Unilateral execution of sale documents based on a disputed Will without probate or no objection from legal heirs is unauthorized and speculative.

SANJAY KISHAN KAUL, J.

( 1 ) ADMIT.

( 2 ) AT request of learned counsel for the parties, the matter is taken up for final disposal. Late Sh. Har Bhagwan passed away on 3/11/1997. He was survived by his wife, four daughters and two sons. The wife has also since passed away. The petitioners are the four daughters.

( 3 ) THE testator is stated to have executed a Will dated 9/9/1997 bequeathing the estate to the petitioners herein. The petitioners filed a probate petition in the year 2000 in which the two sons of late Sh. Har Bhagwan filed objections. It may be stated that one of the sons Sh. Raj Kumar propounded another Will dated 30/10/1997 in terms whereof he had become the beneficiary of the properties while under the earlier Will dated 9/9/1997 he had been disinherited.

( 4 ) SH. Raj Kumar without waiting for the result of the probate proceedings executed a sale deed in favour of Sh. Amit Pahwa dated 20. 06. 2003 and 27. 06. 2003 in respect of two properties forming subject matter of the grant under the Will on the basis of the Will dated 30/10/1997. Interestingly, neither was any probate obtained of the Will dated 30/10/1997 nor the no objections of the other legal heirs. Sh. Amit Pahwa in turn entered into an agreement to sell on 25/7/2003 with one Sh. Sunil Gupta, respondent no. 1 herein in respect of one of the properties. The sale deed is stated to have been executed in respect of the other property on 12/9/2003.

( 5 ) SH. Sunil Gupta thereafter filed an application for impleadment in the probate which has been allowed by the impugned order dated 24. 12. 2004 and the petitioners aggrieved by the same have filed the present proceedings under article 227 of the Constitution of India.

( 6 ) A perusal of the impugned order shows that what weighed with the trial court was the fact that interest had been created in favour of respondent in pursuance to the sale deed in respect of one of the properties while an agreement to sell had been executed in his favour in respect of the other property. Learned counsel for the petitioners contends that the suit is at a stage where evidence has been recorded of the petitioners and the attesting witnesses to the Will dated 09. 09. 1997 and the impleadment of respondent no. 1 now seeks to set back the clock. Not only that no probate was obtained or applied for of the Will dated 30. 10. 1997 and the sale has been effected in pursuance to the said Will without the no objection of the other legal heirs. Thus the purchasers are only speculators who have purchased the litigated property.

( 7 ) LEARNED counsel for the respondent on the other hand has drawn the attention of this court to the Division Bench judgment of this Court in Indian Associates v. Shivendra Bahadur Singh and Ors; 104 (2003) Delhi Law Times 820 to advance the proposition that it is permissible for a party to be impleaded in proceedings for grant of letters of administration without Will if there is credible material on record to show the interest created in favour of such third party. It is submitted that probate proceedings will be a judgment in rem and thus the said principles should apply to the present case.

( 8 ) I am unable to accept the plea of the learned counsel for the respondent for the reasons that in those proceedings an administrator had been appointed of the estate of the deceased who in turn had entered into the agreement with the permission of the court. There was thus stated to be an authority in favour of the person executing the documents and it is in those circumstances that the impleadment was permitted.

( 9 ) LEARNED counsel has also drawn the attention of this court to the judgment of the Division Bench of the Madhya Pradesh High Court in Banwarilal Shriniwas v. Kumari Kusum Bai; AIR 1973 Madhya Pradesh 69. It has been observed in the said judgment that a purchaser who acquires an interest in the estate of the testator by reason of the transfer by the heirs is entitled to citation because he is