Heirs of a legatee can be substituted in probate proceedings, allowing them to amend the petition and pay the requisite stamp duty for issuance of the probate certificate.

ORDER

The present petition under Article 227 of the Constitution of India is directed against the order dated 27.02.2016 passed by learned Third Additional District Judge, Shivpuri in Case No.1/2000 (probate), wherein the application preferred by the present petitioners for obtaining the probate certificate by depositing the Court fees which was directed to be paid by the original legatee Suraj Singh @ Surat Singh @ Nehru Gurjar towards the probate obtained by him during his lifetime for the immovable properties consisting of one house and agricultural land situated in village Bhagora was rejected.

2. The aforesaid order has been assailed on the ground that the learned Third Additional District Judge, Shivpuri vide its order dated 22.12.2000 had allowed the probate petition and had directed Suraj Singh @ Surat Singh that on certifying the valuation sheet of the concerned property in terms of items no.11 of Schedule (1) of the Court Fees Act, 1870 by the Court, Stamp Duty as prescribed would be deposited by applicant, and, thereafter, the probate on prescribed proforma shall be issued, but since during the life time of Suraj Singh @Surat Singh the stamp duty could not be paid earlier and after his death there was no information or notice regarding the same to the petitioners, therefore, the requisite stamp duty could not be paid and the petitioners could not bring themselves on record as legal representatives of Suraj Singh @ Surat Singh, but as and when the knowledge was received that an application was filed for permitting them to furnish stamp duty before the learned Trial Court, but the same was rejected on some extraneous grounds which are not sustainable in the eyes of law.

3. Learned counsel for the petitioner while referring to the judgment of the Apex Court in the matter of Shambhu Prasad Agarwal and Ors. vs. Bholaram Agarwal reported in 2000 (9) SCC 714 and in the matter of Vatsala Srinivasan vs. Shyamala Raghunathan reported in 2016 (3) SCC 253 had argued before this Court that where the heirs of a legatee apply for issuance of letter of administration or probate, their application cannot be rejected holding that no right had accrued to the legal heirs for their substitution in place of the legatee as even today the petitioners can file a petition for issuance of a probate on the basis of the Will executed in favor of their predecessor in title. Thus, it was submitted that grave illegality has been committed by the learned Trial Court in rejecting the application and not allowing the petitioners to pay requisite stamp duty and get the order of probate in their favor issued.

4. On the other hand, learned counsel for the respondent had supported the very impugned order and had submitted that Suraj Singh @ Surat Singh had expired on 25.03.2007 and the application for making payment of the stamp duty was moved by the petitioner in the year, 2016 after lapse of approximately 10 years and as no orders have been passed for issuance of probate certificate in favor of the petitioners, the learned Trial Court has rightly rejected the application which needs no interference. It was, thus, prayed that the present petition being devoid of merits be dismissed.

5. Heard the counsels for the parties and perused the record.

6. In the matter of Shambhu Prasad Agarwal (supra) the Apex Court in para 5 and 6 has held as under:-

5. We find that it is not disputed that Matadin Agarwal was a legatee under the will. It is true that Matadin Agarwal ought to have applied for issue of letters of administration and not for probate. However, this did not debar his heirs to get the probate petition amended. The trial court rejected both the application of the appellants on the ground that since the probate petition filed by the legatee related to his personal right, therefore, no right accrued to the appellants for their substitution in his place. This view, according to us, is not correct. Matadin Agarwal, as stated above, was a legatee and not an execu