# H.S. Bhatnagar v. In the matter of property of Shri Jyoti Swaroop Bhatnagar

- **Citation:** High Court of Judicature at Allahabad #39483
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-07-23
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/h-s-bhatnagar-v-in-the-matter-of-property-of-shri-jyoti-swaroop-bhatnagar-39483
- **Pages:** 5

## Text

1ALL] H.S. Bhatnagar V. In the matter of property of Shri Jyoti Swaroop Bhatnagar

55

18. In view of the aforesaid order of
Hon'ble
Supreme
Court
Smt.
Madhu
Chaurasia was not entitled for any interim
order from this Court. As she has not been
selected by the commission she has no right to
resist the claim of Smt. Saroj Yadav who has
been
selected
and
recommended
for
appointment as principal of S.S.D. Balika
Inter College, Lal Kurti, Meerut. The special
appeal no 539 of 1999 is accordingly allowed.
The order dated 23.7.1999 passed by the
learned Single Judge is set aside. Respondent
no. 2 District Inspector of Schools, Meerut,
respondent no. 3, Joint Director of Education
1st Region, Meerut and respondent no. 5,
committee of management, S.S.D. Balika
Inter College, Lal Kurti, Meerut are directed
to give appointment to Smt. Saroj Yadav
without any further delay.

19. However, in both the appeals there
will be no order as to costs.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF 6XEVWLWXWLRQ $SSOLFDWLRQ 1R
RI
,Q
7HVWDPHQWDU\ VXLW 1R RI

+6 %KDWQDJDU
«3ODLQWLII

,Q WKH PDWWHU RI SURSHUW\ RI 6KUL -\RWL
6ZDURRS %KDWQDJDU

&RXQVHO IRU $SSHOODQW
0U $MLW .XPDU

&RXQVHOV IRU 5HVSRQGHQWV
0U 9LQLW 6DUDQ
0U 5. 5DMZDQVKL

,QGLDQ 6XFFHVVLRQ $FW 6HFWLRQ
3UREDWH FDQ EH JUDQWHG RQO\ WR WKH SHUVRQ
ZKR KDV EHHQ QDPHG XQGHU WKH ZLOO XQGHU
VHFWLRQ RI WKH 6XFFHVVLRQV $FW ,Q FDVH
WKH ([HFXWRU KDV QRW EHHQ DSSRLQWHG WKH
OHWWHUV RI $GPLQLVWUDWLRQ LV WR EH JUDQWHG WR
DQ
XQLYHUVDO
RU
UHVLGXDU\
OHJDWHH
XQGHU
VHFWLRQ RI WKH $FW
+HOG
7KH SUREDWH LV JUDQWHG RQO\ WR DQ H[HFXWRU
DSSRLQWHG E\ WKH ZLOO DV SURYLGHG XQGHU
VHFWLRQ RI WKH $FW ,Q FDVH WKH H[HFXWRU
KDV
QRW
EHHQ
DSSRLQWHG
WKH
OHWWHUV
RI
DGPLQLVWUDWLRQ
LV
WR
EH
JUDQWHG
WR
DQ
XQLYHUVDO RU UHVLGXDU\ OHJDWHH XQGHU VHFWLRQ
 RI WKH $FW ,Q FDVH WKH SHUVRQ ZKR KDG
DSSOLHG IRU SUREDWHOHWWHUV RI DGPLQLVWUDWLRQ
GLHV WKHUH DUH WZR FRXUVHV RSHQ HLWKHU WKH
SURFHHGLQJV EH GURSSHG RU SHUPLWWHG WR EH
FRQWLQXHG E\ D SHUVRQ ZKR VKDOO RWKHUZLVH
EH
HQWLWOHG
IRU
SUREDWHOHWWHUV
RI
DGPLQLVWUDWLRQ 3DUD

By the Court

1. This is an application for deletion of the
name of Sri Hemendra Swaroop Bhatnagar,
the plaintiff and substitute the name of M.S.
Bhatnagar in his place and there is a further
prayer to substitute the name of Satyendra
Kumar Bhatnagar also in addition to M.S.
Bhatnagar.

