Rajasthan High Court - Jodhpur
Daulat Ram vs Omprakash on 8 May, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6352/2025
1. Daulat Ram S/o Sh. Ravta Ram Bhadu, Aged About 50
Years, Partner M/s Maharaja Enclave, 257, Cycle Market,
D.d. Commercial Complex, Phase I, Jhandewala
Extension, New Delhi 110055.
2. Mahaveer Prasad Dahiya S/o Sh. Chimna Ram Dahiya,
Aged About 51 Years, Partner M/s Maharaja Enclave, 257,
Cycle Market, D.d. Commercial Complex, Phase I,
Jhandewala Extension, New Delhi 110055.
3. Ashish Malik S/o Sh. Vinay Malik, Aged About 42 Years,
M/s Maharaja Enclave, 257, Cycle Market, D.d.
Commercial Complex, Phase I, Jhandewala Extension,
New Delhi 110055.
----Petitioners
Versus
1. Omprakash W/o Sh. Chetram, R/o Bikaner (Raj.).
2. Her Highness Rajmata Sushila Kumari Ji Of Bikaner, R/o
Lalgarh Palace, Bikaner (Raj.).
3. Maharani Padma Kumari Ji W/o Narendra Singh, R/o
Lalgarh Palace, Bikaner (Raj.).
4. Maharaj Sh. Amar Singh S/o Sh. Vijay Singh Ji, R/o Near
Lalgarh Palace, Bikaner (Raj.).
5. Princess Rajyashree Kumari Ji D/o Maharaja Sh. Karni
Singh Ji, R/o Lalgarh Palace, Bikaner, Currently Residing
At England.
6. Princess Madhulika Kumari Ji W/o Sh. Rajveer Singh Ji,
R/o Near Lalgarh Palace, Bikaner, Currently Residing At
England.
7. Princess Sidhi Kumari Ji D/o Maharaja Sh. Narendra
Singh, R/o Lalgarh Palace, Bikaner (Raj.).
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8. Maharana Vishvaraj Singh S/o Mahendra Singh Mewar,
R/o Samor Bagh, City Palace, Udaipur. Through General
Power Of Attorney Holder Shyam Sunder Mohta S/o Late
Sh. Gopal Mohta, R/o Kolkata (West Bengal).
9. Maharani Nirupma W/o Sh. Maharaja Mahendra Singh
Mewar, R/o Shambu Niwas Palace, Udaipur. Through
General Power Of Attorney Holder Shyam Sunder Mohta
S/o Late Sh. Gopal Mohta, R/o Kolkata (West Bengal).
10. Trivikrama Kumari Jamwal D/o Sh. Maharja Mahendra
Singh Meawar, R/o Samor Bagh, Udaipur. Through
General Power Of Attorney Holder Shyam Sunder Mohta
S/o Late Sh. Gopal Mohta, R/o Kolkata (West Bengal).
11. Rajmata Bagheli Ji Sudarshana Kumari Ji Of Bikaner
Trust, Lalgarh, Bikaner Through Trustee And Secretary
Thakur Anand Singh S/o Thakur Sh. Ravat Singh, R/o
Civil Lines, Bikaner (Raj.).
12. Thakur Sh. Anand Singh S/o Thakur Sh. Ravat Singh, R/o
Bikaner (Raj.).
13. Thakur Sh. Hanuwant Singh S/o Thakur Sh. Jaswant
Singh, R/o Maalgodam Road, Bikaner (Raj.).
14. Govindram S/o Sh. Dhanniram, Partner M/s Maharaja
Enclave, 257, Cycle Market, D.d. Commercial Complex,
Phase I, Jhandewala Extension, New Delhi 110055.
----Respondents
Connected with
S.B. Civil Writ Petition No. 6381/2025
1. Daulat Ram S/o Sh. Ravta Ram Bhadu, Aged About 50
Years, M/s Maharaja Enclave, 257, Cycle Market, D.d.
Commercial Complex, Phase- I, Jhandewala Extension,
New Delhi 110055.
2. Mahaveer Prasad Dahiya S/o Sh. Chimna Ram Dahiya,
Aged About 51 Years, M/s Maharaja Enclave, 257, Cycle
Market, D.d. Commercial Complex, Phase I, Jhandewala
Extension, New Delhi 110055.
