable, of the deceased, throughout the
State in which the same is or are granted; and shall be
conclusive as to the representative title against all
debtors of the deceased, and all persons holding
property which belongs to him, and shall afford full
indemnity to all debtors, paying their debts and all
persons delivering up such property to the person to
whom such probate or letters of administration have
been granted:

Provided that probates and letters of administration
granted–

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time
of his death had a fixed place of abode situate within
the jurisdiction of such Judge, and such Judge certifies
that the value of the property and estate affected
beyond the limits of the State does not exceed ten
thousand rupees,

shall, unless otherwise directed by the grant, have like
effect throughout the other States.

The proviso to this section shall apply in India after the
separation of Burma and Aden from India to probates
and letters of administration granted in Burma and
Aden before the date of the separation, or after that

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date in proceedings which were pending at that date.

The proviso shall also apply in India after the
separation of Pakistan from India to probates and
letters of administration granted before the date of the
separation, or after that date in proceedings pending at
that date, in any of the territories which on that date
constituted Pakistan.

***

Section 276. Petition for probate.–(1) 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
Sections 237, 238 and 239, a copy, draft, or statement
of the contents thereof, annexed, and stating–

(a) the time of the testator’s death,

(b) that the writing annexed is his last will and testament,

(d) the amount of assets which are likely to come to the
petitioner’s hand, and

(e) when the application is for probate, that the petitioner
is the executor named in the will.

(2) In addition to these particulars, the petition shall
further state,–

(a) when the application is to the District Judge, that
the deceased at the time of his death had a fixed place
of abode, or had some property, situate within the

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jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that
the deceased at the time of his death had a fixed place
of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and
any portion of the assets likely to come to the
petitioner’s hands is situate in another State, the
petition shall further state the amount of such assets in
each State and the District Judges within whose
jurisdiction such assets are situate.

***

Section 278. Petition for letters of administration.–(1)
Application for letters of administration shall be made
by petition distinctly written as aforesaid and stating–

(a) the time and place of the deceased’s death;

(b) the family or other relatives of the deceased and their
respective residences;

(d) the amount of assets which are likely to come to the
petitioner’s hands;

(e) when the application is to the District Judge, and that
deceased at the time of his death had fixed a place of
abode, or had some property, situate within the
jurisdiction of the Judge; and

(f) when the application is to the District Delegate, that
the deceased at the time of his death had a fixed place of
abode within the jurisdiction of such Delegate.

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(2) Where the application is to the District Judge and
any portion of the assets likely to come to the
petitioner’s hands is situate in another State the
petition shall further state the amount of such assets in
each State and the District Judges within whose
jurisdiction such assets are situate.

***

Section 295. Procedure in contentious cases.–In any
case before the District Judge in which there is
contention, the proceeding shall take, as nearly as may
be, the form of a regular suit, according to the
provisions of the Code of Civil Procedure, 1908, in
which the petitioner for probate or letters of
administration, as the case may be, shall be the
plaintiff, and the person who has appeared to oppose
the grant shall be the defendant.”

35. Section 218 of the Indian Succession Act provides that if the deceased
has died intestate, then administration of his estate may be granted to any
person who, according to the rules for the distribution of the estate
applicable in the case of such deceased, would be entitled to the whole or
any part of such deceased’s estate and if there are more than one person who
apply for such administration, then it shall be in the discretion of the Court
to grant the Letters of Administration to any one or more of them.

36. Section 232 of the Indian Succession Act provides when the deceased
has made a Will, but has not appointed an executor, or the deceased has
appointed an executor who is legally incapable or refuses to act, or who has
died before the testator or before he has proved the Will, or the executor dies
after having proved the Will, but before he has administered all the estate of
the deceased, then an universal or a residuary legatee may be admitted to

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prove the Will, and letters of administration with the Will annexed may be
granted to such a person/persons of the whole estate, or of so much thereof
as may be un-administered.

37. Section 247 of the Indian Succession Act, which deals with
administration of the estate pending litigation, provides that pending any
Suit touching the validity of the Will of a deceased person or for obtaining
or revoking any Probate or any grant of Letters of Administration, the Court
may appoint an administrator and such a person shall take control of the
estate subject to the directions of the Court.

38. Section 263 of the Indian Succession Act gives the circumstances
where the grant of Probate or Letters of Administration may be revoked or
annulled. Illustration (v) of Section 263 provides that even if a Letters of
Administration is granted to a person as if the deceased has died intestate,
but if the Will is later on discovered then such Letters of Administration can
be revoked.

39. Section 273 of the Indian Succession Act provides that the Probate or
Letters of Administration shall have effect over all the property and estate
throughout the State in which the same is or are granted and is conclusive as
to the representative title against all debtors of the deceased, and all persons
holding property which belongs to him and, therefore, the grant of probate
or Letters of Administration is in rem.

40. Section 276 of the Indian Succession Act deals with the Petition for
probate or for Letters of Administration, with the Will annexed. Section 276
gives the particulars which have to be given along with the Petition and the
documents which have to be produced.

41. Section 278 of the Indian Succession Act deals with grant of Letters

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of Administration where there is no Will attached.

42. It is now trite law that the questions regarding grant of Probate of a
will or grant of Letters of Administration with or without a will are
determined exclusively by a Testamentary Court in a proceeding for grant of
Probate or Letters of Administration with the Will annexed and in
accordance with the provisions of the Indian Succession Act. The Apex
Court in Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507, while
holding that probate proceedings shall be conducted by a probate court in a
manner prescribed in the Indian Succession Act, has observed as under:

“15. In Ishwardeo Narain Singh v. Smt Kamta Devi
[(1953) 1 SCC 295 : AIR 1954 SC 280] this Court
held that the court of probate is only concerned with
the question as to whether the document put forward
as the last will and testament of a deceased person
was duly executed and attested in accordance with
law and whether at the time of such execution the
testator had sound disposing mind. The question
whether a particular bequest is good or bad is not
within the purview of the probate court. Therefore the
only issue in a probate proceedings relates to the
genuineness and due execution of the will and the
court itself is under duty to determine it and preserve
the original will in its custody. The Succession Act is
a self-contained code insofar as the question of
making an application for probate, grant or refusal of
probate or an appeal carried against the decision of
the probate court. This is clearly manifested in the
fascicule of the provisions of the Act. The probate
proceedings shall be conducted by the probate court
in the manner prescribed in the Act and in no other
ways. The grant of probate with a copy of the will
annexed establishes conclusively as to the
appointment of the executor and the valid execution
of the will. Thus it does no more than establish the

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factum of the will and the legal character of the
executor. Probate court does not decide any question
of title or of the existence of the property itself.

