kishor 1/25 IA 3643 of 23 & 3645 of 23 as.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO.3643 OF 2023

WITH

INTERIM APPLICATION NO.3645 OF 2023

IN

FIRST APPEAL NO.658 OF 2021

Kunjumon Shivarajan Panicker

(since deceased)

Deepika S. Panicker & Ors. 2 ....Applicant

In the matter between

Kunjumon Shivarajan Panicker

(since deceased) ....Petitioner

Versus

Chandravadan Pranlal Doshi & Ors. 2....Respondents

Appearances :

________________________________________________________

Mr. Amrut Joshi, i/b. Ketan Dhavle for the Petitioner.

Mr. Sharad Chandrachood, for Respondent.

________________________________________________________

CORAM: DHIRAJ SINGH THAKUR &

SANDEEP V. MARNE, JJ.

DATE : 26 JUNE 2023.

1/25 2023:BHC-AS:18023-DB

::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 2/25 IA 3643 of 23 & 3645 of 23 as.doc

ORDER - (Per – Sandeep V. Marne, J.):

By these applications, applicants seek their impleadment as legal

representatives of deceased appellant, not only in the First Appeal but

also in the plaint filed in the Suit, which has already been disposed of.

Applicants further seek leave to conversion of Suit filed for grant of

probate to the one for issuance of letters of administration with will

annexed.

2. Three fundamental issues that arise for our consideration

in the present applications are (i) whether applicants claiming to be

legal heirs of late Kunjumon Shivrajan Panicker can be brought on

record in proceedings filed by him for grant of probate in his capacity

as executor thereof; (ii) whether applicants can be permitted to convert

the proceedings filed for grant of probate in respect of Will executed

by Ranjana Pranlal Doshi into proceedings for issuance of letters of

administration with will annexed and (iii) Whether after disposal of

the suit, applicants can be permitted to amend the plaint in pending

First Appeal.

3. The brief factual background, shorn of unnecessary details,

in which the aforesaid three issues arise for our consideration are as

follows. Ms. Ranjana Pranlal Doshi died at Pune on 4 May 2014.

Chandravadan Pranlal Doshi, Bharati Rajinikant Darak and Shobha

2/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 3/25 IA 3643 of 23 & 3645 of 23 as.doc

Pratibha Doshi are brother and sisters of Ranjana. They claimed that

Ranjana died intestate and therefore filed Civil Miscellaneous

Application No.715 of 2014 for grant of Letters of Administration in

respect of estate of Ranjana.

4. On the other hand, Kunjumon Shivrajan Panicker claimed that

Ranjana had executed a Will on 4 January 2013, under which

Kunjumon was appointed as executor of the will. In addition to

executor, Kunjumon is also shown to be a legatee, to whom the

testatrix had allegedly bequeathed properties mentioned in the Will.

Kunjumon therefore filed Civil Miscellaneous Application No.26 of

2015 for grant of probate in respect of will of the testatrix.

5. Both proceedings were opposed by the rival parties.

Therefore Civil Miscellaneous Application No.26 of 2016 filed by

Kunjumon was registered as Special Civil Suit No.208 of 2019

whereas Civil Miscellaneous Application No.715 of 2014 filed by

Chandravadan, Bharati and Shobha was registered as Special Civil Suit

No.209 of 2019. For the sake of convenience, Kunjumon is referred,

in the present order as the Plaintiff and Chandravadan, Bharati and

Shobha are referred to as the Defendants.

6. The Civil Judge Senior Division, Pune passed common

judgment and order dated 20 September 2021dismissing Special Civil

Suit No.208 of 2019 filed by Plaintiff for grant of probate. Special

3/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 4/25 IA 3643 of 23 & 3645 of 23 as.doc

Civil Suit No.209 of 2019 filed by Defendants was allowed directing

issuance of Letters of Administration in favour of Chandravadan,

Bharati and Shobha with respect to movable and immovable

properties mentioned in the plaint which were left behind by late

Ranjana Doshi.

7. Plaintiff-Kunjumon has filed present appeal challenging

the common judgment and order dated 20 September 2021 passed in

both Special Civil Suit Nos. 208 of 2019 and 209 of 2019.

