Arun Kumar Jha, J. – The instant petition has been filed by the petitioners for quashing the order dated 18.07.2022 passed by the learned Additional District Judge-IV, Rohtas at Sasaram in Probate Case No. 88 of 1999 (Title Suit No. 02 of 2002), whereby and whereunder the learned Additional District Judge allowed the substitution petition filed on behalf of the respondents.

2. The brief facts of the case are that one Vishwanath Pandey filed a probate case on the basis of unregistered will vide Case No. 88 of 1999 for grant of probate/letters of administration of the estate of late Deorati Devi. The petitioners appeared and filed their objections and the learned trial court converted the probate case into Title Suit No. 02 of 2002. It appears that during pendency of the probate case the original probate petitioner died issue-less on 12.09.2020 and thereafter, respondents filed a substitution petition dated 03.11.2020 for substituting their names in place of original probate petitioner- Vishwanath Pandey. The petitioners filed their rejoinder and opposed the substitution of respondents. The learned trial court, vide order dated 18.07.2022, directed the respondents to seek relief for issuance of letters of administration and accordingly amended the probate petition and in this manner, allowed the respondents to be substituted in place of deceased-Vishwanath Pandey.

3. Learned counsel appearing on behalf of the petitioners submits that the impugned order is illegal and could not be sustained. Learned counsel further submitted that one Jagarnath Pandey had a daughter, namely Deorati Devi, who inherited his property after his death as the wife of Jagarnath Pandey predeceased him. The petitioners and respondents claimed the property of Deorati Devi on the basis of two separate wills dated 21.06.1999 and 24.08.1999, respectively. The Will dated 21.06.1999 was an unregistered will executed in favour of late Vishwanath Pandey and the petitioners claimed that Deorati Devi never executed any unregistered Will in favour of Vishwanath Pandey. However, the petitioners claimed that Deorati Devi executed a registered Will dated 24.08.1999. After death of Vishwanath Pandey, the respondents filed the substitution petition claiming themselves to be nephew of probate petitioner-Vishwanath Pandey and making averment that there was no Class-I legal heir of deceased Vishwanath Pandey. The learned Additional District Judge without looking into the material, allowed substitution petition and permitted the respondents to amend the petition seeking letters of administration without there being any prayer on their part in the substitution petition. Learned counsel further submitted that the learned trial court did not consider for the moment that there is no applicability of Order 22 of the Code of Civil Procedure in the probate case and there could be no substitution of a legatee, if the legatee is the executor appointed by the Will and he dies. Learned counsel further submitted that no probate can be granted in favour of the legal heirs of original probate petitioner-Vishwanath Pandey, who was the sole executor under the Will. Learned counsel further submitted that there is no provision for substitution of the executor or the legatee in a probate proceeding. Therefore, the impugned order suffers from illegality and the same be set aside.

4. Learned counsel appearing on behalf of respondents vehemently contended that there is no infirmity in the impugned order and the same is just and proper. Learned counsel admitted the facts about there being two Wills and two probate proceedings being initiated on the basis of these two Wills, Title Suit No. 02 of 2002 and Title Suit No. 01 of 2003. Learned counsel further submitted that in probate proceeding of the respondents, the prayer was already there to issue a certificate either of probate or letters of administration and if the prayer was already there for issuance of letters of administration, after death of or