Created by Fuzzy Cloud

Patna High Court

Most. Madhuri Kunwar and OrsversusRajendra Singh

Decided
Disposal
DISPOSED

Holding

The court ordered the impleadment of petitioners nos. 2 and 3 as plaintiffs, but declined to implead petitioner no. 1 due to lack of probate.

Summary

The petitioners, Madhuri Kunwar and her brothers Arun Kumar Pandey and Rajnish Kumar Pandey, applied to be impleaded in Title Suit No. 137 of 2006 filed by the late Mst. Dulari Kunwar against the respondents. They relied on a registered deed of gift in favour of the two brothers and an unregistered will in favour of Madhuri. The trial court rejected the application on the ground that the documents were executed during the pendency of the suit. The High Court held that for impleadment under Order I Rule 10, the court need only ascertain whether the proposed parties have an interest in the subject matter, not the merits of the case. It found that the deed of gift gave the brothers a vested interest, warranting their impleadment, but Madhuri’s claim could not be recognised without a probate order under Section 213 of the Indian Succession Act. Consequently, the brothers were ordered to be impleaded as plaintiffs, while Madhuri’s application was declined, and the petition was disposed.

Issues considered

  • Whether the petitioners have a sufficient interest in the suit property to be impleaded under Order I Rule 10 of the Code of Civil Procedure.
  • Whether the execution of the deed of gift and the unregistered will during the pendency of the suit bars their consideration for impleadment.
  • Whether an unregistered will confers a enforceable right in the absence of probate under Section 213 of the Indian Succession Act.

Legislation cited

Subjects

  • impleadment
  • Order I Rule 10
  • deed of gift
  • will
  • probate
  • succession
  • civil procedure
  • title suit

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                        CIVIL MISCELLANEOUS JURISDICTION No.311 of 2017
                 ======================================================
           1.     Most. Madhuri Kunwar and Ors Wife of Late Gajadhar Pandey
           2.    Arun Kumar Pandey Son of Late Gajadhar Pandey
           3.    Rajnish Kumar Pandey @ Rajnish Pandey Son of Late Gajadhar Pandey All
                 are residents of Village Post - Saisawaniya, P.S. - Uchkagaon, District -
                 Gopalganj.

                                                                             ... ... Petitioner/s
                                                    Versus
           1.    Rajendra Singh Son of Late Jaleshwar Singh, Resident of Village - Bindwal,
                 P.O. Mustafabad, P.S. - Goryakothi, District- Siwan, At present residing at
                 Village - Chachopali, P.O. - Sisayee Bazar, P.S. - Bhore, District- Gopalganj.
           2.    Baby Singh Wife of Rajendra Singh
           3.    Amit Kumar Son of Rajendra Singh All are residents of Village - Bindwal,
                 P.O. - Mustafabad, P.S. - Goryakothi, District - Siwan. At present residing at
                 Village - Chachopali, P.O. - Sisayee Bazar, P.S. - Bhore, District -
                 Gopalganj.

                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s   :      Mr.Ranjeet Kumar
                 For the Respondent/s   :      Mr.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
                                       ORAL ORDER

4   09-02-2026                 The instant application has been filed for setting aside

                   the order dated 16.11.2016 passed by the learned 2nd Munsif

                   Siwan in Title Suit No. 137 of 2006 whereby petitioner’s

                   application dated 03.112015 filed under Order I Rule 10 of code

                   of Civil Procedure has been rejected.

                               2. Learned counsel for the petitioners submits that

                   Title Suit No. 137 of 2006 has been instituted by Mst. Dulari

                   Kunwar against the defendant. During her lifetime, Mst. Dulari

                   Kunwar executed a registered deed of gift in favour of petitioner
Patna High Court C.Misc. No.311 of 2017(4) dt.09-02-2026
                                             2/3




          nos. 2 and 3, namely Arun Kumar Pandey and Rajnish Kumar

          Pandey. It is further submitted that an unregistered Will was also

          executed by Mst. Dulari Kunwar in favour of petitioner no. 1,

          namely Mst. Madhuri Kunwar. The aforesaid petitioners seek to

          be impleaded in the said title suit in order to contest the matter

          on the basis of the registered deed of gift and the Will.

          Accordingly, they filed an application under Order I Rule 10 of

          the Code of Civil Procedure; however, the said application has

          been rejected by the learned Trial Court.

                       3. The impugned order has been passed on the ground

          that the aforesaid two documents were purportedly executed

          during the pendency of the suit and, therefore, the application

          for impleadment was rejected. However, for the purpose of

          impleadment under Order I Rule 10 of the Code of Civil

          Procedure, the Court is not required to examine the merits of the

          case or to determine whether the applicants would ultimately

          win or loose the case. What is required to be seen is whether the

          proposed intervenors have any interest in the subject matter of

          the suit or not. On the basis of the registered deed of gift, it is

          evident that petitioner nos. 2 and 3 have acquired an interest in

          the suit property and, therefore, they appear to be necessary

          parties for proper and complete adjudication of the suit. Hence
          Patna High Court C.Misc. No.311 of 2017(4) dt.09-02-2026
                                                       3/3




                    their impleadment is necessary to contest the suit. So far as

                    petitioner no. 1 is concerned, the Will has not been probated till

                    date. For want of any order of probate passed by competent

                    court, petitioner no. 1 cannot be said to have acquired any

                    enforceable right and interest in the suit property under Section

                    213 of the Indian Succession Act.

                                 4. In view of the above, petitioner nos. 2 and 3 are

                    ordered to be impleaded in the Title Suit No. 137 of 2006 as

                    plaintiff to contest the suit against defendant.

                                 5. With the aforesaid, the instant application stands

                    disposed of.



                                                (S. B. Pd. Singh, J)
Ankit Kumar/-

U


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

Lawyer court records for this case

Associated through the court’s case reference.

For a signed copy suitable for filing, refer to the court's website.