SATISH KUMAR JAIN Vs. STATE

JUDGEMENT

(1.) I.A. 10299/2019(Application under Order 22 Rule 3 read with Sec. 151 CPC for impleadment of legal representatives of petitioner)

(2.) The respondent No.3 has contested the application and taken a preliminary objection that Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") is not applicable to probate proceedings since the order of probate or letter of administration is neither a decree or an order passed in a suit, nor are the proceedings under Sec. 278 of Indian Succession Act, 1925 (hereinafter referred to as "Succession Act") commenced on a suit or a plaint. For this, reliance has been placed on decision of the High Court of Judicature at Allahabad in Panzy Ferhantus v. M.F. Queoros[AIR 1963 All 153(FB)]and in Barumal Singh v. 3rd Additional District Judge, Saharanpur, and Ors. [AIR 1986 All 307]. Moreover, the right to claim probate/letter of administration was a right personal to the deceased petitioner and the right to sue does not survive in favour of his legal heirs after his demise for which reliance has been placed on the decisions of the Calcutta High Court in Sarat Chandra Banderjee v. Nani Mohan Banerjee, [1909 Vol. III Indian Cases 995(Calcutta)] and in Hari Bhusan Datta v. Manmatha Nath Datta and Ors, [1919 Vol. II Indian cases 76 (Calcutta)].

(3.) It is submitted that the deceased petitioner in his petition had claimed himself to be the executor of the Will dtd. 29/12/1980 even though he had not been appointed as an executor by the testator in his Will. It is only an executor who can be granted a probate of a Will in view of Sec. 222 of the Succession Act. Moreover, Sec. 226 of the Succession Act specifically provides that on demise of the executor, right to represent would survive on the surviving executor(s). Thus,the combined reading of Sec. 222 and 226 of the Succession Act makes it evident that probate petitions can be filed only by the executor and survives only in favour of the surviving executor(s).