F.A.O No.3801 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O No.3801 of 2009 Date of Decision: 05.11.2009 Rajwinder Singh Sandhu & Ors. ....Appellants Versus General Public ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. R.S. Rai, Sr. Advocate with Ms. Meenakshi, Advocate for the appellants. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The appellants have prayed for issuance of probate under Section 276 of the Indian Succession Act, 1925, on the basis of registered Will dated 25-03-1997, in respect of movable and immovable properties, in their favour. Notice of the petition was served upon the general public through publication. Petitioner no.3-Deepinder Singh Sandhu, filed written statement being respondent No.2. Ex-parte evidence was recorded. Schedule of the properties Exhibit P-3 was also placed on record. The attesting witness of the Will was also examined. From the reading of the Order dated 17.11.2008, it appears that the Will was not contested and the entire evidence, both formal and informal was led. The Additional District F.A.O No.3801 of 2009 2 Judge, Chandigarh, vide Order dated 17.11.2008, however, dismissed the petition on the grounds that; (a) The petitioners have not mentioned the valuation of the assets, as prescribed in Schedule II of the Court Fees Act, 1980. (b) The Court Fees has not been paid with regard to the said assets. (c) There is no executor of the Will. While challenging the impugned order, learned counsel for the appellant submitted that the “Probate Court” has not granted them the opportunity to comply with the provisions of Third Schedule under Section 19-1 of the Court Fees Act, 1870 and those of Article 11 of the First Schedule and relied on the judgment of Delhi High Court, in the case titled as Mrs. Sham Piari Nayyar vs. The State reported as 2001(4) RCR (Civil) 375, to substantiate that Letter of administration of the Will was granted and the valuation report, filed by the petitioner, was ordered to be accepted, thereafter. It is further stated that no opportunity to place the valuation report has been granted. It is apparent from the above that the petition has been dismissed on technical grounds and not on merits. There may have been some substance in the dismissal of the probate petition on the basis of technicalities, in case the same was dismissed at the first instance, as a preliminary objection. In the facts of the present case, the entire evidence has been led. Notice in the application has also been served upon the General Public. General Public was proceeded against ex-parte. Issues were framed. Petitioner no.3 filed reply as respondent No.2. Vide Order dated 11-01-2008, Deepinder Singh, filed written statement as respondent No.2. Thereafter, he was re-transposed as petitioner No.3 from respondent No.2. Ex-parte evidence was led. The petitioner-Rajwinder Singh Sandhu, stepped into the witness box as PW-1. Schedule of the properties P-3 was F.A.O No.3801 of 2009 3 placed on record. Petitioner no.2-Hardarshan Pal Sandhu, appeared as PW-2. Petitioner no.3-Tejinder Singh, appeared as PW-3. Chandi Parshad, Advocate, who was the attesting witness, appeared as PW-4. Registration clerk was also examined. Thereafter, the probate case, which was filed, way back on 28-08-2004, was finally dismissed on 17-11-2008, on the technicalities, as mentioned above. In view of the above facts, the dismissal of the same on technical grounds, cannot be sustained. The technicalities, as pointed out, are not those, which cannot be rectified. Section 149 and Section 151 of the Civil Procedure Code, 1908 reads as under :- “149. Power to make up deficiency of Court-fees- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.” Section 151 of the Code of Civil Procedure reads as under :- “ Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.” A perusal of Section 149 of the C.P.C., makes it clear that if the Court fee due on plaint when instituted is not paid wholly or partly by the person instituting the same, the Court in its discretion can allow him to pay the Court fee or deficit court fee. Thus, in view of the provision under Section 149 of the C.P.C., the time to pay the said Court fee can be F.A.O No.3801 of 2009 4 extended and is within the discretion of the Court. The present case is a case of a probate of Will. The entire evidence has been led, it is apparent that the Will is not contested. Thus, the right and claim of the appellants cannot be defeated on a mere technicality. It is also evident from the Order dated 17-11-2008 that the Schedule of the properties was placed on record as P-3. The Court has the power to allow the petitioner to make good deficit in the Court fee under Section 149 of the C.P.C. Thus, in the facts of the present case, in order to pronote the ends of justice, there is no reason as to why the valuation report cannot be called for in order to enable the appellants to file the necessary Court fee by invoking the power under Sections 149 and 151 of the C.P.C. Taking up the third technical objection that as per Section 222 of the Indian Succession Act, 1925, a probate can only be granted to an executor appointed by the Will, learned counsel for the appellants submitted that the appellants should have been allowed to convert the probate petition and the proceedings should have been converted for grant of the Letters of administration under Section 232 of the Act. Section 232 of the Indian Succession Act, 1925, reads as under :- “232. Grant of administration of universal or residuary legatees.-When- (a) the deceased has made a Will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c) the executor dies after having proved the Will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the F.A.O No.3801 of 2009 5 whole estate, or of so much thereof as may be unadministered.” From the perusal of Section 232 of the Indian Succession Act, 1925, it is evident that in case, no Executor of the Will is appointed, then letter of Administration can be granted. However, it is also apparent that no application was moved by the appellants before the Court to convert the proceedings of probate into that of grant of letter of Administration under Section 232 of the Indian Succession Act, 1925. In view of the above and in the interest of justice, the Order dated 17-11-2008 passed by the Additional District Judge, Chandigarh, is set aside and the matter is remanded back to decide the same on merits with the following directions :- (a) The appellants be granted opportunity to submit valuation report of the assets. (b) The appellants are permitted to deposit the Court fee on the basis of the valuation report as finally accepted by the Court. The above directions are subject to the acceptance of an appropriate application filed by the appellants for converting the present proceedings to grant of letter of Administration under Section 232 of the Indian Succession Act, 1925, which shall be considered in accordance with law if filed within one month of the receipt of the Order. The parties or their counsel shall appear before the Additional District Judge, Chandigarh, on 23-12-2007. (NIRMALJIT KAUR) 05.11.2009 JUDGE gurpreet