Makhan Prasad Singh vs Basudeo Singh and Others

Nagendra Rai, J.—Heard Mr. Ratan Kumar Sinha, Jearned counsel for the Petitioner and Mr. Naresh Chandra Verma, learned Counsel for opposite party No. 1.

After hearing learned Counsel for the parties, I am of the view that the revision application is maintainable.

The revision application has been filed by the Petitioner for setting aside the order dated 5.7.2002 passed by the Court below, whereby the application filed by the Petitioner for being added as a party on the basis of an unprobated Will has been rejected on the ground that he cannot be added as a party to the suit on the basis of an unprobated Will and also that no application for condonation of delay was filed.

u/s 213(1) of the Indian Succession Act (for short ''the Act''), no right can be established in a Court, but the same does not preclude a person from instituting a case or setting up a defence on the basis of unprobated Will. Only rider is that such person is debarred from enforcing the right claimed on the basis of the unprobated Will (See Suresh Singh and Another Vs. Raja Ram Singh and Others ).

This Court further held that in a case of devolution or transfer of interest, provision of Order XXII, Rule 10 of the CPC is not applicable and accordingly the Court was also not justified in rejecting the application on the ground of delay etc. As a matter of fact there is no delay also. [See Harisharan Pandey v. State of Bihar reported in 1992 (2) B.L.J. 426].

In that view of the matter, this revision application is allowed and the prayer made by the Petitioner for being added as a party to the suit is allowed. However he will be added as a party to represent the estate of the deceased but cannot claim any right on the basis of the unprobated Will.