Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK C.M.P. No.101 of 2018 An application under Article 227 of the Constitution of India. *** Tilottama Jena & Others … Petitioners. -VERSUS- Sandhyarani Brahma & Others … Opp. Parties. Counsel appeared for the parties: For the Petitioners : Mr. S. Kar, Advocate. On behalf of Mr. A.R. Dash. Adv. For the Opp. Parties : Mr. R.C. Rath, Advocate. (For the Opp. Party No.5) P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Dates of Hearing : 15.07.2025 :: Date of Judgment : 26.08.2025 CMP No.101 of 2018 Page 1 of 12 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This CMP under Article 227 of the Constitution of India, 1950 has been filed by the petitioners praying for quashing (setting aside) the impugned order dated 02.01.2018 (Annexure-6) passed in the suit vide O.S. No.2 of 2016 by the learned Civil Judge, (Sr. Division), Banki.
Legal Reasoning
2. The factual backgrounds of this CMP, which prompted the petitioners for filing of the same is that, a Test Case was filed by the petitioners under Section 276 of the Indian Succession Act, 1925 praying for probation of the will executed by Sebati Dei in their favour impleading the Opp. Party No.1 to 4 in this CMP as the Opp. Party Nos.1 to 4 in the said Test Case. When the Opp. Party Nos.1 to 4 contested that Test Case, then, as per the provisions of law envisaged in Section 295 of the Indian Succession Act, 1925, the said Test Case was converted to a suit vide O.S. No.2 of 2016. 3. During the course of hearing of such suit vide O.S. No.2 of 2016, one third party namely, Gangadhar Debata filed a CMP No.101 of 2018 Page 2 of 12 petition on dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 praying for his impleadment as Opp. Party in that O.S. No.2 of 2016 stating that, the R.o.R. of the properties covered under the will dated 13.08.2001, (to which, the plaintiffs have prayed for probation) was published in the year 1962 in the name of Abhimanyu Brahma and Abhimanyu Brahma was the owner of the same. Till yet, the R.o.R of the suit properties covered under the will in question is continuing in the name of Abhimanyu Brahma. During the life time of Abhimanyu Brahma, he (Abhimanyu Brahma) had transferred Ac.0.10 dec. out of Ac.0.40 dec. of plot No.1167 (covered under the will) along with some other properties in favour of Gangadhar Debata along with his two brothers, namely, Niranjan Debata and Bidyadhar Debata by executing and registering a sale deed dated 598 dated 28.02.1977 and when he (Gangadhar Debata) came to know about the pendency of the suit vide O.S. No.2 of 2016 for probation of the will dated 13.08.2001 containing their purchased properties, then, he (Gangadhar Debata) filed a petition on dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 CMP No.101 of 2018 Page 3 of 12 praying for his impleadment as Opp. Party in that suit vide O.S. No.2 of 2016 stating him as necessary party having his interest therein along with his two brothers. To which, the plaintiffs objected on the ground that, the petition under Order 1, Rule 10 of the CPC, 1908 filed by the third-party petitioner (Gangadhar Debata) for his impleadment as a party in the suit vide O.S. No.2 of 2016 is not maintainable under law. Because, in a probate proceeding, authenticity and genuineness of the will in question is to be determined, but not the title of the properties covered under the will. For which, the petitioner has no locus standie as per law for his impleadment as a party in the suit vide O.S. No.2 of 2016. Therefore, his petition dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 is liable to be rejected with cost.