16. The grant of a probate by court of competent
jurisdiction is in the nature of a proceeding in rem.
So long as the order remains in force it is conclusive
as to the due execution and validity of the will unless
it is duly revoked as per law. It binds not only upon
all the parties made before the court but also upon all
other persons in all proceedings arising out of the will
or claims under or connected therewith. The decision
of the probate court, therefore, is the judgment in
rem. The probate granted by the competent court is
conclusive of the validity of the will until it is revoked
and no evidence can be admitted to impeach it except
in a proceeding taken for revoking the probate. In
Sheoparsan Singh v. Ramnandan Prasad Narayan
Singh [ILR (1916) 43 Cal 694 : AIR 1916 PC 78 : 43
IA 91] the Judicial Committee was to consider whether
the will which had been affirmed by a court of
competent jurisdiction, would not be impugned in a
court exercising original jurisdiction (civil court) in
suit to declare the grant of probate illegal etc. The
Privy Council held that the civil court has no
jurisdiction to impugn the grant of probate by the court
of competent jurisdiction. In that case the subordinate
court of Muzafarbad was held to have had no
jurisdiction to question the validity of the probate
granted by the Calcutta High Court. In Narbheram
Jivram Purohit v. Jevallabh Harjivan [AIR 1933 Bom
469 : 35 BLR 998 : 147 IC 362] probate was granted
by the High Court exercising probate jurisdiction. A
civil suit on the original side was filed seeking apart
from questioning the probate, also other reliefs. The
High Court held that when a probate was granted, it
operates upon the whole estate and establishes the will
from the death of the testator. Probate is conclusive

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evidence not only of the factum, but also of the validity
of the will and after the probate has been granted, it is
incumbent of a person who wants to have the will
declared null and void, to have the probate revoked
before proceeding further. That could be done only
before the probate court and not on the original side of
the High Court. When a request was made to transfer
the suit to the probate court, the learned Judge
declined to grant the relief and stayed the proceeding
on the original side. Thus it is conclusive that the court
of probate alone had jurisdiction and is competent to
grant probate to the will annexed to the petition in the
manner prescribed under the Succession Act. That
court alone is competent to deal with the probate
proceedings and to grant or refuse probate of the
annexed will. It should keep the original will in its
custody. The probate thus granted is conclusive unless
it is revoked. It is a judgment in rem.

17. We agree with Mr Chidambaram that the applicant
had consented to refer the dispute for arbitration of
dispute in the pending probate proceedings, but
consent cannot confer jurisdiction nor an estoppel
against statute. The other legatees in the will were not
parties to it. In A.R. Antulay v. R.S. Nayak [(1988) 2
SCC 602 : 1988 SCC (Cri) 372] when a Constitution
Bench directed the High Court Judge to try the
offences under the Prevention of Corruption Act with
which the petitioner therein was charged and the trial
was being proceeded with, he questioned by way of
writ petition the jurisdiction of this Court to give such
a direction. A Bench of seven judges per majority
construed the meaning of the word „jurisdiction‟.
Mukharji, J. as he then was, speaking per himself, Oza
and Natarajan, JJ. held that the power to create or
enlarge jurisdiction is legislative in character. So also
the power to confer a right of appeal or to take away a
right of appeal. The Parliament alone can do it by law

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and no court, whether superior or inferior or both
combined, can enlarge the jurisdiction of a court and
divest a person of his rights of appeal or revision.
Ranganath Mishra, J. as he then was, held that
jurisdiction comes solely from the law of the land and
cannot be exercised otherwise. In this country,
jurisdiction can be exercised only when provided for
either in the Constitution or in the laws made by the
legislature. Jurisdiction is thus the authority or power
of the court to deal with a matter and make an order
carrying binding force in the facts. Oza, J.
supplementing the question held that the jurisdiction to
try a case could only be conferred by law enacted by
the legislature. The Supreme Court could not confer
jurisdiction if it does not exist in law. Ray, J. held that
the Court cannot confer a jurisdiction on itself which is
not provided in the law. In the dissenting opinion
Venkatachaliah, J., as he then was, lay down that the
expression jurisdiction or prior determination is a
“verbal coat of many colours”. In the case of a
tribunal, an error of law might become not merely an
error in jurisdiction but might partake of the character
of an error of jurisdiction. But, otherwise, jurisdiction
is a „legal shelter‟ and a power to bind despite a
possible error in the decision. The existence of
jurisdiction does not depend on the correctness of its
exercise. The authority to decide embodies a privilege
to bind despite error, a privilege which is inherent in
and indispensable to every judicial function. The
characteristic attribute of a judicial act is that it binds
whether it be right or it be wrong. Thus this Court laid
down as an authoritative proposition of law that the
jurisdiction could be conferred by statute and this
Court cannot confer jurisdiction or an authority on a
tribunal. In that case this Court held that Constitution
Bench has no power to give direction contrary to
Criminal Law Amendment Act, 1952. The direction per
majority was held to be void.

