Division Bench of this Court in the case of Ramesh Sippy Vs. Suresh Gopaldas Sippy & Ors. (supra) has after adverting to the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) and several other judgments has allowed an executor to proceed with the proceedings filed by the original testator without obtaining probate at that stage and merely on the statement made by the applicant that he would file a petition for probate within one month from the date of the said order. The judgment of the Division Bench would squarely apply to the facts of this case. I am respectfully bound by the said judgment.
28. Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) after construing Section 211 of the Indian Succession Act, 1925 and Order XXII Rule 10 of the Code of Civil Procedure, 1908 held that the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order XXII, Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the title of the testator stands vested in the executor on the his death. In my view, the judgment of the Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) would squarely apply to the facts of this case. I am respectfully agree with the views expressed by the Orissa High Court in the said judgment.
29. Order XXII Rule 3 read with Order XXII Rule 1 of the Code of Civil Procedure, 1908 clearly indicates that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Even if the sole plaintiff dies and if the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under Section 2(11) of the Code of Civil Procedure, 1908, since an executor/executrix represents the estate of the deceased person, he is a legal representative within the meaning off Section 2(11) of the Code of Civil Procedure, 1908 and is thus entitled to sue or is sued under Section 211 of the Indian Succession Act, 1925.
30. The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. In my view, since the executor/executrix has alleged to have been appointed under the last Will and Testament of the original plaintiff, she being a legal representative of the said estate and the property forming part of the estate vests in her. The right to sue survives considering the nature of the relief sought in the plaint and thus she deserves to be impleaded as party-plaintiff in place of the original plaintiff.
IN THE HIGH COURT OF BOMBAY
Chamber Summons No. 424 of 2015 in Suit No. 341 of 2014
Decided On: 08.01.2019
Geeta Patel D'Souza Vs. Girnar Apartments Co-operative Housing Society Ltd. and Ors.
Hon'ble Judges/Coram:
R.D. Dhanuka, J.
Citation: AIR 2019 Bom 34,2019(3) MHLJ 745
1. By these two chamber summonses filed by the applicants, the applicants in both the chamber summonses have prayed for condonation of delay in filing chamber summonses and for their respective impleadment as plaintiffs in place of the original plaintiff Sushilarani B. Patel who expired on 24th July 2014. By consent of parties, both the chamber summonses were heard together and are being disposed of by a common judgment. The relevant facts for the purpose of deciding these two chamber summonses are as under:-
2. The original plaintiff Sushilarani B. Patel filed a suit on 18th February 2014 inter alia praying for a declaration that the defendant no. 1 therein had committed breaches of the terms of Lease Deed dated 2nd August 1963 read with the indenture of assignment dated 27th September 1972 as per show cause notice and various other reliefs. The said Suit No. 341 of 2014 is pending. During the pendency of the said suit, the said Sushilarani B. Patel, original plaintiff expired on 24th July 2014.
3. In so far as the Chamber Summons No. 450 of 2015 is concerned, it is the case of the applicant that prior to the date of filing of the said suit, the original plaintiff had executed a Will dated 20th September 2010 duly registered whereunder she devised and bequeathed the Girnar Bunglow and the entire undivided 30% of the land and reversionary right, title and interest in the said Deed of Lease dated 2nd August 1963 to "Dr. Smt. Sushilarani Baburao Patel Trust" with various directions mentioned therein. Under the said Will dated 20th September 2010, the original plaintiff had appointed (1) Dr. Shrikant G. Gokhale, (2) Mrs. Neela Shinde, (3) Mrs. Radhika Sood Nayak and (4) Mrs. Vrushali Zagade as executors/executrixes.
4. It is the case of the applicant Neela V. Shinde in Chamber Summons No. 450 of 2015 that the applicant in Chamber Summons No. 424 of 2015 being grand step daughter of deceased Sushilarani B. Patel along with husband of Sheila Step daughter of Sushilarani forcibly entered the said Girnar Bunglow with a view to get ownership of the said bunglow. Various police complaints were filed by the applicant against the Geeta Patel D'Souza, applicant in Chamber Summons No. 424 of 2015. On 15th August 2014, one of the executors Dr. Shrikant G. Gokhale renounced his executorship by way of resignation under the said alleged Will of deceased Sushilarani. Various correspondence were thereafter exchanged between the applicant in Chamber Summons No. 450 of 2015 and the applicant in Chamber Summons No. 424 of 2015. The Applicant in Chamber Summons No. 450 of 2015 filed a petition bearing No. 297 of 2015 inter alia praying for grant of probate in respect of the registered Will of the said deceased (original plaintiff). The said petition is still pending.
