SURJIT KAUR GILL Vs. STATE

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 3rd March 2008 passed by learned ACJ whereby he allowed two applications under Order 22 Rule 4 of CPC for substituting the Lrs of respondent No. 3 and 5. The applications were opposed by the petitioner claiming that the applications were filed belatedly and beyond time.

(2.) RESPONDENT No. 5 had expired on 4th January 2007 and the application was made on 6th March 2007. The trial court observed that the application was for within the time and was not barred by limitation and the allowed the applications. As far as respondent No. 3 is concerned, the respondent No. 3 expired in October 2003 and the application was made on 6th March 2007. The petitioner claimed that he learnt about the death of the respondent No. 3 only recently and filed an application after coming to know of his death. Learned ACJ though found that there was no application for condonation of delay, but, since the application was made in a proceeding for obtaining succession certificate, he observed that the provisions of CPC were not strictly applicable and the court can substitute the Lrs of the deceased respondent if substitution is helpful in deciding the matter.

(3.) I consider that the petition filed by the petitioner was a misconceived one. A petition for obtaining succession certificate can be filed either on the basis of Will or without a Will. If it is based on a Will, the Court has to consider the genuineness of the Will and give an opportunity to file the objections to anyone interested and a public notice of the petition is published in newspaper. In cases of Succession and Probate cases, the Court has to give information to the public at large and invite objections from all surviving legal heirs. A petitioner is supposed to inform the Court about the legal heirs by making them a party or by filing a separate memo of parties. If the petitioner is not aware of the death of some legal heirs and he later on comes to know about the death of legal heirs he can always pray the court to bring on record the Lrs of the deceased persons. Where a petition for succession is filed without a Will, the situation does not change. The Court has to protect the rights of all interested persons and has to issue succession certificate in accordance with legal rights. If the respondent has died, his Lrs would be entitled to inherit the legal rights of the deceased person, whether they are made a party or not. Thus the significance of the application under Order 22 in succession proceedings or probate case is different from the normal application under Order 22 to bring the Lrs on record in a suit in civil matters. In succession proceedings and in probate proceedings, it is not material whether the parties made an application under Order 22 Rule 3 or not. The other legal heirs have a right to approach the Court irrespective of the application and may file objections. In case where a legal heir is not made a party, he can challenge the grant of succession certificate or probate on the ground that he was very much alive and available and he was not made a party and his objections were not heard.