RAM CHANDRA PRASAD RASTOGI Vs. PREM DEVI

JUDGEMENT

(1.) This revision petition filed under Section 115 of the C.P.C. is directed against the order dated 22.09.2014 passed by learned in-charge District & Sessions Judge-I, Begusarai in Misc. Case No. 01 of 2005 by which and whereunder he allowed the substitution petition dated 29.03.2014 filed by the opposite parties for substituting the sole plaintiff, namely, Jagdish Lal in Title Suit No. 03 of 1989.

(2.) The brief fact, which lies to file revision petition is that, one Rajendra Lal and Jagdish Lal filed Probate Case No. 07 of 1986 under Section 278 of Indian Succession Act, 1925 for grant of probate of alleged Will said to be executed by Banarsi Lal on 25.11.1985 in their favour. The aforesaid probate case was contested by the sole daughter of Banarsi Lal, namely, Smt. Gaya Devi and on her contest, the aforesaid Probate Case No. 07 of 1986 was converted into title suit bearing Title Suit No. 03 of 1989. During pendency of above stated Title Suit No. 03 of 1989, the sole defendant namely, Smt. Gaya Devi died leaving behind petitioners, who were substituted in place of defendant Gaya Devi. However, the aforesaid Title Suit No. 03 of 1989 was dismissed for default on 10.11.2000 but one of the applicants, namely, Jagdish Lal filed Misc. Case No. 01 of 2002 which, too, dismissed for default on 28.04.2003 and for restoration of Misc. Case No. 01 of 2002, the above stated Jagdish Lal again filed Misc. Case No. 02 of 2003 but that Misc. Case No. 02 of 2003 was also dismissed for default on 02.04.2005. Again, the aforesaid Jagdish Lal filed Misc. Case No. 01 of 2005 for restoration of above stated miscellaneous cases but during pendency of Misc. Case No. 01 of 2005, the sole applicant of aforesaid Misc. Case No. 01 of 2005, namely, Jagdish Lal @ Jagdish Prasad Rastogi died on 20.01.2014 and thereafter, on 29.03.2014, the legal representatives/legal heirs of deceased Jagdish Lal filed a petition under Order 22 Rule 3 read with Order 1 Rules 10 & 151 of the C.P.C. for their substitution in place of deceased Jagdish Lal. The learned court below allowed the aforesaid petition dated 29.03.2014 passing impugned order dated 22.09.2014 against which this revision petition has been preferred.

(3.) Learned counsel appearing for the petitioners challenged the impugned order arguing that according to Section 222 of Indian Succession Act, 1925, a probate can be granted only in favour of the executor appointed by the Will and, therefore, the legal representatives/legal heirs of deceased Jagdish Lal had no right to get themselves substituted in place of late Jagdish Lal who was an executor. Learned counsel for the petitioners heavily relied upon decision of this court reported in AIR 1917 Patna 209 as well as several other decisions. He further submitted that according to law laid down by Division Bench of this Court in the above stated decision, the probate case cannot be converted into Letters of Administration. Learned counsel for the petitioners also relied upon recent decision of this court passed on 27.03.2014 in Test Suit No. 01 of 2010 wherein it has been held by a single Bench of this court having relied upon the above stated decision reported in AIR 1917 Patna 209 that the probate case cannot be converted into a case for Letters of Administration and also held that on the death of executor, the probate proceeding itself dies its natural death. The judgment of learned Single Judge passed in Test Suit No. 01 of 2010 is confirmed by a Division Bench of this Court in L.P.A. No. 1370 of 2014 vide judgment dated 10.07.2017.