JUDGMENT
S.N. Srivastava, J.
1. Present Civil Revision has its genesis in the impugned order dated 11.1.2005 passed by Addl. District Judge (Court No. 3) whereby the application of the respondent for accepting the written statement in probate proceeding instituted for grant of probate under Section 217 of the Indian Succession Act had been allowed.
2. It would appear from a perusal of the record that the applicant is the only issue of late Ram Sagar Pandey resident of village Tikari P.O. Babhani Hether Tahsil Meja District Allahabad who, it is alleged, had executed a Will on 2.11.2003 bequeathing all his properties in favour of the applicant. The aforesaid Ram Sagar Pandey, it brooks no dispute, was spirited away by death on 9.11.2003 and consequently, the applicant resorted to proceeding under Section 217 of the Indian Succession Act, 1925 for grant of probate. The defendants arrayed in the proceeding are aunt and great father of the applicant respectively and repudiated the genuineness or existence of the Will stating that the deceased wanted the property to devolve upon his elder brother and his sons.
3. The controversy involved in the present revision lies in a short compass the challenge being focused on the impugned order whereby application for accepting written statement was allowed on cost of Rs. 100/-. The main brunt of the arguments advanced across the bar by the learned counsel for the applicant is that the written statement was filed beyond the period of limitation of 90 days and provisions of Order 8 Rule 1 being mandatory, the court below erred in law in condoning the delay while accepting the written statement on record. The learned counsel for the applicant also canvassed on the point of applicability of the Code of Civil Procedure stating that the provisions of Order 8 Rule 1 being mandatory, the Court transgressed the bounds of legislative intention in allowing the application filed for accepting the written statement. The learned counsel also submitted that proceeding for grant of probate or letter of administration being one under Section 217 of the Indian Succession Act, the Code of Civil Procedure would be applicable on all fours. The learned counsel also referred to Section 266, 268 and 295 and propounded that in case, the proceeding under Section 217 of the Succession Act becomes contentious, it takes the form of a suit and in this circumstance, the Code of Civil Procedure applies in entirety. In order to prop up his submission, the learned counsel placed credence on various decisions including Mohandas Dattaram Prabhu and Ors. v. U.F.M. Mukund Honnappa Naik, AIR 2003 Karnataka 428, Nanda Agarwal v. Matri Mandir Varanasi and Anr., 2004 (2) ARC 598 and Smt. Savitha Gupta v. Smt. Nagaratha and Ors. AIR 2003 Karnataka 426. The learned counsel also placed reliance on Smt. Multivahuji v. Smt. Kalindivahuji and Ors. AIR 1994 Gujarat 42, Bai Sabu Khima v. Amardas Balakdas AIR 1967 Gujarat 214, Kalarikkal Thressiamma and Anr. v. Kallidukkananikkal Joseph and Ors. AIR 1998 Kerala 160 and Smt. Rajeshwari Misra and Anr. v. Markandeshwar Mahadeo Trust and Ors. AIR 1965 Alld 211.
4. Dwelling on the first submission of the learned counsel for the applicant that the written statement was filed beyond the period of 90 days, I would like to first notice the factual aspects, assuming for academic interest that the submissions of the learned counsel for the applicant that mandatory provisions of Order 8 Rule 1 of the C.P.C. would apply to the present case. It is borne out from the record that the Opp. Parties entered appearance on 31.8.2004 and thereafter, prayed time for filing of written statement to which the court granted 15 days time. Again, 15 days’ time was granted by the court on 30.9.2004 but the written statement came to be filed only on 1.11.2004 with accompanying application praying therein to accept the written statement. From a perusal of the impugned order, it would transpire that the court below deemed the period of limitation to commence from the date the Opp. Parties entered appearance i.e. 31.8.2004 ostensibly considering that the service was effected upon the Opp. Parties by publication. It is worthy of notice that there is no indicium on record to show that the Opp. parties were served by personal service prior to the aforesaid date. The position in law is well settled that the court has discretion to permit the defendant to file written statement after the first hearing. It is also deducible that the defendant after service of summons should have sufficient time to enable him to file the written statement. Order 8, Rule 1 of the C.P.C, as it stood before the amendment in 1976, gave the defendant a discretion to file a written statement unless the court required him to do so and he could exercise that discretion at any time before the first hearing or upto some date fixed by the Court. By the Amending Act, 1976, original Rule 1 has been re-numbered as Sub-rule (1) and words “may, and if so required by the Court” have been omitted. In effect, the amendment has been effected to make the filing of written statement obligatory. In the instant case, the service on the defendants was effected by publication and thereafter, they entered appearance on 31.8.2004. As stated supra, the court granted 15 days time to file written statement and thereafter on 30.9.2004, it again granted 15 days’ time to file written statement and ultimately, the written statement was filed on 1.11.2005. Having regard to the fact that service came to be effected by publication on the defendants and they entered appearance on 31.8.2004, by this reckoning, it cannot be said that the written statement filed was beyond the date of 90 days. In the circumstances, it would not be difficult to hold that the Court had power to accept the written statement and the Court below rightly allowed the application accepting the written statement which was filed within the period of 90 days.
