Bombay High Court
Jadeja Navalsing Mahobatsing And ... vs Mahesh Govind Trivedi & 2 Ors on 11 September, 2015
Bench: V.M. Kanade
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.481 OF 2013
ARISING FROM
CHAMBER SUMMONS NO.39 OF 2013
IN
TESTAMENTARY SUIT NO.11 OF 2012
IN
TESTAMENTARY PETITION NO.724 OF 2004
1. Jadeja Navalsing Mahobatsing, ]
Age : 40 Yrs., ]
Occu.: Agriculture & Business, ]
R/at Ravalvadi, Bhuj, Kutch.
ig ]
]
2. Patel Ramjibhai Naranbhai Halai, ]
Age : 40 Yrs., ]
Occu.: Agriculture & Business, ]
R/at Godpar, Taluka - Bhuj, Kutch. ]
]
3. Mugal Abdulbag Muhammadbag, ]
Age : 50 Yrs., ]
Occu.: Agriculture & Business, ]
R/at Godpar, Taluka - Bhuj, Kutch. ]
]
4. Rabadiya Devji Nanji, ]
Age : 40 Yrs., ]
Occu.: Agriculture & Business, ] .... Appellants /
R/at Nilkantha Nagar, Mandvi, Kutch. ] (Prop. Defendants)
Versus
1. Mahesh Govind Trivedi, ]
Indian Inhabitant, Hindu, ]
R/at Uttam Villa, St. Mary Toad, ]
Vile Parle (West), Mumbai - 400 056. ]
The sole Executor, named in the Will ]
of the Deceased ]
]
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2. Bhagwanji G. Trivedi [since deceased],]
Ground Floor, Trivedi Niwas, ]
Rashtyashala Road, Vile Parle (West), ]
Mumbai - 400 056. ]
]
3. Mugatlal G. Trivedi, ]
At present residing at Ground Floor, ]
Trivedi Niwas, Rashtyashalal Road, ]
Vile Parle (West), Mumbai - 400 056. ]
and in Jamnagar at Sameer Apartment, ]
2nd Floor, Street No.6, Patel Colony, ] .... Respondents /
Jamnagar, Gujarat. ] (Org. Defendants)
Mr. Sanjay Jain, a/w. Ms. Preeti Gada, for
the Appellants.
Mr. Venkatesh Dhond, Sr. Counsel, a/w.
Mr. Shailesh Mendon, i/by Ms. Reena
Salunke, for the Respondents.
CORAM : V.M. KANADE &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
RESERVED ON : 25TH AUGUST, 2015
PRONOUNCED ON : 11th SEPTEMBER 2015
JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
1. This Appeal is arising out of the Judgment and Order dated
10th June, 2013 passed by the learned Single Judge of this Court,
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whereby the Chamber Summons No.39 of 2013 taken out by the
Appellants for their impleadment as Respondents in
Testamentary Suit No.11 of 2012 came to be dismissed.
2. Brief facts of the Appeal can be stated as follows :-
One Ramalaxmi Ravishankar Trivedi had various properties
in Bombay as well as at Kutch, more particularly, agricultural
land, admeasuring about 13 Acres 24 Gunthas, situate in Survey
No.154 at Mandvi City and being known as "Bhandarvali" at
Godharai Falia, Kutch, Gujarat. She had executed an Irrevocable
Power of Attorney on 28th August, 1997 in favour of her late
brother Bhagwanji Trivedi, the late Respondent No.2 herein.
During her lifetime itself, Respondent No.2 had, by Deed of Sale
dated 29th November, 1997, transferred the said land to one
Narayanbhai @ Nanalal Jethalal Fufal. Ramalaxmi expired on 31 st
January, 2004 at Kutch, leaving behind Respondent Nos.1, 2 and
3 as her brothers and two sisters.
3. After her death, on 18th April, 2007, Respondent No.2 herein
had registered the said Deed of Sale before Sub-Registrar Office
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at Kutch. Thereafter, on 29th March, 2008, by executing
registered Deed of Sale, said Narayanbahi Fufal transferred that
land to the present Appellants and since then the Appellants are
in exclusive possession of the said land.
4. After the death of Ramalaxmi on 31st January, 2004, one of
her brothers, i.e. Respondent No.1, filed the Petition for grant of
Probate in respect of the registered Will dated 31 st August, 2001,
executed by Ramalaxmi in his favour. Her two other brothers,
namely, Respondent Nos.2 and 3 contested the said Petition for
Probate. Hence, it was converted to Testamentary Suit.
