IMPORTANT POINT
Probate of Will – Alienee pendente lite can be impleaded as party under Order 22 Rule 10 of CPC if his interest is substantial.

JUDGMENT

The present First Appeal has been filed against judgment and decree dated 05.04.2019 passed in Title Suit (Probate) No. 01/1993 by which the Probate Application of Respondent No. 5 herein has been allowed in respect of Will dated 05.10.1985 executed in her favour by late Ishwar Dayal.

2. In the instant First Appeal, Interlocutory Application No. 03/2020 has been filed by the partners of M/s Shrestha Aditya Construction for addition of their name as party respondents in the present appeal, inter alia, on the facts that Ishwar Dayal (Testator) executed a Will dated 05.10.1985 in favour of Respondent No.5, Meena Devi with respect to his entire movable and immovable properties and Meena Devi was also appointed as executor authorizing her to obtain probate from competent court. Meena Devi was executor as well as legatee under the Will dated 05.10.1985.

3. On 19.12.1988 the said testator died and after his death on 31.01.1989, Probate Case No. 13/1989 was filed by the legatee with respect to Schedule-1 properties. On the basis of objection filed by the appellant and one Munshi Rai (since deceased), the probate proceeding was registered as Title Suit No. 01/1993. Munshi Rai died during pendency of Title Suit No. 01/1993 and his name was deleted.

4. On 04.07.2020, Respondent No.5, Meena Devi entered into the Development Agreement (Annexure-1 to the I.A. No. 03/2020) with respect to Plot No. 1716 having an area of 18 ½ Decimals with the interveners/petitioners for development of land. On the basis of application filed by Meena Devi, map was sanctioned by the competent authority (Annexure-2 of I.A. petition) on 04.01.2021.

5. Real Estate Regulatory Authority, Bihar (in short ‘RERA’) registered the project for development over the plot in question namely, Aditya Meena Enclave New Project. The intervenor applicants namely, Sumit Kumar and Ashok Kumar, partners of M/s Shrestha Aditya Construction had no knowledge about the pendency of the First Appeal No. 102/2019 against the judgment and decree dated 05.04.2019 passed in Title Suit No.01/1993 (arising out of Probate Case No. 13/1989) and having learnt about filing of an application under Order 39 Rule 1 & 2 of the CPC in First Appeal No. 102/2019, the interveners have filed the Interlocutory Application under Order 01 Rule 10(2) of the CPC impleading them as party in the aforesaid First Appeal on the ground that they have acquired a substantial interest in the properties/Estate of deceased testator after grant of probate.

6. The appellant opposed the Interlocutory Application filed by the interveners and according to the appellant, the same is not maintainable on the ground that the interveners are not necessary parties in the present appeal keeping in view the scope of the probate proceeding.

7. The probate case was contested by the appellant on various grounds including that one of the properties mentioned in the probate petition being plot no. 1716, Khata No. 467, Tauji No. 5236 was not the property of testator, Late Ishwar Dayal and the same is not the part and parcel of the estate of late Ishwar Dayal. The court below held that it has got no jurisdiction to enter into the issue of title. However, the Will has been held to be genuine and accordingly, probate was granted in favour of Respondent No.5.

8. Learned senior counsel for the appellant submits that probate case is not a regular suit and is not guided by the procedure prescribed in the Code of Civil Procedure but the same is guided and controlled by the Indian Succession Act, 1925 ( for brevity ‘the Act’) which is a self-contained Act in which provisions have been given as to filing of the probate case, caveat objections and as to the procedure to be adopted for disposal of such cases. It has been contended that the order granting probate is subjudice in the present appeal but the Respondent No. 5 having full knowledge of the same has entered into the development agreement with the interveners/petitioners who were also having