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18. It is settled law that a decree passed by a court
without jurisdiction on the subject-matter or on the
grounds on which the decree made which goes to the
root of its jurisdiction or lacks inherent jurisdiction is
a coram non judice. A decree passed by such a court is
a nullity and is non est. Its invalidity can be set up
whenever it is sought to be enforced or is acted upon
as a foundation for a right, even at the stage of
execution or in collateral proceedings. The defect of
jurisdiction strikes at the very authority of the court to
pass decree which cannot be cured by consent or
waiver of the party. In Bahadur Singh v. Muni Subrat
Dass [(1969) 2 SCR 432] an eviction petition was filed
under the Rent Control Act on the ground of nuisance.
The dispute was referred to arbitration. An award was
made directing the tenant to run the workshop up to a
specified time and thereafter to remove the machinery
and to deliver vacant possession to the landlord. The
award was signed by the arbitrators, the tenant and the
landlord. It was filed in the court. A judgment and
decree were passed in terms of the award. On expiry of
the time and when the tenant did not remove the
machinery nor delivered vacant possession, execution
was levied under Delhi and Ajmer Rent Control Act. It
was held that a decree passed in contravention of
Delhi and Ajmer Rent Control Act was void and the
landlord could not execute the decree. The same view
was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal
[(1969) 1 SCC 59 : AIR 1970 SC 838] . In Ferozi Lal
Jain v. Man Mal [(1970) 3 SCC 181 : AIR 1970 SC
794] a compromise dehors grounds for eviction was
arrived at between the parties under Section 13 of the
Delhi and Ajmer Rent Control Act. A decree in terms
thereof was passed. The possession was not delivered
and execution was laid. It was held that the decree was
nullity and, therefore, the tenant could not be evicted.
In Sushil Kumar Mehta v. Gobind Ram Bohra (dead)

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through his Lrs. [(1990) 1 SCC 193 : JT 1989 (Suppl)
SC 329] the civil court decreed eviction but the
building was governed by Haryana Urban (Control of
Rent and Eviction) Act (11 of 1973). It was held that
the decree was without jurisdiction and its nullity can
be raised in execution. In Union of India v. Ajit Mehta
and Associates, Pune [AIR 1990 Bom 45 : (1989) 3
Bom CR 535] a Division Bench to which Sawant, J. as
he then was, a member was to consider whether the
validity of the award could be questioned on
jurisdictional issue under Section 30 of the Arbitration
Act. The Division Bench held that Clause 70 of the
contract provided that the Chief Engineer shall appoint
an engineer officer to be sole arbitrator and unless
both parties agree in writing such a reference shall not
take place until after completion of the works or
termination or determination of the contract. Pursuant
to this contract under Section 8 of the Act, an
arbitrator was appointed and award was made. Its
validity was questioned under Section 30 thereof. The
Division Bench considering the scope of Sections 8 and
20(4) of the Act and on review of the case-law held that
Section 8 cannot be invoked for appointment of an
arbitrator unilaterally but Section 20(4) of the Act can
be availed of in such circumstances. Therefore, the
very appointment of the arbitrator without consent of
both parties was held void being without jurisdiction.
The arbitrator so appointed inherently lacked
jurisdiction and hence the award made by such
arbitrator is non est. In Ghellabhai case [ILR 21 Bom
336] Sir C. Farran, Kt., C.J. of Bombay High Court
held that the probate court alone is to determine
whether probate of an alleged will shall issue to the
executor named in it and that the executor has no
power to refer the question of execution of will to
arbitration. It was also held that the executor having
propounded a will and applied for probate, a caveat
was filed denying the execution of the alleged will, and

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the matter was duly registered as a suit, the executor
and the caveatrix subsequently cannot refer the dispute
to arbitration, signing a submission paper, but such an
award made pursuant thereto was held to be without
jurisdiction.

19. In Gopi Rai case [AIR 1930 All 840 : 1930 ALJ
1584 : 128 IC 817] Sulaiman, J. as he then was,
speaking for the Division Bench held that the civil
court has no jurisdiction to allow the dispute relating
to the genuineness of a will in a probate proceedings
pending before him to be referred to the arbitration of
an arbitrator. He has got to be satisfied that the will is
a genuine document before the order of granting
probate is passed. He cannot delegate those functions
to a private individual and decide the point through
him. Similar was the view laid in Monmohini Guha
case [ILR 31 Cal 357 : 8 CWN 197] , Sarda Kanta Das
v. Gobinda Das [6 IC 912 : 12 CLJ 91] and Khela
Wati v. Chet Ram Khub Ram [AIR 1952 Punj 67 : 1952
Bh LR Punj 80] . When the plea of estoppel was raised,
Sulaiman, J. in Gopi Rai case [AIR 1930 All 840 :

1930 ALJ 1584 : 128 IC 817] held that “We cannot
hold that there is any estoppel against Gopi Rai on this
question of jurisdiction. That is a matter which we can
take into account only when ordering costs”. The
decision in Nalla Ramudamma v. Nalla Kasi Naidu
[AIR 1945 Mad 269 : (1945) 1 MLJ 396 : ILR (1946)
Mad 134] relied on by Shri Chidambaram does not
help his clients. Therein the question was the
matrimonial dispute. The arbitrator had decided at the
request of the parties and a decree was passed. It was
held that the dispute would come under Section 21 of
the Arbitration Act. The question of jurisdiction was
not raised therein. Equally the decision in Mt.
Mahasunder Kuer v. Ram Ratan Prasad Sahi [AIR
1916 Pat 382 : 35 IC 416 : 1 PLW 370] is also of little
assistance. The question of adoption, it was held,

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cannot be decided in the probate proceedings.

20. On a conspectus of the above legal scenario we
conclude that the probate court has been conferred
with exclusive jurisdiction to grant probate of the will
of the deceased annexed to the petition (suit); on
grant or refusal thereof, it has to preserve the original
will produced before it. The grant of probate is final
subject to appeal, if any, or revocation if made in
terms of the provisions of the Succession Act. It is a
judgment in rem and conclusive and binds not only
the parties but also the entire world. The award
deprives the parties of statutory right of appeal
provided under Section 299. Thus the necessary
conclusion is that the probate court alone has
exclusive jurisdiction and the civil court on original
side or the arbitrator does not get jurisdiction, even if
consented to by the parties, to adjudicate upon the
proof or validity of the will propounded by the
executrix, the applicant. It is already seen that the
executrix was nominated expressly in the will and is a
legal representative entitled to represent the estate of
the deceased but the heirs cannot get any probate
before the probate court. They are entitled only to
resist the claim of the executrix of the execution and
genuineness of the will. The grant of probate gives
the executrix the right to represent the estate of the
deceased, the subject-matter in other proceedings. We
make it clear that our exposition of law is only for the
purpose of finding the jurisdiction of the arbitrator and
not an expression of opinion on merits in the probate
suit.”

