SUBHADRA RANI PAL CHOUDHARY versus SHEIRLY WEIGAL NAIN AND ORS.

Citation: [2005] 3 S.C.R. 270 · Decided: 06-04-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Disposed off
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Judgment (excerpt)

A 
B 
SUBHADRA RANI PAL CHOUDHARY 
v. 
SHEIRL Y WEIGAL NAIN AND ORS. 
APRIL 6, 2005 
[ASHOK BHAN AND A.K. MATHUR, JJ.] 
Succession Act, 1925-Sections 247, 227 and 21 I-Grant of probate of 
will in favour of sisters in respect of two premises-Challenged by brothers 
C in first appeal-During pendency, sisters appointed administrators-cum-Joint 
Receivers-Permission by High Court to lease out both the premises-
Possessian of only one premises given to lessee and that of other premises 
denied on ground of illegal construction made by lessee-Non-execution of 
lease deed-Application of lessee, dismissal of by High Court-Meanwhile, 
first appeal dismissed, disposing of all pending matters-Suit for specific 
D performance of lease agreement, with leave to sue Joint Receivers-Permission 
granted to sue Joint Receivers in respect of first premises but no order with 
tregard to other-SLPs dismissed, however, liberty granted to move High 
Court-Direction to Joint Receivers to execute lease deed/or both the premises 
by High Court-Correctness of-Held: Once first appeal filed by brothers 
dismissed, property vested with sister~ and they became absolute owner-
E PropertY no more .custodia legis and Joint Receivers stood discharged-High 
Court had no jurisdiction to pass orders on subsequent applications when 
matter disposed of, as such, order unsustainable-However~ equity created in 
favour of lessee, Jo.int Receivers directed to execute lease deed for first 
premises-Further, since no case made out to seek specific relief for second 
F premises, grant of damages do not arise-Specific Relief Act, 1963-Section 
21. 
Doctrines-Principle of Merger-Application of-Held, dismissal in 
limine does not amount to upholding of law propounded in decision appealed 
against-So, principle of merger is not applicable-Constitution of India, 
G 1950-Article 136. 
H 
Mother executed a will an'd bequeathed two properties in favour of 
her daughters - appellant and J. Both the sisters, being joint executrix 
under the will, filed an application for grant of probate. Brothers contested 
270 
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1 
I 
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SUBHADRA RANI PAL CHOUDHARY v. SHEIRLYWEIGAL NAIN 
271 
the same. However, probate was granted in favour of the sisters. Brothers A 
filed first appeal before the High Court. During pendency, High Court 
appointed the sisters as administrators-cum-joint receivers pendete lite. 
Application was also filed seeking permission to lease out both the 
premises. High Court granted permission to lease out the premises in 
favour of the respondent No 1 'for 2I years. Respondent No. 1 was given B 
possession of only one of the premises. He made certain illegal 
constructions therein and as such the possession of the other premises was ' 
not given and also lease deed was not executed for both the premises. Joint 
receivers filed suit for modification against respondent but the same was 
dismissed for non-prosecution. Respondent filed an application for 
direction for possession of the second premises and also for execution of C 
lease deed for both the premises. High Court dismissed the application as 
the petitioner had not come with clean hands by raising illegal 
constructions. Aggrieved, respondent no.I filed SLP. Meanwhile, High 
Court dismissed the first appeal by way of compromise between the 
parties, which disposed of all the pending applications. Thereafter, D 
respondent filed suit for specific performance of the agreement granting 
lease of both the premises and also filed an application to sue joint 
receivers. High Court granted permission to sue joint receivers in respect 
of the first premises but no order was passed in respect of the other 
premises. Respondent No.I then filed SLP. Both SLPs' were dismissed. 
As per the direction of this Court, respondent filed application before the E 
High Court for directions and orders upon the administrator-cum-
receivers. Application was allowed and appellant was directed to execute 
the lease deed with regard to both the premises. Hence the present appeal. 
Disposing of the appeal, the Court 
HELD : 1. Section 211 of the Succession Act, 1925 lays down that 
when there is an executor or administrator of the deceased, he is the legal 
representative of the deceased for all purposes and all the property vests 
in him. Section 227 states that the moment the probate is granted it will 
relate back from the date of death of the testator and all property will be 
vested in the person in whose favou
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