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3. Aashish Malik S/o Sh. Vinay Malik, Aged About 42 Years,
M/s Maharaja Enclave, 257, Cycle Market, D.d.
Commercial Complex, Phase I, Jhandewala Extension,
New Delhi 110055.
----Petitioners
Versus
1. Premsukh S/o Sh. Shyokaran, R/o Bikaner (Raj.).
2. Her Highness Rajmata Sushila Kumari Ji Of Bikaner, R/o
Lalgarh Palace, Bikaner (Raj.).
3. Maharani Padma Kumari Ji W/o Sh. Narendra Singh, R/o
Lalgarh Palace, Bikaner (Raj.).
4. Maharaj Shri Amar Singh Ji S/o Sh. Vijay Singh, R/o
Near Lalgarh Palace, Bikaner (Raj.).
5. Princess Rajyashree Kumari Ji D/o Maharja Sh. Karni
Singh, R/o Lalgarh Palace, Bikaner, Currently Residing At
England.
6. Princess Madhulika Kumari Ji W/o Sh. Rajveer Singh Ji,
R/o Near Lalgarh Palace, Bikaner, Currently Residing At
England.
7. Princess Sidhi Kumari Ji D/o Maharaja Sh. Narendra
Singh, R/o Lalgarh Palace, Bikaner (Raj.).
8. Maharana Vishvaraj Singh S/o Mahendra Singh Mewar,
R/o Samor Bagh, City Palace, Udaipur. Through General
Power Of Attorney Holder Shyam Sunder Mohta S/o Late
Sh. Gopal Mohta, R/o Kolkata (West Bengal).
9. Maharani Nirupma W/o Maharaja Mahendra Singh
Mewar, R/o Shambu Niwas Palace, Udaipur. Through
General Power Of Attorney Holder Shyam Sunder Mohta
S/o Late Sh. Gopal Mohta, R/o Kolkata (West Bengal).
10. Trivikrama Kumari Jamwal D/o Maharaja Mahendra
Singh Mewar, R/o Samor Bagh, Udaipur. Through
General Power Of Attorney Holder Shyam Sunder Mohta
S/o Late Sh. Gopal Mohta, R/o Kolkata (West Bengal).
11. Rajmata Bagheli Ji Sudarshana Kumari Ji Of Bikaner
Trust, Lalgarh, Bikaner Through Trustee And Secretary
Thakur Anand Singh S/o Thakur Sh. Ravat Singh, R/o
Civil Lines, Bikaner (Raj.).
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12. Thakur Shri Anand Singh S/o Thakur Sh. Ravat Singh,
R/o Bikaner (Raj.).
13. Thakur Shri Hanuwant Singh S/o Thakur Sh. Jaswant
Singh, R/o Maalgodam Road, Bikaner (Raj.).
14. Govindram S/o Sh. Dhanniram, Partner - M/s Maharaja
Enclave, 257, Cycle Market, D.d. Commercial Complex,
Phase I, Jhandewala Extension, New Delhi 110055.
----Respondents
For Petitioner(s) : Mr. Om Prakash Mehta
Mr. Sanjeet Purohit
Mr. Vasudev Gaur
Mr. Madhav Vyas
Mr. Vinod Purohit
For Respondent(s) : Mr. Narendra Thanvi
Mr. Nishank Madhan
Mr. Dhanesh Saraswat
Mr. Mahendra Thanvi
HON'BLE MR. JUSTICE BIRENDRA KUMAR
JUDGMENT RESERVED ON : 22.04.2025
JUDGMENT PRONOUNCED ON : 08.05.2025
1. Heard the parties and perused their written notes of
argument.
2. By the impugned orders dated 28.02.2025 passed separately
in two different civil suits, prayer of respondent Nos.8, 9 and 10
above, for impleadment in the suit as party defendants under
Order I Rule 10(2) C.P.C., has been allowed.
3. The order passed in Civil Original Case No.355/2005 is under
challenge in S.B. Civil Writ Petition No.6352/2025 (supra) and the
order passed in Civil Original Case No.3168/2005 is under
challenge in S.B. Civil Writ Petition No.6381/2025 (supra).
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4. The challenge is on the ground that respondent Nos.8, 9 and
10 are not necessary/proper party to the suit. An effective decree
can be passed in the suit without adding them as party. Rather,
their impleadment would lead to mis-joinder of cause of action
and unwarrantedly would widen the nature and scope of litigation,
which ultimately would lead to miscarriage of justice.
