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2005 DIGILAW 2303 (ALL)

Lalit Kumar Jauhari (D) through L. Rs. v. A. D. J.

2005-11-23

SHISHIR KUMAR

body2005
SHISHIR KUMAR, J. ( 1 ) BY means of the present writ petition the petitioners have approached this Court for issuing a writ of certiorari quashing the order dated 14. 3. 1996, Annexure-3 to the writ petition and order dated 27. 11. 2000, Annexure-4 to the writ petition. ( 2 ) THE facts arising out of the present writ petition are that one Ram Swaroop Jauhari (now deceased) filed Suit No. 433 of 1963 against the tenant seeking eviction and arrears of rent. The said suit was decreed on 23. 2. 1968. The aforesaid decree has been confirmed by the appellate court and the Second Appeal No. 1409 of 1973 was also dismissed by the judgment and decree dated 24. 3. 1979. After dismissal of the second appeal, an execution proceeding was initiated which was numbered as Execution Case No. 19 of 1980. The defendant-respondents filed an objection under Section 47, C. P. C. , which was rejected by the executing court on 13. 10. 1983. A revision was preferred and the same is still pending. During the pendency of the revision, the decree-holder namely Sri Ram Swaroop Jauhari died on 25. 5. 1989. On 28. 8. 1989, an application supported by an affidavit was submitted by the petitioners claiming to be the legal heirs of Ram swaroop Jauhari on the basis of the Will executed in his favour on 28. 2. 1989. Another application was filed by one Smt. Sheelawati, respondent No. 3 claiming herself to be the heir of ram Swaroop Jauhari (since deceased) on the basis of the Will dated 23. 5. 1989. An objection was taken by the petitioners and on the basis of the clear dispute between the two persons regarding legal heirs of the deceased, the court below has passed an order remitting the issue to the trial court to decide the aforesaid question after affording an opportunity to the parties. It has been submitted that the attesting witnesses of both the Wills were examined and the handwriting expert was also produced. It is alleged that the Will dated 23. 5. 1989, which was produced before the Sub-Registrar, the Sub-Registrar had refused to register the same vide his order dated 21. 7. 1989. The respondents aggrieved by the aforesaid order filed an appeal and the appeal was allowed and the Will dated 23. 5. 1989, executed by Ram Swaroop Jauhari was registered. It is alleged that the Will dated 23. 5. 1989, which was produced before the Sub-Registrar, the Sub-Registrar had refused to register the same vide his order dated 21. 7. 1989. The respondents aggrieved by the aforesaid order filed an appeal and the appeal was allowed and the Will dated 23. 5. 1989, executed by Ram Swaroop Jauhari was registered. The trial court decided the issue in favour of Smt. Sheelawati on the basis of the Will dated 23. 5. 1989 and directed that she should be impleaded in place of the deceased and vide order dated 27. 11. 2000, the court below has held that Smt. Sheelawati is the legal heir and representative of the deceased. Aggrieved by the aforesaid order the petitioners have filed a revision and the court below vide its order dated 27. 11. 2000 dismissed the revision. Aggrieved by the aforesaid order, the petitioners have approached this Court. ( 3 ) THE writ petition was entertained and an interim order was granted in favour of the petitioners and further proceedings in Revision No. 141 of 1983 was stayed by the order dated 23. 11. 2000. ( 4 ) THE counsel for the petitioners submit that in view of the provisions of Order XXII, Rule 5, c. P. C. , it was the duty of the court to allow the applications filed by the parties as the legal representatives and to decide the same on merits. The petitioners have placed reliance on the provision of Rule 5 and has submitted that where a question arises whether any person is or is not the legal representative of the deceased, such questions shall be determined by the court and if such questions arise before appellate court, the court below was obliged to remit the matter to the trial court for a decision. Order XXII, Rule 5 is reproduced below: determination of question as to legal representative.--Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: provided that where such question arises before an appellate court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the appellate court may take the same into consideration in determining the question. ( 5 ) RELIANCE has been placed upon a judgment in S. Charan Jit and Ors. v. Bharatinder Singh and ors. AIR1988 Pandh 123 , and the petitioners have placed reliance upon para 3 of the said judgment and have submitted that the determination on the point as to who is the legal representative of the deceased, the plaintiff or the defendant under Order XXII, Rule 5, c. P. C. is only for the purpose of bringing the legal representative on record for conducting those legal proceedings only and does not operate as res judicata and inter se dispute between the rival legal representative has to be tried and decided in separate proceeding. The counsel for the petitioner has submitted that the aforesaid judgment is fully applicable in the present case as the same is based on a Full Bench decision of the Patna and Haryana High Court in Mohinder Kaur v. Piara Singh AIR1981 Pandh 130. ( 6 ) ANOTHER judgment on which reliance has been placed by the counsel for the petitioners is Mrs. Annupam Pruthi and Ors. v. Smt. Rajen Bal and Ors. AIR1988 SC 2041 , JT1988 (3 )SC 505 , 1988 (2 )SCALE564 , (1989 )1 SCC147 , 1988 (2 )UJ414 (SC ), and the petitioners have placed reliance on para 4 of the said judgment. As such, the counsel submitted that there was a registered will in favour of the petitioners dated 28. 