8. During pendency of the present appeal, Plaintiff-

Kunjumon died on 13 February 2023. On account of death of

Plaintiff-Kunjumon, his legal heirs desire to set themselves impleaded

in the present appeal. However Civil Miscellaneous Application

No.26 of 2015, which was later converted into Special Civil Suit

No.208 of 2019, was filed by Plaintiff-Kunjumon for grant of probate

in his capacity of executor of the Will. In view of well settled law that

where an executor dies, his legal heirs cannot be substituted as

executors possesses merely personal rights. However Plaintiff-

Kunjumon was also a beneficiary in the Will. His legal heirs, who are

applicants in the present application, wish to stake their claim to the

estate of the testatrix allegedly bequeathed to Plaintiff-Kunjumon.

However on account of nature of proceeding initiated by Plaintiff-

Kunjumon (issuance of probate in his capacity as executor) the

applicants cannot be brought on record as legal heirs of the executor,

4/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 5/25 IA 3643 of 23 & 3645 of 23 as.doc

who merely had a personal right in the proceedings. Due to this

difficulty, the applicants wish to convert the proceedings filed by the

Plaintiff-Kunjumon from the proceeding for grant of probate to

proceeding for issuance of Letters of Administration with will

annexed, so that they can be brought on record as legal heirs of

Plaintiff-Kunjumon. Therefore the present applications are filed for

effecting amendments both in the plaint as well as in the appeal.

9. Interim Application No.3643 of 2023 has been filed seeking

amendment in Special Civil Suit No.208 of 2019 as per the following

Schedule:

“A. The Cause Title of the Suit be amended as follows

The words ‘Since Deceased’ be added after the name of the

Plaintiff Kunjumon Sivarajan Panicker and add following

parties as Plaintiffs 1(a) to 1(c)

1a. Deepika S. Panicker

Age: 49 years, Occ: Government Servant

1b. Arjun K.

Age: 30 years, Occ:

1c. Prabha D.

Aged 13 years, Occ: Student

1(c) through next friend Applicant No. 1a

Applicant 1(a) (b) (c) having address at Dileep Bhavan,

Mannathala PO,

Thiruvananthapuram 695 015

B. The Cause Title of the Suit be amended and following

Respondent to be added as Respondent No. 4:

5/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 6/25 IA 3643 of 23 & 3645 of 23 as.doc

4. Lissy Sukumaran Achary

Age: 53 years, Thadathil House,

Mallasery PO, Poomkavu, Pathanamthitta,

Kerala 689 646

C. Following sentence be added at paragraph no. 8

“A. The Applicants state that the original Plaintiff Mr.

Kunjomon Sivarajan Panicker expired on 13/2/2023. The

original Plaintiff was the executor under the Will dated

4/1/2013. He was also a legatee/ beneficiary under the said

Will. Mr. Kunjomon Sivarajan Panicker died intestate. The

present Applicant Nos. 1(a) to 1(c) are his legal heirs.

B. The Respondent No. 4 is another beneficiary under

the Will dated 04/01/2013 and therefore is a proper party.

Therefore, the present Applicants seek Letters of

Administration with Will annexed to the Property and

Credits of Ms. Ranjan Doshi. All Plaintiffs 1(a) to 1 (c)

agree that the Letter of Administration be present to the

Plaintiff 1(a).

D.The prayer clause b be replaced with the following

“That Letter of Administration for the properties and

credits of the deceased Ranjana Doshi may be presented to

the Plaintiff 1(a) having effect throughout India.”

E.Any other consequential amendment if necessary.”

10. Appearing for Applicants, Mr. Joshi the learned counsel

would submit that Plaintiff-Kunjumon is not merely an executor in

respect of the will but also a legatee/beneficiary thereunder. That

therefore Applicants, being his legal heirs, are entitled to apply for

issuance of Letters of Administration with Will annexed. He would

6/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 7/25 IA 3643 of 23 & 3645 of 23 as.doc

submit that though Applicants can file independent application for

issuance of Letters of Administration, facts of the case are so peculiar

that in view of the findings recorded in the judgment and order under

appeal, adjudication of such independent applications for issuance of

Letters of Administration would not be in favour of Applicants. This is

because the Trial Court has not just dismissed suit filed by Plaintiff-

Kunjumon for grant of probate but has also decreed the suit of

Defendants by issuing Letters of Administration in their favour. He

would further submit that whether it is application for grant of probate

or application for issuance of Letters of Administration, the inquiry by

Court is same and that therefore no prejudice would be cause to the

Defendants by permitting applicants to convert the suit for grant of

probate to one for issuance of Letters of Administration with Will

annexed. In support of his contention Mr. Joshi would rely upon

judgment of the Supreme Court in Shambhu Prasad Agarwal & Ors.

