SANTOSH MISHRA Vs. PRABHA PANDEY

JUDGEMENT

(1.) Present Civil Revision has its genesis in the impugned order dated 11.1.2005 passed by Addl. District Judge (Court No. 3) whereby the application of the respondent for accepting the written statement in probate proceeding instituted for grant of probate under Section 217 of the Indian Succession Act had been allowed.

(2.) It would appear from a perusal of the record that the applicant is the only issue of late Ram Sagar Pandey resident of village Tikari P.O. Babhani Hether Tahsil Meja District Allahabad who, it is alleged, had executed a Will on 2.11.2003 bequeathing all his properties in favour of the applicant. The aforesaid Ram Sagar Pandey, it brooks no dispute, was spirited away by death on 9.11.2003 and consequently, the applicant resorted to proceeding under Section 217 of the Indian Succession Act, 1925 for grant of probate. The defendants arrayed in the proceeding are aunt and great father of the applicant respectively and repudiated the genuineness or existence of the Will stating that the deceased wanted the property to devolve upon his elder brother and his sons.

(3.) The controversy involved in the present revision lies in a short compass the challenge being focused on the impugned order whereby application for accepting written statement was allowed on cost of Rs. 100/-. The main brunt of the arguments advanced across the bar by the learned counsel for the applicant is that the written statement was filed beyond the period of limitation of 90 days and provisions of Order 8 Rule 1 being mandatory, the court below erred in law in condoning the delay while accepting the written statement on record. The learned counsel for the applicant also canvassed on the point of applicability of the Code of Civil Procedure stating that the provisions of Order 8 Rule 1 being mandatory, the Court transgressed the bounds of legislative intention in allowing the application filed for accepting the written statement. The learned counsel also submitted that proceeding for grant of probate or letter of administration being one under Section 217 of the Indian Succession Act, the Code of Civil Procedure would be applicable on all fours. The learned counsel also referred to Section 266, 268 and 295 and propounded that in case, the proceeding under Section 217 of the Succession Act becomes contentious, it takes the form of a suit and in this circumstance, the Code of Civil Procedure applies in entirety. In order to prop up his submission, the learned counsel placed credence on various decisions including Mohandas Dattaram Prabhu and Ors. v. U.F.M. Mukund Honnappa Naik, AIR 2003 Karnataka 428, Nanda Agarwal v. Matri Mandir Varanasi and Anr., 2004 (2) ARC 598 and Smt. Savitha Gupta v. Smt. Nagaratha and Ors. AIR 2003 Karnataka 426. The learned counsel also placed reliance on Smt. Multivahuji v. Smt. Kalindivahuji and Ors. AIR 1994 Gujarat 42, Bai Sabu Khima v. Amardas Balakdas AIR 1967 Gujarat 214, Kalarikkal Thressiamma and Anr. v. Kallidukkananikkal Joseph and Ors. AIR 1998 Kerala 160 and Smt. Rajeshwari Misra and Anr. v. Markandeshwar Mahadeo Trust and Ors. AIR 1965 Alld 211.