W/O Late Nagendra Nath Sharma vs R/O Patel Chowk on 8 July, 2026

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    Jammu & Kashmir High Court

    W/O Late Nagendra Nath Sharma vs R/O Patel Chowk on 8 July, 2026

                                                                                     2021:JKLHC-JMU:12144
    
    
                                                       Sr. No. 123
                 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT JAMMU
    
                                       Case No:- MA No. 85/2014
    
    
                                                   Reserved on           : 02.07.2026.
                                                   Date of Pronouncement: 08.07.2026.
                                                   Uploaded on          : 08 .07.2026.
    
    
    1. Sushila Sharma (Age 75)
       w/o late Nagendra Nath Sharma                              .... Appellant(s)/Petitioner(s)
       R/o D-87, Haus Khas, New Delhi-16
    
    2. Lalima Awasthi (Age 50)
       W/o Sh. Rajiv Awasthi
       C/o D-87, Haus Khas, New Delhi-16
    
    3. Poornima Sharma (Age 46)
       W/o Sh. Vishal Prashar
       C/o D-87, Haus Khas, New Delhi -
       16
    
    
                                       Through:-   Ms. Zoya Bhardwaj, Advocate
    
                               V/s
    
    1. Mahindra Kumar Sharma
       S/o Late Kidar Nath Shastri
       R/o Patel Chowk, Jammu                                               .....Respondent(s)
    
    2.   Dr. Pran Nath
         S/o Late Kidar Nath Shastri
         R/o APT-489, Pleasant Street, Brook Line,
         Baston (Mass), USA.
    
    
                                       Through:-    Mr. Anuj Dewan Raina, Advocate for R-1.
                                                    Mr. Amit Khajuria, Advocate vice
                                                    Mr. Ankur Sharma, Advocate for R-2.
    
    
    
    
           Case No.   MA No. 85/2014                                                  Page 1 of 24
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         CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
    
                                     JUDGMENT
    

    1. The deceased appellant, Nagendra Nath Sharma, now represented

    through his legal representatives, has challenged the order dated

    SPONSORED

    11.11.2013 passed by the Court of the 1st Additional District Judge,

    Jammu (hereinafter referred to as “the Probate Court”), whereby the

    petition filed by respondent No. 1, Mahinder Kumar Sharma, under

    Section 62 of the Probate and Administration Act, 1977 (Samvat) (the

    then applicable State Act, which now stands repealed pursuant to the

    Jammu and Kashmir Reorganisation Act, 2019) was allowed.

    2. Respondent No. 1 had sought the grant of probate in respect of the Will

    dated 24.12.1976, allegedly executed by the predecessor-in-interest of

    the parties, namely Late Shri Kidar Nath Shastri. By virtue of the

    impugned order, the Probate Court granted probate of the said Will.

    The principal ground of challenge is that the Probate Court lacked

    territorial jurisdiction to entertain and allow the petition, as neither was

    the testator residing within its territorial jurisdiction nor was the

    property forming the subject matter of the Will situated within such

    jurisdiction. It is further contended that although the testator died in the

    year 1980, the Will was sought to be probated only after a delay of

    approximately 19 years, during which period it remained exclusively in

    the custody of respondent No. 1.

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    3. It is further submitted that, under the terms of the Will, the mother of

    the parties was granted only a life interest, with the remainder to

    devolve equally upon the three sons of the deceased testator, namely

    Nagendra Nath Sharma (since deceased), Mahinder Kumar Sharma

    (respondent No. 1), and Dr. Pran Nath. Despite the demise of the

    mother in the year 1987, no steps were taken to obtain probate of the

    Will for several years thereafter, thereby casting serious doubt on the

    genuineness and authenticity of the alleged Will. It is also contended

    that the Will has not been proved in accordance with the requirements

    of law. During the course of arguments, learned counsel for the

    appellants further submitted that the deceased testator had not

    appointed any executor under the Will. Consequently, in terms of

    Section 6 of the Probate and Administration Act, probate could be

    granted only to an executor appointed by the Will. In the absence of

    such an appointment, the petition for probate itself was not

    maintainable. It is, therefore, submitted that the Probate Court

    misdirected itself in law and fell into manifest error in granting probate.

