Will Cannot Operate Without Probate; Claim Under Time-Barred Unprobated Will Not Legally Tenable: Rajasthan High Court Quashes Impleadment of Claimants

“The Will was redundant… Respondent Nos.8, 9 and 10 had no semblance of any interest in the suit property” —  Rajasthan High Court at Jodhpur  struck down the impleadment of individuals claiming rights in a civil suit property through a Will that had neither been probated nor acted upon within the limitation period. The Court held that such impleadment under Order I Rule 10(2) CPC was legally unjustified and constituted an abuse of process of law. The trial court’s order allowing their inclusion was accordingly quashed, restoring the original scope of the title dispute initiated by the Trust.

The dispute pertained to a vast property at Vallabh Garden, Bikaner, originally granted to the late Maharaja Sadul Singh Ji in 1948. Upon his death, the property devolved upon his son Dr. Karni Singh Ji, who by gift deed in 1959 transferred it to his mother Rajmata Sudarshana Kumari Ji. In 1971, she executed a Will creating the Rajmata Bagheli Ji Sudarshana Kumari Ji Trust. The probate of this Will was granted in 1974, and the Trust was formally registered under the Rajasthan Public Trust Act.

The legal controversy intensified when Rajmata Sushila Kumari Ji, to whom a portion of the property was allocated in the mother’s Will, explicitly refused to accept the property, as evidenced by her letter dated 06.07.1997, wherein she wrote: “I am unable to accept the offer as I do not want to take the said property.”

Following her refusal, the Trust remained in full control of the property and even faced adverse possession suits from caretakers who were later sued by the Trust to reclaim possession. While these suits were pending, three individuals — Vishvaraj Singh, Nirupma, and Trivikrama Kumari (respondent nos. 8, 9, and 10) — moved applications under Order I Rule 10(2) CPC claiming a share based on an alleged Will executed by Rajmata Sushila Kumari Ji in 1987.

The central legal question was whether these individuals, asserting rights via an unprobated Will nearly four decades old, could be joined as defendants in the Trust’s title and possession suits.

Justice Birendra Kumar firmly held that they “were neither necessary nor proper parties”, emphasizing that: “The whole object of respondent Nos.8, 9 and 10 by getting impleadment is to prosecute their own cause of action i.e., establish claim on the basis of unprobated Will.”

The Court further held that an effective decree could be passed without their presence, noting: “In the case on hand, both the suits… can be decided in absence of respondent Nos.8, 9 and 10 and effective decree can be passed, therefore, the aforesaid respondents are not necessary party.”

Rejecting the respondents’ justification for impleadment, the Court clarified: “A Will does not operate unless it is probated by the Competent Court… their impleadment was just to get their own cause agitated, which is barred by limitation otherwise.”

The Court also cited the three-year limitation period under Article 137 of the Limitation Act, holding that: “Prayer for probate and letters of administration is hopelessly barred by limitation of several years after death of Rajmata Sushila Kumari Ji.”

The High Court referred to binding precedent, including Kunvarjeet Singh Khandpur v. Kuldeep Kaur and Krishan Kumar Sharma v. Rajesh Kumar Sharma, to affirm that Article 137 applied to probate petitions, and the respondents’ remedy under succession law had long since lapsed.

The Court extensively relied on the Supreme Court’s exposition in Mumbai International Airport v. Regency Hotels (2010) and Ramesh Hirachand Kundanmal v. MCGM, reiterating: “The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give... but that he should be bound by the result of the action.”

It was further observed that: “By mere impleadment, it cannot be argued that presence of respondent Nos.8, 9 and 10 would affect the merit of the case.”

Calling out the trial court for expanding the litigation unnecessarily, the High Court ruled that: “The impleadment would introduce a new cause of action or the parties seeking for impleadment come with an object to prosecute his own cause of action.”

In a clear and well-reasoned judgment, the Rajasthan High Court has reaffirmed foundational principles of civil procedure and succession law. Where the testator herself had refused to accept the property, and her Will was never probated within limitation, third parties could not claim to inherit through such a document.

The Court decisively ruled: “Addition of respondent Nos.8, 9 and 10 led to abuse of process of law resulting in manifest miscarriage of justice.”

The impugned order was set aside, and the trial court directed to expedite proceedings in the original suits brought by the Trust.

Date of Decision: 08 May 2025