Ram Chandra Prasad Rastogi S/o late Bhawan Das Rastogi vs Prem Devi, W/o late Jagdish Lal

This revision petition filed under Section 115 of the

C.P.C. is directed against the order dated 22.09.2014 passed by

learned in-charge District & Sessions Judge-I, Begusarai in Misc.

Case No. 01 of 2005 by which and whereunder he allowed the

substitution petition dated 29.03.2014 filed by the opposite parties for

substituting the sole plaintiff, namely, Jagdish Lal in Title Suit No. 03

of 1989.

The brief fact, which lies to file revision petition is

that, one Rajendra Lal and Jagdish Lal filed Probate Case No. 07 of

1986 under Section 278 of Indian Succession Act, 1925 for grant of

probate of alleged Will said to be executed by Banarsi Lal on

25.11.1985 in their favour. The aforesaid probate case was contested

by the sole daughter of Banarsi Lal, namely, Smt. Gaya Devi and on

her contest, the aforesaid Probate Case No. 07 of 1986 was converted

into title suit bearing Title Suit No. 03 of 1989. During pendency of

above stated Title Suit No. 03 of 1989, the sole defendant namely,

Smt. Gaya Devi died leaving behind petitioners, who were substituted

in place of defendant Gaya Devi. However, the aforesaid Title Suit

No. 03 of 1989 was dismissed for default on 10.11.2000 but one of

the applicants, namely, Jagdish Lal filed Misc. Case No. 01 of 2002

which, too, dismissed for default on 28.04.2003 and for restoration of

Misc. Case No. 01 of 2002, the above stated Jagdish Lal again filed

Misc. Case No. 02 of 2003 but that Misc. Case No. 02 of 2003 was

also dismissed for default on 02.04.2005. Again, the aforesaid Jagdish

Lal filed Misc. Case No. 01 of 2005 for restoration of above stated

miscellaneous cases but during pendency of Misc. Case No. 01 of

2005, the sole applicant of aforesaid Misc. Case No. 01 of 2005,

namely, Jagdish Lal @ Jagdish Prasad Rastogi died on 20.01.2014

and thereafter, on 29.03.2014, the legal representatives/legal heirs of

deceased Jagdish Lal filed a petition under Order 22 Rule 3 read with

Order 1 Rules 10 & 151 of the C.P.C. for their substitution in place of

deceased Jagdish Lal. The learned court below allowed the aforesaid

petition dated 29.03.2014 passing impugned order dated 22.09.2014

against which this revision petition has been preferred.

Learned counsel appearing for the petitioners

challenged the impugned order arguing that according to Section 222

of Indian Succession Act, 1925, a probate can be granted only in

favour of the executor appointed by the Will and, therefore, the legal

representatives/legal heirs of deceased Jagdish Lal had no right to get

themselves substituted in place of late Jagdish Lal who was an

executor. Learned counsel for the petitioners heavily relied upon

decision of this court reported in AIR 1917 Patna 209 as well as

several other decisions. He further submitted that according to law

laid down by Division Bench of this Court in the above stated

decision, the probate case cannot be converted into Letters of

Administration. Learned counsel for the petitioners also relied upon

recent decision of this court passed on 27.03.2014 in Test Suit No. 01

of 2010 wherein it has been held by a single Bench of this court

having relied upon the above stated decision reported in AIR 1917

Patna 209 that the probate case cannot be converted into a case for

Letters of Administration and also held that on the death of executor,

the probate proceeding itself dies its natural death. The judgment of

learned Single Judge passed in Test Suit No. 01 of 2010 is confirmed

by a Division Bench of this Court in L.P.A. No. 1370 of 2014 vide

judgment dated 10.07.2017.

On the other hand, learned counsel appearing for the

opposite parties submitted that original applicants, namely, Rajendra

Lal and Jagdish Lal were not only executors of the Will rather they

were legatees also and it is well settled principle of law that the

legatees can be substituted in place of original applicants. He further

submitted that probate case can be converted into Letter of

Administration and for that even no petition is required. In support of

his contention, he referred decisions reported in A.I.R. 1963 Mysore

136, A.I.R. 1963 Gujarat 32, (2000) 9 SCC 714 and 2002(1) PLJR

He further submitted that moreover, substitution petition was

filed in Misc. Case No. 01 of 2005 and not in the probate case and,

therefore, the learned court below rightly passed the impugned order.

