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2003 DIGILAW 884 (PNJ)

Daljit Singh v. Bhupinder Singh

2003-07-03

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the judgment dated 19.4.2003 passed by the Civil Judge (Jr. Division), Hoshiarpur allowing the application of respondent-Bhupinder Singh in which prayer was made for impleadihg him as legal heir of the plaintiff Raghbir Singh who is stated to have died on 21.12.2002 at Hoshiarpur. The basis of allowing the application is the Will dated 8.10.1997 executed in favour of the respondent. Defendant-petitioner is son of Raghbir Singh who had executed a Will in favour of Bhupinder Singh, respondent. The application has been allowed principally on the ground that Raghbir Singh himself appeared in the witness box as PW2 during the pendency of the suit and stated that he executed a Will in favour of Bhupinder Singh, respondent. He had also stated that the earlier Will in favour of the two sons was cancelled. 2. Mr. Parveen Kumar, learned counsel for the defendant-appellant has argued that once the Will is accepted as the basis for impleading the beneficiary of the Will as legal representative of the testator then, the right of the defendant-petitioner would be adversely affected. According to the learned counsel the issue with regard to the heir of the deceased Raghbir Singh, plaintiff stand fore-closed and no proper adjudication on the right of the defendant-petitioner could take place. 3. I have thoughtfully considered the submissions made by the learned counsel and regret my inability to accept the same because in an application filed under Order 22 Rules 3 and 11 of the Code, the genuineness of the Will is not be finally determined as has been held by this Court in Chanan Singh v. Jaswant Singh, 1 (1989-2)96 P.L.R. 165, wherein this Court held that inquiry in the matter of determination of legal representative under Order 22 Rule 5 of the Code is summary in nature and would not finally determine the genuinessess of the Will. Moreover, the defendant-petitioner is the son of the deceased plaintiff Raghbir Singh. In some what similar circumstances the Supreme Court in the case of Naraindas Lilaram Adnani v. Narsingdas Naraindas Adnani, 1995 Suppl.(1) S.C.C. 312, allowed the impleadment of the beneficiary, of the Will because the son of the testator was already a party before the Supreme Court. Moreover, the defendant-petitioner is the son of the deceased plaintiff Raghbir Singh. In some what similar circumstances the Supreme Court in the case of Naraindas Lilaram Adnani v. Narsingdas Naraindas Adnani, 1995 Suppl.(1) S.C.C. 312, allowed the impleadment of the beneficiary, of the Will because the son of the testator was already a party before the Supreme Court. In this regard reference may be made to the observation made in para 2 of that judgment which are as under: "The Will, however, has not been probated so far. In view of Section 213 of the Indian Succession Act, respondent No. 9 cannot, therefore, be impleaded in his capacity as the executor of the Will of the deceased-appellant. It is, however, an accepted position that the legal representations of the original appellant are already on record. We, therefore, do not see any difficulty in transposing respondent No. 9, one of the legal representatives of the deceased-appellant, as the appellant. For sake of convenience, however, the original appellant will be hereinafter referred to as the appellant and the transposed appellant will be referred to as Respondent No. 9" 4. The view taken by the Supreme Court fully supports the order passed by the Civil Judge and the same is liable to be upheld and the contention raised by the learned counsel deserves to be rejected. For the reasons recorded above, this petition fails and the same is dismissed. R.M.S.