Exhibit no. assignment

Bindeshwari Pandey vs Kari Devi And Ors. on 8 July, 1975

Equivalent citations: AIR 1976 Pat 186

Author: H Agarwal

Bench: H Agarwal

ORDER

H.L. Agarwal, J.

1. The only question falling for my consideration in this revision application by the petitioner is, whether a probate Court can grant copy of a will to an objector on his merely entering appearance in the proceeding.

2. The relevant facts are these. The petitioner has filed a petition before the District Judge, Gaya, for grant of probate of an unregistered will dated the 5th February, 1970. executed by one Sukha Kuer in his favour. The executrix was his maternal grand-mother. General as well as special citation was issued to the heirs and legal representatives of the executrix, in response whereof Opposite Party No. 1 entered appearance. On her mere appearance, the learned District Judge had earlier passed an order on 16-4-1973 for converting the proceeding into a regular title suit. Later on, on the objection of the petitioner that the probate case could not be converted into a title suit unless a caveat was filed by opposite party No. 1 and the contentions raised by her could not be disposed of in this summary proceeding, the learned District Judge by his order dated 19-1-1974 seems to have recalled the earlier order dated 16-4-1973 converting the proceeding into a title suit. There is a clear indication in Section 295 of the Indian Succession Act that in any case in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit. It is well settled that mere entering a caveat will not necessarily make it a contentious proceeding.

The objector, however, without filing a caveat applied for grant of a copy of the will in question. An objection was raised on behalf of the petitioner to the grant of the copy. The learned District Judge, however, overruling the objection of the petitioner has ordered for the grant of a copy of the will. The petitioner is challenging the said order,

3. In this connection it will be necessary to refer to certain provisions of the Indian Succession Act and also to the Rules framed by this Court, which are known as 'Civil Court Rules', for its guidance. Section 276 of the Indian Succession Act provides that application for probate or for letters of administration has to be made by annexing the will itself. Section 294 of the Act enjoins a duty upon the probate Court to preserve all original wills, of which probate or letters of administration with the will annexed may be granted by him. Under Sub-section (2) of Section 294, the State Government has to make regulations for the preservation and Inspection of the wills so filed. Under Chapter VI of Part III of the Civil Court Rules also, various rules have been framed relating to the custody and preservation of wills which indicate that a will has been treated as a very valuable document. Rule 355 which falls under Chapter I of Part IV of the Civil Court Rules dealing with rules relating to information, copies and Copying Department, provides that a defendant who has appeared in the suit is entitled at any stage to obtain copies of the record of the suit including exhibits which have been put in end finally accepted by the Court as evidence. Note 2 of this rule, however, makes it permissible for the grant of copies of documents which are produced along with the plaint or under Order XIII, Civil Procedure Code. Reading Rule 355, therefore, it is apparent that a party to a suit is not entitled to take copies of unexhibited documents, the only exception being the documents mentioned in Note 2, as contemplated under Rule 14 of Order VII of the Code.

I have already referred to the provision of Section 295 of the Indian Succession Act. By virtue of the said provision, unless and until there is any contention in a probate case, it has not to partake the form of a regular suit, according to the provisions of the Code of Civil Procedure, although the proceeding is to the regulated, as far as the circumstances of the case may permit, as indicated in Section 268 of the Act. by the Code of Civil Procedure.

4. Considering, therefore, the entire scheme of the Indian Succession Act and the rules framed by this Court with respect to the grant of copies of documents, I am inclined to take the view that the objector was not entitled to take a certified copy of the will in question until and unless he filed a caveat and the probate Court on examining the objection decided to convert the proceeding into a regular title suit. On happening of that event, the application for the grant of probate has to be deemed to be as a plaint and the petitioner a plaintiff. The will which is filed along with the application for grant of probate, will then be covered by the provisions of Rule 14 of Order VII of the Code of Civil Procedure. The will being a document annexed with the peti-! tion for grant of probate, which is converted into a title suit, the objector (defendant) will then be entitled to grant of a copy thereof by virtue of Note 2 to Rule 355 under Chapter I of Part IV of the Civil Court Rules, as already discussed above.

5. For the foregoing reasons, I will allow this application and set aside the order of the learned District Judge. In the circumstances, however, there will be no order as to costs.