Anil Kumar Choudhary, J.:—
I.A. No. 7170 of 2013
1. Heard the parties through video conferencing.
2. It is submitted by Mr. K.B. Upadhyay, learned counsel for the applicants namely Shahnaz Ali and Seher Ali Saini that this interlocutory application has been filed with a prayer to substitute the applicants as the legal representatives of the deceased-defendant namely Faiz Murtaza Ali. It is further submitted by the learned counsel for the applicants that the said Faiz Murtaza Ali died on 20.06.2013 leaving behind Bahar Murtaza Fazal Ali-his mother who is still alive and these two applicants being his wife and daughter as his only legal representatives. It is next submitted by the learned counsel for the applicants that two forged and fabricated ‘Will’ dated 14.04.2013 and 19.06.2013 of Faiz Murtaza Ali have come into light after the death of Faiz Murtaza Ali and on the basis of ‘Will’ certain other persons, who are actually not his legal heirs are trying to substitute them in place of late Faiz Murtaza Ali in various court proceedings including the instant case, with a view to grab his estates/properties, depriving the applicants and the mother of Faiz Murtaza Ali from their legitimate and legal rights. It is next submitted by the learned counsel for the applicants that expert opinion has been obtained with regard to the ‘Will’ dated 14.04.2013 and the handwriting expert opined that the signature allegedly appearing on the Will dated 14.04.2013 is forged, as the same is not actually the signature of Faiz Murtaza Ali. Hence, it is submitted that the prayer has been made for substitution of these two applicants whose descriptions have been given in detail in paragraph no. 4 of the petition as defendants being legal representatives of late Faiz Murtaza Ali. It is next submitted by the learned counsel for the applicants that it is not in dispute that the two applicants are respectively the wife and daughter of Faiz Murtaza Ali. It is also not disputed that Faiz Murtaza Ali died on 20.06.2013. It is next submitted by learned counsel for the applicants that Faiz Murtaza Ali was impleaded in this suit as a defendant being a caveator and he has been impleaded vide order dated 06.02.2009 passed by a Division bench of this court in Civil Review No. 46 of 2008. It is also submitted by the learned counsel for the applicants that the said order of the Division Bench of this Court was challenged before the Hon'ble Supreme Court in Special Leave to Appeal No. 10876 of 2019 and the Hon'ble Supreme Court vide order dated 05.01.2010 has been pleased to dismiss the said special leave petition. It is also submitted by the learned counsel for the aforesaid applicants drawing attention of this Court to Rule 130 of the High Court of Jharkhand which reads as under:—
“130. Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall be numbered as a suit in which the petitioner for Probate or Letters of Administration shall be the Plaintiff, and the caveator shall be the defendant, the petition for Probate or Letters of Administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code of Civil Procedure.”
(Emphasis supplied)
that in terms of the said rule the caveator shall be the defendant and the affidavit filed by the caveator has been treated as written statement of this suit of which the petition for probate has been deemed to be the plaint. It is next submitted by learned counsel for the applicants that this suit has been filed for probate of the alleged will executed by Shamim Amna Imam on 03.05.1988. It is further submitted that the mother of Shamim Amna Imam namely Saiyada Mehndi Imam filed Title Suit no. 71 of 2000 in the court of Sub-Judge-XI, Patna to declare the alleged ‘Will’ of Shamim Amna Imam, sought to be probate in this suit, to be null and void. It is then submitted that in Title Suit No. 119 of 1986 pending in the court of Civil Judge, Senior Division-IV, Palamau at Daltonganj, after a detailed enquiry vide Misc. Case No. 01 of 2014 by order dated 12.05.2014, the applicants have been held to be successors of the deceased Saiyada Mehandi Imam. It is further submitted that late Faiz Murtaza Ali claimed the estates of Late Begum Saiyada Mehandi Imam both on the basis of inheritance as well as the ‘Will’ dated 09.09.1999 executed by the said Begum Saiyada Mehandi Imam in favour of late Faiz Murtaza Ali and though the existence of ‘Will’ is known to plaintiff and others since long, yet none has challenged the genuineness of the said ‘Will’ in Court. It is further submitted by learned counsel for the applicants that this testamentary suit was dismissed for default on 11.11.2006 and C.M.P. No. 570 of 2016 was filed for restoration of this suit to its original file but it was dismissed vide order dated 28.07.2017 by a coordinate Bench of this Court with a liberty to the plaintiff to file fresh civil miscellaneous petition for restoration of this suit and subsequently, the plaintiff filed C.M.P. No. 318 of 2017 arraigning these two applicants as the opposite parties of that case