BIKALI CHARAN DAS Vs. SASHIMANI DAS

JUDGEMENT

(1.) The simple question which arises in this case is if the Petitioner's application under Order 1, Rule 10 of the Code of Civil Procedure, 1908, hereinafter referred as the 'Code' for brevity, has been erroneously rejected by the Civil Judge (Senior Division) in a INTST Misc. Case filed under Section 372 of the Indian Succession Act, 1925, hereinafter referred as the 'Act' for brevity.

(2.) Sashimani Das, opposite party No. 1 filed an application under Section 372 of the Act impleading opposite parties 2 and 3 as opposite parties, inter alia, pleading that they are the only legal heirs of Late Gokulananda Das and, therefore, a Succession Certificate should be issued in their favour. In that proceeding, a petition was filed by the present Petitioner on the ground that he is the elder brother of the said Gokulanand Das and the opposite party No. 1 is not wife of the deceased and the opposite parties 2 and 3 are not his children. Such petition was taken up for consideration and disposed of by the learned Civil Judge (Senior Division), Kendrapara as per order dated 21-07-2006. While disposing of such application for addition of parties as an intervener, learned Civil Judge (Senior Division) has held that the Petitioner being the elder brother is a Class II heir and in presence of Class I heirs like wife and children, he is not a proper and necessary party. Such order has been assailed in this writ application.

(3.) In assailing the findings recorded by the learned Civil Judge (Senior Division), learned Counsel for the Petitioner submitted that no prejudice Will be caused to the opposite parties, if the Petitioner is added as an intervener in the case and secondly, the learned Civil Judge (Senior Division) should not have presumed opposite parties to be the legal heirs of the deceased, when it is disputed by the intervener.