Patna High Court
Santosh Kumar And Ors vs Estate Of Ishwar Dayal ( Deceased ) on 11 July, 2022
Author: Anil Kumar Sinha
Bench: Anil Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.102 of 2019
======================================================
Santosh Kumar and Ors. S/o Late Ram Pyare Singh Resident of
Mainpura,P.S. Patliputra,PO G.P.O.,Dist.Patna
... ... Appellant/s
Versus
1. Estate of Ishwar Dayal ( deceased )
2. Shri Dhiraj Kumar @ Kameshwar Rai @ Kameshwar Narain Rai S/o Ram
Narain Rain Resident of Mainpura,P.S. Patliputra,PO G.P.O. Dist.Patna
3. Smt. Kumuda Devi W/o Radhey Shyam Rai,D/o Late Ram Narain Rai,
Resident of Rajapur,PO G.P.O.,P.S. Patliputra,Dist.Patna
4. Smt. Kunti Devi W/o Late Deonandan @ Deo Narain Resident of
Makhdumpur,PO and PS Digha,Dist.Patna
5. Smt. Meena Devi W/o Shri Dhiraj Kumar @ Kameshwar Rai Resident of
Mohalla Mainpura,PO G.P.O. P.S. Patliputa,Dist.Patna
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. J. S. Arora, Sr. Advocate
Mr. Chandra Kant, Advocate
For the Respondent/s : Mr. Jitendra Prasad Singh, Advocate
For Intervenor : Mr. Ganpati Trivedi, Sr. Advocate
Mr. Bishwanath Chaudhary, Advocate
Mr. Madan Mohan, Advocate
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
CAV JUDGMENT/ORDER
11-07-2022 The present First Appeal has been filed against
judgment and decree dated 05.04.2019 passed in Title Suit
(Probate) No. 01/1993 by which the Probate Application of
Respondent No. 5 herein has been allowed in respect of Will
dated 05.10.1985 executed in her favour by late Ishwar Dayal.
2. In the instant First Appeal, Interlocutory
Application No. 03/2020 has been filed by the partners of M/s
Shrestha Aditya Construction for addition of their name as
party respondents in the present appeal, inter alia, on the facts
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that Ishwar Dayal (Testator) executed a Will dated 05.10.1985
in favour of Respondent No.5, Meena Devi with respect to his
entire movable and immovable properties and Meena Devi was
also appointed as executor authorizing her to obtain probate
from competent court. Meena Devi was executor as well as
legatee under the Will dated 05.10.1985.
3. On 19.12.1988 the said testator died and after his
death on 31.01.1989, Probate Case No. 13/1989 was filed by the
legatee with respect to Schedule-1 properties. On the basis of
objection filed by the appellant and one Munshi Rai (since
deceased), the probate proceeding was registered as Title Suit
No. 01/1993. Munshi Rai died during pendency of Title Suit No.
01/1993 and his name was deleted.
4. On 04.07.2020, Respondent No.5, Meena Devi
entered into the Development Agreement (Annexure-1 to the
I.A. No. 03/2020) with respect to Plot No. 1716 having an area
of 18 ½ Decimals with the interveners/petitioners for
development of land. On the basis of application filed by Meena
Devi, map was sanctioned by the competent authority
(Annexure-2 of I.A. petition) on 04.01.2021.
5. Real Estate Regulatory Authority, Bihar (in short
'RERA') registered the project for development over the plot in
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question namely, Aditya Meena Enclave New Project. The
intervenor applicants namely, Sumit Kumar and Ashok Kumar,
partners of M/s Shrestha Aditya Construction had no knowledge
about the pendency of the First Appeal No. 102/2019 against the
judgment and decree dated 05.04.2019 passed in Title Suit
No.01/1993 (arising out of Probate Case No. 13/1989) and
having learnt about filing of an application under Order 39 Rule
1 & 2 of the CPC in First Appeal No. 102/2019, the interveners
have filed the Interlocutory Application under Order 01 Rule
10(2) of the CPC impleading them as party in the aforesaid First
Appeal on the ground that they have acquired a substantial
interest in the properties/Estate of deceased testator after grant
of probate.
6. The appellant opposed the Interlocutory
Application filed by the interveners and according to the
appellant, the same is not maintainable on the ground that the
interveners are not necessary parties in the present appeal
keeping in view the scope of the probate proceeding.
