- (1.) Cm No.20026-CII of 2015 Application is allowed, as prayed for. Photocopy of Annexure A-8 and typed copies of Annexures A-1 to A-7 are taken on record, subject to all just exceptions. CM No.1481-CII of 2016 & CM No.1482-CII of 2016 Applications are allowed, as prayed for. Exemption is granted from filing the certified copies of Annexurs R-4/3 to R-4/5 and the same are taken on record, subject to all just exceptions. FAO No. 6365 of 2015 This appeal has been preferred under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Succession Act') by the legal representatives of Shri Kulwant Singh Shergill, original respondent No.7, in Probate case No.RT-1/09.06.2009, titled as 'Col. Raghbir Singh Shergil Vs. General Public & others, whereby, an application under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'CPC') read with Section 151 CPC, for amendment of the written statement filed by respondent No.7, has been dismissed by the District Judge, vide order dated 14.09.2015, which is under challenge before this Court.
(2.) Upon notice having been issued to the respondents, a preliminary objection has been raised by the learned senior counsel Mr. Manmohan Singh, Advocate, appearing for respondent No.4, that the present appeal is not maintainable as the impugned order would not be appealable under the Succession Act nor would it be appealable under Order 43 Rule 1 of the CPC. He contends that under Section 299, only those orders which have been made by the District Judge by virtue of the powers conferred under the Succession Act would be subject to appeal to the High Court and not all orders which may be passed by the District Judge in any proceedings before it. In support of this contention, he places reliance upon the Division Bench judgment of the Allahabad High Court (Lucknow Bench) passed in Smt. Rajeshwari Misra & another Vs. Markandeshwar Mahadeo Trust & others, 1965 AIR(All) 211. Reliance has been placed upon the Full Bench judgment of the Gauhati High Court in Nira Kanta Chutia Vs. Smt. Bedoi Chutiani & another, 1977 AIR(Gau) 70 in support of his contention that an order passed under the CPC would only be appealable if it is covered under the provisions of Order 43 Rule 1 of the CPC, which is not so in the present case. He, accordingly, contends that the appeal deserves to be dismissed.
(3.) Learned senior counsel for the appellants, Mr. M.S. Khaira, Advocate, submits that the present appeal is maintainable as is apparent from the language of Section 299 of the Succession Act, which clearly depicts that the first portion of the Section deals with the appeal, whereas, the second portion of the Section deals with the procedure. Reference has also been made to the provisions of Section 268 of the Succession Act to contend that the proceedings of the Court in relation to the grant of probate is regulated by the CPC. He, therefore, contends that the appeal would be maintainable under Section 299 of the Succession Act.;