BRIJ MOHAN SHARMA Vs. GENERAL PUBLIC

JUDGEMENT

(1.) This is an appeal under Section 299 of the Indian Succession Act, 1925 .

(2.) The appellant who applied to the District Judge, Ambala for the grant of a probate on the basis of a will executed by Amar Nath on 18-4-1977 has been son-suited on a contest having been raised by Smt. Parkash Wati and her sister Santosh Kumari pre-deceased grand-daughters of Amar Nath (hereinafter referred to as "objectors"). These objectors have not been impleaded as parties to this appeal. Mr. B.S. Gupta who is present in the Court today on behalf of Smt. Santosh Kumari, one of the objectors has pointed out that this appeal in the absence of necessary parties i.e the objectors, is not competent. To substantiate his contention he makes a reference to Sections 266, 268, 283, 285 and 295 of the Indian Succession Act and maintains that a combined reading of these sections clearly indicates that the proceedings for the grant of probate before the District Judge, are in the form of a regular suit and the same have to be conducted according to the Code of Civil Procedure. This legal aspect of the matter is not being disputed by the learned counsel for the appellant. The learned counsel for the appellant, however, contends that these objectors inspite of their having contested the grant of probate in favour of the appellant cannot be treated as parties to the litigation as there is no such mention, about them in the application filed by the appellant for the grant of probate. I do not find any merit in this submission of the counsel. If the proceedings before the District Judge have to he treated as a suit, then all the incidents of a suit are attached to these proceedings essentially in treating the contesting parties to be parties to the suit. These objectors thus are necessary parties.

(3.) At this stage the learned counsel for the appellant seeks an opportunity to file an application for impleading these objectors as parties to this appeal, but, I decline that in view of the provisions of newly added sub-rule 2 to Rule 20 of Order 41 of the Civil Procedure Code. It is beyond dispute that these objectors figured in the lower Court judgment time and again and had in fact contested the claim of the appellant all through. Thus, the appellant cannot possibly plead ignorance about their interest or their existence as contesting parties to the litigation.