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2005 DIGILAW 2578 (RAJ)

Madan Lal v. Narpandra Prakash Sharma

2005-09-26

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-Challenging the impugned order dated 11.07.2000 passed upon the petitioners application under Section 47, read with Section 151, CPC by the learned Civil Judge (Jr. Dn.), Udaipur City (North), the petitioner has filed the present revision petition. 2. I have heard learned Counsel for the parties and perused the material on record. 3. It is contended by learned Counsel for the petitioner that earlier a suit was filed by Mahant Radha Krishan Das which was decreed in his favour for ejectment on 211.1978. Against the Judgment and decree the defendant-petitioner went in appeal which was dismissed by the learned District Judge, Udaipur on 19.05.1981. 4. During the pendency of S.B. Civil Second Appeal No. 130/1981, preferred by the defendant-petitioner, the decree-holder plaintiff Mahant Radha Krishan Das died and, therefore, defendant-petitioner moved application under Order 22 Rule 4, CPC in the second appeal. Holding that the name of the proposed Legal representative viz., Shri Nipurt Kumar Sharma @ N.P. Sharma does not fall within the definition of legal representative as defined under Sub-section (11) of Section 2 of Civil Procedure Code, the learned Single Judge of this Court rejected the application and, consequently, dismissed the second appeal as having abated by order dated 16.02.1999. However, the learned Single Judge observed that the appellant would be at liberty to move a proper application for setting aside the abatement in accordance with law, if so advised. 5. Learned Counsel for the petitioner contended that it is clear from the facts in the case that the respondent Nripendra Prakash Sharma is not legal representative of the deceased decree-holder Mahant Radha Krishan Das and, therefore, the execution petition could not be moved by the respondent claiming to be the decree-holder in succession. He contended that the respondent did not disclose in the execution petition as to in what capacity he is entitled to execute the decree passed in favour of deceased Mahant Radha Krishan Das. Learned Counsel for the petitioner argued that petitioners objection under Section 47, read with Section 151, CPC was in respect of status of the execution petitioner Nripendra Prakash Sharma for the purposes of claiming execution of the decree and, therefore, the learned executing Court was under obligation to decide the same in accordance with law after appreciation of evidence. 6. Learned Counsel for the petitioner argued that petitioners objection under Section 47, read with Section 151, CPC was in respect of status of the execution petitioner Nripendra Prakash Sharma for the purposes of claiming execution of the decree and, therefore, the learned executing Court was under obligation to decide the same in accordance with law after appreciation of evidence. 6. Counsel for the petitioner next contended that even if the respondent claims to be successor in title by virtue of will executed in his favour by the late decree-holder mahant Radha Krishan Das, right as executor under the so called will would not be available without obtaining probate from a Court of competent jurisdiction. He contended that the executing Court has committed serious illegality in exercise of jurisdiction while rejecting the petitioners application under Section 47, read with Section 151, CPC inasmuch as the respondent cannot be entitled to get the decree executed in the absence of getting probate in his favour. He further contended that the Judgment of this Court in the second appeal bound the parties on the principle of res judicata and, therein, the Honble Court disbelieved the respondent to be the legal representative of deceased decree-holder Mahant Radha Krishan Das. He argued that the respondent had contested the application of the petitioner under Order 22 Rule 4, CPC in the second appeal instead of admitting himself to be the legal representative of the deceased decree-holder. 7. Learned Counsel for the petitioner lastly contended that any question raised under Section 47, CPC is required to be adjudicated by the executing Court itself by giving opportunity to both sides to lead evidence. He argued that the learned Court below rejected his application without making any enquiry as envisaged under Order 22 Rule 5, CPC. 8. On the other hand, learned Counsel for the respondent urged that the application filed by the petitioner in the second appeal under Order 22 Rule 4, CPC was rejected by this Court only because the petitioner did not support the application with specific averments with regard to the religious tenets and how the Mahant was to be nominated in a particular religious denomination to which the deceased decree-holder Mahant Radha Krishan Das belonged. He contended that in the said application, the petitioner himself claimed Nripendra Prakash Sharma to be the legal representative of the deceased decree-holder and with an intention to substitute his name in place of the deceased decree-holder moved the said application under Order 22 Rule 4, CPC. While dismissing the second appeal as having abated the Court reserved liberty to the petitioner to move proper application for setting aside the abatement in accordance with law. He argued that the petitioner did not make proper application as observed by the Court and only in the execution proceedings raised objection under Section 47, CPC. Learned Counsel for the respondent argued that despite Courts observation, the non-action on the part of the petitioner to move proper application for setting aside abatement only shows acquiescence and, therefore, it is only strategum litigation to raise objection under Section 47, CPC in the execution proceedings. He submitted that the executing Court rightly decided the question raised under Section 47, CPC and accordingly rejected the application. 9. On the question of res judicata, it may be noted that in the Judgment dated 16.02.1999 in the second appeal filed by the petitioner against the Judgment and decree, this Court did not decide the appeal on merits. The appeal was dismissed as having abated on account of the failure of the present petitioner to move application for substitution under Order 22 Rule 4, CPC in consonance with the requirements of law. The Court simply rejected the application on the ground of non-disclosure of necessary facts. When the Court did not reach a specific conclusion on the question of law or fact on an issue while dismissing the appeal, it cannot be said that the Judgment in the second appeal in between the parties shall operate res judicata. 