High Court · 2025

10.09.1997 passed by the First Additional Civil Judge (Senior Division) acting as First Appellate Court under Section 96 CPC, whereby upon the death of the original tenure holder namely Smt. Kaushalya, two separate applications came to be filed seeking substitution. One on behalf of the present petitioner, who claimed rights in the estate of the deceased Smt. Kaushalya on the basis of a registered Will dated 12.04.1988, and the other application came to be filed by the private respondent No. 4 Smt. Ragurai, who claimed to be the real sister of the deceased.

3. Objections were filed by the contesting parties claiming their respective rights and the same came to be decided by means of the impugned order dated 10.09.1997 and the court while rejecting the application of the petitioner held that since the petitioner was claiming rights on the basis of a registered Will hence until a probate is obtained, his application could not be considered. It further went on to hold that insofar as the status of Raghurai is concerned, admittedly she was the real sister of the deceased- Smt. Kaushalya and therefore, the application on behalf of Raghurai was allowed. Being aggrieved by the said order, the petitioner has approached this Court by means of this petition.

4. The submission of learned counsel for the petitioner is that once there were two conflicting applications seeking substitution on behalf of the deceased appellant, in such circumstances, the court could have taken recourse to the Proviso as provided under Order 22 Rule 5 of CPC. It is further urged that it was absolutely incorrect on the part of the Lower Appellate Court rejecting the application on the ground that probate was necessary. It is further submitted that in the State of Uttar Pradesh, there is no requirement of probate and in any case, the application of the petitioner could not have been dismissed for want of probate and the order impugned is apparently in conflict with the intent of Order 22 Rule 5 of CPC and as such the same is liable to be set aside as it imposes an unreasonable restriction on the petition which is arbitrary and against the law.

5. Sri Vinit Kumar Srivastava, learned counsel for the private respondent submits that since two separate applications were filed, one claimed rights on the basis of a registered Will and the other on the basis of succession, then, the petitioner ought to have first proved the Will and not having done that, he was not entitled to seek his substitution. It is urged that even though the submission of the learned counsel for the petitioner is accepted that the probate is not necessary but nevertheless the Will ought to have been proved in terms of Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act and in that context, since no evidence was forthcoming at the behest of the petitioner, consequently, the respondent admittedly being the sister of the deceased has rightly been impleaded and in such circumstances, the order cannot be interfered with, thus, the present petition deserves to be dismissed.

6. The Court has considered the submissions of learned counsel for the parties and also perused the material available on record.

7. At the outset, it may be noted that a Division Bench of this Court in Smt. Bimla Gaindher Vs. Smt. Usha Gaindher And Anr AIR 2004 ALL 329 has held that probate in the State of Uttar Pradesh is not compulsory, thus the premise upon which the impugned order has been passed is completely against the law.

8. Moreover, even before insisting that a probate was required, at least the court concerned ought to have considered the provision relating to probate under Section 213 and 222 of the Indian Succession Act and in any case the same were not applicable, then the Trial Court could not have insisted on the petitioner to have sought probate.

9. Since the application of the petitioner was not considered in the correct perspective, hence, the petitioner was prevented from leading evidence. Moreover, it was the duty of the court in terms of the Order 22 Rule 5 of CPC to have either taken the evidence for proving the Will by itself or could have remitted the matter to a subordinate court for taking such evidence to enable it to return a finding as to who would be the appropriate legal heir/ representative as is required to be determined in terms of the Order 22 Rule 5 of CPC.

10. Apparently, the impugned order suffers from the vice of ignorance of the relevant provisions and cannot be sustained, the impugned order dated 10.09.1997 is set aside. The proceedings shall stand restored before the First Appellate Court where the First Appellate Court shall take note of Order 22 Rule 5 of CPC and after affording a reasonable opportunity to the petitioner to lead evidence in support of his Will, shall thereafter proceed to consider and decide the issue of substitution.

11. It is also made clear that since the petition has been pending before this Court since 1997, accordingly, this Court hereby fixes 28 April 2025 for the parties to appear before the First Appellate Court who shall thereafter proceed with the matter in terms of Order 22 Rule 5 of CPC and after considering the issue of substitution shall thereafter proceed to decide the appeal as expeditiously as possible, without granting any unnecessary adjournments to either of the parties.