(emphasis supplied)

43. Part IX of the Indian Succession Act deals with Probate, Letters of
Administration and administration of assets of deceased. Section 217 of the
Indian Succession Act specifically states that all grants of Probate and

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Letters of Administration with the Will annexed and the administration of
the assets of the deceased in cases of intestate succession shall be carried out
in accordance with the provisions of Part IX of the Indian Succession Act.

44. The scheme of the Indian Succession Act distinguishes between cases
of intestate succession and testamentary succession. Where a person dies
intestate, the grant of Letters of Administration serves the purpose of
enabling proper administration and preservation of the estate pending
determination of rights of succession. In contrast, where a testamentary
instrument is propounded, the court is required to examine the due execution
and validity of such instrument in accordance with the statutory procedure.

45. At this juncture, it is pertinent to highlight the difference in language
employed in Sections 276 and 278 of the Indian Succession Act. In an
Application filed under Section 276 of the Indian Succession Act, which is
an Application for grant of probate or Letters of Administration with a Will
annexed needs the following averments:

“a) the time of the testator‟s death,

b) that the writing annexed is his last Will and
testament,

c) that it was duly executed,

d) the amount of assets which are likely to come to the
petitioner‟s hands, and

e) when the application is for probate, that the
petitioner is the executor named in the Will.”

46. On the other hand, an Application under Section 278 of the Indian
Succession Act which is for grant of Letters of Administration which applies

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in a case of intestacy requires the following averments:

“a) the time and place of the deceased‟s death;

b) the family or other relatives of the deceased, and
their respective residences;

c) the right in which the petitioner claims;

d) the amount of assets which are likely to come to the
petitioner‟s hands;

e) when the application is to the District Judge, that
the deceased at the time of his death had a fixed place
of abode, or had some property, situate within the
jurisdiction of the Judge; and

f) when the application is to a District Delegate, that
the deceased at the time of his death had a fixed place
of abode within the jurisdiction of such Delegate.”

47. Under Section 276 of the Indian Succession Act, the Applicant who is
seeking Probate of the Will or an Applicant seeking Letters of
Administration on the basis of the Will has to prove it in accordance with
the requirements of the Indian Succession Act read with Indian Evidence
Act, 1872 or Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), as the case may
be. Whereas, in an Application under Section 278 of the Indian Succession
Act, the Applicant has to show in what capacity he is claiming to administer
the estate of the deceased and how that Applicant is the most suitable to
administer the assets of the deceased, till the assets are distributed in
accordance with the succession law applicable to the parties.

48. It is well settled that in proceedings for grant of Letters of
Administration, the Court is primarily concerned with determining whether
the applicant is a fit and proper person to be entrusted with the

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administration of the estate of the deceased till the estate is distributed to the
legatee of the deceased in accordance with the applicable laws. Such
proceedings are summary in nature, and therefore intricate or complex
questions of title or proprietary rights are not ordinarily amenable to
adjudication within the limited scope of such testamentary jurisdiction.

49. Since there is no Will produced in a Petition under Section 278 of the
Indian Succession Act, there is no question of proving the Will under the
said proceedings. The Will can be proved only in a Petition under Section
276 of the Indian Succession Act and not under Section 278 of the Indian
Succession Act as the requirements of the ingredients applicable under
Section 276 and 278 of the Indian Succession Act are different.

50. Further, Section 263 of the Indian Succession Act states that even if
Letters of Administration is granted under Section 278 of the Indian
Succession Act, it can be revoked or annulled for a „just cause‟. The
explanation to Section 263 of the Indian Succession Act gives the instances
where „just cause‟ is deemed to exist. The illustrations under the said
Section also give a fair idea as to under what all circumstances, powers
under Section 263 of the Indian Succession Act can be invoked. As rightly
stated by the learned Counsel for the Respondent No.1 that if a Letters of
Administration stands granted under Section 278 of the Indian Succession
Act, it can be revoked under Section 263 of the Indian Succession Act, when
the Will surfaces. Thus, it can be discerned that if an Application for grant
of Letters of Administration has been filed without a Will under Section 278
of the Indian Succession Act and during the pendency of such an
Application, if an Application for Letters of Administration has been filed
with a copy of the Will annexed thereto, in such case the validity of the Will

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is ordinarily adjudicated in proceedings seeking probate or grant of Letters
of Administration with the Will annexed.

51. A Co-ordinate Bench of this Court in Administrator General v. State,
2016 SCC OnLine Del 6407, while dealing with the scope of proceedings
under Indian Succession Act, has observed as under:

“58. …..

(B) Though in these proceedings Issue No. 3 aforesaid
was framed but it is the settled position in law that the
Court of probate is only concerned with the question,
whether the document put forward as the last Will
and testimony of the deceased person was duly
executed and attested in accordance with law and
whether at the time of such execution, the testator
had sound disposing mind (see Ishwardeo Narain
Singh v. Srimati Kamta Devi AIR 1954 SC 280). The
same is the position in a proceeding seeking letters of
administration. The Court in such proceedings also is
concerned only with, whether the person seeking
letters of administration is a fit person to be granted
the letters of administration of the estate of the
deceased (see Bai Parvatibai v. Rahunath Lakshman
AIR 1941 Bom 60, Mahadeo Shankar Shinde v.