    4. The appellants placed reliance upon the judgments of this Court

    reported as AIR 2009 (1) JK (HC) 8: 2009 SLJ 464: AIR 2010 J&K

    1, Thoru Ram v. Rattan Lal and Others, and AIR 2009 (1) JK (HC)

    472: 2009 (1) KLJ 79, Rattan Mani v. Mohinder Kumar and Others, to

    contend that probate cannot be granted in the absence of an executor

    appointed under the Will, particularly where the Will merely identifies

    beneficiaries without appointing any executor.

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    5. Learned counsel for the respondents, while controverting the

    submissions advanced on behalf of the appellants, argued that no

    objection regarding the maintainability of the probate petition was

    raised before the Probate Court. Consequently, such a plea, being raised

    for the first time in the present appeal, is an afterthought and is not

    liable to be entertained. On merits, it was submitted that the probate

    petition was instituted in the year 1999 and, after a full-fledged trial, the

    Probate Court, by the impugned order, rightly granted probate of the

    Will. It was further contended that the Probate Court, upon a

    comprehensive appreciation of the oral and documentary evidence,

    recorded a categorical finding that the Will was genuine, free from any

    suspicious circumstances, and had been duly proved in accordance with

    law. According to the respondents, the appellants failed to adduce any

    cogent evidence to discredit the genuineness of the Will or to rebut the

    evidence led by the propounder. It was, therefore, submitted that the

    findings recorded by the Probate Court are based on proper

    appreciation of the evidence and are neither perverse nor contrary to

    law, warranting no interference in the present appeal.

    6. Insofar as the legal objection that probate could not have been granted

    in the absence of an executor appointed under the Will is concerned,

    learned counsel for the respondents submitted that this Court, in

    exercise of its appellate jurisdiction, is fully empowered to do complete

    justice by treating the proceedings as one for the grant of Letters of

    Administration. It was further submitted that the three beneficiaries

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    under the Will are the real brothers of the parties and that the property

    forming the subject matter of the Will is a residential house situated in

    Delhi. It was pointed out that respondent No. 2 has already conveyed

    that he has no objection to the Will being given effect to by the grant of

    appropriate relief. It was further argued that, during the lifetime of the

    testator and thereafter, only the predecessor-in-interest of the appellants

    and respondent No. 1 were in occupation of the said house. According

    to the respondents, after the demise of the testator and subsequently his

    widow, the predecessor-in-interest of the appellants adopted an

    obstructive stand and began disputing the validity of the Will with a

    view to deprive respondent No. 1 of the benefits flowing therefrom. It

    was, therefore, contended that the appellants have failed to substantiate

    their challenge to the Will and that the impugned order warrants no

    interference.

    7. Heard counsel for the parties and seen the record of the proceedings.

    8. From the material available on record, it is evident that the probate

    petition was instituted by respondent No. 1, Mahinder Kumar Sharma,

    before the Probate Court in the year 1999. At the threshold, the

    appellants filed an application seeking rejection of the probate petition

    on the ground that the Probate Court lacked territorial jurisdiction, as

    the property forming the subject matter of the Will was situated outside

    its jurisdiction. The said application was contested by respondent No. 1

    and, by order dated 23.05.2002, the Probate Court rejected the

    objection. Aggrieved thereby, the appellants preferred a revision

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    petition before this Court, which also came to be dismissed. Thereafter,

    the appellants contested the probate petition on merits. Consequently,

    the issue of territorial jurisdiction already stands concluded by virtue of

    the order passed by this Court in the revision proceedings, which has

    attained finality. Accordingly, the contention advanced by the learned

    counsel for the appellants that the Courts at Delhi alone possessed

    jurisdiction is devoid of any legal merit. In any event, the evidence

    adduced during the probate proceedings clearly establishes that the

    deceased testator had his last fixed place of abode at Jammu, where the

    Will was executed and duly registered, thereby conferring territorial

    jurisdiction upon the Probate Court at Jammu.

    9. In terms of Section 56 of the Probate and Administration Act, 1977

    (Samvat), the District Judge is competent to grant probate of a Will

    where it appears from the petition that, at the time of his death, the

    testator had either a fixed place of abode or any property within the

    territorial jurisdiction of the Court. Section 62 of the Act prescribes the

    particulars required to be stated in a petition for probate. A perusal of

    the record reveals that respondent No. 1 had duly complied with the

    statutory requirements prescribed under the Act. Since the issue of

    territorial jurisdiction already stands concluded and has attained

    finality, it cannot be permitted to be reopened in the present appeal.

    10. The Will executed by Late Shri Kidar Nath Shastri pertained to

    residential property bearing House No. D-87, Hauz Khas, Delhi.