Vs. Bhola Ram Agarwal, (2000) 9 SCC 714. He would further submit

that in Thrity Sam Shroff Vs. Shriaz Byramji Anklesaria, (2007) 2

Bom. C.R. 560 Division Bench of this Court had not permitted

substitution of proceedings filed for grant of probate after death of

executor on the ground that the proceedings had abated. However

subsequently in Haresh Chetan Thadhani Vs. Komal Suresh Chainani

& Ors., 2015 SCC OnLine Bom.868 another Division Bench of this

Court has permitted such substitution following the dictum of

7/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 8/25 IA 3643 of 23 & 3645 of 23 as.doc

judgment of the Apex Court in Shambhu Prasad Agarwal (supra). He

would also rely upon judgment of Division Bench of this Court in

Vatsala Shrinivasan Vs. Narsimha Raghunathan since deceased Smt.

Shyamala Raghunathan, 2011 (2) Mh.L.J. 953 in support of his

contention that beneficiary under the will is not prohibited from

continuing the proceedings filed for grant of probate by converting

them for issuance of Letters of Administration with Will annexed. He

would also rely upon judgment of Single Bench of this court in

Chandangauri Amarchand Doshi Vs. Bharat Amarchand Doshi &

Anr., 2016 SCC OnLine Bom.8486 in support of his prayer for

conversion of proceedings for grant of probate into the one for Letters

of Administration with Will annexed. Mr. Joshi would further submit

that Appellate Court can permit parties to amend pleadings filed

before the Trial Court and in support of his contention, would rely

upon judgment of the Supreme Court in Pandit Ishwardas Vs. State of

Madhya Pradesh & Ors. (1979) 4 SCC 163.

11. Applications are opposed by Mr. Chandrachud, the

learned counsel appearing for Defendants/Respondents. He would

submit that entertaining Applicants’ application for amendment is an

exercise in futility as the Trial Court has not just dismissed Plaintiff’s

suit for grant of probate but has independently issued letters of

administration in favour of the Defendants by decreeing their suit.

That the Plaintiff-Kunjumon’s appeal is essentially restricted to

8/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 9/25 IA 3643 of 23 & 3645 of 23 as.doc

dismissal of suit for grant of probate and that no appeal has been filed

against decree granting letters of administration in favour of

Defendants. He would therefore submit that since letters of

administration are already granted in favour of Defendants by holding

that Will produced by Plaintiff is not a genuine document, no purpose

would be served in granting any further opportunity to the applicants

to prove the Will. He would submit that allowing applicant’s

applications would result in incongruous situation where conflicting

decrees may be passed.

12. Mr. Chandrachud would further submit that applicants

have no right to get themselves impleaded as legal heirs of executor to

the Will, as proceedings for grant of probate were filed by the executor

in his personal capacity. He would submit that since the suit of

Plaintiff-Kunjumon has already been dismissed, there is no question of

this court permitting any amendment in the plaint at this stage. That

grant of leave to convert the nature of proceedings would result in

complete overhaul of the suit, which is impermissible at such a belated

stage. That such conversion would necessitate leading of further

evidence, thereby creating further complications in the proceedings.

He would submit that the appeal of Plaintiff-Kunjumon has already

been abated and that therefore there is no question of bringing his

legal heirs on record. He therefore prays for rejection of the

applications.

9/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 10/25 IA 3643 of 23 & 3645 of 23 as.doc

13. Rival contentions of the parties now fall for our

consideration.

14. Plaintiff-Kunjumon had filed Miscellaneous Application

No.26 of 2015 for grant of probate in respect of alleged Will of

Ranjana Doshi executed on 4 May 2014. In his application Plaintiff-

Kunjumon disclosed himself as executor under the Will and prayed

for grant of probate. Civil Miscellaneous Application No.26 of 2015

was later registered as Special Civil Suit No.208 of 2019. After

dismissal of Special Civil Suit No.208 of 2019 vide judgment and

order dated 30 September 2021, Plaintiff-Kunjumon has filed the

present appeal. During pendency of Appeal Plaintiff-Kunjumon has

expired on 13 February 2023. Since Plaintiff-Kunjumon had filed

proceedings for grant of probate in his capacity as executor of the Will,

his legal heirs cannot be brought on record. As executor he possessed

personal rights, which cannot be agitated by his legal heirs. There is no

debate about this proposition and Mr. Joshi himself would not object

to the same. This would answer the first issue involved in the present

applications.

