‘Technical Defect Cannot Defeat Substantial Justice,’ Jammu Kashmir HC Upholds 50-Year-Old Will Despite Missing Executor
The J&K High Court ruled a 1976 will valid despite no executor, converting probate to Letters of Administration to ensure justice and avoid litigation delays.
By ETV Bharat Jammu & Kashmir Team
Published : July 9, 2026 at 3:20 PM IST
Srinagar: In a significant ruling on testamentary law, the High Court of Jammu and Kashmir and Ladakh has held that the absence of an executor in a will cannot, by itself, defeat the implementation of the testator’s wishes after the will has otherwise been found to be genuine.
Modifying a probate order passed nearly 13 years ago, Justice Sanjay Parihar ruled that the probate granted by a Jammu court in respect of a 1976 registered will would stand converted into Letters of Administration in favour of one of the beneficiaries, holding that remanding the matter for a fresh round of litigation would only prolong a dispute that has remained pending for decades.
The 24-page judgement, pronounced in MA No. 85/2014, arose from a family dispute over a registered will executed by the late Kidar Nath Shastri on December 24, 1976. The will concerned House No. D-87, Hauz Khas, New Delhi, and gave the testator’s wife only a life interest while directing that, after her death, the property would devolve equally upon his three sons.
The appeal challenged a 2013 order of the First Additional District Judge, Jammu, granting probate of the will. The appellants argued that the probate court lacked territorial jurisdiction, the will had not been proved in accordance with law, and most importantly, that probate could never have been granted because the will did not appoint an executor.
The High Court rejected the jurisdictional challenge, noting that the issue had already attained finality in earlier proceedings. It also held that evidence established the testator's last fixed place of abode was Jammu and that the will had been executed and registered there, giving the Jammu court territorial jurisdiction.
On the merits of the will, the court found no reason to interfere with the probate court's findings. Justice Parihar observed, “The findings recorded by the Probate Court do not suffer from perversity or any manifest error warranting interference by this Court.”
The court further held that the appellants had “failed to demonstrate any infirmity, factual or legal, in the appreciation of evidence by the Probate Court.” It also noted that the appellants had conceded during arguments that no proceedings had ever been initiated before any competent court challenging the genuineness of the will.
The principal legal question before the High Court was whether probate could legally survive when the testator had not appointed an executor. After examining the provisions of the erstwhile Jammu and Kashmir Probate and Administration Act, 1977 (Samvat), the court reiterated the settled legal position that probate can ordinarily be granted only to an executor appointed under the will, while in the absence of such an executor, the proper remedy is the grant of Letters of Administration with the will annexed.
The court reviewed earlier judgements of the Jammu and Kashmir High Court alongside decisions of the Madras, Gujarat and Karnataka High Courts and Supreme Court rulings in Vatsala Srinivasan v Shyamala Raghunathan and Shambu Prasad Agarwal v Bhola Ram Agarwal. It concluded that procedural defects should not override substantive justice once the will itself has been proved.
Justice Parihar observed, “Though the proper procedure required the respondents to seek letters of administration instead of probate, such a technical defect cannot be permitted to defeat the ends of substantial justice.”
The court also found no justification for sending the case back to the trial court after decades of litigation. “The will was executed in 1976. The testator died in 1980, and the mother of the parties, who held a life interest, passed away in 1987. In these circumstances, remanding the matter to the trial court merely to permit amendment of the petition... would unnecessarily prolong the litigation and subject the parties to further hardship,” the judgement said.
Invoking its inherent powers, the High Court directed, “The probate granted by the trial court shall stand converted into letters of administration in favour of respondent No. 1, one of the beneficiaries under the will, authorising him to administer the estate strictly in accordance with the provisions of the Jammu and Kashmir Probate and Administration Act, 1977.”
The court further ordered that if probate had already been issued, it would stand recalled. Letters of administration, together with a copy of the will, shall instead be issued after assessment of the property's value and payment of the requisite court fee, with any court fee already paid towards probate to be adjusted accordingly.
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