JANARDAN JENA Vs. SARA ALIAS SARASWATI DEI

JUDGEMENT

(1.) An interesting question whether amendment is permissible in respect of an application for grant of probate under Indian Succession Act, 1925 (in short 'the Act') is involved in this revision appli - cation.

(2.) FACTS giving rise to the application are as follows : Petitioner filed an application which was numbered as Misc. Case No. 14 of 1977 in the Court of the District judge, Cut tack for grant of Probate of a Will stated to have been executed on 5 3 -1970 and registered on 7 -3 -1 70 with the averment that same was last Will and testament of one Dhaneswar Jena, who died on 8 -3 -1970. Petitioner claimed to be adopted son of Dhaneswar, and opp. party his daughter, The application was taken up by the learned Subordinate Judge, Jajpur for adjudication, before whom several applications were fifed. We are concerned with one such application, by which the petitioner wanted amendment of petition for probate. In the application for amendment, prayer was made to the effect that a Will executed and registered on 7 -3 -1970 was last Wilt and testament of testator. Prayer for amendment was turned down by the learned Sub - ordinate judge with a finding that same introduced a new case, which will change nature and character of application originally made. - -

(3.) I shall deal with contention relating to non -applicability of the Code first. Conspectus of provisions contained in Secs. 266 to 268 and 294 makes it clear that the Code has application to the proceedings in relation to grant of probate and letters of administration, save as otherwise provided in the Act. Section 295 makes it further clear that moment there is contention in proceedings for grant of probate and letters of Administration, they are to be treated as having become plaints in suits and thereafter the matters are to be tried as regular suits. Though they partake the form of regular suits, if there are contentions, they are to be regulated as far as circumstances may permit, in terms of Section 263 of the Act. The expression as nearly as may be' itself indicates that proceeding in question cannot be considered to be exactly same as a suit. Further fact that Section 295 itself directs that such a proceeding shall take form of a regular suit is further indicative of legislative intent that in substance it is not a suit. It is only because there is an obvious difference in basic nature of concerned proceedings that it was found necessary to direct that one was to take form of other in certain circumstances. Therefore, when there is no contention, i.e., in noncontentious cases proceedings retain their initial complexion. Once proceed dings are treated as proceedings in a regular suit, all incidents in a suit will fasten to such proceedings. Therefore, it cannot be said that the Code has no application to the applications for grant of Probate and Letters of Administration.