15. As plaintiff had applied for grant of probate in his capacity

as executor, in ordinary circumstances, the appeal would abate and the

applications filed by the Applicants could have been rejected.

However Applicants claim that Plaintiff-Kunjumon was not just an

executor to the Will but he was also a legatee / beneficiary under the

10/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 11/25 IA 3643 of 23 & 3645 of 23 as.doc

Will. Mr. Chandrachud fairly concedes that in the event of Will being

found to be a genuine document, Plaintiff-Kunjumon could have been

beneficiary under that Will. He however questions genuineness of the

Will. Whether the will is genuine document or not is something which

would be determined at the time of decision of the appeal. What is

undisputed as of now is the fact that Plaintiff-Kunjumon is shown not

just an executor but also legatee/beneficiary under the Will. This

completely alters the position as for as right of legal heirs to continue

the proceedings instituted by Plaintiff-Kunjumon. Once it is held that

Plaintiff-Kunjumon is a legatee / beneficiary under the Will, his legal

heirs become entitled to pursue proceedings to lay claim to properties

allegedly bequeathed to Plaintiff-Kunjumon.

16. However what was filed by Plaintiff-Kunjumon was not an

application for issuance of letters of administration. He filed

application for issuance of probate in his capacity as executor. In these

circumstances, the question that arises is whether Plaintiff-Kunjumon

could have applied for conversion of application for grant of probate

into the one for issuance of Letters of Administration? To find an

answer, we need to look into various judgments relied upon by Mr.

Joshi.

17. In Shambhu Prasad Agarwal (supra), the will was executed

by one Maina Devi nominating her nephew Matadin Agarwal to be

the owner of her property. Upon death of Maina Devi, Matadin

11/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 12/25 IA 3643 of 23 & 3645 of 23 as.doc

Agarwal filed a probate petition, which was converted into suit.

During pendency of the proceedings for grant of probate, Matadin

Agarwal died and therefore his legal heirs filed an application in the

suit for their substitution in place of Matadin Agarwal. They also filed

another application for amendment of the petition / suit praying that

instead of grant of probate, legal heirs be granted Letters of

Administration. In this factual background, the Apex Court held in

paragraph No.5 and 6 of the judgment as under-

“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 the 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.

6.For the aforesaid reason, we set aside the orders under

challenge and send the case back to the trial court. We permit the

appellants to be substituted in the proceedings and also permit

them to amend the petition. It goes without saying that after the

remand, it will be open to the parties to take such plea as may be

available to them under the law. Since the matter is pending for a

considerable time, we direct the lower court to decide the matter

12/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 13/25 IA 3643 of 23 & 3645 of 23 as.doc

expeditiously. The appeal is allowed. There shall be no order as to

costs.”

18. Thus, in Shambhu Prasad Agarwal, the Apex Court not

only recognised right of heirs of a legatee to apply for Letters of

Administration but permitted them to amend the petition / suit by

converting it from proceedings for grant of probate into the one for

issuance of Letters of Administration.

19. The judgment in Shambhu Prasad Agarwal has been

considered and followed by Division Bench of this court in Vatsala

Shrinivasan (supra). The issue before this Court was whether the sole

beneficiary under a Will can seek substitution in place of an executor

who died during pendency of suit for grant of probate of Will. This

court in paragraph Nos. 13, 14, 15 and 18 held as under-

“13. The Madras High Court has had occasion to consider as to

whether in a pending application for the issue of a probate, upon

the death of a sole executor before proving the will it would be

competent for a legatee or any other person interested to intervene

and continue the proceedings to prove the will and obtain Letters

of Administration in his own right. This issue was considered

initially in a judgment of a Division Bench in P. Rama Naidu &

Ors. vs. Rangayya Naidu & Ors. AIR 1933 Madrass 114 One of

the Judges constituting the Division Bench, Venkatasubba Rao, J.

