JUDGMENT Devi Prasad Singh, & Hon'ble Anil Kumar, JJ. CMA No.25093 of 2009: Application for Impleadment on behalf of the Birbal Sahni Institute of Paleobotany Society, Lucknow. 1. This is an application supported with affidavit, filed on behalf of Birbal Sahni Institute of Paleobotanical Society, Lucknow, through its Secretary for being impleaded in the array of respondents as respondent No.3 in the appeal. 2. Sri B.C. Agarwal, learned counsel for the appellant has opposed the application raising plea, that the application is not maintainable. However, he has not filed any counter affidavit in response to this application. 3. It shall be appropriate to discuss in brief the facts pleaded on record in support of the application. (i). Prof. Birbal Sahni was a scientist of eminence in the field of Paleobotany. He formed a Paleobotany Society in 1946, which was registered under the Societies Registration Act, 1860 on 3.6.1946 with the sole objective of promotion of higher studies and research in Fossil Botany on all India basis as well as for International Studies for purely scientific aspects and its applications to the problems of Economic Geology. (ii). In order to establish a Research Institute with a broad international outlook comprising of the basic infrastructure including laboratory, library, museum, auditorium, residential quarters and other necessary buildings, the Society was empowered to generate finances for the said objective and for this purpose Prof. Birbal Sahni donated Rs.1,00,00.00 from his personal account to the Society. On the initiation of Prof. Sahni, the State authorities of the then united Province were approached for grant of land and building situated at 53, University Road, Lucknow, which situated over a land ad-measuring 3.54 acres for the establishment of Paleobotanical Research Centre. The land was granted by the Government in the name of Paleobotanical Society, Lucknow by execution of a deed of Grant dated 5.1.1950. Thus, the Institute was established of which Prof. Birbal Sahni was the Honorary Director. He was also the Secretary of the Governing Body of the Society and his wife Smt. Savitri Sahni was the President of the Society. The foundation stone of the Institute was laid by first Prime Minister Pt. Jawahar Lal Nehru on 3.4.1949. (iii). Prof. Birbal Sahni left for heavenly abode on 10.4.1949. Birbal Sahni was the Honorary Director. He was also the Secretary of the Governing Body of the Society and his wife Smt. Savitri Sahni was the President of the Society. The foundation stone of the Institute was laid by first Prime Minister Pt. Jawahar Lal Nehru on 3.4.1949. (iii). Prof. Birbal Sahni left for heavenly abode on 10.4.1949. After his death, the Governing Body of the Society proposed to change the name of the Society with the name and title, "Birbal Sahni Institute of Paleobotany Society", in the name of illustrious founder. The society got registered in 1946 and continued to develop the work upto 1969 whereafter, on 25.8.1969,the General Body of the Institute authorised the Governing Body to direct trusties to transfer the Birbal Sahni Institute of Paleobotany and its assets to a new Society namely, "Birbal Sahni Institute of Paleobotany Society which was also a registered Society under the Societies Registration Act. The transfer of assets in pursuance of the resolution completed on 12.11.1969. In December, 1969, the Paleobotanical Society reconstructed itself as a professional body and decided to start a new journal in the name of "Geo-Phytology from 1971. (iv). Prof. Birbal Sahni had executed a registered Will dated 27.6.1945 by means of which he had bequeathed all his movable and immovable property existing at the time of his death to his wife Smt. Savitri Sahni. Thereafter Birbal Sahni subsequently executed a registered Codicil dated 23.9.1946 to the said Will which provided that in case his wife Smt. Savitri Sahni predeceased him, all his movable and immovable property existing at the time of his death and any other property which may have accrued to him under the Will, if any, of his wife or from any other source whatsoever, should be transferred absolutely to the Paleobotanical Society, Lucknow for the promotion of higher studies and research in fossil botany. A copy of the Codicil dated 23.9.1946 has been annexed to the affidavit as Annexure No.S-1. (v). Smt. Savitri Shani, wife of Prof. Birbal Sahni had also executed a Will dated 27.6.1945 separately which was registered in the Office of Sub-Registrar, Almorah by means of which she had bequeathed all her movable and immovable property to her husband Prof. Birbal Sahni. (v). Smt. Savitri Shani, wife of Prof. Birbal Sahni had also executed a Will dated 27.6.1945 separately which was registered in the Office of Sub-Registrar, Almorah by means of which she had bequeathed all her movable and immovable property to her husband Prof. Birbal Sahni. She has also executed a Codicil Will on 23.9.1946 in the Office of Sub-Registrar, Lucknow and provided with reference to the Will dated 27.6.1945, that if her husband predeceased her, then all her movable and immovable property existing at the time of her death including the remaining portion, accrued to her under the Will of her husband dated 27.6.1945 and/or which may have accrued to her from any other source whatsoever, shall be transferred absolutely to the Paleobotanical Society, Lucknow for promotion of higher study and research in Fossil Botany, the objective for which the Society was formed. 