DIWAN MEHBOOBSHAH GULAMMAHAMAD SHAH Vs. PATEL PUSHPABEN KESHAVLAL

JUDGEMENT

(1.) The original applicant by way of the present petition filed under Article 226 and 227 of the Constitution of India has sought direction to quash and set aside the impugned order dated 27.12.2013 passed by the Principal Senior Civil Judge, Anand (hereinafter referred to as the Court below) at Exhibit 43 in Succession Miscellaneous Application No.13/2009, whereby the Court below has allowed the said application at Exhibit 43, permitting the respondent No.2 (original plaintiff) to be impleaded as the party opponent in the said Miscellaneous Application.

(2.) The present petitioner / original applicant had filed the above stated Succession Miscellaneous Application for obtaining a Probate of the Will executed by (Late) Shri. Rajnikant alias Bachubhai Keshavlal Patel. Pursuant to the Public Notice issued by the Court below, the respondent No.1 - Pushpaben being one of the relatives of the deceased had filed objections and contested the proceedings. Thereafter, the respondent No.2, i.e. the third party filed an application at Exhibit 43 in the said Succession Miscellaneous Application for impleading him as a party opponent, contending inter-alia that the deceased - Rajnikant alias Bachubhai Keshavlal Patel had expired without any issue and that his legal heirs and representatives i.e. Manubhai and Pushpaben who happened to be his brother and sister respectively had become the owners of the land in question; that the said land was sold by them to the respondent No.2 by executing a registered Sale Deed on 18.02.2009 and therefore, he being an affected party, should be joined as the party opponent in the Probate Proceedings. The Court below allowed the said application at Exhibit 43 against which the petitioner has filed the present petition.

(3.) Learned Advocate Mr. H.M. Parikh appearing for the petitioner vehemently submitted that the respondent No.2 being a third party could not be said to be either a necessary or proper party in the Probate proceedings, more particularly when he had not challenged the validity of the Will. He has placed reliance on the decision of the Supreme Court in the case of Ishwardeo Narain Singh v. Smt. Kamla Devi and Others , 1954 AIR(SC) 280 and the decision of this Court in the case of Bapubhai Somabhai Patel, deceased through heirs and Legal Representatives v. Vithalbhai Somabhai Patel , 1999 2 GLH 178, to submit that the jurisdiction of Probate Court is very limited and is only concerned with the question as to whether the document put forward as the last will and testament of the deceased and/or was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. According to Mr. Parikh, the Court below without taking into consideration the said position has allowed the application of the third party, which order deserves to be quashed and set aside.