5. Meanwhile, Respondent No.1 has also filed Special Civil Suit
No.86 of 2007 before the Principal Senior Civil Judge, Bharuch,
Kutch for cancellation of the Sale Deed executed by Respondent
No.2 in favour of Narayanbhai Fufal, contending inter alia that
deceased Ramalaxmi has executed a registered Will on 31 st July,
2001 and on the basis thereof, he has become entitled to get all
her property. In the said Suit, he also challenged the Power of
Attorney executed by Ramalaxmi in favour of Respondent No.2,
on the basis of which Respondent No.2 had sold property to
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Narayanbhai Fufal. The present Appellants were joined in the
said Suit as party-Defendants, in view of the Deed of Sale
executed by Narayanbhai Fufal in favour of the Appellants on
29th March, 2008. In that Suit, the Court framed various issues in
respect of the entire transaction of sale, by virtue of which the
Appellants claimed to have become owners of the land.
6. That Suit came to be dismissed on 21st June, 2012.
7. In view thereof, the Appellants took out Chamber Summons
in Testamentary Suit, pending before the learned Single Judge,
seeking their impleadment in the Suit on the ground that they
are having caveatable interest in the agricultural land, which was
arraigned as the subject matter of the estate left behind by the
deceased. It was contended that the said agricultural land was
no longer the estate of the deceased on the date of filing the
Probate Petition and, therefore, Respondent No.1 cannot pray for
the grant of Probate in respect of the said property. It was
submitted that, by virtue of the Deed of Sale executed in their
favour, the Appellants have become exclusive owners of the said
agricultural land and they have special interest in the said
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property. Their presence, as proposed Respondents/Defendants
was, therefore, necessary for the decision of the Probate Suit. If
the Probate Suit is decided without joining them, their interests
and rights will be affected and, therefore, it was requested that
in the interest of justice and equity, they may be permitted to
join as party-Defendants in the Suit to contest the grant of
Probate.
8.
This Chamber Summons taken out by the Appellants was
resisted by the Plaintiff / Respondent No.1 herein, by contending,
inter alia, that the Appellants have no right, title or interest in
respect of the property left behind by the deceased and hence
no locus standi to become party to the probate proceedings.
According to Respondent No.1, the alleged transaction of
Appellants purchasing one of the properties of the deceased
from one of the brothers of the deceased, under the Power of
Attorney alleged to have been executed by the deceased was
void, ab-initio and not binding upon the Respondents. It was
further contended that the entire claim of the Appellants, while
taking out Chamber Summons, was based on the dismissal of
the Special Civil Suit filed in the Court of Principal Senior Civil
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Judge, Bhuj, in which the Respondents herein have challenged
the transaction claimed by the Appellants in respect of the said
property. The decree of dismissal passed in the said Suit has
been set aside by the High Court of Gujarat in First Appeal
No.2453 of 2012 preferred by the Respondents herein. While
allowing the Appeal on 5th December, 2013. It is clearly held that
the Appellants have no right, title or interest in the suit property.
In view thereof, it was submitted that the claim of the Appellants
of having caveatable interest in the property is already
negatived by the Division Bench of the High Court of Gujarat.
Since the entire transaction, on the basis of which the Appellants
claimed the right in the property, has been set aside by the
competent Court, according to Respondent No.1, the claim of the
Appellants of having caveatable interest in the property left
behind by the deceased is totally nullified. Therefore, the
Appellants had no right to contest the probate proceedings and
the Chamber Summons taken out by them for their impleadment
deserved to be dismissed.
9. The learned Single Judge, after hearing learned counsels for
both the parties, was pleased to dismiss the Chamber Summons,
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by holding that the claim of the Appellants being based on title
and as the Testamentary Court cannot determine the issue of
title, the Appellants' claim for impleadment in the probate
proceedings cannot be entertained. Further it was held that,
even if the Will of deceased Ramalaxmi is probated, the title of
the property claimed by the Appellants would not be determined,
as the same would be only determined in the Appeal, which was,
at the relevant time, pending in Gujarat High Court. As regards
the contention of the Appellants challenging the execution of the
Will, learned Single Judge held that, being a purchaser of the
property from the assignee of the constituted attorney of the
deceased, Appellants would have no knowledge of the execution
of the Will of the deceased. The Power of Attorney executed by
the deceased would stand terminated on the death of the
deceased and, therefore, the Appellants cannot be a proper
party in the Testamentary Suit. In the result, the Chamber
Summons was dismissed.