Legal Reasoning
4. After hearing from the learned counsels of both the sides, the learned Trial Court i.e. learned Civil Judge, (Sr. Division), Banki allowed that petition dated 25.10.2017 under Order 1, Rule 10 of the CPC filed by the third-party petitioner- Gangadhar Debata as per Order dated 02.01.2018 assigning the reasons that, CMP No.101 of 2018 Page 4 of 12 “when the third party-petitioner filed one original registered sale deed No.596 dated 28.02.1977, which contains some properties of the will sought to be probated, then, the presence of the third-party petitioner for proper adjudication of the suit is required. Therefore, the petition filed by the third-party petitioner (Gangadhar Debata) under Order 1, Rule 10 of the CPC, 1908 was allowed and direction was given to the plaintiffs to file consolidated cause title adding Shri Gangadhar Debata as party/defendant in the suit vide O.S. No.2 of 2016.” 5. On being aggrieved with the said order dated 02.01.2018 passed in O.S. No.2 of 2016 by the learned Civil Judge, (Sr. Division), Banki, the plaintiffs in O.S. No.2 of 2016 challenged the same by filing this CMP under Article 227 of the Constitution of India, 1950 praying for quashing the said impugned order dated 02.01.2018. 6. I have already heard only from the learned counsel for the petitioner and the learned counsel for the Opp. Party No.5 (Gangadhar Debata), as the other Opp. Parties did not participate in the hearing of this CMP. CMP No.101 of 2018 Page 5 of 12 7. In order to assail/quash the impugned order, the learned counsel for the petitioners (plaintiffs) relied upon the following decisions: i. Krishna Kumar Birla Vs. Rajendra Singh Lodha & Others reported in (2008) 4 SCC 300. ii. Pasupati Nath Das (dead) Vs. Chanchal Kumar Das (dead) by legal representatives & Others reported in (2018) 18 SCC 547. 8. Basing upon the petition dated 25.10.2017 under Order 1, Rule 10 of the CPC, 1908 of the third-party petitioner (Opp. Party No.5 of this CMP), objection against the same filed by the plaintiffs in the suit vide O.S. No.2 of 2016, observations made by the learned Civil Judge, (Sr. Division), Banki in the impugned order dated 02.01.2018 and the rival submissions of the learned counsels of both the sides, the crux of this CMP is that, Whether in the contested probate proceedings converted to a suit vide O.S. No.2 of 2016, the third-party Gangadhar Debata can be impleaded as a party under Order 1, Rule 10 of the CPC, 1908 on the ground of a purchaser of some properties covered under the Will in CMP No.101 of 2018 Page 6 of 12 question sought to be probated as a purchaser of the same prior to the execution of the Will in question? 9. It has already been clarified by the Apex Court in the ratio of the decision between Krishna Kumar Birla Vs. Rajendra Singh Lodha & Others reported in (2008) 4 SCC 300 (decided on 31.03.2008), that, “a person, who question title of the testator, he/she is not entitled to lodge caveat and oppose probate. Because, the jurisdiction of probate Court is limited being confined only to consider the genuineness of the Will. Probate Court while granting probate is not to decide the dispute with regard to title. A separate suit is maintainable therefore. In case, probate is granted, then, remedy is in terms of Section 263 of Succession Act, 1925. Everybody cannot lodge caveat. Caveator must have some interest in the estate of testator. A person, who claims any interest adverse to the testator cannot maintain an application before the Probate Court.” 10. In a case between Smt. Aparna Dhirsingh Vs. Sri Pravakar Satpathy & Another in Writ Petition (Civil) No.28409 of 2011 (Orissa) decided on 08.05.2012 that, CMP No.101 of 2018 Page 7 of 12 “a purchaser of the property belonging to the deceased testator should not be impleaded as a party in the probate proceeding.” 11. When it has been clarified in the ratio of the aforesaid decisions of the Apex Court and Hon’ble Court that, a purchaser to the property covered under the Will sought to be probated, should not be impleaded as a party in the probate proceeding, but, the said views have been differentiated in the subsequent decision of the Apex Court and the said decision is, In a case between G. Gopal Vs. C.Baskar reported in 2009 (1) Civil Court Cases 784 (SC) (decided on 03.09.2008) that, if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the Will of the testator. 