JYOTIBEN THAKKAR W/O MAHENDRAKUMAR THAKKAR vs LEGAL HEIRS OF DECEASED ATULBHAI JAGJIVANDAS TANNA

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 252 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 252 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT

==========================================================
Approved for Reporting Yes No
==========================================================
JYOTIBEN THAKKAR W/O MAHENDRAKUMAR THAKKAR
Versus
LEGAL HEIRS OF DECEASED ATULBHAI JAGJIVANDAS TANNA & ORS.
==========================================================
Appearance:
P M BUCH(7383) for the Appellant(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 02/11/2026

JUDGMENT
1. Heard Mr. P. M. Buch, learned advocate for the
appellant at length.
2. The only question raised by the appellant for the
consideration of this Court is whether a proceeding
instituted under Section 278 of the Indian Succession Act,
1925, by a legatee for the grant of letters of
administration would abate upon his death.
Page 1 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
3. This Second Appeal is filed under Section 100 of
CPC arising out of the judgment and decree dated
th
01.10.2025 passed by the 11 Additional District Judge,
Rajkot in Regular Civil Appeal No. 142 of 2023, whereby
the Appellate Court confirmed the judgment and decree
dated 31.8.2023 passed by Additional Senior Civil Judge,
Rajkot in Civil Miscellaneous Application No. 1080 of
2013.
3.1. The appellant herein is original defendant, whereas
the respondents herein are the legal heirs and
representatives of original plaintiff. For the sake of
convenience and brevity, they will be referred as
defendant and plaintiff respectively.
SHORT FACTS:
4. The plaintiff appears to have filed an application
being Civil Miscellaneous Application No. 1080 of 2013
under Section 278 of the Indian Succession Act, 1925
(hereinafter referred to as “the Act, 1925 ”), to obtain
Letters of Administration of the Will in respect of the
Page 2 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
immovable property of the deceased Narmadaben
Jagjivandas Tanna, who happens to be a real mother of
original plaintiff. The executor of the Will, namely
Narmadaben executed the Will on 18.10.1994 and she
died on 09.08.1999 at Rajkot. The application was
contested by the defendant. It further appears that during
the pendency of the application, the original plaintiff died
on 15.05.2019 and the respondents herein happen to be
his legal heirs and representatives were brought on
record as the plaintiffs. It is an undisputed fact that all
the heirs of deceased Narmadaben (executor) except the
defendant submitted their respective affidavits in support
of the original plaintiff by declaring that they have no
objection if the Letters of Administration may be granted
in favour of original plaintiff. Nonetheless, the appellant
herein – original defendant, objected the Will and
contested it on merit.
4.1. After hearing the parties and appreciating the
evidence on record, the Trial Court found that the
plaintiff has successfully proved the execution of Will in
Page 3 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
his favour and there is no reasonable doubt attached with
the Will. Thus, vide its impugned order dated 31.08.2023,
the Trial Court granted Letters of Administration in
favour of legal heirs and representatives of the original
plaintiff.
5. Feeling aggrieved and dissatisfied with the aforesaid
decision of the Trial Court, the defendant preferred
Regular Civil Appeal No. 142 of 2023.
6. For the first time, the defendant raised a legal
contention before the Appellate Court about the
maintainability of Civil Misc. Application No.1080 of 2013
after the death of original plaintiff. It was contended
before the Appellate Court that upon the death of original
plaintiff (legatee) on 15.05.2019, the aforesaid application
stands abated, inasmuch as the right to receive Letters of
Administration is a personal right and upon the death of
legatee, i.e., original plaintiff, no right to sue further
survives in favour of his legal heirs and representatives
(the respondents herein).
Page 4 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
6.1. The Appellate Court considered the aforesaid legal
issue raised before it and upon reappreciation of the
evidence on record as well as the impugned judgment,
found that there is no substance in the point raised before
it including others. Accordingly, vide its impugned
judgment and decree dated 01.10.2025, the Appellate
Court dismissed the aforesaid appeal. Hence, the present
Second Appeal.
