Dr. Ratnesh Kumar @ Ratnesh Kumar vs The State Of Jharkhand
2021 Latest Caselaw 2420 Jhar

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                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                      W.P.(C) No. 4700 of 2019
                Dr. Ratnesh Kumar @ Ratnesh Kumar                       ..... Petitioner
                                                  Versus
                1. The State of Jharkhand
                2. Sunil Swansi
                3. Hrithik Swansi                                       ..... Respondents
                                                   -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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                For the Petitioner:        Mr. Rabindra Prasad
                For the State:             Ms. Pinky Tewary, A.C to A.G
                                                   -----

05/20.07.2021         The present writ petition has been filed for quashing the order dated

06.07.2019 passed by the learned Additional Judicial Commissioner-X, Ranchi in

L.A. Case No. 3 of 2017 / Probate Case No. 138 of 2014 whereby the

intervention application filed by the petitioner under Order I, Rule 10(2) of the

CPC has been dismissed.

2. Learned counsel for the petitioner submits that the respondent Nos. 2 &

3 filed an application for grant of Letters of Administration on the basis of Will

dated 03.09.2006 whereby Jyoti Lal Bhattacharjee bequeathed his share of land

measuring an area of 04 Kathas with old house having an area of 500 sq. ft.

appertaining to Khata No. 124, R.S. Plot No. 299 of the society part, Plot No.

101/A Part (corresponding to Co-operative Society Holding No. 1552/D-93),

Ward No. 10 (old), 28 (new), situated at old A.G Co-operative Colony, Kadru,

P.S-Argora, District-Ranchi under Ranchi Municipal Corporation. It is further

submitted that the said property was jointly purchased by Jyoti Lal

Bhattacharjee and Sujan Kumar Bhattacharya out of their joint funds by virtue

of registered sale deed dated 04.03.2006 from the previous owner. Sujan Kumar

Bhattacharya being the owner of ½ share, sold the plot measuring an area of 2

Kathas towards northern side with house area of 250 sq. ft., to the petitioner by

virtue of registered sale deed dated 19.04.2012 and he came in possession of

the same. It is further submitted that when the petitioner came to know about

filing of Probate Case No. 138 of 2014 by the respondent Nos. 2 & 3, he filed an

intervention application under Order I, Rule 10(2) of the CPC with a prayer to

implead him as an opposite party in the said probate case. However, the learned

Court below vide the impugned order dated 06.07.2019, dismissed the said

application. It is further submitted that a general notice ought to have been

published for the public providing them an opportunity to raise objections

against grant of probate. However, no such procedure was followed and without

considering the material facts, the learned Court below dismissed the said

application which is quite illegal and against the provisions of law of probate.

Hence, on this score alone, the impugned order dated 06.07.2019 is liable to be

quashed. It is also submitted that as per rule, one can apply for grant of

probate after seven days of the death of the testator (or the person who makes

the Will and is the owner of the property to be distributed). However, the said

probate case was filed after a delay of about thirteen months as the testator

died on 13.11.2013 and the petition for grant of probate was filed on

18.12.2014. It is further submitted that several irregularities were committed in

filing the said probate case, however, the learned Court below is adamant to

grant the Letters of Administration in favour of the respondent Nos. 2 & 3.

3. Per-contra, Ms. Pinky Tewary, learned AC to AG appearing on behalf of

the State-respondent, opposes the said contentions of learned counsel for the

petitioner and submits that learned Court below has dismissed the intervention

application filed by the petitioner specifically mentioning the questions which he

wanted to be decided by the Probate Court, however, the same are beyond the

jurisdiction of the Probate Court. It is well settled principle of law that the

jurisdiction of the Probate Court is limited only to consider the genuineness of

the Will.

4. Heard learned counsel for the parties and perused the relevant materials

available on record. It appears that the land in question was jointly purchased

by Jyoti Lal Bhattacharjee and Sujan Kumar Bhattacharya. Sujan Kumar

Bhattacharya sold his share of land to the petitioner whereas Jyoti Lal

Bhattachayjee executed a Will of his share of land in favour of the respondent

Nos. 2 & 3. After the death of the testator, the respondent Nos. 2 & 3 filed

Probate Case No. 138 of 2014 for grant of Letters of Administration with respect

to the property as per last Will dated 03.09.2006.

5. Before coming to the merit of the case, it would be relevant to refer

Order I, Rule 10(2) of the CPC, which is reproduced hereunder:

"Order 1 Rule 10. Suit in name of wrong plaintiff.-- (1) ..........