10. This order of the learned Single Judge is challenged in this
Appeal by learned counsel for the Appellants, by submitting that
the Appellants are the assignee of one of the property mentioned
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in Schedule I of the Testamentary Suit and, therefore, they are
having caveatable interest. They are also in exclusive use,
occupation and possession of the said property since the date of
registered Sale Deed dated 29th March, 2008. All the natural
heirs of the deceased, except the Probate Petitioners, have
supported the said Conveyance. The grant of Probate in such
situation, without impleadment of the Appellants, would displace
the rights acquired by the natural heirs in the property upon
intestate death of the deceased. Hence, the Appellants, as
successors to the natural heirs, are entitled to caveatable
interest. By placing reliance on the various authorities, learned
counsel for the Appellants has urged that even a "slightest or
remote interest" in the property of the Testator entitles a person
to file caveat and contest the grant of Probate. According to him,
the Appellants have more than the slightest or remote interest.
Even the decree passed by the Gujarat High Court against the
Appellants is subject to grant of Probate. Hence, the Appellants
will be vitally and adversely affected, if Testamentary Suit is
decided without joining them as party.
11. Per contra, learned counsel for the Probate Petitioner/
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Respondent No.1 has supported the impugned order of the
learned Single Judge rejecting the Chamber Summons, by
submitting that the Judgment of the Gujarat High Court in First
Appeal No.2453 of 2012 has sealed the fate of the Appellants'
claim as in the said Judgment, the claim of the Appellants, based
on the title, acquired on the basis of alleged Power of Attorney
executed by the deceased is clearly and staunchly negatived.
Moreover, the Special Leave Petition No.CC 7184 of 2014
preferred by the Appellants in the Supreme Court challenging the
said Judgment in Appeal is also dismissed. Therefore, the
Appellants have absolutely no case. Hence, according to learned
counsel for Probate Petitioner, Appellants have failed to show
any interest, much less, the caveatable interest for their
impleadment in the Probate Suit. As to the suspension of the
decree passed in First Appeal by Gujarat High Court, it is urged
that only that part of the decree, which entitled the Probate
Petitioner to get the property is suspended, subject to the
decision of probate proceedings, whereas, the first part of the
decree which negatived the claim of the Appellants based on
their title is absolute and not suspended in any way. Hence,
according to learned counsel for Probate Petitioner, no
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interference is warranted in the impugned order of the learned
Single Judge.
12. In our considered opinion, before adverting to the rival
submissions of learned counsels for both the parties, it would be
necessary to revisit the chronology of the events and the
admitted facts.
13.
The claim of the Appellants is admittedly based on the title.
According to the Appellants, they are the bonafide purchasers of
the suit property from one Narayan Fufal, in whose favour Deed
of Sale was executed by Respondent No.2, on the basis of the
Irrevocable Power of Attorney executed by deceased Ramalaxmi
in his favour. This entire transaction, which was entered into by
Respondent No.2 in favour of Narayan Fufal and thereafter
Narayan Fufal entering into transaction with the Appellants in
respect of the suit property was challenged by Respondent No.1
by filing a Special Civil Suit No.86 of 2007 in the Court at Bhuj,
Kutch. In the said Suit, Respondent No.1 has sought the relief of
cancellation of the Sale Deed in respect of the property executed
by Respondent No.2 during the lifetime of deceased Ramalaxmi
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in favour of Narayan Fufal. By way of amendment in the said
Suit, the names of the present Appellants were also brought on
record as in the meanwhile Narayan Fufal had sold the property
in favour of the Appellants and put them in possession of the
property. Respondent No.1 herein has sought two specific and
separate reliefs in the said Suit; first pertaining to the
cancellation of the said sale transaction and second pertaining to
his own rights, to get possession of the suit property.
14. The specific prayers made in the said Suit were as follows :-
"(a) Be pleased to allow the suit of the plaintiff with
costs.
(b) Be pleased to pass a decree holding that the
registered document dated 18.04.2007
executed by the defendant no.1 in favour of
the defendant no.2 is illegal, unauthorized,
with malafide intention, fraudulent, null and
void and invalid and the same be cancelled
and it be declared that the said is not binding
to the plaintiff.