SUBMISSIONS OF THE APPELLANT – DEFENDANT:
7. Mr. Buch, learned advocate for the defendant, would
submit that the Trial Court as well as the Appellate Court
has committed a jurisdictional error by entertaining the
application seeking Letters of Administration at the
instance of legal heirs and representatives of original
plaintiff. It is submitted that as per settled position of law,
the right to get Letters of Administration is a personal
right and it dies with the person. It is further submitted
that as per the Will, the original plaintiff though given an
immovable property in question, but he was not allowed
to sell for 15 years, whereby it was not an absolute right
Page 5 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
given in favour of the legatee by executor of the Will. It is
further submitted that original plaintiff died on
15.05.2019 and upon his death, the proceedings
instituted by him under Section 278 of the Act, 1925
stands abated.
7.1. Mr. Buch, learned advocate, would submit that the
Appellate Court has failed to appreciate the legal
contention raised before it and as such the contention
raised would go to the root of the matter, thereby, this
Court may entertain this Second Appeal on a substantial
question of law framed in the memo of this appeal.
7.2. To support his argument, Mr. Buch, learned
advocate would rely upon the following decisions:
(i) Motichand Harakhchand Shah Vs.
Smt. Dhanlaxmi Nyalchand Shah & Ors.
reported in (1979) 20 (2) GLR 92: (1979)
SCC OnLine Guj 219.
(ii) Thrity Sam Shroff Vs. Shiraz Byramji
Anklesaria And Anr. reported in (2007) 4
Mh. L. J. 56.
Page 6 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
(iii) Ravindra Khushaldas Mehta Vs.
Legal Repr. Of Decd. Smt. Indumati
Rameshchandra Pandit Navinbhai
Kanabhai Kangad reported in AIR 2023
Guj 167: (2023) SCC OnLine Guj 3042.
7.3. No other and further submissions are being
advanced by Mr. Buch, learned advocate.
ANALYSIS & REASONS:
8. Having heard Mr. Buch, learned advocate for the
defendant, and upon perusal of the impugned judgment
and decree passed by the Courts below as well as a copy
of Will in question (provided by Mr. Buch, learned
advocate during the course of his oral argument), prima
facie , it appears that the mother of the original plaintiff,
namely Narmadaben executed her Will on 18.10.1994 in
favour of her younger son, namely Atulbhai Jagjivandas
Tanna – original plaintiff. As per the Will, the self-acquired
property of executor was given to original plaintiff.
8.1. Upon bare perusal of the Will, it appears that
Page 7 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
original plaintiff has given a right of residence and use of
the immovable property in question up to 15 years and
until such time, he was not allowed to sell the house.
Nonetheless, it is mentioned in the Will that in a case
where the original plaintiff wants to purchase a bigger
house than the house in question, he can sell the house
and purchase a new one but that new house cannot be
sold for 15 years. The plaintiff was also not allowed to
create mortgage on the house for 15 years. Thus,
considering the bare averments of the Will, prima facie, it
can very well be appreciated that the intention of the
executor was to give her self-acquired property (house in
question) to her younger son Atulbhai, i.e., plaintiff.
9. According to me, after going through the aforesaid
Will, it can safely be held that upon death of the executor,
the house / the immovable property in question vested in
favour of the legatee of the Will, i.e., original plaintiff.
10. At this juncture, it would be appropriate to refer to
Section 104 of the Act, 1925, which reads thus:
Page 8 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
“104. Time of vesting legacy in general terms.—
If a legacy is given in general terms, without specifying the time when it
is to be paid, the legatee has a vested interest in it from the day of the
death of the testator, and, if he dies without having received it, it shall
pass to his representatives.”
