IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1638 of 2006 POONAM DEVI, wife of Chitranjan Singh, R/o Village – Shahpur Mahananpur, P.S. Chandi, District – Nalanda …… Intervenor (Applicant) …………………………………….……………………………... Petitioner Versus 1. SURENDRA PRASAD, S/o Late Ramdip Singh, R/o Village – Shahpur Mahananpur, P.S. Nagarnausa, District – Nalanda, 2. Smt. Bibha Devi, wife of Sri Vinod Kumar, R/o Village – Hisua, P.S. – Sarmera, Distt. Nalanda, 3. Smt. Shashi Kala Devi, wife of Sri Arvind Kumar, R/o Village – Kurkuri, P.S. Phulwarisharif, Distt. – Patna ….. Plaintiffs …. Opposite parties 1st Set, 4. Sri Hargovind Prasad, S/o Late Ramdip Singh, 5. Sri Niranjan Prasad, 6. Sri Pawan Ranjan Kumar, both sons of Sri Hargovind Prasad, 7. Sri Gajendra Prasad, 8. Sri Braj Mohan Prasad, both sons of Late Ramdip Singh, 9. Chitranjan Prasad, S/o Sri Braj Mohan Prasad, all residents of Village Shahpur @ Shahpur Mahanandpur, P.S. Nagarnausa, Distt. – Nalanda, 10. Smt. Mani Devi, wife of Sri Satya Narain Singh, R/o Village Birupur, P.S. Ghosi, Dist. Jehanabad and 11. Smt. Sunita Devi, wife of Parmanand Singh, R/o Village Sithoura, P.S. Rajgir, Dist. Nalanda ………………Defendants … Opposite Parties 2nd Set. ----------- For the Petitioner:- Mr. Pushkar Narain Shahi and Mr. Ravi Kumar, Advocates. For the Opp.Parties No. 1-7, 10 & 11:- Mr. V. Nath and Mr. Anil Kumar Singh, Advocates. ---------- 8. 13.10.2009. I.A. No. 4025 of 2006 has been filed for condoning the delay of about six months in filing of the present Civil Revision. It has been submitted on behalf of the petitioner that the petitioner had preferred review application for review of the order dated 5.12.2005. However, the aforesaid review application was dismissed 2 on 25.07.2006 and, due to that reason, the present Civil Revision could finally be filed on 15.09.2006. Though no counter affidavit has been filed on behalf of the opposite parties, but learned counsel appearing for the opposite parties no. 1 to 7, 10 and 11 has opposed the aforesaid Interlocutory Application. On being satisfied with the reasons furnished in the aforesaid interlocutory application, I.A. No. 4025/2006 is allowed and the delay in filing the Civil Revision is condoned. Now, I proceed to consider this Civil Revision on merit. This Civil Revision is directed against the order dated 5.12.2005 passed by the Sub Judge I, Hilsa in Title Suit No. 54/2003, whereby the petition filed by this petitioner under Order I Rule 10 of the Code of Civil Procedure for adding him as a defendant in the suit has been dismissed. I have heard learned counsel for the petitioner and learned counsel appearing on behalf of opposite parties no. 1 to 7, 10 and 11. Though a Vakalatnama has been filed on 3 behalf of opposite parties no. 8 and 9, but no body has appeared on their behalf at the time of hearing of this case. This Civil Revisions is being disposed of at this stage with the consent of the appearing parties. The plaintiffs – opposite parties 1st set filed Title Suit No. 54/2003 for grant of preliminary decree of partition with respect to the properties described in Schedules I & II of the plaint. It is stated on behalf of the petitioner that during the pendency of the suit, a registered Will was executed by the original defendant no. 1, Randip Singh in favour of the petitioner. The petitioner filed an application under Order I Rule 10 C.P.C. after the death of the aforesaid defendant no. 1, Randip Singh claiming therein that she is the beneficiary as the entire self-earned property as well as the share of the defendant no. 1 in the joint family property have been bequeathed in favour of this petitioner by way of executing a registered Will, thus, she was entitled to be added as defendant after the death of testator. The claim was rejected on the ground that the Will was unprobated. It has also stated that since it is a title suit and all the 4 parties to the suit have opposed this petition, it would not be proper to implead the petitioner on the basis of the aforesaid unprobated Will. Subsequently, a petition was also filed for review of the aforesaid order dated 5.12.2005 which was heard and dismissed by the court concerned on 25.7.2006. Thereafter, the present Civil Revision has been filed. Learned counsel for the petitioner has placed reliance upon a Division Bench decision of this Court rendered in Suresh Singh & Anr. Vs. Dr. Raja Ram Singh & ors., [1992 (2) PLJR 129]. It had been held therein that Section 213 of the Indian Succession Act, 1925 does not preclude a person from instituting a case or setting up a defence on the basis of unprobated Will. It only debars a person from enforcing the right claimed on the basis of unprobated Will unless and until a probate or letters of administration is obtained. In view thereof it had been held that if such a legatee or executor can institute a suit or set up a claim by way of defence, he can also be allowed to be substituted in place of the testator after his death or added as a party if he makes a claim on the basis of an unprobated Will. However, this 5 had also come to the conclusion that the claim of such legatee or executor of unprobated Will cannot be established in a court of law unless or until a probate or letters of administration is granted meaning thereby that neither any decree could be passed in favour of a plaintiff nor any defence can be accepted in such a suit unless probate or letters of administration is obtained before its disposal. Learned counsel appearing on behalf of the opposite parties no. 1 to 7, 10 & 11 submitted that the petitioner has not even filed a probate case. Thus, he should not be added as a party defendant. However, in view of the aforesaid discussions, I respectfully follow the ratio decidendi laid down by the Division Bench of this Court in Suresh Singh (supra) and accordingly hold that if a legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be substituted in place of the testator or added as a party, if he makes a claim on the basis of unprobated Will. However, it is also well settled that such a legatee or executor making a claim on the basis of unprobated Will, though can institute a suit 6 or take a defence in the suit on the basis of such Will, but his claim cannot be established in a Court of law unless and until a probate or letters of administration is granted meaning thereby that no decree can be passed in favour of such legatee nor defence can be accepted on his behalf unless a probate or letters of administration is obtained before its disposal. Thus, it is held that the court below has committed serious error of jurisdiction in refusing the prayer made on behalf of the petitioner and thereby refusing to exercise jurisdiction vested in it under law. As a result, this Civil Revision is allowed and the impugned order dated 5.12.2005 is set aside. The court below is directed to implead the petitioner as a party defendant to the suit. However, that will be subject to the aforesaid observations of the Division Bench in the case of Suresh Singh (supra) as well of this Court. Since learned counsel for the opposite parties has submitted that probate case is yet to be filed by the petitioner, the Court concerned after granting a reasonable opportunity would refrain from granting unnecessary adjournments on the pretext that probate 7 case is going to be filed. dk ( Dr. Ravi Ranjan, J. )