IN THE GOODS OF SHIBANI BHAR (DECD.) vs JAGBANDHU BHAR & ANR. -VS- RABINDRANATH BHAR

IN THE HIGH COURT AT CALCUTTA
Testamentary And Intestate Jurisdiction
ORIGINAL SIDE


Present:
The Hon’ble Justice Ananya Bandyopadhyay

TS/8/2008
IA NO: GA/4/2012 (OLD NO: GA/630/2012), GA/5/2025

IN THE GOODS OF:
SHIBANI BHAR (DECD.)
AND
JAGBANDHU BHAR & ANR.
-VS-
RABINDRANATH BHAR


For the applicant : Mr. Sharanya Chatterjee, Adv.
In GA/5/2025 Mr. Amartya Basu, Adv.
Mr. Subhajit Barman, Adv.
Ms. Riya Kundu, Adv.

For the defendant : Mr. Meghnad Dutta, Adv.
Mr. S. Rudra, Adv.

Judgment on : 15.09.2026

Ananya Bandyopadhyay, J.:-

1. The controversy in the present application arises from the death of both
persons named as executor and executrix in the Last Will and Testament dated
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8 October, 1994 executed by Smt. Shibani Bhar, since deceased. Sri Debashis
Bhar, claiming to be the sole legatee and beneficiary under the testamentary
instrument, seeks continuation of the pending testamentary proceeding
through a grant of Letters of Administration with the Will annexed, together
with the consequential amendments necessitated by the deaths of the executor
and executrix.

2. Smt. Shibani Bhar, a Hindu, governed by the Dayabhaga School of Hindu Law,
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died on 19 May, 2002. Her Will bears the date 8 October, 1994. By the
testamentary disposition, Sri Jagabandhu Bhar and his wife Smt. Smriti Bhar

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were appointed jointly and severally as executor and executrix. Sri Debashis
Bhar claims the entire testamentary benefit as the sole legatee.
3. A proceeding seeking probate of the Will was instituted in the year 2002.
Following the entry of a caveat and the ensuing contest, the proceeding came to
be treated as T.S. No. 8 of 2008.
4. The testamentary proceeding has thereafter traversed a considerable period.
Rabindra Nath Bhar, one of the heirs of the deceased testatrix, died leaving no
heir or legal representative; his name was deleted from the proceeding by an
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order dated 15 September, 2011.
5. Sri Jagabandhu Bhar, one of the persons appointed to administer the
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testamentary estate, died on 8 February, 2018. His wife, Smt. Smriti Bhar,
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who was the surviving executrix, died subsequently on 20 February, 2023.
With the demise of both persons named in the Will for performance of the
executorial function, the question now arises as to the course by which the
testamentary adjudication is to proceed.
6. Sri Debashis Bhar does not seek to assume the office of executor or to succeed
to any personal authority attached to such office. His claim is of a different
character. He asserts a testamentary interest as the sole legatee and seeks
continuation of the adjudication concerning the Will, with the relief
appropriately recast as one for Letters of Administration with the Will annexed.
7. The distinction assumes significance in the context of Sections 222 and 232 of
the Indian Succession Act, 1925. Probate is confined to an executor appointed
by the Will, whereas Section 232 of the said Act contemplates the grant of
Letters of Administration with the Will annexed in circumstances where the
executorial route has ceased to exist.

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8. The respondent contests the relief on several grounds. The principal objection
proceeds on alleged abatement of the testamentary proceeding following the
deaths of the executor and executrix. The respondent also questions the
applicant's locus, challenges the proposed conversion from probate to Letters of
Administration and invokes delay in making the application and lack of
explanation for the same as further impediments.
9. A substantive challenge has also been directed against the Will itself. Its
execution is disputed; the authenticity of the signature attributed to Smt.
Shibani Bhar is questioned; the allegations of fabrication and subsequent
manufacture of the testamentary instrument have been advanced. The
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applicant's status as sole legatee and the Affidavit of Assets dated 13 August,
2002, disclosing assets valued at Rs.4,99,000/-, have also been questioned.
10. The applicant meets the objections principally by invoking Section 232 of the
Indian Succession Act, 1925. Reliance has been placed upon Shambhu Prasad
Agarwal & Ors. v. Bhola Ram Agarwal, (2000) 9 SCC 714 , and Vatsala
Srinivasan v. Shyamala Raghunathan, (2016) 13 SCC 253 .
11. The respondents relied upon Thirty Sam Shroff v. Shiraz Byramji Anklesaria,
AIR 2007 Bom 103 , and Sanjay Tribedi @ Munna Tribedi v. Kanti Devi & Ors.,
2024 SCC OnLine Pat 8327 .
12. The rival authorities therefore require examination principally on one question:
whether the death of the executor and executrix brings the testamentary
adjudication to an end, or whether the sole legatee may carry the proceeding
forward through the statutory route of Letters of Administration with the Will
annexed.
13. Section 222 of the Indian Succession Act confines a grant of probate to an
executor appointed by the Will.

