JUDGEMENT

NEENA BANSAL KRISHNA, J.

I.A. 19319/2022 (u/O VI Rule 17 r/w Section 151 of CPC, 1908)

1. By way of present application under Or. VI Rule 17 r/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”), the applicant/petitioners seek amendment of the Probate Petition.

2. It is submitted that the present Petition for grant of Probate of the Will dated 21.09.1998 of Shri Gurmit Singh, was filed by the petitioner No. 1/Anoop Singh (deceased), the erstwhile petitioner, who was the named sole Executor in the Will dated 21.09.1998.

3. The petitioner No. 2 Digvijai Singh was also impleaded being the son /beneficiary/legatee under the Will of the Testator, since he had admitted the execution of the Will dated 21.09.1998.

4. It is submitted that petitioner No. 1 Anoop Singh died on 02.12.2011 and left the Will dated 02.11.2011 bequeathing his entire estate in favour of his brother petitioner No. 2 Digvijai Singh. Application No. I.A. 3723/2012 under Order XXII Rule 3 of the CPC, 1908 was filed for deletion of the name of deceased petitioner No. 1Anoop Singh (Executor) from the array of parties and for continuation of the petition by the other petitioner No. 2

Digvijai Singh, who was the beneficiary under the Will. The Application No. I.A. 3723/2012 was not opposed by the respondents and was allowed vide Order dated 21.08.2012. The amended memo of parties was taken on record.

5. Thus, after the demise of the sole Executor, the petition was continued by the Petitioner/beneficiary and the evidence was recorded and concluded.

The matter is now at the stage of final arguments.

6. It is submitted that in order to obviate any technical objections and pursuant to the Order dated 05.09.2022, the petitioner seeks amendment in the cause title to read as a Petition under Section 276 of the Indian Succession Act, 1925 for grant of Letter of Administration with the Will annexed in respect of the Will dated 21.09.1998 of Late Shri Gurmit Singh and to make consequential amendment in Paragraph-8 and the prayer clause to claim Relief of Letter of Administration with Will annexed in place of prayer for Probate.

7. It is submitted that the amendments have been necessitated because of the demise of the sole Executor named in the Will and Petition was allowed to be continued by the sole beneficiary. The amendment does not, in any manner, change the cause of action or the nature of proceedings and it is necessary for the effective adjudication of the present petition. The prayer is made that the amendment may consequently be allowed.

8. The Learned Counsel for the applicant/petitioner has relied upon A.K. Gupta and Sons vs. Damodar Valley Corporation, AIR 1967 SC 96, Vijay Agarwal and Ors.vs. Harinarayan G.

Bajaj and Ors.

MANU/MH/0885/2013, Preethi Swaminathan vs. Govt. of NCT of Delhi and Ors.

MANU/DE/2526/2018, Pawan Puri vs.

The State MANU/DE/3515/2022, Prem Prakash Dabral vs. State and Ors. MANU/DE/1654/2019, Simrit Singh vs. State of Delhi and Ors. MANU/DE/2796/2012, in support of his arguments.

9. The respondent No. 2/Kanwal Chaudri and the respondent No. 3/Karanraj in their Reply to the present application have asserted that the present application is totally misconceived and demonstrates a complete lack of bona fide on the part of the applicants/petitioners. Section 222 of the Indian Succession Act, 1925 clearly specifies that the probate can be granted only to an Executor appointed under the Will. The cause of action to seek probate of the Will is personal to the Executor and upon his demise, no right to sue survives. It is also claimed that if the amendment is allowed, it would change the entire nature of proceedings and, therefore, cannot be granted.

10. The proposed amendment is also barred by limitation as it has been filed beyond a period of three years from the date when the right accrued in favour of the petitioner. The petitioner No. 1/Anoop Singh, the so