PIYUSHKUMAR POONAMCHAND ACHARYA Vs. DHIRAJ MANILAL THAKKAR

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging the order dtd. 29/4/2014 passed by the Judge, City Civil Court, Ahmedabad below Exh.1 in Civil Miscellaneous Application (District Court) No.9 of 2013 whereby the application preferred by the petitioner seeking probate came to be treated as a suit and it was ordered to be placed before regular Court in view of Sec. 295 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').

(2.) Ms. Archana Acharya, learned advocate for the petitioner raised several contentions with regard to the ownership of the property and power to make the will thereof where the respondents objectors have no interest, and therefore, on the basis of their objections, the probate application should not have been ordered to be treated as a regular suit.

(3.) Having heard learned advocate for the petitioner and considering the submissions made as also going through the impugned order and Sec. 295 of 'the Act', it is clear that when an application becomes contentious, the proceedings shall take, as nearly as may be, the form of a regular suit according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner, for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. Whether the respondents objectors have any right to object or not can be gone into in that very proceedings, which is ordered to be considered as a suit and it cannot be determined at this stage, that too, under Article 227 of the Constitution of India when Sec. 295 of 'the Act' is very clear, which has been resorted to by the learned Judge. By the impugned order, right of the petitioner is not taken away to consider the case on merit of the objectors pleaded merely by treating the application to be a regular suit, and therefore, any contentions on merit to set aside the order whereby the application is ordered to be considered in view of Sec. 295 of 'the Act' to be a suit and place it before the regular Court, requires no interference. Hence, this petition is rejected. Notice is discharged. Ad-interim relief granted earlier, if any, stands vacated.