5. Factual background of the case is that the suit property is
situated at Vallabh Garden near the town of Shivbari. The original
Patta was issued in favour of former Maharaja late Sh. Sadul
Singh Ji vide Misal No.79 on 21.10.1948. Maharaja Sadul Singh
passed away before the Hindu Succession Act, 1956 came into
force, as such, the property left by him devolved on his only son
Dr. Karni Singh Ji. Later on, Dr. Karni Singh Ji gifted the suit
property by gift deed dated 09.03.1959 to his mother late
Rajmata Sudarshana Kumari Ji. Rajmata Sudarshana Kumari Ji,
vide her Will dated 14.12.1971, created a Trust known as
"Rajmata Bagheli Ji Sudarshana Kumari Ji Trust, Bikaner"
(hereinafter to be referred as 'the Trust'). In the said Will,
Mr. Anand Singh, Prem Singh and Vidhyadhar Shashtri were
named as executors of the Will and Karan Singh, Anand Singh and
Rajmata Sushila Kumari Ji (the sons and daughters of Rajmata
Sudarshana Kumari Ji) were appointed as trustee. The Will further
provided that the referred portion admeasuring 650000 square
yard would go to Maharani Sushila Kumari Ji, the daughter of the
testatrix. After death of Rajmata Sudarshana Kumari Ji, the
executors applied for grant of probate under the Indian Succession
Act and in the year 1974, the Court granted probate of the Will.
Thereafter, the executors offered the share as per the Will to
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Rajmata Sushila Kumari Ji, who refused to accept the same,
rather informed to the executors that the portion allotted to her be
treated as Trust property vide her Letter dated 06.07.1997 at
Annexure-6.
6. The brief response of Rajamata Sushila Kumari Ji reads as
follows :-
"To.
1. Thakur Prem Singhji, Tendesar House, Bikaner.
2. Thakur Anand Singhji, Rampur House, Civil
Lines, Bikaner.
3. Pt. Vidhavadharji Shashtri, Near Alakhsagar
Well Bikaner.
Executors, Rajmata Sri Sudarshankumari
Ji Sahiba's Estate, Bikaner.
Dear Sir,
This refers to your letter dated 4th July 76
wherein some land has been allotted to me in
Vallabh Garden as per Will of my mother, The late
Rajmata Sudarshan Kumarji,
I am unable to accept the offer as I do not
want to take the said property."
7. The Trust was registered with the Devasthan Department
under the Rajasthan Public Trust Act having registration certificate
No.5/1984.
8. The case of the petitioners is that the Trust had appointed
Mr. Prem Sukh and Mr. Om Prakash as caretaker of the Trust
property. The caretakers were allowed to keep their cattle and to
graze them over a portion of the Trust property. When the Trust
decided to fence its land to avoid any encroachment, the care
takers were also asked to vacate the land in their permissive
possession, however, greed cropped up with the caretakers and
just to pressurize to the Trust, the care taker Prem Sukh filed Civil
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Suit No.91/2003 only against Rajmata Sushila Kumari Ji and Om
Prakash filed Civil Suit No.34/1993 only against Rajmata Sushila
Kumari Ji claiming title by adverse possession on the Trust
property. Rajmata Sushila Kumari Ji appeared and filed written
statement dated 29.11.1995 vide Annexure-5 specifically stating
that suit property is property of the Trust. She made specific
statement that though the executors had offered the property to
her as per the Will of mother but she had already refused to get
the property and the property vested in the Trust itself, therefore,
Trust was necessary party in the suit. Then Prem Sukh and Om
Prakash added the Trust through trustees in their respective suits
as party defendant. On being aware of the aforesaid suits, the
Trust through the present trustees i.e. respondent Nos.11 to 14
filed Civil Suit No.355/2005 against Om Prakash and others
seeking for declaration of title and recovery of possession from
Om Prakash. Likewise, Civil Original Case No.3168/2005 was filed
by the Trust against Prem Sukh and others seeking for declaration
of title on the Trust property and recovery of possession from
Prem Sukh. All the aforesaid suits were amalgamated for
analogous hearing.