5. In so far as Chamber Summons No. 424 of 2015 is concerned, according to the applicant Geeta P. D'Souza, the original plaintiff was the third wife of the grand father of the applicant late Baburao Patel. Her late grandmother Shirin Patel was the first wife of Baburao Patel and had four issues from her marriage with Baburao Patel i.e. Suryakant Patel (father of the applicant), Suresh Patel, respondent no. 1 to the chamber summons and Shashikant Patel, respondent no. 2 and a daughter late Shiela Mir who died issueless in Mumbai. The other respondents to the chamber summons are also the legal heirs of the original plaintiff according to the applicant. It is the case of the applicant that late Shirin Baburao Patel died intestate in Mumbai on 7th April 1972 issueless and intestate in Mumbai. It is the case of the applicant that under the provisions of the Hindu Succession Act, 1956, the applicant along with the respondent nos. 1 to 7 being the only heirs and legal representatives of the original plaintiff became entitled to represent the estate of the late original plaintiff. The applicant (Geeta Patel D'Souza) accordingly filed Chamber Summons No. 424 of 2015 inter alia praying for impleadment of the applicant as plaintiff and the respondent nos. 2 to 7 as defendants.
6. Mr. Kukreja, learned counsel appearing for the applicant in Chamber Summons No. 450 of 2015 invited my attention to the averments made in the Chamber Summons and annexures thereto. He submits that the applicant was one of the executrix appointed under the registered Will of the original plaintiff dated 20th September 2010. He submits that his client has already filed testamentary petition in this Court inter alia praying for grant of probate in respect of the said Will of the original plaintiff. The applicant being one of the executrix under the said Will is entitled to represent the estate of the original plaintiff and is entitled to be impleaded as plaintiff in place of the original plaintiff.
7. Learned counsel placed reliance on the definition of "executor" under Section 2(c) and Sections 211 and 213 of the Indian Succession Act, 1925 and would submit that the applicant is the legal representative of the said deceased for all the purposes, and all the properties of the deceased original plaintiff vest in her. He submits that the applicant in Chamber Summons No. 424 of 2015 cannot apply for her impleadment in Suit No. 341 2014 as it is not the case of the said applicant that she was one of the executrix under the said Will executed by the original plaintiff. His client is however, the executrix within the meaning of Section 2(c) of the Indian Succession Act, 1925 and in that capacity, she is the only person who is entitled to represent the estate of the said deceased, the original plaintiff. In support of this submission, learned counsel placed reliance on the judgment of this Court in the case of Ramesh Sippy Vs. Suresh Gopaldas Sippy & Ors., MANU/MH/1049/2012 : 2012(4) ALL Mr. 910 and in particular paragraphs 14 and 15 thereof and would submit that though the applicant has not obtained any probate in respect of the Will of the original plaintiff so far, there is no bar against the applicant from relying on the said registered Will at the interim stage of the proceedings and to represent the estate of the original plaintiff as the executrix under Section 211 read with Section 213 and the definition "executor" under Section 2(c) of the Indian Succession Act, 1925.
8. Learned counsel for the applicant also placed reliance on the judgment of the Orissa High Court in the case of Surendra Chandra Jena and Ors. Vs. Laxminarayan Jena & Ors., MANU/OR/0035/1988 : AIR 1988 Orissa 143 and in particular paragraph 4 in support of the submission that an executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order 22, Rule 10 of the Civil Procedure Code, 1908. He submits that the title of the testator stands vested in the executor on the his death. Learned counsel for the applicant placed reliance on the judgment delivered by the Division Bench of this Court in the case of Ramniklal Amritlal Shah Vs. Bhupendra Impex Pvt. Ltd. & Ors., MANU/MH/0075/2001: AIR 2001 Bombay 224 and in particular paragraphs 5, 7 and 8 in support of the submission that under Section 213 of the Indian Succession Act, 1925, though there is a bar against the decree without obtaining probate certificate, there is no bar against impleadment in the suit. He submits that the applicant is thus entitled to be impleaded as plaintiff in place of the original plaintiff and not the applicant in Chamber Summons No. 424 of 2015.
