Back
ORISSA HIGH COURT
Ananda Chandra Behera, J.
Tilottama Jena and Ors. – Petitioners
versus
Sandhyarani Brahma and Ors. – Opp. Parties
C.M.P. No.101 of 2018
Decided on 26.8.2025
Indian Succession Act, 1925 – Sections 213 and 276 – Civil Procedure Code, 1908 – Order I Rule 10 – Bequest – Rights under Will by an executor or legatee cannot be established unless probate or letters of administration are obtained – A person who has even slight interest in estate of testator is entitled to file caveat and contest grant of probate of Will – Everybody cannot lodge caveat – Caveator must have some interest in estate of testator – A person, who claims any interest adverse to testator cannot maintain application before Probate Court. (Paras 9, 15 and 17)
Result: C.M.P. dismissed.
JUDGMENT
Ananda Chandra Behera, J.—This CMP under Article 227 of the Constitution of India, 1950 has been filed by the petitioners praying for quashing (setting aside) the impugned order dated 02.01.2018 (Annexure-6) passed in the suit vide O.S. No.2 of 2016 by the learned Civil Judge, (Sr. Division), Banki.
2. The factual backgrounds of this CMP, which prompted the petitioners for filing of the same is that, a Test Case was filed by the petitioners under Section 276 of the Indian Succession Act, 1925 praying for probation of the will executed by Sebati Dei in their favour impleading the Opp. Party No.1 to 4 in this CMP as the Opp. Party Nos.1 to 4 in the said Test Case.
When the Opp. Party Nos.1 to 4 contested that Test Case, then, as per the provisions of law envisaged in Section 295 of the Indian Succession Act, 1925, the said Test Case was converted to a suit vide O.S. No.2 of 2016.
3. During the course of hearing of such suit vide O.S. No.2 of 2016, one third party namely, Gangadhar Debata filed a petition on dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 praying for his impleadment as Opp. Party in that O.S. No.2 of 2016 stating that, the R.o.R. of the properties covered under the will dated 13.08.2001, (to which, the plaintiffs have prayed for probation) was published in the year 1962 in the name of Abhimanyu Brahma and Abhimanyu Brahma was the owner of the same. Till yet, the R.o.R of the suit properties covered under the will in question is continuing in the name of Abhimanyu Brahma. During the life time of Abhimanyu Brahma, he (Abhimanyu Brahma) had transferred Ac.0.10 dec. out of Ac.0.40 dec. of plot No.1167 (covered under the will) along with some other properties in favour of Gangadhar Debata along with his two brothers, namely, Niranjan Debata and Bidyadhar Debata by executing and registering a sale deed dated 598 dated 28.02.1977 and when he (Gangadhar Debata) came to know about the pendency of the suit vide O.S. No.2 of 2016 for probation of the will dated 13.08.2001 containing their purchased properties, then, he (Gangadhar Debata) filed a petition on dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 praying for his impleadment as Opp. Party in that suit vide O.S. No.2 of 2016 stating him as necessary party having his interest therein along with his two brothers.
To which, the plaintiffs objected on the ground that, the petition under Order 1, Rule 10 of the CPC, 1908 filed by the third-party petitioner (Gangadhar Debata) for his impleadment as a party in the suit vide O.S. No.2 of 2016 is not maintainable under law. Because, in a probate proceeding, authenticity and genuineness of the will in question is to be determined, but not the title of the properties covered under the will. For which, the petitioner has no locus standie as per law for his impleadment as a party in the suit vide O.S. No.2 of 2016. Therefore, his petition dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 is liable to be rejected with cost.
4. After hearing from the learned counsels of both the sides, the learned Trial Court i.e. learned Civil Judge, (Sr. Division), Banki allowed that petition dated 25.10.2017 under Order 1, Rule 10 of the CPC filed by the third-party petitioner- Gangadhar Debata as per Order dated 02.01.2018 assigning the reasons that,
“when the third party-petitioner filed one original registered sale deed No.596 dated 28.02.1977, which contains some properties of the will sought to be probated, then, the presence of the third-party petitioner for proper adjudication of the suit is required. Therefore, the petition filed by the third-party petitioner (Gangadhar Debata) under Order 1, Rule 10 of the CPC, 1908 was allowed and direction was given to the plaintiffs to file consolidated cause title adding Shri Gangadhar Debata as party/defendant in the suit vide O.S. No.2 of 2016.”
5. On being aggrieved with the said order dated 02.01.2018 passed in O.S. No.2 of 2016 by the learned Civil Judge, (Sr.
(1) Rights under Will by an executor or legatee cannot be established unless probate or letters of administration are obtained.(2) Everybody cannot lodge caveat – Caveator must have some interest in ....
In probate proceedings, a third party with a tangible interest may be permitted to join, as long as it does not prejudice existing parties, emphasizing the court's limited jurisdiction to the authent....
A subsequent transferee with a registered sale deed must be allowed to protect her interests in ongoing litigation, demonstrating both necessity and direct interest in the subject matter.
Order 1 Rule 10 CPC casts duty upon court to ensure impleadment and deletion of party, which may or may not be necessary for adjudication of case.
The court affirmed that in probate proceedings, only the genuineness of the will is examined, and intervention is permitted to ensure all relevant parties are included for effective adjudication.
Probate courts are limited to assessing the genuineness of wills and cannot determine issues of property title or rights of intervenors.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