and upon these two applicants appearing in that civil miscellaneous petition, testamentary suit was restored to its original file vide order dated 08.03.2019 in C.M.P. No. 318 of 2017. It is next submitted by the learned counsel for the applicants that as a natural corollary, the plaintiff should have substituted these two applicants as the legal representatives of the deceased defendant late Faiz Murtaza Ali but instead he is opposing the said substitution despite his said acquisance. It is next submitted by the learned counsel for the applicants relying upon the judgment of Hon'ble Supreme court of India in the case of G. Gopal v. C. Baskar reported in (2008) 10 SCC 489 : AIR 2009 SC 1232 wherein the Hon'ble Supreme Court in paragraph no. 4 held that it is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the ‘Will’ of the testator and also the judgment of Hon'ble Supreme Court of India in the case of Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique reported in 1989 Supp (2) SCC 275 : AIR 1989 SC 1589 wherein in paragraph no. 4 the Hon'ble Supreme Court has held as under:—
“4. Xxxxx. “Legal representative” as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the 815 estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression “legal representative”. If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased. Xxxxx.”
(Emphasis supplied)
and submitted that in terms of the definition of legal representative as defined under Section 2 (11) of Code of Civil Procedure, the applicants are legal representatives of the sole deceased defendant of this suit namely Faiz Murtaza Ali. Hence, it is submitted that the applicants be substituted as legal representative of the sole deceased defendant of this suit.
3. Mr. Sandeep Verma, learned counsel for the plaintiff on the other hand vehemently opposes the prayer for substitution of the applicants as legal representative of the sole deceased defendant - Faiz Murtaza Ali. It is further submitted that this interlocutory application is pressed after lapse of six years. It is next submitted that applicants have suppressed the fact that Title Suit No. 71 of 2000 was filed by the mother of the testatrix and FIR No. 252 of 2000 was registered in Greater Kailash Police Station, New Delhi as also the filing of C.W.P. No. 2263 of 2002 and W.P.(C) No. 3579 of 2002. It is next submitted that the plaintiff denies that Faiz Mustafa Ali was impleaded in this suit only on the ground that he has a caveatable interest in this testamentary suit in regard to the ‘Will’ executed by Shamim Amna Imam. It is next submitted that after the death of testatrix her share should have reverted to her only legal heir being Saiyada Mehandi Imam but whether the share of Saiyada Mehandi Imam could devolve upon her brother Late (Justice) Murtaza Fazal Ali and thereafter his son Faiz Murtaza Ali under the Mohammedan Law, could be a subject matter for adjudication by the court of competent jurisdiction. It is next submitted by the learned counsel for the plaintiff that though one of the estate involved in the ‘Will’ being A-4 Chirag Enclave, New Delhi has been mutated in the name of Faiz Murtaza Ali but mutation does not create any right nor extinguish the same and the finding of Civil Judge, Senior Division-IV, Palamau at Daltonganj in the said Misc. Case No. 1 of 2014 arising out of Title Suit No. 119 of 1986 has no bearing with the present testamentary suit. It is further submitted by the learned counsel for the plaintiff that in C.M.P. No. 318 of 2017 the applicants were arraigned as opposite parties in order to avoid any legal conflict for restoration of the suit though they have no caveatable interest in the suit hence the same will not amount to acquiescence. It is next submitted by the learned counsel for the plaintiff drawing attention of this Court to the order passed by the Sub-Judge-XI, Patna in Misc. Case No. 7 of 14 arising out of Title Suit No. 71 of 2000 that upon enquiry the Sub-Judge-XI settled the issue “Whether the petitioners Shahnaz Ali and Seher Ali Saini are entitled to be substituted in place of original plaintiff Saiyeda Mehandi Imam on the basis of natural legal heir of substituted plaintiff Faiz Murtaza Ali being his wife and daughter?” and the Sub-Judge-XI has answered the same by holding that in the said Title Suit No. 71 of 2000 the right and interest of Faiz Murtaza Ali was not to be determined rather the right and interest of original plaintiff Sayieda Mehandi Imam would be affected on the final question of determination of the legality of the ‘Will’ under challeng and hence, it was held that Shahnaz Ali and Seher Ali Saini are not found fit to be allowed for substitution on the sole basis of the legal representatives. It is next submitted that as the Sub-Judge-XI, Patna has not allowed these applicants to be substituted as plaintiff of that Title Suit No. 71 of 2000 hence, applying the principle of section 11 of the Code of Civil Procedure, 1908, the prayer for the substitution of the applicants be rejected.
