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2023 DIGILAW 87 (RAJ)

Lal Chand v. Pawan Kumar

2023-01-09

ARUN BHANSALI

body2023
JUDGMENT 1. This writ petition has been filed by the petitioner aggrieved against the order dated 20.01.2022 (Annex.5) whereby application filed by respondent under Order XXII Rule 3 CPC has been accepted. 2. Suit was filed by one Jaisaram, seeking cancellation of the gift-deed dated 20.01.2011 executed in favour of petitioner. During pendency of the suit, Jaisaram died and he was not survived by any natural heir, an application was filed by respondent Pawan Kumar, based on a Will, said to have been executed in his favour in the year 2010, which was registered on 20.02.2018 for being impleaded as legal representative of Jaisaram. 3. The application was contested by the petitioner. 4. The trial court by its order impugned came to the conclusion that based on the Will executed in favour of respondent Pawan Kumar, his application deserves to be allowed and allowed the same. 5. Learned counsel for the petitioner made submissions that the trial court was not justified in impleading Pawan Kumar as legal representative of deceased Jaisaram, inasmuch as he has not obtained the Probate of Will in question and that the court below should have made an enquiry under Order XXII Rule 5 CPC regarding validity of the Will before impleading Pawan Kumar as legal representative of deceased Jaisaram. 6. I have considered the submissions made by the counsel for the petitioner and have perused the material available on record. 7. Insofar as the plea pertaining to requirement of obtaining the Probate is concerned, this Court in Sultan Singh v. Brij Raj Singh : (1997) 1 WLC 368 (Raj.), has laid down that in the State of Rajasthan, obtaining of Probate of the Will is not necessary and, therefore, the plea raised in this regard has no substance. 8. So far as the plea raised that under Order XXII Rule 5 CPC, the trial court should have examined the validity of the Will, as the same was questioned by the petitioner before impleading respondent Pawan Kumar as legal representative of deceased of Jaisaram is concerned, suffice it to indicate that the procedure under Order XXII Rule 5 CPC is summary in nature, wherein it is not expected of the trial court to decide validity of the Will. Based on the fact that the Will was registered, the respondent was impleaded as legal representative of deceased Jaisaram. 9. Based on the fact that the Will was registered, the respondent was impleaded as legal representative of deceased Jaisaram. 9. In case, the petitioner has any objection with regard to Will and in case the issue arises under substantive proceedings pertaining to validity of the Will, the result of the present proceedings would follow the outcome of the said proceedings. In view of above discussion, no case for interference is made out. The writ petition is, therefore, dismissed.