Abhinav Kumar Singh v. Ajit Kumar Singh and Others
Case brief
What is this about?
The court allowed the writ petition to modify an impugned order. It held that a probate case could be converted into a civil suit directly under Section 295 of the Indian Succession Act and Rule 504 of General Rules (Civil), rather than returning it for a fresh suit barred by limitation. The original order was modified to direct conversion.
What did the court decide?
The petition, which directed the modification of the order dated 05.11.2011 allowing conversion of the probate case into a civil suit via the appropriate section, is allowed.
What the court decided
Court No. - 36
Case :- WRIT - C No. - 72954 of 2011
Petitioner :- Abhinav Kumar Singh Respondent :- Ajit Kumar Singh And Others Counsel for Petitioner :- C.K. Parekh Counsel for Respondent :- S.C.,Manish Singh
Hon'ble Mrs. Sunita Agarwal,J.
Sri C.K. Parekh learned counsel has been heard on behalf of the petitioner. Sri Manish Singh learned counsel on behalf of contesting respondent is not present in the Court.
The present petition is directed against the order dated 05.11.2011 passed in Probate Case No.89 of 2010 ( Abhinav Kumar Singh Vs. Ajit Kumar Singh), by the Additional District Judge, Court No.10 Varanasi, whereby he has returned the Probate Case with the direction that the parties may file civil suit to assert their right in the suit property.
With reference to the provisions as contained in Section 295 of the Indian Succession Act' 1925 and read with Rule 504 of the General Rules (Civil)' 1957, it is submitted by learned counsel for the petitioner that the Additional District Judge, i.e. the court concerned was empowered to convert the Probate Case into a regular civil suit, according to the provisions of the Code of Civil Procedure, on the objections raised by the opposite parties. The procedure for conversion of probate application into a suit has been provided under 504 of General Rules (Civil)' 1957.
In the event of caveat in a probate case, the petition for probate or letters of administration would have to be registered as a suit and would be deemed to be a plaint filed against the caveator and the objection filed by the caveator would be treated as his written statement in the suit. The applicant shall be the plaintiff and the person who has appeared to oppose to grant a probate or letters of administration, shall be the defendants.
Issues for consideration
3 issues framed by the court
Whether the lower court was correct in returning the probate case for filing a civil suit without utilizing the statutory power to convert it directly.
Whether the petitioner is barred by limitation from filing a civil suit if the conversion is done procedurally under the Act.
Whether the revision dismissed by ignoring Section 295 of the Indian Succession Act was legally sustainable.
Parties & counsel
- petitioner
Abhinav Kumar Singh
- respondent
Ajit Kumar Singh
Coram
Sunita Agarwal
Case details
As recorded by the court registry
- Court
- Allahabad HC
- Decided on
- · February
- Registered
- Case no.
- WRIC/72954/2011
Similar cases
Judgements on the same questions, provisions and authorities, from every court