SATYENDRA KUMAR Vs. ESTATE OF LATE BRIJMANI DEVI

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India for quashing the order dtd. 21/12/2022 passed by learned Additional District Judge-XXI, Patna in Probate Case No. 138 of 2017 whereby and whereunder the petition filed by the petitioner/intervenors under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter "the Code") has been rejected.

(2.) Briefly stated, facts of the case are that respondent 1st set, Nagendra Kumar and Bhupendra Kumar @ Bhutula, filed Probate Case No. 138 of 2017 for probate of registered Will dtd. 5/10/2009 executed by their mother Brij Mani Devi who died on 25/3/2012. The petitioners filed a petition on 17/8/2019 for being added as party/objector in the probate case claiming that the Will in question was a suspicious document. The petitioners further claimed that they are step-sons of the testatrix Brij Mani Devi and the petitioners and the respondent 1st set are their step-brothers and Krishnadeo Singh was their father. First wife of Krishnadeo Singh was one Janakdulari Devi from whom he had two sons, Satyendra Kumar and Upendra Narayan Singh and Satyendra Kumar is the petitioner in the present case. Janakdulari Devi died during minority of the petitioner and Krishnadeo Singh solemnized his 2nd marriage with Brij Mani Devi who gave birth to four daughters and two sons. The daughters have been made respondent 2 nd set and intervenor Upendra Narayan Singh, the respondent 3rd set. The petitioner further claimed that the property of Krishnadeo Singh was mutated to the extent of share to the intervenors and the respondent 1st set. As the father of the petitioner turned hostile to the interest of the intervenors, these intervenors were forced to bring a partition suit vide Title Partition Suit No. 38 of 2012 for partition of entire joint family property including the property under the Will. During pendency of the suit Krishnadeo Singh died in year 2015. Thus, the petitioner/intervenors claimed their interest in the properties under the Will in question and further claimed themselves to be necessary parties and prayed for their impleadment. The respondent 1st set filed their rejoinder to the petition dtd. 17/8/2019 on 10/12/2019 challenging the maintainability of the petition. The learned probate court, having considered the petition and its rejoinder, rejected the intervenors petition vide the impugned order dtd. 21/12/2022.

(3.) Learned counsel for the petitioner submitted that the impugned order is bad in the eye of law as well as facts. The learned Probate Court failed to appreciate the meaning of necessary party in a probate proceeding and further failed to appreciate that petitioner has a right to claim relief in respect of Will in question. The learned trial court further failed to appreciate that the intervenors have already filed the partition suit for partition of joint family properties including the property mentioned in the Will in question. Learned counsel further submitted that the learned Probate Court further failed to consider the status of the intervenors being the direct lineal descendants of Krishnadeo Singh along with the respondent 1st set and thus they are one of the near relatives within the meaning of Sec. 235 of Indian Succession Act which provides for invitation of objections from next of kin. The learned Probate Court further failed to take into consideration the provisions of Sec. 283(1) (C) and Sec. 284 of the Indian Succession Act for considering that the intervenors were the persons claiming to have interest in the estate of deceased and howsoever this interest might be small, even a bare possibility of interest is sufficient to entitle a person to enter appearance in probate proceeding. The learned counsel referred to the decision of learned Single Judge of this Court in the case of Narayan Sah Vs. Devaki reported in AIR 1978 PATNA 220 wherein it has been held if the petitioner is having interest to safeguard, the same gives sufficient right to that person to enter caveat in the probate proceeding. In this regard, learned counsel also referred to a decision of Hon'ble Supreme Court of India reported in 2019(2) CCC 103 (SC). Thus, learned counsel submitted that the impugned order is not sustainable and the same be set aside and the petition dtd. 17/8/2019 filed by the intervenors may be allowed.