Padmaja Kumari Parmar vs Lakshyaraj Singh Mewar And Ors

Subramonium Prasad, J

TEST.CAS. 2/2026

TEST.CAS. 2/2026 has been filed by the Petitioner under Section 278 of  the  Indian  Succession  Act,  1925 (hereinafter  referred  to  as’the  Indian Succession  Act’)  for  grant  of  Letters  of  Administration  to  the  Petitioner  to administer  the estate  left  behind by  Mr. Arvind Singh Mewar (hereinafter referred to as ‘the deceased or the testator’), who passed away on 16.03.2025 at Udaipur. The present Petition was originally filed in the High Court of Judicature at Bombay and was numbered as (Testamentary and Intestate Jurisdiction) Petition No. 5773 of 2025.

It is stated that the deceased was survived by four Class I legal heirs, namely (i) Padmaja Kumari Parmar (Petitioner herein), who is the daughter of the deceased; (ii) Bhargavi Kumari Mewar (Respondent No.2 herein), who is the other daughter of the deceased; (iii) Lakshyaraj Singh Mewar (Respondent No.1 herein), who is the son of the deceased; and (iv) Vijayraj Kumari Mewar  (Respondent No.3  herein), who is  the wife of the deceased. Each of the heirs is stated to be entitled to an equal one-fourth (1/4th) share in the estate of the deceased upon intestate succession.

The Petitioner further states that the estate of the deceased consists of numerous assets and properties, details of which have been set out in the Petition and are not being stated here as they are not relevant at this juncture. 4. The  Petitioner  states  that  she  is  seeking  Letters  of  Administration  in intestacy as she is unaware of any  valid testamentary  writing  executed  by the deceased. However, in paragraph No.11 of the plaint she also states that although two documents have been represented as testamentary writings, neither of them constitute a legally valid Will capable of governing the estate of the deceased and accordingly, the estate of the deceased must devolve under the provisions of the Hindu Succession Act, 1956.

One of the purported testamentary instrument as mentioned in the Petition  is  a testamentary  writing  dated  07.02.2025  (hereinafter  referred  to as ‘the testamentary writing or the Will’), executed by the deceased approximately four weeks before his death. The Petitioner challenges the authenticity  and  validity  of  this  alleged  testamentary  writing.  She  contends that  it  is  extremely  doubtful  whether  such  a  document  was  ever  genuinely executed by the deceased. It is further alleged that at the time when the alleged document was said to have been executed, the deceased was non compos mentis, i.e. not of sound mind, and was suffering from severe mental and physical infirmities, failing eyesight, and general frailty. She further alleges that the deceased had been rendered largely incommunicado and kept under constant surveillance by the Respondent No.1, and that the testamentary writing dated 07.02.2025 appears to have been procured through undue influence.

At paragraph No.13, the Petition sets out in detail the suspicious circumstances surrounding the alleged testamentary writing dated 07.02.2025. The Petitioner asserts that the signature appearing on the document does not match the known signatures of the deceased and therefore, the said testamentary writing could not have possibly been executed by the deceased. She further states that the signatures do not correspond  with those  appearing on  earlier  instruments  such  as the  General Power of Attorney(“GPA”)dated 28.07.2023 or the Letter of Authority (“LOA”) dated 22.12.2022, which are relied upon for comparison. The Petition also  points out that the ‘endorsement of execution’ of the alleged testamentary writing does not contain the photograph of the deceased, suggesting  that  the  deceased  was  not  present  at  the  time  the  said  document was  executed.  Another  irregularity  highlighted  by  the Petitioner  is  that  the thumb impression appearing in the ‘endorsement of execution’ is completely misplaced. According to the Petitioner, this indicates that even if the deceased  was  compelled  to  execute  the  document,  he  was  unable  to  locate the designated space for the impression because of his severe visual impairment and incapacity. The Petitioner further asserts that even assuming the signatures were genuine, the deceased was mentally incapacitated and therefore  incapable  of  executing  a valid  testamentary  instrument,  rendering the alleged writing void.

The Petitioner has elaborated on the deteriorating medical condition of the deceased to support her assertion that he lacked testamentary capacity. It is stated that the deceased was suffering from multiple serious ailments including chronic kidney disease, acute kidney injury, severe ocular conditions causing near blindness, hypothyroidism, hypertension and diabetes. His eyesight had deteriorated to the extent that he had no perception of light in one eye and extremely limited vision in the other, meeting the threshold of legal blindness.  It is the case of the Petitioner that she had to announce herself while meeting him because he could not recognize people due to his impaired vision.

According to the Petitioner, the health of the deceased had been deteriorating progressively since around 2019, with the onset of serious neurological and psychiatric conditions including Parkinson’s disease, epilepsy, dementia, schizophrenia, anxiety disorder, nerve damage and other neurological impairments. These illnesses allegedly caused significant cognitive impairment affecting his ability to think clearly, exercise judgment and comprehend his surroundings. According to the Petitioner, the deceased’s mobility and communication were restricted. Further, he was deprived of access to a mobile phone from early 2022 onwards on the pretext of eyesight issues, and his interactions with friends and acquaintances were limited. It is stated that cameras were allegedly installed in the bedroom and other areas of the deceased, and his conversations were monitored. The Petitioner asserts that this environment created a situation in which the deceased became dependent on the Respondent No.1 for physical and emotional support, thereby enabling undue influence to be exerted upon him.

It is stated that the  medical records of the deceased reveal that due to the deteriorating health of the deceased, he had to be airlifted to Mumbai for medical treatment in  January  2022,  where he was hospitalized and treated again  in  April  2022.  Material  on  record  further  indicates that  the  deceased suffered from visual disturbances, confusion and disorientation with respect to time, place and persons. It is stated that the deceased was under the delusion that the walls in his room were moving and that construction work was being carried out while he was sleeping. It is stated that even though the deceased could not walk, he would say that he was walking around the Palace  and  would  concoct  various  imaginary  incidents. It  is  stated  that  the monologues and utterances by the deceased were vague and meaningless and  this  unusual  behaviour  of  the  deceased  was  a  matter  of  concern  to  the family. It is stated that the deceased was also under psychiatric care and was prescribed anti-psychotic and anti-depressant medications. It is stated that the  attending  psychiatrist,  Dr.  Ashit  Sheth,  issued  a letter  dated  14.05.2022 noting that the deceased was experiencing hallucinations and progressive neurobehavioral changes and was unable to take appropriate decisions regarding financial or legal matters.  The Petitioner further states that due to the declining  health and  eyesight  of  the  deceased,  a GPA dated  28.07.2023 was  executed in favour of  the  Respondent No.1, primarily to enable him to handle  litigation  and  administrative  matters  on  behalf  of  the  deceased. The GPA dated 28.07.2023 records the deceased’s deteriorating health condition and  states  that  the  deceased  was  suffering  from  chronic  clonidine  toxicity, acute kidney injury apart from chronic kidney disease, bilateral eye exposure keratitis and left eye glaucomatous disc, extensive central retinal artery occlusion  (CRA),  vision  fallen  in  the  right  eye  with  no  perception  of  light and the left eye vision down to 3/60 which is the threshold for legal blindness, hypothyroidism, hypertension and diabetes mellitus type II.

It is further stated that the purported testamentary writing dated 07.02.2025  is  suspicious  because  it  disinherits  the  daughters  and  the  ailing widow of the deceased and leaves the estate exclusively  to the son of the deceased, i.e. Respondent No.1. According to the Petitioner, such a disposition is inconsistent with the nature and temperament of the deceased, who  had  maintained  a  close  relationship  with  his  daughters  and  wife.  It  is therefore  alleged that if  any such  document  was  executed, it  has been  done as a result of coercion, undue influence, or manipulation by the Respondent No.1.

In addition to the disputed document dated 07.02.2025, the  Petitioner also states that she became aware in August 2025 of another purported testamentary writing dated 21.04.2015. However, no original of this document has been produced and no person has sought probate of the same. The Petitioner therefore reserves her right to challenge the validity of such a document, if it is ever propounded.

It is, therefore, the case of the Petitioner that the Petitioner’s father has died intestate. In these circumstances, the Petitioner approached the High Court of Judicature at Bombay, seeking the grant of Letters of Administration under Section 278 of the Indian Succession Act to administer the estate of the deceased on behalf of all the Class I heirs, namely  the  widow,  the  two  daughters,  and  the  son of  the  deceased.  In  the said  Petition  it  was  also  prayed  that  the  grant  of  Letters  of  Administration should have effect throughout India, since the assets of the deceased are located not only in Maharashtra but also in Rajasthan and other parts of the country.

The said Petition was filed on  30.09.2025. Notice in the said Petition was  issued  on  13.11.2025  and  the  Respondent No.1  herein  was  directed  to file Affidavit-in-Reply before the next date of hearing, i.e. 28.11.2025. It is stated  that  on  the  next  date  of  hearing,  the  Respondent  No.1  herein  sought some time to file Affidavit-in-Reply to the Petition as well as to the Application  for  appointment  of  interim  administrator pendente  lite  and  the matter was adjourned to 12.12.2025. It is stated that  Affidavit-in-Reply was filed by Respondent No.1 on 08.12.2025.

