Judgment:
C.R.No.7059 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.R.No.7059 of 2011 Date of Decision:
04. 02.2013 Sunil Joshi ....Petitioner Versus Mamta Rani and others ....Respondents BEFORE :- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.H.P.S.Ghuman, Advocate for the petitioner.
Mr.Atul Jain, Advocate for respondent No.1.
Mr.S.S.Siao, Advocate for respondents No.3, 4 and 6.
***** DAYA CHAUDHARY, J.
The present revision petition has been filed under Article 227 of the Constituion of India for setting aside the impugned Order dated 12.10.2011 passed by the Civil Judge (Junior Division).Nabha, vide which, the application moved by the petitioner for impleading himself as plaintiff/legal representative of the deceased-Rajinder Parshad, has been dismissed.
Briefly, the facts of the present case are that Rajinder Parshad (not deceased) filed a suit for declaration before the trial Court.
He died on 06.07.2010 and respondents No.1 and 2 moved an application for impleadment as plaintiffs/legal representatives of deceased Rajinder Parshad on the basis of Will dated 15.11.2006.
Similarly, the present petitioner also moved an application for impleading him as legal representative of deceased Rajinder Parshad on the basis of Will dated 07.12.2009.
However, vide Order dated 12.10.2011, an application of C.R.No.7059 o”
2. respondents No.1 and 2 was allowed and the application filed by the petitioner was dismissed on the ground that the second Will nowhere provides that the deceased Rajinder Parshad had earlier cancelled his Will dated 15.11.2006 which was executed in favour of Mamta Rani and Jyoti.
The petitioner has challenged the Order of dismissal of application dated 12.10.2011 on the ground that no distinction can be made between the registered Will and un-registered Will for the purpose of impleadment when both the Wills are yet to pass through litmus test of examination.
Learned counsel also submits that different yardstick has been adopted by the trial Court as the application filed by respondents No.1 and 2 has been allowed, whereas, the application of present petitioner has been dismissed.
Learned counsel further submits that both the parties are contesting on the basis of two Wills and to give any observation about genuineness of the Will is not justified.
Learned counsel for the respondents has not disputed the order passed in the application of respondents No.1 and 2 but opposes the submission made by the petitioner.
I have heard the arguments of learned counsel for the parties and have also perused the impugned order as well as the order passed in the application filed by respondents No.1 and 2.
While allowing the application of respondents No.1 and 2, the following observation has been made :- “2.
In a case where there are rival contentions regarding the Will in an application under Order 22 the Court is not without power to implead the parties claiming under the respective Wills and lead the issue of genuineness of the Will to be established in the suit itself.
The Court has not committed any error by directing impleadment of the grandson who C.R.No.7059 o”
3. propounded the Will.
A mere fact that the Court had also observed that the grandson is impleaded as the legal representative of the plaintiff does not conclude the issue of genuineness of the Will.
It is only for the purpose of impleadment.
So long as the rival contender through yet another Will is shown amongst the respondents and is not shown as co-plaintiff with the petitioneRs.the petitioners cannot have any grievance.
It is hereby clarified that the petitioners alone shall be arrayed as the plaintiffs as representatives of the deceased-plaintiff and the grandson will be shown amongst the defendants along with his father and mother who are already defendants in the suit.”
In view of the order passed in the application moved by respondents No.1 and 2, it is clear that the evidence is required to decide the issue of genuineness of the Will.
In the present case also, the trial Court has made an observation without having any evidence to prove the genuineness of two different Wills.
Moreover, when respondents No.1 and 2 have been allowed to be impleaded as party in the suit then the petitioner should have also been impleaded as plaintiff as both the parties are contesting regarding their claim on the basis of two different Wills.
To make any observation, at this stage, without impleading the petitioner as a party in the Suit, is not justified.
Accordingly, the present petition is allowed and the impugned Order dated 12.10.2011 passed by the Civil Judge (Junior Division).Nabha, is set aside and the trial Court is directed to allow the claim of the petitioner as mentioned in the application.
(DAYA CHAUDHARY) 04.02.2013 JUDGE gurpreet