10.1. A bare look of the aforesaid provision would destroy
the argument advanced by Mr. Buch, learned advocate,
appearing for the original defendant. As per the aforesaid
provision, if a legacy is given in general terms, the
legatee has a vested interest in it from the date of death
of the testator and upon his death, it shall pass to his
representatives. As observed above, upon the death of the
executor, the immovable property in question given to
original plaintiff vested in him. It is true that such vesting
was a conditional one, as the plaintiff was not permitted
to sell or mortgage of the house bequeathed under the
Will for 15 years. Assuming for the time being that after
15 years, it would vest in the legatee, then also the
legatee (plaintiff) died much after 15 years from the
death of the executor.
10.2. At this stage, I would like to refer to and rely upon
the decision of the Full Bench of the Hon’ble Apex Court
Page 9 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
in the case of Shambhu Prasad Agarwal Vs. Bhola
Ram Agarwal reported in ( 2000) 9 SCC 714 , wherein,
in somewhat similar factual situation, the Hon’ble Apex
Court observed and held thus:
“[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.”
(Emphasis supplied)
10.3. Even the Coordinate Bench of this Court in the case
of Ravindra Khushaldas Mehta (supra), in a different
factual situation than the case at hand also took a view
that in a case where legatee executes a Will in favour of
any other person, he would be considered as his legal
representative and such person can very well maintain
the proceeding under Section 278 of the Act, 1925,
Page 10 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
whereby he can obtain Letters of Administration even
though it was not applied by the legatee during his
lifetime.
11. Thus, in view of the aforesaid facts and
circumstances of the present case and in view of the ratio
laid down by the Hon’ble Apex Court in the case of
Shambhu Prasad Agarwal (supra), the argument
advanced on behalf of the defendant that the proceeding
in question stands abated upon the death of the legatee
has no legal backing, inasmuch as it has no legal force.
12. So far as the other decisions cited by Mr. Buch,
learned advocate for the defendant is concerned, though
both the decisions including the decision of the
Coordinate Bench of this Court in the case of Motichand
Harakhchand Shah (supra) takes contrary view than
settled position of law, I am of the considered view that
when there is a binding decision of the Full Bench of the
Hon’ble Apex Court is available, which according to me
directly apply to the issue at hand, the decisions cited by
Page 11 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
Mr. Buch, learned advocate for the defendant, are not
applicable. Rather, it can be observed that both these
decisions, i.e., Motichand Harakhchand Shah (supra)
and Thrity Sam Shroff (supra), would no longer
survive, as impliedly overruled by the decision of the
Hon'ble Apex Court in the case of Shambhu Prasad
Agarwal (supra) .
13. Since the issue raised before this Court is already
decided and answered by the Hon'ble Apex Court and in
view of the aforesaid provision of Act, 1925, according to
my view, there is no substance in the present Second
Appeal and it requires to be dismissed. It is a well-settled
position of law that in a case where the issue is already
decided by the Hon'ble Apex Court, merely because any
question of law raised would not be a ground to entertain
the second appeal, which otherwise is maintainable only
if any substantial question of law arises in it. (See -Sir
Chunilal V. Mehta And Sons Limited Vs. Century
Spinning And Manufacturing Company Limited,
reported in AIR 1962 SC 1314 : 1962 (0) AIJEL-SC
Page 12 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026

C/SA/252/2026 JUDGMENT DATED: 02/11/2026
(GJHC240927742025)
5258, Jaichand (Dead) through Lrs and Others Vs.
Sahnulal and Anr. reported in 2024 SCC OnLine SC
3864 and Russi Fisheries (P) Ltd. Vs. Bhavna Seth
reported in 2026 SCC OnLine SC 555).
CONCLUSION:
14. In view of the foregoing discussions and reasons, I
do not find any merit in the Second Appeal, as no
substantial question of law arises. Accordingly, the
second appeal fails and it is dismissed in limine . Civil
Application would not survive and hence, it is disposed of.
The judgment and decree passed by the Courts below are
hereby confirmed. No order as to costs. The decree shall
be drawn accordingly.
(MAULIK J.SHELAT,J)
SHAHANAZ
Page 13 of 13
Uploaded by SYED SHAHANAZ(HC02353) on Wed Nov 04 2026 Downloaded on : Wed Nov 04 14:41:48 IST 2026