At this juncture, it is pertinent to mention that on 06.12.2025, the brother of the Petitioner, i.e. the Respondent No.1 herein, also filed a Testamentary Petition before the High Court of Rajasthan at Jodhpur, under Section 276 of the Indian Succession Act seeking issuance of Letters of Administration with the Will annexed in respect of the Will dated 07.02.2025 claiming that as the universal legatee under the Will he is entitled to administer the estate and manage the assets of the deceased in accordance with the testamentary writing dated 07.02.2025. The Petition was  numbered  as  Testamentary Petition  No.1  of 2025  in the  High  Court of Rajasthan at Jodhpur (Testamentary  and Intestate Jurisdiction).  In the  said Petition,  Respondent  No.1  herein  has  stated  that  the  deceased passed  away on 16.03.2025 at City Palace, Udaipur. It is stated that at the time of his death, the deceased was survived by four Class-I legal heirs: Vijayraj Kumari Mewar (wife of the deceased, i.e. Respondent No.3 herein), Lakshyaraj Singh Mewar (son of the deceased, i.e. Respondent No.1 herein), Bhargavi Kumari Mewar (elder daughter of the deceased, i.e. Respondent No.2 herein), and Padmaja Kumari Parmar (younger daughter of the deceased, i.e. the  Petitioner herein).  It is stated that the  wife  and  son of the deceased are residents of City Palace, Udaipur, while the elder daughter resides  at  The  Bagh,  Nadra  Nai,  Udaipur  and  the  Petitioner  herein,  who  is the younger daughter of the deceased,  resides partly in the United States of America and also maintains an address at City Palace, Udaipur.

In the Petition filed by the brother of the Petitioner, i.e. the Respondent No.1 herein, it is stated that during his lifetime, the deceased was engaged in managing various family properties and charitable institutions associated with the Mewar  Royal  Estate. It is further stated that apart from movable and immovable properties owned by him, the deceased also held positions in several trusts connected with the family legacy and charitable activities. According to the Respondent No.1, the deceased executed his last Will and Testament on 07.02.2025, which was written on a stamp  paper  and  duly  registered  before  the  Sub-Registrar-I,  Udaipur  under serial number 202501102002870. The said Will is stated to have been executed in the presence of two attesting witnesses, namely Mr. Anwarul Ghani  and Mr. Laxman Singh Karnot. The Respondent No.1 further  asserts that through this Will, the deceased bequeathed all his self-acquired movable and immovable properties exclusively in his favour, thereby making him the universal legatee and successor of the estate.

Respondent No.1 further states that the Will was drafted after discussions held with the deceased in July 2024 at Udaipur and was prepared by  Advocate Puneet Jain, now  a Senior Advocate,  after which it was finalised and read over to the deceased before its execution. It is stated that the Will was thereafter registered on 07.02.2025, and the deceased executed it after understanding its contents and in the presence of witnesses and the Sub-Registrar.  It is also claimed that  prior  to the execution  of  the Will, the deceased was examined by his family doctor Dr. Shailendra Singh, who certified that the deceased was of sound mind and capable of understanding the nature and consequences of executing a Will.

According to the Respondent No.1, the deceased had reposed complete trust and confidence in him and had already entrusted him with the management  of  family  properties  and  trust  activities  during  his  lifetime by executing a registered GPA dated 28.07.2023 in his favour, thereby authorising  him  to  manage  properties  and  affairs  on  his  behalf.  In  the  said Petition, the Respondent No.1 herein claims that he discharged the responsibilities to the satisfaction of the deceased and he was also nominated in several bank accounts and  DeMAT accounts by the deceased. According to the Respondent No.1, the deceased was satisfied with his services and even issued a Letter of Appreciation dated 22.07.2024 acknowledging the manner in which he was managing the estate. Respondent No.1 further contends that during the lifetime of the deceased, certain shares of companies had been transferred to the daughters and they had also been appointed  as  directors  in  some  companies.  However,  with  a  view  to  avoid future  disputes  regarding  the  estate,  the  deceased  requested  both  daughters to transfer the shares back to him and resign from the directorships. It is stated that both daughters complied with the request and executed gift deeds dated 28.08.2024, 29.08.2024 and 21.12.2024, returning the shares to the deceased and resigning from their positions as Directors through letters dated 20.12.2024 and 04.01.2025.

It is further stated by the Respondent No.1 that after the execution of the Will, the deceased passed away approximately five weeks later on 16.03.2025. Respondent No.1 claims to have continued managing the properties as the universal legatee and successor under the Will after the death of the deceased. According to him, certain bank accounts including one  at  Bank  of  Baroda,  Excelsior  Branch,  Mumbai,  and  another  at  HSBC, Mumbai, have already been transferred in his favour on the basis of the Will dated 07.02.2025.

In  the  said  Petition,  the  Respondent  No.1  herein  has  disclosed  about the Petition filed by his sister, i.e. the Petitioner herein, before the High Court of Judicature at Bombay seeking the grant of Letters of Administration  to  administer  the  estate  of the  deceased.  It  is  stated  that  her sister, i.e. the Petitioner herein, has filed the Petition without making him or any other member of the family a party to the said proceedings.

Respondent No.1 herein filed Transfer Petition No(s). 3626/2025 before the Apex Court, seeking transfer of his Petition under Section 276 of the  Indian  Succession  Act  from  High  Court  of  Rajasthan  at  Jodhpur  to  the High Court of Judicature at Bombay. The Petitioner herein also filed Transfer  Petition  No(s).  3625/2025  before the  Apex  Court, seeking  transfer of  her  Testamentary Petition  from  the  High  Court  of  Judicature  at  Bombay to  High  Court  of  Rajasthan  at  Jodhpur.  The  Apex  Court,  vide  Order  dated 18.12.2025, transferred both the Petitions to this Court by passing the following Order:

“4. During the course of the hearing and upon a suggestion being  made  by  this  Court,  learned  Senior Counsel for the parties fairly agreed that all the proceedings pending between the parties be transferred to the High Court of Delhi. In view of such a fair stand having been taken by the parties, we dispose  of  both  the  Transfer  Petitions  in  the  following terms:

(i) Testamentary  Petition  No.5773/2025,  pending  before the  High  Court  of  Bombay,  is  ordered  to  be  transferred to the High Court of Delhi;

(ii) Testamentary Case No.1/2025, pending before the High Court of Rajasthan (Jodhpur Bench) is also ordered to be transferred to the High Court of Delhi;

(iii)  Both  the  above-stated  petitions  shall  be  tagged  and heard together; and

(iv) If there is any other litigation pending between the parties, liberty is granted to them to seek transfer thereof also to the High Court of Delhi.”

The matters came up for hearing before this Court on 12.01.2026. The Petition filed by the Petitioner in Bombay, on transfer to this Court was numbered as TEST.CAS.  2/2026 and  the Petition filed by  the Respondent No.1 herein, on transfer to this Court was numbered as TEST.CAS. 4/2026. On 12.01.2026 learned Senior Counsel for the Petitioner in TEST.CAS. 4/2026 sought some time to file the Memo of Parties and for other compliances in accordance with the Delhi High Court (Original Side) Rules, 2018. Memo of Parties in both the cases were filed. On the next date of hearing, i.e. on 20.01.2026, learned Senior Counsel appearing for the Respondent  No.1 in  the present case  raised  a preliminary objection that the present Petition i.e. TEST.CAS. 2/2026, which has been filed by the Petitioner under Section 278 of the Indian Succession Act for grant of Letters of Administration without the Will but disclosing the presence of Will dated 07.02.2025, is not maintainable in law. Arguments on the maintainability of the present Petition were advanced by both the sides and the matter was reserved on 17.02.2026 to consider the maintainability of the present Petition.

The said Order was taken up before the Apex Court by filing SLP (C) No.10536/2026. The Apex Court vide Order dated 23.02.2026 dismissed the said SLP by passing the following order:-

“We have heard learned senior counsel for the petitioner(s)  at  a considerable  length.  We do  not  find any adverse order(s) passed by the High Court in relation to prayer for appointment of an Administrator/Oath Commissioner for the purpose of making inventories. It seems that an application to this effect is still pending consideration before the High Court.

That being so, we dispose of these Special Leave Petitions with liberty to the petitioner ( s) to plead the cause of urgency before the High Court and seek an appropriate interim protection with reference to the pending prayers.

It is clarified that the observations made hereinabove and/or the order that may be passed by the High Court shall be without prejudice to the outcome of the issue re: maintainability of the suit.”

Within three days of the said Order, the Petitioner herein filed an Application being I.A. No. 5379/2026 in the present case, seeking the following reliefs:

“a) list the present proceedings alongwith pending applications as expeditiously as this Hon'ble Court deems appropriate;

b) pass such further order/orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

The said Application was numbered and came up for hearing on 26.02.2026, wherein this Court had adjourned the hearing on the said Application till 18.03.2026, so that the judgment could be pronounced on the aspect whether the present Petition is maintainable or not.