2. Briefly stated, the facts are, that Jyoti
Swarup Bhatnagar had no issue. He had one
brother Har Swarup Bhatnagar. Har Swarup
Bhatnagar expired in the year 1923 leaving
behind him five sons namely Gyan Swarup
Bhatnagar, Sachida Nand Bhatnagar, Brahm
Swarup
Bhatnagar,
Brijendra
Swarup
Bhatnagar and Hemendra Swarup Bhatnagar.
Hamendra
Swarup
Bhatnagar
filed
testamentary petition no. 13 of 1984 for grant
of probate/letters of administration in the
matter of goods and property of deceased
Jyoti Swarup Bhatnagar on the allegation that
he had executed a Will on 22.4.1920 which
provided that till the life time of Har Swarup
he will administer the property of Sri Jyoti
Swarup Bhatnagar in accordance with the
testament dated 22.4.1920 and after his death,
the property shall be administered by the sons
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
56
of Sri Har Swarup Bhatnagar. Har Swarup
Bhatnagar expired in the year 1923 and out of
his five sons except the petitioner Hamendra
Swarup Bhatnagar, all expired and thus he
claimed that he was only surviving executor
of the Will of deceased Jyoti Swarup
Bhatnagar. On his petition, the notices were
issued and on an objection being filed by the
contesting opposite party, it was treated as
contentious and registered as testamentary suit
no. 6 of 1994.

3. Before the Will could be proved, the
petitioner
Hamendra
Swarup
Bhatnagar
expired on 14.6.1999. An application was
filed by M.S. Bhatnagar son of Brijendra
Swarup Bhatnagar that he may be permitted to
be substituted. Another application has been
filed by Satendra Kumar, one of the sons of
the petitioner Hamendra Swarup with the
prayer that he may be substituted along with
M.S. Bhatnagar. The opposite party, Ajay
Kumar has filed objection to the application
for substitution.

4. The core question is whether after the
death of the petitioner in a testamentary suit
his heir or any other person is entitled to be
substituted in his place and if so, who shall be
entitled to be substituted or in other words, to
continue
the
proceedings
for
grant
of
probate/letters of administration under the
provisions of Indian Succession Act 1925 (in
short 'the Act'). The probate is granted only to
an executor appointed by the Will as provided
under Section 222 of the Act. In case the
executor has not been appointed the letters of
administration is to be granted to an universal
or residuary legatee under section 232 of the
Act. In case the person who had applied for
probate/letters of administration dies, there
are two courses open either the proceedings
be dropped or permitted to be continued by a
person who shall otherwise be entitled for
probate/letters of administration.

Where any suit is filed in the Civil Court,
on the death of the plaintiff the suit shall not
abate if the right to sue survives. On the death
of the plaintiff, the Court can permit a legal
representative of the deceased plaintiff to be
made a party under Order 22, Ruled 3 of the
Code of Civil Procedure. Similarly, if the
defendant dies, his legal representatives can
be substituted under Rule 4 of Order 22
C.P.C. The Code of Civil Procedure was
amended in 1976 and Order 4-A was added
which provides that if, in any suit, it shall
appear to the Court that any party who has
died during the pendency of the suit has no
legal representative, the Court may, on the
application of any party to the suit, proceed in
absence of the person representing the estate
of the deceased person, or may by order
appoint the administrator general, or an
officer of the Court or such other person as it
thinks fit to represent the estate of the
deceased person for the purpose of the suit.