4. Having heard the submissions of the leaned counsel for the parties and after going through the material in record, it is crystal clear that Faiz Murtaza Ali was impleaded in this suit as caveator and the said issue has reached finality by the order of Division Bench of this Court in Civil Review No. 46 of 2008 and a Special writ petition against this order was dismissed by the Hon'ble Supreme Court of India. There is no dispute that the applicants are respectively the wife and daughter of Faiz Murtaza Ali hence, obviously represent the estate of the said Faiz Murtaza Ali. There is also no dispute that these two applicants were arrayed as opposite parties by the plaintiff in C.M.P. No. 318 of 2017 and upon appearance of these two applicants, vide order dated 08.03.2019 in the said C.M.P. No. 318 of 2017, this suit has been restored to this file. So far as applicability of section 11 of the Code of Civil Procedure, 1908 is concerned, it is not the contention of the plaintiff that the matter directly and substantially in issue in this suit is directly and substantially in issue of the suit pending in the said Title Suit No. 71 of 2000 because had it been a fact this suit has to wait till the outcome of Title Suit No. 71 of 2000. Under such circumstances and keeping in view the settled principal of law as has been held in the case of G. Gopal v. C. Baskar (supra), this Court is of the considered view that this is a fit case where the applicants be substituted as legal representatives of the deceased defendant Faiz Murtaza Ali as defendant nos. 1(a) and 1(b) in this suit. Accordingly, the prayer to substitute the legal representatives of sole defendant Faiz Murtaza Ali is allowed.
5. Registry is directed to incorporate the names, parentage and addresses of the defendant nos. 1(a) and 1(b) in the cause title of the plaint in red ink.
6. The defendants if they so advised may file additional written statement within 30 days from today.
7. In the result this interlocutory application is allowed.
I.A. No. 7428 of 2013
8. It is submitted by Mr. Bibhash Sinha, learned counsel for the applicant that this petition has been filed under Order I Rule 10 read with Section 151 of Code of Civil Procedure and Section 284 of the Indian Succession Act on behalf of the applicant Krishna Chandra Prasad Singh @ Anil Kumar Singh with a prayer to implead him as a defendant in this testamentary suit. It is further submitted by the learned counsel for the applicant that this testamentary suit has been filed with a prayer to grant probate of the alleged ‘Will’ dated 03.05.1998 executed by Shamim Amna Imam who died on 23.05.1998. It is next submitted by the learned counsel for the applicant that the said ‘Will’ dated 03.05.1998 sought to be probated in this suit is a fabricated and forged one and the property of Shamim Amna Imam, consequent upon her death has devolve upon her mother Saiyeda Mehandi Imam. It is next submitted by the learned counsel for the applicant that the said Saiyeda Mehdi Imam has executed a registered ‘Will’ in the office of Sub-Registrar-IV, Seelampur, New Delhi dated 24.11.1999 in favour of the applicant hence, it is submitted by the learned counsel for the applicant that the applicant has a caveatable right in this testamentary suit and therefore, he be impleaded as a defendant.
