Orissa High Court
Janardan Jena vs Sara Alias Saraswati Dei on 28 June, 1991
Equivalent citations: 1991(II)OLR525
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. An interesting question whether amendment is permissible in respect of an application for grant of probate under Indian Succession Act, 1925 (in short 'the Act") is involved in this revision appli- cation.
2. Facts giving rise to the application are as follows : Petitioner filed an application which was numbered as Misc. Case No. 14 of 1977 in the Court of the District judge, Cut tack for grant of Probate of a Will stated to have been executed on 5 3-1970 and registered on 7-3-1 70 with the averment that same was last Will and testament of one Dhaneswar Jena, who died on 8-3-1970. Petitioner claimed to be adopted son of Dhaneswar, and opp. party his daughter, The application was taken up by the learned Subordinate Judge, Jajpur for adjudication, before whom several applications were fifed. We are concerned with one such application, by which the petitioner wanted amendment of petition for probate. In the application for amendment, prayer was made to the effect that a Will executed and registered on 7-3-1970 was last Wilt and testament of testator. Prayer for amendment was turned down by the learned Sub- ordinate judge with a finding that same introduced a new case, which will change nature and character of application originally made.
3. Learned counsel for petitioner submits that application for amendment was intended to avoid multipicity of proceedings and therefore, rejection thereof is not proper. It is further urged that conclusion relating to non-presentation of the Will to the learned District judge is also not tenable in law. Learned counsel for opp. party submits that amendment as prayed for clearly changes nature and character of dispute and therefore, prayer was rightly refused by the learned Subordinate judge. Additionally it is submitted that provisions of the Code of Civil Procedure, 1908 (in short 'the Code') have no application to the proceedings for grant of probate and letters of administration.
4. I shall deal with contention relating to non-applicability of the Code first. Conspectus of provisions contained in Secs. 266 to 268 and 294 makes it clear that the Code has application to the proceedings in relation to grant of probate and letters of administration, save as otherwise provided in the Act. Section 295 makes it further clear that moment there is contention in proceedings for grant of probate and letters of Administration, they are to be treated as having become plaints in suits and thereafter the matters are to be tried as regular suits. Though they partake the form of regular suits, if there are contentions, they are to be regulated as far as circumstances may permit, in terms of Section 263 of the Act. The expression as nearly as may be' itself indicates that proceeding in question cannot be considered to be exactly same as a suit. Further fact that Section 295 itself directs that such a proceeding shall take form of a regular suit is further indicative of legislative intent that in substance it is not a suit. It is only because there is an obvious difference in basic nature of concerned proceedings that it was found necessary to direct that one was to take form of other in certain circumstances. Therefore, when there is no contention, i.e., in noncontentious cases proceedings retain their initial complexion. Once proceed dings are treated as proceedings in a regular suit, all incidents in a suit will fasten to such proceedings. Therefore, it cannot be said that the Code has no application to the applications for grant of Probate and Letters of Administration.
5. Further question is whether Order 6, Rule 17 of the Code has any application, and even if it is applicable whether on facts involved, refusal to allow amendment was justified. Section 261 of the Act permits rectification of errors in names and descriptions, or in setting forth the time and place of the deceased's death or the purpose in a limited grant. As observed in Hughes, In the goods of, 2 Rob, 341, an amendment can be made of errars in the grant, but no alteration can be made in papers of which probate has been granted. In that view of the matter, amendment resulting in substitution of one cause of action by another is impermissible, while it is permissible if same is not the case. Though amendment is rot to be allowed liberally when it aims at furtherance of justice, there are two limitations and amendment cannot be allowed which would have effect of substituting one cause of action for another, or changing substratum of dispute. Basis for original application was that the alleged Will dated 5-3-1970 registered on 7-3-1970 was the last one. By amendment, it was sought to be substituted by one purported to have been executed on 3-3-1970 Court is supposed to grant probate or letters of administration on being satisfied that a validly executed will existed. It cannot be required to make a roving inquiry as to which of several Wills was one in respect of which probate or letters of administration can be granted. Therefore even if amendment of an application for probate or letters of Administration can be made, same is subject to limitations indicated above. Merely because multiplicity of suit can be avoided, the basic requirement relating to non- change of substratum cannot be dispensed with.
6. In view of the above conclusions, it is unnecessary to deal with view of learned Subordinate Judge that Will dated 3-3-1970 having not been presented before learned District Judge did mot merit consideration.
The revision application is without merit and is accordingly, dismissed.