Shalini Phansalkar Joshi, J.

1. This Appeal is arising out of the Judgment and Order dated 10th June, 2013 passed by the learned Single Judge of this Court, whereby the Chamber Summons No.39 of 2013 taken out by the Appellants for their impleadment as Respondents in Testamentary Suit No.11 of 2012 came to be dismissed.

2. Brief facts of the Appeal can be stated as follows :-

One Ramalaxmi Ravishankar Trivedi had various properties in Bombay as well as at Kutch, more particularly, agricultural land, admeasuring about 13 Acres 24 Gunthas, situate in Survey No.154 at Mandvi City and being known as “Bhandarvali” at Godharai Falia, Kutch, Gujarat. She had executed an Irrevocable Power of Attorney on 28th August, 1997 in favour of her late brother Bhagwanji Trivedi, the late Respondent No.2 herein. During her lifetime itself, Respondent No.2 had, by Deed of Sale dated 29th November, 1997, transferred the said land to one Narayanbhai @ Nanalal Jethalal Fufal. Ramalaxmi expired on 31st January, 2004 at Kutch, leaving behind Respondent Nos.1, 2 and 3 as her brothers and two sisters.

3. After her death, on 18th April, 2007, Respondent No.2 herein had registered the said Deed of Sale before Sub-Registrar Office at Kutch. Thereafter, on 29th March, 2008, by executing registered Deed of Sale, said Narayanbahi Fufal transferred that land to the present Appellants and since then the Appellants are in exclusive possession of the said land.

4. After the death of Ramalaxmi on 31st January, 2004, one of her brothers, i.e. Respondent No.1, filed the Petition for grant of Probate in respect of the registered Will dated 31st August, 2001, executed by Ramalaxmi in his favour. Her two other brothers, namely, Respondent Nos.2 and 3 contested the said Petition for Probate. Hence, it was converted to Testamentary Suit.

5. Meanwhile, Respondent No.1 has also filed Special Civil Suit No.86 of 2007 before the Principal Senior Civil Judge, Bharuch, Kutch for cancellation of the Sale Deed executed by Respondent No.2 in favour of Narayanbhai Fufal, contending inter alia that deceased Ramalaxmi has executed a registered Will on 31st July, 2001 and on the basis thereof, he has become entitled to get all her property. In the said Suit, he also challenged the Power of Attorney executed by Ramalaxmi in favour of Respondent No.2, on the basis of which Respondent No.2 had sold property to Narayanbhai Fufal. The present Appellants were joined in the said Suit as party-Defendants, in view of the Deed of Sale executed by Narayanbhai Fufal in favour of the Appellants on 29th March, 2008. In that Suit, the Court framed various issues in respect of the entire transaction of sale, by virtue of which the Appellants claimed to have become owners of the land.

6. That Suit came to be dismissed on 21st June, 2012.

7. In view thereof, the Appellants took out Chamber Summons in Testamentary Suit, pending before the learned Single Judge, seeking their impleadment in the Suit on the ground that they are having caveatable interest in the agricultural land, which was arraigned as the subject matter of the estate left behind by the deceased. It was contended that the said agricultural land was no longer the estate of the deceased on the date of filing the Probate Petition and, therefore, Respondent No.1 cannot pray for the grant of Probate in respect of the said property. It was submitted that, by virtue of the Deed of Sale executed in their favour, the Appellants have become exclusive owners of the said agricultural land and they have special interest in the said property. Their presence, as proposed Respondents/Defendants was, therefore, necessary for the decision of the Probate Suit. If the Probate Suit is decided without joining them, their interests and rights will be affected and, therefore, it was requested that in the interest of justice and equity, they may be permitted to join as party-Defendants in the Suit to contest the grant of Probate.

8. This Chamber Summons taken out