BALBIR SINGH Vs. SULOCHANA DEVI

JUDGEMENT

(1.) APPELLANT Balbir Singh had filed a petition for probate under Section 276 of the Indian Succession Act on 5-3-1963. On the basis of a will which was alleged to have been executed by one Gopal Narain Fadnis on 18th May, 1961. Gopal Narain Fadnis died on 19-1-1963 leaving his only daughter Smt Sulochana as his survivor. Smt. Sulochana filed a written statement in the case and inter alia pleaded that the application for probate was not maintainable Issues were framed, parties led evidence and the case was argued on their behalf on several dates before the trial Judge. Be fore the conclusion of the arguments however an application for amendment was made by the appellant which was rejected by the Judge on 16-9-1966.

(2.) ON 19-9-1966 an application was filed by the appellant before the District Judge, Lucknow praying that he may be permitted to withdraw the above probate application with liberty to brinf any other proceeding or suit as "he may be advised" on the ground that "the above probate proceeding is defective for some formal defects" and "the applicant does not want to further prosecute the above application owing to the defects and for other reasons". The defendant filed an objection praying that the application be rejected. After hearing the counsel for the parties at considerable length and taking into account the facts and circumstances of the case the learned Addl. District Judge inter alia observed "that the plaintiff has not disclosed in his application the nature of the formal defect ............and because of the fact that it was argued on behalf of the plaintiff that the provisions of Order 23, Rule 1 do not apply to probate proceedings I permit the plaintiff to withdraw the suit, but withhold the permission to file a fresh suit or proceeding as he may be advised." Aggrieved by the order the plaintiff has come up in appeal before this Court.

(3.) HOWEVER , I am satisfied that the trial Judge's refusal to permit the plaintiff appellant to file a fresh suit or proceeding is fully justified. It is not necessary to interfere with that order.