MOTICHAND HORKHCHAND SHAH Vs. DHANLAXMI NYALCHAND SHAH SMT
LAWS(GJH)-1979-7-32
HIGH COURT OF GUJARAT
Decided on July 23,1979

MOTICHAND HARAKHCHAND SHAH Appellant
VERSUS
DHANLAXMI NYALCHAND SHAH Respondents

JUDGEMENT

N.H.BHATT - (1.) This is a petition by one opponent in the Civil Misc Application No. 281 of 1973 in the court of the Civil Judge (S.D.) Rajkot. The said application was originally filed by one Nyalchand Shah praying for Letters of Administration of the estate of one deceased Maniben his mother with the copy of the will annexed. The allegation of said Nyalchand in the application was that his mothers executor under the will had declined to accept the office and therefore he was required to file an application for Letters of Administration with the copy of the will annexed. During the pendency of the said application Nyalchand Shah died and the present respondents claiming to be the heirs and legal representatives of said Nyalchand Shah made an application purporting to be one under Order 22 of the Civil Procedure Code. The present applicant the original opponent in the Misc. Application objected to the same but the learned Judge granted that prayer and hence the applicant has moved this High Court in revision challenging the action of the learned trial Judge.
(2.) The objection raised by Mr. Hathi for the applicant is very well- founded. The Letters of Administration are issued by the court in the ex- ercise of its testamentary jurisdiction. Whoever is granted such Letters is granted the same because of the confidence the court reposes in him. The court is considered to be the ultimate custodian of all peoples interests and all the more so of the persons who have departed from this world. For aught we know the credentials of Nyalchand Shah might be there but Nyalchands heirs and legal representatives cannot necessarily bank on those credentials. of Nyalchand. To put it techinically the right to present and prosecute such an application is the personal right of the person concerned. He moves the court for an order in his personal favour and the moment such a person dies the cause of action as far as he is concerned has gone for good.
(3.) The learned trial Judge however placed reliance on the judgment of this High Court in the case of Jadeja Pravinsinhji Anandsinhji v. Jadeja Mangalsinghji Shivsinhji & Ors. A.I.R. 1963 Guj. 32. In that case the or- iginal claimant for probate had died. Certain other persons wanted not a probate but Letters of Administration in view of the changed circumstances. The court granted their prayer not in their capacity as heirs and legal representatives but in their individual right as legatees under the proved will. This is distinct from recognising the right of some persons to proseCute such an application in their capacity as the heirs and legal representatives. On the above short ground I allow this application by setting aside the impugned order. Rule is accordingly made absolute with no order as to costs. It is clarified that it is open to the respondents to file a fresh application for Letters of Administration or to take any other sUitable measures to vindicate their rights if any. Application allowed.;


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