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2006 DIGILAW 131 (DEL)

KULVINDER SINGH v. STATE

2006-01-18

ANIL KUMAR

body2006
ANIL KUMAR, J. ( 1 ) THIS order shall dispose of application under Order XXII Rule 3 and order I Rule 10 read with Section 151 of CPC on behalf of legal representatives of late Shri Inderjit Singh Oberoi, petitioner No. 2, and the application under section 5 of the Limitation Act for condonation of delay, if any, in filing the applications for substitution/impleadment of legal representatives of deceased late Shri Inderjit Singh Oberoi. ( 2 ) THE applicants contended that the above noted probate case in respect of the registered will dated 4. 1. 1990 of late Shri Arjun Singh was filed by dr. Kulwinder Singh, petitioner No. 1, and late Shri Inderjit Singh Oberoi, petitioner No. 2. The petitioner No. 2, late Shri Inderjit Singh, died on 5th september, 2002, who was one of the beneficiaries of the will, leaving behind applicants as detailed in para 2 of the application as his legal representatives. The applicants asserted that due to inadvertence and oversight, they could not apply for their substitution on record immediately after the death of late Shri Inderjit Singh Oberoi as they were under impression that since it is a probate case where the probate of the will of late Shri Arjun singh is being sought, even in absence of late Shri Inderjit Singh Oberoi, it will be granted to the petitioner No. 1 and even the applicant will be entitled for whatever is devised to Late Shri Inderjit Singh Oberoi, after his demise. ( 3 ) THE applicants contended that subsequently it transpired that they are also necessary parties and, consequently, the application for impleadment/substitution has been filed contending that no prejudice shall be caused to the respondents in case the legal representatives of late Shri inderjit Singh Oberoi, applicants, are substituted/impleaded in his place. ( 4 ) SEEKING condonation of delay in filing the application for impleadment, it was asserted that delay of about two years five months is neither intentional nor deliberate as the same occurred on account of inadvertence and in any case, no prejudice shall be caused in case the delay is condoned as the case is listed for evidence. ( 4 ) SEEKING condonation of delay in filing the application for impleadment, it was asserted that delay of about two years five months is neither intentional nor deliberate as the same occurred on account of inadvertence and in any case, no prejudice shall be caused in case the delay is condoned as the case is listed for evidence. ( 5 ) THE applications have been resisted by objector, Gurudwara Shri Guru nanak Darbar, on the ground that by will dated 5th July, 1988, the property of the deceased, was devised by the deceased in favour of Gurudwara and they challenged the will dated 4. 1. 1990 in favour of the petitioners. The objector contended that on the basis of will dated 5th July, 1988, the property was also mutated in the name of Gurudwara and the applicants have failed to disclose any sufficient cause entitling them for condonation of delay in filing the application for substitution/impleadment and for setting aside the abatement. ( 6 ) THE petition is for probate of the will of the deceased Late Shri Arjun singh. The petitioner no. 1 and petitioner no. 2 are the beneficiaries of the will. On demise of one of the beneficiaries, the right to sue will devolve on his legal representatives but at the same time, the right to sue will also survive to the surviving beneficiary alone. If the right to sue will survive to the surviving beneficiary alone, on the demise of other beneficiary, the petition for probate will not abate for non substitution of legal representatives of deceased beneficiary. ( 7 ) THE probate petition, therefore, will not abate on the demise of one of the beneficiary as the right to sue will survive to the surviving beneficiary alone. Therefore the petition for probate has not abated on the demise of Late shri Inderjit Singh and his legal representatives do not have to seek setting aside of abatement and condonation of delay in setting aside the abatement. ( 8 ) THIS leads to another question whether the legal representatives of the deceased beneficiary Shri Inderjit Singh be impleded as the petitioners along with other beneficiary in the present facts and circumstances. ( 9 ) THE surviving petitioner no. 1, another beneficiary has not objected to impleadment of legal representatives of deceased petitioner no. 2 Late Shri inderjit Singh, as petitioners to the probate petition. ( 9 ) THE surviving petitioner no. 1, another beneficiary has not objected to impleadment of legal representatives of deceased petitioner no. 2 Late Shri inderjit Singh, as petitioners to the probate petition. The objector/gurudwara which is claiming that the property has devolved upon the Gurudwara on the basis of another will and has been mutated in the name of Gurudwara, are objecting to substitution/impleadment on the ground that the probate petition has abated and there is no sufficient cause for condonation of delay, as the