RAJIV SAKSENA Vs. XIIITH ADDL DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) SMT. Jeroo Ratar Sapurjee, who was residing at 39, Canton ment Road, Lucknow, died issueless on May 14, 1992. Her husband had pre-deceased her. She was a Parsee and did not leave behind any legal heir. According to the petitioner she executed a will in his favour on 24-1-1992, bequeathing to him the bun galow at 39, Cantonment Road, Lucknow. In the will, it was mentioned that it was the last will and no reference was made to any previous will said to have been executed by SMT. Sapurjee.

(2.) THE petitioner moved art application under Section 276 of the Indian Succession Act, 1925 for obtaining letters of ad ministration before the District Judge, Lucknow who transferred it to the Court of XIIIth Additional District Judge. Some how, the opposite party No. 2 got a scient ..... of the said application move by the petitioner under Section 276 of the Indian Succession Act and moved an application for impleading him as a party to the proceedings. In that application, he con tended that Smt. Sapurjee had executed a registered will dated 24-1-1992 in his favour. Against that application of the opposite party No. 2, the petitioner filed objection, mainly raising two pleas. Firstly it was con tended that under the provisions of Indian Succession Act and Central Rules (Civil), the opposite party No. 2 could not be impleaded as a party to the proceedings launched by the petitioner under Section 276 of the Indian Succession Act but his remedy lay in lodging a caveat. THE second objection taken was that the opposite party No. 2 cannot be permitted to prove his will or to set up a will in his own favour by way of objection to the application of the petitioner for obtaining letters of ad ministration. THE learned XIIIth Addition al District Judge, by means of the impugned order dated 21- 11-1995, allowed the application of the opposite party No. 2 direct ing the petitioner to implead him as a party to the proceedings against which the petitioner has approached this court under Article 226 of the Constitution of India.

(3.) SO far as the second plea of the petitioner that in his objection to the ap plication of the petitioner for obtaining let ters of administration, the opposite party No. 2 cannot be permitted to set up a will in his own favour, is concerned, it will not be proper at this stage for this Court to enter upon the merits of this plea which has to be decided first by the learned trial court, if such an objection is raised before it by the petitioner.