Bhupinder Kaur Kohli and Another vs Paramjit Singh and Others

K. Kannan, J.—The revision petition is against the order dismissing a prayer for impleadment under Order 1 Rule 10 CPC and claim for amendment under Order 6 Rule 17 CPC, a two-in-one application filed before the court below. By the amendment of the plaint, the plaintiffs wanted to bring a reference to the earlier Will alleged to have been executed by Mohinder Kaur, whose estate was a subject of litigation and they also wanted to implead the beneficiary under the said Will. The contest by the respondents was that even in the Will, which is challenged by the plaintiffs, there is a reference to the earlier Will and the plaintiffs, therefore, knew about the existence of the earlier Will even at the time when the suit was filed and they had deliberately not made reference to that Will nor impleaded the trust.

A challenge to a Will does not require to be expressly made. The very institution of the suit in relation to a property which is covered under the Will must be taken as containing an inherent challenge, for, the burden of proof is always on the propounder of the Will to prove the same. It is irrelevant that the plaintiffs had not specifically set out a challenge to the alleged Will of the year 2006. Even if the plaintiffs have not referred to the earlier Will or had not impleaded the persons who were beneficiary under the earlier Will, no serious prejudice could be caused when the impleadment is sought so long as there is no issue of bar of limitation for the same. It is only appropriate that in a suit for joint possession for immovable property all the persons who may stake claim in relation to the property are added to secure a binding adjudication. The impleadment of the beneficiary under the earlier Will was most appropriate and the court ought to have allowed the application of amendment and directed also impleadment in the manner sought.

The impugned order is set aside and the revision is allowed. Before parting with the judgment, it is observed that it is essential for every court at all times to ensure that the applications filed before it are properly drafted and filed in the manner that is required to be done. An application under Order 1 Rule 10 CPC for impleadment of third party cannot be brought in a single application alongwith an application under Order 6 Rule 17 CPC. They are different and they shall be treated differently. A person, who is sought to be impleaded, ought not to be burdened with the information about how the plaint is going to be amended. For the person who is sought to be impleaded, what all is necessary as to why he is being sought to be impleaded. The manner how the plaint will stand amended will come through an individual application. This also becomes essential as one of procedure because it is likely that the court may decide one application in favour and another against the person who filed it. In such a event, it is the separate order that enable parties to work out proper remedy in a higher forum by filing an appeal against the order which is against the aggrieved person. A joint order in a two-in-one application is an erroneous procedure, which the court shall ensure is not adopted by any suitor before the court.