4. It has been stated by the learned counsel for the applicant that the Executive Council, vide its resolution dated 3.10.1994, resolved that the entire research work of the Institute be handed over to the respondent No.2 i.e., Paleobotanical Society and other works including the management of property left over by Prof. Birbal Sahni and his wife Smt. Savitri Sahni, is to be looked after by the applicant namely, Birbal Sahni Institute of Paleobotanical Society, Lucknow. Submission is that since the Institute is managing the affairs of the property, it is the necessary party and application moved by him, be allowed in view of provisions contained in Order I rule 10 (2) CPC. 5. Sri B.C. Agarwal, opposing the application for impleadment, has referred the judgment of the Hon'ble Single Judge of this Court reported in (Dr. Rajiv Saksena. Vs. XIII Addl. District Judge, Lucknow and another) and also invited attention to Section 284, 285 and 295 of Indian Succession Act, 1925 as well as Chapter XXX Section C of High Court Rules and Rule 472, 500, 501 and 504 of General Rules (Civil) for subordinate courts. 6. The sum and substance of the argument advanced by the learned counsel while opposing the impleadment application is that unless a person files a caveat in original proceeding, he or she shall not be entitled to be impleaded as party. 6. The sum and substance of the argument advanced by the learned counsel while opposing the impleadment application is that unless a person files a caveat in original proceeding, he or she shall not be entitled to be impleaded as party. It has also been stated by the learned counsel that at the first appellate stage, the applicant cannot be impleaded as party more so, when he has neither filed any caveat nor approached to become a party in the original court. Submission is that since no caveat has been filed by the applicant, he cannot be impleaded as party at this stage. 7. The word, 'caveat', has been defined in the Blake's Law Dictionary to mean: "caveat (kav--ee--aht or kay--vee-at or kay--ee--at). [Latin "let him or her beware"] 1. A warning or proviso < he sold the car to his friend with the caveat that the bakes might need repairs >. 2.A formal notice or warning given by a party to a court or court officer requesting a suspension of proceedings 3. Under the Torrens system of land titles, a formal notice of an unregistered interest in land. ? Once lodged with the register of deeds, this notice prevents the register from recording any dealing affecting the estate or the interests claimed. See Torrens system.--caveat, vb." 13. Section 284 (1) of the Indian Succession Act provides that caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. The form of caveat has been provided in Section 284 (4) under the Schedule 5 of the Act. Section 285 of the Act provides that after entry of caveat, no proceeding can take place on petition unless a notice is served on the caveator. For convenience Section 284, 285 of Indian Succession Act are reproduced as under:- "284. Caveats against grant of probate or administration.- (1) Caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. (2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge. Caveats against grant of probate or administration.- (1) Caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. (2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge. (3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same. (4) Form of caveat.---The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V. 285. After entry of caveat, no proceeding taken on petition until after notice to caveator.- No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some other Delegate, until after such notice to the person by whom the same has been entered as the Court may think reasonable." 9. The Legislature to their wisdom has used the word, 'may' in subsection (1) of Section 284 of the Indian Succession Act. Now, it is trite in law that the word, 'may', can be mandatory and directory both, depending upon the facts and circumstances of each case. Meaning thereby, in case a person files caveat, then he will be entitled for hearing. 10. Section 285 at the face of record reveals that after filing of caveat, no proceeding shall take place, on a petition for probate or letter of administration court may proceed only after such notice to the person by whom the same has been entered, as the Court may think reasonable. By filing a caveat, a person acquires a right to oppose the grant of probate by filing objection. It is also evident from the dictionary meaning as provided in the Blake's Law dictionary [7th Edn.]. Accordingly, the provision contained in Indian Succession Act does not forbid a person to move an application under Order I Rule 10 of CPC. 11. By filing a caveat, a person acquires a right to oppose the grant of probate by filing objection. It is also evident from the dictionary meaning as provided in the Blake's Law dictionary [7th Edn.]. Accordingly, the provision contained in Indian Succession Act does not forbid a person to move an application under Order I Rule 10 of CPC. 11. Much emphasis has been given to Section 295 of Indian Succession Act. Section 295 provides that in a case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of civil Procedure in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. For convenience, Section 295 of the Act is reproduced as under: "295. Procedure in contentious cases.--In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." 