9. Learned counsel for the applicant in Chamber Summons No. 450 of 2015 placed reliance on the order dated 17th November 2017 passed by this Court in Chamber Summons No. 323 of 2014 in Suit No. 1375 of 2011 filed by Geeta Patel D'Souza against Sushilarani Patel & Ors. The said chamber summons No. 323 of 2014 was filed by the applicant Neela Vilas Shinde. He submits that this Court after adverting to the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) and considering the fact that the probate proceedings in respect of the Will dated 20th September 2010 of late Sushilarani B. Patel are pending in this Court and now converted into Testamentary Suit No. 83 of 2015 has held that Section 213 would not bar establishing his right as an executor in his capacity to represent the estate of the deceased. The final decree could not be passed in favour of the executor without production of a probate certificate. He submits that the said chamber summons filed by the applicant herein for impleadment in the said suit in place of Sushilarani B. Patel is allowed by this Court.
10. The applicant in Chamber Summons No. 424 of 2015 was the plaintiff no. 1 in the said Suit No. 1375 of 2011. The said order dated 17th November 2017 was passed by this Court after hearing the applicant herein and also the applicant in Chamber Summons No. 424 of 2015. He submits that the said order dated 17th November 2017 passed by this Court has not been impugned by the applicant in Chamber Summons No. 424 of 2015 which was the original plaintiff in Suit No. 1375 of 2011.
11. Mr. Khare, learned counsel appearing for the applicant in Chamber Summons No. 424 of 2015, on the other hand, invited my attention to the averments made in affidavit in support of the Chamber Summons No. 424 of 2015 and would submit that the alleged Will propounded by the applicant in Chamber Summons No. 450 of 2015 is strongly disputed by his client. The said testamentary petition filed by the applicant in Chamber Summons No. 450 of 2015 has already been converted into testamentary suit and is still pending. He submits that his client is one of the legal heirs of the original plaintiff being grand daughter of the said deceased.
12. Learned counsel made an attempt to distinguish the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) on the ground that the application filed by the applicant in Chamber Summons No. 450 of 2015 cannot be considered as interlocutory stage and thus the said judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) would not assist the case of the applicant in Chamber Summons No. 450 of 2015. He submits that in that case before the Division Bench of this Court, none of the legal heirs had come forward for impleadment in place of the original party. Learned counsel for the applicant made an attempt to distinguish the judgment of the Division Bench of this Court in the case of Ramesh Sippy Vs. Suresh Gopaldas Sippy & Ors. (supra) on the similar ground that application for impleadment cannot be considered as an interlocutory stage of the proceedings.
13. Learned counsel for the applicant distinguishes the judgment in the case of Surendra Chandra Jena & Ors. (supra) on the ground that his client had prayed for impleadment of all the eight legal heirs of the original plaintiff and also has no objection to implead the applicant in Chamber Summons No. 450 of 2015 as defendant before this Court who is claiming to be an executrix of the Will of the original plaintiff.
14. Learned counsel for the applicant strongly placed reliance on Section 213 of the Hindu Succession Act, 1925 and would submit that the applicant in Chamber Summons No. 450 of 2015 who claims to be an executrix cannot establish any right in any Court of justice, unless she obtains probate of the alleged Will and Testament of the original plaintiff under which she claims a right.
