AI Structured Summary
Not yet generated for this judgment
Judgment
N.J. Pandya, J.—In testamentary jurisdiction of the City Civil Court, Ahmedabad, two different proceedings were pending filed by the opponents being Civil Misc. Application No. 806 of 1990 and Civil Misc. Application No. 807 of 1990 respectively for grant of probate of Will of one deceased Kamlaben and for grant of heirship certificate in respect of the estate of one late Shri Narendra.
The applicant had filed two Civil Misc. Applications being 781 of 1990 and 782 of 1990 respectively for cancellation of probate granted in favour of the opponents in earlier proceeding as well as cancellation of heirship certificate. After hearing both the sides, the learned Judge passed an order on 23-8-1994 whereby the applications of the opponents i.e. Civil Misc. Applications Nos. 806 of 1990 and 807 of 1990 were ordered to be converted into Regular Civil Suits; while the application of the applicant namely Applications Nos. 781 of 1990 and 782 of 1990 were ordered to be continued as Misc. Applications only thereby rejecting the prayer for converting them into suits. Reliance has largely been placed on the fact that Section 295 of the Indian Succession Act which provides for conversion of a contested matter into a suit appears in Chapter under the heading of Probate. A distinction was sought to be made before the trial Court that provisions of revocation of Probate etc. figure in Chapter III, Para. 9 of the Indian Succession Act; white provisions for grant of probate etc. appear in Chapter IV, Para. 9 and hence, the submissions seem to be that they should be read dejectedly and Chapters III and IV be treated absolutely as water-tight compartments. The provision made in one Chapter may not have any effect whatsoever on the other Chapter and vice versa.
No doubt, so far as the contention raised before the trial Court as well as urged before this Court to the effect that for revocation of a probate or grant of letter no suit can be filed and there has to be application under the relevant provisions of the Indian Succes sion Act, 1925 is an accepted position of law. Strictly speaking, this controversy does not arise in the instant case because, this is exactly what the applicant has done by filing the aforesaid two Misc. Applications in the trial Court. Having filed that, the question is whether, there being a contest arid contest is very bitter and open, while the applications for grant of probate as well as certificate having been converted into suits, these ap- plications also not to be converted and con solidated therewith.
Provisions of Section 295 are procedural only. Whether they appear in Chapter III or Chapter IV is immaterial. All these provisions appear in Para. 9 of the said Act and therefore, the learned Judge should not have felt any difficulty in treating the applications for cancellation or revocation also u/s 295 of the said Act. The arguments advanced by the other side represent too narrow a point and it being a narration to procedural aspect, without any further discussion, I reject the same. If any reason is required to be given, their own argument that objections filed by the applicant in the application filed by the opponents which are now converted into suits will be taken care of and hence, there is no need to convert the applications of the ap-plicant into suits would beg the question and automatically result into converting the applicant''s application into suits. The provisions of consultation and conversion are meant for advancing the cause of justice as also in furtherance of public policy to avoid multiplicity of proceedings which in turn will avoid contradictory finding.
Kailash Chandra Vs. Nanda Kumar, , Rai Br. Pannalal and Others Vs. Lala Hansraj Gupta and Others, , Narbheram Jivram Purohit Vs. Jevallabh Harjivan, and Bai Zabu Khima Vs. Amardas Balakdas, . The last mentioned authority; on the contrary, deprecates the proof of affidavit in contentious proceedings and indicates that in all contested matters, the testamentary jurisdiction should be proceeded u/s 295 of the said Act.
The Civil Revision Applications are therefore, allowed. The order of the trial Court is set aside and the Civil Misc. Applications filed by the applicant are ordered to be converted into suits and registered as such for being disposed of in accordance with law. It is of course, understood that they shall be consolidated with the applications which are now converted as suit filed by the opponents. Rule is made absolute.