7. The probate case was contested by the appellant
on various grounds including that one of the properties
mentioned in the probate petition being plot no. 1716, Khata
No. 467, Tauji No. 5236 was not the property of testator, Late
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Ishwar Dayal and the same is not the part and parcel of the
estate of late Ishwar Dayal. The court below held that it has got
no jurisdiction to enter into the issue of title. However, the Will
has been held to be genuine and accordingly, probate was
granted in favour of Respondent No.5.
8. Learned senior counsel for the appellant submits
that probate case is not a regular suit and is not guided by the
procedure prescribed in the Code of Civil Procedure but the
same is guided and controlled by the Indian Succession Act,
1925 ( for brevity 'the Act') which is a self-contained Act in
which provisions have been given as to filing of the probate
case, caveat objections and as to the procedure to be adopted for
disposal of such cases. It has been contended that the order
granting probate is subjudice in the present appeal but the
Respondent No. 5 having full knowledge of the same has
entered into the development agreement with the
interveners/petitioners who were also having full knowledge
about the pendency of the appeal but have deliberately taken a
calculated risk to enter into the development agreement. The
question of title cannot be decided in a probate case nor has
been decided by the court below and since the appellant has
raised the dispute that one of the plots in question bearing plot
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No. 1716 does not belong to late Ishwar Dayal and this issue is
yet to be decided in an appropriate suit by a competent civil
court. As such, on the basis of grant of probate, the claim of title
upon the aforesaid plot and entering into the development
agreement by Respondent No.5 with regard to said plot is not
sustainable nor it will create any title in favour of the
interveners/ applicants.
9. It has further been argued that by virtue of
development agreement no title is passed in favour of developer
and in fact for transferring a title in favour of a person passing
payment/ of consideration amount is essential and in a
development agreement consideration passes only when the
building is complete and built up area of the share of land is
given to the owner. The developer cannot start construction of
building on the land in question inasmuch as neither any plan
has been sanctioned nor can be sanctioned because as per the
provisions of Bihar Municipal Act and Building Bylaws, 2014,
it is essential that the land must be free from encumbrances and
there should not be any litigation pending in that regard as per
Clause 8(i) thereof, even a sanction map shall automatically be
cancelled if any litigation arises upon the land in question.
Admittedly, the present First Appeal is pending and therefore, it
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is completely within the teeth of the provisions of the said
Bylaws of 2014.
10. Lastly, it has been submitted that from any angle
interveners are neither necessary, nor proper party, nor they may
be added as party to the present appeal. Learned senior counsel
has placed reliance upon the following judgments:-
1. (2007) 8 SCC 506 (Sunil Gupta v. Kiran Girhota &
Ors)
2. (1993) 2 SCC 507, (Chiranji Lal Shri Lal Goenka v.
Jasjit Singh & Ors.)
3. (2003) 7 SCC 301:AIR 2003 SC 3669 (Delhi
Development Authority v. Vijaya C. Gurushawney)
11. Mr. Ganpati Trivedi, learned senior counsel
appearing for the interveners/petitioners referring to Section 307
of the Act submits that this Section deals with the power of the
executor to dispose the property. In so many words, it says that
as long as the disposition of the property by the executor is
compatible with the administration of the estate, the act of
disposition by the executor is binding upon the estate of the
deceased. Meena Devi is the executor and legatee both, as the
properties have been bequeathed in her favour and hence it
cannot be said that the disposition in the form of development
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agreement is incompatible with the administration of the estate
of the testator inasmuch as interveners entered into the
agreement bonafidely with the legatee, Meena Devi who has
been the executor also. Accordingly, transaction by way of
development agreement cannot be said to be invalid. The
interveners/petitioners have entered into the development
agreement with the executor/legatee under the Will with respect
to the properties under the Will. Accordingly, some interests
have been created in the property/estate of the deceased which is
the subject matter of the Will. He next submits that in the
present case, the petitioner's legal right to proceed with the
development of the land under agreement is directly dependent
upon the result of the appeal as the authority of the executor is
itself an issue in the aforesaid appeal and the result of the
litigation may affect him legally i.e., by curtailing his legal
right. In the present case, the plaintiff/respondents have not
raised any objection regarding impleadment of the interveners
as party and hence, the appellants who are defendants cannot
raise any objection to the impleadment.
12. Lastly, it has been submitted that interveners have
only sought impleadment in appeal to protect their interest
which they have acquired by virtue of development agreement.
