NAKIBEN Vs. MANEKLAL BHAGWANDAS RESHAMWALA

JUDGEMENT

(1.) THE challenge in this petition under Article 227 of the Constitution of India, is to three orders passed by the learned Principal Senior Civil Judge, Surat (the Trial Court), all dated 31.01.2013, below the applications at Exh.43, Exh.1 and Exh.5, respectively, in Special Civil Suit No.422 of 2011. The application at Exh.43 was filed by the petitioner to permit him to join as the plaintiff in the above -mentioned suit filed by deceased original plaintiff Nakiben, being her legal representative and the beneficiary of a Registered Will dated 06.05.2005 and Registered Codicil, (described as a Supplementary Will) dated 10.08.2011. The Trial Court, vide the impugned order below Exh.43, has rejected the said application made by the petitioner on the ground that the suit property has been sold by Nakiben on 08.05.1990, vide a Registered Sale Deed executed by her Power of Attorney, therefore, on the date of making the Will, she did not have any interest in the suit property to bequeath, by way of the Will. The Trial Court has, therefore, rejected the application of the petitioner at Exh.43 to be joined as the plaintiff.

(2.) BY the impugned order passed below Exh.1, the Trial Court has held that in view of, and for the reasons, stated in the order passed below Exh.43, the suit has abated.

(3.) AS a consequence of the order passed below Exh.1, the Trial Court has rejected the application at Exh.5, filed by the original plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (the Code for short).