IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16881 of 2011 Ekta Sahkari Grih Nirman Samiti Ltd.Patna Versus The Estate Of Late Ram Parichan Singh & Ors. ----------- 05. 08.12.2011 I have heard the learned counsel, Mr. Sandeep Kumar on behalf of the petitioner and the learned counsel, Mr. Bishwanath Choudhary on behalf of the respondent. (2) The present petitioner, Ekta Sahkari Grih Nirman Samiti Limited, Patna has filed this application under Article 227 of the Constitution of India against the order dated 27.05.2009 passed by Additional District Judge VI, Patna in Title Suit No.9 of 2003 rejecting the application filed by the petitioner under Order 47 Rule 1 and 2 C.P.C. for review of the order dated 12.01.2008 whereby the application filed by the petitioner for being added as party in the aforesaid proceeding was rejected by the Court below. The petitioner also challenged the order dated 12.01.2008. (3) The learned counsel for the petitioner submitted that the petitioner is purchaser of portion of the property involved in the Will by registered sale deeds and, therefore, he was necessary party. The property belonged to late Ram Parichan Singh who died on 20.05.1999 leaving behind his widow, Mostt. Jipato Devi. Mostt. Jipato Devi on 04.12.2000 sold 60 decimals of her land by registered sale deed and put the petitioner in possession of 2 the property. The respondent nos.2 and 3, Chhotan Prasad Singh and Meena Devi filed probate case no.71 of 2000 for the grant of probate of alleged Will said to have been executed on 08.10.1997 by late Parichan Singh. In the said probate proceeding, they did not make Mostt. Jipato Devi as party. She subsequently appeared and filed caveat on 26.06.2001 and then the probate case was converted and it was registered as title suit no.9 of 2003. The present petitioner filed application for being added as party on 09.09.2005 and then subsequent to filing of this application, the said Jipato Devi died on 23.10.2006. In view of the above facts if the petitioner is not being added as party in the probate proceeding, the petitioner shall suffer serious loss and he will not be able to protect his interest in the property. The learned counsel further submitted that in view of the fact that he is a purchaser of part of the property, he is necessary party in the probate proceeding. According to the learned counsel, notice of the probate proceeding was issued after 20.02.2001. After receiving notice, Jipato Devi filed application for supply of copy on 20.04.2001 and, therefore, she had no knowledge about the probate proceeding earlier prior to selling of the property. She had filed objection challenging the genuineness of the alleged Will and after her death, the petitioner became necessary party in the proceeding. (4) On the other hand, the learned counsel 3 for the respondents submitted that purchaser is not a necessary party in the probate proceeding and, therefore, the learned Court below has rightly rejected the application for being impleaded as party and, therefore, there was no question of reviewing the order arises. (5) In view of the above submission of the parties, it is admitted fact that the property originally belonged to late Ram Parichan Singh. He died on 20.05.1999 leaving behind only his widow, Jipato Devi. Jipato Devi sold the property to the petitioner on 04.12.2000. It is also admitted fact that in the probate proceeding, Jipato Devi was not shown as opposite party in the probate application. At paragraph 10, Jipato Devi was shown as only near relative. From perusal of the supplementary affidavit which is not controverted by the respondent, it appears that although the probate application was filed much earlier but then the same was defective and no duty money was paid. On the direction of the Court, the defects were removed and duty money was paid and thereafter the probate case was admitted on 17.03.2001. Thereafter, notices were issued on the near relatives as notice of general citation and then Jipato Devi appeared on 20.04.2001. Therefore, prior to that, she had no knowledge about the proceeding and she had already sold the property to the petitioner. On her objection, challenging the genuineness of Will the said probate 4 proceeding was converted to title suit no.9 of 2003. (6) Chapter 3 of the Indian Succession Act provides for revocation or annulment of the probate already granted and according to the illustration II of Section 263 of the Indian Succession Act if a probate has been granted without citing the parties who ought to have been cited the probate can be revoked. Likewise, Section 283(3) of the Indian Succession Act provides that the District Judge may issue citation calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate of letters of administration. Now, therefore, in the present case, prior to notice in the probate case, the present petitioner acquired title to the property of late Ram Parichan which was inherited by his widow, Jipato Devi. (7) In AIR 1947 Patna 434(Mostt. Sheopati Kuer vs. Ramakant Dikshit), a Division Bench of this Court has held that any interest, however slight and even the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. Admittedly, in