Last Updated on May 23, 2024 by Satish Mishra
In this post we will discuss about the procedure to add new parties in cases related to will under Order I Rule 10 of the Civil Procedure Code, 1908.
The burden is on the beneficiary of the will to serve notice on the person who should be apprised by the probate proceedings.
So probate or letters of administration can be revoked under Section 263 of Indian Succession Act, 1925.
Order 1, Rule 10 of the Code of Civil Procedure (CPC) of 1908 allows a court to add any person as a party to a proceeding at any stage if their presence is necessary for the court to settle all questions in the suit. The court can also remove parties to a dispute without causing inconvenience or delay.
The objectives of Order 1, Rule 10 include: Discouraging technical pleas, Protecting honest claimants from being non-suited, and Not considering the order an interlocutory order.
Some specific provisions of Order 1, Rule 10 include:
A stranger to the contract or agreement cannot be a proper or necessary party
A stranger to the contract or agreement cannot claim the right of co-sharership in the suit property
No one can be added as a defendant against the plaintiffs’ wishes unless the court orders it.
Uma Jain v. Satish K Oswal and Anr
Challenge of Will- Revision Petition
The present case has been filed as a revision petition under Article 227 of the Constitution of India and challenges the order passed by the Trial Court. The suit was filed as an application by the petitioner under Order I Rule 10 of the Civil Procedure Code, 1908. The above- mentioned application was dismissed by the Trial Court.
NAME OF THE COURT- High Court of Punjab and Haryana at Chandigarh
DATE OF DECISION- 24th of February, 2020
NAME OF THE PARTIES-
- Petitioners-
Uma Jain
- Respondents-
Satish.K.Oswal and Another
TIMELINE –
- 22nd December 1992- The Date of execution of the Will by SitalParsadOswal during his lifetime.
- 7th April 1999- Second Will of SatishParsadOswal alleged to be found by his son.
- 14th April 1999- SitalParsadOswal passed away.
- 5th June 2010- Dayawati, wife of SitalParsadOswal, passes away.
- 19th July 2017- Trial Court dismisses the contentions of the Respondent.
ALSO READ- WILL PROBATE CASE CHANDIGARH PANCHKULA MOHALI
BRIEF STATEMENT OF FACTS-
The facts of the present case begins with SitalParsadOswal being the owner of about half the property under dispute, that is, 3 kanals, 11 marlas and 115 square feet, near Khalsa College in Amritsar, Punjab. SitalParsad died in the year 1999, survived by his wife, son SatishOswal and his daughters Usha Jain and Uma Jain. His Will was executed in the year 1992 in favour and bequeathing the entire life interest to his wife Dayawati. After Dayawati the property was named to his daughters Usha Jain and the petitioner, Uma Jain. Post this; Dayawati had filed a petition before the Delhi High Court wherein the petitioners, Respondent and Usha Jain were considered as a party. In this petition, the property’s details were stated as half share. Dayawati died in the 2010, and this probate petition is now represented by the petitioner Uma Jain and her sister Usha Jain as the property was written to them after the death of their mother Dayawati.
SatishOswal, son of SitalParsadOswal, filed a suit for separate possession by ensuring that the property undergoes partition. The respondent claimed that his father who dies in 1999 left another will just a week before his death stating the respondent to be owner of the property and bequeathing his entire property in favor of him. So, in this suit the respondent claimed for a separate possession on the basis of this alleged will.
His sisters were not made party to the suit. This suit was filed by the respondent against a tenant. The tenant had renounced the tenancy and the respondent on the basis of the said renouncement claimed for the possession of the property. The petitioner them filed an application to be impleaded in this suit which was ultimately dismissed by the Trial Court.
Hence, the present revision petition was filed by the petitioners.
ALSO READ- WILL APPEAL CASE CHALLENGED IN PUNJAB HARYANA HIGH COURT
PETITIONER’S ARGUMENTS/ EVIDENCES-
The Counsel for the Petitioner has stated that in view of the above-mentioned facts, the petitioner and her sister Usha Jain had very evidently inherited the said property by the Will executed by their late father SitalParsadOswal in the year 1992. The Counsel for the Petitioner also contended that as per the Probate Petition that was pending, they were necessary parties to the suit. It was also submitted that by the Counsel for the Petitioners the issue that was framed as to whether Will that was propounded by Respondent No. 1 which was executed by Oswal on 1999 or the other Will dated 1999 would be considered.
It was contended by the Petitioners that the onus of proof for this issue would be purely on the respondents and the respondent was a legal heir of SitalParsadOswal. The Will was directly executed in the name of the Petitioners and in case the Petitioner is not impleaded in the suit then it would be a grave and erroneous wrong to the petitioners.
RESPONDENT’S ARGUMENTS/ EVIDENCES-
As per the contentions of the Respondents, Respondent No.1 that is SatishOswal contended that the written statement filed by the RespondentNo.2 PratibhaPuri, it was stated that the will was executed by SitalParsadOswal in the year 1992. Even the probate petition was mentioned in the Written Statement, the Counsel for the Respondents further supported the orders that were passed by the Trial Court wherein it was placed that the suit was not for any kind of declaration but rather was for the Separate Possession by partition against the respondent. Hence, the question of inheritance could not be decided and the petitioner was not a necessary party to the suit.
ALSO READ- PROBATE OF A WILL AND LETTERS OF ADMINISTRATION
FINDINGS OF THE COURT-
After hearing the contentions of both the parties and going through the evidences at hand, the Court held that, the probate petition is pending in the High Court of Delhi with regards the Will dated 1992 executed by SitalParsad in favor of Dayawati, his wife and further, his daughters Usha Jain and Uma Jain. The Court held that there were two issues raised, one is whether the Will propounded by the respondent dated 1999 have been actually executed by Sital Prasad Oswal and the other issue was that whether the Will dated 1992 was executed by SitalParsadOswal in favor of his wife daughters Usha and Uma Jain.
The Court further opined that the petitioners should be deemed a necessary party to the suit. As such, specific issues have been framed with regards the Will dated 1992, which means the petitioners cannot be kept aside from the suit.
ORDER-
With respect to the above observations and findings of the Court, the Court held that the petitioner is a proper party to the suit and consequently, the order dated 2017 passed by the Trial Court was set aside and the application filed by the Petitioner Uma Jain under Rule 10, Order 1 of the Code of Civil Procedure was allowed.
This post is written by Haritha Dhinakaran.
For case specific advice, please contact best top expert will/property/succession case lawyers advocates in Chandigarh Panchkula Mohali Kharar Zirakpur Derabassi.
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