On a pointed query  by  this Court as  to  whether the present petition seeking grant of Letters of Administration on intestacy, despite disclosure of the Will dated 07.02.2025,  is maintainable in its present form, or whether the Petitioner ought to seek a declaration regarding the invalidity of the said Will, learned Senior Counsel for the Petitioner submits that such a prayer for declaration is not mandatory. He places reliance on the Judgment passed by the Division Bench of this Court in Lalitkumar vs. Sunita & Ors., 2025 SCC OnLine Del 4904, judgment passed by the Bombay High Court in Sambhaji Vishnu Kharat vs. Sarjerao Kharat,  2020  SCC  OnLine  Bom  427,  and  the judgment passed by the Apex Court in Venigalla Koteswaramma vs. Malam Pati Suryamba & Ors., (2021) 4 SCC 246, to contend that the burden of proving the Will lies upon the propounder and not upon the person disputing it. He states that the onus to disprove the Will cannot be placed on the Petitioner herein on the first instance and the Petitioner does not have to seek a decree of declaration for declaring the Will as void. He states that once the Petitioner has disputed the Will in her pleadings, it is for the Respondent  No.1  to either obtain  Probate of  the same  or  to prove  the same in the Suit if the Respondent No.1 intended to rely on the Will and the Petition as framed claiming that the Testator has died in the state of intestacy, is maintainable under Section 278 of the Indian Succession Act.

Learned  Senior  Counsel  for  the  Petitioner  further  contends  that  mere execution of the Will is not sufficient and the Will must be an operative Will. He places reliance on Section 3(g) of the Hindu Succession Act which defines intestacy to state that if the Will is void or incapable of taking effect, it should be deemed that the Testator has died intestate. Learned Senior Counsel for the Petitioner places reliance on the Judgment of the Apex Court in Angurbala Mullick vs. Debabrata Mullick, 1951 SCC 420 & Parmanand Ahuja vs. Satyadev Ahuja, 1972 ILR Delhi 682, to contend that before a Court of law can determine whether a male Hindu has died intestate or  not,  it  will  have  to  determine  whether  or  not  he  has,  as  a  matter  of  law, left a valid Will which can be acted upon, and in accordance with which the properties  can  devolve  upon  the  successors  of  the  deceased. He,  therefore, states  that  the  present  Petition,  as  framed,  is  maintainable.  He  submits  that Respondent No. 1 is at liberty to propound the alleged Will and establish its validity in the present proceedings, which were instituted at an earlier point of time.  It is contended that the  pendency  of any  rival testamentary  claim does not preclude this Court from continuing with the present Petition. Accordingly,  he prays  that this  Court  may proceed  with the adjudication of the present Petition and, in the interim, appoint an administrator pendente lite of the estate pending final determination of the testamentary issues.

Per contra, learned Senior Counsel appearing for the Respondent No.1 contends that the present Petition is not maintainable in law. He places reliance on Sections 218, 232, 276 and 278 of the Indian Succession Act to contend that once the existence of a Will is discovered, any grant of Letters of Administration on the footing of intestacy under Section 278 would necessarily stand liable for revocation under Section 263 of the Indian Succession Act. It is submitted that in such circumstances, a petition seeking Letters  of  Administration  without  the  Will  annexed  cannot  be  permitted  to continue, particularly when a separate proceeding has already been instituted seeking Letters of Administration with the Will annexed under Section 276 of  the  Indian  Succession  Act  in  relation  to  the  same  estate.  Learned  Senior Counsel further contends that a Petition under Sections 218 and 278 founded on intestacy, while simultaneously acknowledging the existence of a testamentary  document,  is  contrary  to  the  scheme  of  the Indian  Succession Act and is therefore liable to be rejected at the very threshold. It is urged that once  a  Will  has  surfaced,  the  estate  cannot  be  treated  as  intestate  until  the validity  of  the  Will  is  adjudicated  in  accordance  with  the  provisions  of  the Indian  Succession  Act.  It  is  further  submitted  that  questions  relating  to  the due execution, genuineness or validity of the Will fall exclusively within the jurisdiction of a testamentary court in proceedings for grant of probate or for Letters of Administration with the Will annexed, and cannot be adjudicated in  proceedings  instituted  on  the  basis  of  intestacy.  Learned Senior  Counsel emphasises that proceedings for probate or for grant of Letters of Administration with the Will annexed operate in rem, and the final determination therein conclusively establishes the validity or otherwise of the Will as against the world at large. Accordingly, it is contended that such issues cannot be incidentally examined in a Petition seeking Letters of Administration  without the  Will  annexed,  where  the  very foundation  of  the proceeding is the assertion of intestacy, despite the acknowledged existence of a testamentary instrument.

Learned Senior Counsel appearing for the Respondent No.1 also states that the Petition as filed by the Petitioner herein before the High Court of Judicature at Bombay, is completely contrary to the  Bombay High Court (Original Side) Rules, 1980. He has drawn the attention of this Court to Rule 376 contained in Chapter XXVI of the  Bombay High Court (Original Side) Rules, 1980 which deals with Testamentary and intestate Jurisdiction to state that an application for  letters of administration in cases  where  the deceased has died intestate shall be made by a Petition and that the Petition shall be in Form  No.  103  with  such  variations  as  the circumstances  of  each  case  may require and shall be accompanied by the administrator’s oath which is in Form No.  104.  He  states  that  Form No.103,  which  gives  the  Proforma  of  a petition for Letters of Administration, states that the Petition requires a specific  averment  that  the  deceased  died  intestate  and  that  due  and  diligent search has been made for a Will but none has been found and Form No.104, which is the format for administrator’s oath, states that it has to be solemnly affirmed that the deceased died  without leaving a Will. He, therefore, states that the Petition, as filed by the Petitioner before the High Court of Judicature  at  Bombay,  is  not  in  accordance  with  the  Form  as  mentioned  in the Bombay High Court (Original Side) Rules, 1980 and, therefore, the Petition must be returned back.

Challenging  the  averments  made by  the  learned Senior  Counsel  for the Respondent No.1, learned Senior Counsel appearing for the Petitioner states  that  reliance placed by the  learned Senior  Counsel  on  Section  232  of the Indian Succession Act is misplaced and erroneous, as Section 232 of the Indian  Succession  Act  only  enables  a  universal  or  residuary  legatee  to  file for  Letters  of  Administration  with  the  Will  annexed,  where  the  Will  has  to be  proved.  He  states that  in  the  present  case,  it  is  the  case  of  the  Petitioner that the deceased has died intestate and the so-called Will is not a valid Will in accordance with law and, therefore, this argument cannot affect the maintainability of the present Petition and that the present Petition would have to be considered as framed and it is for the Respondent No.1 to prove the  correctness  or  otherwise  of  the Will in the  present Petition,  which has been filed in prior point of time.  He further submits that Section 240 of the Indian Succession Act expressly enables the Court to grant Letters of Administration even in circumstances where it is asserted that a Will had been  executed  by the  testator,  but  the  same  is  not  presently forthcoming  or traceable.  It  is  contended  that,  until  such  time  as  the  alleged  Will  surfaces and is duly proved in accordance with law, the estate cannot remain un- administered, and therefore, the Court is empowered to grant Letters of Administration  for  the  preservation  and  management  of  the  estate  pending proof or production of the testamentary instrument. Learned Senior Counsel appearing for the Petitioner states that the Testamentary Petition filed by Respondent No.1 before the High Court of Rajasthan at Jodhpur, under Section 276 of the Indian Succession Act, seeking issuance of Letters of Administration with the Will annexed, was filed at a later point of time and the correctness or otherwise of the Testamentary  instrument, i.e. the Will, will be decided in the present Petition, which was filed prior to the filing of the Testamentary Petition before the High Court of Judicature for Rajasthan at Jodhpur.

Learned Senior Counsel appearing for the Petitioner also contends that the argument of the learned Senior Counsel for the Respondent No.1 that the Petition, as filed before the  High Court of Judicature at Bombay, is not in the prescribed format, is without any basis. He submits that in paragraph 11 of the present Petition, the Petitioner has expressly stated that she has knowledge of two alleged testamentary writings, though she disputes their validity and contends that no valid Will exists in law. He further submits that Rule 376 of the Bombay High Court (Original Side) Rules, 1980  provides  that  a  Testamentary  Petition  may  be  filed  in  Form  No.  103 with such variations as the circumstances of each case may require. According to him, the scope of such permissible variation is wide enough to encompass  situations  like  the  present,  where  the  Petitioner  does  not  accept the  existence  or  validity  of  the  alleged  Will.  It  is  therefore  contended  that, even in a case where a testamentary instrument is alleged but is disputed or treated as non-est in the eyes of law, the Petitioner is entitled to institute the present  Petition by asserting intestacy,  leaving  it open to the  propounder of the alleged Will to establish its validity in appropriate proceedings.  He also states  that  Forms  cannot  over-ride  the  provisions of  the  statute.  He  submits that the Petitioner has approached the Court with clean hands, having candidly disclosed her knowledge of a purported Will dated 07.02.2025, and having also placed on record a copy of the said document, which was received  from  Respondent  No.  1  through  WhatsApp.  It  is  the  specific  case of the Petitioner that no valid testamentary disposition exists in law, and that the alleged Will is surrounded by suspicious circumstances and is therefore invalid and unenforceable. On this basis, it is contended that the present Petition, as framed on the footing of intestacy, is maintainable in law notwithstanding the existence of the disputed testamentary document. He further submits that, in any event, the Petition was duly scrutinised, numbered and notice was issued by the High Court of Judicature at Bombay, and therefore, the contention advanced by learned Senior Counsel for Respondent No. 1 that the Petition was not in conformity with the Bombay High Court (Original Side) Rules, 1980, is untenable and liable to be rejected.

