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Smt. Pushpa Paliwal v. Ram Kumar Paliwal & Others - FIRST APPEAL FROM ORDER No. 3499 of 2006 [2007] RD-AH 76 (2 January 2007)


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Heard learned counsel for the petitioner Sri Santosh Kumar and Sri A.K. Gupta and Sri Madhav Jain for the respondents.

The present appeal has been filed against an order-dated 28.9.2006 by which the application filed by the respondents has been allowed and the order passed in favour of the appellant granting a probate has been recalled. A probate has been granted in favour of the appellant by order-dated 17.1.2004 in Testamentary Case No.434 of 2003. The respondents claming to be the heirs have filed an application before the Court stating therein that they have not been given any notice and opportunity and the proper procedure as provided under the rules for the purpose of granting the probate has not been followed. In such circumstances it was prayed that the order be recalled and an opportunity be given to the applicants before granting a probate in favour of the appellant.

We have considered the submissions made on behalf of the parties and have perused the record as well as the order dated 28.9.2006. The court below has recorded a finding that as no notice was given and the respondents have got no opportunity to contest the proceeding, therefore, it will be in the interest of justice to recall its order dated 17.1.2004 and the appellant has been directed to move an application for necessary amendment in the light of the observations made in the judgment and has directed that the case be listed on 5.10.2006. It has been informed by the counsel for the respondents that an application for amendment as directed by the court has already been filed by the appellant.

In view of the aforesaid facts and circumstances of the present case, the principle of natural justice requires that the order granting a probate on an application filed on behalf of the appellant may be considered after affording an opportunity to the affected parties.

In such circumstances we find no merit in the present appeal and the appeal is hereby dismissed.



F.A.F.O.No.3499 of 2006


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