- (1.) This is to consider an application filed by Smt. Chandrakala Agarwalla, Dipak Agarwalla, Sandip Agarwalla and Smt. Nina Jhunjhunwala for an order that the Testamentary Suit Nos. 3 of 1999 has since abated or alternatively be dismissed on the ground of non-payment of ad valorem Court-fees. There is another alternative prayer for an order that if the suit is not dismissed, the death of Santosh Kumar Agarwalla, predecessor-in-interest of the petitioners be recorded and the petitioners be substituted as defendants in place of Santosh Kumar Agarwalla. It is stated further that on December 23, 1997, the application being P.L.A. No. 295 of 1997 was filed by Arun Kumar Jhunjhunwala for grant of probate on the strength of the alleged Will dated 9th July, 1987 executed by the deceased Bhagwati Prasad Agarwalla. Bhagawati died leaving two sons namely Santosh Kumar and Prem Kumar and the purported Will is in favour of Prem Kumar to the exclusion of his other son Santosh Kumar (for the sake of brevity the surname is not being mentioned). Santosh Kumar filed a caveat in the said application on 28.4.1988 and in support of that an affidavit was filed on 7.9.1998. Accordingly, the P.L.A. No. 295 of 1997 became contentious and turned to be T. S. No. 3 of 1999. Santosh Kumar, a Hindu governed by Mitaksara School of Hindu Law died intestate on 27th April, 2002. The Solicitor M/s. Meharia & Company informed the death of Santosh Kumar to the Solicitor and Advocate Mr. R. L. Gaggar of the plaintiff. No reply was received by the petitioner's Solicitor from the plaintiff or from his Advocate-on-Record nor did the plaintiff take any step for substitution of heirs of Santosh Kumar in the record of the suit. On August 12, 2002, the plaintiff filed an application for cancellation of the affidavit in support of caveat affirmed by Santosh Kumar which was disposed of by order dated January 3, 2003. Thereafter the suit never appeared to the daily list of any Bench of this Court. It is stated further that the present petitioners are the legal heirs of the deceased Santosh Kumar and as such they have the right to oppose grant of probate of the alleged Will. It is alleged further that the plaintiff has knowingly not taken any step for substitution of the legal representatives of the deceased Santosh Kumar within the time as prescribed by law and as such the present suit having been abated should be dismissed. It is also stated that in the absence of any proof for payment of ad valorem Court-fees the suit is also liable to be dismissed.
(2.) The petition has been contested by the plaintiff by filing an affidavit-in-opposition in which the material allegations are denied and it is inter alia stated that with the death of Santosh Kumar, caveator, the said caveat automatically stands discharged and as such his Solicitor M/s. Meharia & Company ceased to have any power or authority to proceed with the matter. It is further stated that accordingly the purported letters dated 17th July, 2002 and 19th July, 2002 are without any authority. It is also denied that the petitioners are the legal representatives of the deceased Santosh Kumar.
(3.) Affidavit-in-reply was also filed on behalf of the petitioners.;