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14. Section 232 of the said Act addresses a situation, where the executor dies
before proving the Will, the statute provides an option for testamentary
administration through Letters of Administration with the Will annexed in
favour of a person possessing the requisite testamentary entitlement.
15. The distinction between the office of executor and the status of legatee is
therefore not merely semantic. The former concerns the authority conferred by
the testatrix for carrying the testamentary disposition into administration; the
latter concerns the benefit created by the testamentary disposition.
16. Death of an executor consequently invoked a distinct legal consequence from
death of a legatee. An executor does not transmit his executorial office to his
heirs. A legatee, however, derives his claim from the testamentary disposition
itself.
17. The applicant's case falls within the latter category. He does not seek to
become executor by succession. He seeks effectuation of statutory provision by
which the testamentary proceeding may continue after the death of the
executor and executrix as aforesaid.
18. The question is answered with considerable clarity by Shambhu Prasad
Agarwal & Ors. v. Bhola Ram Agarwal, (2000) 9 SCC 714 .
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19. In Shambhu Prasad Agarwal v. Bhola Ram Agarwal , the Hon’ble Supreme
Court observed the following:-
“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

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(2000) 9 SCC 714

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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.”

20. In Shambhu Prasad Agarwal (supra), the testatrix had bequeathed her estate to
her nephew. The legatee instituted a proceeding seeking probate, although the
appropriate testamentary relief in his capacity was Letters of Administration.
During pendency of the proceeding, the legatee died. His heirs sought
substitution and amendment so as to pursue the appropriate testamentary
relief.
21. The Supreme Court permitted continuation of the proceeding and rejected the
proposition that no right capable of continuation could arise in favour of the
heirs of a legatee merely because the original proceeding had been framed as
one for probate.
22. The Supreme Court drew a vital distinction between a proceeding instituted by
an executor, whereby the discharge of duties as per the Will is personal to the
person appointed only to the extent of effectuating the directions in the Will
precluding any of his/her personal interest in the proceedings and a
proceeding pursued by a legatee whose interest arises from the testamentary
disposition.
23. The principle emerging from Shambhu Prasad Agarwal (supra) applies with
greater solidarity. The applicant does not seek the office held by Sri

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Jagabandhu Bhar or Smt. Smriti Bhar. He seeks to proceed the testamentary
claim as the person in whose favour the Will is alleged to have made its
dispositive provision.
24. The alteration sought is consequently one in the form of testamentary relief.
The testamentary instrument remains the same; the testatrix remains the
same; the alleged testamentary benefit remains the same; the controversy
concerning validity of the Will remains open for adjudication.
25. The decision of the Supreme Court in Vatsala Srinivasan v. Shyamala
Raghunathan, (2016) 13 SCC 253 further strengthens the distinction.
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26. In Vatsala Srinivasan v. Shyamala Raghunathan , the Hon’ble Supreme
Court observed as follows:-
“8. We are also in agreement with the view expressed in the impugned
judgment, which has also relied upon law laid down in Jadeja Pravinsinhji
Anandsinhji [Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinhji
Shivsinhji, 1961 SCC OnLine Guj 62 : AIR 1963 Guj 32] , in which it has
been held: (SCC OnLine Guj paras 6 & 9)
“6. …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 get an adjudication not of any dispute in which
he is personally interested but the object is to propound the will of the
deceased for the benefit of those who take an interest in the will.
*
9. It is, therefore, clear that an executor in applying for probate is not
fighting a personal action but fighting for the interests of all the
beneficiaries under the will. Therefore the action of an executor in
applying for a probate is not in substance a personal action and as
observed earlier by me the maxim actio personalis moritur cum
persona could not apply to such a case. If the executor fails in his duty,
any of those whom he represents are entitled to intervene and carry on

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(2016) 13 SCC 253

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the proceedings with a “formal modification” that the prayer must then
be for letters of administration with the will annexed.””

