Patna High Court
Most. Madhuri Kunwar and OrsversusRajendra Singh
- Decided
- Disposal
- DISPOSED
- Bench
- S B P SINGH
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
- Code of Civil Procedure, 1908 — s. Order I Rule 10
- Indian Succession Act, 1925 — s. 213
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
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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
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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
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