Sri Krishna Koiri (Dec) vs Shankar Prasad Kuswaha And Ors

Appeal is against the judgment and decree dated July 31, 2024 passed by the learned Trial Judge in TS/28/2016 (PLA No. 6 of 1989).

By the impugned judgment and decree, learned Trial Judge dismissed TS/28/2016.

Learned Senior Advocate appearing for the appellant submits that, the testator left behind a Will dated April 4, 1966. Testator expired on November 13, 1966. Testator appointed an Executor by the Will. Such Executor expired on October 6, 1974. Legatee expired on July 15, 1971. Subsequently, proceeding for obtaining Letters of Administration was filed in 1988.

Learned Senior Advocate appearing for the appellant submits that, Letters of Administration of the Will dated April 4, 1966 was granted on July 23, 1990. Such Letters of Administration was revoked on July 30, 2015. The proceeding for obtaining Letters of Administration being PLA No. 6 of 1989 was converted to a testamentary suit and was renumbered as TS/28/2016 which was dismissed by the impugned judgment and decree.

Learned Senior Advocate appearing for the appellant refers to the impugned judgment and decree. He submits that, on two primary grounds, the testamentary suit was dismissed. One ground was delay in filing an application for grant of Letters of Administration and the other is that, the Will was not duly proved.

Learned Senior Advocate appearing for the appellant submits that, on both the two grounds, the contentions of the appellant were misappreciated by the learned Trial Judge. He submits that, the delay was explained since, the Executor and the legatee expired over a period of time. The persons who applied for the Letters of Administration became aware of the Will at a given point of time and applied for grant of Letters of Administration. Appellant produced such evidence as are available presently, to prove the Will. Reliance is placed on Section 69 of the Evidence Act in this regard. It is also contended that, the Will is a registered Will.

Learned Senior Advocate appearing for the appellant, however, submits that, all heirs and legal representatives of the deceased testator were not cited in the application for grant of Letters of Administration. He submits that, presently, the appellant obtained consent affidavit of all the heirs and legal representatives of the deceased testator. He submits that, his client may be permitted to rely on the same.

Learned Senior Advocate appearing for the respondent submits that, the application for Letters of Administration contains statements which are incorrect. The application for Letters of Administration, proceeded, according to him, on the basis that, there was only one heir of the deceased testator. In fact, there were several other persons who are the heirs and legal representatives of the deceased testator. In absence of the heirs and legal representatives of the deceased testator being cited, the application for Letters of Administration was a non-starter.

Relying upon 2024 (17) SCC 250 (Sirajudheen Vs. Zeenath & Ors.), learned Senior Advocate appearing for the respondent submits that, an order of remand is not permissible in the facts and circumstances of the present case.

We find from the records that, the application for Letters of Administration proceeded on the basis of the testator leaving behind only one heir and legal representative. In fact, there are several other heirs and legal representatives of the deceased testator.

Appellant seeks to bring such heirs and legal representatives of the deceased testator on record.

The impugned judgment and decree was passed in absence of all heirs and legal representatives of the deceased testator.

Sirajudheen (supra) considers an order of remand passed by the High Court. It is of the view that, the order of remand did not contain any ground for directing the same.

In the facts and circumstances of the present case, we find that, the application for grant of Letters of Administration which was subsequently treated as a testamentary suit on contest, proceeded on the basis of the testator leaving behind only one heir and legal representative. The existence of other legal heirs and representatives of the deceased testator was taken as a defence by the defendant in the testamentary suit. Nonetheless, the suit proceeded on the basis of only one heir of the deceased testator.

It is a fact that, there are other heirs and legal representatives of the deceased testator who were not brought on record. The appellant is now ready and willing to bring on record such heirs and legal representatives of the deceased testator.

The impugned judgement and decree was passed in a proceeding where all necessary and proper parties were not on board. Left out necessary and proper parties are now apparently supporting the appellant in obtaining the grant of the Letters of Administration. This new development impinges upon the impugned judgement and decree.

In such circumstances, it would be appropriate to set aside the impugned judgment and decree and remand TS/28/2016 to the Trial Court.

Appellant is at liberty to bring all heirs and legal representatives of the deceased testator on record. Appellant will take appropriate steps for issuance of citations to such heirs and legal representatives of the deceased testator.

Learned Trial Judge is at liberty to decide the suit from such stage as he deems fit and proper, subsequent to this order of remand.

APD/7/2024 is disposed of, without any order as to costs.

I agree.

Learned Senior Advocate appearing for the respondent seeks stay of operation of this judgment and order. We are, however, unable to grant any stay since, the order of remand by itself will not result in the testamentary suit being disposed of immediately.