- (1.) The instant application under Article 227 of the Constitution of India is directed against the order dated 6.8.2008 as also the order dated 24.6.2005, passed by Harun Al Rashid, learned Additional District Judge, Nadia, 2nd Court, Krishnagar in O.S. No. 11 of 2002 seeking deletion of the name of subsequent transferee of the property involved in the suit in question.
(2.) Having gone through the materials on record and also upon consideration of the submissions made on behalf of the parties concerned it could be detected that the learned Trial Judge while proceeding with the other suit no. 11 of 2000 was pleased to allow the application under Order 1 Rule 10 of the Code of Civil Procedure on contest and thereby added opposite party Binod Bala as citee no. 3(d). It could be further detected that subsequently learned trial Judge upon hearing the learned Lawyer appearing for the parties concerned was, however, pleased to reject the application filed on behalf of petitioner Kashinath Ghosh for debarring the added opposite party Binod Bala from contesting the suit in question. Being aggrieved by and dissatisfied with the impugned orders the petitioner has come up before this Court for setting aside the orders dated 6.8.2008 and 24.6.2005. The only point for consideration is whether the learned trial Judge was justified in allowing the application under Order 1 Rule 10 of the Code of Civil Procedure and rejecting the application for debarring the added opposite party Binod Bala from contesting O.C. Suit No. 11 of 2000. The learned lawyer appearing for the petitioner while making submissions drew this Court's attention to the contents of the order dated 6.8.2008 as also the order dated 24.6.2005 as well as some other important materials on record and emphatically contented that the learned trial Judge by passing the orders under challenge committed mistake and illegality and thus caused injustice to his client inasmuch as in a probate case stranger purchaser cannot be added as a party. In support of his contention he has relied upon the rulings (Sunil Gupta Vs. Kiran Girhotra and Ors., 2007 8 SCC 506), (Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Anr., 2004 1 SCC 191), (Mahadeb Hazra and Ors. Vs. Sm. Sisubala Sen and Ors., 1985 2 CalHN 341) and strongly argued that the orders impugned suffer from gross illegality as also impropriety and accordingly the same deserve to be set aside.
(3.) On the other hand, the learned counsel appearing for the added opposite party Binod Bala referring to the contents of the impugned orders as well as some other important materials on record including the provisions of Section 52 of the Transfer of Property Act, strongly urged that learned trial Judge while passing the impugned orders committed no mistake or illegality as because the subsequent transferee being interested in the property involved in the suit becomes a necessary party and as such he lawfully acquires right to fight out the probate case for protection of his property share. In support of his contention he has relied upon a ruling, (Smt. Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Anr., 1958 AIR(SC) 394) and argued that as a purchaser pendente lite the person should be necessarily brought on records to allow him an opportunity to submit his say. Further referring to the materials on record learned lawyer appearing for the added opposite party submitted that considering the age and stage of the probate proceeding learned trial Judge correctly disposed of the petitions and passed the impugned orders quite lawfully and in a justifiable manner. The learned lawyer appearing for the other opposite parties while arguing the case supported the stand taken by the added opposite party and argued that the impugned orders suffer from no impropriety or illegality and accordingly the application under Article 227 of the Constitution of India should be rejected. It is not in dispute that added opposite party Binod Bala during pendency of the probate suit no. 11 of 2000 purchased their respective share from citees no. 3(a) and 3(b) Smt. Radharani Ghosh and Bhagirathi Mondal by two separate registered deeds dated 16.10.2003 and 13.3.2003 and thereafter Binod Bala by filing an application under Order 1 Rule 10 of the Code of Civil Procedure prayed for impleading himself as a party-respondent as citee no. 3(d). True it is that said Binod Bala in no way could be said to be the beneficiary to the probate proceeding. In view of the provisions laid down in Order 1 Rule 10 sub-rule (2) of the Code of Civil Procedure the Court is vested with the power to make addition of any party or to delete the name of any party for the sake of effective and proper adjudication of the suit or proceeding. In view of the ruling reported in Sunil Gupta Vs. Kiran Girhotra impleadement of the transferee to any probate proceeding is not at all necessary. It has been held by the Hon'ble Supreme Court that a transferee of a property during the pendency of a probate proceeding is not necessary party. Of course, citations are necessary to be made to only those who, inter alia, claim through or under the will or deny or dispute the execution thereof.;