Learned  Senior  Counsel  for  the  Petitioner  places  reliance  on  Section 3(g) of the Hindu Succession Act which defines intestacy  and state that a person  is  deemed  to  die  intestate  in  respect  of  property  of which  he  or  she has  not  made  a  testamentary  disposition  capable  of  taking  effect.  He  states that the allegations in the Petition are of such nature which conclusively points out that the Testator had died intestate as he was not capable of executing a valid Will. He further submits that upon Transfer Petitions being preferred, the Apex Court was pleased to transfer both testamentary proceedings to this Court and directed that they be heard and decided together.  It  is  contended  that  such  direction  was  issued in  view  of  the  fact that both parties are seeking grant of Letters of Administration in respect of the same estate, albeit on different foundations  - one with the Will annexed and  the  other  on  the  footing  of  intestacy.  Accordingly,  it  is  submitted  that since the question of the validity and due execution of the alleged Will is a common and central issue arising in both Petitions, and the subject-matter of administration  pertains  to  the  same  estate  of  the  deceased,  the  proceedings are  liable  to  be  heard  and  tried  conjointly to  avoid  conflicting  findings  and multiplicity of litigation.

Heard the learned Senior Counsels for the parties and perused the material on record.

It is well settled that proceedings for grant of probate or Letters of Administration under the Indian Succession Act are proceedings in rem and fall within the exclusive jurisdiction of the testamentary court. However, this does not imply a total exclusion of the jurisdiction of civil courts under Section 9 of the Code of Civil Procedure, 1908. Civil courts continue to retain  jurisdiction  in  matters  relating  to  declaration  of  title,  construction  of Wills, and other proprietary disputes arising out of succession. The bar operates  only  to  the  limited  extent  that  the  validity  and  due  execution  of a Will, for the purpose of grant or refusal of Probate or Letters of Administration,  must  be  adjudicated  in  accordance  with  the  scheme  of  the Indian Succession Act.

Before this Court proceeds to analyse the rival contentions, it is necessary to reproduce the following provisions of the Indian Succession Act :

“2. Definitions.

In this Act, unless there is anything repugnant in the subject or context,--

(a) administrator means a person appointed by competent authority to administer the estate of a deceased person when there is no executor;

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(f) probate means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;

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(h) will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

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Section 218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.—(1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution

of the estate applicable  in  the case of such deceased, would be entitled to the whole or any part of such deceased's estate.

(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the deceased.

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Section 227. Effect of probate.—Probate of a will when granted establishes the will from the death of the testator,  and  renders  valid  all  intermediate  acts  of  the executor as such.

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Section 232. Grant of administration to universal or residuary legatees.—When—

(a) the deceased has made a will, but has not appointed an executor, or

(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or

(c)  the  executor  dies  after  having  proved  the  will,  but before he has administered all the estate of the deceased,

an 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 of so much thereof as may be unadministered.

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Section 240. Administration until will produced.—Where no will of the deceased is forthcoming, but there is reason to believe that there is a will in existence, letters  of  administration  may  be  granted,  limited  until the will or an authenticated copy of it is produced.

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Section 263. Revocation or annulment for just cause.—The  grant  of  probate  or letters  of  administration may be revoked or annulled for just cause.

Explanation.—Just cause shall be deemed to exist where—

(a)  the  proceedings  to  obtain  the  grant  were  defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation  of  a  fact  essential  in  point  of  law  to  justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter  an  inventory  or  account  which  is  untrue  in  a material respect.

Illustrations

(i) The Court by which the grant was made had no jurisdiction.

(ii) The grant was made without citing parties who ought to have been cited.

(iii) The will of which probate was obtained was forged or revoked.

(iv) A  obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.

(v) A  has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.

(vi) Since probate was granted, a later will has been discovered.

(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.

(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind.

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Section 273. Conclusiveness of probate or letters of administration.—Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted; and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:

Provided that probates and letters of administration granted—

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of  his  death  had  a  fixed  place  of  abode  situate  within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other States.

The proviso to this section shall apply in India after the separation  of  Burma  and  Aden  from  India  to  probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date. The proviso shall also apply in India after the separation of Pakistan from India to probates and letters of administration granted before the date of the separation, or after that date in proceedings pending at that  date,  in any of the territories which  on  that  date constituted Pakistan.

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Section 276. Petition for probate.—(1) Application for probate or for letters of administration, with the will annexed,  shall  be  made  by  a petition distinctly  written in English or in the language in ordinary use in proceedings  before  the  Court  in  which  the  application is made, with the will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—

(a) the time of the testator's death,

(b) that the writing annexed is his last will and testament, (c) that it was duly executed,

(d)  the  amount  of  assets  which  are  likely  to  come  to  the petitioner's hand, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,—

(a)  when  the  application  is  to  the  District  Judge,  that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3)  Where  the  application  is  to  the  District  Judge  and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

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Section 278. Petition for letters of administration.—(1) Application for letters  of administration shall be made by petition distinctly written as aforesaid and stating—

(a) the time and place of the deceased's death;

(b) the family or other relatives of the deceased and their respective residences;

(c) the right in which the petitioner claims;

(d)  the  amount  of  assets  which  are  likely  to  come  to  the petitioner's hands;

(e) when the application is to the District Judge, and that deceased at the time of his death had fixed a place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f)  when  the  application  is  to  the  District  Delegate,  that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2)  Where  the  application  is  to  the  District  Judge  and any portion of the assets likely to come to the petitioner's hands is situate in another State the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

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Section  295. Procedure  in contentious cases.—In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff,  and  the  person  who  has  appeared  to  oppose the grant shall be the defendant.”

Section 218 of the Indian Succession Act provides that if the deceased has  died intestate,  then administration  of  his estate  may  be granted  to any person who, according to the rules for the distribution of the estate applicable  in  the  case  of  such  deceased,  would  be  entitled  to  the  whole  or any part of such deceased's estate and if there are more than one person who apply for such administration,  then  it shall be in the discretion of the Court to grant the Letters of Administration to any one or more of them.

Section 232 of the Indian Succession Act provides when the deceased has made a Will, but has not appointed an executor, or the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or the executor dies after having proved the Will, but before he has administered all the estate of the deceased, then an universal or a residuary  legatee may  be admitted to prove  the  Will,  and  letters  of  administration  with  the  Will  annexed  may be granted to  such a person/persons  of the whole estate, or of so  much thereof as may be un-administered.

Section 247 of the Indian Succession Act, which deals with administration of the estate pending litigation, provides that pending any Suit  touching the  validity of  the  Will of  a deceased  person  or  for  obtaining or revoking any Probate or any grant of Letters of Administration, the Court may appoint an administrator and such a person shall take control of the estate subject to the directions of the Court.

Section 263 of the Indian Succession Act gives the circumstances where  the  grant  of  Probate  or  Letters  of  Administration  may be  revoked  or annulled. Illustration (v) of Section 263 provides that even if a Letters of Administration  is  granted  to  a  person  as  if  the  deceased  has  died  intestate, but if the Will is later on discovered then such Letters of Administration can be revoked.

Section 273 of the Indian Succession Act provides that the Probate or Letters  of  Administration  shall  have  effect  over  all  the  property  and  estate throughout the State in which the same is or are granted and is conclusive as to the representative title against all debtors of the deceased, and all persons holding  property  which  belongs  to  him  and,  therefore,  the  grant  of  probate or Letters of Administration is in rem.

Section  276  of  the  Indian  Succession  Act  deals  with  the  Petition  for probate or for Letters of Administration, with the Will annexed. Section 276 gives the particulars which have to be given along with the  Petition and the documents which have to be produced.

Section 278 of the Indian Succession Act deals with grant of Letters of Administration where there is no Will attached.

It  is  now  trite  law  that  the  questions  regarding grant  of  Probate  of  a will or grant of Letters of Administration with or without a will are determined exclusively by a Testamentary Court in a proceeding for grant of Probate or Letters of Administration with the Will annexed and in accordance with the provisions of the Indian Succession Act. The Apex Court in Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507, while holding that probate proceedings shall be conducted by a probate court in a manner prescribed in the Indian Succession Act, has observed as under:

“15.  In  Ishwardeo  Narain  Singh  v.  Smt  Kamta  Devi [(1953) 1 SCC 295 : AIR 1954 SC 280] this Court held  that  the  court  of  probate  is  only  concerned  with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall  be  conducted by  the probate court in  the  manner  prescribed  in  the  Act  and  in  no  other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment  of  the  executor  and  the  valid  execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor.  Probate  court does  not  decide any  question of title or of the existence of the property itself.

