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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
Sunny Johar - Petitioner
Versus
Bhupendra Pratap Singh and ors. – Respondents
C.M.P. No.718 of 2023
Decided On : 12-01-2024
WILL - Partition Suit and Substitution of Parties - Article 227 of the Constitution of India, Order XXII Rule 1, 3(1) C.P.C., Section 5 of the Limitation Act - The court discussed the implications of a registered but unprobated Will in the context of substitution of parties in a partition suit. It emphasized that the absence of probate does not negate the claim of rights based on the Will, and that the issue of rights should be adjudicated by the court rather than assumed by the parties. The court upheld the lower court's decision to allow substitution, indicating that the truth of the claims would be determined through proper legal proceedings.
Fact of the Case:
The petitioner challenged an order allowing the substitution of parties in a partition suit following the death of the sole appellant, Pushpa Lata. The substitution was based on a registered Will that had not been probated, and the petitioner contended that the respondents were not legal heirs and had no rights over the property.
Finding of the Court:
The court found that the lower court's decision to allow substitution was not erroneous. It recognized that the Will, although unprobated, could still be a basis for claiming rights, and that the determination of such rights should be made through judicial proceedings.
Issues: Whether the respondents could be substituted as parties in the appeal based on an unprobated Will, and whether the lower court's order was legally sound.
Ratio Decidendi: The court held that the mere fact that a Will has not been probated does not preclude individuals from claiming rights under it. The court emphasized the importance of adjudicating claims to property rights through the legal process rather than dismissing them outright based on the status of the Will.
Final Decision: The petition was dismissed, and the court directed the appellate court to expedite the hearing of the partition suit, which had been pending since 1985.
JUDGMENT :
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
1. This petition under Article 227 of the Constitution of India, whereby and whereunder, order dated 29.11.2022 passed by the Judicial Commissioner, Ranchi in Misc. Civil Application No.27 of 2021, arising out Civil Appeal No.23 of 2020 has been challenged whereby the learned court while setting aside the order of abetment, has come to the conclusion based upon the registered Will dated 09.08.2017 that the petitioner has a right to step into the shoes of deceased/appellant, as such, the prayer for impleading/substituting Bhupendra Pratap Singh and Akil Ahmad in Civil Appeal no.23 of 2020 after deleting the name of appellant, namely Pushpa Lata has been allowed.
2. The brief fact of the case as per the pleading made in the petition which requires to be enumerated, reads as under:-
3. It is the case of the petitioner that Saroja Rani, since deceased mother of the petitioner and the Proforma Opposite Party Nos. 3 and 4 filed Partition Suit No. 154 of 1985 against her mother Rani Brij Mani and her sister namely Sneh Lata Goel and Miss Pushpa Lata claiming a decree for partition of 1/4th for Share in the various properties mentioned in Schedule-B and C to the plaint.
4. In the said suit, preliminary decree for partition of 1/4th Share of the plaintiff, Saroja Rani was passed and ultimately final decree dated16.03.1992 was passed by the learned Sub-Judge-V, Ranchi in Partition Suit No. 154/145 of 1985/1990.
5. After passing of the final decree Saroja Rani, who was the sole plaintiff died leaving behind her husband Surendra Singh Johar and one son, namely, Sunny Johar and one daughter Samta J Singh.
6. In the said partition suit Rani Brij Mani, the Defendant No.1 died and as such, her 1/4th Share in the suit property was inherited by the petitioner as well as the Proforma Opposite Party Nos.3 and 4.
7. Sneh Lata Goel, the Respondent No.4 filed petition in the said partition suit for carving out her share in the suit properties and accordingly, final decree was passed on 18.12.2013.
8. It is the further case that the Defendant No.3 Pushpa Lata since deceased filed Civil Appeal No.22 of 2020 and 23 of 2020 before the High Court against the preliminary and final decree passed in the said partition suit and there was inordinate delay of 8946 days in filing the said appeal which is barred by limitation and delay has not been condoned as yet and both the appeals have been transferred to the court of learned Judicial Commissioner, Ranchi in view of the pecuniary jurisdiction.
9. During the pendency of the above appeal, the sole appellant Miss Pushpa Lata died unmarried leaving behind the petitioner and the Proforma Opposite Party Nos.3 and 4 as her heirs and legal representatives.
10. In the said appeal Bhupendra Pratap Singh of son Late Yaduvansh Singh and Akil Ahmad son of Late Nizam Khan filed petition under Order XXII Rule 1, 3(1) read with Section 151 C.P.C. for impleading/substituting their names in place of deceased, namely, Pushpa Lata sole appellant basis upon the Registered Will dated 09.08.2017.
11. Pushpa Lata, the deceased sole appellant died on 05.09.2019 and substitution petition has been filed 22.03.2021 along with a petition under Section 5 of the Limitation Act for condoning the delay in filing substitution petition.
12. It is the further case that the petitioner and the Proforma Opposite Party Nos. 3 and 4 filed objection to the said petition stating therein that the Opposite Party Nos. 1 and 2 are not the legal heirs of the deceased sole appellant Pushpa Lata rather they are strangers and the petitioner along with Proforma Opposite Party Nos. 3 and 4 have filed Case No. 241 of 2020 in the court of Civil Judge, Sr. Div., Varanasi challenging the alleged Will dated 09.08.2017 alleged to have been executed by Pushpa Lata in favour of the Opposite Party Nos. 1 and 2 on the ground that the same has been procured by fraudulent means in order to grab the property belonging to the petitione
The court established that the validity of claims based on an unprobated Will must be determined through judicial proceedings, and that the absence of probate does not automatically invalidate such c....
The court established that the High Court's supervisory powers under Article 227 do not extend to correcting mere errors of law or fact, and that the rights claimed under an unprobated Will must be a....
The court established that under Order 1 Rule 10 of the CPC, parties with a legitimate interest in the subject matter of a suit may be added to ensure complete adjudication, and the High Court's supe....
In partition suits, the principle of transposition allows for the substitution of legal heirs even if some parties have died, provided the title is not in dispute, and a decree passed against decease....
The court established that under Order I Rule 10(2) of the C.P.C., a party can be impleaded if they demonstrate a prima facie interest in the property, and the trial court has the discretion to allow....
The main legal point established in the judgment is that the court has the power to allow amendments to the plaint to prevent the inexecutability of a partition decree.
The principle of res judicata does not apply when a previous suit is dismissed on technical grounds, allowing for a new suit to be filed based on a recurring cause of action for partition.
The court may compel the addition of necessary parties to a suit despite the plaintiff's choice, ensuring all interested parties can be adjudicated effectively.
Amendments to pleadings under Order VI Rule 17 of the CPC should not change the nature of the suit or introduce new causes of action, and must be necessary for the proper adjudication of the case wit....
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