Authority: High Court of Jammu & Kashmir and Ladakh at Jammu

Order Date: 08 July 2026

Case Overview

  • Appellants: Sushila Sharma (deceased husband’s widow), Lalima Awasthi and Poornima Sharma, represented by Ms. Zoya Bhardwaj. They filed the appeal on behalf of the deceased appellant Nagendra Nath Sharma (deceased).
  • Respondents: 1) Mahinder Kumar Sharma (son of the testator, residing in Jammu) and 2) Dr. Pran Nath Sharma (son residing in the United States), represented by Mr. Anuj Dewan Raina, Mr. Amit Khajuria and Mr. Ankur Sharma.
  • Original probate petition was filed by Respondent 1 in 1999 before the Probate Court (1st Additional District Judge, Jammu). The Probate Court granted probate of a Will dated 24‑12‑1976 executed by the testator Late Shri Kidar Nath Shastri.
  • The Will bequeathed a residential house (House No. D‑87, Hauz Khas, Delhi) to the three sons – Nagendra Nath Sharma (deceased), Mahinder Kumar Sharma and Dr. Pran Nath Sharma – with a life interest to the testator’s wife. No executor was appointed in the Will.
  • Appellants challenged the probate on two grounds: (a) lack of territorial jurisdiction of the Probate Court (the testator’s last abode and the Will were in Jammu, but the property was in Delhi); (b) absence of an executor, which they argued makes probate impermissible under Section 6 of the Probate and Administration Act, 1977 (Samvat).
  • The Probate Court had previously rejected the jurisdiction objection (order dated 23‑05‑2002) and, after a full trial, held the Will genuine and the testator of sound mind. Issues 1‑3 and 5‑6 were deleted; only Issues 4 (time‑bar), 7 (jurisdiction), and 8 (whether the Will was the last Will) remained, and the Court found in favour of the respondents.
  • Respondents argued that the probate petition was maintainable, that the Court could treat the proceeding as one for Letters of Administration, and that the Will was genuine. They cited earlier judgments of this Court (e.g., Tohru Ram v. Rattan Lal, AIR 2009 JK HC 8) which held that probate cannot be granted without an executor.
  • The High Court examined the statutory framework: Sections 3, 6, 7, 8, 9, 13‑19 of the Probate and Administration Act, 1977 (Samvat) – emphasizing that probate is limited to an executor, while Letters of Administration are the appropriate remedy where no executor exists or the executor is incapable.
  • The Court also reviewed precedents from Karnataka, Madras, Gujarat High Courts and the Supreme Court (Vatsala Srinivasan v. Shyamala Raghunathan, (2016) 13 SCC 253; Shambu Prasad Agarwal v. Bhola Ram Agarwal, (2000) 9 SCC 714) supporting conversion of probate proceedings to Letters of Administration when an executor is absent.
  • The Court concluded that the probate order was not perverse regarding the genuineness of the Will, but the procedural defect of lacking an executor required conversion to Letters of Administration. Remanding to the trial court was deemed unnecessary as the substantive issues had been fully adjudicated.

Final Outcome

  • The probate granted by the trial Court is hereby converted into Letters of Administration in favour of Respondent 1, Mahinder Kumar Sharma, authorising him to administer the estate pursuant to the Jammu & Kashmir Probate and Administration Act, 1977.
  • Letters of Administration shall be issued with a copy of the Will annexed.
  • If probate has already been issued, it shall be recalled; any court fee already paid shall be adjusted against the fee payable for the Letters of Administration, with any deficiency to be deposited before the lower court.
  • The appeal is disposed of; each party bears its own costs.
  • The order is to be notified to the trial Court for compliance.

Topics: Probate Law, Letters of Administration