Rajasthan High Court - Jaipur
Smt.Laxmkant Yeti vs District Judge, Sikar on 16 May, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1623/2007
Smt. Laxmkant Yeti daughter of late Shri Ram Lal Yeti, wife of
Shri Vijay Chandra Yeti, resident of Fatehpur, Tehsil Fatehpur,
District Sikar.
----Petitioner(Applicant)
Versus
1. District Judge, Sikar.
------Respondent
2. Raj Kumar disciple Shri Vijay Chandra Yeti, resident of Fatehpur, Tehsil Fatehpur, District Sikar.
----Respondent(Objector)
For Petitioner(s) : Mr. Nitesh Pareek
For Respondent(s) : Mr. B.L. Agarwal
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order 16/05/2019 The petitioner by this writ petition assails the order dated 7.11.2006 whereby the application moved under 6 Rule 17 CPC seeking amendment in prayer made by the petitioner has been disallowed. Petitioner had applied for seeking a little probate by moving an application before the learned District Judge, Sikar.
Brief facts of the case are that on 4.7.1989 one Ridhikaran Yeti executed a will in favour of the petitioner. Ridhikaran Yeti died on 20.4.1993. On the basis of will and as per advise, petitioner moved an application for grant of probate. Respondent filed objections that the claim for grant of probate was not maintainable.
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(2 of 4) [CW-1623/2007] An application under Order 6 Rule 17 CPC was moved on a later stage after the evidence was recorded by the petitioner realising the objections raised by the respondent that as there was no executor to the will, the letter of probate in terms of Section 222 of the Indian Succession Act could not be issued and, therefore, the petitioner prayed that instead of letter of probate, the application be treated as prayer for grant of letters of administration. The said application has been rejected by the impugned order dated 7.11.2016.
Learned counsel for the petitioner submits that the amendment ought to have been allowed as the petitioner was although not entitled to be granted the letter of probate but could have been granted letters of administration. He has placed reliance on Shambhu Prasad Agarwal and Others V/s. Bhola Ram Agarwal (2000) 9 SCC 714 as well as in the case of Shirin Baman Faramarzi of Bombay Zoroastrian Iranian Inhabitant Vs. Zubin Boman Faramarzi and Ors. 2013 (52) R.C.R. (Civil) 614.
Per Contra, learned counsel appearing for the respondent has opposed the prayer and submit that the amendment in the plaint was sought at belated stage and ought not have been allowed and the trial Court has rightly rejected the application. He placed reliance on Meera Ben V/s. Amritlal & Anr. 2015 (Suppl.) Civil Court Cases 232 (Raj.) as well as in the case of Aalok Khanna Vs. Rajdarshan Hotel Pvt. Ltd. 2015 WLC (Raj. UC
505. Learned counsel for the respondent further submits that as the respondent had already taken an objection in his written statement that, the application for amendment ought to (Downloaded on 29/06/2019 at 01:48:22 AM) (3 of 4) [CW-1623/2007] have been moved at the appropriate stage itself and after the trial had begun and the case was listed for argument, amendment ought not have been allowed and accordingly he supports the order passed by the trial Court.
I have considered the submissions. For the purpose of grant of probate under Section 222 of the Indian Succession Act, an application has to be moved before the concerned District Judge who follows provision of CPC as far as possible for adjudication of such an application. However, the provisions of CPC do not strictly apply while deciding application for probate under Section 222 of the Indian Succession Act.
Keeping in view the aforesaid, if the application of the petitioner seeking amendment is looked into, this Court finds that the prayer made in the original application under Section 222 of the Indian Succession Act was erroneous as admittedly he could have been granted a letter of probate since there was no executor to the will. However, petitioner is admittedly a legatee and at best, therefore, is entitled to seek a letters of administration.
It is to be noticed that if the application of the petitioner for seeking letter of probate is rejected on the aforesaid ground, he would be entitled to again move an application seeking letters of administration. This court also finds that the learned District Judge has already recorded the evidence and the application for amendment is only for correction in the prayer. In Shambhu Prasad Agarwal and Others V/s. Bhola Ram Agarwal (2000) 9 SCC 714 the three Judges Bench of the Hon'ble Apex Court, it is held as under:-
5. We find that it is not disputed that Matadin Agarwal was a legatee under the will. It is true that (Downloaded on 29/06/2019 at 01:48:22 AM) (4 of 4) [CW-1623/2007] Matadin Agarwal ought to have applied for issue of letters of administration and not for probate.
However, this did not debar his heirs to get the probate petition amended. The trial court rejected both the applications of the appellants on the ground that since the probate petition filed by the legatee related to his personal right, therefore no right 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.
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.
Thus in view of above, the learned District Judge was not correct in rejecting the application moved by the petitioner for correction/amendment in the prayer.
Accordingly, the writ petition is allowed. The District Judge Sikar is directed to treat the application as application for seeking of letters of administration moved by the petitioner and decide the same expeditiously preferably within period of three months.
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