12. Section 295 deals with the situation where a caveat is filed and provides that caveator shall be the defendant in the pending suit of probate or letters of administration. It does not deal with the situation where a person has not filed a caveat before the court of original jurisdiction. Accordingly, where a person has not filed any caveat, then his right to oppose the probate or law of administration, should be seen from other provisions of law. 13. It is settled law that while interpreting the statutory provisions, each and every word should be considered and no addition should be made unless there is ambiguity in the statutory provisions. In the present case, the language of Section 284, 285 and 295 is quite clear dealing with the situation with regard to the caveators. It does not deal with the situation where a person has not approached the court during the course of trial before the court of original jurisdiction. In the present case, the language of Section 284, 285 and 295 is quite clear dealing with the situation with regard to the caveators. It does not deal with the situation where a person has not approached the court during the course of trial before the court of original jurisdiction. A close reading of Section 295 rather, makes out a case to consider the application under the provisions contained in CPC. It provides that provisions contained in CPC may be made applicable as far as possible. 14. Much emphasis has been given on the provisions contained in General Rules Civil and the High Court Rules, which deal with the situation where a caveat is filed. High Court Rules also does not deal with a situation where a caveat has not been filed during the original trial or appeal. The procedure provided by the High Court Rules as well as the General Rules Civil, relate to a situation where a person files a caveat and not the situation where a caveat has not been filed and person has not approached by filing the the application at the first appellate stage. 15. What has not been given in the Rules or statutory provisions, that cannot be presumed as to be in statute book to deal with a situation. 16. It is a settled that that the appeal is continuation of suit. Accordingly, at the first appellate stage, an application may be moved under Order 1 Rule 10 of CPC. 17. Hon'ble Supreme Court in the case reported in (Vijai Pratap Singh Vs. Dukh Haran Nath Singh and another), held that when an application is moved, to join by transposition, it must be investigated. It is not liable to be rejected on the ground that the claim of the original applicant is personal to himself. 18. In the case report in (Ramesh Hirachand Kundanmal. Vs. Municipal Corporation of Greater Bombay and others, Hon'ble Supreme Court held that 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. Vs. Municipal Corporation of Greater Bombay and others, Hon'ble Supreme Court held that 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. It has been further held by the Hon'ble Supreme Court that a person should be impleaded as party so far as he should be bound by the result of the suit and question to be settled. The relevant portion of the Judgment of the Ramesh Hirachand Kundanmal's case (supra is reproduced as under:- "6. 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 the plaintiff to bring the necessary parties on record. The question of impleadment of a part 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 on 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 circumstnaces of a particular case. 14. It can not be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have the effect. But that appears to be a desirable consequence of the rule rather than its main objective. 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. 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. 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 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 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. Similar provision was considered in Amon V Ropael Tuck & Sons Ltd. 2, wherein after quoting the observations of Wynn-Party,J. in Dollfus Miweg et Compagnie S.A. V Bank of England. 3, that their true test lies not so much in an analysis of what are the constituenis of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J has stated. "The test is "May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights." 19. The ratio of Ramesh Hirachand Kundanmal's case, has been reiterated by the Hon'ble Supreme Court in the case reported in Sarvinder Singh. Vs. Dalip Singh and others. 20. In the case of Sarvinder Singh (supra), Hon'ble Supreme Court held that necessary party is one without whom, no order can be effectively made. The proper party is one whose presence is necessary for hearing and final decision of question involved in the proceeding. Vs. Dalip Singh and others. 20. In the case of Sarvinder Singh (supra), Hon'ble Supreme Court held that necessary party is one without whom, no order can be effectively made. The proper party is one whose presence is necessary for hearing and final decision of question involved in the proceeding. Therefore, addition of parties thus, would depend upon the judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. 