IMPORTANT POINT
Substitution – If any legal heirs of a party in suit comes to be substituted on the basis of Will as plaintiff/appellant in a suit, for the same, there is no requirement of Probate.

ORDER

This C.M.P. has been preferred on behalf of the petitioner against the order dated 16.01.2023 passed by the learned Civil Judge, Senior Division-VII, Palamau in Title Suit No. 102 of 2008, whereby learned Court below has allowed the petition filed by the intervenor/opposite parties under Order XXII Rule 10 read with Section 151 of C.P.C.

2. Learned counsel for the petitioner has submitted that the title suit was filed by Ram Dulari Devi against Diwakar Chandra Pandey which was registered at Title Suit No. 102 of 2008 in the Court of Sub Judge II, Palamau at Daltonganj. The copy of that plaint is Annexure No. 1 of this petition. In that Title Suit No. 102 of 2008, the written statement was also filed by the sole defendant which is Annexure No. 2. During pendency of Title Suit No. 102 of 2008, an application was given on behalf of Dhruo Shankar Dubey to be substituted as legal heir of plaintiff in that suit after the death of original sole plaintiff, Ram Dulari Devi, on the basis of the will, alleged to have been executed by Ram Dulari Devi in favour of Dhruo Shankar Dubey. The copy of that application is Annexure No. 3 in this petition. Against this petition, objection/rejoinder was filed on behalf of the defendant, the copy of the same is Annexure No. 4 of this petition.

2.1. Learned Court below has allowed the petition ignoring the very material fact that the will was not annexed with the application for the affidavit given in support thereof. Further the petitioner Dhruo Shankar Dubey had also concealed this material fact that deceased Ram Dulari had also left four daughters as natural legal heirs. This very plea was also taken by the defendant/petitioner herein in the objection against that application. Learned Court below having ignored both these material fact has allowed the application of Dhruo Shankar Dubey who is sole Opposite Party in this petition.

3. Per contra the learned counsel for the Opposite Party has vehemently opposed the contentions made by learned counsel for the petitioner and contended that in the objection given on behalf of the defendant, this plea was also raised that the probate was required; which there is no legal requirement of the same to substitute the legal heirs in a suit on the basis of the will. Further it has been opposed on this ground that even if the will was not filed along with this application, same was also adduced before the Trial Court with the list of documents and the execution of will has not been denied by the defendant. Therefore the impugned order passed by the Court below bears no illegality and needs no interference.

4. The Title Suit which was filed on behalf of Ram Dulari Devi against Diwakar Chandra Pandey, the copy of the plaint is Annexure No. 1 of this petition. In this Suit, the plaintiff has sought to cancel the sale deed dated 29.10.2005, alleged to have been executed by the plaintiff in favour of the defendant and also sought the declaration of right, title and interest of the plaintiff in the property in suit and also in possession thereof.

4.1 In this very suit, the written statement was filed on behalf of the defendant which is Annexure No. 2.

4.2 During pendency of the suit, admittedly Ram Dulari Devi died and one Dhruo Shankar Dubey who is opposite party in this petition came forward before the learned Trial Court to be substituted as legal heir of Ram Dulari Devi on the basis of will that application is Annexure no. 3 in this petition. From the very perusal of this petition, it is found that petitioner Dhruo Shankar Dubey has stated that the sole plaintiff has died on 30th July, 2017 and before her death in her lifetime, the plaintiff had executed a will on 13th February, 2013 in favour of the petitioner bequeathing the property in suit. On this basis of the will, sought to be substituted as legal heirs of sole plaintiff.

4.3 In this very application, Dhruo Shankar Dubey has nowhere mentioned that after death, Ram Dulari Devi had also left her natural