B K HIRDEY MOHINI Vs. GANGA SARAIN

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dated 28.2.2004 passed by learned Additional District Judge allowing an application of the respondent/plaintiff under Order 6 Rule 17, CPC and an application under Order 1 Rule 10, CPC. I have heard Mr. S.S. Sabharwal, learned Counsel for the petitioner and Mr. Nirmal Singh, learned Counsel for the respondent and have gone through the impugned order as also copies of the documents placed on record.

(2.) Briefly, the facts are that the respondent had filed a suit for possession of immovable property bearing No. L-210, Shastri Nagar, Sarai Rohilla, Delhi. The respondent is stated to be 80 years old person. It is the case of the respondent that he was influenced by the services rendered by petitioner and he executed a will in his favour but the petitioner stated neglecting him. He, therefore, revoked the will and filed the suit. The petitioner raised preliminary objections that the property had been transferred to a trust and he had no concern with the said property. The respondent then filed an application under Order 1 Rule 10, CPC to implead the trust and also to amend the plaint accordingly. The learned Counsel for the petitioner has submitted that the provisions of the Bombay Public Trust Act, 1950 were attracted under which the World Renewal Trust is registered, in whose favour the will was executed. It is argued that no suit could be filed against World Revenue Trust without taking permission from the Charity Commissioner under the above said Act. The learned Counsel for the respondent has submitted that as long as the testator was alive, the Will could not come into operation and at any time during his lifetime a testator can cancel the Will. The property vests in the testator as long as he is alive. In my view, there is force in the contentions of the learned Counsel for the respondent.

(3.) The learned Civil Judge has dealt with all the relevant aspects while dealing with the application filed under Order 1 Rule 10, CPC and Order 6 Rule 17, CPC and has passed a reasoned order.