held that the proper view is that the object of the executor in

commencing the proceeding is to get an adjudication in the interest

not only of himself but of others that the will which is propounded

is genuine and valid. Reilly, J. in a separate judgment dealt with the

contention that when an executor prays for probate, he prays for

something which is personal to himself since no one but the

executor can get the probate. Holding that the submission looks

13/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 14/25 IA 3643 of 23 & 3645 of 23 as.doc

more at the form of the proceedings while ignoring the real effect,

the learned Judge held as follows:

"An executor who prays for probate prays in form for

something which can be granted to no one else. But the

essence of the proceedings is that he seeks to establish a will,

not for himself, but as the representative of those who take

benefits under it. If he fails in his duty, any of those whom

he represents may intervene to carry on the proceedings,

having in effect by representation through the executor been

a party to the proceedings from the outset. And, if in the

course of the proceedings the executor drops out through

death, it follows that any of those he has represented may

similarly carry on the proceedings with the unessential

modification that the prayer must then be for Letters of

Administration with the Will annexed."

A subsequent judgment of the Madras High Court in Govind M.

Asrani vs. Jairam Asrani & Anr., AIR 1963 Madras 456, reiterated

the same view. The Division Bench held that both in a case where

an executor applies for issue of a probate and also where a legatee or

other person applies to the Court for the grant of Letters of

Administration with the will annexed, the question that has to be

decided is the same, namely, (i) whether the will is true; (ii)

whether it was executed in accordance with law; (iii) whether there

was capacity in the testator to make the will; and (iv) there being no

fraud or other infirmity attending the execution of the document.

Whether it be an executor or an administrator, the right or interest

possessed by them in the properties of the testator is the same and

both have to administer them in accordance with the directions

contained in the will. In this context the Division Bench held as

follows:

"To put it in other words, the proceedings taken out

either for the grant of probate or Letters of

Administration with the will annexed are in the

interest of the legatees and the question involved in

such proceedings will be the same, namely, about the

truth and genuineness of the will. In both the cases it

will be open to a person interested to intervene. Final

adjudication as to the genuineness of the will in both

cases will operate as a judgment in rem.

14/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 15/25 IA 3643 of 23 & 3645 of 23 as.doc

"..... It is true that in form a probate is different from a

Letters of Administration with the will annexed; there

is also difference in procedure regarding necessity to

take security; but it cannot be denied that an

adjudication in an application or suit for obtaining

probate or Letters of Administration will be binding on

all the persons interested in the estate of the deceased

testator."

The Division Bench recognized that the impleading of a legatee in

the place of the deceased executor would involve an alteration of

the petition which was originally filed for the issue of the probate

into one for the grant of Letters of Administration but held that this

was a technicality not affecting the substance of the matters to be

decided in the case.

14.The Supreme Court had occasion to consider a similar issue

in Shambhu Prasad Agarwal & Ors. vs. Bhola Ram Agarwal, (2000)

9 SCC 714. -------

15.The judgment of the Supreme Court is therefore authority

for the principle that the right to seek probate of a Will executed by

a deceased testator is personal to the executor appointed under the

Will. Upon the death of the executor the heirs of the executor

cannot be substituted in his place. However, this would not debar

the legatee and upon the death of the legatee his heirs from seeking

substitution.

18.Both a proceeding for the grant of probate as well as a

proceeding for the grant of Letters of Administration with the will

annexed is initiated for protecting the interest of the legatees under

the will. The essence of the enquiry in both the proceedings is the

same and relates to the genuineness and authenticity of the will.

Having regard to these fundamental similarities in both the

proceedings there is no conceivable reason as to why the law must

be regarded as prohibiting a beneficiary from seeking to continue

the proceedings upon the death of the sole executor and as

incidental thereto for seeking formal conversion of the proceeding

from one for the grant of a probate to one for the issuance of Letters

of Administration. If there were to be a specific prohibition in law

enacted by the legislature the position may have well been different.

15/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 16/25 IA 3643 of 23 & 3645 of 23 as.doc

In the absence of a legal prohibition to the contrary the Court

would not readily accept a submission, the effect of which would be

to result in delaying the proceedings for the Administration of the

estate and a resultant multiplicity of proceedings. This is amplified

in the present case where the recording of evidence is complete.

Nearly eight years have elapsed since the institution of the suit.