(c) Be pleased to pass a decree holding that the
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registered document dated 29.03.2008
executed by the defendant no.2 in favour of
the defendants no.3 to 6 is illegal,
unauthorized, with malafide intention,
fraudulent, null and void and invalid and the
same be cancelled and it be declared that the
said is not binding to the plaintiff.
(d) Be pleased to pass a permanent injunction
order restraining the defendants that they may
not sell the suit property either themselves or
through anybody or may not create any
encumbrances thereon or may not get the said
land converted into non-agricultural land or
may not do any other transaction."
15. The said Suit was dismissed at the trial court stage,
however, in the First Appeal preferred by Respondent No.1
bearing No.2453 of 2012, the decree of the Trial Court was set
aside and the Appeal was allowed. A categorical finding is
recorded in the said Judgment in paragraph Nos.36, 37 and 28,
as follows :-
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"36. The present appeal succeeds.
(1) as defendant No.1 has sought to transfer
the suit property through deed of power
of attorney, which is not irrevocable and
which is unenforceable / defective power
of attorney deed, hence, in the
circumstances of the case, no right, title
or ig interest is passed in favour of
defendant No.2 and consequently nor in
favour of defendant Nos.3 to 6.
(2) as defendant Nos.3 to 6 are not bona fide
purchasers for value without notice.
Almost all material circumstances are
against defendant Nos.3 to 6. Filing of
application by plaintiff claiming breach of
undertaking by defendant No.2, then, the
fact that son of defendant No.2 is an
advocate practicing along with and under
the advocate for defendant No.2. Then
the say of defendant No.5 in his evidence,
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all these are possible to read in favour of
the plaintiff.
(3) as the findings of the learned trial court, -
except the finding that the suit is bad for
not praying relief of possession, - are not
only bad in law and illegal, but almost all
of them are perverse.
37.
The learned trial court has laboured hard to
draw the conclusion that transaction under
challenge had taken place in presence of
deceased Ramalaxmiben. The overwhelming
circumstances of the case that points towards
different direction, ignored or not properly
appreciated by the trial court, while no
evidence is led on behalf of defendant No.1,
appreciation of other evidence is grossly
erroneous. Hence, its finding is perverse. Fine
attempt made by the learned advocate Shri.
Gandhi to support the finding of the trial court
by covering and connecting this finding with
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legal submission fails, as facts and
circumstances of the case do not help the
learned advocate.
38. In view of the above discussion, the appeal
succeeds. The judgment and decree passed by
the learned trial court in Special Civil Suit
No.86/2007 is hereby quashed and set aside."
16.
Thus, as regards the decree or the reliefs sought by
Respondent No.1 in the said Suit seeking cancellation of the
entire sale transaction executed in favour of initially Narayanbhai
Fufal and thereafter in favour of the Appellants, the Gujarat High
Court has categorically held that, "the Appeal succeeds and the
Judgment and Decree of the Trial Court is accordingly quashed
and set aside". That part of the Judgment of the Gujarat High
Court has become absolute as such, as in Para No.39 of the
Judgment also, there is categorical pronouncement that, "the
Appeal succeeds. The Judgment and Decree passed by the
learned Trial Court is hereby quashed and set aside. The Appeal
is allowed with costs".
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17. As regards the second relief which was sought by the
Plaintiff therein, of getting possession of the land, which was
subject matter of the Suit and which relief was sought by the
Plaintiff therein at the appellate stage, it was held that, this right
to possession, as claimed by the Plaintiff therein, cannot be
granted at this stage, as the probate proceedings were pending
in this Court and as in the probate proceedings, he will have to
prove the execution of the Will on the basis of which he was
claiming interest and possession in the suit property. By placing
reliance upon the decision of the Supreme Court in the case of
Binapani Kar Chowdhury Vs. Satyabrata Basu & Anr., AIR
2006 SC 2263, it was held that, this part of the Judgment and
Decree passed in favour of the Plaintiff relating to Plaintiff's right
to get possession of the suit land, passed in the Appeal, will take
effect only on the Plaintiff therein succeeding in obtaining and
producing the probate of the Will and till then the decree to that
effect should be considered only as provisional and not to be
given effect to.