Maruti Shankar Shinde AIR 2003 Bom 312 and
Delhi Development Authority v. Vijaya C. Gurshaney
(2003) 7 SCC 301). Neither of the said proceedings is
concerned with, what was the estate of the deceased
Smt. Dropadi Devi, whether the bequest is bad or not
or amongst whom is the estate to be distributed. The
Court in such proceedings does not enter into the
question of title to the property. Reference in this
regard can be made to Leelawati Singh v. State (1998)
75 DLT 694, Anjan Kumar Singhi v. Ranjan Kumar
Singhi (2011) 126 DRJ 56 (DB), Ramchandra
Ganpatrao Hande alias Handege v. Vithalrao Hande
AIR 2011 Bom 136 and Ganesh Mohapatra v.

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Udaynath Mohapatra. Such proceedings are summary
in nature and complicated questions of title cannot be
properly conducted in summary proceedings. The
question whether the objectors are related to the
deceased Smt. Dropadi Devi as agnate is a
complicated question of relationship which could not
have been properly adjudicated in these proceedings.”

(emphasis supplied)

52. In the present case, two parallel testamentary proceedings have been
instituted in respect of the estate of the deceased. The first has been initiated
by the Petitioner before the High Court of Judicature at Bombay, seeking
grant of Letters of Administration on the ground of intestacy, i.e., without
the Will being annexed. The second proceeding has been instituted by
Respondent No. 1 before the High Court of Judicature for Rajasthan at
Jodhpur, seeking grant of Letters of Administration with the Will annexed.
In the said proceeding, it is asserted that it was the express wish of the
testator/deceased that his estate be administered by Respondent No. 1, and
the relief sought therein is founded upon the validity and due execution of
the purported Will.

53. The short question that arises for consideration is whether the Petition
filed by the Petitioner before the High Court of Judicature at Bombay
seeking grant of Letters of Administration on the ground of intestacy is
maintainable in circumstances where the Petitioner has herself
acknowledged the existence of a Will, a copy whereof has been annexed to
the Petition, can continue after a Will has surfaced and a Letters of
Administration is being sought on the basis of that Will.

54. The Petitioner, while disputing the validity of the said testamentary

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instrument, has contended that the testator/deceased lacked the requisite
testamentary capacity owing to his alleged mental and physical condition,
and that the purported Will is surrounded by suspicious circumstances,
including the allegation that the deceased was under the complete control
and influence of Respondent No. 1 at the relevant time, an issue which now
can be considered in TEST.CAS. 4/2026. In the opinion of this Court, the
above question must be answered in the negative.

55. The present petition proceeds on the premise that the alleged Will is
invalid. However, the validity of a testamentary instrument is required to be
adjudicated within appropriate proceedings in accordance with the statutory
framework.

56. When a person dies intestate, Letters of Administration may be
granted to a suitable person to administer the estate of the deceased until the
property devolves upon the lawful heirs in accordance with law. However,
where the deceased has left behind a Will, the testamentary instrument must
be proved in the proceedings wherein it is propounded, and not in any
collateral or parallel proceedings founded on intestacy.

57. In the opinion of this Court, once a Petition seeking Letters of
Administration with the Will annexed has been instituted, the question of the
due execution, genuineness and validity of the Will must be adjudicated
within those proceedings, wherein the testamentary instrument is
propounded. The Will cannot be proved or disproved in proceedings
instituted on the basis of intestacy, i.e. in a Petition seeking Letters of
Administration without the Will annexed.

58. Although the Will does not name an executor, the Respondent No. 1,
being the universal legatee under the alleged Will, is competent in law to

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propound and prove the Will. Consequently, the present Petition, as framed
i.e. seeking grant of Letters of Administration without seeking any
declaratory relief regarding the invalidity of the Will cannot be entertained,
particularly when another testamentary proceeding has already been
instituted in respect of the same estate with the Will annexed. The mere
assertion that a testamentary instrument is invalid does not render the estate
intestate, since intestacy arises only upon failure to establish a valid
testamentary disposition.

59. As stated earlier, this Court may derive guidance from Section 263 of
the Indian Succession Act, which provides that a grant of probate or Letters
of Administration may be revoked or annulled for “just cause.” The
explanation appended to the said provision enumerates circumstances in
which „just cause‟ shall be deemed to exist. In particular, explanation (d) to
the said provision contemplates situations where the grant has become
useless and inoperative due to subsequent events, or where it has been
obtained fraudulently by false suggestion or by concealment of material
facts. Further, Illustration (v) to Section 263 exemplifies a case where
Letters of Administration as granted on the footing that the deceased died
intestate, but a Will is subsequently discovered. In such circumstances, the
earlier grant is liable to be revoked upon due proof of the Will.

60. Applying the said statutory analogy to the present case, it follows that
if a grant of Letters of Administration made on the premise of intestacy is
liable to be revoked upon the subsequent proof of a Will, no useful purpose
would be served in permitting parallel continuation of proceedings founded
on intestacy, particularly when another testamentary proceeding has already
been instituted for the same estate on the basis of the alleged Will. The

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legislative scheme thus militates against the continuation of proceedings
premised on intestacy where the existence and validity of a Will is the
subject matter of adjudication in contemporaneous testamentary
proceedings. The illustration relating to discovery of a Will after grant on
intestacy underscores the legislative intent to avoid multiplicity of
inconsistent grants. This statutory principle reinforces the need for careful
judicial scrutiny where competing testamentary claims are pending, so as to
ensure that administration of the estate proceeds in a coherent and legally
sustainable manner.

61. Further, the judgments relied upon by learned Senior Counsel for the
Petitioner, in support of the contention that a specific prayer for declaration
is not mandatory, are distinguishable on facts. In Lalitkumar (supra), the
proceedings arose out of a suit for partition, wherein the defendants sought
to rely upon a Will to defeat the claim of the Plaintiff. Although the Plaintiff
therein asserted that the Will was void ab initio, no formal relief seeking a
declaration to that effect had been prayed. In that context, the Division
Bench held that the onus of proving the Will rested upon the party
propounding it, namely the Defendant. In such circumstances, the burden of
proving the Will rested upon the party propounding it. Testamentary
proceedings under the Indian Succession Act stand on a different footing, as
they are specifically designed for adjudication of the validity of testamentary
instruments. Consequently, while the principle relating to burden of proof
remains relevant, the procedural context in which such burden is to be
discharged differs materially.

