HORMASJI SHAPURJI MISTRY Vs. DHANBAI BARJORJI COOPER

JUDGEMENT

(1.) This is an application by one Bai Navajbai, the widow of Sorabji Hormusji Engineer, asking to be added as a party to this suit, which is now under appeal from the judgment of Mr. Justice Rangnekar on an originating summons. The learned Judge held that there was an intestacy under the will or part of the will of Edulji Shapurji Mistri, and the applicant claims that on that finding she, under certain other wills, takes a portion of the estate as on an intestacy, Consequently, she contends that she is interested in upholding the judgment of the learned Judge.

(2.) We are told that in the Court below there was nobody to represent the next- of-kin or those interested in arguing for an intestacy, and that the trustees of the will of the deceased Edulji represented their position. The proper procedure is that trustees should not argue on behalf of beneficiaries or nest-of-kin apart from exceptional cases, e. g,, if a class of unborn children are interested. Therefore, there are good grounds for asking Dhanbai that somebody beneficially interested in contending for an intestacy should be before the Court. On the merits, therefore, this is an application which should be granted.

(3.) We have, however, felt a difficulty by reason of the fact that the applicant has not taken out probate to her own husband's will, nor to the other will under which her deceased husband claims. The question, therefore, has arisen whether, having regard to Section 213 of the Indian Succession Act, we should at the present juncture add the applicant, as a party in the absence of probate or letters of administration.