application for substitution/impleadment is filed after about two years of demise of the petitioner no. 2. ( 10 ) WHAT is to be considered, therefore, is whether the applicants are necessary or proper parties to the probate petition or not. The probate is sought in respect of a will of Late Shri Arjun Singh. One of beneficiary of his alleged will, in respect of which the probate is sought, was his son Shri inderjit Singh who has died and after his demise his rights have devolved upon his legal representatives who are the applicants. ( 11 ) ORDER1 Rule 10 has been expressly provided in the Civil Procedure Code to meet with situations so as to implead all the parties which may be affected by any litigation or which may be interested so that the rendering of justice is not hampered. To avoid multiplicity of proceedings and needless expenses every possible adverse claimant or any claimant can be impleaded in any proceedings under Order 1 Rule 3 of the Code of Civil Procedure. All persons against whom or who have a right to relief may be joined as parties. Even the Court may at any stage of the suit direct addition of parties. A person can be joined as parties even though the parties to the petition do does not think so. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of any of the petitioner (s) to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. In order to ascertain whether a person is a necessary party or not what is to be seen is whether in absence of such person, conflicting decrees may be passed by the Court. 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. The question to be settled must be a question in the action which cannot be effectually and completely settled unless he is a party. A 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 lead to a result which will affect him legally that is by curtailing his legal rights. ( 12 ) IN a petition for grant of probate or letters of administration, no right is asserted by the petitioner, who only seeks recognition of the Court to perform a duty. ( 12 ) IN a petition for grant of probate or letters of administration, no right is asserted by the petitioner, who only seeks recognition of the Court to perform a duty. Probate issued by the Court is the conclusive proof of legal character throughout the world. Perusal of provisions of Indian Succession Act, 1925, it is apparent that the rights of the petitioner seeking probate are not settled or secured in the legal sense as the author of the testament casts a duty with regard to administration of his estate for grant of probate only, seeks permission of the court to perform the duty which is only seeking of recognition from the court to perform the duty which duty is more moral than legal. A Division Bench of Madras High Court had held in E. Devarajan vs. E. Ramiah, AIR 1991 Madras 214 had held that no right is asserted or claimed by the petitioner seeking grant to probate of letter of administration. While answering a reference `whether Article 137 of the Limitation Act, 1963 will apply to proceedings filed for grant of probate or letters of administration with or without will annexed it had held that Article 137 of Limitation Act,1963 would not apply. The Court had held:"in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant to probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant to probate or letters of administration as applications coming within the meaning of an application under Article 137 of the Limitation Act, 1963. " ( 13 ) THE applicants also relied on 112 (2004) DLT 877 (DB) S. S. Lal Vs vishnu Mitter Govil to contend that the Article 137 of the Limitation Act is not applicable to the probate petition, though the same principle can not be applied mutatis mutandis to the petition for revocation of will. ( 14 ) THE evidence on behalf of the remaining petitioner no. 1 has not yet been concluded. In case the legal representatives of Late Shri Inderjit Singh oberoi are impleaded, no prejudice shall be caused to the objector, rather it will be conducive for determination about the will dated 4. 1. 1990 of the deceased Shri Arjun Singh finally. The objector has also filed a probate petition in respect of another will dated 5th July,1988 being Test Case no. 21 of 993. In the said petition after the demise of Late Inderjit Singh Oberoi, his legal representatives, present applicants have not been substituted. Both the petitions are tried together. In the circumstances, it will be just and appropriate to implead/substitute the legal representatives of deceased Inderjit singh Oberoi in order to avoid multiplicity of proceedings. For the reasons stated hereinbefore, the application for impleadment/substitution of the legal representatives of deceased Shri Inderjit Singh Oberoi should not be dismissed on the ground of delay and latches, if any. ( 15 ) IN the totality of circumstances, the applications of the applicants, legal representatives of deceased Inderjit Singh Oberoi for substitution/impleadment and condonation of delay are allowed and they are substituted in place of deceased Inderjit Singh Oberoi, petitioner no. 2. .