62. Similarly, the Judgment in Sambhaji Vishnu Kharat (supra) &
Venigalla Koteswaramma (supra) arose in the context of suits for partition

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wherein a Will surfaced during the course of proceedings, and were not
proceedings instituted under the Indian Succession Act. As observed earlier,
the proof or disproof of a testamentary instrument must be undertaken
strictly in accordance with the provisions of the Indian Succession Act,
which governs the grant of Probate or Letters of Administration, both in
cases of testamentary succession as well as intestacy.

63. In view of the aforementioned judgments, the contention advanced by
learned Senior Counsel for the Petitioner that the Will can be proved in the
present Petition, which has been instituted without the Will annexed and on
the premise of intestacy, cannot be accepted. The validity of the Will can be
adjudicated only in the Petition filed by Respondent No. 1, wherein the
testamentary instrument has been placed on record.

64. Since a testamentary instrument can be proved only in accordance
with the provisions of the Indian Succession Act, the grant of probate or
Letters of Administration with the Will annexed is the statutory mechanism
for determining the due execution and validity of a Will. However, a decree
declaring a Will to be invalid, void, or vitiated by suspicious circumstances
can be granted only by a competent civil court in appropriate proceedings
instituted for that purpose.

65. In such cases, a person alleging that the Will is bad in law or
unenforceable must seek declaratory relief by way of a civil Suit, and not
through proceedings under the Indian Succession Act, which are confined to
the limited question of grant or refusal of probate or Letters of
Administration. The Indian Succession Act does not contemplate initiation
of independent proceedings solely for obtaining a declaration regarding the
invalidity of a Will. Further, such relief must be sought in a properly

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constituted civil action.

66. Consequently, while a Will may ultimately be proved or disproved in
testamentary proceedings, a substantive declaration as to its invalidity at the
instance of a party alleging infirmity can only be adjudicated in a civil Suit,
and not within the summary framework of proceedings under the Indian
Succession Act.

67. A co-ordinate Bench of the Bombay High Court in Bindia Kriplani v.
Naresh Nathulal Pal, 2018 SCC OnLine Bom 2005, while dealing with two
Petitions, one for grant of probate of a Will and the other for grant of Letters
of Administration without annexing the Will, for the very same estate, held
as under:

“2. It seems that Balakrishna died leaving a Will dated
28th September 2010. His executors, one Rakesh
Kumar Jhunjhunwala and Bindia Kripalani sought
Probate to that Will. In his Will, Balakrishna said that
his daughter, Urvashi, unmarried, was unable to look
after herself. The Will said that she suffered from
severe mental health conditions. She was the sole
legatee of his entire estate. The Will placed the
responsibility on the executors : if two doctors certified
to Urvashi’s capability, the executors and trustees of
Balakrishna’s estate and Will would hand over the
corpus of his estate and all accretions to her. The
Testamentary trust would thus then end. Urvashi
herself filed a Testamentary Petition No. 1645 of 2013
seeking Letters of Administration without Will annexed
claiming to be the sole heir and therefore solely
entitled to her father’s, Balakrishna’s, estate.

3. The two matters were listed together on 13th
October 2014 when, and I say this with great
responsibility, matters took an exceedingly strange
turn. Neither Petition was contested. Neither Petition

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was being tried. There were no Defendants. There were
no caveats. No issues had been framed. The learned
Single Judge thought it fit to consider which of these
two claims, i.e. the one for Probate or the one for
Letters of Administration as on intestacy should be
preferred. Urvashi was subjected to a medical
examination under some previous orders and those
reports were read into the matter by the Court. Then
the Court put some questions to Urvashi. She was
given some stationery and made to write out some
material. On this the Court came to the conclusion that
she was a person of truth as also a person in
knowledge of the estate of the deceased; and that her
firmness in wanting to deal with properties herself was
brought out „loud and clear‟ before the Court. As both
Petitions covered the same estate, they seemed to have
been jurisprudentially telescoped in a manner that I
think is not only completely impermissible but renders
vulnerable the order itself as being per incuriam and
contrary to the provisions of the Indian Succession Act,
1925 (not one of which is noted in the order). To begin
with Section 213 provides that no right as an executor
or legatee can be established in any Court of Justice
unless a Court of competent jurisdiction has granted
probate of the Will under which the right is claimed or
granted. Section 218 provides for persons to whom
administration may be granted on intestacy. Section
222 provides for grant of probate only to executor
appointed under the Will. Thus, if Urvashi wanted to
contest the Will — and she undoubtedly had a
caveatable interest — she ought to have filed (or been
allowed to file) a caveat to oppose the Probate
Petition. Indeed, on the Court’s finding that she was
„capable‟ and a „person of truth‟, this was the only
option available to the Court. Instead, the Court
summarily dismissed the Probate Petition on the
ground that since the executors did not claim any part
of the estate therefore the Probate Petition would stand

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dismissed. Letters of Administration were thus directed
to be issued to Urvashi.

4. There are very many things in this order that in my
view simply could not have been done. A Will disrupts
the normal line of succession; otherwise we would
have no need for it. The fact that it did not in this case
is irrelevant. In the scheme of the Succession Act,
Probate is accorded a preferential status, for this very
reason. Further, title passes through the executor. It
is the duty of the executor to apply for Probate of the
Will of which he or she is appointed as such. Letters
of Administration simpliciter proceed on the basis of
intestacy, i.e. that there is no Will. Where there is a
contest between a Petition for Probate or Petition for
Letters of Administration, the Petition for Letters of
Administration cannot be decided nor can a grant be
issued unless the Petition for Probate is dismissed,
i.e., the Will is not ‘proved in its solemn form’. This
may happen on default or after trial; that makes no
difference. A Probate Petition blocks a petition for
Letters of Administration. On its own the Probate
Petition in question would have proceeded
departmentally to a grant, since none opposed it.
Under no circumstances therefore, until the
Testamentary Petition for Probate was disposed of in
accordance with law, could the Petition for Letters of
Administration have been taken up; and since the
Probate Petition was bound to result in a grant, the
Testamentary Petition for Letters of Administration
had to be dismissed as a matter of routine course. It
was emphatically not for the Court to decide which of
the two petitions should be „preferred‟. The
testamentary court has no such discretion at all. It was
for the deceased who made the Will to decide how and
in what circumstances his estate would devolve. The
role of the Court was to ensure that Probate was
granted to that Will in the manner required by law

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upon Probate being sought.”

