Ahmedabad, March 30, 2022: While deciding on the question of permissibility of amendment in an application filed under CPC for obtaining probate by the successor of deceased’s property, the Gujarat High Court (Ahmedabad Bench) opined that that by virtue of Section 222 of the Indian Succession Act, 1925, Probate shall be granted only to an executor appointed by the Will and if the deceased has made a Will, but has not appointed an executor, letter of administration can be granted by virtue of Section 232(a) of the Act.
The Single Judge Ashok Kumar C. Joshi therefore observed that the trial Judge appears to have committed no error, much less an error apparent on the face of it, which requires interference at the hands of this Court under Article 227 of the Constitution of India.
The background of the case was that, the deceased mother of Mahendra Harilal Parekh and Others (petitioners – original applicants) was the owner of certain movable and immovable properties, who had executed a Will in favour of the petitioners. After the death of the mother, the petitioners become the absolute owners of the properties, and accordingly, they filed an application before the Additional Senior Civil Judge, Rajkot for obtaining the Probate of the Will, wherein the trial Judge issued public notice inviting objections against the said application.
Meenaben Hirenbhai Parekh (respondent) filed objection against issuance of Probate in favour of the petitioners. However, petitioners contended that they being beneficiaries, are required to apply for issuance of letter of administration instead of Probate and as soon as they came to know about their bona fide mistake, they preferred the application under Order 6 Rule 17 of CPC seeking amendment of Probate application, whereby, it was prayed to replace the word “Probate” by “Letter of Administration”. The said application however, came to be rejected. Hence, present petition.
After considering the submissions, Justice Joshi found that the petitioners in the present case are the executors of the Will and therefore, they are entitled to Probate.
The question in the case on hand is not related to proving of the execution of Will and the procedure thereto, but the question which goes to the root is, as to for what the petitioners are entitled for in accordance with their status in the Will, added the Single Judge.
Hence, the High Court confirmed the order passed by the Additional Senior Civil Judge, Rajkot in application filed under Order 6 Rule 17 of CPC, for amendment in Misc. Civil Application