Case Note & Summary
The petitioner, Shri Abhijit Vijay Sartape, filed a writ petition challenging the order dated 15.3.2012 passed by the learned Civil Judge, S.D., Pandhapur, rejecting his application below Exhibit 65 for amendment of the application for Probate, registered as Civil Misc. Application No.36 of 2006. The trial court rejected the amendment on two grounds: that it was filed after a period of 5 years, and that no opportunity would be provided to the public at large for raising objections. The petitioner, represented by Mr. Vishwanath S. Talkute, relied on the Supreme Court decision in Shambhu Prasad Agarwal & Ors. v. Bhola Ram Agarwal (2000) 9 SCC 714, where the Court held that a legatee who had filed a probate petition instead of a petition for letters of administration could be permitted to amend the petition, as the defect was technical and the interest of justice required that proceedings be concluded expeditiously. The respondents, represented by Mrs. T. Khattri, did not dispute that proceedings for issuance of letters of administration could be filed at that stage, but raised an objection regarding maintainability. The High Court, per Justice Ravi K. Deshpande, found that the facts of the present case were similar to those in Shambhu Prasad Agarwal. It noted that it was not disputed that the probate proceedings should not have been filed, and that the petitioner could file a petition for letters of administration. The Court held that the trial court's order was unsustainable and set it aside, allowing the amendment application. The Court directed the trial court to decide the matter expeditiously, as the proceedings had been pending for a considerable time. The writ petition was allowed, with no order as to costs.
Headnote
A) Succession Law - Probate and Letters of Administration - Amendment of Petition - The petitioner, a legatee, had filed a probate petition instead of a petition for letters of administration. The trial court rejected the amendment application on grounds of delay and lack of opportunity for public objection. The High Court, relying on Shambhu Prasad Agarwal v. Bhola Ram Agarwal, held that the defect was technical and the amendment should be allowed in the interest of justice, as the petitioner could file a fresh petition for letters of administration. The court set aside the trial court's order and allowed the amendment, directing the trial court to decide the matter expeditiously. (Paras 2-5)
Issue of Consideration
Whether an application for amendment of a probate petition to one for letters of administration, filed after five years, should be allowed despite the delay and lack of opportunity for public objection.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 15.3.2012, and allowed the amendment application. The trial court was directed to decide the matter expeditiously.
Law Points
- Amendment of probate petition to letters of administration is permissible even after delay
- probate proceedings by legatee instead of executor is a technical defect curable by amendment
- interest of justice overrides technicalities