21. In the case reported in (Savitri Devi. Vs. District Judge) while again reiterating the law laid down in the case of Ramesh Hirachand Kundanmal's case, the Hon'ble Supreme Court held that plaintiff is 'dominus litis' and not bound to sue every possible adverse claimant in the same suit. The court may at any stage of the suit direct for addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. In Savitri Devi's Case, the Hon'ble Supreme Court further proceeded to hold (in para 9) as under:- "9. Order I Rule 10 Code of Civil Procedure enables the court to add any person as a party at any stage of the proceedings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code." 22. In the case reported in (Committee of Management, Ratan Muni Jain Inter College and another. Vs. III Additional Civil Judge, Agra and others) as well as in (Hridaya NarainSingh. Vs. Lal and another), this Court while interpreting the Order I Rule 10 of the Code of Civil Procedure, held that it is the discretion of the court to add certain persons as party keeping in view the facts and circumstances of a particular case. For convenience, relevant portion of the Committee of Management, Ratan Muni Jain Inter College and another's case is reproduced as under:- "The theory of dominus litus should not be over-stretched because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is necessary party, the court can order such persons to be impleaded. Merely because the plaintiff does not choose to implead a person, is not sufficient for rejection of an application for being impleaded. The provisions of Order I Rule 10 (2) C.P.C. are very wide and the powers of the court are equally extensive. Even without an application to be impleaded as a party, the court may at any stage of the proceedings order that the name of any party, 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. So the learned Addl. Civil Judge was totally wrong in believing that Sri Moti Lal Jain's impleadment was not necessary for proper adjudication of the case. Although at page 4 of the judgment (page 153), while dealing with the point of dominus litus that the court may consider whether the joining of a person is essential or not but still he has proceeded to delude himself that even without the impleadment of Sri Moti Lal Jain, an effective decree could be passed. It amount to play Hamlet without the prince of Denmark." 23. In the case reported in (Alui Momonji & Co. Vs. Lalji Mavji and Others), Hon'ble Supreme Court had again affirmed the law laid down in Ramesh Hirachand Kundanmal's case (supra) and defined that who may be the proper or necessary party. 24. Allahabad High Court in the case reported in (Om Prakash Tewari Vs. State Bank of India and others) held that the persons who are in some way interested in a controversy under suit, whether the relief has been sought against others, may be impleaded as proper parties, at the discretion of the court. The relevant portion from Om Prakash Tewari's case (Supra) is reproduced as under:- "Persons who are not essential to be impleaded as defendants to a suit again fall in two classes (1) of those who are ion some way interested in, or connected with, the relief sought against others and (2) of others, who are not at all interested in, or connected with it. Persons of latter class must not be impleaded as defendants at all, but persons of the former class may be impleaded as proper parties at the discretion of the plaintiff by way of abundant caution or to avoid future litigation and the relief will not be refused on the ground that they have not been impleaded. Second part of the decision is that even the persons of former class may be impleaded as proper parties at the discretion of the plaintiff by way of abundant caution. Here again the case as in the present one is distinguishable. In the present case the application has not been made by the plaintiff for impleadment of the National Insurance company rather the plaintiff has been opposing the said impleadment, therefore, the aforesaid decision of the Full Bench will not be of any help to the applicant. Apart from that the only provision which has been cited is O.I R.10 (2). Even there it has been provided that 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 settled all the questions involved in the suit be added. It is significant that one of the very necessary principle in all these cases for impleading a party is that only such parties should be impleaded whose presence are necessary to settle all the questions involved in the suit." 25. In the present case, the appellant has not rebutted by filing reply to the affidavit sworn by the applicant in support of the contention that the Executive Council has assigned only the research work to the respondent No.2 and the applicant is managing the affairs of the property with regard to its property and other matters. 26. In the present case, the appellant has not rebutted by filing reply to the affidavit sworn by the applicant in support of the contention that the Executive Council has assigned only the research work to the respondent No.2 and the applicant is managing the affairs of the property with regard to its property and other matters. 26. Virtually, it appears that the applicant Birbal Sahni Institute of Palaeobotany Society, Lucknow and the respondent No.2 namely, Palaeobotany Society, Lucknow, are the two faces of the same coin and cannot be separated from each other keeping in view the material on record. They jointly fulfil the aims and object of the Institution or Society. 27. In view of the above, we are of the view that the applicant is necessary as well as proper party. 28.The application is allowed. 29. Let necessary amendments be carried out forthwith. 30. List in the week commencing 3.5.2010.