Orissa High Court
Tilottama Jena & Others vs Sandhyarani Brahma & Others ... Opp. ... on 26 August, 2025
ORISSA HIGH COURT : CUTTACK
C.M.P. No.101 of 2018
An application under Article 227 of the Constitution of India.
***
Tilottama Jena & Others ... Petitioners.
-VERSUS-
Sandhyarani Brahma & Others ... Opp. Parties.
Counsel appeared for the parties:
For the Petitioners : Mr. S. Kar, Advocate.
On behalf of Mr. A.R. Dash. Adv.
For the Opp. Parties : Mr. R.C. Rath, Advocate.
(For the Opp. Party No.5)
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Dates of Hearing : 15.07.2025 :: Date of Judgment : 26.08.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. This CMP under Article 227 of the Constitution of India,
1950 has been filed by the petitioners praying for quashing
(setting aside) the impugned order dated 02.01.2018
(Annexure-6) passed in the suit vide O.S. No.2 of 2016 by the
learned Civil Judge, (Sr. Division), Banki.
2. The factual backgrounds of this CMP, which prompted
the petitioners for filing of the same is that, a Test Case was
filed by the petitioners under Section 276 of the Indian
Succession Act, 1925 praying for probation of the will
executed by Sebati Dei in their favour impleading the Opp.
Party No.1 to 4 in this CMP as the Opp. Party Nos.1 to 4 in the
said Test Case.
When the Opp. Party Nos.1 to 4 contested that Test
Case, then, as per the provisions of law envisaged in Section
295 of the Indian Succession Act, 1925, the said Test Case
was converted to a suit vide O.S. No.2 of 2016.
3. During the course of hearing of such suit vide O.S. No.2
of 2016, one third party namely, Gangadhar Debata filed a
petition on dated 25.10.2017 under Order 1, Rule 10 of the
CPC, 1908 praying for his impleadment as Opp. Party in that
O.S. No.2 of 2016 stating that, the R.o.R. of the properties
covered under the will dated 13.08.2001, (to which, the
plaintiffs have prayed for probation) was published in the year
1962 in the name of Abhimanyu Brahma and Abhimanyu
Brahma was the owner of the same. Till yet, the R.o.R of the
suit properties covered under the will in question is
continuing in the name of Abhimanyu Brahma. During the life
time of Abhimanyu Brahma, he (Abhimanyu Brahma) had
transferred Ac.0.10 dec. out of Ac.0.40 dec. of plot No.1167
(covered under the will) along with some other properties in
favour of Gangadhar Debata along with his two brothers,
namely, Niranjan Debata and Bidyadhar Debata by executing
and registering a sale deed dated 598 dated 28.02.1977 and
when he (Gangadhar Debata) came to know about the
pendency of the suit vide O.S. No.2 of 2016 for probation of
the will dated 13.08.2001 containing their purchased
properties, then, he (Gangadhar Debata) filed a petition on
dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908
praying for his impleadment as Opp. Party in that suit vide
O.S. No.2 of 2016 stating him as necessary party having his
interest therein along with his two brothers.
To which, the plaintiffs objected on the ground that, the
petition under Order 1, Rule 10 of the CPC, 1908 filed by the
third-party petitioner (Gangadhar Debata) for his impleadment
as a party in the suit vide O.S. No.2 of 2016 is not
maintainable under law. Because, in a probate proceeding,
authenticity and genuineness of the will in question is to be
determined, but not the title of the properties covered under
the will. For which, the petitioner has no locus standie as per
law for his impleadment as a party in the suit vide O.S. No.2
of 2016. Therefore, his petition dated 25.10.2017 under Order
1, Rule 10 of the CPC, 1908 is liable to be rejected with cost.
4. After hearing from the learned counsels of both the sides,
the learned Trial Court i.e. learned Civil Judge, (Sr. Division),
Banki allowed that petition dated 25.10.2017 under Order 1,
Rule 10 of the CPC filed by the third-party petitioner-
Gangadhar Debata as per Order dated 02.01.2018 assigning
the reasons that,
"when the third party-petitioner filed one
original registered sale deed No.596 dated
28.02.1977, which contains some properties of the
will sought to be probated, then, the presence of
the third-party petitioner for proper adjudication of
the suit is required. Therefore, the petition filed by
the third-party petitioner (Gangadhar Debata)
under Order 1, Rule 10 of the CPC, 1908 was
allowed and direction was given to the plaintiffs to
file consolidated cause title adding Shri
Gangadhar Debata as party/defendant in the suit
vide O.S. No.2 of 2016."
5. On being aggrieved with the said order dated 02.01.2018
passed in O.S. No.2 of 2016 by the learned Civil Judge, (Sr.
Division), Banki, the plaintiffs in O.S. No.2 of 2016 challenged
the same by filing this CMP under Article 227 of the
Constitution of India, 1950 praying for quashing the said
impugned order dated 02.01.2018.
6. I have already heard only from the learned counsel for
the petitioner and the learned counsel for the Opp. Party No.5
(Gangadhar Debata), as the other Opp. Parties did not
participate in the hearing of this CMP.
7. In order to assail/quash the impugned order, the learned
counsel for the petitioners (plaintiffs) relied upon the following
decisions:
i. Krishna Kumar Birla Vs. Rajendra Singh Lodha
& Others reported in (2008) 4 SCC 300.
ii. Pasupati Nath Das (dead) Vs. Chanchal Kumar
Das (dead) by legal representatives & Others
reported in (2018) 18 SCC 547.
8. Basing upon the petition dated 25.10.2017 under Order
1, Rule 10 of the CPC, 1908 of the third-party petitioner (Opp.
Party No.5 of this CMP), objection against the same filed by
the plaintiffs in the suit vide O.S. No.2 of 2016, observations
made by the learned Civil Judge, (Sr. Division), Banki in the
impugned order dated 02.01.2018 and the rival submissions
of the learned counsels of both the sides, the crux of this CMP
is that,
Whether in the contested probate proceedings
converted to a suit vide O.S. No.2 of 2016, the third-party
Gangadhar Debata can be impleaded as a party under
Order 1, Rule 10 of the CPC, 1908 on the ground of a
purchaser of some properties covered under the Will in
question sought to be probated as a purchaser of the
same prior to the execution of the Will in question?
9. It has already been clarified by the Apex Court in the
ratio of the decision between Krishna Kumar Birla Vs.
Rajendra Singh Lodha & Others reported in (2008) 4 SCC
300 (decided on 31.03.2008), that,
"a person, who question title of the testator,
he/she is not entitled to lodge caveat and
oppose probate. Because, the jurisdiction of
probate Court is limited being confined only to
consider the genuineness of the Will. Probate
Court while granting probate is not to decide the
dispute with regard to title. A separate suit is
maintainable therefore. In case, probate is
granted, then, remedy is in terms of Section 263
of Succession Act, 1925. Everybody cannot
lodge caveat. Caveator must have some interest
in the estate of testator. A person, who claims
any interest adverse to the testator cannot
maintain an application before the Probate
Court."
10. In a case between Smt. Aparna Dhirsingh Vs. Sri
Pravakar Satpathy & Another in Writ Petition (Civil)
No.28409 of 2011 (Orissa) decided on 08.05.2012 that,
"a purchaser of the property belonging to the
deceased testator should not be impleaded as a
party in the probate proceeding."
11. When it has been clarified in the ratio of the aforesaid
decisions of the Apex Court and Hon'ble Court that, a
purchaser to the property covered under the Will sought to be
probated, should not be impleaded as a party in the probate
proceeding, but, the said views have been differentiated in the
subsequent decision of the Apex Court and the said decision
is,
In a case between G. Gopal Vs. C.Baskar reported in 2009 (1)
Civil Court Cases 784 (SC) (decided on 03.09.2008) that, if a
person who has even a slight interest in the estate of the testator
is entitled to file caveat and contest the grant of probate of the
Will of the testator.
12. It has been envisaged in Section 283 (1)(c) & (2) of the
Indian Succession Act that,
In a probate proceeding, the Court is required to issue
citation calling upon all persons claiming to have any interest
in the estate of the deceased to come and see the proceedings
before the grant of probate or letters of administration and
such citation shall be fixed up in some conspicuous part of
the court-house, and also in the office of the Collector of the
district and otherwise published or made known in such
manner as the Judge or District Delegate issuing the same
may direct.
13. The aforesaid provisions of law envisaged in Section 283
(1)(c) & (2) clarify that,
it is the duty of the Court, in which a probate proceeding is
filed and or pending, to issue general citation as general notice
calling upon the persons to come, see and participate in the
said proceeding, those have any interest in the properties of the
deceased covered under the Will pending for deciding for the
grant of probate or letters of administration.
14. Section 213 of the Indian Succession Act, 1925 provides
that, the rights under the Will by executor or a legatee cannot
be established unless probate or letters of administration are
obtained.
So Section 213 of the Indian Succession Act clearly
creates a bar to the establishment of any right under the Will
by an executor or a legatee unless probate or letters of
administration of the Will have been obtained.
15. On this aspect, the propositions of law has already been
clarified in the ratio of the following decision:
I. In a case between Smt. Aparna Dhir Singh Vs. Debendra Nath
Jenamani & Others reported in 2010 (I) OLR 508 that, the
Supreme Court has categorically laid down that, Section 213 of the
Indian Succession Act clearly creates a bar to the establishment of
any right under the Will by an executor or a legatee unless the
probate or letters of administration of the Will have been obtained. It
is immaterial whether the right under the Will is claimed as a
plaintiff or as a defendant; in either case, Section 213 will be a bar to
any right being claimed by a person under a Will whether as a
plaintiff or as a defendant unless probate or letters of administration
of the Will have been obtained.
16. Here in this matter at hand, when it is the case of the
third-party petitioner that, Plot No.1167 is covered under the
Will in question and the R.o.R of that Plot No.1167 stands in
the name of Abhimanyu Brahma since the year, 1962 and the
said R.o.R in the name of Abhimanyu Bramha is continuing
till yet and when he (third-party petitioner Opp. Party No.5 in
this CMP) has prayed for his impleadment in the suit vide O.S.
No.2 of 2016 as a purchaser of the Plot No.1167 on the basis
of the sale deed No.598 dated 28.02.1977, which is much
prior to the execution of Will in question, as the Will in
question has been executed on dated 13.08.2001 and when
Section 283 of the Indian Succession Act provides that, it is
the duty of the Court to invite the persons claiming to have
any interest in the estate of the deceased to come, see and
participate in the probate proceeding and when Section 213 of
the Indian Succession Act provides that, the rights under the
Will by an executor or legatee cannot be established unless
the probate or letters of administration are obtained and when
the Apex Court in the above decision between G. Gopal Vs.
C.Baskar reported in 2009 (1) Civil Court Cases 784 (SC)
has held that, a person who has even a slight interest in the
estate of the testator is entitled to file caveat and contest the
grant of probate of Will and when the petition under Order 1,
Rule 10 of the CPC filed by the third-party petitioner (Opp.
Party No.5 in this CMP) has been allowed by the learned Trial
Court for hearing of the suit in his presence and when the
final decision of the Court in that probate proceeding vide O.S.
No2/2016 shall not prejudice to any of the parties including
the petitioners thereof if the suit is decided impleading the
Opp. Party No.5 of this CMP under Order 1, Rule 10 of the
CPC, 1908 then, at this juncture, the impugned order dated
02.01.2018 passed in O.S. No.2/2016 by the learned Civil
Judge, (Senior Division), Banki allowing the petition under
Order 1,Rule 10 of the CPC of the third-party petitioner
thereof (Opp. Party No.5 in this CMP) for his impleadment as
defendant cannot be held as erroneous.
For which, the question of interfering with the same
through this CMP filed by the petitioners (plaintiffs) does not
arise.
17. In result, this CMP filed by the petitioners (plaintiffs) is
dismissed on contest.
18. As such, the CMP filed by the petitioners (plaintiffs) is
disposed of finally.
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
The 26.08,2025// Rati Ranjan Nayak
Sr. Stenographer
Location: High Court of Orissa, Cuttack, India.