18. Thus, the perusal of the Judgment of the Gujarat High
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Court, which has now become final in view of the dismissal of the
Special Leave Petition No.CC 7184 of 2014 preferred by the
Appellants herein, in the Supreme Court, it is very clear that the
entire Judgment and Decree passed therein is not kept in
abeyance or in suspension, but only that part of the Judgment
and Decree, which holds the Plaintiff therein entitled to get
possession of the said land is kept in abeyance or suspension till
the probate is granted in their favour. So far as first part of the
Judgment and Decree relating to cancellation of the sale
transaction in favour of the Appellants, the Judgment is very
clear and categorical. Not only in para No.36, but also in para
No.38, it is held that, "Appeal succeeds and the Judgment and
Decree of the Trial Court is quashed and set aside". There is also
categorical finding recorded that the entire sale transaction,
based on irrevocable Power of Attorney was illegal, null and void.
19. In view thereof, submission of learned Counsel for the
Appellants that the entire Judgment and Decree passed by
Gujarat High Court is under suspension or abeyance cannot be
accepted. As rightly submitted by learned counsel for the
Respondent, if the Gujarat High Court wanted to keep that part
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of the decree also in abeyance or suspension till the grant of
probate, Gujarat High Court would not have entered into the
futile exercise of deciding the legality and validity of the sale
transaction executed in favour of the Appellants. Gujarat High
Court would have straightaway either stayed the Appeal till the
decision of probate proceedings or would not have allowed the
Appeal, as it has done by specifically observing that "the Appeal
succeeds". As a result of the success of the said Appeal and in
the light of the specific prayers made by the Plaintiff in the said
Suit, it has to be held that now the rights of the Appellants,
based on the title, stand determined. Appellants cannot agitate
the same. Reliance placed by the learned Counsel for the
Appellant in this respect on the Judgment of Smt. Indira Nehru
Gandhi Vs. Raj Narain & Anr., (1975) 2 SCC 159, is also
misplaced, as the facts of the said case are totally different,
especially, because the said case pertains to stay on
disqualification under the Representation of the People Act,
1957.
20. Once it is held that whatever interests Appellants are
claiming in the suit property, were on the basis of the title
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derived from the deed of sale and that claim has already been
rejected by the competent court, the case of the Appellants that
they are having caveatable interest in the property of the
deceased and therefore entitled to be impleaded, goes away
completely.
21. As regards the contention of the Appellants that they
are assignees of one of the properties, mentioned in Schedule I
of Testament Petition, from the heir apparent, namely
Respondent No.2, and therefore they have a caveatable interest,
the said contention also cannot be accepted as their claim
based on title is rejected by the competent court and that
decision has achieved finality upto the Supreme Court. As a
matter of fact, the claim of the Appellants in the Chamber
Summons and also in this appeal was based on the fact that they
are having title to the suit property on the basis of deed of sale
and said title was upheld by the Court of Civil Judge Senior
Division, in Gujarat State in Special Suit No.115 of 2007 and
therefore, they are entitled to be impleaded in the probate
proceeding. However, as the decree passed in Special Civil Suit
No.115 of 2007 is already quashed and set aside and categorical
finding is recorded to the effect that the Appellants have no
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right, title or interest in the property and Respondent No.1 is
entitled to get possession of the said property subject to decision
of probate petition, the very foundation of the Appellants' claim
of having caveatable interest in the property stands demolished.
If at all Appellants were having any other claim in the suit
property, apart from the one based on the title, like being the
assignees of heir apparent of deceased Ramalaxmiben,
Appellants ought to have raised that claim in the said suit.
Apparently Appellants have not done so. In such situation, the
said claim is also barred by principles of res-judicata under
Section 11(4) of the Code of Civil Procedure.
22. As to the reliance placed upon various judgments, by
learned counsel for the Appellants, the crux of all these
authorities is that, even if caveator has a slightest interest in the
property of the deceased, he becomes entitled to be impleaded
as party in probate proceeding. In our opinion, there can hardly
be any dispute about this legal proposition, however, what is of
utmost significance is that caveator's is interest in the property
should not have been already negatived by the court of
competent jurisdiction, as has happened in the instant case.