2. 1989 executed by the deceased. AIR1988 SC 2041 , JT1988 (3 )SC 505 , 1988 (2 )SCALE564 , (1989 )1 SCC147 , 1988 (2 )UJ414 (SC ), and the petitioners have placed reliance on para 4 of the said judgment. As such, the counsel submitted that there was a registered will in favour of the petitioners dated 28. 2. 1989 executed by the deceased. Therefore, they have right to be impleaded as one of the parties to the execution proceeding and in view of the judgment cited by the petitioners it has been submitted that they should have been impleaded on the basis of the Will and rights of the parties should have been decided regarding the genuineness of the Will. On the other hand Sri Sharad Malviya who appears on behalf of the respondents has submitted that as there were two Wills, one was executed on 28. 2. 1989 and the other was executed on 23. 5. 1989, in favour of the daughter, therefore, according to the legal position, the subsequent Will shall prevail and if the person in whose favour the Will was executed on 28. 2. 1989 is aggrieved, he can approach the appropriate forum for adjudicating his rights regarding the genuineness of the same. Under the law presumption is that subsequent Will executed by the executor is to be accepted as genuine Will unless and until proved otherwise. It has also been submitted on behalf of the respondents that the executor of the Will, which was executed on 23. 5. 1989, a clear recital to this effect has been mentioned that the earlier Will which was executed in favour of the petitioners stood cancelled and the new right has come to Smt. Sheelawati. In such circumstances, the appellate authority has directed to register the Will dated 23. 5. 1989. It has further been submitted on behalf of the respondents that if the petitioners want to adjudicate their rights on the basis of the Will dated 28. 2. 1989, they can file a civil suit and the genuineness of the two Wills executed by Ram swaroop Jauhari will be adjudicated on the basis of the signatures as well as on the basis of the witnesses of both the Wills. ( 7 ) RELIANCE has been placed by the respondents on a Division Bench judgment of this Court in syed Ashfaq Husain and Ors. ( 7 ) RELIANCE has been placed by the respondents on a Division Bench judgment of this Court in syed Ashfaq Husain and Ors. v. Deputy Director of Consolidation 1970 ALJ 1167, and has referred to para 5 of the said judgment. The same is reproduced below: 5. So far as the first point is concerned, reliance had been placed on behalf of the appellants before the learned single Judge on a Bench decision of the Court in Raj Bahadur v. Narayan prasad in which it had been laid down that once the question as to a legal representative is decided by a Court under Order XXII, Rule 5, C. P. C. , it cannot be re-adjudicated upon in a regular suit separately. Even as it is, this decision goes no further than laying down that the decision arrived at by a Court under Order XXII, Rule 5, C. P. C. as to who is the legal representative of a deceased party to a suit before it is final for the purpose and a regular suit cannot be filed and adjudicated upon to decide the same point as to who is the legal representative of the deceased party to a pending suit. The case is wholly distinguishable for the purposes of the proceedings in which this decision is sought to be relied upon. The consolidation authorities were not called upon to determine as to who was the legal representative of Kazim husaln for the purposes of the suit in which it had been decided that the appellants were his legal representatives and not some other claimants. The learned single Judge has cited a number of decisions of this very Court as also one Full Bench decision of the erstwhile Chief Court of oudh, in all of which it has been clearly laid down that a decision under Order XXII, Rule 5, c. P. C. did not operate as res judicata for the purposes of any other suit in which a similar question might arise or for the purpose of inheritance. The position, in our opinion is quite clear and admits of no doubt for us to reconsider the matter. The position, in our opinion is quite clear and admits of no doubt for us to reconsider the matter. Rule 5 of Order XXII, C. P. C. lays down that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant such question shall be determined by the Court. Under Order XXII if a party to a suit dies and the right to sue does not survive to the surviving plaintiffs or plaintiff alone in the case of the death of the plaintiff or Jt does not survive against the surviving defendant or defendants alone where a defendant dies and, again, where the sole plaintiff or the sole defendant dies, necessity arises of bringing on the record the legal representatives of the