9. It is submitted by learned counsel for the defendant nos. 1(a) and 1(b) that Faiz Murtaza Ali who is respectively the husband and father of defendant nos. 1(a) and 1(b) have filed Title Suit no. 483 of 2016 in New Delhi to declare the said alleged ‘Will’ dated 24.11.1999 to be null and void but the said suit is still sub judice. It is further submitted by the learned counsel for the defendant nos. 1(a) and 1(b) that the defendant-applicant if impleaded as a defendant then liberty be given to the defendant nos. 1(a) and 1(b) to file an appropriate application for striking out their name in case Title Suit No. 463 of 2016 is decided in favour of the defendant nos. 1(a) and 1(b) of the suit and if this liberty is given to the defendant nos. 1(a) and 1(b), they have no objection for impleading the applicant as defendant of this suit.
10. Learned counsel for the plaintiff vehemently opposes the prayer for impleading the applicant Krishna Chandra Prasad Singh @ Anil Kumar Singh as defendant and submitted that the said applicant has no caveatable interest in the instant testamentary suit. It is next submitted that this applicant has filed an application in Title Suit No. 71 of 2000 of the court of Sub-Judge, Patna and Title Suit No. 160 of 1999 wherein he came to know regarding the ‘Will’ dated 24.11.1999 and 19.06.2013 executed by late Faiz Murtaza Ali. It is further submitted by the learned counsel for the plaintiff that the applicant filed application under Order XXII, Rule 3 read with Order I Rule 10 and Section 151 of Code of Civil Procedure in Title Suit No. 119 of 1988 in the court of Civil Judge, Senior Division-IV, Palamau at Daltonganj for substitution as legal representative of the said Saiyeda Mehandi Imam and his application was dismissed vide order dated 16.12.2014 and the defendant nos. 1(a) and 1(b) have filed Title Suit No. 483 of 2016 for cancellation and declaration of the alleged Will executed by Faiz Murtaza Ali as null and void. Hence, it is submitted that the prayer for substitution of the applicant be rejected.
11. Having heard the submissions of the learned counsel for the parties and after going through the record, it is crystal clear that it has been held by a Division Bench of this Court in Civil Review No. 46 of 2008 that late Faiz Murtaza Ali has a caveatable interest in this suit and special leave petition filed against the same was dismissed by the Hon'ble Supreme Court of India and prima facie the applicant has produced a registered ‘Will’ executed by Saiyeda Mehdi Imam in his favour though the same is the subject matter of dispute before the civil court in New Delhi vide Title Suit No. 483 of 2016.
12. In view of the principle of law settled by the Hon'ble Supreme Court of India in the case of G. Gopal v. C. Baskar reported in (2008) 10 SCC 489 : AIR 2009 SC 1232 wherein the Hon'ble Supreme Court in paragraph no. 4 held that it is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the ‘Will’ of the testator, this Court is of the considered view that this applicant has a caveatable interest in the subject matter of the ‘Will’ sought to be probated in this suit. Accordingly, the prayer to implead the applicant namely Krishna Chandra Prasad Singh @ Anil Kumar Singh as a party defendant is allowed. Krishna Chandra Prasad Singh @ Anil Kumar Singh be impleaded as defendant no. 2, with a liberty to defendant nos. 1(a) and 1(b) to file proper application for striking out the defendant no. 2 from this suit if the said Title Suit No. 483 of 2016 is decided in favour of the defendant nos. 1(a) and 1(b).
13. Registry is directed to incorporate the name, parentage and address of the defendant nos. 2 in the cause title of the plaint in red ink.
14. The plaintiff is directed to supply a copy of the plaint to the leaned counsel for the defendant no. 2 by tomorrow. The defendant no. 2 if so advised my file written statement within 30 days from today.
15. In the result this interlocutory application is allowed.
I.A. No. 6886 of 2013
16. Mr. Pratyush Kumar, learned counsel for the applicant submits that he has no instruction in this interlocutory application.
17. Accordingly, this interlocutory application is rejected as not pressed.
T.S. No. 1 of 2003
18. List this suit for settlement of issue after four weeks.