15. Learned counsel for the applicant placed reliance on the order dated 3rd December 2018 in Notice of Motion No. 1659 of 2016 in Suit No. 2531 of 2004 with Chamber Summons No. 425 of 2015 which was filed by Sushilarani Baburao Patel against Chandru J. Punjabee & Ors. He submits that this Court has allowed the chamber summons filed by his client Geeta Patel D'Souza for impleadment in place of the original plaintiff i.e. Sushilarani B. Patel who was the original plaintiff also in Suit No. 341 of 2014. He submits that the rights of the applicant to represent the estate of the original plaintiff has already been recognised by this Court in the said order dated 3rd December 2018 and thus the chamber summons filed by his client for impleadment in place of the original plaintiff deserves to be allowed on the same ground on which the Chamber Summons No. 425 of 2015 in Suit No. 2531 of 2004 was allowed by this Court.
16. Mr. Kukreja, learned counsel for the applicant in Chamber Summons No. 450 of 2015 placed reliance on Section 213 of the Indian Succession Act, 1925 and submits that her client who is appointed as executrix under the said last Will and Testament of the original plaintiff is the legal representative of the said deceased and thus entitled to be impleaded as plaintiff in place of the original plaintiff. The applicant in Chamber Summons Nos. 424 of 2015 cannot be impleaded as party-plaintiff since she does not represent the estate of the said deceased.
17. Learned counsel states that he has no objection if the applicant in Chamber Summons No. 424 of 2015 is impleaded as one of the defendant. Statement is accepted.
REASONS AND CONCLUSIONS:-
18. It is the case of the applicant in Chamber Summons No. 450 of 2015 that the original plaintiff had left a Will and Testament duly registered thereby appointing four executors/executrixes including the applicant in Chamber Summons No. 450 of 2015. On the other hand, the applicant in Chamber Summons No. 424 of 2015 claims to be one of the grand daughter of the said deceased (original plaintiff). The applicant in Chamber Summons No. 424 of 2015 does not dispute that the applicant in Chamber Summons No. 450 of 2015 has already filed a testamentary petition in this Court inter alia praying for grant of probate in respect of the Will and Testament of the deceased Sushilarani B. Patel (original plaintiff). The said testamentary petition is already converted into testamentary suit and is still pending.
19. Section 2(c) of the Indian Succession Act, 1925 defines "executor" which reads thus:-
"Executor - means a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided."
Section 2(h) of the Indian Succession Act, 1925 defines "Will" which reads thus:-
"Will - means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
Sections 211 and 213 of the Indian Succession Act, 1925 read thus:-
211. Character and property of executor or administrator as such-
(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, [Sikh, Jaina or Parsi] or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.
213. Right as executor or legatee when established-
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
2[(2) This section shall not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or and shall only apply-(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the 4[ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.]"
Section 2(11) of the Code of Civil Procedure, 1908 defines "legal representative" which reads thus:-
"Legal representative - 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."
20. A conjoint reading of Sections 2(c), 2(h), 211 and 213 of the Indian Succession Act, 1925 and Section 2(11) of the Code of Civil Procedure, 1908 clearly indicates that the executor or administrator, as the case may be, of a deceased person is his legal representative for all the purposes, and all the properties of the deceased vest in him as such. It is not the case of the applicant in Chamber Summons No. 424 of 2015 that she was also appointed as one of the executrix under the said Will and Testament of the original plaintiff. The applicant in Chamber Summons No. 424 of 2015 seeks impleadment on the ground that she is one of the legal heirs of the said deceased (original plaintiff) being a grand daughter. In my view, the applicant in Chamber Summons No. 424 of 2015 cannot be considered as legal representative of the said deceased (original plaintiff) under Section 211 of the Indian Succession Act, 1925 or under Section 2(11) of the Code of Civil Procedure, 1908.
21. Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) has construed Section 213 of the Indian Succession Act, 1925 and has held that the said provision is merely a bar to a person "establishing" his right as an executor or legatee in an action. The said person cannot claim the capacity of executor or legatee so long as he is able to produce the probate certificate before the actual decree is passed. Section 213 bars only against the passing of a decree without a probate certificate and not the entertainment of the suit itself. Division Bench of this Court rejected the submissions made by the original defendant that a suit brought in the capacity of legatee or executor would fall unless the probate certificate is filed with it. Nor does it suggest that where a person is brought on record as an executor to represent the estate of a deceased plaintiff, unless he produces a probate certificate, the suit must be held to have abated.