Evidence of seven witnesses has been recorded and the suit is ripe

for final hearing. There is no dispute about the position that in any

event the beneficiary would have been entitled to institute separate

proceedings independently for the grant of Letters of

Administration. That right can well be espoused by the beneficiary

by seeking a continuation of the existing proceedings. It must be

noted, that this right which is available is recognized with reference

to a beneficiary under the will. A fundamental difference has to be

made between a situation where the legal heirs of a sole executor

seek impleadment in the proceedings on the death of the executor.

The legal heirs of the sole executor cannot be brought on record

since the right to seek probate of the Will subsists in the executor

alone. But that is not to say that a beneficiary under the Will is

prohibited from continuing the existing proceedings. The

proceedings enure to the benefit of the legatee. The appointment of

the administrator is but a step in aid of the proper Administration

of the estate of the deceased. Section 273 provides that probate or

Letters of Administration shall have effect over all the properties

and estate of the deceased through 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. Parties, documents and facts are similar in

both sets of proceedings. In this view of the matter and particularly

having regard to the judgment of the Supreme Court to which we

have made a reference earlier we are of the considered view that the

learned Single Judge was not in error in allowing the Chamber

Summons.”

(emphasis supplied)

20. Thus, in Vatsala Srinivasan this court, after following the

judgment of the Apex Court in Shambhu Prasad Agarwal held that

legal heirs of sole executor cannot be brought on record since right to

16/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 17/25 IA 3643 of 23 & 3645 of 23 as.doc

seek probate of Will subsists in the executor alone, but beneficiaries

under the Will cannot be prohibited from continuing the existing

proceedings. This Court also held that the enquiry in both the

proceedings is common viz. to determine genuiness of the will.

21. In Haresh Chetan Thadhani (supra) Division Bench of

this court has reiterated the above legal position. The only difference

in Haresh Chetan Thadhani is that it considered earlier judgment of

Division Bench of this Court in Thirteen Sam Shroff Vs. Shriaz

Byramji Anklesaria which had stuck a somewhat discordant note by

holding that substitution in abated proceedings filed by executor upon

his death cannot be permitted upon an application made by legal

representatives for issuance of Letters of Administration. In Haresh

Chetan Thadhani, however, this Court held that the judgment of the

Apex Court in Shambhu Pradad Agarwal was not brought to the

notice of the Division Bench while deciding Thirteen Sam Shroff. The

court held in paragraph No.11 to 13 as under

“11.Unfortunately, the judgment of the Apex Court in Sharnbhu

Prasad Agarwan (supra) was not brought to the notice of the

Division Bench.------

12. Apex Court then permitted the Appellant therein to be

substituted in the proceedings and also permitted them to amend

the Petition.

13. In our view, the facts in the said case before the Apex Court

are identical to the facts of the case in this appeal. We are, therefore,

of the view that the learned Single Judge has rightly permitted the

Respondents/original Plaintiff to amend the Petition for Probate

17/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 18/25 IA 3643 of 23 & 3645 of 23 as.doc

and seek Letters of Administration. It is not in dispute that the

Respondents/original Plaintiff were entitled to file a Petition for

issuance of Letters of Administration. No useful purpose will be

served therefore in now asking them to file a separate Petition for

Letters of Administration. As it is, Petition for Probate was filed in

1999 and it is pending in this Court for last about 14 years.”

22. In Chandanagauri Amarchand Doshi a Single Judge of this

court has dealt with somewhat similar factual situation as involved in

the present case. In that case, the testator had died after making a will

and his wife was not only the sole executor but also the sole

beneficiary. The wife filed proceedings for grant of probate, which

were opposed by her sons. During pendency of proceedings, the wife

died and applications were filed by children for conversion of the

petition for grant of probate to that of issuance of Letters of

Administration with will annexed. This Court held that the wife

fulfilled both capacities as executor and beneficiary and that therefore

her heirs cannot be denied their rights only because she had filed

proceedings for grant of probate. This court held in paragraph No.14

as under-

“14.Chandanagauri fulfilled both capacities. She was an

executor. She was also the sole legatee. Chandanagauri’s children

are her heirs as a legatee and that heirship cannot be denied or

eclipsed merely because she has sought probate, acting as an

executrix, to her late husband’s Will.”

