Kalyan Jyoti Sengupta, J. - (1.) The Judgment of the Court was as follows:- The above application has been filed on Notice of Motion dated 18th March, 2009 by one Sushila Devi Lodha, Aditya Vikram Lodha, Harsh Vardhan Lodha praying for following reliefs: (a) Death of Rajendra Singh Lodha, the plaintiff, be recorded ; (b) The petitioners be brought on record as plaintiffs in T.S. No. 6 of 2004 and be allowed to continue with T.S. No. 6 of 2004. (c) Amendment as proposed in 'red' on a copy of the plaint in T.S. No. 6 of 2004 annexed hereto and marked with the letter "X" be allowed. (d) Harsh Vardhan Lodha on behalf of the petitioners be given liberty to re-verify the plaint in T.S. No. 6 of 2004 after the amendment is carried out and the Department to take necessary steps on the basis of the order that may be passed herein. (e) Leave be granted to the petitioners to serve a copy of the amended plaint on the Advocates of the defendants appearing in the Suit. (f) Dispensation with service of amended plaint personally on the defendants in the suit.
(2.) The said application was being opposed by filing affidavits by the defendants in the aforesaid testamentary suit, affirmed by one Arvind Kumar Newar and one Devendra Kumar Mantri. The said Testamentary Suit came to be registered on an application being made by one Rajendra Singh Lodha since deceased (hereinafter referred to as the deceased Lodha) for grant of probate to a Testamentary Instrument dated 18th April 1999, said to be the last Will of one Priyamvada Devi Birla. The said application was made by deceased Lodha for the grant as aforesaid in the capacity of the sole Executor. Several persons including Krishna Kumar Birla, Basant Kumar Birla, Ganga Prasad Birla, Yashovardhan Birla, Radha Devi Mohta and Laxmi Devi Newar (since deceased), defendant No. 2 and predecessor-in-interest of the defendant No. 1 (a) to (d) lodged caveat intending to oppose the said grant. On application being made by the said deceased Lodha, the caveats lodged by Krishna Kumar Birla, Basanta Kumar Birla, Yashovardhan Birla were discharged and caveat lodged by Ganga Prasad Birla was retained. Thereafter affidavits in support of Caveats having been filed the said application for grant of probate was registered as a regular Testamentary Suit. The said propounder/plaintiff Lodha died intestate leaving him surviving the aforesaid applicants. The instant application was being opposed strenuously contending that the said testamentary suit has abated on the death of the sole Executor of the said deceased Lodha as the right to sue does not and cannot survive. On the other hand it was contended by the applicants the right to sue in a Testamentary Suit does survive for a testamentary suit seeks to establish genuineness of the will nor the relief asked for. A large number of decisions were cited by learned Counsels of both the sides. For a good number of days the matter was heard and hearing concluded. Immediately after conclusion of the hearing and before the judgment was prepared an application being G.A. No. 3465 of 2009 had been filed by one Ajay Kumar Newar, Arvind Kumar Newar and Nand Gopal Khaitan defendant Nos. 1 (a), (b) and (c) praying for following reliefs : (a) Prayers in G.A. No. 3434 of 2008 made by Harsh Vardhan Lodha and other be granted and they may be allowed to proceed with the application for appointment of administrator pendente lite, being G.A. No. 3731 of 2008 without prejudice to the petitioners' contentions stated in paragraph 18 hereinabove ; (b) Leave be granted to the petitioners to file an additional written statement in T.S. No. 6 of 2004 after re-verified amended plaint is served on them ; (c) The locus standi of the heirs of Rajendra Singh Lodha to apply for grant of Letters of Administration with a copy of will annexed be tried as a preliminary issue at the suit. Thereafter on 23rd December 2009 the defendant Nos. 1(d) and 2 made application separately praying identical reliefs.
(3.) It is clear from the aforesaid prayers all the defendants have really conceded to the prayer made by the applicants in G.A. No. 3434 of 2008. It has to be examined in view of the concession above made by the defendants whether the payers made by Lodhas should be allowed automatically or not. It is settled law the concession made on fact can always be accepted by the Court to act upon further treating the same as being admission under law. Concession cannot be determinative factor for deciding a legal issue.;