Case No. MA No. 85/2014 Page 1 of 24

Sr. No. 123

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case No:- MA No. 85/2014

1. Sushila Sharma (Age 75)

w/o late Nagendra Nath Sharma

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

Reserved on : 02.07.2026.

Date of Pronouncement: 08.07.2026.

Uploaded on : 08 .07.2026.

…. Appellant(s)/Petitioner(s)

Through:- Ms. Zoya Bhardwaj, Advocate

V/s

1. Mahindra Kumar Sharma

S/o Late Kidar Nath Shastri

R/o Patel Chowk, Jammu

2. Dr. Pran Nath

S/o Late Kidar Nath Shastri

R/o APT-489, Pleasant Street, Brook Line,

Baston (Mass), USA.

…..Respondent(s)

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 2 of 24

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

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then applicable State Act, which now stands repealed pursuant to the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

Case No. MA No. 85/2014 Page 3 of 24

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.

Case No. MA No. 85/2014 Page 4 of 24

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

Case No. MA No. 85/2014 Page 5 of 24

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

Case No. MA No. 85/2014 Page 6 of 24

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

Case No. MA No. 85/2014 Page 7 of 24

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 8 of 24

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

Case No. MA No. 85/2014 Page 9 of 24

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

Case No. MA No. 85/2014 Page 10 of 24

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

Case No. MA No. 85/2014 Page 11 of 24

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

Case No. MA No. 85/2014 Page 12 of 24

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

Case No. MA No. 85/2014 Page 13 of 24

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

Case No. MA No. 85/2014 Page 14 of 24

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

Case No. MA No. 85/2014 Page 15 of 24

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

Case No. MA No. 85/2014 Page 16 of 24

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.

Case No. MA No. 85/2014 Page 17 of 24

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,

Case No. MA No. 85/2014 Page 18 of 24

"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 19 of 24

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 20 of 24

*"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 21 of 24

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 22 of 24

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 23 of 24

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 24 of 24

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