12. With the aforesaid observations, the petition is allowed.

13. Costs are made easy. Order Date :- 5.4.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench

10.09.1997 passed by the First Additional Civil Judge (Senior Division) acting as First Appellate Court under Section 96 CPC, whereby upon the death of the original tenure holder namely Smt. Kaushalya, two separate applications came to be filed seeking substitution. One on behalf of the present petitioner, who claimed rights in the estate of the deceased Smt. Kaushalya on the basis of a registered Will dated 12.04.1988, and the other application came to be filed by the private respondent No. 4 Smt. Ragurai, who claimed to be the real sister of the deceased.

3. Objections were filed by the contesting parties claiming their respective rights and the same came to be decided by means of the impugned order dated 10.09.1997 and the court while rejecting the application of the petitioner held that since the petitioner was claiming rights on the basis of a registered Will hence until a probate is obtained, his application could not be considered. It further went on to hold that insofar as the status of Raghurai is concerned, admittedly she was the real sister of the deceased- Smt. Kaushalya and therefore, the application on behalf of Raghurai was allowed. Being aggrieved by the said order, the petitioner has approached this Court by means of this petition.

4. The submission of learned counsel for the petitioner is that once there were two conflicting applications seeking substitution on behalf of the deceased appellant, in such circumstances, the court could have taken recourse to the Proviso as provided under Order 22 Rule 5 of CPC. It is further urged that it was absolutely incorrect on the part of the Lower Appellate Court rejecting the application on the ground that probate was necessary. It is further submitted that in the State of Uttar Pradesh, there is no requirement of probate and in any case, the application of the petitioner could not have been dismissed for want of probate and the order impugned is apparently in conflict with the intent of Order 22 Rule 5 of CPC and as such the same is liable to be set aside as it imposes an unreasonable restriction on the petition which is arbitrary and against the law.

5. Sri Vinit Kumar Srivastava, learned counsel for the private respondent submits that since two separate applications were filed, one claimed rights on the basis of a registered Will and the other on the basis of succession, then, the petitioner ought to have first proved the Will and not having done that, he was not entitled to seek his substitution. It is urged that even though the submission of the learned counsel for the petitioner is accepted that the probate is not necessary but nevertheless the Will ought to have been proved in terms of Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act and in that context, since no evidence was forthcoming at the behest of the petitioner, consequently, the respondent admittedly being the sister of the deceased has rightly been impleaded and in such circumstances, the order cannot be interfered with, thus, the present petition deserves to be dismissed.

6. The Court has considered the submissions of learned counsel for the parties and also perused the material available on record.

7. At the outset, it may be noted that a Division Bench of this Court in Smt. Bimla Gaindher Vs. Smt. Usha Gaindher And Anr AIR 2004 ALL 329 has held that probate in the State of Uttar Pradesh is not compulsory, thus the premise upon which the impugned order has been passed is completely against the law.

8. Moreover, even before insisting that a probate was required, at least the court concerned ought to have considered the provision relating to probate under Section 213 and 222 of the Indian Succession Act and in any case the same were not applicable, then the Trial Court could not have insisted on the petitioner to have sought probate.

9. Since the application of the petitioner was not considered in the correct perspective, hence, the petitioner was prevented from leading evidence. Moreover, it was the duty of the court in terms of the Order 22 Rule 5 of CPC to have either taken the evidence for proving the Will by itself or could have remitted the matter to a subordinate court for taking such evidence to enable it to return a finding as to who would be the appropriate legal heir/ representative as is required to be determined in terms of the Order 22 Rule 5 of CPC.

10. Apparently, the impugned order suffers from the vice of ignorance of the relevant provisions and cannot be sustained, the impugned order dated 10.09.1997 is set aside. The proceedings shall stand restored before the First Appellate Court where the First Appellate Court shall take note of Order 22 Rule 5 of CPC and after affording a reasonable opportunity to the petitioner to lead evidence in support of his Will, shall thereafter proceed to consider and decide the issue of substitution.

11. It is also made clear that since the petition has been pending before this Court since 1997, accordingly, this Court hereby fixes 28 April 2025 for the parties to appear before the First Appellate Court who shall thereafter proceed with the matter in terms of Order 22 Rule 5 of CPC and after considering the issue of substitution shall thereafter proceed to decide the appeal as expeditiously as possible, without granting any unnecessary adjournments to either of the parties.

12. With the aforesaid observations, the petition is allowed.

13. Costs are made easy. Order Date :- 5.4.2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench