Ramadhar Chaudhary vs Dulhin Indrapari Devi and Another

Navaniti Pd. Singh, J.—Heard the parties. Opposite parties have appeared to whom notices had been issued by this court.

With the consent of the parties this application is being disposed of at the admission stage itself.

The present case arises out of a title suit filed by one Manbhama Devi. The said suit was filed for declaration that she was the daughter of Beni Madhav Roy. Further relief was that a gift purported to have been executed by said Beni Madhav Roy in favour of Dulhin Indrapari Devi be set aside and that her half share under Schedule A property be partitioned by metes and bounds and give to her with other reliefs.

The sole plaintiff died leaving a registered Will in favour of the petitioner. On basis of the said Will the petitioner filed a probate case and an application to intervene in the present suit. The intervention has been refused on the ground that till the Will is probated it cannot confer any right of legatee under the Will. It is this order that is impugned in this civil revision application.

The question is now well settled by series of judgments of this court being in the case of Suresh Singh and Another Vs. Raja Ram Singh and Others , which is a Division Bench judgment wherein it has been held thus:

"In view of the foregoing discussions, I hold that a legatee or executor of an unprobated Will making a claim on the basis of the same can institute a suit or take a defence in a suit on the basis of such a 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 neither any decree can be passed in favour of a plaintiff nor defence can be accepted in such a suit unless probate or letters of administration is obtained before its disposal. I also hold that if such a legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be subsituted in place of the testator or added as a party if he makes a claim on the basis of an unprobated Will."

Similar view has been taken in two other Single Bench judgments of this court in the case of Bangali Singh and Rajendra Singh Vs. Ramanuj Sharma and Makhan Prasad Singh Vs. Basudeo Singh and Others, .

In view of the settled position of law the impugned order cannot be sustained and is thus set aside. The revision application is allowed.