A.N.Gupta, J. - (1.) SMT. Jeroo Ratar Sapurjee, who was residing at 39, Canton ment Road, Lucknow, died issueless on May 14, 1992. Her husband had pre-deceased her. She was a Parsee and did not leave behind any legal heir. According to the petitioner she executed a will in his favour on 24-1-1992, bequeathing to him the bun galow at 39, Cantonment Road, Lucknow. In the will, it was mentioned that it was the last will and no reference was made to any previous will said to have been executed by SMT. Sapurjee.
(2.) THE petitioner moved art application under Section 276 of the Indian Succession Act, 1925 for obtaining letters of ad ministration before the District Judge, Lucknow who transferred it to the Court of XIIIth Additional District Judge. Some how, the opposite party No. 2 got a scient ..... of the said application move by the petitioner under Section 276 of the Indian Succession Act and moved an application for impleading him as a party to the proceedings. In that application, he con tended that Smt. Sapurjee had executed a registered will dated 24-1-1992 in his favour. Against that application of the opposite party No. 2, the petitioner filed objection, mainly raising two pleas. Firstly it was con tended that under the provisions of Indian Succession Act and Central Rules (Civil), the opposite party No. 2 could not be impleaded as a party to the proceedings launched by the petitioner under Section 276 of the Indian Succession Act but his remedy lay in lodging a caveat. THE second objection taken was that the opposite party No. 2 cannot be permitted to prove his will or to set up a will in his own favour by way of objection to the application of the petitioner for obtaining letters of ad ministration. THE learned XIIIth Addition al District Judge, by means of the impugned order dated 21- 11-1995, allowed the application of the opposite party No. 2 direct ing the petitioner to implead him as a party to the proceedings against which the petitioner has approached this court under Article 226 of the Constitution of India. Sections 284 and 285 of the Indian Succession Act provide that caveat against grant of letters of administration may be lodged with the District Judge and a Form of lodging of caveat has also been prescribed in Schedule-V. Section 285 lays down that after caveat has been entered by the District Judge, no proceedings shall be taken on the petition until after notice to the caveator. Rule 472 under Chapter XVIII of the General Rules (Civil) lays down that the application for obtaining letters of ad ministration with will annexed thereto shall be moved in Form. No. 151. Rule 500 provides that any person intending to op pose the grant of letters of administration must either personally or by his pleader file a caveat in the Court in Form No. 164 about which notice shall be given by the Court to the petitioner. According to Rule 501, the caveator has to file an affidavit in support of his caveat. It further lays down that, along with affidavit, an objection supported by an affidavit shall be filed within fourteen days of the caveat being lodged. Under Rule 504, after affidavit in support of caveat has been filed, the proceedings shall be numbered as a suit in which the petitioner for obtaining letters of administration shall be the plain tiff and the caveator shall be the defendant, the petition for letters of administration shall be registered as a suit and deemed a plaint filed against the caveator, and the objection filed by the caveator being treated as his written statement in the suit. It also prescribes that the procedure in such suit shall, as nearly as may be, be according to the provisions of the Code of Civil Proce dure. This Rule 504 is based on the provisions as contained in Section 295 of the Indian Succession Act. It was urged by the learned counsel for the petitioner that the only remedy of the opposite party No. 2 was to file a caveat and an objection and he could not be impleaded as a party to the proceedings as has been done by the lower court. This conten tion cannot be said to be without substance because, as pointed out above, the provisions of the Indian Succession Act and the General Rules (Civil) clearly make out that a person intending to file objection against an application for letters of ad ministration with will annexed thereto has a right to lodge a caveat and has to file objec tion along with an affidavit. Since the op posite party No. 2 is objecting to the grant of letters of administration to the petitioner and as the stage for lodging the caveat has passed, now the only course open is to quash the impugned order dated 21-11-1995 passed by the learned trial court, direct the opposite party No. 2 to file objection and affidavit and thereafter to direct the Court to follow the procedure as laid down under the relevant provisions of the General Rules (Civil) and the Indian Succession Act.
(3.) SO far as the second plea of the petitioner that in his objection to the ap plication of the petitioner for obtaining let ters of administration, the opposite party No. 2 cannot be permitted to set up a will in his own favour, is concerned, it will not be proper at this stage for this Court to enter upon the merits of this plea which has to be decided first by the learned trial court, if such an objection is raised before it by the petitioner. In view of the above the impugned order dated 21-11-1995, passed by the XIIIth Additional District Judge, Lucknow in Misc. Case No. 326 of 1992, is hereby quashed. It is directed that the opposite party No. 2 shall be treated as a caveator first. He is directed to file his objections supported with an affidavit within fourteen days from today before the Court below. It is also directed that the trial Court shall proceed in the matter in accordance with the provisions of the General Rules (Civil) and the Indian Succession Act regarding which a reference has already been men tioned in this order.;