The grant of a probate by court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it  is  duly  revoked  as  per  law.  It  binds  not  only  upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad Narayan Singh  [ILR  (1916)  43  Cal  694  : AIR  1916  PC  78  : 43 IA 91] the Judicial Committee was to consider whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (civil court) in suit to declare the grant of probate illegal etc. The Privy Council held that the civil court has no jurisdiction to impugn the grant of probate by the court of  competent  jurisdiction.  In  that  case  the  subordinate court of Muzafarbad was held to have had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram  Purohit  v.  Jevallabh  Harjivan  [AIR  1933  Bom 469  : 35  BLR  998  : 147  IC  362]  probate  was  granted by the High Court exercising probate jurisdiction. A civil suit on the original side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted, it operates upon the whole estate and establishes the will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the will and after the probate has been granted, it is incumbent of a person who wants to have the will declared null and void, to have the probate revoked before proceeding further. That could be done only before the probate court and not on the original side of the  High  Court.  When  a  request  was  made  to  transfer the suit to the probate court, the learned Judge declined  to  grant  the  relief  and  stayed  the  proceeding on the original side. Thus it is conclusive that the court of  probate alone  had  jurisdiction  and  is competent  to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act. That court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed will. It should keep the original will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem.

We agree with Mr Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute. The other legatees in the will were not parties to it. In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC  602  :  1988  SCC  (Cri)  372] when  a  Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with which  the  petitioner  therein  was  charged  and  the  trial was being proceeded with, he questioned by way of writ  petition the  jurisdiction  of this  Court to give  such a direction. A Bench of seven judges per majority construed the meaning of the word ‘jurisdiction’. Mukharji, J. as he then was, speaking per himself, Oza and Natarajan, JJ. held that the power to create or enlarge jurisdiction is legislative in character. So also the power to confer a right of appeal or to take away a right of appeal. The Parliament alone can do it by law and no court, whether superior or inferior or both combined,  can  enlarge  the  jurisdiction  of  a  court  and divest a person of his rights of appeal or revision. Ranganath Mishra, J. as he then was, held that jurisdiction  comes  solely  from  the  law  of  the  land  and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature.  Jurisdiction  is  thus  the  authority  or  power of  the  court  to  deal  with  a  matter  and  make  an  order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try  a  case  could  only  be  conferred  by  law  enacted  by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law. In the dissenting opinion Venkatachaliah,  J.,  as  he  then  was,  lay  down  that  the expression jurisdiction or prior determination is a“verbal coat of many colours”. In the case of a tribunal,  an  error  of  law  might  become  not  merely  an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a ‘legal shelter’ and a power to bind despite a possible error in the decision. The existence of jurisdiction does not depend on the correctness of its exercise.  The  authority  to  decide  embodies  a  privilege to  bind  despite  error,  a  privilege  which  is  inherent  in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot  confer  jurisdiction  or an  authority on  a tribunal.  In  that  case this  Court  held  that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952. The direction per majority was held to be void.

It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds  on  which  the  decree  made  which  goes  to  the root  of  its  jurisdiction  or  lacks  inherent  jurisdiction  is a coram non judice. A  decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever  it  is  sought  to  be  enforced  or  is  acted  upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver  of  the  party.  In  Bahadur  Singh  v.  Muni  Subrat Dass [(1969) 2 SCR 432] an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified  time  and  thereafter  to  remove  the  machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord  could  not  execute  the  decree.  The  same  view was reiterated in Kaushalya Devi (Smt) v. K.L. Bansal [(1969)  1 SCC 59  : AIR 1970 SC 838]  . In  Ferozi  Lal Jain v. Man Mal [(1970) 3 SCC 181 : AIR 1970 SC 794] a compromise dehors grounds for eviction was arrived  at  between  the  parties  under  Section  13  of  the Delhi  and  Ajmer  Rent  Control  Act.  A  decree  in  terms thereof  was  passed.  The  possession  was  not  delivered and execution was laid. It was held that the decree was nullity  and,  therefore,  the  tenant  could  not  be  evicted. In Sushil Kumar Mehta v.  Gobind Ram  Bohra (dead) through his Lrs. [(1990) 1 SCC 193 : JT 1989 (Suppl) SC 329] the civil court decreed eviction but the building  was  governed  by  Haryana  Urban  (Control  of Rent and Eviction) Act (11 of 1973).  It was  held that the  decree  was  without  jurisdiction  and  its  nullity  can be raised in execution. In Union of India v. Ajit Mehta and Associates, Pune [AIR 1990 Bom 45 : (1989) 3 Bom CR 535] a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under Section 30 of the Arbitration Act. The Division Bench held that Clause 70 of the contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the contract. Pursuant to this contract under Section 8 of the Act, an arbitrator was appointed and award was made. Its validity  was  questioned  under  Section  30  thereof.  The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case-law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was  held void  being without  jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is  non  est. In  Ghellabhai case [ILR 21  Bom 336] Sir C. Farran, Kt., C.J. of Bombay High Court held that the probate court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of will to arbitration. It was also held that the executor having propounded a will and applied for probate, a caveat was filed denying the execution of the alleged will, and the  matter  was  duly  registered  as  a  suit,  the  executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.

In Gopi Rai case [AIR 1930 All 840 : 1930 ALJ 1584 : 128 IC 817] Sulaiman, J. as he then was, speaking for the Division Bench held that the civil court  has  no  jurisdiction  to  allow  the  dispute  relating to  the  genuineness  of  a  will  in  a  probate  proceedings pending before him to be referred to the arbitration of an arbitrator. He has got to be satisfied that the will is a genuine document before the order of granting probate  is  passed.  He  cannot  delegate  those  functions to a private individual and decide the point through him. Similar was the view laid in Monmohini Guha case [ILR 31 Cal 357 : 8 CWN 197] , Sarda Kanta Das v. Gobinda Das [6 IC 912 : 12 CLJ 91] and Khela Wati v. Chet Ram Khub Ram [AIR 1952 Punj 67 : 1952 Bh LR Punj 80] . When the plea of estoppel was raised, Sulaiman, J. in Gopi Rai case [AIR 1930 All 840 : 1930 ALJ 1584 : 128 IC 817] held that“Wecannot hold that there is any estoppel against Gopi Rai on this question of jurisdiction. That is a matter which we can take into account only when ordering costs”. The decision in Nalla Ramudamma v. Nalla Kasi Naidu [AIR  1945  Mad  269  : (1945)  1  MLJ  396  : ILR  (1946) Mad 134] relied on by Shri Chidambaram does not help his clients. Therein the question was the matrimonial dispute. The arbitrator had decided at the request of the parties and a decree was passed. It was held  that  the  dispute  would  come  under  Section  21  of the Arbitration Act. The question of jurisdiction was not raised therein. Equally the decision in Mt. Mahasunder Kuer v. Ram Ratan Prasad Sahi [AIR 1916 Pat 382 : 35 IC 416 : 1 PLW 370] is also of little assistance. The question of adoption, it was held, cannot be decided in the probate proceedings.

On a conspectus of the above legal scenario we conclude that the probate court has been conferred with exclusive jurisdiction to grant probate of the will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will  produced  before  it.  The  grant  of  probate  is  final subject to appeal, if any, or revocation if made in terms  of  the  provisions  of  the  Succession  Act.  It  is  a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 299. Thus the necessary conclusion is that the probate court alone has exclusive jurisdiction and the civil court on original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the will and is a legal  representative  entitled  to  represent  the  estate  of the deceased but the heirs cannot get any probate before the probate court. They are entitled only to resist the  claim  of  the  executrix  of  the  execution and genuineness of the will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings. We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not  an  expression  of  opinion  on  merits  in  the  probate suit.”

(emphasis supplied)

Part IX of the Indian Succession Act deals with Probate, Letters of Administration and administration of assets of deceased. Section 217 of the Indian Succession Act specifically states that all grants of Probate and Letters  of Administration with  the Will annexed and  the  administration  of the assets of the deceased in cases of intestate succession shall be carried out in accordance with the provisions of Part IX of the Indian Succession Act.

The scheme of the Indian Succession Act distinguishes between cases of intestate succession and testamentary succession. Where a person dies intestate, the grant of Letters of Administration serves the purpose of enabling proper administration and preservation of the estate pending determination of rights of succession. In contrast, where a testamentary instrument is propounded, the court is required to examine the due execution and validity of such instrument in accordance with the statutory procedure. 45. At this juncture, it is pertinent to  highlight the difference in language employed in Sections 276 and 278 of the Indian Succession Act. In an Application  filed  under  Section  276  of  the Indian  Succession  Act,  which  is an Application for grant of probate or Letters of Administration with a Will annexed needs the following averments:

“a) the time of the testator’s death,

b) that the writing annexed is his last Will and testament,

c) that it was duly executed,

d) the amount of assets which are likely to come to the petitioner’s hands, and

e) when the application is for probate, that the petitioner is the executor named in the Will.”