9. The writ petitioners are purchasers pendente lite in respect
of a portion of the suit property from the Trust, as such, they were
added as party plaintiff in the aforesaid civil suits, brought by the
Trust.
10. On 05.02.2025, respondent Nos.8, 9 and 10 filed their
separate applications for impleadment in the above suits under
Order I Rule 10(2) C.P.C. stating therein that Rajmata Sushila
Kumari Ji had executed a Will dated 09.02.1987 in their favour in
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respect of her share in the suit property, therefore, they are
necessary party to the suit. The prayer was allowed by the
impugned order.
11. The factual scenario narrated above would show that in civil
suits brought by Prem Sukh and Om Prakash against the Trust,
the issue would be whether the plaintiffs have perfected their title
by adverse possession on the portion of property of the Trust over
which they were in permissive possession. In the suit brought by
the Trust, the issue would be whether the suit property is property
of the Trust and as such the Trust-plaintiff is entitle for recovery of
possession from Prem Sukh and Om Prakash. Therefore, one of
the point for consideration herein would be whether effective
decree can be passed in absence of respondent Nos.8, 9 and 10. If
respondent Nos.8, 9 and 10 are impleaded as party, the issue that
would arise is whether Will dated 09.02.1987 said to be executed
by Rajmata Sushila Kumari Ji is genuine and voluntary Will
especially when in the written statement filed in the civil suit
subsequent to the date of alleged Will, she denied to have taken
the property as per the Will of her mother, rather it vested in the
Trust.
12. Mr. Om Prakash Mehta, learned counsel for the petitioners
contends that if the impugned order is sustained, it would lead to
manifest miscarriage of justice as the trial Court has failed to
appreciate that respondent Nos.8, 9 and 10 were not a necessary
party to the suit inasmuch as effective decree can be passed in
absence of those respondents in the pending suits and their
impleadment would lead to mis-joinder of cause of action and
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would unwarrantedly extend the scope of adjudication contrary to
the interest of the parties to the suit.
Learned counsel for the petitioners further submits that
respondent Nos.8, 9 and 10 are not even proper party to the suit
as they have no semblance of any claim over the suit property.
The aforesaid respondents claimed interest in the suit property
through a Will said to be executed by Rajmata Sushila Kumari Ji in
their favour in the year 1987. If that Will was a real one, Rajmata
Sushila Kumari ji must have disclosed it in her written statement
dated 29.11.1995 or reply sent to the Trust that she had not
accepted the property under the Will executed by the mother. In
the written statement, she has stated that only Trust is proper
party as she has not taken any share in the suit property.
Learned counsel submits that Rajmata Sushila Kumari Ji died
in the year 1999. Therefore, cause of action for getting a
probate/letters of administration in respect of the so-called Will
executed by Rajmata Sushila Kumari Ji arose soon after death of
Rajmata Sushila Kumari Ji. As per Article 137 of the Limitation
Act, the application for grant of probate should have been filed
within three years when the right to apply accrued to respondent
Nos.8, 9 and 10. Now their claim for grant of probate and letters
of administration is hopelessly barred by limitation. A Will does not
operate unless it is probated by the Competent Court. Moreover,
during her lifetime Rajmata Sushila Kumari Ji had not accepted
the property which was subject matter of the Will by her mother.
A testator can transfer the property even after execution of the
Will, during her lifetime, and the Will would operate only on her
death.
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Learned counsel submits that if Rajmata Sushila Kumari Ji
had no transferable right, the so-called Will which is apparently a
concocted and manufactured document had no effect after death
of Rajmata Sushila Kumari Ji.
Learned counsel for the petitioners next contends that
respondent Nos.8, 9 and 10 have come through their holder of
power of attorney. The power of attorney was itself not executed
according to law contained in the Powers-of- Attorney Act, 1882.
Therefore, their impleadment was bad in law for this reason also.
13. Mr. Narendra Thanvi, learned counsel for respondent Nos.8,
9 and 10 contends that the petitioners are lis pendence
purchasers. The Trust has not challenged the impleadment of
respondent Nos.8, 9 and 10, which claims real owner of the suit
property. Therefore writ petitions at the hands of the present
petitioners is not maintainable in absence of locus to them.
Moreover, the petitioners have purchased a portion of the property
and not the entire property to claim that they have entered into
the shoes of the Trust.