18/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 19/25 IA 3643 of 23 & 3645 of 23 as.doc

23. After considering the law expounded in the judgments

quoted above it is clear that heirs of a beneficiary / legatee under a

Will are entitled to have their names substituted upon death of legatee

/ beneficiary. Furthermore, proceedings filed by an executor who is

also a beneficiary, for grant of probate can be converted into

proceedings for issuance of Letters of Administration and in such

proceedings, heirs of said beneficiary / legatee can be permitted to be

substituted.

24. However in all the judgments cited above, the question of

substitution of legal heirs and/or conversion of proceedings from grant

of probate to issuance of Letters of Administration took place during

pendency of the original proceedings. In the present case, the original

proceedings instituted by Plaintiff-Kunjumon for grant of probate

have been terminated on account of dismissal of his suit. What pends

now is the appeal instituted by Plaintiff-Kunjumon. The issue that

therefore arises is whether heirs of Plaintiff-Kunjumon can be

permitted to convert proceedings filed before the Trial Court into

proceedings for issuance of Letters of Administration. We see no

difficulty in doing so, primarily because what can be done by Plaintiff-

Kunjumon himself can also also be done by his heirs. Furthermore

what can be done during pendency of the original proceedings before

the Trial Court can also be done during pendency of appeal before this

Court. Appeal is afterall continuation of proceedings filed before the

19/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 20/25 IA 3643 of 23 & 3645 of 23 as.doc

Trial Court. Plaintiff-Kunjumon has filed the present appeal to

establish his rights under the Will, which he failed in establishing

before the Trial Court. a Plaintiff-Kunjumon could have applied for

conversion of proceedings during his lifetime. As held in the above

quoted judgments, after his death, his legal heirs could also have

applied for conversion of proceedings. We see no reason why the legal

heirs cannot do so in pending appeal.

25. It is also required to be borne in mind that the Applicants

have right to file their own independent proceedings seeking Letters of

Administration. However their entry into present appeal is

necessitated on account of issuance of letters of administration by the

Trial Court in favour of the defendants. Therefore with a view to

ensure that there are no conflicting decrees, it is appropriate that both

the parties establish their rights in same proceedings, which is the

present Appeal.

26. The matter needs to be viewed from another angle as well.

If applicant’s applications are to be rejected, the same would result in

rendering them remediless in respect of their alleged rights flowing

out of alleged Will executed in favour of Plaintiff-Kunjumon.

Plaintiff-Kunjumon made an attempt before the Trial Court to

establish that a valid Will was executed by Ranjana Doshi in his

favour. He failed in his attempt and the Defendants succeeded in

establishing before the Trial Court that the Will is not a valid

20/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 21/25 IA 3643 of 23 & 3645 of 23 as.doc

document and Ranjana Doshi died intestate. Plaintiff-Kunjumon was

aggrieved by the findings recorded by the Trial Court and has filed the

present appeal before this court. During pendency of the appeal he has

unfortunately expired. If heirs of Plaintiff-Kunjumon are now not

permitted to be brought on record, the same would result in

extinguishment of their rights. If on the other hand, the applications

are allowed by bringing legal heirs of deceased Kunjumon on record,

they would get a chance to appeal before this court that findings

recorded by Trial Court are erroneous. However the only way by

which legal heirs of Plaintiff-Kunjumon can be brought on record is

by converting the original proceedings for grant of probate into

proceedings for issuance of Letters of Administration with Will

annexed. As held by this Court in Vatsala Shrinivasan (supra), the

nature of enquiry in both the sets of proceedings is same. The legal

heirs of deceased Plaintiff will have to prove before the Appellate

Court that the will has been validly executed. Therefore Applicants

can be permitted to convert the proceedings instituted by Plaintiff-

Kunjumon for grant of probate into the one for issuance of letters of

administration with will annexed.

27. This propels us to the last issue of permissibility to amend

pleadings in a disposed of suit at appellate stage. Applicants are

seeking amendment of the Plaint for its conversion into application for

issuance of letters of administration with will annexed. Upon being

21/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 22/25 IA 3643 of 23 & 3645 of 23 as.doc

enquired whether it is really necessary to amend the plaint at this

stage, Mr. Joshi would express an apprehension that since records and

proceedings/paper book would be re-questioned by this court for

deciding the appeal, it would be necessary to carry out the amendment

in the plaint as well so as to ensure that there is no incongruity

between the plaint and the memo of appeal.