    Although the testator had four sons and one daughter, he bequeathed

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    the said property, out of love and affection, exclusively in favour of his

    three sons, namely, Nagendra Nath Sharma (since deceased),

    Mahinder Kumar Sharma (respondent No. 1), and Dr. Pran Nath.

    At the relevant time, Dr. Pran Nath was residing in the United States of

    America, whereas the other two beneficiaries were residing in the said

    house along with the testator.

    11. The Will further stipulated that the wife of the testator would enjoy a

    life interest in the property and would remain in possession thereof

    during her lifetime, without any right to alienate, mortgage, or

    otherwise encumber the same. Upon her demise, the property was to

    devolve equally upon the aforesaid three beneficiaries. The Will was

    executed on 24.12.1976 and was duly registered before the Sub-

    Registrar, Jammu, on the same date. During the course of the trial,

    PW-Vimla Sharma, the sister of the parties, deposed that her father

    had executed the Will on 24.12.1976 and that it was registered at their

    residence in her presence. She further stated that, under the terms of the

    Will, the testator bequeathed a life interest in the property to his wife,

    who was not entitled to sell, mortgage, or otherwise alienate the

    property during her lifetime, and that, upon her demise, the property

    was to devolve in equal shares upon the three sons who were parties to

    the probate proceedings.

    12. PW-Om Parkash Goswami, who was acquainted with the deceased

    testator, deposed that the Will had been drafted by Shri Som Dev Bhat.

    He further stated that the testator was a noted literary figure and the

    Case No. MA No. 85/2014 Page 7 of 24
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    author of two volumes of the book Katha Sarit Sagar, the first of which

    was published in the year 1975, while the second volume was published

    in March, 1979. PW-Krishan Kumar, one of the attesting witnesses

    to the Will, deposed that the testator was in a sound and disposing state

    of mind at the time of execution of the Will. He further stated that the

    Will was executed and registered at the residence of the testator and

    that he had signed the document as an attesting witness. The said Will

    was exhibited as Ext. KK.

    13. During the course of hearing, learned counsel for the appellants fairly

    conceded that no proceedings had ever been initiated before any court

    of competent jurisdiction challenging the validity or genuineness of the

    Will. A perusal of the trial court record further reveals that the deceased

    appellant, Nagendra Nath Sharma, entered the witness box in support

    of his case and examined DW-Narinder Dand, DW-Surya Anand,

    and Dr. Susheel Kumar Dand as defence witnesses. Upon completion

    of the pleadings, the Probate Court had framed the following issues for

    determination:

    1. Whether the petition without attaching the original
    will with it is liable to be dismissed? OPP

    2. Whether the petition without mentioning the value of
    the property is bad in law, if so what is its effect? OPR

    3. Whether the petition without verification and
    certificate of one of the witnesses of the Will is liable
    to be dismissed? OPR

    4. Whether the petition is time barred? OPR

    5. Whether petition for non-joinder of the party is liable
    to be dismissed? OPR

    6. Whether the petition without giving the detail of
    moveable and immoveable property left by testator Pt.

    Kidar Nath Shastri in the State of J&K and other
    parts of the country is liable to be dismissed? OPR

    7. Whether the Court has no jurisdiction to entertain the
    petition? OPR

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    8. Whether the Will dated 24.12.1976 was the last Will
    executed by Kidar Nath Shastri with sound mind?

    OPP

    9. Relief.

    14. During the course of the trial, the appellants did not press Issue Nos. 1,

    2, and 3. The Probate Court recorded that these issues had become

    redundant in view of the subsequent rectification of the deficiencies

    pointed out in the probate petition. Likewise, Issue Nos. 5 and 6 were

    also not pressed by the appellants and were accordingly deleted. As a

    result, only Issue Nos. 4, 7, and 8 survived for adjudication. Upon

    appreciation of the oral and documentary evidence, the Probate Court

    categorically held that the appellants had failed to establish that any

    recital contained in the Will was false or fabricated. The Court further

    found that they had also failed to prove that the testator was not in a

    sound and disposing state of mind at the time of execution of the Will.

    15. In view of the aforesaid factual discussion, the findings recorded by the

    Probate Court do not suffer from perversity or any manifest error

    warranting interference by this Court. Having heard learned counsel for

    the appellants and examined the record, this Court is of the considered

    view that the appellants have failed to demonstrate any infirmity,

    factual or legal, in the appreciation of evidence by the Probate Court.