27. In Vatsala Srinivasan (supra), the executor died during pendency of a
testamentary suit. The sole legatee sought Letters of Administration and
amendment of the pleadings. The course permitting continuation of the
proceeding through conversion of the testamentary relief was affirmed by the
Supreme Court.
28. The Supreme Court recognised probate and Letters of Administration as
proceedings belonging to the same testamentary jurisdiction. The essential
adjudication concerns the genuineness and legal efficacy of the Will. The mode
of testamentary grant may change upon death of the executor without
requiring the entire adjudication concerning the Will to commence afresh.
29. The principle assumes direct relevance here. The applicant claims as sole
legatee. Both persons entrusted with the executorial function have died. The
applicant seeks no declaration conferring upon him the office of executor. His
prayer is for Letters of Administration with the Will annexed.
30. The proposed alteration therefore preserves the testamentary controversy while
placing the prayer for relief in conformity with the altered circumstances
arising from the deaths of the executor and executrix.

31. Vatsala Srinivasan (supra) also projects significance in relation to Thirty Sam
Shroff v. Shiraz Byramji Anklesaria, AIR 2007 Bom 103 .
32. Thirty Sam Shroff (supra) concerned the death of executors in a proceeding in
which probate had been sought by persons claiming through the executorial
office. The Division Bench examined the statutory character of probate and
held that probate could not be granted to a person other than an executor
appointed by the Will.

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33. The factual and legal backdrop in the present case is materially different. The
applicant does not seek probate in his capacity as an executor. He seeks
Letters of Administration in his capacity as sole legatee.
34. The distinction also finds relevance in the later consideration of the Bombay
High Court in the litigation culminating in Vatsala Srinivasan (supra), where
Thirty Sam Shroff (supra) was distinguished on the basis of the different legal
position arising when a legatee seeks continuation of the testamentary
proceeding through Letters of Administration.
35. More importantly, the Supreme Court thereafter dealt directly with the issue in
Vatsala Srinivasan (supra) and affirmed continuation of the testamentary
proceeding through conversion of the relief.
36. A Division Bench decision concerning the executorial office cannot control a
case governed by a later pronouncement of the Supreme Court concerning
continuation by a legatee.
37. The respondents have also placed reliance upon Sanjay Tribedi @ Munna
Tribedi v. Kanti Devi & Ors., 2024 SCC OnLine Pat 8327 .
38. The decision arose from a proceeding where the deceased probate petitioner
had acted in the capacity of executor. After his death, his heirs or legal
representatives sought substitution in his place. A further question arose
concerning transposition of a defendant as plaintiff. The Patna High Court
declined such substitution in the probate proceeding and pointed towards the
statutory remedy of Letters of Administration.

39. The factual distinction is decisive.
40. The applicant in the present case is not an heir seeking succession to the
executorial office of a deceased executor. He does not seek substitution for the
purpose of obtaining probate as though he were the deceased executor. He

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claims an independent testamentary status as the sole legatee and seeks
conversion of the relief into Letters of Administration with the Will annexed.
41. Sanjay Tribedi (supra) therefore does not govern the present case.
42. There is a further and more fundamental reason. The Supreme Court in
Vatsala Srinivasan (supra) has already considered the continuation of
testamentary proceedings after death of an executor at the instance of a sole
legatee and has approved the course of conversion into Letters of
Administration. A later decision of a High Court cannot displace a binding
pronouncement of the Supreme Court.
43. The objection based upon alleged abatement also cannot prevail.

44. Section 295 of the Indian Succession Act contemplates a contentious
proceeding assuming the form of a regular suit for the purposes of
adjudication. Such procedural character does not strip the proceeding of its
statutory identity as a testamentary proceeding.

45. The provisions of the Code of Civil Procedure therefore operate within the
statutory framework of the Indian Succession Act. Procedural rules concerning
substitution cannot be applied in a manner defeating a specific statutory
mechanism permitting testamentary administration through Letters of
Administration with the Will annexed.
46. The respondents' argument proceeds upon an assumption of equivalence
between substitution of an executor and continuation by a legatee. The two
situations are legally distinct.

47. An executor derives authority from the appointment endorsed by the testatrix.
The office is personal to the appointee. A legatee derives his claim from the
testamentary disposition. Death of the executor removes the person capable of

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receiving probate; it does not, by itself, extinguish the testamentary interest
created in favour of a legatee.
48. Section 232 of the Indian Succession Act addresses precisely such a change in
the executorial circumstance.
49. The Court is therefore unable to accept the proposition that the death of both
executor and executrix caused the pending testamentary adjudication to perish
by operation of abatement.
50. The objection based upon delay requires a more precise examination.
51. The law of limitation does apply to applications for probate and Letters of
Administration in appropriate circumstances. Article 137 of the Limitation Act,
1963 has been held applicable to such testamentary applications. The
applicability depends upon accrual of the right to apply and upon the
circumstances giving rise to the particular relief.
52. The present application concerns the procedural consequence arising after
death of the persons appointed as executor and executrix. Sri Jagabandhu
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Bhar died on 8 February, 2018. Smt. Smriti Bhar, the surviving executrix,
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died on 20 February, 2023. On the chronology appearing from the record, the
application was brought within three years from the latter date.