deceased plaintiff or the deceased defendant as the case may be. For that purpose Rule 5 confers power on the Court before which the suit is pending to determine as to whether any person is or is not the legal representative of the deceased plaintiff or the defendant. The determination is obviously meant to be for that limited purpose and is not the determination of the claims of persons to be the heirs of a deceased person for all time to come and for all purposes. It may here be also pointed out that under the definition of legal representative as given in Clause (11) of Section 2 of the Code of Civil Procedure, even a person who intermeddles with the estate of the deceased is included in the definition and even such a person may be held to be a legal representative under Rule 5 of Order XXII, C. P. C. even though he may not be an heir at all. Learned Counsel for the appellants has cited also before us a decision of the supreme Court which was not cited before the learned single Judge. It is Gulabchand Chhotalal parikh v. State of Gujarat What is laid down in this decision is that a decision in an earlier writ petition on merits operates as res judicata on the general principles of res judicata for the purposes of his subsequent suit between the same parties involving the same questions and the same reliefs. It is Gulabchand Chhotalal parikh v. State of Gujarat What is laid down in this decision is that a decision in an earlier writ petition on merits operates as res judicata on the general principles of res judicata for the purposes of his subsequent suit between the same parties involving the same questions and the same reliefs. The very qualification that the suit should be for the same reliefs limits the application of the principle laid down by the Supreme Court. The proceedings before the consolidation authorities were not for the same reliefs which were the reliefs claimed in the proceedings under Rule 5 of Order XXII, C. P. C. in the suit filed by Kazim Husain. It will thus appear that nothing new has been brought before us to hold contrary to the view taken by the learned single Judge on the first point. ( 8 ) IN view of the aforesaid judgment, the respondents submitted that there is no illegality in the order passed by the court below and if the petitioners want to adjudicate their right on the basis of the Will dated 28. 2. 1989, they can approach the appropriate forum for their rights and the writ petition is devoid of merit. ( 9 ) I have heard the learned Counsel for the petitioners and Sri Sharad Malviya, learned Counsel for the respondent and have perused the record. The provisions of Order XXII, Rule 5, C. P. C. is very clear. The Court has given power that in case any question arising regarding the legal representative is before the appellate court, an issue may be framed and be sent to the trial court for a decision. In the present case also the revisional court has framed an issue and has directed the trial court to decide the same and the trial court has decided in favour of the respondent. It is well-settled now that the execution court cannot go behind the decree. The executing court can only execute the decree in toto and the execution court cannot adjudicate the rights of the parties. As in the present case two persons are claiming to be the heirs and legal representatives on the basis of the Wills dated 28. 2. 1989 and 23. 5. The executing court can only execute the decree in toto and the execution court cannot adjudicate the rights of the parties. As in the present case two persons are claiming to be the heirs and legal representatives on the basis of the Wills dated 28. 2. 1989 and 23. 5. 1989, the issue was framed and the trial court has decided and has come prima facie to the conclusion that the respondents are the legal representatives on the basis of the Will dated 23. 5. 1989 and as such allowed the application. In my opinion if the petitioners are claiming any right on the basis of the Will executed in their favour, they can approach the proper forum for adjudication of their rights on the basis of the will after leading the evidence regarding genuineness of the Will. It is always presumption in law that if there are two Wills, the subsequent Will shall be considered to be genuine and in the present case, the deceased has clearly mentioned in the subsequent Will that the earlier Will executed in favour of the petitioners be treated to be cancelled. Therefore, the trial court has taken into consideration the aforesaid fact and permitted the respondents to be substituted as legal heirs of the deceased. Regarding contention of the petitioners that in view of the provisions of Order XXII, Rule 5, C. P. C. , the rights of the parties have been decided, this contention cannot be accepted. It is open for the petitioners to establish their right on the basis of certain documents before a competent court of law. The execution proceeding is a summary proceeding and the rights of the parties on the basis of certain documents cannot be adjudicated. ( 10 ) IN view of the aforesaid fact, I find no illegality in the orders passed by the court below. The present writ petition is devoid of merit and is dismissed. The interim order is discharged. Costs on parties. . .