22. It is held by the Division Bench that Section 213 is merely a bar to a person "establishing" his right as an executor or legatee in an action and does not bar an executor or legatee to claim the said capacity so long as he is able to produce the probate certificate before the actual decree is passed. The question of establishment of right as an executor is relevant only for the purpose of final decree in the suit and not at the interlocutory stage. It was necessary to show prima facie that the applicant was an executor which could not have been done by the legal heirs of the deceased (original plaintiff).
23. Division Bench of this Court held that at all intermittent stages, the insistence upon establishing the applicant's right as an executor, was neither necessary nor required. It is sufficient that he showed that he had a prima facie right to that character. In my view, the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) squarely applies to the facts of this case. I am respectfully bound by the said judgment.
24. The applicant in Chamber Summons No. 450 of 2015 claims to be one of the executrix of the last Will and Testament of the said deceased (original plaintiff) and has already filed testamentary petition for grant of probate of the said deceased. In my view, there is no merit in the submission of the learned counsel for the applicant in Chamber Summons No. 424 of 2015 that the judgment of the Division bench of this Court in the case of Ramniklal Amritlal Shah (supra) is distinguishable on the ground that the application for impleadment filed by the applicant in Chamber Summons No. 450 of 2015 cannot be considered as an application at intermittent stage. If the arguments of the learned counsel for the applicant in Chamber Summons No. 424 of 2015 is accepted, no pending proceedings either filed by the said deceased testator or the proceedings in which such deceased testator was the defendant or the respondent can be pursued by the legal representative who may be an executor/executrix of the said Will of the deceased till probate or Letters of Administration is produced by such executor/executrix.
25. In my view, the executrix who is the legal representative of the deceased testator is entitled to represent the estate of the said deceased and is entitled to file an application for impleadment and for setting aside an order of abatement, if any, without production of probate certificate or Letters of Administration, as the case may be. In my view, the Court cannot pass a decree or final order in favour of such executor/ executrix or legal representative claiming right under the alleged Will till such right is established in testamentary proceedings or any other proceedings and such grant of probate or Letters of Administration is produced before such Court in which the application for impleadment in place of the original testator or testatrix is made and is allowed. There is no bar against an executor in proceedings with the suit or other proceedings filed by the testator or against such testator including making an application for impleadment in place of testator without production of probate certificate or Letters of Administration. Production of the probate would be required before a decree or final order is passed in such proceedings.
26. The judgment of the Division bench of this Court in the case of Ramniklal Amritlal Shah (supra) has been followed by the learned Single Judge of this Court in Chamber Summons No. 323 of 2014 in Suit No. 1375 of 2011 which was admittedly filed by the applicant in Chamber Summons No. 450 of 2015 and her impleadment was allowed in place of the original defendant i.e. Sushilarani Baburao Patel (original plaintiff) in Suit No. 341 of 2014.
27. Division Bench of this Court in the case of Ramesh Sippy Vs. Suresh Gopaldas Sippy & Ors. (supra) has after adverting to the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) and several other judgments has allowed an executor to proceed with the proceedings filed by the original testator without obtaining probate at that stage and merely on the statement made by the applicant that he would file a petition for probate within one month from the date of the said order. The judgment of the Division Bench would squarely apply to the facts of this case. I am respectfully bound by the said judgment.
28. Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) after construing Section 211 of the Indian Succession Act, 1925 and Order XXII Rule 10 of the Code of Civil Procedure, 1908 held that the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order XXII, Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the title of the testator stands vested in the executor on the his death. In my view, the judgment of the Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) would squarely apply to the facts of this case. I am respectfully agree with the views expressed by the Orissa High Court in the said judgment.
29. Order XXII Rule 3 read with Order XXII Rule 1 of the Code of Civil Procedure, 1908 clearly indicates that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Even if the sole plaintiff dies and if the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under Section 2(11) of the Code of Civil Procedure, 1908, since an executor/executrix represents the estate of the deceased person, he is a legal representative within the meaning off Section 2(11) of the Code of Civil Procedure, 1908 and is thus entitled to sue or is sued under Section 211 of the Indian Succession Act, 1925.
