Bombay High Court
Shri Abhijit Vijay Sartape vs Sou. Kranti Manohar Gangane on 24 July, 2013
Author: Ravi K. Deshpande
Bench: Ravi K. Deshpande
1
WP.6824-2012.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6824 OF 2012
1. Shri Abhijit Vijay Sartape ] ..Petitioner.
Vs.
1. Sou. Kranti Manohar Gangane ]
2. Sou. Vasanti Vilas Kamble ]
3. Vijay Krushnaji Sartapeig ] ...Respondents.
--------
Mr. Vishwanath S. Talkute, for Petitioner.
Mrs. T. Khattri, for Respondents.
----
CORAM: RAVI K. DESHPANDE, J.
DATE : JULY 24, 2013.
ORAL JUDGMENT:
Rule made returnable forthwith. Heard finally, by consent of the learned Counsels appearing for the parties.
2 The challenge in this Writ Petition is to the order dated 15.3.2012 passed by the learned Civil Judge, S.D., Pandhapur rejecting the application below Exhibit 65 for amendment of the application for Probate, registered as Civil Misc. Application No.36 of 2006. The application is rejected on two grounds that it was after period of 5 years ::: Downloaded on - 27/08/2013 21:10:19 ::: 2 WP.6824-2012.sxw and that no opportunity to public at large will be provided for raising an objection.
3 The learned Counsel appearing for the Petitioner has relied upon the decision of the Apex Court in the case of Shambhu Prasad Agarwal & Ors. Vs. Bhola Ram Agarwal reported in (2000) 9 SCC 714 and urged that the probate proceedings itself could not have been filed and the amendment for issuance of letters of administration can be allowed.
The relevant portion of the judgment contained in the paragraphs 5 and 6 are reproduced below:
"5. We find that it is not disputed that Matadin Agarwal was a legatee under the will. It is true that Matadin Agarwal ought to have applied for issue of letters of administration and not for probate. However, this did not debar applications of the appellants on the ground that since the probate petition filed by the legatee related to his personal right, therefore no rights accrued to the appellants for their substitution in his place. This view, according to us, is not correct. Madadin Agarwal, as stated above, was a legatee and not an executor under the will. It is true that where an executor dies, his heirs cannot be substituted because the executor possessed personal right, but this is not applicable where the heirs of a legatee apply for issue of letters of administration. It is not disputed that today the appellants can file a petition for issue of letter of administration. Since considerable time has elapsed, we feel that the interest of justice demands that the proceedings should come to an end as early as possible and we should not dismiss this appeal merely on highly technical ground.::: Downloaded on - 27/08/2013 21:10:19 ::: 3
WP.6824-2012.sxw
6. For the aforesaid reason, we set aside the orders under challenge and send the case back to the trial court. We permit the appellants to be substituted in the proceedings and also permit them to amend the petition. It goes without saying that after the remand, it will be open to the parties to take such plea as may be available to them under the law. Since the matter is pending for a considerable time, we direct the lower court to decide the matter expeditiously. The appeal is allowed. There shall be no order as to costs."
In the above case, the Apex Court held that application should have been for issuance of letters of administration and not for probate and this cannot debar the claim for amendment of probate petition. The Apex Court held that it is not disputed that the appellant can file a petition for issuance of letters of administration and the interest of justice demands that the proceedings should come to an end as early as possible and hence the amendment was allowed.
4 In the present case also, it is not disputed by the learned Counsels appearing for the parties that the proceedings for granting probate should not have been filed. The learned Counsel for the Respondents also does not dispute that the proceedings for issuance of letters of administration can be filed at this stage. However, it is subject to the objection about its maintainability.
::: Downloaded on - 27/08/2013 21:10:19 ::: 4WP.6824-2012.sxw 5 In view of above, the Trial Court should not have rejected the application for amendment and making claim for issuance of letters of administration. Necessary procedure for issuance of letters of administration can be followed and no prejudice would be caused to the public at large as has been observed. The impugned order cannot therefore be sustained and the same needs to be set aside.
6In the result, the Writ Petition is allowed. Order dated 15.3.2012 passed below Exhibit 65 by the Trial Court in Civil Misc.
Application No.36 of 2006 is hereby quashed and set aside. The application below Exhibit 65 is allowed. The Respondents are at liberty to carry out consequential amendments raising any objection for issuance of letters of administration. The Trial Court shall proceed further to decide the same in accordance with law. All objections are kept open. No order as to costs.
7 Rule is made absolute in the aforesaid terms.
JUDGE ::: Downloaded on - 27/08/2013 21:10:19 :::