Indian Succession Act, 1925 - Recourse available to Legatee
District Court at Delhi has issued Letters of Probate u/s 276 & subsequently Executor appointed under Will has executed an Administration with Surety Bond u/s 291 ISA and has started administering the estate.
Executor, who is also one of the two Legatee's under WIll, has handed over in Probate Court a property bequeathed to other Legatee, however has not handed over the entire of the property, but has rather retained a part of it for his own use (in his capacity as Legatee) claiming said part falls to the share of his (Executor's) portion. A plain reading of the Will shows other wise and even the Executor is not relying on the Will but rather basing his retention of said part on the use of the same prior to the demise of Testator.
Administration is not complete and Executor is getting extensions from the Probate Court for rendering accounts etc. Hence, administration is subsisting.
Within a few days of realising property not handed over in accordance with Will, Legatee brought the same to notice of Executor, however, no response resulted in Legatee filing Appl u/s 151 CPC to Probate Court for directions to Executor to hand over balance part in accordance with Will.
Query: Does Probate Court (to which bond is assigned) have jurisdiction to adjudicate on application? If so, under what section? If not, what recourse is left to the Legatee?
Asked in Property Law from New Delhi, Delhi
Yes, Probate court does have jurisdiction to pass order on executor or legatee for proper management of Willed property.
1. Probate Court has the jurisdiction to direct the executor to manage the said property strictly as mentioned in the Will.
yes probate court has jurisdiction to adjudicate on application filed by you to direct executor to manage property as per the will .
Thank you all Sirs.
However, I am finding difficulty in finding the section in ISA under which directions may be given. Sec 302 confers these powers to the High Court and all citations reflect the powers u/s 302 are exclusive to the High Court.
It would seem logical that the Court to which the administration bond is assigned would have the power to direct administrator accordingly. In this case being the District Court (Probate).
Would truly appreciate if I be provided the section under which powers to give directions to Executor/Administrator are conferred on the Probate Court, irrespective the same not being High Court.
Thanks in advance.
Asked 3 years ago
Inventory of property and assets and debts and accounts to be put in—A person to whom
a grant of Probate or Letters of Administration is made is required to file a full and true inventory
of the property and credits of the estate and of all the debts owing by any person in Court within
six months, or such further time as the Court may allow from the date of the grant and to render
accounts within one year, or such further time as the Court may allow (Section 317).
Thank you Mr. Sethi.
Logically, I understand that by virtue of section 317, the Probate Court should have powers to issue direction to Executor/Administrator to disburse assets in accordance with Will, more so when administration is not complete. There are citations that support disbursement of assets to legatee being of utmost importance to administration and that breach of any of the conditions under the Will would invite section 292 (assigning of Bond to third party to sue on the same), provided the Probate Court feels there has been a breach. This cannot be established without going into the merits. Therefore, the Probate Court, in order to assign the bond, would be required to adjudicate.
Additionally, multiple citations state that, subsequent to Probate, if any dispute arises regards the disposition therein, the parties may initiate separate proceedings, WITHOUT IMPUGNING THE EXECUTION OF THE WILL. This would be understood that, first and foremost, the directions under the Will must be given effect and subsequent to the same a suit to be filed. Therefore, the Executor should have handed over the part retained by him and subsequent filed a separate suit. However, he has neglected to hand over.
Unfortunately, there is no specific clause that states the Probate Court having powers to issue directions to administer strictly in accordance with Will. It seems the above results in an implied power with the Probate (District) Court. Unfortunately, on account of the inclusion of section 302, which gives powers to High Court to give directions to Executor / Administrator and further, citations support these powers to be exclusive to the High Court, there seems to be no clear jurisdiction with the Probate Court (District) to give directions to Executor / Administrator.
On account of the above, there seems to be doubt whether District Court (Probate) can issue directions to Executor / Administrator and the Executor/ Administrator is taking advantage of this.
Once again, thank you your time and response. Would truly appreciate if the above seeming lacuna be cleared by your self.
Asked 3 years ago
thanks for your appreciation . make an application to probate court under section 317 of indian succession act as the executor has refused to hand over the property as per the will . in the event probate court refuses to act then you can move the HC in this regard.
Once again, thank you Sir.
Since the application is made u/s 151 CPC and already part heard with interim Orders in my (Legatee) favour, I trust the Court need not require a fresh application on account of section.
Will explore your suggestion regards HC u/s 302 subsequent and dependant on the final Order on application.
Thank you so much for your time and very prompt response. It was a pleasure interacting on this point of law.
Asked 3 years ago
thanks for your appreciation . best of luck
Mr. Sethi has rightly suggested.
Thank you for the follow up Mr. Ganguly.
Asked 3 years ago