14. Learned counsel for the respondents submits that the newly
added respondent Nos.8, 9 and 10 are not strangers to Rajmata
Sushila Kumari Ji, rather they are grandson and widow daughter-
in-law of Rajmata Sushila Kumari Ji. Moreover, they have been
substituted after death of Rajmata Sushila Kumari Ji in the Civil
Suits No.91/2003 and 34/1993 brought by Prem Sukh and Om
Prakash respectively and orders passed in those suits have not
been challenged. Therefore, if the respondent Nos.8, 9 and 10
would be heard in the suits brought by the Trust, no harm would
be caused to the parties to the suits. By mere impleadment, it
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cannot be argued that presence of respondent Nos.8, 9 and 10
would affect the merit of the case. Moreover, they are necessary
and proper party being legal heirs of Rajmata Shushila Kumari Ji
who executed a Will in their favour.
15. The law regarding impleadment of anyone as a party to the
suit is well-settled. Either the plaintiff may add anyone against
whom the plaintiff has bonafide claim in the suit or a third party
can claim impleadment if he/she is a necessary or proper party
having semblance of some interest in the suit property.
Learned counsel for the respondents has relied on the
judgment of Punjab and Haryana High Court in Shukmeet Kaur
& Anr. Vs. Harjinder Singh & Ors. reported in 2022 (3) Civil
Court Cases 483 (Punjab and Haryana), Raja Ram Singh &
Anr. Vs. Kapildeo Singh & Ors. reported in AIR 1984 Patna
140 and Singheshwar Rai Vs. Babulal Rai & Anr. reported in
AIR 1980 Patna 187.
The legal principles decided in the aforesaid cases are not
disputed, rather those judgments were rendered in peculiar facts
and circumstances of the respective cases, as such, not applicable
in the facts and circumstances of this case.
16. Order I Rule 10(1) C.P.C. relates to correction of status of
the plaintiff when the suit was brought by a wrong person as a
plaintiff.
17. Rule 10(2) of Order I C.P.C. empowers the Court to strike out
or add parties. Sub-Rule 2 thereof is being reproduced below :-
"(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
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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."
18. In the case of Mumbai International Pvt. Ltd. Vs.
Regency Convention Centre & Hotels Pvt. Ltd. & Ors.
reported in 2010 0 AIR (SCW) 4222, the Hon'ble Supreme
Court considered the scope of Order I Rule 10(2) CPC and stated
as follows :-
"8. The general rule in regard to impleadment of parties
is that the plaintiff in a suit, being dominus litis, may
choose the persons against whom he wishes to litigate
and cannot be compelled to sue a person against whom
he does not seek any relief. Consequently, a person
who is not a party has no right to be impleaded against
the wishes of the plaintiff. But this general rule is
subject to the provisions of Order I Rule 10(2) of Code
of Civil Procedure ('Code' for short), which provides for
impleadment of proper or necessary parties.
The said provision makes it clear that a court may, at
any stage of the proceedings (including suits for specific
performance), either upon or even without any
application, and on such terms as may appear to it to
be just, direct that any of the following persons may be
added as a party: (a) any person who ought to have
been joined as plaintiff or defendant, but not added; or
(b) any person whose presence before the court may
be necessary in order to enable the court to effectively
and completely adjudicate upon and settle the question
involved in the suit. In short, the court is given the
discretion to add as a party, any person who is found to
be a necessary party or proper party. A 'necessary
party' is a person who ought to have been joined as a
party and in whose absence no effective decree could
be passed at all by the Court. If a 'necessary party' is
not impleaded, the suit itself is liable to be dismissed. A
'proper party' is a party who, though not a necessary
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party, is a person whose presence would enable the
court to completely, effectively and adequately
adjudicate upon all matters in disputes in the suit,
though he need not be a person in favour of or against
whom the decree is to be made. If a person is not
found to be a proper or necessary party, the court has
no jurisdiction to implead him, against the wishes of the
plaintiff. The fact that a person is likely to secure a
right/interest in a suit property, after the suit is decided
against the plaintiff, will not make such person a
necessary party or a proper party to the suit for specific
performance.
XXXX
12. Let us consider the scope and ambit of Order I of
Rule 10(2) CPC regarding striking out or adding parties.