    No material has been brought on record to establish that the findings

    are either contrary to the evidence or otherwise unsustainable in law.

    Indeed, the appellants have been unable to point out any factual lacuna

    or perversity in the impugned judgment. The principal contention urged

    on their behalf, and the only issue requiring consideration in the present

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    appeal, is that, in the absence of an executor appointed under the Will,

    the Probate Court could not have granted probate.

    16. In support of the aforesaid contention, learned counsel for the

    appellants placed reliance upon the judgment of this Court reported as

    AIR 2009 (1) JK (HC) 8: 2009 SLJ 464: AIR 2010 J&K 1, Tohru Ram

    v. Rattan Lal and Others. In the said case, the beneficiary under the

    Will had sought the grant of probate on the premise that, being a

    beneficiary, he was entitled to maintain such a petition. Repelling the

    said contention, this Court held that the District Judge had committed

    an error in granting probate in favour of a beneficiary. Upon

    examination of the evidence, the Court found that the testator had not

    appointed or nominated any person as an executor under the Will. It

    was, therefore, held that, in the absence of an executor appointed by the

    testator, the law did not permit the grant of probate. Consequently, the

    order granting probate was held to be without jurisdiction and contrary

    to the statutory provisions, as probate can be granted only to an

    executor appointed under the Will and not to a mere beneficiary. The

    said legal position was reiterated by this Court in Rattan Mani v.

    Mohinder Kumar and Others, reported as AIR 2009 (1) JK (HC) 472:

    2009 (1) KLJ 79, wherein it was held that a conjoint reading of the

    relevant provisions of the Probate and Administration Act makes it

    abundantly clear that probate can be granted only in favour of an

    executor appointed under the Will. In cases where the deceased has

    made a Will but has not appointed an executor, or where the executor

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    appointed is legally incapable of acting, has predeceased the testator, or

    dies before obtaining probate, the appropriate relief is the grant of

    Letters of Administration.

    17. Learned counsel for the respondents, however, contended that although

    the Probate Court granted probate despite the absence of an executor

    appointed under the Will, such a defect is merely procedural in nature

    and can be appropriately remedied by this Court in exercise of its

    appellate jurisdiction by treating the proceedings as one for the grant of

    Letters of Administration. It was argued that this Court possesses ample

    power to mould the relief in order to do complete justice between the

    parties. However, in Tohru Ram (supra), this Court declined to accept

    the said contention. While allowing the appeal, it held that the defect

    could not be cured by directly converting the probate proceedings into

    proceedings for grant of Letters of Administration at the appellate stage

    and, accordingly, remanded the matter to the learned District Judge for

    consideration of the case in accordance with law.

    18. Learned counsel for the respondents, on the other hand, placed reliance

    upon the judgments reported as AIR 1963 Madras 456 and AIR 1963

    Gujarat 32, and submitted that the principles enunciated therein have

    been approved by the Hon’ble Supreme Court in (2016) 13 SCC 253. It

    was contended that where a petition has been instituted seeking probate

    of a Will, the absence of an executor does not render the proceedings

    non-maintainable in their entirety. At the highest, it constitutes a

    procedural defect capable of being cured by permitting appropriate

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    amendment of the petition. According to the learned counsel, such a

    technical defect cannot be allowed to defeat the substantive rights of the

    parties, particularly when the validity and due execution of the Will

    have otherwise been established in accordance with law. It was,

    therefore, argued that a petition seeking the grant of probate can, in an

    appropriate case, be permitted to be converted into a petition for the

    grant of Letters of Administration with the Will annexed, as such

    conversion is merely procedural in nature and does not alter the

    substance of the controversy requiring adjudication.

    19. Before discussing these legal issues, it is desirable to first examine the

    statutory position, the Probate and Administration Act, Svt. 1977,

    which was in vogue at the time when the probate proceedings were

    initiated happened to be the State Act of XXIX of Svt. 1977, which

    continue to operate until it was repealed by coming into force of the

    J&K Reorganization Act of 2019 which now stands at least replaced by

    the Indian Succession Act.

    20. Section 3 of the Probate and Administration Act, 1977 (Samvat)

    defines “probate” to mean a copy of the Will certified under the seal of

    a Court of competent jurisdiction, together with the grant of

    administration to the estate of the testator. The expression “executor”

    means a person to whom the execution of the last Will of a deceased

    person is entrusted by way of appointment by the testator. The term

    “administrator” means a person appointed by a competent authority to

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    administer the estate of a deceased person where no executor has been

    appointed or is otherwise competent to act.

