Mrs. Sneh Bahl & Ors. vs State And Anr.
2009 Latest Caselaw 4998 Del

     *          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Date of Reserve: November 24, 2009
                                                         Date of Order: December 04, 2009
+IA 15149 of 2009 in Test Cas 97 of 2008
%                                                                      04.12.2009
      Mrs. Sneh Bahl & Ors.                                   ...Petitioners
      Through: Mr.Jagjit Singh and Mr. Manav Bajaj, Advocates

         Versus

         State and Anr.                                               ...Respondents
         Through: Ms. Purnima Maheshwari, Advocate for R-1

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment? Yes.

2.       To be referred to the reporter or not?                                      Yes.

3.       Whether judgment should be reported in Digest?                              Yes.


         ORDER

1. This application under Order 6 Rule 17 CPC has been made by the petitioner

seeking amendment in the probate petition. It is submitted by counsel for petitioner that

the petitioner filed this petition for grant of probate of the Will of deceased Shri P.N.

Kanwar. However, a perusal of the Will would show that the deceased had not appointed

any executor of the Will and under these circumstances instead of probate, a letter of

administration is normally granted by the Court. He, therefore, wants to amend the title of

the petition from probate petition to petition for grant of letter of administration and wants

to make corresponding changes in paragraph 15 and prayer clause.

2. The application is opposed by the objector on the ground that a probate petition

cannot be converted into a petition for letter of administration. The objector relied upon

Bihari Lal Mahton Tetak Gayawal v Ganga Dai Tatkain and others AIR 1917 Patna 209.

A perusal of above case relied upon by the objector would show that in the above case,

the deceased in his Will had nominated six persons as executors and the Court,

therefore, observed that in case the appellant wishes to compel them to take out probate

Test Cas 97 of 2008 Mrs. Sneh Bahl & Ors. vs. State & Anr. Page 1 Of 2 or to recues probate, a specific procedure was prescribed by the Probate Act and he

may make an application to the Court below accordingly. However, the Court did not

agree to the suggestion that the probate petition be converted to a petition for letter of

administration because none of the executor had come forward for execution. In my view

this judgment is of no help to the objector. The petitioner per contract relied upon

Soundararaja Peter Chellaih & Ors. v Florance Chellaih and others AIR 1975 Madras

194 wherein the Court observed that even in a petition filed for probate where no

executor had been named, the Court instead of granting probate should grant letter of

administration of the Will annexed with it, to the legatee.

3. I consider that the application filed by the petitioner does not change either the

character of the petition or the basis of the petition. The petitioner inadvertently sought

probate of the Will whereas he should have sought letter of administration. This is a

mere technical amendment being sought by the petitioner and cannot be refused on

account of frivolous objections raised by the objector.

4. I, therefore, allow this application. The amended petition if not already filed be

filed within 15 days from today.

5. The application stands disposed of.

Test Cas 97 of 2008

List this matter before the Joint Registrar for completing evidence on 18 th

January, 2010.

December 04, 2009                                        SHIV NARAYAN DHINGRA J.
rd




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