Patna High Court
Smt. Dhaneshwari Devi vs Amit Kumar And Ors on 1 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.578 of 2017
In
CIVIL REVISION No.38 of 2017
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Smt. Dhaneshwari Devi wife of Umesh Sharma, resident of Mauza Hardiya,
Police Station Mehdiya and District Arwal.
... ... Petitioner
Versus
1. Amit Kumar son of Brij Kishore Sharma.
2. Ashok Kumar son of Brij Kishore Sharma.
3. Sanket Kumar son of Brij Kishore Sharma.
4. Manish Kumar son of Brij Kishore Sharma.
All resident of Akronja, Police Station Bansi and District Arwal.
5. Pinki Kumari daughter of Kundu Singh, resident of Village Mariyama,
Police Station Bikram and District Patna.
... ... Opposite Parties
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Appearance :
For the Petitioner/s : Mr. Avinash Chandra, Advocate
For the Respondent/s : Mr. Rajiv Ranjan Kumar Pandey, Advocate
Mr. Kritya Nand Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
Date : 01-08-2023
Heard learned counsel for the parties.
2. This Civil Miscellaneous application has been
filed under Article 227 of the Constitution of India against the
order dated 27.01.2017 passed in Title Suit No. 13 of 2012,
whereby the learned Sub-Judge 1st, Arwal, allowed the petition
dated 09.12.2016 filed on behalf of the respondent nos. 1 to 4
under Order 1 Rule 10 (2) and Order 22 Rule 10 of Code of
Civil Procedure and Section 211 and 212 of the Indian
Patna High Court C.Misc. No.578 of 2017 dt.01-08-2023
Succession Act.
3. The brief facts of the case are that one Gyanti
Devi has filed suit for declaration of the title of the plaintiff and
also for setting aside the executed sale deed by respondent no. 1
in favour of respondent no. 2 with regard to the suit property.
Defendants contested the suit, issues were framed and plaintiff
has given her evidence on 12.03.2014. The plaintiff hereafter
died on 29.09.2016.Thereafter, respondent nos. 1 to 4 filed a
petition dated 09.12.2016 claiming that original plaintiff Gyanti
Devi had already executed a deed of Will on 02.07.2016, which
was registered on 04.07.2016, voluntarily and in good state of
mind. After death of testator Gyanti Devi these intervenors are
her legal representatives for all purposes including the suit
properties. It is also stated that intervenors are ready to contest
the suit. Accordingly, they may be impleaded in the suit in the
category of plaintiffs as being necessary parties. Despite given
sufficient opportunities, petitioner failed to file any rejoinder to
contest the said application. Accordingly, learned trial court vide
impugned order dated 27.01.2016 allowed the said petition and
ordered to implead respondent nos. 1 to 4 in the category of
plaintiffs and the case has been fixed for the evidence.
4. Learned counsel for the petitioner submits that
Patna High Court C.Misc. No.578 of 2017 dt.01-08-2023
petitioner till date has not filed either original or copy of the
alleged Will and without giving any finding on the said, the
learned court below has allowed the petition. He further submits
that till date respondent nos. 1 to 4 have not filed any probate
case. He also submit that Gyanti Devi was issueless.
Accordingly, as per the Indian Succession Act, the heirs had to
be impleaded in her place to contest the suit not the respondent
nos. 1 to 4. He further submits that case is at advance stage, at
this stage making respondent nos. 1 to 4 as party is not proper.
5. On the other hand, learned counsel for the
respondents submits that respondent nos. 1 to 4 are nephew of
original plaintiff who executed the registered will in their favour
with respect to the suit property. Accordingly, they are necessary
party and they are ready to contest the suit. Accordingly, the
learned court below has rightly allowed their petition. He has
filed the copy of the Will in the case and he will file the same
before the trial court also. He further submits that under Order 1
Rule 10 (2) of C.P.C., the court can implead them at any stage of
the suit since respondent nos. 1 to 4 are necessary party.
Therefore, there is no illegality in the impugned order and no
interference of the court is required in its supervisory
jurisdiction.
Patna High Court C.Misc. No.578 of 2017 dt.01-08-2023
6. The law is well settled by the catena of
judgments that if any party is necessary party or proper party for
effective adjudication of the suit then the court at any stage can
implead such parties. An effective order cannot be passed
without the presence of necessary party as the relief would
affect the right of such person. A proper party is a person whose
absence an effective order can be passed, but his presence as a
party would assist the court to adjudicate effectively and
completely. The rule also contributes to the expeditious disposal
of cases by preventing multiplicity of litigation and
consolidating all relevant issues and claims in a single suit.
Order 1 Rule 10 (2) of the CPC gives wide discretion to the
Court to deal where the impleadment of the said party is
necessary and vital for the decision of the suit.
7. The definition of legal representatives under
Section 2 (11) of C.P.C. is very wide and will certainly include a
person who seeks to represent the estate of a deceased person on
the basis of Will said to have been executed by the deceased in
his favour. The substitution would certainly not confer any
special right nor would make such representatives as heir to the
property of the deceased.
8. Section 211 of Indian Succession Act, shows that
Patna High Court C.Misc. No.578 of 2017 dt.01-08-2023
the property vests in the executor by virtue of Will and not by
virtue of the probate. Will gives property to the executor; grant
of probate is only a method by which the law provides for
establishing the Will. Section 211 declares that the executor or
administrator of a deceased is his legal representative for all
purposes.
9. Order XXII Rule 10 contemplates a situation
arising in the cases of assignment, creation and devolution of
interest during pendency of a suit, other than those referred to in
earlier Rules. It is based on the principle that trial of a suit
cannot be brought to an end merely on account of interest of a
party, subject matter of suit, is devolved upon another, during its
pendency. Such a suit may be continued with the leave of the
Court, by or against the person upon whom such interest has
devolved.
10. The cojoint reading of Section 2 (11) and Order
XXII Rule 3 and Rule 10 of C.P.C. will leave no room for any
doubt that a person who can represent the estate of a deceased
and includes such person who intermeddles with the estate of
the deceased can be substituted in case of death of such person,
in his place and; that such legal representatives may not be the
legal heir of the deceased person.
Patna High Court C.Misc. No.578 of 2017 dt.01-08-2023
11. In the present case, the respondent nos. 1 to 4
have claimed that the original plaintiff has executed registered
Will in their favour with respect to the suit property.
Accordingly, they are legal representative of the plaintiff who
are necessary parties and, the trial court has rightly impleaded
them as the plaintiffs in the suit. The trial court has not assigned
the detailed reasons for allowing the petition. Since the
impugned order is valid order, this Court is not inclined to
interfere in the same in its supervisory jurisdiction under Article
227 of the Constitution of India.
12. In view of the above, this Court finds no
infirmity or illegality in the impugned order and this Civil
Miscellaneous application is liable to be dismissed.
13. This Civil Miscellaneous Application is,
accordingly, dismissed. It is needless to say that the petitioner
has right to contest any separate claim, if any, made by the
respondent nos. 1 to 4 in the suit.
(Sunil Dutta Mishra, J)
khushbu/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 04.08.2023
Transmission Date