5. There is a difference between the
proceedings of a suit and that of proceedings
for
the
grant
of
probate/letters
of
administration. On the death of the plaintiff
the
Court
allowed
the
application
for
substitution. The Court on an application of
the legal representative of the deceased
plaintiff shall make him a party in the suit if
the right to sue survives. The Court has to
examine whether such an applicant is entitled
to be substituted in relation to the cause of
action in the suit and the relief claimed. A
petition for probate/letters of administration is
filed on the allegation that the petitioner is
entitled to probate or letters of administration
under the provisions of the Act. One view is
that the right to claim probate/letters of
administration is personal and on the death of
the
petitioner
the
right
to
obtain
probate/letters of administration does not
devolve on his heir. In one case, the suit is
decreed on the basis of the relief claimed in
the suit but in the other case probate/letters of
administration is granted under the provisions
of the Indian Succession Act. But in that
respect he has to establish that he is entitled to
1ALL] H.S. Bhatnagar V. In the matter of property of Shri Jyoti Swaroop Bhatnagar

57
such grant being an executor universal or
residuary legatee under the Will.

6. The Calcutta High Court in Sarat
Chandra Banerjee vs. Nani Mohan Banerjee,
(1909) 36 Cal. 799, where executor claiming
right of probate on the basis of Will, having
died during the pendency of the probate
proceedings,
his
widow
sought
to
be
substituted as being his heir, Harrington, J.
rejected the application holding that the
executor's right to sue did not survive. This
decision was followed in Hari Bhushan Datta
vs. Manmath Nath Datta, A.I.R. 1919 Cal.
197. In this case one Him Bhushan Datta
applied for grant of letters of administration
with a copy of the Will annexed to the estate
of the deceased. He died leaving Hari
Bhushan Datta as his heir and legal
representative. Greaves, J. held that the right
for grant of letters of administration was a
personal right and this right did not devolve
on his heir. It was, however, observed that the
applicant may apply for grant of letters of
administration
and
adopt
such
material
proceedings as had been taken in the
testamentary suit filed by his father. These
two decisions came up for consideration
before a Division Bench of Patna High Court
in Mst. Phekni vs. Mst. Manki, A.I.R. 1930
Pat. 618. Fazl Ali, J. (as he then was), noted
that the view taken by Greaves, J. will cause
considerable hardship when the applicant,
after death of the petitioner may be entitled to
obtain letters of administration. The facts in
this case were that an application was filed for
letters of administration on the basis that the
applicant was legatee under the Will. The
application was resisted by the widow of the
deceased. The District Judge rejected the
application on the finding that the Will was
not proved to his satisfaction. Against this
decision the applicant filed appeal. During the
pendency of the appeal the applicant died. An
application for substitution was filed by his
heir. It was resisted by the respondent on the
ground that the right to obtain letters of
administration was personal and the applicant
could not be substituted. The Court repelled
the
contention
with
the
following
observation:-

"But it is not so clear why a person who
has, admittedly, under the law, right to apply
for letters of administration, and who derives
this right from the legatee by virtue of being
an heir of the legatee, should be debarred
from carrying on the proceedings if the
legatee happens to die after he had applied for
letters of administration and before the letters
have been granted."

7. In Chandramani Maity vs. Bipin Bihari,
AIR 1932 Cal. 206, a distinction was drawn
that though right to obtain probate of Will
does not survive, in an appeal in a case where
the judgment appealed against may operate as
one in rem, different consideration will arise
and substitution should be allowed. The above
noted decisions of the Calcutta High Court
were also discussed in P. Ram Naidu and
others vs. Rangayya Naidu and others, A.I.R.
1933 Mad. 114 and were dissented from. The
Division Bench of the Madras High Court
took the view that an executor named under
the Will, acts in a representative capacity, i.e.,
for the benefit of whole class of persons
including himself, interest in having the Will
established. The concept that the right to
obtain a probate/letters of administration is
limited to a person who has applied for, was
not taken as correct because if the Will is
proved and probate/letters of administration is
granted, it will benefit not only him but others
who are equally interested in it. Any person
interested in the matter can intervene in the
proceedings. The position of a petitioner for
probate was taken as that of a plaintiff under
Order 1, Rule 8 C.P.C. It is based on the
principle that one of the necessary incident of
a representative suit is that any person for
whose benefit it is instituted may intervene
and ask to be made a party under Order 1,
Rule 8(3) C.P.C. The petition for probate
stands on a footing similar to that of a
representative suit. It was observed that if the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
58
petition for probate stands on the footing
similar to that of a representative suit, it is a
right in principle to extend the analogy and
hold that any legatee or beneficiary may, on a
proper case being made intervene at any stage
and claim to come on the record.