On the other hand, an Application under Section 278 of the Indian Succession Act which is for grant of Letters of Administration which applies in a case of intestacy requires the following averments:

“a) the time and place of the deceased’s death;

b) the family or other relatives of the deceased, and their respective residences;

c) the right in which the petitioner claims;

d) the amount of assets which are likely to come to the petitioner’s hands;

e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

f) when  the  application  is  to  a District Delegate,  that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.”

Under Section 276 of the Indian Succession Act, the Applicant who is seeking Probate of the Will or an Applicant seeking Letters of Administration  on  the  basis  of  the  Will  has  to  prove  it  in  accordance  with the requirements of the Indian Succession Act read with Indian Evidence Act, 1872 or Bharatiya Sakshya Adhiniyam, 2023(“BSA”),as the case may be.  Whereas,  in  an  Application  under  Section  278  of  the  Indian Succession Act, the Applicant has to show in what capacity he is claiming to administer the estate of the deceased and how that Applicant is the most suitable to administer the assets of the deceased, till the assets are distributed in accordance with the succession law applicable to the parties.

It is well settled that in proceedings for grant of Letters of Administration,  the  Court  is  primarily concerned  with  determining  whether the applicant is a fit and proper person to be entrusted with the administration of the estate of the deceased till the estate is distributed to the legatee of the deceased in accordance with the applicable laws. Such proceedings are summary in nature, and therefore intricate or complex questions of title or proprietary rights are not ordinarily amenable to adjudication within the limited scope of such testamentary jurisdiction.

Since there is no Will produced in a Petition under Section 278 of the Indian Succession Act, there is no question of proving the Will under the said  proceedings.  The  Will  can  be  proved  only  in  a  Petition  under  Section 276  of  the  Indian  Succession  Act and  not  under  Section  278  of  the  Indian Succession Act as the requirements of the ingredients applicable under Section 276 and 278 of the Indian Succession Act are different.

Further,  Section  263  of  the  Indian  Succession  Act  states  that  even  if Letters of Administration is granted under Section 278 of the Indian Succession Act, it can be revoked or annulled for a ‘just cause’. The explanation to Section 263 of the Indian Succession Act gives the instances where ‘just cause’ is deemed to exist. The illustrations under the said Section also give a fair idea as to under what all circumstances, powers under  Section  263  of the  Indian  Succession  Act  can be  invoked.  As  rightly stated  by  the  learned  Counsel  for  the  Respondent No.1  that  if  a  Letters  of Administration stands granted under Section 278 of the Indian Succession Act, it can be revoked under Section 263 of the Indian Succession Act, when the  Will  surfaces.  Thus,  it  can  be  discerned  that  if  an  Application  for  grant of Letters of Administration has been filed without a Will under Section 278 of the Indian Succession Act and during the pendency of such an Application,  if  an  Application  for  Letters  of  Administration  has  been  filed with a copy of the Will annexed thereto, in such case the validity of the Will is ordinarily adjudicated in proceedings seeking probate or grant of Letters of Administration with the Will annexed.

A Co-ordinate Bench of this  Court in Administrator General v. State, 2016  SCC  OnLine  Del  6407,  while  dealing  with  the  scope  of  proceedings under Indian Succession Act, has observed as under:

“58. .....

(B) Though in these proceedings Issue No. 3 aforesaid was framed but it is the settled position in law that the Court of probate is only concerned with the question, whether the document put forward as the last Will and testimony of the deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind (see Ishwardeo Narain Singh v. Srimati Kamta Devi AIR 1954 SC 280). The same is the position in a proceeding seeking letters of administration. The Court in such proceedings also is concerned only with, whether the person seeking letters  of  administration  is  a  fit  person  to  be  granted the letters of administration of the estate of the deceased  (see  Bai  Parvatibai  v.  Rahunath  Lakshman AIR 1941 Bom 60, Mahadeo Shankar Shinde v. Maruti Shankar Shinde AIR 2003 Bom 312 and Delhi Development Authority v. Vijaya C. Gurshaney (2003) 7 SCC 301). Neither of the said proceedings is concerned with,  what was the estate  of  the deceased Smt. Dropadi Devi, whether the bequest is bad or not or  amongst  whom  is  the  estate  to  be  distributed.  The Court in such proceedings does not enter into the question of title to the property. Reference in this regard can be made to Leelawati Singh v. State (1998) 75 DLT 694, Anjan Kumar Singhi v. Ranjan Kumar Singhi (2011) 126 DRJ 56 (DB), Ramchandra Ganpatrao Hande alias Handege v. Vithalrao Hande AIR 2011 Bom 136 and Ganesh Mohapatra v. Udaynath Mohapatra. Such proceedings are summary in nature and complicated questions of title cannot be properly conducted in summary proceedings. The question whether the objectors are related to the deceased Smt. Dropadi Devi as agnate is a complicated question of relationship which  could  not have been properly adjudicated in these proceedings.”

(emphasis supplied)

In  the  present  case,  two  parallel  testamentary  proceedings  have  been instituted in respect of the estate of the deceased. The first has been initiated by  the Petitioner before the High Court of Judicature at Bombay, seeking grant  of  Letters  of  Administration  on  the ground  of  intestacy,  i.e.,  without the Will being annexed. The second proceeding has been instituted by Respondent No. 1 before the High Court of Judicature for Rajasthan at Jodhpur,  seeking  grant  of  Letters  of  Administration  with  the  Will  annexed. In the said proceeding, it is asserted that it was the express wish of the testator/deceased  that  his  estate  be  administered  by  Respondent  No. 1,  and the  relief  sought  therein  is  founded  upon  the  validity  and  due  execution of the purported Will.

The short question that arises for consideration is whether the Petition filed by the Petitioner before the High Court of Judicature at Bombay seeking grant of Letters of Administration on the ground of intestacy is maintainable in circumstances where the Petitioner has herself acknowledged the existence of a Will, a copy whereof  has been annexed to the Petition, can continue after a Will has surfaced and a Letters of Administration is being sought on the basis of that Will.

The Petitioner, while disputing the validity of the said testamentary instrument, has contended that the testator/deceased lacked the requisite testamentary  capacity owing to his alleged mental and physical condition, and that the purported Will is surrounded by suspicious circumstances, including the allegation that the deceased was under the complete control and influence of Respondent No. 1 at the relevant time, an issue which now can  be  considered  in  TEST.CAS.  4/2026.  In  the  opinion  of  this  Court,  the above question must be answered in the negative.

The  present  petition  proceeds  on  the  premise  that  the  alleged  Will  is invalid. However, the validity of a testamentary instrument is required to be adjudicated within appropriate proceedings in accordance with the statutory framework.

When a person dies intestate, Letters of Administration may be granted to a suitable person to administer the estate of the deceased until the property  devolves  upon  the  lawful  heirs  in  accordance  with  law.  However, where the deceased has left behind a Will, the testamentary instrument must be proved in the proceedings wherein it is propounded, and not in any collateral or parallel proceedings founded on intestacy.

In the opinion of this Court, once a Petition seeking Letters of Administration with the Will annexed has been instituted, the question of the due execution, genuineness and validity of the Will must be adjudicated within those proceedings, wherein the testamentary instrument is propounded. The Will cannot be proved or disproved in proceedings instituted on the basis of intestacy, i.e. in a Petition seeking Letters of Administration without the Will annexed.

Although the Will does not name an executor, the Respondent No. 1, being the universal legatee under the alleged Will,  is competent in law  to propound and prove the Will. Consequently, the present  Petition, as framed i.e. seeking grant of Letters of Administration without seeking any declaratory relief regarding the invalidity of the Will  cannot be entertained, particularly when another testamentary proceeding has already been instituted in respect of the same estate with the Will annexed. The mere assertion that a testamentary instrument is invalid does  not render the estate intestate, since intestacy arises only upon failure to establish a valid testamentary disposition.

As stated earlier, this Court may derive guidance from Section 263 of the Indian Succession Act, which provides that a grant of probate or Letters of Administration may be revoked or annulled for “just cause.” The explanation appended to the said provision enumerates circumstances in which ‘just cause’ shall be deemed to exist. In particular, explanation (d) to the said provision contemplates situations where the grant has become useless and inoperative due to subsequent events, or where it has been obtained fraudulently by false suggestion or by concealment of material facts. Further, Illustration (v) to Section 263 exemplifies a case where Letters  of Administration as granted on  the footing that  the  deceased  died intestate,  but  a  Will  is  subsequently  discovered.  In  such  circumstances,  the earlier grant is liable to be revoked upon due proof of the Will.

Applying the said statutory analogy to the present case, it follows that if  a  grant  of  Letters  of  Administration  made  on  the  premise  of  intestacy  is liable to be revoked upon the subsequent proof of a Will,  no useful purpose would be served in permitting parallel continuation of proceedings founded on intestacy, particularly when another testamentary proceeding has already been instituted for the same estate on the basis of the alleged Will. The legislative scheme thus militates against the continuation of proceedings premised on intestacy where the existence and validity of a Will is the subject matter of adjudication in contemporaneous testamentary proceedings. The  illustration relating  to  discovery  of a Will after grant  on intestacy underscores the legislative intent to avoid multiplicity of inconsistent grants.  This statutory  principle reinforces the need for careful judicial scrutiny where competing testamentary claims are pending, so as to ensure that administration of the estate proceeds in a coherent and legally sustainable manner.

