SADASSHIVRAO RAGHUNATHRAO GANDEKAR Vs. ANANDRAO RAGHUNATHRAO GANDEKAR
LAWS(BOM)-1972-9-4
HIGH COURT OF BOMBAY
Decided on September 21,1972

SADASSHIVRAO RAGHUNATHRAO GANDEKAR Appellant
VERSUS
ANANDRAO RAGHUNATHRAO GANDEKAR Respondents

JUDGEMENT

- (1.) THE appellant and the respondents are brothers and are the sons of Sir Raghunathrao Shankarrao Gandekar, the former Raja of Bhor. The appellant had filed an application in the District Court at Poona being Misc. Application No. 310 of 1963 for Letters of Administration to the estate of the said deceased Raja of Bhor. This application was dismissed for default on 11th January 1967. Thereafter, on 25th March 1967 the appellant filed another application being Miscellaneous Application No. 116 of 1967 in the same Court. By this application the appellant applied for Letters of Administration in respect of the property of the said Raja of Bhor mentioned in the Schedule annexed to the application, and in the alternative prayed that if the said application was held to be not maintainable, then the original application No. 310 of 1963 should be restored to the file and the delay in making the application for restoration should be condoned. This application was transferred for hearing to the Court of the learned Civil Judge, Senior Division, Poona and renumbered as Miscellaneous Application No. 285 of 1967.
(2.) THE learned Civil Judge held that this application, being a second application for Letters of Administration, and the first application No. 310 of 1963 having been dismissed for default, was barred under the provisions Order 9, Rule 9 of the Civil Procedure code, 1908. He further held that as far as the alternative prayer for restoration of the Miscellaneous Application No. 310 of 1963 was concerned, the same was liable to be rejected as no satisfactory reason was shown by the appellant for default of appearance at the time when that application was dismissed and as the application for restoration was beyond time by thirty days. It is against this order that the appellant has come in appeal.
(3.) THE main contention of Mr. Adik, who appeared for the appellant, was that the learned Civil Judge was in error in holding that the provisions of Order 9, Rule 9. Civil P. C. were applicable to an application for grant of Letters of Administration. It was his submission that even if such an application was dismissed for default without disposal on merits, it was always open for the appellant to file a fresh application for grant of Letters of Administration and the provisions fo Order 9, Rule 9, Civil P. C. had no application to such an application. Mr. Adik has drawn my attention to the decision of a Division Bench of the Patna High Court in Gorakh Ahir v. Jamuna Ahir, AIR 1943 Pat 281 in which it has been held that the provisions of Order 9, Rule 9, Civil P. C. cannot be applied to the case of an application for grant of probate of a Will. The Division Bench of the Patna High Court in this decision has relied upon the decision in Ramai Devi v. Kumud Bandhu, (1910) 12 Cal LJ 185 = 14 Cal WN 924 where it has been held that the dismissal for default of an application for probate does not amount in law to an adjudication upon the question of the genuine character and legal validity of the Will and, there, such a dismissal cannot debar a second application for probate by an executor or by any other person, for instance, a legatee claiming an interest under the Will. In that case, the section under consideration was Section 103 of the Civil P. C. of 1882, the provisions of which are in pari materia with the provisions of Order 9, Rule 9 of the Civil P. C. 1908. As pointed out in that case, it has to be borne in mind that the provisions of the Code of Civil Procedure are applicable to probate proceedings only in so far as the circumstances of the case admit. The judgment in a probate proceeding operates as a judgment in rem unlike a decision in an ordinary suit which operates inter parities. In my view, it would not be proper to apply the provisions of Order 9, Rule 9, Civil P. C. which are intended to apply to suits for enforcement of causes of action, to applications for probate or Letters of Administration. In Surjya Kumar v. Jaynarayan, AIR 1926 Cal 1057, a Division Bench of the Calcutta High Court has taken the view that the dismissal fo a prior application for probate without trial fo the question of genuineness or validity of the will is not a decision binding for all purposes and that Order 9, Rule 9, Civil P. C. does not apply to such cases.;


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