53. The plea of limitation, insofar as it rests upon alleged abatement following
death of the surviving executrix, therefore does not furnish a reason for
termination of the proceeding.
54. To the extent a prayer for condonation of delay has also been incorporated, no
separate prejudice is occasioned to the respondents by allowing such prayer.
The procedural relief became necessary following cessation of the executorial
route and the testamentary controversy itself remains pending before the
Court.

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55. The prayer for condonation, insofar as necessary, is accordingly allowed.
56. The allegations concerning fabrication and non-execution of the Will are
substantially on a different plane and require no determination at the present
stage.
57. The respondent disputes the signature attributed to Smt. Shibani Bhar and
alleges fabrication of the testamentary instrument. Such allegations constitute
substantive matters for adjudication in the testamentary proceeding.
58. The order permitting conversion of the prayer for probate into a prayer for
Letters of Administration does not amount to acceptance of the Will. Nor does it
confer any testamentary right upon the applicant by judicial declaration at the
present stage.
59. Questions concerning execution of the Will, attestation, testamentary capacity,
genuineness of the signature, validity of the testamentary disposition, the
applicant's status as sole legatee and the extent and character of the estate
remain open for adjudication.
60. The Court is concerned presently with the procedural consequence emanating
from the death of the executor and executrix. The substantive testamentary
controversy will require adjudication at the appropriate stage.

61. The respondents' further submission is that conversion from probate to Letters
of Administration changes the nature and character of the proceeding and
therefore cannot be permitted by amendment.
62. The submission cannot be accepted.
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63. The testamentary instrument remains the Will dated 8 October, 1994. The
testatrix remains Smt. Shibani Bhar. The testamentary benefit claimed by the
applicant remains the same. The contest concerning validity of the Will

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remains alive. What has altered is the pursuance of the executorial route
consequent on the deaths of Sri Jagabandhu Bhar and Smt. Smriti Bhar.
64. A change in the mode of seeking testamentary relief, necessitated by an event
occurring during pendency of the proceeding, does not by itself introduce a
new cause of action or a new testamentary dispute.
65. The proposed amendment serves the adjudication already pending. It prevents
a procedural circumstance concerning the persons originally appointed to
administer the estate from frustrating determination of the testamentary
controversy.
66. The course sought by the applicant is therefore consistent with the statutory
purpose of Sections 222 and 232 of the Indian Succession Act.
67. The authorities relied upon by the applicant, particularly Shambhu Prasad
Agarwal (supra) and Vatsala Srinivasan (supra), furnish the appropriate
answer to the controversy.

68. Shambhu Prasad Agarwal (supra) recognises the distinction between the
personal character of the executorial office and the testamentary interest of a
legatee. Vatsala Srinivasan (supra) subsequently confirms the permissibility of
continuation of testamentary proceedings through Letters of Administration
after death of the executor, where the testamentary beneficiary seeks such
continuation.
69. Thirty Sam Shroff (supra) concerns the executorial office and does not address
the present situation in the manner required by the later Supreme Court
decision. Sanjay Tribedi (supra) concerns substitution of heirs or legal
representatives in the place of a deceased executor and likewise does not
govern a prayer made by a sole legatee for conversion into Letters of
Administration.

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70. The applicant's prayer consequently merits acceptance.
71. The deaths of Sri Jagabandhu Bhar and Smt. Smriti Bhar shall be recorded in
the proceeding.
72. Sri Debashis Bhar, claiming as the sole legatee and beneficiary under the Last
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Will and Testament dated 8 October, 1994, shall be brought on record for
continuation of the testamentary proceeding and pursuit of the appropriate
testamentary relief.
73. The prayer for grant of probate shall stand converted into a prayer for Letters of
Administration with the Will annexed.
74. The cause title and connected pleadings shall stand amended accordingly.

75. The consequential amendments shall be accomplished within four weeks from
the date of communication of this order and shall thereafter file the amended
pleadings with due reverification and reaffirmation.
76. The respondents shall retain every substantive objection available in law
concerning the Will, its execution and attestation, the applicant's testamentary
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entitlement, the estate and the Affidavit of Assets dated 13 August, 2002.
77. No finding is being recorded by the present order concerning genuineness or
validity of the Will.

78. The testamentary proceeding shall accordingly continue as a proceeding for
Letters of Administration with the Will annexed.
79. The application is allowed.
80. There shall be no order as to costs.
81. Next date be fixed on 01.12.2026.
(ANANYA BANDYOPADHYAY, J.)





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