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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
Arun Bhansali, J.
Lal Chand – Appellant
Versus
Pawan Kumar – Respondent
S.B. Civil Writ Petition No. 9349/2022
Decided On : 09-01-2023
Probate - Legal Representative Impleaded Based on Registered Will - The court held that obtaining Probate of the Will was not necessary in the State of Rajasthan and the trial court was not expected to decide the validity of the Will under Order XXII Rule 5 CPC, as the procedure is summary in nature. The impleading of the respondent as the legal representative was based on the fact that the Will was registered, and any objection to the Will would be addressed in substantive proceedings.
Fact of the Case:
The suit was filed seeking cancellation of a gift-deed, and during the pendency of the suit, the deceased was not survived by any natural heir. An application was filed by the respondent based on a Will, seeking to be impleaded as the legal representative of the deceased.
Finding of the Court:
The court dismissed the writ petition, holding that obtaining Probate of the Will was not necessary in the State of Rajasthan and that the trial court was not expected to decide the validity of the Will under Order XXII Rule 5 CPC, as the procedure is summary in nature. The impleading of the respondent as the legal representative was based on the fact that the Will was registered, and any objection to the Will would be addressed in substantive proceedings.
Issues: Impleading of legal representative based on a registered Will, requirement of obtaining Probate of the Will, and the validity of the Will under Order XXII Rule 5 CPC.
Ratio Decidendi: Obtaining Probate of the Will was not necessary in the State of Rajasthan, and the trial court was not expected to decide the validity of the Will under Order XXII Rule 5 CPC, as the procedure is summary in nature.
Final Decision: The writ petition was dismissed.
JUDGMENT
1. This writ petition has been filed by the petitioner aggrieved against the order dated 20.01.2022 (Annex.5) whereby application filed by respondent under Order XXII Rule 3 CPC has been accepted.
2. Suit was filed by one Jaisaram, seeking cancellation of the gift-deed dated 20.01.2011 executed in favour of petitioner. During pendency of the suit, Jaisaram died and he was not survived by any natural heir, an application was filed by respondent Pawan Kumar, based on a Will, said to have been executed in his favour in the year 2010, which was registered on 20.02.2018 for being impleaded as legal representative of Jaisaram.
3. The application was contested by the petitioner.
4. The trial court by its order impugned came to the conclusion that based on the Will executed in favour of respondent Pawan Kumar, his application deserves to be allowed and allowed the same.
5. Learned counsel for the petitioner made submissions that the trial court was not justified in impleading Pawan Kumar as legal representative of deceased Jaisaram, inasmuch as he has not obtained the Probate of Will in question and that the court below should have made an enquiry under Order XXII Rule 5 CPC regarding validity of the Will before impleading Pawan Kumar as legal representative of deceased Jaisaram.
6. I have considered the submissions made by the counsel for the petitioner and have perused the material available on record.
7. Insofar as the plea pertaining to requirement of obtaining the Probate is concerned, this Court in Sultan Singh v. Brij Raj Singh : (1997) 1 WLC 368 (Raj.), has laid down that in the State of Rajasthan, obtaining of Probate of the Will is not necessary and, therefore, the plea raised in this regard has no substance.
8. So far as the plea raised that under Order XXII Rule 5 CPC, the trial court should have examined the validity of the Will, as the same was questioned by the petitioner before impleading respondent Pawan Kumar as legal representative of deceased of Jaisaram is concerned, suffice it to indicate that the procedure under Order XXII Rule 5 CPC is summary in nature, wherein it is not expected of the trial court to decide validity of the Will. Based on the fact that the Will was registered, the respondent was impleaded as legal representative of deceased Jaisaram.
9. In case, the petitioner has any objection with regard to Will and in case the issue arises under substantive proceedings pertaining to validity of the Will, the result of the present proceedings would follow the outcome of the said proceedings. In view of above discussion, no case for interference is made out. The writ petition is, therefore, dismissed.
Legal representatives must prove entitlement based on wills; mere claims without proof are insufficient.
An executor derives legal authority from a Will upon the testator's death, allowing a substituted plaintiff with vested interests under the Will to pursue litigation, regardless of the pending probat....
A party must produce original documents such as a 'Will' to substantiate their claim for legal representation in a proceeding; failure leads to dismissal of the application.
The right to apply for probate is continuous and not strictly bound by a time limit, provided the execution and attestation of the will are established following legal requirements.
The court ruled that a Will does not require probate for property located outside Chennai, invalidating the refusal to register the gift settlement deed.
The amendment to Order XXII Rule 4 of the CPC aims to ensure the continuation and culmination of effective adjudication and to prevent the proceedings from coming to an end summarily due to the death....
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