YUV RAJNARAIN GORWANEY Vs. STATE

JUDGEMENT

(1.) IA.No. 7831/2005 This is an application under Order 1 Rule 10 CPC for impleadment of one Rajiv Sharma s/o late Shri Prakash Chand Sharma. It is the case of the applicant that he is the son of late Shri Prakash Chand Sharma who was the brother of late Shri Gyan Chand Sharma who, in turn, was the husband of the deceased Smt Avinash Pandit who is said to be the executor of the Will dated 13.2.2001 which is the subject matter of these probate proceedings.

(2.) The learned counsel appearing on behalf of the applicant submitted that the applicant Rajiv Sharma was a necessary and proper party and, therefore, ought to have been cited as a party in the first instance. He submitted that for determining whether a party is necessary or proper in a probate proceedings it should first be assumed that the testator had died intestate and the heir then should be ascertained and all of them, who would, de hors the Will, be heirs according to the personal law of succession, ought to have been impleaded as parties. This, according to the learned counsel for the applicant, was not done and the consequences of not doing so are so grave that as per Section 263 and particularly reading it with illustration (ii) thereto, it becomes a ground even for revocation of a probate granted. It was pointed out that Smt. Avinash Pandit had no issue. Her husband late Shri Gyan Chand Sharma had pre-deceased her.

(3.) There is no difficulty in accepting the proposition, that properties which are the subject matter of these probate proceedings were the absolute properties of Smt Avinash Pandit more so in terms of Section 14 of the Hindu Succession Act, 1956. It is to be noted that under Section 15 of the Hindu Succession Act, 1956, the General Rules of Succession in the case of female Hindus are set out. According to Section 15(1)(a), the properties are, firstly, to devolve upon the sons and daughters (including the children of any pre-deceased son of daughter) and the husband. By virtue of Section 15(1)(b) it is secondly to devolve upon the heirs of the husband. The position, therefore, is that when a female Hindu dies intestate if she survived by her son or daughter or husband then her properties first devolve upon them. In this case late Smt Avinash Pandit did not have any children and therefore, firstly, the properties would have devolved upon her husband. However, her husband late Shri Gyan Chand had pre-deceased her. Therefore, Section 15(1)(a) would not apply in the present case and it would be Section 15(1)(b) which would apply which is the second Rule of devolution prescribed under the provision. Accordingly, the properties would have devolved upon the heirs of the husband. Section 16 of the Hindu Succession Act, 1956 provides that the order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the three rules set out therein.