    21. Under Section 6 of the Act, probate can be granted only to an executor

    appointed by the Will. Such appointment, in terms of Section 7, may be

    either express or implied. Section 8 provides that probate cannot be

    granted to a person who is a minor or is of unsound mind. Section 9

    further stipulates that where several executors have been appointed,

    probate may be granted to all of them jointly or to such of them as may

    apply, either simultaneously or at different times. The grant of probate

    establishes the Will from the date of the death of the testator and

    validates all intermediate acts lawfully performed by the executor in

    that capacity. Insofar as Letters of Administration are concerned,

    Section 13 provides that the same cannot be granted to a person who is

    a minor or is of unsound mind.

    22. In terms of Section 14, the grant of Letters of Administration vests in

    the administrator all the rights belonging to the deceased as effectively

    as if the administration had been granted immediately upon the death of

    the deceased. Section 16 carves out an exception by providing that

    where an executor has been appointed under the Will and has neither

    renounced the executorship nor been cited to accept or renounce the

    same, Letters of Administration shall not be granted to any other

    person. Section 18 further provides that where an executor renounces

    the executorship or fails to accept it, the Will may nevertheless be

    proved and Letters of Administration with the Will annexed may be

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    granted to the person who would have been entitled to administration in

    the event of intestacy.

    23. Section 19 further provides that where the deceased has made a Will

    but has not appointed an executor, or where the executor so appointed

    is legally incapable of acting, refuses to act, or has died before the

    testator, a universal or residuary legatee may be admitted to prove the

    Will, and Letters of Administration with the Will annexed may be

    granted in respect of the whole estate or such part thereof as remains

    unadministered.

    24. A conjoint reading of the aforesaid provisions leaves no manner of

    doubt that probate can be granted only to an executor duly appointed by

    the testator under the Will. Where no executor has been appointed, or

    where the executor is incapable of acting or otherwise unavailable in

    the circumstances contemplated by the Act, the appropriate relief is the

    grant of Letters of Administration with the Will annexed. The

    provisions of the Probate and Administration Act, 1977 (Samvat) are,

    in all material respects, Pari Materia with the corresponding provisions

    of the Indian Succession Act, 1925, and, therefore, judicial precedents

    interpreting the latter Act are of considerable persuasive value while

    construing the former.

    25. A Division Bench of the Karnataka High Court, in MFA No. 3238 of

    2019 (ISA), considered a case in which the trial Court had held the

    probate petition to be not maintainable. In that case, the deceased had

    executed a Will without appointing an executor, and the sole

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    beneficiary under the Will had also passed away. Thereafter, the

    beneficiary’s wife filed a petition seeking probate of the Will. The trial

    Court, relying upon Section 276 of the Indian Succession Act, 1925,

    held that a petition for probate could be maintained only by an executor

    named in the Will and, since the appellant had not been appointed as an

    executor, probate could not be granted in her favour. Setting aside the

    order of the trial Court, the Division Bench held that, where the

    appellant was the sole beneficiary under the Will and no executor had

    been appointed by the testator, the petition could not be rejected merely

    on that ground. The Court observed as under:

    “If the reasoning of the trial Court is accepted, then in all cases
    where no executor is named in the Will, probate cannot be
    granted and such Wills/codicils would be rendered completely
    ineffective or useless. The mischief can only be prevented by
    referring to Section 222(2), whereunder, if the executor is not
    named in the Will, the inference that could be drawn is that the
    legatee would become the executor since, without obtaining
    probate, the beneficiary would not be able to implement the Will
    and thereby give effect to the last wishes of the testator. The
    legatee/beneficiary is, therefore, by necessary implication,
    deemed to have been appointed as the executor of the Will”.

    26. The Division Bench, upon a conjoint reading of Sections 222(2), 231,

    and 234 of the Indian Succession Act, 1925, concluded that the right to

    seek probate is not confined exclusively to an executor expressly

    named in the Will. Depending upon the facts and circumstances of a

    given case, and having regard to the scheme of the Act, a legatee or

    other person entitled under the Will may also be permitted to seek the

    appropriate testamentary relief where no executor has been appointed

    by the testator. Consequently, the Division Bench set aside the order of

    the trial Court dismissing the probate petition. Since the genuineness

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    and due execution of the Will had not been adjudicated on merits, the

    matter was remanded to the Probate Court for fresh consideration. The

    Probate Court was directed to entertain the petition at the instance of

    the appellant-legatee, treat the proceedings in accordance with law, and

    thereafter determine, on the basis of the evidence to be adduced,

    whether the Will was duly proved and whether the appellant was

    entitled to the grant of the appropriate testamentary relief.

    27. A Division Bench of the Madras High Court, in Govind M. Asrani v.

    Jairam Asrani, reported as AIR 1963 Madras 456, held that the

    principal question arising in testamentary proceedings is the truth and

    genuineness of the Will. Whether the proceedings are for the grant of

    probate or for the grant of Letters of Administration with the Will

    annexed, any person having an interest in the estate is entitled to

    intervene and participate in the proceedings. The Division Bench

    further observed that although a grant of probate is distinct from a grant

    of Letters of Administration with the Will annexed, and the procedural

    requirements governing the two may differ, including the necessity of

    furnishing security, the ultimate adjudication regarding the validity and

    genuineness of the Will is common to both proceedings. Such an

    adjudication operates as a judgment in rem and is binding upon all

    persons claiming an interest in the estate of the deceased testator. The

    Court emphasised that procedural technicalities ought not to defeat the

    substantive rights of the parties where the real controversy concerns the

    due execution and genuineness of the Will.

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    28. A similar view was expressed by the Gujarat High Court in Jadeja

    Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji Shivsinhji, reported as

    AIR 1963 Gujarat 32, wherein it was observed:

    “An executor, in the capacity of an executor, has no
    personal interest in the estate of the deceased. The object of the
    executor in these proceedings is to obtain an adjudication, not
    of any dispute in which he is personally interested, but to
    propound the Will of the deceased for the benefit of those who
    claim an interest thereunder. It is, therefore, clear that an
    executor, in applying for probate, is not prosecuting a personal
    action but is acting for the benefit of all the beneficiaries under
    the Will. Consequently, the maxim actio personalis moritur
    cum persona has no application to such proceedings. If the
    executor fails in his duty, any person whom he represents is
    entitled to intervene and continue the proceedings, subject to
    the formal modification that the relief thereafter sought would
    be Letters of Administration with the Will annexed.”

    29. The principles laid down in the aforesaid decisions of the Madras High

    Court and the Gujarat High Court were considered and approved by the

    Hon’ble Supreme Court in Vatsala Srinivasan v. Shyamala

    Raghunathan, reported as (2016) 13 SCC 253. In that case, the

    executor named under the Will died during the pendency of the

    testamentary proceedings. Thereafter, the sole legatee applied for the

    grant of Letters of Administration with the Will annexed and also

    sought amendment of the testamentary petition. An objection was

    raised that, upon the death of the executor, the proceedings had abated

    and could not be continued. The learned Single Judge rejected the

    objection, permitted the amendment, and directed that the proceedings

    continue as one for the grant of Letters of Administration. The said

    view was affirmed by the Apex Court and dismissing the appeal, it was

    held as under,

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    “We are in agreement with the view expressed by all the three High
    Courts. In the interest of justice, and for the aforesaid reasons, we
    dismiss the appeal. There shall be no order as to costs. Pending
    applications, if any, stand disposed of. We hope that the hearing before
    the Testamentary Court shall be expedited and the proceedings for grant
    of Letters of Administration shall continue in accordance with law.”

    30. The consistent legal position emerging from the aforesaid judicial

    pronouncement is that, where an executor has been appointed under a

    Will, it is the executor alone who is entitled to seek the grant of probate

    for the purpose of giving effect to the testamentary disposition. An

    executor does not claim any beneficial interest in the estate by virtue of

    such appointment; rather, he acts in a representative capacity to

    administer the estate in accordance with the wishes of the testator.

    Under Section 17 of the Probate and Administration Act, 1977

    (Samvat), an executor may renounce the executorship either orally

    before the Court or by an instrument in writing. Once such renunciation

    is made in accordance with law, the executor is precluded from

    thereafter applying for the grant of probate.

    31. In a situation where the sole executor appointed under the Will dies

    before obtaining probate, or otherwise becomes incapable of acting,

    probate cannot thereafter be granted in his favour. In such

    circumstances, the beneficiaries or other persons entitled under the Will

    are competent to seek the grant of Letters of Administration with the

    Will annexed, so that the testamentary intentions of the deceased may

    be duly implemented in accordance with law.

