Case Note & Summary
The present chamber summons was taken out by the defendant to strike out an amendment carried out pursuant to an order of the appeal court dated 24.6.2004 in Appeal No. 228 of 1997. The sole ground was that the amendment had been verified not by the petitioner himself but by his constituted attorney, who was allegedly not entitled to verify the petition because the grant sought was a full grant, not a limited grant. The defendant relied on Section 241 of the Indian Succession Act, 1925 and High Court (Original Side) Rule 379, contending that a constituted attorney can only apply for a limited grant, and once the petition was converted to a full grant with the petitioner joined as a party, the constituted attorney could not verify the petition. The court rejected this contention, holding that Section 241 applies only when the constituted attorney or agent applies for grant in their own name, not when the attorney verifies the petition on behalf of the petitioner who is a legal heir. The court found the application without merit and dismissed it.
Headnote
A) Succession Law - Verification of Petition - Constituted Attorney - Section 241 Indian Succession Act, 1925 - High Court (Original Side) Rule 379 - The court held that Section 241 applies only when a constituted attorney or agent applies for grant in their own name; it does not apply when the attorney verifies a petition on behalf of the petitioner who is a legal heir. The amendment seeking full grant was verified by the constituted attorney, which is permissible. The application to strike out the amendment was dismissed. (Paras 2-4)
Issue of Consideration
Whether a constituted attorney can verify a testamentary petition seeking a full grant of probate or letters of administration, or whether such verification must be done by the petitioner personally.
Final Decision
Chamber Summons No.1278 of 2004 is dismissed. The amendment verified by the constituted attorney is held valid.
Law Points
- Verification by constituted attorney is permissible even for full grant under Indian Succession Act
- 1925
- Section 241 applies only when attorney applies in own name
- High Court (Original Side) Rule 379 does not bar attorney from verifying petition
Case Details
2005 LawText (BOM) (05) 42
Chamber Summons No.1278 of 2004 in Testamentary Suit No. 78 of 1994 in Testamentary Petition No. 156 of 1994
Mr. H.J. Thakker i/by Soloman & Co. for the plaintiff, Mr. D.V. Merchant with Mr. Ruchir Tolat i/by L.C. Tolat for the defendant
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Nature of Litigation
Chamber summons for striking out amendment in testamentary suit
Remedy Sought
Defendant sought to strike out amendment carried out pursuant to appeal court order on ground that verification by constituted attorney was invalid for full grant
Filing Reason
Amendment was verified by constituted attorney instead of petitioner personally
Previous Decisions
Appeal court order dated 24.6.2004 in Appeal No. 228 of 1997 allowed amendment
Issues
Whether a constituted attorney can verify a testamentary petition seeking a full grant of probate or letters of administration
Submissions/Arguments
Defendant argued that under Section 241 of Indian Succession Act and Rule 379 of High Court (Original Side) Rules, a constituted attorney can only apply for a limited grant, and verification by attorney for full grant is invalid
Plaintiff contended that Section 241 applies only when attorney applies in own name, not when verifying on behalf of petitioner
Ratio Decidendi
Section 241 of the Indian Succession Act, 1925 applies only when a constituted attorney or agent applies for grant in their own name; it does not apply when the attorney verifies a petition on behalf of the petitioner who is a legal heir. Therefore, verification by a constituted attorney is permissible even for a full grant.
Judgment Excerpts
The provisions of section 241 apply only when the constituted attorney or an agent applies for grant in their own name as constituted attorney or agent. It does not apply to the cases where the constituted attorney is verifying the petition on behalf of the petitioner who himself is a legal heir and not the attorney or the agent.
Procedural History
Testamentary Petition No. 156 of 1994 was filed. Testamentary Suit No. 78 of 1994 arose. Appeal No. 228 of 1997 was filed, and on 24.6.2004 the appeal court allowed an amendment. The defendant then filed Chamber Summons No.1278 of 2004 to strike out that amendment, which was dismissed on 16.6.2005.
Acts & Sections
- Indian Succession Act, 1925: Section 241
- High Court (Original Side) Rules: Rule 379