(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

6. Thus, under Order 1, Rule 10(2) of the C.P.C, the Court has jurisdiction to

direct impleadment of necessary and proper party. However, the Court is

required to record a finding that the person sought to be impleaded as party in

the suit is either necessary or proper party. The respondent Nos. 2 & 3 are

dominus litis and as such they cannot be compelled to implead a person, who is

'neither necessary nor proper party' in the suit. The petitioner has not

sufficiently explained either before the learned Court below or before this Court

that he was the necessary or proper party in the suit filed by the respondent

Nos. 2 & 3.

7. The Hon'ble Supreme Court, in the case of Pasupatib Nath Das (dead)

Vs. Chanchal Kumar Das (dead) by legal representatives & Ors.

reported in (2018) 18 SCC 547, has held as under:

"14. We must, at the outset, say that the scope of the matter arising from probate proceedings is very limited. The scope of the matter is primarily and principally regarding the genuineness of the execution of the testament or will. This part has been succinctly dealt with in a decision rendered by this Court in [Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300]. Paras 57, 66 and 67 of the said decision spell out the scope of the enquiry in probate proceedings as under: (SCC pp. 329-32) "57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as

to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.

***

66. We may, however, at the outset, notice a decision of this Court in [Elizabeth Antony v. Michel Charles John Chown Lengera, (1990) 3 SCC 333] which is binding on us. Therein, the testatrix viz. one Mary Aline Browne, was the wife of one Herbet Evander Browne, the eldest son of John Browne.

Mary died on 28-3-1972. She had executed a will on 12-3-1962. An application for grant of a letter of administration with a copy of the will annexed was filed by Michel. Petitioner Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that the said will was a forged document. The petitioner therein also claimed that her daughter Browne had executed a will on 23-6-1975 and she had executed a deed of gift in favour of the petitioner. She also claimed herself to be a trustee of John Browne Trust. The Probate Court held that they had no caveatable interest. Caveatable interest, therefore, was claimed as an executor and legatee of the will executed by Zoe Enid Browne as also a deed of gift in respect of one item of the estate executed in their favour. Caveatable interest was also claimed on the premise that the petitioner was appointed a trustee of John Browne Trust. This Court noticed a large number of High Court judgments. It was, however, opined that the petitioner therein failed to establish a caveatable interest stating: (SCC p. 336, para 6) '6. ... We have perused the entire order of the trial court in the context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of PW 1 that John Browne Trust has come to an end in March 1972 and the same was not in existence. The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Likewise the registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also same contentions were put forward. The learned Judge observed that from the objections filed by the caveator she desires the court in the probate proceedings to uphold her title on the

strength of a gift deed and the trust deed. It is observed:

"Equally, the petitioner has not placed before the court the will dated 23-6-1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12-3-1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23-6-1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12-3-1962 stated to have been executed by Mary Aline Browne."

Accordingly, the learned Judge held that the petitioner has not established that she has a caveatable interest justifying her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest.' This Court, thus, categorically opined that while granting a probate, the court would not decide any dispute with regard to title. A separate suit would be maintainable therefor. If probate is granted, they have a remedy in terms of Section 263 of the 1925 Act also.

67. In the recent judgment of [Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357] this Court inter alia relying upon [Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507] and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself."

(emphasis supplied)

8. Thus, jurisdiction of a Probate Court is limited only to consider the

genuineness of the Will and a question of title cannot be decided in a probate

proceedings. If a probate has been obtained by fraud or on suppression of

material fact, the same can be the subject-matter of revocation of grant in terms

with Section 263 of the Indian Succession Act, 1925. As regards the alleged

irregularities in the probate proceeding, the same may be looked into by the

learned Court below at an appropriate stage of the proceeding, however, that

does not create any right in favour of the petitioner to be impleaded in the said

probate case.

9. Even if there is some title dispute between the petitioner and the

respondent Nos. 2 & 3, determination of the said question is not within the

jurisdiction of the Probate Court and thus the learned Court below has rightly

dismissed the intervention application filed by the petitioner under Order I, Rule

10(2) of the CPC vide impugned order dated 06.07.2019. The petitioner

however is at liberty to seek appropriate civil remedy in accordance with law to

protect his share of land/property, if the situation so arises.

10. The present writ petition is accordingly dismissed with the aforesaid

observation.

Satish/A.F.R                                                            (RAJESH SHANKAR, J)