Rajasthan High Court - Jodhpur
Ashok Kumar vs Bank Of Rajsthan Ltd., & Anr on 5 January, 2009
Author: Sangeet Lodha
Bench: Sangeet Lodha
1
ASHOK KUMAR VS. BANK OF RAJASTHAN LTD. & ANR.
(S.B.CIVIL WRIT PETITION NO. 5425/08)
Dated:- 05 .1.2009.
HON'BLE MR.JUSTICE SANGEET LODHA
Mr.N.L.Joshi, for the petitioner.
Mr.R.K.Singhal, for the respondents.
1. This writ petition is directed against order dated 27.2.08 passed by the Additional District Judge, Nohar in Civil Misc.Case No.16/07, whereby an application preferred by the respondent no. 2 herein for impleading him as party respondent in the probate proceedings , stands allowed and accordingly, he has been impleaded as party to the proceedings as respondent no.3.
2. The relevant facts in nutshell are that the petitioner has preferred an application under Section 276 of Indian Succession Act,1925( in short "the Act of 1925" hereinafter) before the Additional District Judge, Nohar for grant of probate in respect of a registered Will said to have been executed by his maternal uncle late Shri Gauri Shanker in his favour.
3. The respondent no. 2 who is elder brother of the petitioner preferred an application for impleading him as party respondent to the probate proceedings stating therein that his maternal uncle late Shri Gauri Shanker is survived by his wife and the son, who are residing at Bhadra and the Will in respect of which the probate is claimed by the petitioner was never executed by him 2 with his free will. It was submitted that the application preferred seeking probate is based on suppression of correct factual position. Accordingly, it was submitted on behalf of the respondent no.2 herein that his impleadment as party to the proceedings will help the court in arriving at the correct decision.
4. The application was contested on behalf of the petitioner by filing a reply thereto. It was contended on behalf of the petitioner that the applicant, respondent no.2 herein is neither legal heir of late Shri Gauri Shanker nor he is a beneficiary under the Will therefore, he is not necessary party to the proceedings.
5. The learned trial court after hearing both the parties found that the presence of the applicant will help the court in arriving at a correct conclusion and therefore, it will be appropriate to implead him as party respondent in the matter. Accordingly, the application preferred by the respondent no. 2 herein has been allowed and he has been impleaded as party respondent no. 3 in the probate proceedings. Hence, this petition.
6. It is contended by the learned counsel for the petitioner that while passing the impugned order impleading respondent no. 2 as party to the probate proceedings, the learned trial court has acted without jurisdiction. It is submitted by the learned counsel that the respondent no. 3 is neither legal heir of late Shri Gauri Shanker nor he is beneficiary under the Will executed and therefore, the property of the deceased shall not devolve on him 3 even if the Will is held to be not genuine. Accordingly, it is submitted by the learned counsel that the respondent no. 2 who is not a person interested cannot be said to be a necessary or proper party . It is submitted that the matter can be completely and effectively adjudicated upon by the court even in the absence of respondent no. 2. Accordingly, it is submitted that the order impugned passed by the learned court below suffers from error apparent on the face of record and deserves to be set aside.
7. Per contra, the learned counsel appearing on behalf of the respondent no.2 submitted that the learned court below after appreciating the factual position on record, has found that the presence of the respondent no.2 will help the court in arriving at correct conclusion therefore, there is no reason as to why the discretion exercised by the court below should be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The learned counsel submitted that on the facts and in the circumstances of the case, the respondent no. 2 is a necessary party to the probate proceedings and the order impugned passed by the learned court below cannot be faulted with.
8. I have considered the rival submissions and perused the material on record.
9. It is settled law that in the probate proceedings , the 4 function of the probate court is to see as to whether the document for which the probate is asked for is the last Will and testament of the deceased, whether the Will has been duly executed and attested in accordance with law and whether at the time of such execution , the testator was in sound and disposing state of mind and has put his signature and/or mark to the document out of his free will and volition. It is also settled law that the onus to prove all these essential facts lies upon the propounder of the Will.
10. As per the provisions of Section 283(1)(c) on an application seeking probate or letter of administration, the District Judge or the District Delegate may if he thinks proper , may issue citation calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings for the grant of probate or letter of administration. Therefore, a person seeking permission to contest the Will is under an obligation to establish that he had some interest in the estate of the deceased by inheritance or otherwise.
11. A bare perusal of the application preferred by the respondent no.2 herein for impleading him as party to the proceedings reveals that he has not disclosed even slightest interest in the estate of the deceased either by inheritance or otherwise. If the testator late Shri Gauri Shanker is survived by his wife and a son then, they may be considered to be persons 5 interested in the estate of the deceased but the respondent, who has no caveatable interest cannot be permitted to inter meddle in the probate proceedings lodged by the petitioner on the strength of the Will alleged to have executed by the testator in his favour. Thus, on the facts and in the circumstances of the case, the learned trial court has seriously erred in holding the respondent to be a necessary party to the probate proceedings only on the premise that he may help the court in arriving at a correct conclusion. In this view of the matter, in considered opinion of this court, the order impugned passed by the learned probate court is not sustainable in the eye of law.
12. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 27.2.08 passed by the Additional District Judge, Nohar in Civil Misc. Case No. 16/07 is set aside. No order as to costs.
(SANGEET LODHA),J.