10. In the revision petition, the petitioner has vehemently argued that the respondent cannot be entitled to claim execution of the decree under the Will executed in his favour by the late Mahant Radha Krishan Das without obtaining probate of the Will from a Court of competent jurisdiction. It is settled legal position that obtaining probate is not necessary in Rajasthan under Section 213 of the Indian Succession Act. It is settled legal position that obtaining probate is not necessary in Rajasthan under Section 213 of the Indian Succession Act. Sub-section (2) of Section 213 of the Indian Succession Act, 1925 specifically lays down that the section shall only apply 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. Application of Section 57 is attracted upon territorial classification which does not include Rajasthan. It is thus obvious that once a case is excluded from the application of Section 57, application of Section 213 will not be attracted. 11. In Clarence Pais & Ors. vs. Union of India, 2001 (4) SCC 325 , while dealing with the scope of Section 213 of the Indian Succession Act, 1925, their Lordships of the Supreme Court held as under: - “The scope of Section 213 (1) of the Act is that it prohibits recognition of rights as an executor or legatee under a Will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of Forum. Section 213 (2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne in mind to understand the exact scope of this section. The bar that is imposed by this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The section does not prohibit the Will being looked into for purposes other than those mentioned in the section. The bar to the establishment of the right is only for its establishment in a Court of justice and not its being referred to in other proceedings before administrative or other Tribunals. The section is a bar to everyone claiming under a Will, whether as a plaintiff or defendant, if no probate or letters of administration are granted. The bar to the establishment of the right is only for its establishment in a Court of justice and not its being referred to in other proceedings before administrative or other Tribunals. The section is a bar to everyone claiming under a Will, whether as a plaintiff or defendant, if no probate or letters of administration are granted. The effect of Section 213 (2) of the Act is that the requirement of probate or other representation mentioned in Sub-section (1) for the purpose of establishing the right as an executor or legatee in a Court is made inapplicable in case of a Will made by Muhammadans and in the case of Will coming under Section 57 (c) of the Act, Section 57 (c) of the Act applies to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of January, 1927 which does not relate to immovable property situate within the territory formerly subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect of property within those territories. No probate is necessary in the case of Wills by Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, the section has been made applicable to Wills made by Parsis dying after the commencement of the 1962 Act. A combined reading of Sections 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57 (a) and (b), Sub-section (2) of Section 213 of the Act applies and Sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention putforth on behalf of the petitioners that Section 213 (1) of the Act is applicable only to Christians and not to any other religion is not correct.” 12. The result is that the contention putforth on behalf of the petitioners that Section 213 (1) of the Act is applicable only to Christians and not to any other religion is not correct.” 12. Since, the registered Will under which the respondent claimed execution of the decree passed in favour of the deceased decree-holder Mahant Radha Krishan Das is not required to be probated for execution, the learned trial Court was justified to hold that once the defendant himself claimed Nripendra Prakash Sharma @ N.P. Sharma to be the legal representative of the deceased plaintiff decree-holder in the second appeal before the High Court he is now estopped from raising such objections. In this view of the matter, in my considered opinion, the trial Court rightly exercised jurisdiction and rejected the objections under Section 47, CPC. There is thus no force in the revision petition. 13. Obviously, the aforesaid conclusion resuscitates the question of abatement of the second appeal preferred by the petitioner before this Court. While dismissing the second appeal as having abated, the learned Single Judge was not satisfied with the information placed on record regarding Shri N.P. Sharma being Legal representative of late mahant Radha Krishan Das. Now after the disclosure of the fact that Shri N.P. Sharma is pressing execution of the decree claiming himself to be the legal heir of late Mahant Radha Krishan Das under the Will executed in his favour, this Court cannot lose sight of the fact that the petitioner herein suttered set back in the second appeal only because execution-petitioner N.P. Sharam shirked to disclosed before the Court in the second appeal to be the Legal representative of late Mahant Radha Krishan Das under the registered Will executed in his favour with the result that the second appeal was dismissed as having abated . With this revision petition failing on the ground that the Court is satisfied with the claim of the respondent to have the decree executed being the legal heir of late Mahant Radha Krishan Das under the registered Will, liberty must be reserved to the petitioner to move appropriate application in the second appeal for setting aside the abatement in these facts and circumstances. Therefore, the petitioner is granted liberty to move appropriate application, if he so chooses and is so advised, for setting aside the abatement in S.B. Civil Second Appeal No. 130/1981, dismissed as having abated on 16.02.1999, within a period of one month from the date of this order. Till then, interim stay granted in this revision petition dated 02.08.2000, confirmed by order dated 012.2003, shall continue. 14. The revision petition is accordingly dismissed.