Having heard the contentions of both the parties, I

went through the record as well as decisions cited on behalf of the

parties. It is an admitted position that probate can be granted in favour

of the executor only and Section 222 of Indian Succession Act, 1925

clearly bars grant of probate in favour of a person other than executor.

It is also an admitted legal position that legal heir/legal representative

of a legatee can be substituted, if the legatee dies during pendency of

the proceeding but no probate can be granted in favour of legatee

rather the Letter of Administration can only be granted in favour of

legatee or his legal representative.

In the present case, admittedly, the deceased Banarsi

Lal had one daughter, namely, Smt. Gaya Devi, who made objection

in grant of probate in favour of original applicants and on her contest,

Probate Case No. 07 of 1986 was converted into Title Suit No. 03 of

1989. It is also an admitted position that during pendency of aforesaid

Title Suit No. 03 of 1989, one of the applicants, namely, Rajendra Lal

died and only Jagdish Lal was left to be applicant/plaintiff of

aforesaid Title Suit No. 03 of 1989. Moreover, it is also an admitted

position that aforesaid Title Suit No. 03 of 1989 was dismissed in

default and for restoration of aforesaid Title Suit No. 03 of 1989,

Misc. Case No. 01 of 2002 and Misc. Case No. 02 of 2003 were filed

but both the aforesaid miscellaneous cases were dismissed in default

and, thereafter, Misc. Case No. 01 of 2005 was filed by the sole

applicant, namely, Jagdish Lal @ Jagdish Prasad Rastogi who during

pendency of aforesaid Misc. Case No. 01 of 2005 died on 20.01.2014

and, thereafter, petition under Order 22 Rule 3 read with Order 1 Rule

10 & 151 of the C.P.C. was filed on behalf of the opposite parties.

Therefore, it is obvious from the aforesaid fact that at the time of

death of sole applicant, namely, Jagdish Lal, no case either for grant

of probate or for grant of Letters of Administration was pending

before the court and the original applicant, namely, Jagdish Lal

wanted to get the Title Suit No. 03 of 1989 restored to its original

number. It would appear from the averments of alleged Will that the

testator executed the Will in favour of Rajendra Lal and Jagdish Lal

and no person was appointed as executor of the aforesaid Will by the

testator though the aforesaid Rajendra Lal and Jagdish Lal filed

Probate Case No. 07 of 1986 claiming themselves to be executor of

the aforesaid Will. The contents of the aforesaid Will go to show that

they were legatees of the aforesaid Will. It is also an admitted position

that both the legatees, namely, Rajendra Lal and Jagdish Lal have

already died and the opposite parties are claiming themselves to be

legal heirs of both the above stated legatees. Therefore, it appears that

opposite parties have right to seek issuance of Letter of

Administration in their favour on the basis of Will in question but

they have no right to get the Title Suit No. 03 of 1989 restored

because the aforesaid Title Suit No. 03 of 1989 was filed by the

Rajendra Lal and Jagdish Lal for grant of probate and it is well settled

principle of law that probate can be granted only in favour of

executors of the Will. No doubt, the Apex Court of this country has

held in the decisions as cited on behalf of the parties that a probate

case can be converted into Letters of Administration but in the present

dispute admittedly, no probate case is pending as the probate case had

already dismissed for default. As I have already stated that opposite

parties have no right to get the aforesaid probate case restored on its

original number because no probate can be granted in their favour and

at best, they can claim for Letters of Administration. Therefore, in my

view, when the opposite parties have no right to continue the Probate

Case No. 07 of 1986, the learned court below committed an error in

substituting the opposite parties in place of sole applicant of Misc.

Case No. 01 of 2005.

Therefore, on the basis of aforesaid discussions, this

civil revision petition is allowed and accordingly, the impugned order

dated 22.09.2014 passed by learned in-charge District & Sessions

Judge, I, Begusarai in Misc. Case No. 01 of 2005 is, hereby, set aside.

In the aforesaid manner, this revision petition stands

disposed of.