BASANT DAYAL Vs. STATE

JUDGEMENT

(1.) THE Petitioner, under Section 278 of the Indian Succession Act (hereafter "the Act") seeks letters of administration in respect of the estate of the deceased, Shri Dayal Chand Kaith. He (the petitioner), one of the two sons of the deceased, relies on a Will dated 21.12.1995 executed by the said deceased.

(2.) THE petitioner alleges that the Will propounded by him was the "last and valid Will" executed by his father, who died in 1998. The case of the party seeking impleadment, i.e. the other brother is that the Will dated 21.12.1995 was not the last Will and that instead, another one, dated 04.02.1997 was the last and final Will made by the deceased. In 1999, two rival suits were instituted in Chandigarh Courts in which the petitioner and Shri Chetan Dayal, (the grand-son of late Shri Basant Dayal through his second son Shri Rup Dayal) were contesting parties. The first suit CS 21 of 1999 was filed by the petitioner through his attorney Mrs. Aruna Malhotra, Respondent No. 4 herein, seeking a declaration that the Will dated. 04.02.1997 is not genuine etc. Shri Chetan Dayal filed another suit CS No. 38 of 1999 for declaration to the effect that the Will dated 04.02.1997 is the last and valid Will of late Shri D.C. Kaith. The two suits were disposed of together and it was decreed to the effect that the Will dated. 04.02.1997 is the last and final Will of the deceased Shri D.C. Kaith.

(3.) THE question as to what should be the approach of a court when someone, not party to testamentary proceedings, claims that his participation is essential, and that refusal to implead him may result in likely prejudice was examined exhaustively, in the ruling reported as Krishna Kumar Birla v. Rajendra Singh Lodha, 2008 IX AD (S.C.) 397 :(2008) 4 SCC 300, where the tests that are to be applied by courts was indicated in the following terms: