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will and probate cases Lawyers Delhi.

Q :When Probate can be grant and to whom

Ans : can be granted when deceased had died appointing a executor in the will.

Q:When can  a letter of administration can be granted and  when:

Ans;1- deceased had died intestate.

2- the deceased has made a will, but has not appointed an executor.

The relevant sections of Indian succession act:

222. Probate only to appointed executor.- (1) Probate shall be granted only to an executor appointed by the will.

(2) The appointment may be expressed or by necessary implication.

Illustrations

(i) A wills that C be his executor if B will not. B is appointed executor by implication.

(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication.

(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,–“I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates”. The nephew is appointed an executor by implication. 

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.

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

(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, 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 276 in The Indian Succession Act, 1925

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,

(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.

(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 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.

 

HIGH COURT OF DELHI AT NEW DELHI

% Date of Judgment: 21.1.2010

+ TEST CAS.No.35/1999

SHAMA SETHI ……Petitioner Through: Mr. Anil K. Kher, Senior

Advocate with Mr.Rishi

Manchanda &

Mr.S.S.Pandit, Advocates.

Versus

STATE & OTHERS …….Respondents Through: None.

CORAM:

HON’BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

Yes

3. Whether the judgment should be reported in the Digest? Yes

INDERMEET KAUR, J. (Oral)

1. This is a petition under Section 276 of the Indian Succession

Act for grant of probate of the Will of late Sh.Din Dayal Kaicker.

Sh.Din Dayal Kaicker had died on 22.12.1985. Petitioner is the

daughter of the deceased and she is seeking a probate of the Will

dated 18.9.1978 duly registered with the Sub-Registrar.

2. The details of the property of which probate is sought are

mentioned herein as follows:

Test cas.35/1999 Page 1 of 8 A. House No.C-155, Greater Kailash Part I, New Delhi.

B. 1/3rd share in Commercial Building No.AB-4, Safdarjang Development Scheme, Near Kamal Cinema, New Delhi

 

family

settlement.

9. On 17.5.2006, the following issues were framed:

1. Is the petitioner entitled to grant of probate of the Will dated 18.9.1978?

2. Were there family settlements on 22.8.90 and 31.3.98?

3. Does the family settlements on 22.8.90 and 31.3.98 stand in the way of the grant of probate?

10. On 13.10.2006 issues no.2 and 3 relating to the family

settlement had been deleted. Court had held that the issue

relating to the title of the property stated to be belonging to the

deceased could not be gone into in a petition under Section 276 of

the Indian Succession Act.

11. The only issue which remained for adjudication was issue

no.1. The parties had led evidence by way of affidavits. Objector

no.4 did not support his objections with any evidence; he did not

file any evidence by way of affidavit; Objector no.7 and 9 had filed

evidence by way of affidavit. On 15.12.2009, objector no.7 had

made a statement on oath in court that he has no objection if the

probate of the Will is granted.

12. Evidence of Objector no.9 only remains to be considered by

this court. None has appeared

 

Kaicker

had executed this Will. On 18.9.1978 she has reiterated that the

probate of the Will cannot be granted in view of aforestated family

settlement.

17. It is well settled proposition of law that in a petition for grant

of probate the court only has to see as to whether the testator had

in fact made the Will voluntarily and of his own volition; it was a

genuine document, properly executed and attested as per law and

the testator at the time of executing the said Will had the capacity

to execute it. The petition under Section 276 of the Indian

Succession Act cannot go beyond this. It is not within the scope of

such a petition to go into the subsequent family settlement or

arrangement.

18. In this case Objector No.9 is the only contesting objector.

She has however admitted the execution of the Will dated

18.9.1978 by her deceased father. All the legal heirs have in fact

admitted this document.

 

Test cas.35/1999 Page 5 of 8

19. There is no dispute that this Will had in fact been executed

by the deceased Din Dayal Kaicker bequeathing his property both

movable and immovable in favour