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The probate court has been granted unfettered discretion under
Section 283 of the Act to issue notice while granting probate
calling all persons claiming to have interest in the estate of the
deceased to come and see the proceeding, of course, before the
grant of probate. The very purpose of such notice is to watch the
proceedings either by filing objection or to support the
proceedings.
13. In the present case, the interveners have acquired
interest in the properties and estate of the deceased on the basis
of grant of probate and the said order granting probate is under
challenge in the appeal. Hence, interveners, though, may be
called hit by the doctrine of lis pendense, can be impleaded by
this Hon'ble Court by exercising its power under Order 22 Rule
10 of the CPC.
14. Learned senior counsel has placed reliance upon
the following references:-
(1) AIR 1983 SC 123 (Gafoor Ahmad Khan v. Bashir
Ahmad Khan (Dead).
(2) (1992) 2 SCC 524 (Ramesh Hira Chand Kunda
Mal v. Municipal Corporation of Greater Bombay).
(3) (2013) 5 SCC 397 (Thomsan Press India Ltd v.
Nanak Builder and Investors)
(4) (2018) 15 SCC 614 (Ramjee Bhai Patel v. Anandi
Bai Rama & Ors.
(5) 2017 (3) PLJR 791 (Kusheshwar Purvey v. Shri
Shri 108 Ram Janaki Jee S)
(6) (2018) 15 SCC 164 (Rabin Ram Jee Bhai Patel v.
Anandi Bai Rama)
Patna High Court FA No.102 of 2019 dt. 11-07-2022
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(7) 2013(2) PLJR 684 (Raj Kumar Prasad v. Vandana
Kumari)
(8) 2013 (1) PLJR 944 (Ekta Sahkari Grih Nirman
Samiti v. The Estate of Ram Parikshan Singh).
15. I have heard learned counsel for the parties.
16. In the case of Ramesh Hira Chand Kunda Mal
v. Municipal Corporation of Greater Bombay reported in
(1992) 2 SCC 524, the Hon'ble Apex Court made a distinction
between direct interest, legal interest and commercial interest
and quoting the case of Razia Begum in para-10 of this
judgment, it has been held that a person may be added as party
to the suit, he should have interest in the subject matter of
litigation whether it be a question relating to movable or
immovable property. The same paragraph is hereby quoted for
ready reference:-
"10. The power of the Court to add parties
under Order I Rule 10, CPC, came up for
consideration before this Court in Razia Begum
(AIR 1958 SC 886). In that case it was pointed
out that the Courts in India have not treated the
matter of addition of parties as raising any
question of the initial jurisdiction of the Court
and that it is firmly established as a result of
judicial decisions that in order that a person may
be added as a party to a suit, he should have a
direct interest in the subject-matter of the
litigation whether it be the questions relating to
moveable or Immovable property.
17. In paragraph-14 of the said judgment, the Hon'ble
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Supreme Court has laid down the true test for addition of parties
which is as follows:-
"14. It cannot be said that the main object of
the rule is to prevent multiplicity of actions
though it may incidentally have that effect. But
that appears to be a desirable consequence of the
rule rather than its main objectives. The person
to be joined must be one whose presence is
necessary as a party. What makes a person a
necessary party is not merely that he has relevant
evidence to give on some of the questions
involved; that would only make him a necessary
witness. It is not merely that he has an interest in
the correct solution of some questions involved
and has thought of relevant arguments to
advance. The only reason which makes it
necessary to make a person a party to an action is
that he should be bound by the result of the
action and the question to be settled, therefore,
must be a question in the action which cannot be
effectually and completely settled unless he is a
party.
The line has been drawn on a wider
construction of the rule between the direct
interest or the legal interest and commercial
interest. It is, therefore, necessary that the person
must be directly or legally interested in the action
in the answer, i.e. , he can say that the litigation
may lead to a result which will affect him legally
that is by curtailing his legal rights. It is difficult
to say that the rule contemplates joining as a
defendant a person whose only object is to
prosecute his own cause of action.
Similar provision was considered in Amon
v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R.
273, wherein after quoting the observations of
Wynn-Parry, J. in Dollfus Mieg et Compagnie
S.A. v. Bank of England (1950) 2 All E.R. 611,
that the true test lies not so much in an analysis
of what are the constituents of the applicants'
rights, but rather in what would be the result on
the subject-matter of the action if those rights
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could be established, Devlin, J. has stated:
The test is 'May the order for which the
plaintiff is asking directly affect the intervener in
the enjoyment of his legal rights.'"