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23. In the first authority relied upon by learned counsel
for appellants, M.K. Sowbhagiammal and anr -vs- Komalang
Ammal and anr, AIR 1928 Madras 803, a test is laid down by
the Madras High Court to determine caveatable interest of the
caveator and it was held if grant of probate would in any manner
displace any right of the caveator, it has to be held that he has
caveatable interest in the property of the deceased. Hence
person whose
right would be displaced in any manner
whatsoever on grant of probate would be considered as a person
having caveatable interest. Same legal position is reiterated in
Swantantranandji -vs- Lunidaram Jangaldas and in
Krishna Kumar Birla -vs- Rajendra Singh Lodha, (2008),
10 SCC 300. There can be absolutely no two opinions about this
legal proposition. In the instant case however, whatever interest
the present Appellants had in the suit property was not
dependent on the grant or non grant of probate but it was
dependent on his title to the property and his right to the
property has already been displaced, in view of the decision in
Special Civil Suit No.117 of 2005. Therefore, here the grant or
non grant of probate has no effect whatsoever to displace or
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otherwise the right of the Appellants in the property of the
deceased. Hence the Appellants cannot be called as having
caveatable interest in the property.
24. The next authority relied upon by learned counsel for
the Appellants is G. Gopal -vs- C. Bhaskar and ors (2008) 10
SCC 489; wherein principle laid down in the above said
authority has been reiterated, further holding that the interest
howsoever slight is sufficient to entitle the party to oppose grant
of probate. Here in the case, assuming that the Appellants had
not only having slight interest, but substantial interest in the
property of the deceased, as their claim to that interest being
based on the title and being already adjudicated upon, this
authority also cannot be made applicable to the facts of the
present case.
25. In Thomas P. Jacob -vs- M.G. Varghese and ors,
(AIR 1978 Ker 193), relied upon by learned counsel for
Appellants, it was held that, "just like purchaser or assignee,
even a creditor of the natural heir has locus standi to oppose the
grant or probate or to apply for revocation of the probate when
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the interest of the natural heir, in the estate of the deceased
would be adversely affected by grant of probate". Again in the
instant case the locus standi of the Appellants based on their
title is already decided in negative by the competent court.
Therefore, neither as a purchaser nor as a assignee, the
Appellants can claim caveatable interest in the property.
26. Learned counsel for Appellants has also relied upon
AIR 1949 Cal 296, Dinabhandhu Roy Brajraj Saha -vs-
Sarala Sundar Dassaya, and AIR 1957 Cal. 631, Pramode
Kumar Roy -vs- Sephalika Dutta, to submit that the person
acquiring an interest in property even after the death of
deceased, can be joined as party to the probate proceedings, if
he has caveatable interest.
27. In our opinion, these authorities also cannot be of help
to the appellants as in the present case the claim of the
Appellants to be impleaded in the probate proceeding is not
denied because they have acquired interest in the property
subsequent to the death of Ramlaxmiben but because they have
failed to prove that interest.
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28. The second leg of argument advanced by learned
counsel for Appellants is that the probate proceedings are
practically without any contest as such and therefore, the
impleadment of the Appellants is essential. However, this
submission also cannot be accepted for the simple reason as laid
down in the case of Krisha Kumar Bira -vs- Rajendra Singh
Lodha (2008) 4 SCC 300, that, "the person cannot also be
impleaded as party even on the apprehension that those who
have caveatable interest and to whom citations had been issued
would not take any interest in the litigation". It was held that,
"such apprehension would not permit the impleadment of any
person as a caveator if he did not otherwise have a caveatable
interest".
29. The plea raised by learned counsel for the appellants
that the judgment rendered in probate proceedings is judgment
in rem is also dealt with by the Supreme Court in this authority.
It was held that though it is a judgment in rem, its application is
limited as it would not determine the question of title. In the
instant case the title of the Appellants is already determined.
Now allowing Appellants to raise their claim in the probate
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proceedings, on the basis of the same title which is already
determined, is as good as entertaining the claim which is barred
by res judicata and rendering the probate proceeding as
proceeding qua title, which is not legally permissible. Hence
even if it is held that the Appellants are not asserting the title
adverse to estate, considering the fact that their title to the
property is already determined, they have no right to be
impleaded in the property.
30. In our considered opinion, therefore, the learned
Single Judge has rightly rejected the Chamber Summons taken
out by Appellants. The appeal, therefore, holds no merit, hence
stands dismissed. The parties to bear their own costs.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [V.M. KANADE, J.]
CERTIFICATE
Certified to be true and correct copy of the original
signed judgment
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