In a suit for partition of joint assets and properties left behind by a deceased person, the Executor of the Will of the deceased is not a necessary party to the suit at the stage of the suit, where the defendants have not yet entered appearance in the suit and the probate Court has limited jurisdiction on the genuinity and authenticity of the Will and cannot decide the title of the parties.

JUDGMENT :

Krishna Rao, J.

1. The defendant no.1 has filed the present application for rejection of plaint or in the alternative to dismiss the plaint on the ground of non-joinder of a necessary party.

2. The plaintiffs have filed Civil Suit No. 96 of 2020 praying for a Decree for partition of joint assets and properties mentioned in the Schedule of the plaint and other prayers connected with the suit property.

3. The defendant No.1 contended that the plaintiff had received a copy of interlocutory application being IA GA No. 2 of 2022 on August 16, 2022 wherein the copy of plaint of CS No. 96 of 2020 was enclosed and on receipt of the said application, the Counsel for the defendant had enquired from the office and the defendant found that the suit is presented on March 30, 2022 but neither the scrutiny of the plaint was completed nor writ of summon is lodged.

4. It is further contended that the plaintiffs have filed the suit for partition and other reliefs but with respect of the suit property, the deceased Kuldeep Saha during his lifetime had made and published his last Will and Testament dated November 26, 2016 whereby the suit scheduled property have been bequeathed to the defendant No.1 by appointing one Sujit Guin as the sole Executor of the said Will.

5. It is further contended that in the plaint it is mentioned that the deceased Kuldeep Saha died intestate but the plaintiff had the knowledge about the last Will and testament of the deceased Kuldeep Saha but the plaintiff had not made Mr. Sujit Guin as a party to the present suit who is a necessary party to the suit.

6. The defendant No.1 further contended that the plaintiff is seeking relief related to the estate of the deceased Kuldeep Saha, having the knowledge about the last Will and Testament wherein Mr. Sujit Guin was appointed as the executor and in the absence of the executor of the Will, issue relating to the estate of the deceased Kuldeep Saha cannot be decided.

7. The defendant no. 1 further contended that the suit filed by the plaintiff does not disclose any cause of action and thus the suit is liable to be rejected.

8. On the other hand, the learned Counsel for the plaintiffs submits that the plaintiff No.1 being the wife and the plaintiff No. 2 being the daughter have filed the present suit claiming partition and other reliefs with respect of the suit property which is left behind by the deceased Kuldeep Saha and thus Sujit Guin cannot be a necessary party.

9. The plaintiffs contended that after the death of the deceased Kuldeep Saha, the defendants have deprived the plaintiffs of their right over the properties left behind by the deceased due to which the plaintiffs are facing difficulties and as such in respect of the share over the property, the plaintiffs have filed the present suit.

10. The plaintiffs further contended that the plaintiffs have requested the defendant to provide a copy of the Will which the defendant herein relied upon but no copy of the Will was provided to the plaintiffs. The plaintiffs have the knowledge that the deceased Kuldeep Saha has not executed any Will and the Will which the defendants are relying upon is a forged and fabricated one.

11. The plaintiffs further contended that the plaintiffs are claiming the property in which the right, title and interest of plaintiffs have accrued thereby on the death of Kuldeep Saha and thus the plaintiffs have nothing to do with Mr Sujit Guin. The plaintiffs further submits that Sujit Guin had already filed an application for grant of probate and the plaintiffs will contest the said proceeding at the appropriate stage.

12. The plaintiffs further contended that from paragraphs 33 to 36 of the plaint, the plaintiffs have narrated under what circumstances the plaintiffs have filed the present suit and how the cause of action arose for filing of the instant suit and the plaintiffs have categorically stated about the cause of action for filing of the suit.

13. The plaintiffs submits that the plaintiffs have al