The document is a court order regarding a civil suit over property ownership. [1] The court heard arguments from advocates for the plaintiffs, defendant No. 4, and third parties seeking to join the suit. [2] The third parties claimed they had been appointed trustees of the property by will and should be added as defendants to protect beneficiaries' rights. [3] The plaintiffs opposed this, arguing the will was invalid and the third parties were colluding with defendants. The court ultimately allowed the third parties to join as defendants, finding they had established a prima facie case and their addition would not prejudice plaintiffs or change the nature of the suit.
The document is a court order regarding a civil suit over property ownership. [1] The court heard arguments from advocates for the plaintiffs, defendant No. 4, and third parties seeking to join the suit. [2] The third parties claimed they had been appointed trustees of the property by will and should be added as defendants to protect beneficiaries' rights. [3] The plaintiffs opposed this, arguing the will was invalid and the third parties were colluding with defendants. The court ultimately allowed the third parties to join as defendants, finding they had established a prima facie case and their addition would not prejudice plaintiffs or change the nature of the suit.
The document is a court order regarding a civil suit over property ownership. [1] The court heard arguments from advocates for the plaintiffs, defendant No. 4, and third parties seeking to join the suit. [2] The third parties claimed they had been appointed trustees of the property by will and should be added as defendants to protect beneficiaries' rights. [3] The plaintiffs opposed this, arguing the will was invalid and the third parties were colluding with defendants. The court ultimately allowed the third parties to join as defendants, finding they had established a prima facie case and their addition would not prejudice plaintiffs or change the nature of the suit.
Learned Advocate Ms. K.R. Shah, for the plaintiffs.
Learned Advocate Shri Sapan Shah, for the defendant
No.4. rd Learned Advocate Shri Sapan Shah, for the 3 parties.
Order Below Exh.40:-
1. Read this applicant, it's reply at Exh.48.
Perused the record of the case. Heard the learned advocates' for the parties.
2. Plaintiffs have filed this suit contending that
they are enjoying the possession of the suit property as an owner openly, adversely and to its entirely to the knowledge of the original owner continuously and without interruption since 1968. It is stated by them that the defendants are exercising threats to disturb the possession of the plaintiffs. Therefore, a relief for permanent injunction is sought for by the plaintiffs. Subsequently, an amendment application at Exh.26 was moved by the plaintiffs, which was allowed and as per the order of the Hon'ble Court, plaintiffs have added prayer, which is mentioned as A1 In this suit. By this prayer, they have sought for relief that plaintiffs should be declared that CS/5028/1992 2/6 ORDER
they have become absolute owner of the suit
property by way of adverse possession.
3. Summons of suit was served to the defendant
Nos.4 and 5. The defendant No.4 filed a reply to the suit. During the pendency of the suit, it came to the notice of this Court that defendants Nos.1 to 3 were died before many years. So, this suit is abated against them. Then, plaintiffs have given their oral evidence. Right of defendants to cross-examine the plaintiffs was closed. Thereafter, when the matter was kept for evidence of the defendants, defendant No.4 has filed one purshis contending that he has appointed four new persons as trustees of trust as per the terms of Will. He has produced a copy of Will along with his purshis. On the same day, these four persons i.e. the third parties have moved this application seeking to be joined them as parties to the suit.
4. It is contended by the third parties that they
have been appointed as trustees of the trust as per the terms of Will. They have produced a letter written to them by defendant No.4. It is stated by them that defendant No.4 is very old and defendant No.5 remains sick. So, he has given resignation. Therefore, third parties have filed this application to be joined as defendants in the suit. They have stated that if they are not joined in the suit, rights of CS/5028/1992 3/6 ORDER
beneficiaries will be seriously affected. So,
they have requested to join them as the parties of the suit. The third parties have given similar application at Exh.45.
5. In their reply, plaintiffs have stated that this
application is not legal and valid. It is false and frivolous. It is further stated by the plaintiffs that defendant No.4 has no right to appoint any persons as trustees of the trust. The third parties and defendant No.4 are in collusion with each other. Moreover, the Will produced by defendant No.4 is not registered one. Defendant No.4 has not obtained any probate of the Will. Therefore, he is not authorized to appoint anyone as trustees of the trust. Moreover, the trustees can never be a beneficiaries. Therefore, they have no right, title or interest over the suit property. Therefore, they are not entitled to get any relief as prayed in this application to implead themselves as defendants in this suit. This application is suffered by delay, latches and acquiescence. So, it is requested by the plaintiffs to dismiss this application.
6. Learned Advocate Ms. K.R. Shah has raised
similar contentions in her arguments which has been raised by her in her reply to the third parties application. Learned Advocate Ms. K.R. Shah has further submitted if this application CS/5028/1992 4/6 ORDER
is allowed, right of the plaintiffs will be
seriously prejudiced. It is further submitted by her that a person cannot established his right in a Court of law so long as probate of the Will is not guaranteed in his favour by the Court of competent jurisdiction. In support of her say, she has produced a citation in case of Kanhialal v. State, reported in AIR 1980 ORISSA 27 and another citation of Hon'ble Supreme Court in case of Hem Nolini v. Isolyne Sarojbashini, reported in AIR 1962 1471. Learned Advocate for the plaintiffs has submitted that this application has been preferred just to delay the proceedings. So, it is required to be dismissed with the costs.
7. Learned Advocate for the third parties Mr. Sapan
Shah has contended that where the executor of Wills are Hindus and the Wills relate to immovable properties situated outside the cities of Calcutta, Madras and Bombay, probate is not required for establishing title to immovable property. In support of his say, he has produced a case of Minaxiben S. Patel v. Dist. Collector reported in Vol. XLVIII(1) GLR 277.
8. Learned Advocate for the plaintiffs have stated
that this judgment is not applicable to the facts of the present case.
9. According to me, at this stage, I have not to
CS/5028/1992 5/6 ORDER
consider the question that whether the Will is
genuine or not, whether the probate is required to be obtained by the third parties. I am not required to deal with the contentions raised by the learned Advocate for the plaintiffs narrated in her reply of the third parties application at this stage. Therefore, I am not expressing any opinion in respect of the merits of the case. At this stage, I have to consider the question only that whether the third parties have been able to make out the case that they are required to be joined as parties to the suit. I am of the opinion that the third parties have prima-facie case to be joined in the suit as defendants. Therefore, application submitted by the third parties is required to be allowed.
10.According to me, if this application is
allowed, no prejudice would be caused to the plaintiffs because plaintiffs would have ample opportunity to cross-examine the evidence of the third parties. According to me, if third parties are entered in the suit, nature of the suit would not be changed i.e. no new case would be made out. Therefore, this application should be allowed. In view of the above facts and circumstances of the case, the following order is required to be passed. Hence, I pass the following order:- CS/5028/1992 6/6 ORDER
O R D E R
This application is hereby allowed.
The applicants of this application are entitled
to be joined as defendant Nos.6 to 9 as prayed in the application.
Applicants shall amend the suit within the
period of 10(ten) days from the date of this order.
On making amendment by the applicants,
plaintiffs shall produce the copy of amended plaint.
Cost will follow the result of the suit.
Pronounced in the open Court on this 29 th day of
April 2009.
Date :29/04/2009 (V.C. Barot)
Judge - Court No.25 City Civil Court, Bhadra,Ahmedabad.