Further, the judgments relied upon by learned Senior Counsel for the Petitioner, in support of the contention that a specific prayer for declaration is not mandatory, are distinguishable on facts. In Lalitkumar (supra), the proceedings  arose  out  of  a suit  for partition,  wherein the defendants  sought to rely upon a Will to defeat the claim of the Plaintiff. Although the Plaintiff therein  asserted  that  the  Will  was  void  ab  initio, no  formal  relief  seeking  a declaration to that effect had been prayed. In that context, the Division Bench held that the onus of proving the Will rested upon the party propounding it, namely the Defendant. In such circumstances, the burden of proving the Will rested upon the party propounding it. Testamentary proceedings under the Indian Succession Act stand on a different footing, as they are specifically designed for adjudication of the validity of testamentary instruments. Consequently, while the principle relating to burden of proof remains relevant, the procedural context in which such burden is to be discharged differs materially.

Similarly, the Judgment in Sambhaji Vishnu Kharat (supra) & Venigalla Koteswaramma  (supra) arose  in  the  context  of  suits  for  partition wherein a Will surfaced during the course of proceedings, and were not proceedings instituted under the Indian Succession Act. As observed earlier, the proof or disproof of a testamentary instrument must be undertaken strictly in accordance with the provisions of the Indian Succession Act, which governs the grant of Probate or Letters of Administration, both in cases of testamentary succession as well as intestacy.

In view of the aforementioned judgments, the contention advanced by learned Senior Counsel for the Petitioner that the Will can be proved in the present Petition, which has been instituted without the Will annexed and on the premise of intestacy, cannot be accepted. The validity of the Will can be adjudicated only in the Petition filed by Respondent No. 1, wherein the testamentary instrument has been placed on record.

Since a testamentary instrument can be proved only in accordance with the provisions of the Indian Succession Act, the grant of probate or Letters of Administration with  the Will annexed is the statutory mechanism for determining the due execution and validity of a Will. However, a decree declaring a Will to be invalid, void, or vitiated by suspicious circumstances can  be  granted  only  by  a  competent  civil  court  in  appropriate  proceedings instituted for that purpose.

In such cases, a person alleging that the Will is bad in law or unenforceable must seek  declaratory  relief  by  way  of a civil Suit,  and  not through proceedings under the Indian Succession Act, which are confined to the limited question of grant or refusal of probate or Letters of Administration.  The  Indian  Succession  Act  does  not  contemplate  initiation of  independent  proceedings  solely for  obtaining  a declaration  regarding  the invalidity of a Will. Further, such relief must be sought in a properly constituted civil action.

Consequently, while a Will may ultimately be proved or disproved in testamentary proceedings, a substantive declaration as to its invalidity at the instance of a party alleging infirmity can only be adjudicated in a civil Suit, and not within the summary framework of proceedings under the Indian Succession Act.

A co-ordinate Bench of the Bombay High Court in Bindia Kriplani v. Naresh Nathulal Pal, 2018 SCC OnLine Bom 2005, while dealing with two Petitions, one for grant of probate of a Will and the other for grant of Letters of Administration  without annexing the Will, for the very same estate, held as under:

“2. It seems that Balakrishna died leaving a Will dated 28th September 2010. His executors, one Rakesh Kumar Jhunjhunwala and Bindia Kripalani sought Probate to that Will. In his Will, Balakrishna said that his  daughter,  Urvashi,  unmarried,  was  unable  to  look after herself. The Will said that she suffered from severe mental health conditions. She was the sole legatee of his entire estate. The Will placed the responsibility on the executors : if two doctors certified to Urvashi's capability, the executors and trustees of Balakrishna's estate and Will would hand over the corpus of his estate and all accretions to her. The Testamentary trust would thus then end. Urvashi herself filed a Testamentary Petition No. 1645 of 2013 seeking Letters of Administration without Will annexed claiming to be the sole heir and therefore solely entitled to her father's, Balakrishna's, estate.

The two matters were listed together on 13th October 2014 when, and I say this with great responsibility, matters took an exceedingly strange turn. Neither Petition was contested. Neither Petition was being tried. There were no Defendants. There were no caveats. No issues had been framed. The learned Single Judge thought it fit to consider which of these two claims, i.e. the one for Probate or the one for Letters of Administration as on intestacy should be preferred. Urvashi was subjected to a medical examination under some previous orders and those reports were read into the matter by the Court. Then the Court put some questions to Urvashi. She was given some stationery and made to write out some material. On this the Court came to the conclusion that she was a person of truth as also a person in knowledge  of  the  estate  of  the  deceased;  and  that  her firmness in wanting to deal with properties herself was brought out ‘loud and clear’ before the Court. As both Petitions covered the same estate, they seemed to have been jurisprudentially telescoped in a manner that I think  is  not  only  completely  impermissible  but  renders vulnerable the order itself as being  per incuriam  and contrary to the provisions of the Indian Succession Act, 1925 (not one of which is noted in the order). To begin with Section 213 provides that no right as an executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed or granted. Section 218 provides for persons to whom administration may be granted on intestacy. Section 222 provides for grant of probate only to executor appointed under the Will. Thus, if Urvashi wanted to contest the Will — and she undoubtedly had a caveatable interest—she ought to have filed (or been allowed to file) a caveat to oppose the Probate Petition. Indeed, on the Court's finding that she was ‘capable’ and a ‘person of truth’, this was the only option available to the Court. Instead, the Court summarily dismissed the Probate Petition on the ground that since the executors did not claim any part of the estate therefore the Probate Petition would stand dismissed. Letters of Administration were thus directed to be issued to Urvashi.

There are  very  many  things  in  this order  that in  my view simply could not have been done. A  Will disrupts the normal line of succession; otherwise we would have no need for it. The fact that it did not in this case is irrelevant. In the scheme of the Succession Act, Probate is accorded a preferential status, for this very reason.  Further,  title  passes  through  the  executor.  It is the duty of the executor to apply for Probate of the Will  of  which  he  or  she  is  appointed  as  such.  Letters of  Administration  simpliciter  proceed  on  the  basis  of intestacy, i.e.  that there  is no Will.  Where there is  a contest between a Petition for Probate or Petition for Letters of Administration, the Petition for Letters of Administration cannot be decided nor can a grant be issued unless the Petition for Probate is dismissed, i.e., the Will is not ‘proved in its solemn form’. This may happen on default  or after  trial;  that  makes no difference. A Probate Petition blocks a petition for Letters of Administration. On its own the Probate Petition in question would have proceeded departmentally to a grant, since none opposed it. Under no circumstances therefore, until the Testamentary  Petition  for  Probate  was disposed of in accordance with law, could the Petition for Letters of Administration have been taken up; and since the Probate Petition was bound to result in a grant,  the Testamentary Petition for Letters of Administration had  to  be  dismissed  as  a  matter  of  routine  course. It was  emphatically  not  for  the  Court  to  decide  which  of the two petitions should be ‘preferred’. The testamentary court has no such discretion at all. It was for the deceased who made the Will to decide how and in what circumstances his estate would devolve. The role of the Court was to ensure that Probate was granted to that Will in the manner required by law upon Probate being sought.”

(emphasis supplied)

This Court is in agreement with the above observations.

Further, the Apex Court in Chiranjilal Shrilal Goenka (supra) has observed as under:

“13. Section 276 provides the procedure to obtain probate, namely,—(1) application for probate…with the will annexed, shall be made by a petition distinctly written in English…with the will or copy, as the case may be, stating the particulars and the details mentioned in clauses (a) to (e) and further details provided in sub-sections (2) and (3), the mention of the details whereof are not material for the purpose of this case. The petition shall be verified in the manner prescribed under Section 280 and also further to be verified  by  at  least  one  of the  witnesses  to  the will  in the manner and to the effect specified therein. The Caveator  is  entitled  to  object to its grant by  operation of Section 284….When it is contested Section 295 directs that probate proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of CPC and the petitioner for probate… shall be the plaintiff and the person who had appeared to oppose the grant shall be the defendant. Section 217 expressly  provides  that  save  as  otherwise  provided  by this Act or by any other law for the time being in force, all grants of probate…with the will annexed…shall be made or carried out, as the case may be, in accordance with the provisions of Part IX. Section 222 declares that (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may  be  expressed  or  by  necessary  implication  Section 223 prohibits grant of probates to the persons specified therein. Section 224 gives power to appoint several executors. Section 227 declares the effect of probate thus: “Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.” Section 248 envisages grant of probate for special purposes, namely,“ifan executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney … with the will annexed, shall be limited accordingly”.”

Applying the above-said observations to the facts of the present case wherein  Letters  of  Administration  has  been  sought  on  the  premise  as  if  the testator has died intestate, this Court is of the opinion that the present proceedings cannot proceed further.

