HARBANS SINGH Vs. STATE

JUDGEMENT

(1.) THE present petition is directed against an order dated 08.11.2006 passed by the learned ADJ in a petition preferred by the predecessor-in-interest of respondents No. 2A, 2B and 2C, late Shri Pritpal Singh, under Section 276 of the Indian Succession Act for grant of probate of the Will dated 18.1.1995 of his deceased brother, Shri Virender Singh, who had appointed Shri Pritpal Singh as the executor.

(2.) DURING the pendency of the probate petition, Shri Pritpal Singh expired on 03.01.2006. Thereafter, respondents No. 2A, 2B and 2C filed an application under Order 22 Rule 3 CPC praying intera alia for substituting their names in place of the deceased petitioner and for permission to continue the case as his legal heirs. The aforesaid application was opposed by the petitioner and respondent No.3 (objector No.2 and objector No.4 respectively in the probate petition), who filed their replies and submitted therein that respondents No. 2A, 2B and 2C (applicants in the said application) were not entitled to seek substitution in the pending probate petition and that upon the demise of Shri Pritpal Singh, the probate petition filed by him under Section 276 of the Indian Succession Act stood abated. Per contra, the respondents No.2A, 2B and 2C stated that the probate petition was preferred by Shri Pritpal Singh not only as the executor of the Will of Late Shri Virender Singh, but also as a beneficiary thereunder and hence, they had a right to continue prosecuting the said petition. By the impugned order, the learned ADJ allowed the application of the respondents No. 2A, 2B and 2C and permitted them to be substituted in place of Late Shri Pritpal Singh. Aggrieved by the said order, the petitioner (Objector No.2 in the probate petition) has filed the present petition.

(3.) AGGRIEVED by the said order, the appellants in the aforesaid appeal approached the Division Bench of the Calcutta High Court. After considering the facts of the said case, and while relying on a decision in the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee reported as I.L.R. Vol.XXXVI Calcutta Series 799, the Division Bench held that the proper thing for the respondents to have done was not to apply to continue the proceedings as substituted heirs of late Smt. Subashini, but to have filed a fresh application for praying for letters of administration with a copy of the will annexed as heirs and personal representatives of the deceased sole legatee. It was further observed that as the said objection about the application being defective was raised at the end of the probate proceedings, when arguments were being addressed, to obviate all disputes and ambiguity, it would have been proper for the respondents to have filed an application seeking amendment of the prayer clause in the petition by making a request that the same be treated as one for letters of administration, either as heirs of the deceased Smt. Subashini, or independently in their own rights.