The said sub-rule is not about the right of a non-party
to be impleaded as a party, but about the judicial
discretion of the court to strike out or add parties at
any stage of a proceeding. The discretion under the
sub-rule can be exercised either suo moto or on the
application of the plaintiff or the defendant, or on an
application of a person who is not a party to the suit.
The court can strike out any party who is improperly
joined. The court can add anyone as a plaintiff or as a
defendant if it finds that he is a necessary party or
proper party. Such deletion or addition can be without
any conditions or subject to such terms as the court
deems fit to impose. In exercising its judicial discretion
under Order 1 Rule 10(2) of the Code, the court will of
course act according to reason and fair play and not
according to whims and caprice. This Court in Ramji
Dayawala & Sons (P) Ltd. vs. Invest Import -,5 1981
(1) SCC 80, reiterated the classic definition of
'discretion' by Lord Mansfield in R. vs. Wilkes 1770 (98)
ER 327, that 'discretion' when applied to courts of
justice, means sound discretion guided by law. It must
be governed by rule, not by humour; it must not be
arbitrary, vague, and fanciful, 'but legal and regular'.
We may now give some illustrations regarding exercise
of discretion under the said Sub-Rule."
19. The aforesaid judgment and other judgments of the Hon'ble
Supreme Court in Ramesh Hirachand Kundanmal Vs.
Municipal Corporation of Greater Bombay reported in 1992 0
AIR (SCW) 846; Vidur Impex and Traders Pvt. Ltd. and Ors.
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Vs. Tosh Apartments Pvt. Ltd. and Ors. reported in (2012) 8
SCC 384 and Baluram Vs. P. Chellathangam reported in
(2015) 13 SCC 579 were considered by Jaipur Bench of this
Court in Rameshwar Sharma Vs. Jaipur Development
Authority and Ors. reported in 2019 0 Supreme (Raj.) 796
and held in Para 42 as follows :-
"42. By now it is well settled that if Court finds
that addition of a party will introduce a new
cause of action, it ought to dismiss the
application seeking impleadment under Order I
Rule 10 CPC."
20. In the case of Ramesh Hirachand Kundanmal (supra), the
Hon'ble Supreme Court said that "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 question involved and has
thought of relevant arguments to advance (emphasis
mine). The only reason which makes it necessary to make a
person a party to an action is so 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
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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."
21. Thus the principle that emerges to be taken into consideration
while considering the prayer for impleadment as party is that as a
general rule, the plaintiff being dominus litis has discretion to
choose against whom it wishes to file civil suit. The exception to
the rule is that the Court may at any stage add as party, either
upon or even without any application, to any person who ought to
have been joined as plaintiff or defendant but not added and any
person whose presence before the court may be necessary to
enable the court to effectively and completely adjudicate upon the
settled questions involved in the suit.
The first category relates to necessary party, in whose
absence no effective decree could be passed at all, by the Court.
The second category relates to proper party whose presence may
facilitate the court to pass effective decree, otherwise no
impleadment can be ordered especially when the impleadment
would introduce a new cause of action or the parties seeking for
impleadment comes with an object to prosecute his own cause of
action.
22. In the case on hand, both the suits referred as noticed above
can be decided in absence of respondent Nos.8, 9 and 10 and
effective decree can be passed, therefore, the aforesaid
respondents are not necessary party. The whole object of
respondent Nos.8, 9 and 10 by getting impleadment is to
prosecute their own cause of action i.e. establish claim on the
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basis of unprobated Will. The genuineness of the Will or grant of
probate would not be considered in the civil suit brought by the
plaintiff against the party defendant. If the same is allowed to be
considered, it would unnecessarily enlarge the scope of the suit
especially when redressal of grievance of getting probate of the
said Will is barred by limitation. Moreover, as discussed above,
Rajmata Sushila Kumari Ji had already surrendered the property
allotted to her, to the Trust created by her mother, therefore, she
had no transferable interest in the suit property at the time of her
death. In the result, the Will was redundant, therefore,
respondent Nos.8, 9 and 10 had no semblance of any interest in
the suit property on the date of their prayer for impleadment. As
such, they were/are not even proper party. Evidently, addition of
respondent Nos.8, 9 and 10 led to abuse of process of law
resulting in manifest miscarriage of justice.
