Vinay Kumar Sharma Son of Sri Surendra Sharma and ors. Vs. Reshma Devi Wife of Late Ram Jatan Singh - Court Judgment

Excerpt:
- orderabhijit sinha, j.1. this revision at the instance of the five heirs and legal representatives of deceased sole applicant of probate case no. 33 of 2003 is directed against the order dated 31.5.2007 passed by the learned 1st additional district judge, vaishali at hajipur, whereby their prayer for being substituted in place of the deceased sole applicant by virtue of being her heirs and legal representatives has been rejected on the ground that there is no provision for substitution of legal heirs in place of the deceased applicant in probate cases filed by the sole executor named in the will and has also been pleased to drop the probate case.2. the original applicant, indrashan devi filed the said probate case on the basis of a registered will dated 23.12.1998 purported to have been executed in her favour by one ram jatan singh in respect of his entire property. however, during the pendency of the said proceeding the sole applicant died on 9.2.2005 leaving behind the present petitioners, her two sons, two daughters and husband, as her only heirs and legal representatives. the heirs, therefore, upon the death of the applicant, filed an application for being substituted in her place which was rejected by the impugned order.3. it goes without saying that substitution of a person in a suit, appeal or any such proceeding in place of a deceased party does not by itself create any right of heirship in favour of the substituted persons. on the contrary efforts are required to be made to bring on record all proper or necessary parties for effective adjudication of the issues involved.4. in the instant case the petitioners appear to be the persons who are directly interested in proving the genuineness of the will since their rights depend upon the genuineness of the will and only after the will is proved to be a genuine one would the estate of ram jatan singh devolve upon any one. for the purpose one may gainfully refer to the decision of this court, in the goods of sri sailendra nath mazumdar v. srimati madhabi lata devi 1975 bbcj 244 wherein, in a similar situation, this court having considered a catena of decisions of various high courts and their divergent view points held that the issue involved in such proceeding is to find about the truth and genuineness of the will and the person interested to intervene can do well in completing the proceeding as well.5. then again in the case of jogendra prasad v. kamlesh kumar reported in 2002 (1) pljr 740, it was held by this court that in a case where grant of letters of administration or probate is involved, the duty of the court hinges on the sanctity or genuinity of the will only and no right of any of the parties are being decided and in the said circumstances the order of the court below allowing substitution petition filed by the son of the executor was held to be justified.6. one may also refer to section 268 of the indian succession act which provides that in proceedings relating to granting of probate and letters of administration are to be governed by the code of civil procedure. it would thus follow that the provisions of the code of civil procedure can be invoked even in proceedings for grant of probate or letters of administration.7. keeping in mind the decisions of sailendra nath mazumdar (supra), it has to be held that the petitioners are definitely persons interested in the probate proceeding and can be permitted to intervene and appear in the proceeding and by proving the will obtain probate in their own right.8. in view of the discussions made in the foregoing paragraphs the revision is allowed and the impugned order is set aside.

Judgment:
ORDER

Abhijit Sinha, J.

1. This revision at the instance of the five heirs and legal representatives of deceased sole applicant of Probate Case No. 33 of 2003 is directed against the order dated 31.5.2007 passed by the learned 1st Additional District Judge, Vaishali at Hajipur, whereby their prayer for being substituted in place of the deceased sole applicant by virtue of being her heirs and legal representatives has been rejected on the ground that there is no provision for substitution of legal heirs in place of the deceased applicant in probate cases filed by the sole executor named in the Will and has also been pleased to drop the probate case.

2. The original applicant, Indrashan Devi filed the said Probate Case on the basis of a registered Will dated 23.12.1998 purported to have been executed in her favour by one Ram Jatan Singh in respect of his entire property. However, during the pendency of the said proceeding the sole applicant died on 9.2.2005 leaving behind the present petitioners, her two sons, two daughters and husband, as her only heirs and legal representatives. The heirs, therefore, upon the death of the applicant, filed an application for being substituted in her place which was rejected by the impugned order.

3. It goes without saying that substitution of a person in a suit, appeal or any such proceeding in place of a deceased party does not by itself create any right of heirship in favour of the substituted persons. On the contrary efforts are required to be made to bring on record all proper or necessary parties for effective adjudication of the issues involved.

4. In the instant case the petitioners appear to be the persons who are directly interested in proving the genuineness of the Will since their rights depend upon the genuineness of the Will and only after the Will is proved to be a genuine one would the estate of Ram Jatan Singh devolve upon any one. For the purpose one may gainfully refer to the decision of this Court, in the goods of Sri Sailendra Nath Mazumdar v. Srimati Madhabi Lata Devi 1975 BBCJ 244 wherein, in a similar situation, this Court having considered a catena of decisions of various High Courts and their divergent view points held that the issue involved in such proceeding is to find about the truth and genuineness of the Will and the person interested to intervene can do well in completing the proceeding as well.

5. Then again in the case of Jogendra Prasad v. Kamlesh Kumar reported in 2002 (1) PLJR 740, it was held by this Court that in a case where grant of letters of administration or probate is involved, the duty of the court hinges on the sanctity or genuinity of the Will only and no right of any of the parties are being decided and in the said circumstances the order of the court below allowing substitution petition filed by the son of the executor was held to be justified.

6. One may also refer to Section 268 of the Indian Succession Act which provides that in proceedings relating to granting of probate and letters of administration are to be governed by the Code of Civil Procedure. It would thus follow that the provisions of the Code of Civil Procedure can be invoked even in proceedings for grant of probate or letters of administration.

7. Keeping in mind the decisions of Sailendra Nath Mazumdar (Supra), it has to be held that the petitioners are definitely persons interested in the probate proceeding and can be permitted to intervene and appear in the proceeding and by proving the Will obtain probate in their own right.

8. In view of the discussions made in the foregoing paragraphs the revision is allowed and the impugned order is set aside.