Sca No. 9223 of 2008 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/07/2008 ORAL JUDGMENT

Rule. Mr.H.M.Prachchhak, learned advocate waives service of Rule on behalf of respondent- original applicant. With the consent of learned SCA/9223/2008 JUDGMENT advocates appearing for the respective parties, the petition is taken up for final hearing today.

By way of this petition under Article 227 of the Constitution of India, the petitioner-original opponent has prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 30.4.2008 passed below Exh.34 passed by the learned Principal Senior Civil Judge, Rajkot in Civil Misc. Application No.482 of 2003 pending in the Court of learned Civil Judge, Senior Division, Rajkot.

Respondent herein had filed Civil Misc. Application No.482 of 2003 under the Indian Succession Act in the Court of learned Civil Judge (S.D.), Rajkot, inter-alia, praying for grant of letters of administration for lost will and at the relevant time she submitted that the original will has been lost. It appears that the respondent also filed affidavit at Exh.24 in the said application and by way of deposition she submitted that she has no original will in her custody. It appears that subsequently the original will was found by the SCA/9223/2008 JUDGMENT respondent-original applicant. She filed another application that original will is produced at Mark 11/1 and the same was not on hand at the time when the application was filed. As the petitioner was also of the opinion that there are separate provisions under the Indian Succession Act for grant of letters of administration with lost will and grant of letters of administration with original will annexed and as the original will is available, the respondent-original applicant has to file fresh application for grant of letters of administration of original will annexed and therefore the petitioner submitted application Exh.34 in the aforesaid application which came to be dismissed by the trial court by impugned order dated 30.4.2008. Being aggrieved and dissatisfied with the impugned order dated 30.4.2008 passed below Exh.34 in aforesaid Civil Misc. Application No.482 of 2003, the petitioner has preferred the present petition under Article 227 of the Constitution of India. SCA/9223/2008 JUDGMENT

Shri Vimal Patel, learned advocate appearing on behalf of the petitioner has vehemently submitted that initially when the application was submitted for letters of administration, it was on the basis of lost will, but subsequently the original will has been produced and there are separate provisions under the Indian Succession Act for grant of letters of administration with lost will and grant of letters of administration of original will annexed and there might be different procedure and therefore the original applicant would be required to file fresh application under separate provisions of grant of letters of administration with original will annexed and therefore it is submitted that the trial court has materially erred in rejecting the application Exh.34.

Petition is opposed by Shri H.M.Prachchhak, learned advocate appearing on behalf of the respondent-original applicant. It is submitted that it is not the case of the petitioner that application for letters of administration is not maintainable at all and it will be too technical now to reject the SCA/9223/2008 JUDGMENT application submitted by the applicant and to file fresh application which otherwise is maintainable. Therefore, it is submitted that to avoid multiplicity of the proceedings and when the trial court rejected the application, the same is not required to be interfered with in exercise of powers under Article 227 of the Constitution of India.

Heard the learned advocates appearing on behalf of the respective parties.

It is true that initially when Civil Misc. Application No.482 of 2003 was filed by the respondent herein, it was on the basis that the will is lost. Under the provisions of the Indian Succession Act, such an application praying for letters of administration of lost will is maintainable, but during the pendency of the aforesaid application, the original will came to be found. It is true that there is a separate provisions for filing application for letters of administration with original will annexed but that hardly matters when during the pendency of the proceedings for SCA/9223/2008 JUDGMENT letters of administration lost will is found out and in that circumstances to direct the original applicant to withdraw the application which is already filed and to file a fresh application would be too technical and it will lead to multiplicity of proceedings. Under the circumstances, the impugned order is not required to be interfered with by this Court under Article 227 of the Constitution of India. However, it is observed that it will be open for both the parties to take all contentions which are available to them under the law, and as and when such contentions are raised, the same shall be considered by the trial court in accordance with law and on merits.