A sole legatee may continue proceedings by converting probate into Letters of Administration with the Will annexed.

Smt. Shibani Bhar, a Hindu governed by the Dayabhaga School, executed a Will dated 8 October 1994 appointing Jagabandhu Bhar and his wife, Smriti Bhar, jointly and severally as executor and executrix.

Debashis Bhar claimed to be the sole legatee and beneficiary under the Will.

Shibani Bhar died on 19 May 2002, following which a proceeding for probate was instituted.

After the proceeding became contentious, it was registered as T.S. No. 8 of 2008.

During the pendency of the proceeding, Jagabandhu Bhar died on 8 February 2018 and Smriti Bhar, the surviving executrix, died on 20 February 2023.

Debashis Bhar thereafter sought continuation of the proceeding by amending the relief from probate to Letters of Administration with the Will annexed, without claiming succession to the office of executor.

The respondent opposed the application, alleging abatement, want of locus, delay, and defects in the execution and authenticity of the Will.

1. Whether the death of both the executor and executrix caused the pending probate proceeding to abate or otherwise come to an end

2. Whether the sole legatee could continue the pending testamentary proceeding by converting the prayer for probate into one for Letters of Administration with the Will annexed under Section 232 of the Indian Succession Act, 1925

3. Whether the proposed conversion and amendment were barred by delay, limitation, or the alleged change in the nature and character of the proceeding

4. Whether the objections concerning the genuineness, execution, attestation, and validity of the Will were required to be adjudicated at the stage of considering the procedural amendment

Section 222 of the Indian Succession Act, 1925 confines probate to an executor appointed by the Will, whereas Section 232 permits Letters of Administration with the Will annexed where the executorial route is unavailable, including where the executor dies before proving the Will.

The Court applied the distinction between the personal and non-transmissible office of an executor and the independent testamentary interest of a legatee.

In Shambhu Prasad Agarwal v. Bhola Ram Agarwal, (2000) 9 SCC 714, the Supreme Court held that heirs of a legatee could continue a proceeding, appropriately amended to seek Letters of Administration, even where the original proceeding had incorrectly sought probate.

In Vatsala Srinivasan v. Shyamala Raghunathan, (2016) 13 SCC 253, the Supreme Court affirmed that a sole legatee may continue testamentary proceedings after the executor’s death through a formal modification of the relief to Letters of Administration with the Will annexed.

Section 295 preserves the testamentary character of a contentious proceeding notwithstanding its trial as a regular suit, and procedural rules cannot defeat the statutory mechanism under Section 232.

The Court also recognised the potential applicability of Article 137 of the Limitation Act, 1963, subject to the accrual of the right to apply and the circumstances of the case.

The Court held that Debashis Bhar was not seeking substitution as executor or probate in the capacity of a deceased executor; he was asserting his independent status as the alleged sole legatee and seeking the appropriate statutory relief under Section 232.

The deaths of Jagabandhu and Smriti removed the persons capable of receiving probate but did not extinguish the testamentary interest or the pending adjudication concerning the Will.

Applying Shambhu Prasad Agarwal and Vatsala Srinivasan, the Court treated the amendment as a change in the form of testamentary relief rather than the introduction of a new cause of action: the Will, testatrix, claimed benefit, and dispute over validity remained unchanged.

The Court distinguished Thirty Sam Shroff v. Shiraz Byramji Anklesaria, AIR 2007 Bom 103, and Sanjay Tribedi @ Munna Tribedi v. Kanti Devi, 2024 SCC OnLine Pat 8327, because those cases concerned attempted substitution of heirs in the place of an executor, whereas the present application was made by a legatee seeking Letters of Administration.

The delay objection did not defeat the application because it was filed within three years of the death of the surviving executrix, and any necessary condonation caused no prejudice.

The Court expressly kept all substantive objections to the Will open for trial.

The sole legatee, Debashis Bhar, was permitted to continue the proceeding under Section 232 of the Indian Succession Act by converting the prayer for probate into a prayer for Letters of Administration with the Will annexed.

The deaths of Jagabandhu Bhar and Smriti Bhar were directed to be recorded; Debashis Bhar was brought on record; and the cause title and pleadings were directed to be amended within four weeks, followed by reverification and reaffirmation.

The respondents retained all objections concerning the Will, its execution and attestation, the applicant’s status as sole legatee, the estate, and the Affidavit of Assets.

No finding was made on the genuineness or validity of the Will, and the application was allowed without costs.