In The Goods Of : Sudhanath Mukherjee @ Sudha Mukherjee(Dec) vs Sandersons & Morgans

Heard the Learned Counsel for the applicant. The application, the documents relied upon therein and the records of PLA No. 281 of 2012 have been considered.

PLA No. 281 of 2012 was instituted by the late Rudra Deb Mukherjee in respect of the Last Will and Testament dated 8^th October, 2010 and the Codicil dated 14^th May, 2011 of his deceased father, Sudha Nath Mukherjee. During the pendency of the proceeding, the executor died. The proceeding was thereafter dismissed for default by an order dated 22^nd April, 2016.

The present applicant, claiming as the sole beneficiary under the said testamentary instruments, thereafter approached this Court. By an order dated 19^th September, 2022, this Court recalled the order dated 22^nd April, 2016 and restored PLA No. 281 of 2012 to its original file and number. The Department was directed to take appropriate steps for conversion of the proceeding and the applicant was directed to take the necessary steps in that regard.

The present application has been occasioned by the subsequent requirement of the Department that a formal application be made for carrying the proposed amendments into the proceeding so as to give effect to the conversion directed by the order dated 19^th September, 2022.

The applicant had explained, following the said order, the applicant and her learned Advocates had proceeded on the basis that the direction for conversion could be acted upon without any further application. The requirement of a formal application came to be clarified only upon subsequent communication with the Department. The delay is thus procedural and has been satisfactorily explained.

The Court finds no material suggesting abandonment of the proceeding or any deliberate withholding of the steps required for its conversion. On the contrary, the applicant had already obtained restoration of the proceeding and thereafter pursued the course indicated by the Court and the Department.

The testamentary proceeding having already been restored by the order dated 19^th September, 2022, the present application merely seeks to place the proceeding in the form required for consideration of the appropriate testamentary grant following the death of the original executor.

Section 232 of the Indian Succession Act, 1925 recognises the grant of letters of administration with the Will annexed to a universal or residuary legatee in circumstances where the appointed executor is unable to administer the estate, including where the executor has died before proving the Will. The provision thereby preserves the administration of a testamentary estate notwithstanding the cessation of the executor's role.

The proposed amendments do not introduce a new testamentary claim. They give procedural expression to the relief which the applicant now seeks in consequence of the circumstances already recorded in the proceeding. The Court is consequently satisfied that the amendments are necessary for the proper determination of the testamentary proceeding.

The Court is also satisfied that the delay in taking the consequential steps deserves to be condoned. The explanation furnished by the applicant constitutes sufficient cause for the purpose of the present application. Section 5 of the Limitation Act, 1963 permits admission of an application beyond the prescribed period where sufficient cause for the delay is shown.

The power of the Court to regulate the proceeding so as to secure the ends of justice is preserved by Section 151 of the Code of Civil Procedure, 1908. The present direction is plainly referable to that jurisdiction.

In the circumstances, the application succeeds.

The delay in carrying out the conversion of PLA No. 281 of 2012 into an application for grant of Letters of Administration with the Will annexed is condoned.

The proposed amendments to the cause title, paragraphs 9, 12 and 14, the prayer portion and the connected averments, as set out in the Master Summons and the proposed amendment annexed thereto, are allowed.

The Department shall carry out the consequential amendments and take appropriate steps for conversion of PLA No. 281 of 2012 into the appropriate testamentary proceeding for grant of Letters of Administration with the Will annexed.

The applicant shall complete the requisite departmental formalities and file the amended proceeding within such time as may be prescribed by the Department.

It is clarified that this order concerns only the procedural conversion of the restored proceeding. No finding is expressed herein upon the validity, execution, testamentary capacity, genuineness or legal effect of the Last Will and Testament dated 8^th October, 2010 or the Codicil dated 14^th May, 2011. All questions arising therefrom shall remain for consideration at the appropriate stage.

The Master Summons is accordingly allowed in terms of prayers (a), (b) and (c).

There shall be no order as to costs.

The Department shall act upon the server copy of this order.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

Next date be fixed on 28^th September, 2026.