Calcutta High Court (Appellete Side)
For The vs Kiran Girhotra & Ors on 29 August, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 29.08.2013
C.O. No.1756 of 2013 s.d. Mr. Debasish Ray.
... for the petitioner.
Heard the learned advocate for the petitioner. Challenge is to the Order No.25 dated March 25, 2013 passed by the learned Additional District Judge in Other Suit No.3 of 2009 thereby allowing an application under Order 1 Rule 10 of the C.P.C.
Having heard the learned Advocate for the petitioner and on going through the materials on record, I find that the question involved in the matter is whether the learned Trial Judge is justified in allowing an application under Order 1 Rule 10 of the C.P.C. for addition of a third party in a probate proceeding. The learned Trial Judge has held that since the property in question had been transferred long before the institution of the application for grant of probate by the plaintiffs, that application can well be allowed for ascertainment of their right, title and interest in the suit property.
In a suit for probate, the question of genuiness of the Will, due execution and attestation are the subject matters of consideration for grant of probate and in that case, the question of right, title and interest does not involve at all. If the third party is allowed to contest the said probate proceeding claiming right, title and interest by inheritance or by purchase by their predecessor-in-interest even before the institution of the probate proceeding, in my view, there is no scope of 2 consideration of the right, title and interest in the said proceeding.
In the case of Sunil Gupta v. Kiran Girhotra & ors. reported in (2007) 8 SCC 506, it has been decided that a probate can be granted only to an executor appointed by the will. Citations are necessary to be made to only those who, inter alia, claim through or under the will or deny or dispute the execution thereof. So, a subsequent purchaser is not a necessary party. The plaintiff in the suit is the dominus litis.
In the case of Sri Kashinath Ghosh v. Smt. Radharani Ghosh & ors. reported in 2012(2) ICC 74, another learned Single Bench of this Court has held that when the property was transferred during the pendency of the suit without the leave of the Court, impleadment of the transferee to any probate proceeding is not at all necessary. The decision of Sunil Gupta (supra) is relied in this case.
Accordingly, the learned Trial Judge is not justified in allowing the application under Order 1 Rule 10 of the C.P.C. Therefore, the impugned order cannot be sustained.
The application is, therefore, allowed and the impugned order is hereby set aside.
The learned Trial Judge shall proceed with the suit in accordance with law.
Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioner upon compliance of necessary formalities.
(Prasenjit Mandal. J.) 3 Later:-
After passing order, Mr. Mukteswar Maity, learned Advocate appears and files a Vakalatnama on behalf of the opposite party no.3.
The same be kept with the record.
(Prasenjit Mandal, J.)