Krishnadhan Khaware And Ors. vs Anandi Devi And Ors.

The petitioners are aggrieved of order dated 15.01.2018 passed in Letters of Administration Case No. 01 of 2012, now converted into Title Suit No.

01 of 2015.

Plea taken by the petitioners is that the intervenors namely, Anandi Devi, Mridula Mishra and Jaya Mishra are not class-1 legal heirs of Ram

Narayan Mishra and while so, they have no caveatable interest in the property and therefore, they cannot be impleaded in the Letters of

Administration Case No. 01 of 2012.

Briefly stated, Ram Narayan Mishra, who according to the petitioners drafted his Will in his own handwriting in presence of two witnesses on

01.04.2001, died issueless on 28.11.2009. The legatees filed petition under Section 278 of Indian Succession Act, 1925 for grant of Letters of

Administration. They are son of the maternal brother of the testator. It appears that certain objections were filed, whereupon Letters of Administration

Case No. 01 of 2012 has been converted into Title Suit No. 01 of 2015. In this suit an application under Order I Rule 10 (2) CPC was filed by Anandi

Devi, Mridula Mishra and Jaya Mishra. This application has been allowed by the trial judge vide its order dated 15.01.2018 on the ground that the

probate court is under a duty to hear objection by such persons who claim a right in the bequeathed property.

The guiding principle for impleading a party in the suit under Order I Rule 10(2) CPC has been explained by the Supreme Court in “Udit Narain

Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and Ors.†reported in AIR 1963 SC 786. It has been held that one without whom

no effective order can be passed in the suit is a necessary party and the one in whose absence a complete and final decision in the suit cannot be

rendered is a proper party. It is well settled that in a probate proceeding, which would govern the Letters of Administration Case No. 01 of 2012,

claim of a party over the bequeathed property cannot be decided by the probate court, however, all persons claiming to have any interest in the estate

of the deceased may be issued citations. Contention raised on behalf of the petitioners that the intervenors fall in the remote category of relatives of

the testator, in my opinion, has rightly been rejected by the trial judge. Right of parties cannot be decided in a probate proceeding. The tests is, whether

the intervenors can maintain a suit in respect to the property in question. The legatees themselves in their application have disclosed name of the

intervenor-applicants as relatives of the testator-Ram Narayan Mishra and, thus, it cannot be disputed that the intervenor-applicants have caveatable

interest in the property.

In the above facts, finding no infirmity in the impugned order dated 15.01.2018, the writ petition is dismissed.