- (1.) THIS revisional application under Article 227 of the Constitution of India is directed against order no. 17 dated March 31, 2005 passed by the learned District Judge, Howrah in L.O.A. Case No. 20 of 2000 (hereafter the said case). By the said order, the learned Judge was pleased to allow an application under Order I Rule 10, Civil Procedure Code (hereafter the Code) read with Section 151 thereof (hereafter the said application) filed by the opposite parties 1 to 4 herein and thereby directed their impleadment as additional opposite parties in the said case.
(2.) IT appears from the impugned order that one Tulsibala Debi (since deceased) (hereafter the testatrix) was the owner of holding no.13, Bhairab Ghatak Lane within P.S. Malipanchghora in the district of Howrah (hereafter the said property); that she had executed a will on March 23, 1982, duly registered, bequeathing the said property jointly in favour of Smt. Nirmala Bhattacharya (hereafter Nirmala) and Sri Balaram Bhattacharya (hereafter Balaram); that Nirmala and Balaram were appointed as joint executors; that the testatrix passed away on January 19, 1991; that Balaram too passed away on December 24, 1992; that the legal heirs of Balaram in the year 2000 instituted the said case for grant of letters of administration impleading Nirmala as opposite party and two others, viz. Smt. Sabitri Debi (hereafter Sabitri) and Smt. Lakshmi Debi (hereafter Lakshmi), as proforma opposite parties; that Nirmala upon receipt of summons entered appearance but subsequently passed away; that prior thereto, Nirmala had executed a will on June 7, 2004 whereby she bequeath her undivided half share in the said property in favour of the opposite parties 1 to 4 herein and appointed them as joint executors; that the opposite parties 1 to 4 herein were the legal representatives of Nirmala and she being an opposite party in the said case, the presence of the opposite parties 1 to 4 herein, who are stepping in her shoes, is necessary for proper adjudication of the said case. It has been ascertained in course of hearing that while Balaram was the son and Sabitri and Lakshmi are the two daughters of the testatrix, Nirmala was the widow of Kanailal (since deceased), another son of the testatrix. Mr. Banerjee, learned advocate representing the petitioners contended that the said case being one relatable to the will executed by the testatrix and not the will allegedly executed by Nirmala, the opposite parties 1 to 4 herein claiming to be the beneficiaries thereunder cannot have any locus standi to intervene and the learned Judge committed gross jurisdictional error in allowing the said application. According to him, the opposite parties 1 to 4 herein are none else but strangers who have been successful in their attempt to intervene in the said case to delay adjudication thereof and to use it as a shield against their eviction in accordance with law. It was further submitted by him that no copy of the alleged will executed by Nirmala was produced and there is reason to believe that Nirmala having passed away on January 8, 2004, she could not have executed any will on June 7, 2004, as claimed by the opposite parties 1 to 4 herein.
(3.) MR. Banerjee further contended that Section 213 of the Indian Succession Act (hereafter the Act) is a bar to the establishment of any right under a will by an executor or legatee unless probate or letters of administration has been obtained. By placing reliance on the decision of the Supreme Court reported in AIR 1962 SC 1471 [MRs. Hem Nolini Judah (since deceased) and after her legal representative MRs. Marlean Wilkinson v. MRs. Isolyne Sarojbashini Bose and others], it was urged that the opposite parties 1 to 4 herein not having pleaded and proved that probate of the will allegedly executed by Nirmala has been granted, no right could be established on the basis of that will and they cannot derive any advantage thereunder. He, accordingly, prayed for an order to set aside the order impugned and for expeditious disposal of the said case having regard to the lapse of time since institution thereof.;