ORAL ORDER

1. This Second Appeal challenges judgment and decree passed in Misc. Civil Appeal No.64 of 2006 by learned Presiding Officer, Fast Track Court No.3, Gandhinagar, whereby challenge was made to judgment and order passed in probate proceedings being C.M.A.No.25 of 2000, whereby, probate proceedings is rejected.

2. Misc. Civil Appeal i.e. Appeal from Order was allowed and it is held that appellant is entitled to get the relief as prayed for, however, learned Appellate Court did not qualify what kind of relief appellant is entitled to. In this juxtaposition, Second Appeal has been preferred, which was admitted by Co-ordinate Bench of this Court on 15.12.2010 raising following substantial question of law :-

(i) Whether the probate application is maintainable in law, without any will?

(ii) Whether lower appellate Court erred in exercising the jurisdiction while granting probate application without any will and whether the evidence given by Umeshbhai Exh.32 and deposition given at Exh.29 as well as written submission made by both the parties which were misread by the lower appellate Court while deciding the appeal?

(iv) Whether as per Section 212 and 213 of the Indian Succession Act, without issuing the letter of administration have first been granted by the competent Court to administer the property?

(v) Whether under Section 15 and 22 of the Hindu Succession Act, the respondent can be considered as legal heirs of Bai Dhudiben, who died intestate and without any issue ?

(vi) Whether the trial Court erred in allowing the amendment application and converting the probate application into succession certificate after the appeal is disposed of by the lower appellate Court and whether the trial Court has jurisdiction to permit the respondent to amend the original plaint when all the proceedings is disposed of and there is no case pending before the trial Court?”

3. I have heard learned advocates for the respective parties. There are other Civil Applications pending in the matter filed by third party as well as some other Civil Applications. What could be noticeable that before learned Trial Court, original petitioner - Revaben through her power of attorney Umeshbhai Chauhan preferred application for getting probate on the ground that deceased Hirabhai died intestate and petitioner Revaben has inherited property of deceased Hirabhai and therefore, issuance of probate deserves to be granted. Vide Exh.83, probate application was converted into Succession certificate which could be discernible from body of Civil Misc. Application.

4. Learned Principal Senior Civil Judge, Gandhinagar was pleased to dismiss the application on 16.01.2006. The appeal was preferred but it was preferred as Appeal from Order. Learned Appellate Court without referring the aspect that probate proceedings has been amended and prayer was made to grant succession certificate, was pleased to allow the Appeal from Order. Thus, Second Appeal.

5. What could be noticeable that probate proceedings is to be undertaken under Indian Succession Act. Section 270 of the Indian Succession Act describes when probate or administration may be granted by District Court. Section 272 of the Indian Succession Act defines probate and letters of administration to be granted by delegate. In fact Chapter (iv) of Indian Succession Act is governing the grant of probate or letter of administration or otherwise including Appeal provision under section 299 of Indian Succession Act.

6. In aforesaid circumstances, appeal filed before the learned Appellate Court treated as Misc. Civil Appeal or Appeal from Order, which is normally filed under Order 43 of Code of Civil Procedure was not maintainable. Learned Appellate Court did not consider this issue at all. At this juncture, learned advocate Mr.Purohit bring it to the notice of the Court that title of the appeal indicates that it was filed under Order 41 of CPC an usual provision governing appeal before District Court. I am not impressed on this as