30. The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. In my view, since the executor/executrix has alleged to have been appointed under the last Will and Testament of the original plaintiff, she being a legal representative of the said estate and the property forming part of the estate vests in her. The right to sue survives considering the nature of the relief sought in the plaint and thus she deserves to be impleaded as party-plaintiff in place of the original plaintiff.
31. This Court in Chamber Summons No. 323 of 2014 which was admittedly filed by the applicant in Chamber Summons No. 424 of 2015 against Sushilarani B. Patel (original plaintiff) has rejected the submission of the applicant in Chamber Summons No. 424 of 2015 while opposing the chamber summons filed by the applicant in Chamber Summons No. 450 of 2015 and has impleaded the said applicant as party-defendant in place of the said Sushilarani B. Patel based on her claim as an executrix and having filed the testamentary petition which is converted into testamentary suit No. 84 of 2015. The said judgment of this Court squarely applies to the facts of this case and is binding on the parties as well as this Court.
32. In so far as the order dated 3rd December 2018 passed by this Court in Notice of Motion No. 1659 of 2016 in Suit No. 2531 of 2004 with Chamber Summons No. 425 of 2015 in the case of Sushilarani Baburao Patel against Chandru J. Punjabee & Ors. relied upon by the learned counsel for the applicant in Chamber Summons No. 424 of 2015 which was filed by the applicant in Chamber Summons No. 424 of 2015 herein is concerned, a perusal of the said order clearly indicates that though the applicant in the said Notice of Motion No. 1659 of 2016 in Suit No. 2531 of 2004 with Chamber Summons No. 425 of 2015 who is the applicant in Chamber Summons No. 424 of 2015 in Suit No. 341 of 2014 was fully aware of the order dated 17th November 2017 passed by this Court in Chamber Summons No. 323 of 2017 which was filed by Neela Vilas Shinde in Chamber Summons No. 424 of 2015 allowing her chamber summons in the said suit filed by the applicant (the applicant in Chamber Summons No. 424 of 2015), the said order was not brought to the notice of this Court when the said order dated 3rd December 2018 was passed by this Court allowing the said chamber summons.
33. Admittedly, the applicant in Chamber Summons No. 450 of 2015 was not present before this Court when the said Notice of Motion No. 1659 of 2016 and Chamber Summons No. 425 of 2015 were heard by this Court and were allowed in favour of the applicant Geeta Patel D'Souza. In my view, the said order dated 3rd December 2018 which was passed after the order dated 17th November 2017 allowing the application for impleadment of the applicant in Chamber Summons No. 450 of 2015 would not assist the case of the applicant in Chamber Summons No. 424 of 2015.
34. Learned counsel for the applicant in Chamber Summons No. 450 of 2015 has no objection if the applicant in Chamber Summons No. 424 of 2015 is impleaded as defendant in Suit No. 341 of 2014. Statement made by the learned counsel for the applicant is accepted. In my view, the applicant in Chamber Summons No. 450 of 2015 has to be impleaded as plaintiff in place of the original plaintiff and to represent the estate of the deceased (original plaintiff). In my view, there is no merit in the chamber summons No. 424 of 2015 filed by the applicant Geeta Patel D'Souza. Chamber Summons No. 450 of 2015 deserves to be allowed.
35. I therefore pass the following order:-
(i) Chamber Summons No. 424 of 2015 is dismissed.
(ii) Chamber Summons No. 450 of 2015 is allowed in terms of prayer clauses (a) to (c) and (e). The applicant is also directed to implead Geeta Patel D'Souza as defendant no. 5.
(iii) Amendment to be carried out within two weeks from the date of this order. Amended copy of the plaint shall be served upon the defendants including newly added party within two weeks from the date of carrying out amendment.
(iv) It is made clear that this Court shall not pass a decree in Suit No. 341 of 2014 till the applicant produces grant of probate in respect of the alleged Will and Testament dated 20th September 2010 before this Court.
(v) There shall be no order as to costs.
36. At this stage, Mr. Khare, learned counsel appearing for the applicant in Chamber Summons No. 424 of 2015 seeks stay of the operation of this order. The applicant in Chamber Summons No. 450 of 2015 is directed not to carry amendment to the plaint for a period of two weeks from today.
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