28. It is well settled legal position that pleadings in suit can be

permitted to be amended even at the appellate stage. In this

connection the judgment relied upon by Mr. Joshi in Pandit Ishwardas

(supra) is apposite. In paragraph No.5 of the judgment it is held as

under :

“5.There is no impediment or bar against an appeallate Court

permitting amendment of pleadings so a to enable a party to raise a

new plea. All that is necessary is that the appellate Court should

observe the well known principles subject to which amendments of

pleadings are usually granted. Naturally one of the circumstances

which will be taken into consideration before an amendment is

granted is the delay in making the application seeking such

amendment and, if made at the appellate stage, the reason why it

was not sought in the trial Court. If the necessary material on which

the plea arising from the amendment may be decided is already

there, the amendment may be more readily granted than otherwise.

But, there is no prohibition against an appellate Court permitting

an amendment at the appellate stage merely because the necessary

material is not already before the Court.”

Therefore, even though Suit instituted by Plaintiff-Kunjumon has

been disposed of, his legal heirs can be permitted to amend the plaint

22/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 23/25 IA 3643 of 23 & 3645 of 23 as.doc

in the suit for converting the same into the one for issuance of letters

of administration. Therefore both the applications for conversion of

Suit into proceedings for issuance of Letters of Administration with

Will annexed and for substitution of names of legal heirs deserve to be

allowed.

29. Mr. Chandrachud’s objection that allowing applicants’

applications is an exercise in futility does not appeal to us. It appears

that the Plaintiff-Kunjumon has challenged the common judgment

and order dated 20 September 2021 passed in Special Civil Suit

No.208 of 2019 as well as Special Civil Suit No.209 of 2019. This

court has passed ad-interim injunction in favour of the appellant, on

account of which the Letters of Administration issued in favour of

Defendants have not been executed. Therefore Mr. Chandrachud’s

contention that the Letters of Administration issued in favour of

Defendants are not under challenge or that the same have been acted

upon does not appear to be factually correct. So far as the objection of

Mr. Chandrachud that conversion of proceedings at this belated stage

would warrant leading of additional evidence, Mr. Joshi would fairly

submit that since the inquiry into both types of proceedings is

common/same, there would ordinarily be no necessity of leading any

additional evidence. Under the provisions of Order 41, Rule 27 of the

Civil Procedure Code, during the course of hearing of the Appeal, it is

for this Court to decide whether any additional evidence would be

23/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 24/25 IA 3643 of 23 & 3645 of 23 as.doc

necessary and at this juncture it is not necessary to make any

observations in that regard.

30. Mr. Chandrachud also sought to make submissions about

merits of the appeal. However at this juncture we are not concerned

about the merits of the matter. What needs to be decided today is

whether the proceedings filed for grant of probate can be permitted to

be converted into proceedings for issuance of Letters of

Administration with will annexed and whether applicants can be

permitted to be substituted in place of deceased Plaintiff-Kunjumon.

Mr. Chandrchud however fairly concedes that the nature of inquiry in

both the proceedings would be same and that therefore the ultimate

question which this Court would decide in the appeal would be who is

entitled to be issued Letters of Administration in respect of the estate

of late Ranjana.

31. Resultantly we are of the view that both the Interim

Applications filed by Applicants deserves to be allowed. We therefore

proceed to pass the following order:

i)Interim application No.3645 of 2023 is allowed by

permitting the Applicants to be brought on record as

legal representatives of the deceased Appellant. They

are also permitted to amend the appeal memo in

24/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::

kishor 25/25 IA 3643 of 23 & 3645 of 23 as.doc

terms of Schedule annexed to the Application.

Necessary amendment be carried out within 2 weeks.

ii)Interim Application No.3643 of 2023 is allowed by

permitting Applicants, who are brought on record as

legal representatives of deceased appellant, to amend

the plaint in Special Civil Suit No.208 of 2019 in

terms of Schedule annexed to the Application.

Necessary amendment be carried out before the Trial

Court within a period of 4 weeks from today.

iii) Both the Interim Applications are accordingly

disposed of. There shall be no order as to costs.

SANDEEP V. MARNE, J. DHIRAJ SINGH THAKUR, J.

25/25 ::: Uploaded on - 04/07/2023 ::: Downloaded on - 30/08/2025 17:41:55 :::