In a recent judgment dated October 4, 2024, the Bombay High Court, presided by Justice Sharmila Deshmukh, allowed an application for the revocation of probate previously granted to the sole Executor of a deceased individual’s Will. The case, Lt. Col. Adi Minoo Chinoy vs Mr. Kantilal Achaldas Oswal, centered on whether probate could remain operative following the Executor’s death.
Background of the Case
The applicant sought revocation of the probate, arguing that the death of the sole Executor rendered the grant inoperative under Section 263 of the Indian Succession Act, 1925. The applicant pointed to Thrity Sam Shroff vs Shiraz Byramji Anklesaria & Anr, a prior ruling by a Division Bench of the Bombay High Court, which held that probate proceedings abate upon the Executor’s death. This position is rooted in the principle that probate is granted exclusively to Executors named in the Will, per Section 222 of the Indian Succession Act.
The applicant also argued that provisions from the Civil Procedure Code (CPC), specifically Order XXII Rule 4A, are inapplicable to probate cases. Consequently, they contended that upon the Executor’s death, there is no basis for continuing the probate proceedings, as no right to sue survives.
Court’s Observations
Justice Deshmukh reiterated the established legal principle that probate can only be granted to Executors named in a Will, meaning it survives only as long as the Executor is alive. The Court emphasized that legal heirs of an Executor cannot assume the Executor’s role. When the sole Executor dies, the probate becomes inoperative, as there is no longer an individual authorized to execute the Will.
The Court further noted that Section 263 of the Indian Succession Act provides grounds for revoking probate if it becomes “useless and inoperative”. This provision applies when, as in this case, the circumstances render the probate ineffective. Given that the sole Executor had passed away, the Court concluded that the probate could not be executed, thus justifying its revocation.
Implications of the Judgment
The Court’s judgment highlights the strict requirements surrounding Executor roles in probate proceedings. It underscores that only the Executors named in the Will are entitled to probate, and upon their death, legal heirs cannot inherit the Executor’s responsibilities. This decision reinforces the procedural limitations on probate, ensuring that Wills are executed only as per the testator’s explicit instructions.
By revoking the probate, the Court has reaffirmed that the death of a sole Executor warrants the termination of probate proceedings. The case sets a precedent for similar disputes, clarifying that without an Executor, probate cannot survive, aligning with the overarching principles of testamentary succession law.
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