5. In determining the next submission advanced across the bar by the learned counsel for the applicant whether provisions of the Code of Civil Procedure would apply to the Indian Succession Act, I deem it necessary to analytically examine the provisions of Sections 266, 268 and 295 of the Succession Act. Section 266 deals with the power of the District Judge as to grant of probate and administration. It is envisaged in this section that the District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court. Likewise, Section 268 of the Act envisages that the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. Section 295 deals with procedure in contentious cases. It envisages that in any cases before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. From a perusal of the scheme of the Succession Act, it would transpire that there is a separate procedure prescribed for filing the application for probate or letters of administration and service of notice. It is also evident from the scheme as well as the case laws on the point that title is not decided in the probate proceeding and only the probate is granted without delving into the aspect of title of the properties etc. A fine distinction needs to be drawn between applicability and non-applicability of the provisions of C.P.C. to the Succession Act. In this connection, it is noticeable from a punctilious reading of the Succession Act that all the provisions of the Code of Civil Procedure have not been envisaged to be applicable. It is envisaged in Section 295 that the proceedings for grant of probate shall take, as nearly as may be, the form of a regular suit according to the provisions of the Code of Civil Procedure 1908. From a perusal of Section 295 of the Indian Succession Act and other provisions of the Succession Act, it would crystallize that such proceeding would not become a regular suit within the provisions of the code of Civil Procedure and provisions of C.P.C. would apply where the contentions are raised i.e. in the absence of any contentions being raised, it would be open to a probate court to decide the matter in a summary. Again the phrase “as nearly as may be” cannot be interpreted to treat the suit as a regular suit governed by the provisions of the C.P.C. but it indicates that as far as possible such proceeding is to be treated as a suit. In connection with the phrase “as nearly as may be”, decision of Apex Court in Babubhai v. Nandlal AIR 1974 SC 2105 may be noticed. Khanna 3 (as he then was), elaborated on the point that the words “as far as it can be made applicable in Section 141 Civil P.C. make it clear that, in apply the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of these proceedings and the relief sought. Dwelling on the intendment of Article 226 of the Constitution, Khanna, J. observed to the effect that “The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. If the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. The Apex Court further observed that “a writ petition under Article 226 is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226.” In Rani v. Deputy Director of Consolidation, AIR 1959 All. 525 learned Single Judge of this Court was seized with the issue of unconstitutionality of provisions of Section 15 of the U.P. Consolidation of Holdings Act on the ground that the section invests the authorities with arbitrary power and referring to qualifying words “as far as possible, held that the phrase really means that the principles are to be observed unless it is not possible to follow them in the particular circumstances of a case. This qualification, it was further observed, was absolutely necessary in view of the fact that the process of compulsory consolidation is a very difficult and complicated one in the peculiar conditions prevailing in this State. The quintessence that flows from the above two decisions appears to be that object of a particular has to be borne in mind and by this reckoning, the procedure of a suit cannot be adhered to as a rule but regard being had to the facts and circumstances of the case and also the object of that Act or else that very purpose of the Act which has been enacted with a particular object in mind by the Legislature may be defeated.
6. In connection with the issue I am seized of, I would notice the view held by the Supreme Court in Chiranji lal Shrilal Goenka v. Jasjit Singh and Ors. (1993)2 SCC 507. In Para 15 of the said decision, the Apex court held as under:
“The Succession Act is a self-contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.”
7. No doubt, the proceeding for probate, if uncontested, is a summary proceeding but once there is contention, the proceedings may take form of a suit and all the incidence of a suit will attach to such proceeding. From examination of various decisions and the quintessence that follows is that the words “the form of a regular suit” does not make proceedings a suit in real sense of the term. The view held in those decision is that so long as a petition for probate or letters is non contentious, it is to be dealt not in strict sense of the term but once it becomes contentious, it may take the form of a suit and the procedure as may apply to a suit as contained in the Civil Procedure Code, may come into play as far as practicable and not as a rule. But again, a cautious approach is necessary and it is that even after it becomes contentious, the proceeding is only to take, as nearly as may be, the form of a regular suit. As held by the Apex Court, the Succession Act is a self contained code but at the same time, it must be borne in mind that where there is no provision under the Act, the established principles of the C.P.C. were to be made applicable and the underlying intention of the Legislature seems to be that parties may get fair opportunity to defend themselves. I agree with approval that probate Court is a court of exclusive jurisdiction with respect to certain issues, which squarely fall within its jurisdiction and it is not competent to go into the question of title- (See: Smt. Multivahuji v. Smt. Kalindivahuji and Ors.). The Court further observed that a probate proceeding even though it is contentious, cannot go beyond its exclusive domain. In Para 14 of the aforestated decision, the Court further observed that a probate court is a court of conscience and it does not decide the rights between the parties. It would thus crystallize that the provisions of the C.P.C. would apply to the Indian Succession Act in the facts and circumstances of a particular and where it is silent and to the extent practicable and not in the manner as a regular suit is tried and decided by a civil court following strictly the provisions of the C.P.C. In connection with the matter at issue, observation made in Rajeshwari v. M.M. Trust may also be noticed. In Para 10 of the said decision, it has been observed that “An order made in exercise of a power conferred by the Code cannot be said to be an order made by virtue of the powers conferred by Section 268 simply because that provision applied the code to the proceeding.”
8. In view of the above, I am of the firm view that certain provisions of the C.P.C. have been made applicable for contesting the probate proceedings with the avowed object that parties may not be deprived of legitimate rights of bringing to the notice of the court the correct facts and evidence. Therefore, this Court is of the view that Indian Succession Act is a self contained Code and the entire C.P.C. will not be applicable and it intended to be applicable where succession Act is silent. Therefore, it follows that rigours of provisions of Order 8 Rule 1 will not be applicable to the Indian Succession Act. In the facts and circumstances, I find no illegality or material irregularity relating to jurisdiction and therefore, no ground is made out for interference.
9. The decisions cited by the learned counsel for the applicant have been read over by me and I do not consider it necessary to refer to them in detail except to acknowledge that I have derived considerable assistance from them.
10. As a result of foregoing discussion, the revision petition fails and is accordingly dismissed.