18. The pendente lite purchaser has been considered
by the Hon'ble Supreme Court in the case of Thomsan Press
India Ltd v. Nanak Builders and Investors reported in (2013) 5
SCC 397. The Hon'ble Apex Court considering the various
judgments dealing on the issue has taken into consideration the
distinction between exercise of jurisdiction under Order 1 Rule
10 of the CPC as that conferred under Order 22 Rule 10 of the
CPC. The Hon'ble Supreme Court held that an alienee pendente
lite can be impleaded as party under Order 22 Rule 10 of the
CPC if his interest is substantial.
19. In the case of Ramjee Bhai Patel v. Anandi Bai
Rama & Ors. reported in (2018) 15 SCC 614 relying upon the
'Kasturi' case, the Hon'ble Apex Court held that if the plaintiff
wants to implead certain person, even if he be a subsequent
purchaser, he can be impleaded as party.
20. The Division Bench of Patna High Court in the
case of Kusheshwar Purvey v. Shri Shri 108 Ram Janaki Jee S
as reported in 2017(3) PLJR 791 has held in para-8 and 9 which
are as follows:-
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"8. After considering the submissions on
behalf of the parties, it is quite limpid that the
adjudication in a proceeding for grant of probate
or letters of administration involves
determination of certain rights of the parties. This
is also the view expressed by the Full Bench of
the Allahabad High Court in Mrs. Panzy
Fernandas v. Mrs. M.F. Queoros, A.I.R. 1963
All. 153 observing that an order passed in an
application for probate or letters of administration
does adjudicate on certain rights of the parties
conclusively. This facet has been now finally
settled by the Apex Court in Subal Paul v.
Malina Paul, (2003)10 SCC 361 [: 2003(3)
PLJR (SC)1] where their lordships have observed
as follows:--
"31..........The order passed under Section
299 of the Act may be an interlocutory order
determining the rights of the parties or a final
order. When a final order is passed in a
contentious suit, as would be evident from the
provisions contained in Section 295 of the Act,
the procedures of the Code of Civil Procedure are
required to be followed. Therefore, a final order
passed between the parties adjudicating upon the
rights and obligations which are binding between
the parties thereto and are enforceable, although
may not be stricto sensu a decree within the
meaning of Section 2(2) of the Code of Civil
Procedure but it is beyond any cavil that the same
would be a judgment within a meaning of Section
2(9) thereof........"
9. The controversy pertaining to the nature
and legal effect of a final adjudicatory order in a
proceeding for grant of probate or letters of
administration has been also highlighted by the
Apex Court in Smt. Rukmani Devi v. Narendra
Lal Gupta, A.I.R. 1984 SC 1866 where their
lordships have opined as follows:--
"2...........It is well-settled that the
decision of the probate court is a judgment in
rem. The High Court rightly held that till the
order granting probate remains in force it is
conclusive as to the execution and validity of the
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will till the grant of probate is revoked. Apart
from the fact that a decision of the probate court
would be a judgment in rem not only binding on
the parties to the probate proceedings but it will
be binding on the whole world. Therefore, a
solemn duty is cast on the probate court. Section
41 of the Indian Evidence Act, 1872 provides that
a final judgment or order of a competent court in
the exercise of probate jurisdiction is conclusive
proof of what is decided therein that is about the
genuineness of the will. To be precise, a probate
granted by a competent court is conclusive of the
validity of such will until it is revoked and no
evidence can be admitted to impeach it except in
a proceeding taken for revoking the
probate..................."