Yet another co-ordinate Bench of the Bombay High Court in Peter John D'Souza v. Armstrong Joseph D'Souza, 2014 SCC OnLine Bom 436, while dealing with a Petition under Section 263 of the Indian Succession Act for setting aside the Letters of Administration as the Will surfaced after grant of Letters of Administration, has observed as under:

“5. In paragraph 3 of the said petition, the respondent has averred that the said deceased died  intestate and due and diligence search had been made for a Will but none had been found. On the premise that the said deceased died intestate and had not executed a Will, the respondent, who is the grandson of the said deceased, in the said petition prayed for letters of administration in respect of the estate of the said deceased. There was no opposition to the said petition. This Court accordingly issued a grant, i.e. the letters of administration in favour of the respondent in respect of the said deceased on 31-3-2011.

***

In catena of decisions of the Supreme Court and this Court, it is held that a party who has no caveatable interest or even a slightest interest in the property of the deceased and a party who claims interest adverse to the interest of the deceased testator cannot maintain a caveat. The Testamentary Court does not decide the title in respect of the property of a deceased. But insofar as the claim of the petitioners that they have interest in some of the properties which were the subject-matter of the petition for letters of administration and those letters of administration could not have been granted is concerned, in my view, this  Court cannot  decide such an  issue of title  in  this petition for revocation nor has decided the issue of title in the  petition  filed for letters of  administration  by the respondent.  Such  issues  can  be  adjudicated  by  a  Civil Court.

Be that as it may, in view of the fact that it is not in dispute that the deceased had left a Will in the year 1966, such fact is not having been disputed at least today by the respondent, whether such grant issued by this  Court  on  the  premise  that  the  said  deceased  died intestate can be revoked suo motu or not?

On a conjoint reading of ‘just cause’ described in Clauses (b) and (c) of section 263 of the Act, it is clear that if a grant is obtained fraudulently by making a false suggestion or by concealing from this Court something material to the case or the grant is obtained by means of an untrue allegation of fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently, such grant can be revoked on such just cause described in the explanation to section 263.

Even  if  the  argument  of  Mr.  Kumbhakoni,  learned senior  counsel  is  considered  that  on  the  date  of  filing of the petition for letters of administration, the respondent  was  not  aware  of  any  such  Will  left  by  the deceased  testator  and  thus  such  statement  came  to  be made in the petition for letters of administration is accepted, in view of the fact that there is no dispute that the said deceased left a Will and/or the same is discovered subsequently, such grant is liable to be revoked under section 263(b) and (c) of the Act. A conjoint  reading  of  Illustrations  (v) and  (vi)  to  section 263 of the Act makes it clear that even after the administration of the estate, if the Will is discovered subsequently, such grant is liable to be revoked.

***

In my view, the whole premise of obtaining the letters of administration was that the deceased died intestate and had not left any Will and on that ground the petition for letters of administration came to be filed. If the petitioners would have disclosed the existence of the Will of the said deceased, such petition for letters of administration on the premise that  the  deceased  died  intestate  would  not  have  been even maintainable. In my view, the respondent has suppressed the existence of the Will of the deceased and  has  made  false  statement  in  the  petition.  In  any event, in view of the discovery of the Will, grant deserves to be revoked on that ground also.”

(emphasis supplied)

In  similar  circumstances as  the  present  case,  a  co-ordinate  Bench  of Karnataka High Court  in M.A.I. Kovoor v. Thomas IPE Kovoor (Jr.), 2016 SCC OnLine Kar 8631, while dealing with two Petitions for grant of Letters of Administration - one on the ground that the testator has passed away  without a Will and the other that a Will has surfaced later on, after quoting various provisions has held as under:

“16.  In  view  of  the  aforesaid  legal  provisions  and  the rival  contentions  raised  by  both  sides,  this  Court  is  of the opinion that the present petition under Section 278 for grant of letter of administration to the petitioner deserves to be rejected but at the same time, these proceedings are not required to be converted into a regular trial for grant of probate to the respondents who have produced the unregistered Will of the deceased dated 4-1-2011 through Ms. Reena Puri. The reasons are as follows:

Section 278 of the Act, as stated above, deals only with the grant of letter of administration in the case of intestate succession provided in Part V of the Act of 1925, whereas Part VI of the Act deals with testamentary succession. The present is not a case where  Letters  of  Administration  is  sought  with  a  copy of Will annexed, but the petitioner has come with a clear case that the deceased Elizabeth had died intestate. Annexure-B Will annexed by the petitioner is not the basis for claiming Letters of Administration but more to lay a challenge to it in advance, which was quite irrelevant while filing a petition under Section 278 of the Act. But when a contention is raised against a petition under Section 278 of the Act with a original but unregistered  Will of the  deceased produced before the Court, the provisions of Part v providing for intestate succession becomes inapplicable. The petitioner had filed this petition under Section 278 of the Act based on her right of share in the estate of the deceased on the basis of Section 47 of the Act which provides for an intestate death and the person concerned who died has left neither any lenial descendants  nor  father  nor  mother  but  such  a  right  of share in the estate itself cannot be claimed by seeking a Letters of Administration under Section 278 of the Act. The moment a Will of the deceased is brought before the Court, there are two options before the Court : (I) either  to  allow  the  person  producing  the  said  Will  to prove the same and obtain a probate in respect of the said Will by converting the proceeding into a regular trial in accordance with the provisions of CPC as provided  under  Section  295  of  the  Act  quoted  above; or (II) dismiss the petition under Section 278 of the Act for grant of letter of administration of estate of deceased  dying  intestate  and  leave  the  parties  free  to claim  their  share  in  the  estate  of  the  deceased  either by way of a partition suit of by proving the Will in appropriate  proceedings.  This  Court  would  adopt  the second option, as this petition cannot be converted into a trial of a civil suit, which is a matter of original jurisdiction before a District Court.”

(emphasis supplied)

It is pertinent to mention that Section 295 of the Indian Succession Act also assumes critical significance in the present case. The provision mandates that where a testamentary proceeding becomes contentious, the same  shall  take,  as  nearly  as may  be,  the  form  of  a  regular  civil  suit.  The legislative intent underlying this provision is to ensure that disputes relating to the due execution, genuineness and validity of a testamentary instrument are  adjudicated in a structured adversarial framework,  with full opportunity to the parties to lead evidence. Once such contentious proceedings are instituted, the adjudication of testamentary validity must ordinarily be confined  to  those  proceedings  alone,  so  as  to  avoid  parallel  and  potentially conflicting determinations concerning the same estate.

In the present case, Respondent No.1 has already instituted proceedings propounding the alleged Will. In the present Petition, the Petitioner alleges that at the relevant time, the deceased was suffering from serious medical conditions affecting his physical and cognitive faculties and was therefore not competent to execute a valid testamentary instrument. The dispute regarding the validity of the said Will, has thus assumed a contentious character within the meaning of Section 295 of the Indian Succession Act. Consequently, the statutory scheme contemplates that the issue of testamentary validity be adjudicated in the said proceedings, which are  required to proceed in the nature of a civil  suit.  Permitting adjudication of the same issue in parallel proceedings founded on intestacy would run contrary to the legislative scheme and may result in inconsistent findings.

The only surviving question that remains for consideration in the present Petition is whether the proceedings ought to be kept in complete abeyance pending final adjudication of the Petition filed by Respondent No.1, namely TEST.CAS. 4/2026. In the opinion of this Court, no useful purpose  would  be  served  by  keeping  the  present  Petition  in  abeyance  until the testamentary  proceedings in TEST.CAS. 4/2026 is finally  decided, for the reason that the Court is vested with powers under Sections 247 and 263 of  the  Indian  Succession  Act,  to  appoint  an  administrator  pendente  lite  for the management and preservation of the estate during the pendency of testamentary proceedings.

In the proceedings in TEST.CAS. 4/2026, Respondent No.1 will be required to propound and prove the alleged Will in accordance  with law. In the  event  that  Respondent  No.1  succeeds  in  establishing  the  due  execution and validity of the Will, Letters of Administration with the Will annexed would be granted in his favour. Conversely, if Respondent No. 1 fails to prove  the  Will,  the administrator appointed  by  this  Court may  continue  to administer the estate of the deceased, at least until appropriate civil proceedings,  such  as  a  suit  for  partition  for  determination  of  the  respective shares of the parties, are instituted and decided.

In the opinion of this Court, no cause of action subsists in TEST.CAS. 2/2026 after filing of Letters of Administration with Will. All the contentions raised  in TEST.CAS. 2/2026  can  be  dealt with  in  TEST.CAS. 4/2026,  including  the  appointment  of  an  interim  administrator  till  the Will propounded by the Petitioner in TEST.CAS. 4/2026 is proved.

Accordingly,  the  present  Petition  is  dismissed.  Pending  applications, if any, also stands dismissed.

Liberty  is,  however,  granted  to  the  Petitioner  to  raise  the  very  same grounds and contentions urged in the present Petition regarding the suspicious circumstances surrounding the Will by filing an appropriate Reply in TEST.CAS. 4/2026, wherein the issues concerning the validity and proof of the alleged Will are to be adjudicated.

TEST.CAS. 4/2026

List on 04.05.2026 before the Joint Registrar for further proceedings.