8. The above noted decisions were
surveyed in detail in Jadeja Pravinsinhji
Anandsinhji
vs.
Jadeja
Mangalsinhji
Shivsinhji and others, A.I.R. 1963 Guj. 32.
The view taken by the Madras High Court in
Rama Naidu's case (supra) was followed.
Mehta, J. did not agree with the view taken by
Justice Harington in Sarat Chand's case
(supra). It was held that on the death of the
executor before having proved the Will, the
residuary
legatee
who
claimed
to
be
beneficiary under the Will is entitled to
continue the proceedings on the principle that
an executor named under the Will and who
may happen to be beneficiary under the Will,
in applying for probate does not fight a
personal action but fights for the interest of all
the beneficiaries under the Will.

9. The action of an executor in applying
for probate is not in substance a personal
action. There is no reason that after his death
the person claiming the benefit under the Will
cannot apply to continue the proceedings. On
the other hand, to ask the applicant to file
another application for probate/letters of
administration,
will
unnecessarily
cause
hardship and it will spoil all the proceedings
which have already been taken.

10. Learned counsel for the respondent
relied upon the decision in Edward Waston
Coleston vs. Mrs. Theresa Chitty and others,
A.I.R. 1934 All. 1053. In this case the learned
Judge
had
granted
probate
to
the
Administrator General as the executor named
under the Will was not in sound financial
position, this Court held that the probate can
be granted only to the person who has been
named under the Will under Section 222 of
the Succession Act and not the Administrator
General who was not named under the Will.
The proper course to adopt would be to take
proceedings under Section 232 of the Act,
under which when an executor dies, after
having proved the Will, but before having
administered all the estate of the deceased, a
universal or a residuary legatee may be
admitted to prove the Will and letters of
administration with the Will annexed may be
granted to him of the whole estate or so much
thereof may be administered. It was not a case
whether an executor had died and the heirs
had applied for substitution.

11. Hamendra Swarup, who had applied
for probate/letters of administration, claimed
that Jyoti Swarup had appointed his brother
Har Swarup as executor and after his death his
sons and at the time he applied for
probate/letters of administration, he was only
entitled to apply for the same. He died leaving
behind him two sons namely Satendra Kumar
and Ajai Kumar. Ajay Kumar has not filed an
application to continue the proceedings. M.S.
Bhatnagar, son of Brijendra Swarup (nephew
of Hamendra Swarup), has also applied for
substitution.
Brijendra
Swarup
had
not
applied for probate/letters of administration.
He does not claim any independent right to
apply. Satendra Kumar, being the legal
representative of Hamendra Kumar, is entitled
to continue the proceedings.

12. In view of the above, the application
of Satendra Kumar is allowed and the
application of M.S. Bhatnagar is rejected.

I order accordingly.
1ALL] Abdul Rahman Jafri V. The State of U.P. and others

59
25,6,1$/ -85,6',&7,21
25,6,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' 129(0%(5
'$7(' $//$+$%$' 129(0%(5
%()25(
%()25(
7+( +21·%/( 656,1*+ -
7+( +21·%/( 656,1*+ -
7+( +21·%/( '5 &+$8'+$5<-
7+( +21·%/( '5 &+$8'+$5<-

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

$EGXO
5DKPDQ
-DIUL
62 $EGXO 0DQQDQ
-DIUL
«3HWLWLRQHU
9HUVXV
7KH 6WDWH RI 83 WKURXJK WKH 0LQLVWU\ RI
+RPH $IIDLUV
DQG RWKHU
«5HVSRQGHQWV