21. The appellant heavily relied upon the judgment of
Hon'ble Supreme Court in the case of Sunil Gupta v. Kiran
Girhotra & Ors as reported in (2007) 8 SCC 506 where two
Wills were brought on record, one executed by Har Bhagwan on
09.09.1997in favour of the beneficiaries and another said to have been executed on 30.10.1997 in favour of Raj Kumar. Raj Kumar did not take action for grant of probate of the Will said to have been executed in his favour on 30.10.1997 by Har Bhagwan. Even no objection was obtained from heirs of late Har Bhagwan and on the contrary, he executed the sale deed on 20.06.2003 and 27.06.2002 in favour of Amit Pahwa. The said Amit Pahwa, in turn, executed an agreement of sale with respect to one property and in furtherance thereof, a sale-deed was Patna High Court FA No.102 of 2019 dt. 11-07-2022 14/17 executed on 29.08.2003. The purchasers filed an application for impleadment in the probate proceeding initiated by the beneficiaries on the basis of Will executed on 09.09.1997. This judgment i.e., Sunil Gupta (supra) relied upon by the appellant is not applicable in the facts of the present case inasmuch as Raj Kumar though claimed on the basis of Will said to have been executed in his favour on 30.10.1997 by Har Bhagwan did not obtain the probate and without obtaining probate, he executed sale deeds on 20.06.2003 and 27.06.2003. The interveners on the basis of agreement of sale executed by Amit Pahwas the purchaser from Raj Kumar purchased the property on 29.08.2003 whereas in the present case, the admitted fact is that the Will was executed in favour of Respondent No.5, Meena Devi on 05.10.1985 and she was executor as well as legatee under the Will and accordingly, probate was granted in her favour on 05.04.2019. Being executor as well as legatee under the Will she acquired right under Section 307 of the Act to dispose of the property of the deceased vested in her under Section 211 of the Act either wholly or in part in such manner she may think fit and thus on the basis of such authority acquired by Meena Devi, the interveners, in the present case, acquired interest in the estate of the deceased. The interveners Patna High Court FA No.102 of 2019 dt. 11-07-2022 15/17 acquired interest after grant of probate in favour of executor and legatee, namely, Meena Devi, on the basis of which, development agreement was executed on 04.07.2020. Hence, the question of putting the clock back does not arise.
22. The other judgment which has been relied upon by the appellant in the case of Chiranji Lal Shri Lal Goenka v. Jasjit Singh & Ors reported in (1993) 2 SCC 507 is also not applicable in the facts of the present case.
23. In the aforesaid judgment in paragraph-20, the Hon'ble Supreme Court has come to the conclusion that the probate court alone has exclusive jurisdiction to prove the Will and the Civil court on original side or the arbitrator does not get jurisdiction even if consented by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant.
24. Another judgment relied upon, by the appellant in the case of Delhi Development Authority (supra) is not applicable in the facts of this case.
25. On conspectus of facts and law discussed hereinabove, it is clear that in the present case, the petitioner's legal right to proceed with the development of the land under agreement is directly dependent upon the result of the appeal as Patna High Court FA No.102 of 2019 dt. 11-07-2022 16/17 the authority of the executor is itself an issue in the aforesaid appeal and the result of the litigation may affect the interveners legally i.e., by curtailing their legal right. In the present case, plaintiff has not raised objection for impleading the interveners as party and hence, the appellant who is defendant cannot raise any objection to the impleadment of the interveners as party. The probate court has been granted unfettered discretion under Section 283 of the Act to issue notice while granting probate calling all persons claiming to have interest in the estate of the deceased to come and see the proceeding, of course, before the grant of probate. However, the very purpose of such notice is to watch the proceedings either by filing objection or to support the proceedings.
26. In the present case, interveners have acquired interest in the properties and estate of the deceased on the basis of grant of probate and the said order granting probate is under challenge in the aforesaid appeal. Hence, interveners, though, may be called hit by the doctrine of lis pendens, can be impleaded as party by exercising power under Order 22 Rule 10 of the CPC. The same view has been reiterated in the case of Raj Kumar Prasad v. Vandana Kumari reported in 2013(2) PLJR 684 and in the case of Ekta Sahkari Grih Nirman Samiti Patna High Court FA No.102 of 2019 dt. 11-07-2022 17/17 v. The Estate of Ram Prikshan Singh reported in 2013(1) PLJR 944.
27. In the present case, in substance, grant of probate is an issue and the interveners/applicants have filed Interlocutory Application No. 03/2022 for their impleadment as party/respondents. Interveners having acquired some interest in the property and the estate of the deceased on the basis of grant of probate in favour of Respondent No.5, Meena Devi, and the development agreement executed by her, in my opinion, at least, interveners can be allowed to be impleaded as party/respondents in order to watch the proceedings before this Court, so that they may protect their interest.
28. In the result, Interlocutory Application No. 03/2022 is allowed and the interveners/applicants are directed to be added as party/respondents in the appeal.
(Anil Kumar Sinha, J)
perwez
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CAV DATE 26.04.2022
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