12. It has been envisaged in Section 283 (1)(c) & (2) of the Indian Succession Act that, In a probate proceeding, the Court is required to issue citation calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration and such citation shall be fixed up in some conspicuous part of CMP No.101 of 2018 Page 8 of 12 the court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct. 13. The aforesaid provisions of law envisaged in Section 283 (1)(c) & (2) clarify that, it is the duty of the Court, in which a probate proceeding is filed and or pending, to issue general citation as general notice calling upon the persons to come, see and participate in the said proceeding, those have any interest in the properties of the deceased covered under the Will pending for deciding for the grant of probate or letters of administration. 14. Section 213 of the Indian Succession Act, 1925 provides that, the rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained. So Section 213 of the Indian Succession Act clearly creates a bar to the establishment of any right under the Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained. CMP No.101 of 2018 Page 9 of 12 15. On this aspect, the propositions of law has already been clarified in the ratio of the following decision: I. In a case between Smt. Aparna Dhir Singh Vs. Debendra Nath Jenamani & Others reported in 2010 (I) OLR 508 that, the Supreme Court has categorically laid down that, Section 213 of the Indian Succession Act clearly creates a bar to the establishment of any right under the Will by an executor or a legatee unless the probate or letters of administration of the Will have been obtained. It is immaterial whether the right under the Will is claimed as a plaintiff or as a defendant; in either case, Section 213 will be a bar to any right being claimed by a person under a Will whether as a plaintiff or as a defendant unless probate or letters of administration of the Will have been obtained. 16. Here in this matter at hand, when it is the case of the third-party petitioner that, Plot No.1167 is covered under the Will in question and the R.o.R of that Plot No.1167 stands in the name of Abhimanyu Brahma since the year, 1962 and the said R.o.R in the name of Abhimanyu Bramha is continuing till yet and when he (third-party petitioner Opp. Party No.5 in this CMP) has prayed for his impleadment in the suit vide O.S. No.2 of 2016 as a purchaser of the Plot No.1167 on the basis of the sale deed No.598 dated 28.02.1977, which is much prior to the execution of Will in question, as the Will in question has been executed on dated 13.08.2001 and when CMP No.101 of 2018 Page 10 of 12 Section 283 of the Indian Succession Act provides that, it is the duty of the Court to invite the persons claiming to have any interest in the estate of the deceased to come, see and participate in the probate proceeding and when Section 213 of the Indian Succession Act provides that, the rights under the Will by an executor or legatee cannot be established unless the probate or letters of administration are obtained and when the Apex Court in the above decision between G. Gopal Vs. C.Baskar reported in 2009 (1) Civil Court Cases 784 (SC) has held that, a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of Will and when the petition under Order 1, Rule 10 of the CPC filed by the third-party petitioner (Opp. Party No.5 in this CMP) has been allowed by the learned Trial Court for hearing of the suit in his presence and when the final decision of the Court in that probate proceeding vide O.S. No2/2016 shall not prejudice to any of the parties including the petitioners thereof if the suit is decided impleading the Opp. Party No.5 of this CMP under Order 1, Rule 10 of the CPC, 1908 then, at this juncture, the impugned order dated CMP No.101 of 2018 Page 11 of 12 02.01.2018 passed in O.S. No.2/2016 by the learned Civil Judge, (Senior Division), Banki allowing the petition under Order 1,Rule 10 of the CPC of the third-party petitioner thereof (Opp. Party No.5 in this CMP) for his impleadment as defendant cannot be held as erroneous. For which, the question of interfering with the same through this CMP filed by the petitioners (plaintiffs) does not arise. 17. In result, this CMP filed by the petitioners (plaintiffs) is dismissed on contest. 18. As such, the CMP filed by the petitioners (plaintiffs) is
Decision
disposed of finally. High Court of Orissa, Cuttack The 26.08,2025// Rati Ranjan Nayak Sr. Stenographer (ANANDA CHANDRA BEHERA) JUDGE Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 26-Aug-2025 19:22:55 CMP No.101 of 2018 Page 12 of 12