- (1.) SUDHIR Narain, J. This is an ap plication for deletion of the name of Sri Hamendra Swaroop Bhatnagar, the plain tiff and substitute the name of M. S. Bhat nagar in his place and there is another application with the similar prayer but there is a further prayer to substitute the name of Satyendra Kumar Bhatnagar also in addition to M. S. Bhatnagar.
(2.) BRIEFLY stated, the facts are, that Jyoti Swarup Bhatnagar had no issue. He had one brother Har Swarup Bhatnagar. Har Swarup Bhatnagar expired in the year 1923 leaving behind him five sons namely Gyan Swarup Bhatnagar, Sachida Nand Bhatnagar, Brahm Swarup Bhatnagar, Brijendra Swarup Bhatnagar and Hamendra Swarup Bhatnagar. Hamendra Swarup Bhatnagar filed testamentary peti tion No. 13 of 1984 for grant of probate/let ters of administration in the matter of goods and property of deceased Jyoti Swarup Bhatnagar on the allegation that he had executed a Will on 22-4-1920 which provided that till the life-time of Har Swarup he will administer the property of Sri Jyoti Swarup Bhatnagar in accordance with the testament dated 22-4-1920 and after his death, the property shall be ad ministered by the sons of Sri Har Swarup Bhatnagar. Har Swarup Bhatnagar expired in the year 1923 and out of his five sons except the petitioner Hamendra Swarup Bhatnagar, all expired and thus he claimed that he was only surviving ex ecutor of the Will of deceased Jyoti Swarup Bhatnagar. On his petition, the notices were issued and on an object ion being filed by the contesting opposite party, it was treated as contentious and registered as testamentary Suit No. 6 of 1994. Before the Will could be proved, the petitioner Hamendra Swarup Bhatnagar ex pired on 14-6-1999. An application was filed by M,s. Bhatnagar son of Brijendra Swarup Bhatnagar that he may be permitted to be substituted. Another application has been filed by Satyendra Kumar, one of the sons of the petitioner Hamendra Swarup with the prayer that he may be substituted alongwith M. S. Bhatnagar. The opposite party, Ajai Kumar has filed objection to the application for substitution. The core question is whether after the death of the petitioner in a testamen tary suit his heir or any other person is entitled to be substituted in his place and if so, who shall be entitled to be substituted or in other words, to continue the proceed ings for grant of probate/letters of ad ministration under the provisions of In dian Succession Act 1925 (in short "the Act" ). The probate is granted only to an executor appointed by the Will as provided under Section 222 of the Act. In case the executor has not been appointed the let ters of administration is to be granted to an universal or residuary legatee under Sec tion 232 of the Act. In case the person who had applied for probate/letters of ad ministration dies, there are two courses open either the proceedings be dropped or permitted to be continued by a person who shall otherwise be entitled for probate/let ters of administration.
(3.) WHERE any suit is filed in the Civil Court, on the death of the plaintiff the suit shall not abate if the right to sue survives. On the death of the plaintiff the Court can (sic) representative of the deceased (sic) Order 22, Rule 3 of the Code of Civil Procedure. Similarly, if the defendant dies, his legal representatives can be substituted under Rule 4 of Order XX, C. P. C The Code of Civil Procedure was amended in 1976 and Order IV-A was added which provides that if, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the ap plication of any party to the suit, proceed in absence of the person representing the estate of the deceased person, or may by order appoint the administrator general, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the pur pose of the suit. There is a difference between the proceedings of a suit and that of proceed ings for the grant of probate/letters of ad ministration. On the death of the plaintiff the Court allowed the application for sub stitution. The Court on an application of the legal representative of the deceased-plaintiff shall make him a party in the suit if the right to sue survive. The Court has to examine whether such an applicant is en titled to be substituted in relation to the cause of action in the suit and the relief claimed. A petition for probate/letters of administration is filed on the allegation that the petitioner is entitled to probate or letters of administration under the provisions of the Act. One view is that the right to claim probate/letters of ad ministration is personal and on the death of the petitioner the right to obtain probate/letters of administration does not devolve on his heir. In one case, the suit is decreed on the basis of the relief claimed in the suit but in the other case probate/letters of administration is granted under the provisions of the Indian Succession Act. But in that respect he has to establish that he is entitled to such grant being an ex ecutor universal or residuary legatee under the Will.;