To understand the case query we must first learn the provisions of the Indian Succession Act of 1925

IS AN EXECUTOR A TRUSTEE?

“There is a distinction between a trustee and an executor, in that the former has only the power to pay what is vested in him as trustee to the persons for whose use he holds it, but has no general power to receive and pay what is due to and from the estate, which is the office of the latter (vide paragraph 13, p. 12 of Williams). The same proposition appears in Halsbury’s Laws of England (3rd Edn., Vol. 16, p. 124, in paragraph 180)”

Provisions of Indian Succession Act 1925

Sec 222:  Probate only to appoint an 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.

  1. Grant of administration of 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, a universal or a residuary legatee may be admitted proving 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.

 Narration:

 Thus, the test for finding out whether a person is an executor according to the tenor is to find out whether he is, by necessary implication, nominated by the testator in his stead to generally administer the estate and to pay the testator’s debts and to receive his dues in the performance of his will.

An executor is placed in the stead of the testator and he has the right of action against the testator’s debtors and has also the right to dispose of the goods of the testator towards the payment of his debts and the performance of his will. An executor need not be expressly nominated; and if by necessary implication the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors. That the same is the position under the Indian Succession Act is evident from Section 222(2) thereof. Such an executor by necessary implication is usually called executor according to the tenor, and the question of whether a person is an executor according to the tenor or not depends upon the construction of the particular will.

 Citation

In the case of Mithibai Vs. Canji Kheraj, ILR 1901 Vol. XXVI page 571; ‘the second widow of the testator, who claimed probate on the death of the first widow in whose favour it was first granted, was also named as an executor in the will, and it was on that ground that she also was deemed to be an executor appointed by the will. Neither Sushilabai nor the respondents, therefore, can claim the grant of probate in respect of the will of Baburao Shastri. The same applies to Kamlabai, the other daughter of Baburao Shastri, who is also a party to these proceedings.’

The Calcutta High Court in the case of Nimai Charan Chatterjee Vs. Lakshmi Narayan Chatterjee, [1954] ILR 140;

‘no executor had been appointed under the will, this appeal must be allowed and the grant of probate dismissed. We do not express any opinion on the merits. If and when an application for the grant of letters of administration with a copy of the will annexed is filed by the legatee it will be for the court to consider the relevant question about the validity of the will and whether the paper produced is the last will and testament of Khagendra.’

The Mysore High Court in the case of Deveeramma and others Vs. M. S. Nanjappa and others, AIR 1961 Mys 150;

‘It is too long and too well settled that the Courts should always lean against regarding a person as having been appointed an executor by necessary implication, An executor by necessary implication or according to the tenor must have the right to receive, for the estate what is due to it and to pay what is due from it. That, appears to us to be the correct test to be employed to deter mine whether a person is an executor even according to the tenor. So tested, it is impossible to hold that the plaintiff was One.’

Kerala High Court in the case of Ummachikannummal Mohammed Pathummal and others Vs. Bhargavan Rajan and others, AIR 1964 Ker 258;

‘WILL in paragraph 6 of Ex. P-7 Bhargavan and Velappan are directed to collect the income from the estate for two years, after the death of the testator, and to make certain payments to several individuals. This is the only provision whereby Bhargavan and Velappan are jointly directed to do anything under the will. In paragraph 11 the names of persons and the amounts to be paid to them from the income are mentioned, and there reference is made to Velappan and Kochappi Shreedharan and not to Bhargavan and Velappan. Secondly, it does not appear even from the recitals in paragraph 6 that Bhargavan and Velappan are given any right to jointly administer the estate and to collect the dues and pay the debts of the testator or to attend to his obsequies. Paragraph 15 gives directions to Velappan and Shreedharan regarding the performance of the testator’s obsequies as well as his mother’s; and paragraph 16 recites that if there are any debts to be paid by the testator, they must be discharged by Velappan and Sree-dharan. From these recitals it is clear that the only right conferred on Bhargavan and Velappan is under paragraph 6 and that is only to collect the income from the properties for two years and distribute the same among the several individuals as mentioned in paragraph 11. This, as rightly pointed out by the learned District Judge, is not a general power of administration of the estate; but it only shows that Bhargavan and Velappan are trustees and they have only the power to pay what is vested in them as trustees to the particular persons for whose use they hold it. They have no general power to receive and pay what is due to and from the estate and therefore they are not executors according to the tenor.’

See also judgement of Allahabad High Court in the case of Sardar Singh Vs. Chakrapani Acharya, [1946] ILR 398

Explanation:

Section 222 of, Succession Act, makes it quite clear that the only person to whom probate can be granted is an executor. And an executor is defined by Section 2(c) of the Act as “a person to whom execution of the last will of a deceased person is, by the testator’s appointment, confided.” It seems quite clear, therefore, that if Swami Chakrapani was not an executor, then there could properly have been no question of probate being granted to him. That, as we have said, was not expressly considered by the District Judge and it is not taken before us in appeal. We shall consider in a moment whether the respondent, Swami Chakrapani, really was an executor or not, but before we reach that point, the first answer given by the respondent is that this was never a case in which the application for revocation was possible. For that he relies on Section 263, Succession Act, which is the section defining when it is possible for an application for revocation or annulment of a grant to be made. The section says that a grant may be revoked or annulled for just cause and it goes on by certain explanations and illustrations to state what shall be deemed to be “just cause.” We are prepared to accept it for the present purpose that the explanations and illustrations to Section 263 are exhaustive of what does constitute just cause; and it has to be confessed that there is nothing in express terms in it which covers a case of a person claiming as executor being given a grant of probate and it subsequently turning out that he never was an executor at all.

In Dimple Rakesh Doshi PETITION NO.2808 OF 2023 Bombay High Court

 “19. It appears that the directions given towards the end of the subject

Will have led to the department raising the aforesaid query on the question of maintainability of the present petition as a petition for grant of letters of administration with Will annexed. It appears that the department has indicated that since the petitioner could be said to be an executor by implication, a probate petition should have been filed. This Court finds that the department could not have raised such query / objection, for the reason that the petitioner cannot be said to be an executor even by implication. The language of the subject Will cannot be strained to hold that in the facts of the present case, the petitioner can be said to be an executor by implication. There is substance in the contention raised on behalf of the petitioner, with reference to Section 232 of the Succession Act, which when applied to the facts of the present case, shows that since the deceased had not appointed an executor in the subject Will, the legatee can be admitted to prove the Will and letters of administration with Will annexed can be granted to such a person.-

20. Therefore, in the present case, the petition for grant of letters of administration with Will annexed is maintainable.”

Conclusion:

 “Where it cannot be gathered from the will that the person named as trustee is required to pay the debts of the testator, and generally to administer his estate, he is not entitled to probate.”

 Remedy :

In such cases You have to apply for Letters of Administration with WILL annexed

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Shruti Desai

13th February 2024

Mumbai.