the present case at our hand, according to the probate application itself, Jipato Devi was the only near relative. It is not disputed that she was widow of late Parichan. She also filed objection challenging the genuineness of the Will. The present petitioner being the purchaser from Jipato Devi has stepped into the shoes of Jipato Devi. Now Jipato 5 Devi is dead. Whatever objection Jipato Devi had in the probate proceeding will not be supported by anyone even by the petitioner if he will not be added as party. (8) The learned counsel for the respondents relied upon a decision of the Apex Court reported in 2008(1) PLJR 172 Supreme Court (Sunil Gupta vs. Kiran Girhotra). From perusal of the said decision, it appears that the three daughters of Bhagwan filed application for the grant of probate wherein two sons of Bhagwan filed objection petitions. One of the sons namely Rajkumar was claiming probate on the ground of execution of Will dated 30.10.1997. He sold the properties by two sale deeds in 2003 in favour of Amit Pahwa who in turn sold the property to Sunil Gupta (appellant before Supreme Court) on 29.08.2003. This Sunil Gupta filed the application for being impleaded as party. The Apex Court considering this facts and circumstances held that Rajkumar evidently was aware of the proceedings. If a proceeding had been initiated for grant of probate the appellant and/or his predecessor Sri Amit Pahwa would be deemed to have notice thereof and, therefore, held that a transferee of the property during the pendency of the proceeding is not a necessary party. Citations are necessary to be made to only of those who inter alia claimed through or under the Will or deny or dispute the execution thereof. From the facts stated above, it appears 6 that in that case after notice of the pendency of the proceedings, one of the objectors sold the property to another person i.e. Amit Pahwa who in turn sold the appellant before the Apex Court. The fact of the present case at our hand is entirely different. As discussed above, Jipato Devi exclusively inherited the property of her husband and then she transferred the same in favour of the petitioner through registered deed prior to notice in the probate proceeding. Admittedly, therefore, she had no knowledge about the pendency of the proceeding. It is admitted fact that she filed objection challenging the genuineness of the Will. In such circumstances, the present petitioner stepped into the shoes of Jipato Devi and he has got interest in the suit property and is required to be heard in support of the objection filed by the petitioner predecessor. (9) In (2010)7 SCC 417(Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels private Limited and others), the Apex Court at paragraph 22 and 23 has held as follows: “22. Let us consider the scope and ambit of Order 1 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 motu or on the application of the plaintiff or the 7 defendant, or on an application of a person who is not a party to the suit. The court can strike out any out 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.” 23. This Court in Ramji Dayawala & Sons(P) Ltd. V Invest Import reiterated in SCC p.96, para 20 the classic definition of “discretion” by Lord Mansfield in R.v. Wilkes (ER p.334) that “discretion” “when applied to a court 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.” (10) In view of the above settled proposition of law laid down by the Apex Court it is judicial discretion of the Court to add a necessary party or proper party in a proceeding. As a matter of right, the transferee cannot claim to be added as party. It is the discretionary jurisdiction of the Court which must be exercised judiciously considering the facts of each case. No straitjacket formula can be made. Addition of party depends on the facts of each case. (11) In AIR 2005 Supreme Court 2209(Amit Kumar Shaw and Anr. Vs. Farida Khatoon and Anr.), the Apex Court has held that transferee pendent elite can be added as proper party if his interest in 8 the subject matter of suit is substantial and not just peripheral. Admittedly, in the present case at our hand, the petitioner has acquired interest in the estate of the deceased late Parichan Singh. Since Jipato Devi was the only near relative as stated by the respondent nos.2 and 3, the proceeding will now be decided ex-parte, if the petitioner is not allowed to be made a party. (12) In AIR 2003 Delhi 292(M/s Indian Associates vs. Shivendra Bahadur Singh), a Division Bench of the Delhi High Court also held that a person having interest in estate could be permitted to intervene or be impleaded as party even in testamentary proceedings because only he could effectively safeguard his interest. (13) In view of my above discussion, it appears that the petitioner is a proper party in the proceeding and should have been added as party by the Court below. Therefore, the impugned order is set aside and the consequential order sought for to be reviewed is also set aside and the application of the petitioner is allowed and he is added as party in the probate proceeding. Thus, this writ application stands allowed. Saurabh ( Mungeshwar Sahoo, J.)