23. This Court does not find any merit in the submission of
learned counsel for the petitioners that since valid power of
attorney was not there, impleadment of respondent Nos.8, 9 and
10 was bad for this reason as well. The simple reason is that the
aforesaid defect is/would be curable one. Since respondent Nos.8,
9 and 10 have not denied that they applied for impleadment as
party, the Trial Court may ask them to file personal appearance
through Vakalatnama if the power of attorney was not valid one.
24. In a catena of decisions, it has been well settled that Article
137 of the Limitation Act would apply in the matter of prayer for
grant of probate or letters of administration as well. Reference
may be made to Kunvarjeet Singh Khandpur Vs. Kuldeep
Kaur reported in (2008) 8 SCC 463; Krishan Kumar Sharma
[2025:RJ-JD:19586] (17 of 19) [CW-6352/2025]
Vs. Rajesh Kumar Sharma reported in (2009) 11 SCC 537 as
well as Sameer Kapoor and Ors. Vs. The State and Ors.
reported in (2020) 12 SCC 480 decided on 29.04.2019 by the
Hon'ble Supreme Court, wherein the Court observed :
"Now so far as the first question is concerned, the
same is now not res integra in view of the direct decision
of this Court in the case of Kunvarjeet Singh
Khandpur Vs. Kuldeep Kaur reported in (2008) 8
SCC 463 and in the case of Krishan Kumar Sharma
Vs. Rajesh Kumar Sharma reported in (2009) 11
SCC 537. In both the aforesaid decisions, this Court has
specifically observed and held that Article 137 of the
Limitation Act shall be applicable to the petitions for
grant of probate or letters of administration also.
Therefore, question No.1 is answered in the affirmative
and it is observed and held that Article 137 of the
Limitation Act, 1963 shall be applicable to the
applications for grant of probate or letters of
administration."
25. In the case on hand, evidently respondent Nos.8, 9 and 10
propose/persuade to get their claim decided on the basis of Will
which is not a probated one and prayer for probate is hopelessly
barred by limitation of several years after death of Rajmata
Sushila Kumari Ji.
26. As noticed above, the plaintiff is dominus litis and plaintiffs of
title Civil Suit No.91/2003 and Civil Suit No.34/1993 had chosen
to file the suit against Rajmata Sushila Kumari Ji only, hence if the
respondent Nos.8, 9 and 10 were substituted after death of
Rajmata Sushila Kumari Ji that would not give right in their favour
to be impleaded in other two suits brought by the Trust when they
are evidently not necessary or proper party. Respondent Nos.8, 9
and 10 have failed to get a probate/letters of administration in
[2025:RJ-JD:19586] (18 of 19) [CW-6352/2025]
respect of their claimed Will and now prayer for probate and
letters of administration is barred by limitation, hence, they
cannot be allowed to agitate the said issue in these suits.
Therefore, this Court does not find any merit in the submission of
learned counsel for the respondents that since in two other suits
respondent Nos.8, 9 and 10 were impleaded, their impleadment in
the present suit is also just and proper. Since, respondent Nos.8, 9
and 10 are not necessary/proper party of the suit and they have
come with a claim of getting the suit property through a Will, the
issue of genuineness of the Will cannot be decided in the present
suit, rather it would enlarge the scope of the question to be
considered in the suit, which is not permissible by their addition in
the suit. As noticed above, respondent Nos.8, 9 and 10 were
neither necessary nor proper party to the suit, their impleadment
was just to get their own cause agitated, which is barred by
limitation otherwise.
27. The Court also does not find any merit in the submission of
learned counsel for the respondents that the petitioners who are
purchasers from the Trust during pendency of the suit cannot
alone challenge the impugned order if the Trust has no reservation
regarding their impleadment. The law is well settled that anyone
aggrieved by any order affecting his right can approach the Court.
Moreover, the plaintiff's Trust through their trustees are already
party respondent herein. The Trust has not come up with a case
that they had no reservation if respondent Nos.8, 9 and 10 are
impleaded as party. Therefore, maintainability of these writ
petitions cannot be challenged for the reason that only some of
the plaintiffs have challenged the impugned order.
[2025:RJ-JD:19586] (19 of 19) [CW-6352/2025]
28. Since the impugned order has led to misuse of the process of
law and suffers from manifest miscarriage of justice, the same
stands hereby quashed and these writ petitions stand allowed. The
trial court shall expedite the trial.
(BIRENDRA KUMAR),J
deep
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