Sukhbir Singh vs State and Others

Hima Kohli, J.—The present petition is directed against an order dated 08.11.2006 passed by the learned ADJ in a petition preferred by the predecessor-in-interest of respondents No. 2A, 2B and 2C, late Shri Pritpal Singh, u/s 276 of the Indian Succession Act for grant of probate of the Will dated 18.1.1995 of his deceased brother, Shri Virender Singh, who had appointed Shri Pritpal Singh as the executor.

During the pendency of the probate petition, Shri Pritpal Singh expired on 03.01.2006. Thereafter, respondents No. 2A, 2B and 2C filed an application under Order 22 Rule 3 CPC praying inter alia for substituting their names in place of the deceased petitioner and for permission to continue the case as his legal heirs. The aforesaid application was opposed by the petitioner and respondent No. 3 (objector No. 4 and objector No. 2 respectively in the probate petition), who filed their replies and submitted therein that respondents No. 2A, 2B and 2C (applicants in the said application) were not entitled to seek substitution in the pending probate petition and that upon the demise of Shri Pritpal Singh, the probate petition filed by him u/s 276 of the Indian Succession Act stood abated. Per contra, the respondents No. 2A, 2B and 2C stated that the probate petition was preferred by Shri Pritpal Singh not only as the executor of the Will of Late Shri Virender Singh, but also as a beneficiary there under and hence, they had a right to continue prosecuting the said petition. By the impugned order, the learned ADJ allowed the application of the respondents No. 2A, 2B and 2C and permitted them to be substituted in place of Late Shri Pritpal Singh. Aggrieved by the said order, the petitioner (Objector No. 4 in the probate petition) has filed the present petition.

Counsel for the petitioner states that the learned ADJ erred in passing the impugned order as he submits that the issue in hand is squarely covered both on facts and in law, by the judgment of a Division Bench of Calcutta High Court in the case of Hari Pada Shaha v. Gobinda Chandra Shaha reported as ILR [1948] Cal 300, which was duly relied upon before the court below, apart from other case law, but was ignored. The facts of the aforesaid case need to be examined in the first instance. In the said case, the testator died on 12.03.1944 leaving behind him a registered will executed on 03.05.1938. He had no issue and he bequeathed all his movable and immovable properties absolutely in favour of his wife, Smt. Subashini Dasi, who was appointed as the sole executrix under the will. On 04.04.1944, Smt. Subashini presented an application for probate of the will, where after she expired. The three respondents in the aforesaid appeal appeared before the District Judge and prayed for permission to continue the probate proceedings as substituted heirs in place of late Smt. Subashini and prayed for grant of letters of administration with a copy of Will annexed. The said application was allowed by the District Judge on 20.05.1944. On 24.06.1944, the appellants in the appeal appeared before the District Judge and opposed grant on various grounds, including the ground that the respondents were not competent in law to obtain letters of administration. The said objection was over ruled by the District Judge vide order dated 04.12.1944 and letters of administration were granted to the respondents.

Aggrieved by the said order, the appellants in the aforesaid appeal approached the Division Bench of the Calcutta High Court. After considering the facts of the said case, and while relying on a decision in the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee reported as ILR 36 CS 799, the Division Bench held that the proper thing for the respondents to have done was not to apply to continue the proceedings as substituted heirs of late Smt. Subashini, but to have filed a fresh application for praying for letters of administration with a copy of the will annexed as heirs and personal representatives of the deceased sole legatee. It was further observed that as the said objection about the application being defective was raised at the end of the probate proceedings, when arguments were being addressed, to obviate all disputes and ambiguity, it would have been proper for the respondents to have filed an application seeking amendment of the prayer clause in the petition by making a request that the same be treated as one for letters of administration, either as heirs of the deceased Smt. Subashini, or independently in their own rights.

In the present case, after the pleadings were completed in the probate petition, admission/denial of the documents is stated to have taken place and thereafter, evidence had been led by the deceased petitioner therein. Now, the matter is at the stage of recording evidence on behalf of the petitioner herein (Objector No. 4 in the probate petition), when the original petitioner expired. In other words, the petition is at an advance stage of recording the remaining evidence, whereafter, arguments are left to be addressed by the parties.

At this stage, counsel for the respondents No. 2A, 2B and 2C states that he be given leave to approach the learned ADJ for seeking appropriate amendment in the probate petition, so as to claim grant of letters of administration to which, counsel for the petitioner states that he has no objection.

Accordingly, with the consent of the parties, the present petition is being disposed of along with the pending application with leave granted to respondents No. 2A, 2B and 2C as prayed for. As counsel for the petitioner states that the next date of hearing fixed before the learned ADJ in the probate petition is 09.02.2010, it is directed that the parties shall appear before the learned ADJ on the said date and apprise the Court of the order passed in the present petition. Counsel for the respondents No. 2A, 2B and 2C states that he shall present an appropriate application seeking amendment of the probate petition on the said date. The said application when filed, shall be considered and disposed of by the learned ADJ in accordance with law, before proceeding further in the matter.

Petition is disposed of along with the pending application with no order as to costs.