GITA BHATTACHARYA Vs. PROTOSH KUMAR BHATTACHARYA

JUDGEMENT

(1.) ON 28.09.2012 this Court heard Sri Yadav appearing in support of I.A. No.5575 of 2010, filed on 30.6.2011 by one Smt. Neha under Order 1 Rule 10(2) read with section 151 of the Civil Procedure Code and section 383(1)(c) of the Indian Successions Act, filed with a prayer to intervene in the matter. Claim of the petitioner of this I.A. is that she is a bonafide purchaser of the p] of portion of the property covered under the Will. It is stated in the I.A. that her husband Ramesh Kumar had been granted power of attorney on 1.10.2009 by Near Relative No.3 Arunab Bhattacharya @ Shibomoy in respect of the property under the Will. Thereafter, Ramesh Kumar executed sale deed in her favour. It is stated in the I.A. that the applicant of the Test Case has filed title suit bearing T.S.No.659 of 2009 in the court of learned Sub-Judge-1, Muzaffarpur and the petitioner has appeared in the said suit. Thereafter she came to know about the Test case and hence she has filed this I.A. for being impleaded as party in the case in order to contest the claim of the applicant. She claims that she is bonafide purchaser of a part of the property under the Will and as such she has a right to appear in this case and contest the validity and genuineness of the will. In support of his submissions, Mr. Yadav has placed reliance on the judgments reported in AIR 1987 Ker 193; AIR 2006 All 75; AIR 2007 Bom 103 and AIR 2008 SC 2058. He further referred to Section 293 of the Limitation Act and submitted that submitted that the main application of the applicant for grant of Letters of Administration was barred by limitation. He also referred to a supplementary affidavit filed earlier in respect of a defect pointed out by the office and also filed written arguments.

(2.) APPLICANT has filed objection/counter affidavit to the said I.A., stating that the I.A. by a stranger for being impleaded as party in a Test Case is not maintainable. It is stated that there is no provision in the Indian Succession Act to entertain such an application of a stranger to the family not claiming any interest under the will. In support of his submissions learned counsel placed reliance on judgments reported in 2007(3) PLJR 789 and (2008) 4 SCC 300.

(3.) IN stead, the petitioner has filed the I.A. for being impleaded as a party in this Testamentary Case under Order 1 Rule 10(2) read with section 151 C.P.C. and section 383(1)(c) of Successions Act, which provisions are not applicable in this proceeding. In the circumstances, I.A. is dismissed, however without prejudice to her right to contest in the suit already pending.