MUKUND BIHARI SHARMA Vs. SATYA NARAYAN

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned Single Judge dt. 13/10/2006 in S.B. Civil Writ Petition No. 6567/2006 dismissing the writ petition of the appellant. The appellant had filed the writ petition challenging the order of the trial Court [Additional District Judge (Fast Track), Bandikui] dt. 26.7.2006 in Civil Appeal No. 1/2006 rejecting his application for substitution. Brief facts of the case are that one Narbada Devi, grand mother of the appellant, filed suit No. 190/1985 in the Court of Additional Civil Judge, Dausa for eviction of the respondent on the ground of personal necessity of the appellant. The suit was dismissed on 16.1.1996. During pendency of the appeal which Narbada Devi preferred, on 23.4.2005 she executed a Will in respect of the property in question in favour of the appellant. The Will was duly attested by the Notary Public. Soon after, on 21.6.2005 she died. On 11.7.2005 the appellant filed application under Order 22 Rule 3 read with Order 1 Rule 10 further read with Section 151 of the Civil Procedure Code for his substitution in place of Narbada Devi. The trial Court took the view that as the appellant had not obtained probate of the Will, he was not entitled to be substituted in place of Narbada Devi. Observing further that period of ninety days had expired and the legal representatives of Narbada Devi had not been brought on record, the Court held that the appeal had abated on expiry of the period of ninety days.

(2.) THE case of the appellant is that the provisions of the Section 213 of the Indian Succession Act, 1925 in terms of which probate or letters of administration is to be mandatorily obtained in order to establish one's rights as legatee under a Will, are not applicable in the State of Rajasthan. In this regard reliance was placed on Mst. Jadav vs. Ram Swarup, : 1960 RLW 685and Sultan Singh vs. Brijraj Singh,, 1997 (1) WLC 368. View to this effect was taken by a Division Bench in Sunderlal and Teeja vs. Nena, D.B. Civil Regular First Appeal No. 83 of 1952 decided on 16.11.1954 referred to in the case of Mst. Jadav vs. Ram Swarup (Supra). The ground of rejection of the application for substitution therefore does not appear to be in accordance with law.

(3.) DR . P.C. Jain, counsel for the respondent submitted that the writ petition before the Single Judge itself was not maintainable. Referring to clause (k) of Order 43 Rule 1 of the C.P.C., it was submitted that any order refusing to set aside abatement or dismissal of a suit under Order 22 rule 9 is appealable, and therefore the appellant was required to prefer appeal and the writ petition was not maintainable. The submission is totally misconceived.