This apart, probate of a Will is not necessary outside the presidency towns of Bengal, Bombay and Madras as has been held in Bhaiya Ji v. Jageshwar Dayal Bajpai, MANU/UP/0066/1978 : AIR 1978 All 268 and Smt. Pitmo v. Shyam Singh, MANU/UP/0077/1978: AIR 1978 All 301, by their Lordships of this Court. The said decisions hold that a probate is not required to be obtained by a Hindu in respect of a Will regarding immovable properties situate in territories other than Bengal, Bombay and Madras. Thus, probate of Will is not mandatory in respect of Will concerning properties situate in the State of U.P.
IN THE HIGH COURT OF ALLAHABAD
Decided On: 21.05.2014
Appellants: Ramjas
Vs.
Respondent: Sunder Devi
Vs.
Respondent: Sunder Devi
Hon'ble Judges/Coram:Pankaj Mithal , J.
Citation: 2014(7)ADJ317, 2014 (106) ALR 9, 2014 5 AWC4774All, 2014 125 RD376
1. Heard learned counsel for the petitioners.
Petitioners have come up in this writ petition against the order dated 16.3.2013 passed by the Court of first instance and the revisional order thereto dated 2.4.2014.
Briefly, the facts leading to the passing of the aforesaid orders is that a suit was decreed in the year 1980. After about 18 years one of the defendants to the suit Smt. Sundar Devi applied for setting aside the said decree vide Misc. case No. 82 of 1988. During pendency of the said Misc. case Smt. Sundar Devi died and respondent No. 2 Km. Veena Modi applied on the basis of her Will for being substituted in her place. The Substitution application has been allowed by the impugned orders.
2. The submission of learned counsel for the petitioners is that respondent No. 2 is not entitle to be substituted on the basis of the above Will as the aforesaid Will is neither probated nor any Letters of Administration on its basis has been granted in favour of respondent No. 2.
3. Order 22 Rule 3 and 4 CPC provides that on the death of any party to a suit or civil proceeding his/her legal representative have a right to pursue the proceedings from the stage at which the party to the suit/proceeding had died.
4. The aforesaid provision postulates for substituting the legal representative of the deceased party. The Legal representative is defined in Section 2(11)of the Code of Civil Procedure to mean a person who in law represents the estate of the deceased and includes a person who intermeddles with the estate of the deceased. The above definition of the legal representative has wide connotation and it is not confined to the heir or the successor of the deceased.
The dispute if any as to who is the legal representative of the deceased party for the purposes of prosecuting the suit or proceedings is determinable under Order 22 Rule 5 CPC in a summary manner by the Court seized of the matter. The determination therein is not with regard to actual heir or successor of the deceased for the purposes of inheritance.
5. The order of the Court permitting substitution of any person as legal representative of the deceased party enables the substituted person to proceed with the litigation from the stage of the death of the deceased party and the decision thereof does not operate as res judicata in any future proceedings or in proceedings for succession or inheritance. Therefore, the determination of the legal representative under Order 22 Rule 3/4 read with Rule 5 CPC does not in any way affects the right of any person to get his status as heir/representative or as successor of the deceased declared by the Court of competent jurisdiction. Accordingly, the order of substitution of any person in a suit or proceedings is not an order which may cause injustice or result in miscarriage of justice warranting interference in exercise of writ jurisdiction.
6. Section 2(f) of the Indian Succession Act, 1925 defines 'probate' to mean a copy of a Will certified under the seal of the Court of competent jurisdiction with the grant of the estate of the testator. Section 222 of the Indian Succession Act, 1925 specifically lays down that probate shall only be granted to the executor appointed by the Will. Therefore, probate is permissible only to an executor appointed either expressly or by implication by the Will and a person who is not named as an executor in the Will is not entitle to a probate of Will.
7. In other words, probate may be granted only to a person named as an executor in Will and where there is no executor, the grant of probate is out of question.
It is not the case of the petitioners that respondent No. 2 Km. Veena Devi has been named as an executor in the Will set up by her. Therefore, she is not competent to ask for the probate of the Will of the deceased.
8. This apart, probate of a Will is not necessary outside the presidency towns of Bengal, Bombay and Madras as has been held in Bhaiya Ji v. Jageshwar Dayal Bajpai, MANU/UP/0066/1978 : AIR 1978 All 268 and Smt. Pitmo v. Shyam Singh, MANU/UP/0077/1978: AIR 1978 All 301, by their Lordships of this Court. The said decisions hold that a probate is not required to be obtained by a Hindu in respect of a Will regarding immovable properties situate in territories other than Bengal, Bombay and Madras. Thus, probate of Will is not mandatory in respect of Will concerning properties situate in the State of U.P.
9. In the instant case the estate of the deceased is not situate in the territories of Bengal, Bombay and Madras and at the same time respondent No. 2 Km. Veena Modi is not an executor of the Will who may be compelled to obtain probate of it.
10. Accordingly, the argument that substitution on the basis of the Will cannot be allowed unless the Will is probated has no substance and fails.
The effect of Letter of Administration as provided under Section 220 of the Act is that it entitles the administrator to exercise all rights possessed by the deceased for the administration of his estate.
Letters of Administrator as such peril its a person to administer the estate of the deceased and nothing more. Its grant or refusal does not affect the right of a legal representative to pursue a suit or proceedings.
11. Similarly, Section 213 of the Act provides for obtaining probate or Letters of Administration for establishing the rights of executor or a legatee. It reads as under:
213. Right as executor or legatee when established:"No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed."
The aforesaid provision is only for the purposes of establishing rights as executor under the Will or rights as legatee/beneficiary under the Will.
The aforesaid provision does not come into play in connection with establishment of right as legal representative of deceased for the limited purpose of prosecuting the litigation.
12. In Rakesh Sharma v. Civil Judge (Senior Division) and others, MANU/UP/0433/2002 : 2002(3) AWC 2035, this Court had refused to interfere with the order of appellate Court below permitting substitution of one of the parties.
The aforesaid decision is of no help to the petitioners as in the said case the Court had not taken note of the fact that the purpose of substitution is limited and is confined to the right to prosecute the litigation on behalf of the deceased rather than establishing a claim over the Estate and credits of the deceased as an heir or successor.
The decision of Suresh Kumar Bansal v. Krishna Bansal and another, MANU/SC/1891/2009 : 2010 (1) AWC 816 (SC), is also of no help to the petitioners and rather goes against them as the Court therein permitted impleadment of a person on the basis of the Will alongwith natural heirs subject to grant of probate by the competent Court, if necessary. The Court held that such a person is also entitle to be impleaded, as he is the intermeddler of the Estate of the deceased and is a legal representative within the meaning of Section 2(11) of CPC.
In view of the aforesaid facts and circumstances the Court below have not erred in law in permitting substitution of respondent No. 2. The petition is devoid of merit and is dismissed.
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