Calcutta High Court
The Court : The Original vs Annabai Devram Kini And Others on 22 February, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-16
GA 331 of 2019
With
PLA 176 of 1988
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF:
SUNDERLAL BADALIA (KHARAR) (DECEASED)
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 22nd February, 2019.
Appearance:
Mr. Srenik Singhvi, Adv.
Ms. Sananda Ganguli, Adv.
Ms. Roshni Surana, Adv.
Mr. Shuvasish Sengupta, Adv.
Mr. Soumyajit Mishra, Adv.
Mr. Balarko Sen, Adv.
The Court : The original applicant Munna Lal Badalia had filed GA No.3661 of 2011 praying for revocation of a probate granted in favour of Ravi Badalia and Sashi Badalia. Munna Lal Badalia passed away on 18th May, 2017 leaving his wife and two daughters as his legal heirs. The said legal heirs have made the present application for recording the death of the original applicant and for being substituted in his place and stead.
Learned Counsel appearing for Ravi Badalia and Sashi Badalia in whose favour probate has been granted, submits that revocation application has abated. Hence, no question of substitution arises.
It is true that the present application has been made after some delay. Technically speaking, the revocation application has 2 abated. However, the discretion to set aside abatement of a lis ought to be exercised liberally as abatement causes end of a lis without giving the applicant a hearing on merits. This is also the view exercised by the Hon'ble Supreme Court in Mithailal Dalsangar Singh and Others -versus- Annabai Devram Kini and Others reported in (2003) 10 Supreme Court Cases 691.
Although there is no prayer for setting aside abatement, prayer (c) is for an order allowing the applicant to amend the revocation application in the manner indicated in red ink in a copy of the application being Annexure-'X'. The proposed amendment shows substitution. Hence, in substance, a prayer for substitution is there and this may be construed as a prayer for setting aside abatement as held by the Hon'ble Supreme Court in the aforesaid case.
In view of the aforesaid, this application is allowed. There will be an order in terms of prayers (a) to (f) of the application.
The department shall carry out the proposed amendment within four weeks from date. After the amendment is carried out, copy of the amended petition shall be served on the propounders immediately.
GA No.331 of 2019 is, accordingly, disposed of.
(ARIJIT BANERJEE, J.) s.pal