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2017 DIGILAW 1679 (ALL)

ADITYA PANDEY v. HARSH JAUHARI

2017-07-18

SUNEET KUMAR

body2017
JUDGMENT : SUNEET KUMAR, J. 1. The appeal under section 299 of Indian Succession Act, 1925 (hereinafter referred to as 'Succession Act'), is directed against the order dated 17 November 2016 passed by the Additional District Judge, Room No. 14, Kanpur Nagar, Kanpur, U.P. in Probate Proceeding Case No. 170/70 of 2011 (Smt. Harsh Jauhari v. Smt. Rajani Agarwal and another). 2. The respondent-plaintiff filed a petition for grant of probate on the strength of unregistered Will dated 8 July 2011, executed by Shantanu Agarwal. The appellant was impleaded during the proceeding, who set up a counter claim on the strength of an unregistered Will dated 15 June 2001. During the course of proceeding, respondent submitted his examination-in-chief, the appellant filed an application to cross examine the respondent which has been dismissed by the impugned order. 3. Learned court would note in the impugned order that the proceeding under the Succession Act being summary in nature, wherein, the contesting defendant can lead evidence in support of his case and on the strength of the evidence of rival parties the matter would be decided, however, presently there is no case for allowing cross examination of the plaintiff, consequently, the application was rejected by the impugned order. 4. Learned counsel for the appellant would submit that since the appellant was impleaded as a party, upon entering appearance he has setup a rival claim, therefore, in view of section 295 of the Succession Act, the matter has become contentious, therefore, would urge that the proceeding is to be decided as a regular suit according to the provisions of Code of Civil Procedure (hereinafter referred to as 'CPC'). 5. It is contended on behalf of the appellant that proceedings for probate or letters of administration should be considered as suits and order passed therein are to be regarded as decrees. 6. Sri Arun Kumar, learned counsel appearing for the respondent-plaintiff would submit that upon contention the proceedings for grant of probate will take the form of suit, however, the expression "as nearly as may be" indicates that the proceedings in question was not to be considered as a regular suit. Further, would contend that right of the appellant to oppose the grant of probate in favour of the respondent-plaintiff exists only if he has a caveatable interest in the property of the testator. Further, would contend that right of the appellant to oppose the grant of probate in favour of the respondent-plaintiff exists only if he has a caveatable interest in the property of the testator. Appellant is not the natural heir, but the neighbour of the testator, who has set up the contention to grab the property. Admittedly, the original copy of the Will has not been brought on record, therefore, would urge that the appellant has yet to establish his caveatable interest in the property. The rights of the beneficiary under Will are always subject matter to challenge in regular suit. 7. Rival submissions fall for consideration. 8. The sole question that arises is as to whether the proceedings under section 295 of the Succession Act, in contentious cases is a suit to be tried under the Code of Civil Procedure. 9. A perusal of section 295 of the Succession Act, itself indicates that such a proceeding is not a suit. It is for the reason that it was found necessary under section 295 of the Succession Act to lay down that such proceeding should, as nearly as possible, take form of a regular suit. The use of the words "as nearly as may be" itself indicates that the proceedings in question was not considered to be exactly the same as a suit. Again, the fact that the section itself also directs that such a proceeding shall take the form of a regular suit further undertakes that in substance it is not a suit. It is only because there is an obvious difference in the basic nature of the two proceedings that it was found necessary to direct that one was to take the form of the other. Moreover, the direction regarding change of the form is given only in cases, where there is contention, even this change of form does not take place, and the proceedings fully retain their initial complexion. 10. The Full Bench decision rendered in Mrs. Panzy Fernandas v. Mrs. M.F. Queoros and others, AIR 1963 Allahabad 153, upheld the earlier view of the Division Bench that if the proceeding were itself a suit, there would be no necessity to say that it should take the form of a suit when there is a contentious case, therefore, held that proceeding for probate or letters of administration was not a suit but a "miscellaneous judicial case". 11. 11. The intention of the Legislature in introducing section 295 in the Succession Act appears to be to make the procedure followed in regular suits applicable also in proceedings under the said section. This provision of law appears to be in line with section 141 of the Code of Civil Procedure (Act No. V of 1908) which lays down as follows : "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction." 12. It cannot be said that because Section 141 extends the procedure applicable in suits to other proceedings it has the effect of converting such other proceedings into actual suits. 13. This Court in Santosh Mishra v. Prabha Pandey, 2005 (3) AWC 2597 , held that no doubt the proceeding for probate, if uncontested, is a summary proceeding but once there is contention, the proceedings may take form of a suit and all the incidence of a suit will attach to such proceeding. However, it follows from the expression "the form of a regular suit" does not make proceedings a suit in real sense of the term. Therefore, so long as the petition for probate or letters is non contentious, it is to be dealt not in strict sense of the term but once it becomes contentious, it may take the form of a suit and the procedure as may apply to a suit as contained in the CPC, may come into play as far as practicable and not as a rule. 14. Supreme Court in Chiranji Lal Shrilal Goenka v. Jasjit Singh and others, (1993) 2 SCC 507 , held that Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. Thus, it does no more than establish the factum of the Will and the legal character of the executor. Probate court does not decide the question of title or of the existence of the property itself. Thus, it does no more than establish the factum of the Will and the legal character of the executor. Probate court does not decide the question of title or of the existence of the property itself. But at the same time, it must be borne in the mind that where there is no provision under the Succession Act the established principles of CPC were to be made applicable and the underline intention of the legislature seems that the party got fair opportunity to defend himself, therefore, certain provisions of the CPC have been made applicable for contesting the probate proceedings with the avowed object that parties may not be deprived of legitimate rights of bringing to the notice of the court the correct facts and evidence. 15. Therefore, I am of the view that Succession Act is a self contained code and the entire CPC would not be applicable and is intended to be applicable where Succession Act is silent. Therefore, it follows that rigours of the provisions of CPC will not be applicable to Succession Act in a contentious case. 16. The Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court. 17. In the case at hand, it is admitted by the learned counsel for the appellant that the appellant has not filed the Will upon which he seeks probate. It is categorically stated in the written statement that the Will will be filed at the time of hearing. The respondent has brought on record the Will and filed examination-in-chief. Appellant wants to cross-examine the respondent. Appellant is not the legal heir of the testator, nor he otherwise has any claim to the property. He seeks probate on the strength of a Will which he has not brought on record to establish his interest in the property. In the circumstances, the court below was justified in rejecting the application. 18. The learned counsel for the appellant failed to point out any illegality, infirmity or jurisdictional error in the impugned order. 19. The appeal is, accordingly, dismissed in limine. 20. In the circumstances, the court below was justified in rejecting the application. 18. The learned counsel for the appellant failed to point out any illegality, infirmity or jurisdictional error in the impugned order. 19. The appeal is, accordingly, dismissed in limine. 20. No cost.