(emphasis supplied)

This Court is in agreement with the above observations.

68. Further, the Apex Court in Chiranjilal Shrilal Goenka (supra) has
observed as under:

“13. Section 276 provides the procedure to obtain
probate, namely, — (1) application for probate … with
the will annexed, shall be made by a petition distinctly
written in English … with the will or copy, as the case
may be, stating the particulars and the details
mentioned in clauses (a) to (e) and further details
provided in sub-sections (2) and (3), the mention of the
details whereof are not material for the purpose of this
case. The petition shall be verified in the manner
prescribed under Section 280 and also further to be
verified by at least one of the witnesses to the will in
the manner and to the effect specified therein. The
Caveator is entitled to object to its grant by operation
of Section 284 …. When it is contested Section 295
directs that probate proceedings shall take, as nearly
as may be, the form of a regular suit, according to the
provisions of CPC and the petitioner for probate …
shall be the plaintiff and the person who had appeared
to oppose the grant shall be the defendant. Section 217
expressly provides that save as otherwise provided by
this Act or by any other law for the time being in force,
all grants of probate … with the will annexed … shall
be made or carried out, as the case may be, in
accordance with the provisions of Part IX. Section 222
declares that (1) Probate shall be granted only to an
executor appointed by the will. (2) The appointment
may be expressed or by necessary implication Section
223 prohibits grant of probates to the persons specified
therein. Section 224 gives power to appoint several
executors. Section 227 declares the effect of probate
thus: “Probate of a will when granted establishes the

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will from the death of the testator, and renders valid all
intermediate acts of the executor as such.” Section 248
envisages grant of probate for special purposes,
namely, “if an executor is appointed for any limited
purpose specified in the will, the probate shall be
limited to that purpose, and if he should appoint an
attorney … with the will annexed, shall be limited
accordingly”.”

69. Applying the above-said observations to the facts of the present case
wherein Letters of Administration has been sought on the premise as if the
testator has died intestate, this Court is of the opinion that the present
proceedings cannot proceed further.

70. Yet another co-ordinate Bench of the Bombay High Court in Peter
John D’Souza v. Armstrong Joseph D’Souza, 2014 SCC OnLine Bom 436,
while dealing with a Petition under Section 263 of the Indian Succession Act
for setting aside the Letters of Administration as the Will surfaced after
grant of Letters of Administration, has observed as under:

“5. In paragraph 3 of the said petition, the respondent
has averred that the said deceased died intestate and
due and diligence search had been made for a Will but
none had been found. On the premise that the said
deceased died intestate and had not executed a Will,
the respondent, who is the grandson of the said
deceased, in the said petition prayed for letters of
administration in respect of the estate of the said
deceased. There was no opposition to the said petition.
This Court accordingly issued a grant, i.e. the letters of
administration in favour of the respondent in respect of
the said deceased on 31-3-2011.

***

16. In catena of decisions of the Supreme Court and

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this Court, it is held that a party who has no
caveatable interest or even a slightest interest in the
property of the deceased and a party who claims
interest adverse to the interest of the deceased testator
cannot maintain a caveat. The Testamentary Court
does not decide the title in respect of the property of a
deceased. But insofar as the claim of the petitioners
that they have interest in some of the properties which
were the subject-matter of the petition for letters of
administration and those letters of administration
could not have been granted is concerned, in my view,
this Court cannot decide such an issue of title in this
petition for revocation nor has decided the issue of title
in the petition filed for letters of administration by the
respondent. Such issues can be adjudicated by a Civil
Court.

17. Be that as it may, in view of the fact that it is not in
dispute that the deceased had left a Will in the year
1966, such fact is not having been disputed at least
today by the respondent, whether such grant issued by
this Court on the premise that the said deceased died
intestate can be revoked suo motu or not?

18. On a conjoint reading of „just cause‟ described in
Clauses (b) and (c) of section 263 of the Act, it is clear
that if a grant is obtained fraudulently by making a
false suggestion or by concealing from this Court
something material to the case or the grant is obtained
by means of an untrue allegation of fact essential in
point of law to justify the grant, though such allegation
was made in ignorance or inadvertently, such grant
can be revoked on such just cause described in the
explanation to section 263.

19. Even if the argument of Mr. Kumbhakoni, learned
senior counsel is considered that on the date of filing

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of the petition for letters of administration, the
respondent was not aware of any such Will left by the
deceased testator and thus such statement came to be
made in the petition for letters of administration is
accepted, in view of the fact that there is no dispute
that the said deceased left a Will and/or the same is
discovered subsequently, such grant is liable to be
revoked under section 263(b) and (c) of the Act. A
conjoint reading of Illustrations (v) and (vi) to section
263 of the Act makes it clear that even after the
administration of the estate, if the Will is discovered
subsequently, such grant is liable to be revoked.

***

21. In my view, the whole premise of obtaining the
letters of administration was that the deceased died
intestate and had not left any Will and on that ground
the petition for letters of administration came to be
filed. If the petitioners would have disclosed the
existence of the Will of the said deceased, such
petition for letters of administration on the premise
that the deceased died intestate would not have been
even maintainable. In my view, the respondent has
suppressed the existence of the Will of the deceased
and has made false statement in the petition. In any
event, in view of the discovery of the Will, grant
deserves to be revoked on that ground also.”