    32. Likewise, where the deceased has executed a Will but has not

    appointed any executor, recourse may be had to Section 19 of the

    Case No. MA No. 85/2014 Page 18 of 24
    2021:JKLHC-JMU:12144

    Probate and Administration Act, 1977 (Samvat), which is pari materia

    with Section 232 of the Indian Succession Act, 1925. In such cases, the

    Court is empowered, in appropriate circumstances, to grant Letters of

    Administration with the Will annexed to the beneficiary or other person

    legally entitled to administer the estate. The same principle applies

    where the executor has renounced the executorship, refuses to act, is

    legally incapable of acting, or otherwise fails to accept the office. In all

    such situations, the beneficiary or legatee under the Will is entitled to

    seek the grant of Letters of Administration with the Will annexed,

    thereby ensuring that the wishes of the testator are carried into effect

    notwithstanding the absence or inability of an executor.

    33. The aforesaid legal proposition also stands authoritatively affirmed by

    the Hon’ble Supreme Court in Shambu Prasad Agarwal and Others

    v. Bhola Ram Agarwal, (2000) 9 SCC 714 (Civil Appeal No. 74 of

    1997, decided on 25.08.1999). In that case, the original applicant, who

    was a legatee under the Will, had instituted a petition seeking probate.

    During the pendency of the proceedings, he died, whereupon his legal

    heirs sought their substitution in the testamentary proceedings and also

    prayed for amendment of the petition by converting the relief from one

    for grant of probate to one for grant of Letters of Administration with

    the Will annexed. Both applications were rejected by the Probate Court,

    and the revision preferred thereagainst was also dismissed by the High

    Court. Reversing the judgments of the Courts below, the Hon’ble

    Supreme Court held as under:

    Case No. MA No. 85/2014 Page 19 of 24

    2021:JKLHC-JMU:12144

    *”5. We find that it is not disputed that Matadin Agarwal was a
    legatee under the will. It is true that Matadin Agarwal ought to
    have applied for issue of letters of administration and not for
    probate. However, this did not debar his heirs to get the probate
    petition amended. The trial Court rejected both the applications
    of the appellants on the ground that since the probate petition
    filed by the legatee related to his personal right, therefore no
    right accrued to the appellants for their substitution in his place.
    This view, according to us, is not correct. Matadin Agarwal, as
    stated above, was a legatee and not an executor under the Will. It
    is true that where an executor dies, his heirs cannot be substituted
    because the executor possessed personal right, but this is not
    applicable where the heirs of a legatee apply for issue of letters of
    administration. It is not disputed that today the appellants can file
    a petition for issue of letter of administration. Since considerable
    time has elapsed, we feel that the interest of justice demands that
    the proceedings should come to an end as early as possible and
    we should not dismiss this appeal merely on highly technical
    ground.”

    34. The aforesaid decision unequivocally lays down that, while the office

    of an executor is personal in nature and, therefore, upon the death of an

    executor his legal heirs cannot be substituted in testamentary

    proceedings, a different principle applies where the original applicant is

    a legatee under the Will. In such a case, the legal heirs of the legatee are

    entitled to seek their substitution and to pray for amendment of the

    proceedings by converting a petition for probate into one for the grant

    of Letters of Administration with the Will annexed, where the

    circumstances so warrant. The Hon’ble Supreme Court has thus held

    that such a procedural defect cannot be permitted to defeat the

    substantive rights of the parties, particularly where the validity of the

    Will is otherwise capable of being adjudicated. The mere necessity of

    amending the nature of the testamentary relief sought cannot, by itself,

    constitute a ground for dismissal of the proceedings on technical

    considerations.

    Case No. MA No. 85/2014 Page 20 of 24

    2021:JKLHC-JMU:12144

    35. In view of the aforesaid legal position and the facts of the present case,

    the Will executed by the deceased testator has been duly proved to be

    genuine, and the finding recorded by the Probate Court in this regard

    cannot be said to be perverse. The objection regarding jurisdiction

    raised by the appellants also fails, as not only was the Will executed at

    Jammu, but the deceased testator was also last residing within the

    territorial jurisdiction of the Probate Court. Admittedly, the Will did not

    appoint an executor, as the testator created a life interest in favour of

    his wife, with the property to be apportioned equally amongst his three

    sons after her demise. One of the sons, namely Dr. Pran Nath, had also

    expressed his no-objection to the grant of probate. Although, I agree

    with the submission of learned counsel for the appellants that, in the

    absence of an executor, the appropriate remedy was to seek the

    issuance of Letters of Administration rather than probate, the question

    is whether such a procedural defect warrant remanding the matter to the

    trial Court for a fresh adjudication. The Division Bench of the High

    Court of Karnataka, in MFA No. 3238/2019 (ISA), Smt. Rihana

    Parveen v. Nil, remanded the matter to the trial Court to permit

    amendment of the petition, as the genuineness of the Will had yet to be

    determined.