&RXQVHO IRU WKH SHWLWLRQHU
0U 6 6 7\DJL
&RXQVHO IRU WKH 5HVSRQGHQWV
*$
'U /DO %DKDGXU ,Q SHUVRQ

3UHYHQWLRQ RI &RUUXSWLRQ $FW 6HFWLRQ 7KH
SHWLWLRQHU
FDQQRW
EH
SURVHFXWHG
XQGHU
VHFWLRQ DQG $ RI ,3& ZKLFK KDYH
EHHQ RPLWWHG YLGH VHFWLRQ RI SUHYHQWLRQ
RI &RUUXSWLRQ $FW
+HOG
7KH SHWLWLRQHU FDQQRW EH SURVHFXWHG XQGHU
VHFWLRQ DQG $ RI ,QGLDQ SHQDO &RGH
ZKLFK KDYH EHHQ FRPPLWWHG YLGH VHFWLRQ
RI WKH SUHYHQWLRQ RI &RUUXSWLRQ $FW 7KHUH
FDQQRW EH DQ\ SURVHFXWLRQ RI DQ\ SHUVRQ
XQGHU WKH DIRUHVDLG VHFWLRQV DQG WKH OHDUQHG
7ULDO -XGJH KDV HUUHG LQ ODZ LQ GLUHFWLQJ WKDW
WKH DFFXVHG $EGXO 5DKPDQ -DIUL 6KDOO EH
FKDUJHG XQGHU 6HFWLRQ DQG $ ,3&
7KH
μ6DQFWLRQ¶ LPSOLHV DSSOLFDWLRQ RI PLQG
([HUFLVH RI
SRZHU WR VDQFWLRQ SURVHFXWLRQ
VDQV DSSOLFDWLRQ RI PLQG LV EDG LQ /DZ DQG
LQYDOLG ,Q WKH FLUFXPVWDQFHV WKHUHIRUH WKH
SHWLWLRQ
GHVHUYHV WR EH DOORZHG 3DUD

By the Court

1. The petitioner, Abdul Rahman Jafri, a
Class III employee in the Family Court,
Allahabad has instituted the present writ
petition seeking issuance of writ in the nature
of certiorari quashing the part of the order
dated 22.12.1999 (annexure no.5) where by
the second respondent has ordered that the
petitioner "Shall be charged under section
161 and 165-A of I.P.C."

2. Before proceeding further it may be
mentioned here the petition was entertained
initially by a Single Judge Bench but on an
application moved by the complainant Dr. Lal
Bahadur, the Bench consisting of Hon'ble
the Chief Judge and Hon'ble M. Katju, J. by
order dated 13.9.1999 directed that the matter
be placed before a bench presided over by
one of R. Singh, J.) and it was pursuant to
the said order that the matter was listed before
this Bench .

3. We have Heard Shri S. S. Tyagi for the
petitioner and Government Advocate for
Sate and Dr. Lal Bahadur, the complainant
who appeared in persons.

4. It transpires from the record that a
F.I.R. was lodged by Shri Surendra Pratap
Mishra , Judge Family Court , Allahabad
against the petitioner and four others under
Section 161 and 165 -A of the Indian Penal
Code. The F.I.R. was lodged on the basis of a
complaint made by Dr. Lal Bahadur to the
Hon'ble the Chief Justice that Brij Bhushan
Pandey, Mohd. Shakil, Manglesh and Abdul
Rahman Jafri working as class III employees
in the Court of Judge, Family Court
Allahabad took illegal gratification of Rs.
150/-- on 4th and 5th February , 1997 for
issuing copy of an order. The F.I.R. Was
lodged
at
Police
Station
Colonelganj.,
Allahabad. On the basis of of the aforesaid
F.I.R. , Case Crime No. 139 of 1997 was
registered at Police Station Colonelganj,
Allahabad and on comprehended by Section
19 of the Prevention of Corruption Act, 1988.
The District and Sessions Judge acting as
Incharge Judge Family Court , Allahabad.
By his order dated 27.7.1998 accorded
permission for prosecution of the petitioner
and Mohd. Shakil in case crime no. 139 of
1997, Police Station Colonelganj, Allahabad
under Sections 161 and 165-A I.P.C. and