(emphasis supplied)

71. In similar circumstances as the present case, a co-ordinate Bench of
Karnataka High Court in M.A.I. Kovoor v. Thomas IPE Kovoor (Jr.), 2016
SCC OnLine Kar 8631, while dealing with two Petitions for grant of
Letters of Administration – one on the ground that the testator has passed
away without a Will and the other that a Will has surfaced later on, after
quoting various provisions has held as under:

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“16. In view of the aforesaid legal provisions and the
rival contentions raised by both sides, this Court is of
the opinion that the present petition under Section 278
for grant of letter of administration to the petitioner
deserves to be rejected but at the same time, these
proceedings are not required to be converted into a
regular trial for grant of probate to the respondents
who have produced the unregistered Will of the
deceased dated 4-1-2011 through Ms. Reena Puri. The
reasons are as follows:

Section 278 of the Act, as stated above, deals only with
the grant of letter of administration in the case of
intestate succession provided in Part V of the Act of
1925, whereas Part VI of the Act deals with
testamentary succession. The present is not a case
where Letters of Administration is sought with a copy
of Will annexed, but the petitioner has come with a
clear case that the deceased Elizabeth had died
intestate. Annexure-B Will annexed by the petitioner is
not the basis for claiming Letters of Administration but
more to lay a challenge to it in advance, which was
quite irrelevant while filing a petition under Section
278 of the Act. But when a contention is raised against
a petition under Section 278 of the Act with a original
but unregistered Will of the deceased produced before
the Court, the provisions of Part v providing for
intestate succession becomes inapplicable. The
petitioner had filed this petition under Section 278 of
the Act based on her right of share in the estate of the
deceased on the basis of Section 47 of the Act which
provides for an intestate death and the person
concerned who died has left neither any lenial
descendants nor father nor mother but such a right of
share in the estate itself cannot be claimed by seeking a
Letters of Administration under Section 278 of the Act.

The moment a Will of the deceased is brought before
the Court, there are two options before the Court : (I)

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either to allow the person producing the said Will to
prove the same and obtain a probate in respect of the
said Will by converting the proceeding into a regular
trial in accordance with the provisions of CPC as
provided under Section 295 of the Act quoted above;

or (II) dismiss the petition under Section 278 of the
Act for grant of letter of administration of estate of
deceased dying intestate and leave the parties free to
claim their share in the estate of the deceased either
by way of a partition suit of by proving the Will in
appropriate proceedings. This Court would adopt the
second option, as this petition cannot be converted
into a trial of a civil suit, which is a matter of original
jurisdiction before a District Court.”

(emphasis supplied)

72. It is pertinent to mention that Section 295 of the Indian Succession
Act also assumes critical significance in the present case. The provision
mandates that where a testamentary proceeding becomes contentious, the
same shall take, as nearly as may be, the form of a regular civil suit. The
legislative intent underlying this provision is to ensure that disputes relating
to the due execution, genuineness and validity of a testamentary instrument
are adjudicated in a structured adversarial framework, with full opportunity
to the parties to lead evidence. Once such contentious proceedings are
instituted, the adjudication of testamentary validity must ordinarily be
confined to those proceedings alone, so as to avoid parallel and potentially
conflicting determinations concerning the same estate.

73. In the present case, Respondent No.1 has already instituted
proceedings propounding the alleged Will. In the present Petition, the
Petitioner alleges that at the relevant time, the deceased was suffering from
serious medical conditions affecting his physical and cognitive faculties and

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SINGH
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was therefore not competent to execute a valid testamentary instrument. The
dispute regarding the validity of the said Will, has thus assumed a
contentious character within the meaning of Section 295 of the Indian
Succession Act. Consequently, the statutory scheme contemplates that the
issue of testamentary validity be adjudicated in the said proceedings, which
are required to proceed in the nature of a civil suit. Permitting adjudication
of the same issue in parallel proceedings founded on intestacy would run
contrary to the legislative scheme and may result in inconsistent findings.

74. The only surviving question that remains for consideration in the
present Petition is whether the proceedings ought to be kept in complete
abeyance pending final adjudication of the Petition filed by Respondent
No.1, namely TEST.CAS. 4/2026. In the opinion of this Court, no useful
purpose would be served by keeping the present Petition in abeyance until
the testamentary proceedings in TEST.CAS. 4/2026 is finally decided, for
the reason that the Court is vested with powers under Sections 247 and 263
of the Indian Succession Act, to appoint an administrator pendente lite for
the management and preservation of the estate during the pendency of
testamentary proceedings.

75. In the proceedings in TEST.CAS. 4/2026, Respondent No.1 will be
required to propound and prove the alleged Will in accordance with law. In
the event that Respondent No.1 succeeds in establishing the due execution
and validity of the Will, Letters of Administration with the Will annexed
would be granted in his favour. Conversely, if Respondent No. 1 fails to
prove the Will, the administrator appointed by this Court may continue to
administer the estate of the deceased, at least until appropriate civil
proceedings, such as a suit for partition for determination of the respective

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shares of the parties, are instituted and decided.

76. In the opinion of this Court, no cause of action subsists in TEST.CAS.
2/2026 after filing of Letters of Administration with Will. All the
contentions raised in TEST.CAS. 2/2026 can be dealt with in TEST.CAS.
4/2026, including the appointment of an interim administrator till the Will
propounded by the Petitioner in TEST.CAS. 4/2026 is proved.

77. Accordingly, the present Petition is dismissed. Pending applications,
if any, also stands dismissed.

78. Liberty is, however, granted to the Petitioner to raise the very same
grounds and contentions urged in the present Petition regarding the
suspicious circumstances surrounding the Will by filing an appropriate
Reply in TEST.CAS. 4/2026, wherein the issues concerning the validity and
proof of the alleged Will are to be adjudicated.

TEST.CAS. 4/2026

79. List on 04.05.2026 before the Joint Registrar for further proceedings.

SUBRAMONIUM PRASAD, J
MARCH 17, 2026
Rahul/JR

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SINGH
Signing Date:17.03.2026
10:52:41

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