    36. In the present case, however, that stage has already been crossed. The

    Probate Court has examined the entire evidence in detail and has

    conclusively held that the Will is genuine. Furthermore, the appellants

    never challenged the Will by instituting appropriate civil proceedings,

    Case No. MA No. 85/2014 Page 21 of 24
    2021:JKLHC-JMU:12144

    which also reinforces the absence of any serious dispute regarding its

    genuineness. The mere fact that the Will remained unprobated for

    nineteen years cannot, by itself, constitute a ground to reject the

    proceedings, particularly when, until 1987, the mother of the parties,

    who enjoyed a life interest under the Will, was alive. It was only after

    her demise that the beneficiaries became entitled to seek administration

    and distribution of the estate in accordance with the Will.

    37. During the course of hearing, it was brought to the notice of this Court

    that only the legal representatives of the deceased appellant and

    respondent No. 1 were jointly occupying the house in question. In these

    circumstances, the Court which granted probate was equally competent

    to issue Letters of Administration. Though the proper procedure

    required the respondents to seek Letters of Administration instead of

    probate, such a technical defect cannot be permitted to defeat the ends

    of substantial justice.

    38. The Will was executed in the year 1976. The testator died in 1980, and

    the mother of the parties, who held a life interest, passed away in 1987.

    In these circumstances, remanding the matter to the trial Court merely

    to permit amendment of the petition by substituting a prayer for Letters

    of Administration in place of probate would unnecessarily prolong the

    litigation and subject the parties to further hardship. Both proceedings

    of the grant of probate and of Letters of Administration with the Will

    annexed, relate to the implementation and administration of the Will.

    The law does not prohibit a beneficiary from continuing the

    Case No. MA No. 85/2014 Page 22 of 24
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    proceedings and seeking formal conversion of the petition from one for

    probate to one for Letters of Administration, where the legal

    requirements otherwise stand satisfied. In support of this proposition,

    this Court places reliance on Shambu Prasad Aggarwal v. Bhola Ram

    and Vatsala Srinivasan v. Shyamala Raghunath supra. Accordingly, the

    appellants and respondents, being beneficiaries under the Will, are

    entitled to seek Letters of Administration for administering the estate in

    accordance with the testamentary disposition. The reliance placed by

    the appellant on aforesaid two decisions “supra” of this court and the

    view expressed therein cannot prevail once it is contrary to the law laid

    down by the Supreme Court.

    39. In the aforesaid circumstances, remanding the matter to the trial Court

    would serve no useful purpose. Therefore, in order to do complete

    justice, and in the absence of any statutory provision to the contrary,

    this Court, in exercise of its inherent powers directs that the probate

    granted by the trial Court shall stand converted into Letters of

    Administration in favour of respondent No. 1, one of the beneficiaries

    under the Will, authorising him to administer the estate strictly in

    accordance with the provisions of the Jammu and Kashmir Probate and

    Administration Act, 1977.

    40. To that extent, the impugned order passed by the trial Court shall stand

    modified. It is further directed that Letters of Administration, together

    with a copy of the Will annexed thereto, shall be issued in favour of

    respondent No. 1, authorising him to administer the estate in

    Case No. MA No. 85/2014 Page 23 of 24
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    accordance with the Will, subject to payment of the requisite court fee

    after the valuation of the property is assessed. In the event that probate

    has already been issued, the same shall stand recalled, and the court fee

    already deposited shall be adjusted towards the fee payable for the

    issuance of Letters of Administration. Any deficiency in court fee, if

    found payable, shall be deposited before the Court below.

    41. Consequently, the appeal stands disposed of in the above terms. The

    parties shall bear their own costs. Copy be notified to trial Court for

    further compliance as aforesaid.

    (SANJAY PARIHAR)
    JUDGE
    JAMMU
    08.07.2026
    Rahul Sharma

    Whether the Judgment is speaking: Yes
    Whether the Judgment is reportable: Yes

    Case No. MA No. 85/2014 Page 24 of 24



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