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2006 DIGILAW 341 (CHH)

SAKHARAM (DEAD), KALABAI v. CHINTARAM

2006-06-29

S.K.SINHA

body2006
ORDER As per Hon'ble Shri Sunil Kumar Sinha, J. 1. This Revision is directed against the order dated 31/7/1995 passed in Civil Appeal No.3-A/1987 by the Second Additional District Judge Drug. 2. The brief facts are that the plaintiff namely Smt. Sato Bai, since deceased, filed a Civil Suit No.9-A/1982 against the defendants Sakhararn, Chherkin and Budhyarin Bai, the petitioners herein, in the Court of Civil Judge Class-II, Balod for declaration that the defendants are not the owners of the suit lands of Schedule - 'A' and 'B' of the plaint on the basis of gift deed dated 08.06. 1973, which was a conditional gift, as they violated the conditions of the said document. She also prayed for recovery of possession alongwith damages. The Trial Court dismissed the suit on 18/8/1987. Against the said judgment and decree, the plaintiff filed an appeal before the Lower Appellate Court. The plaintiff died during the pendency of the appeal. After her death, the non-applicant No.1 - Chintaram filed an application for substituting his name in place of the plaintiff/appellant under Order 22 Rule 3, 11 CPC. He pleaded that the deceased plaintiff had executed a will of the aforesaid property in his favour and he represents the estate of the deceased. This application was allowed and he was directed to be substituted in place of the appellant/plaintiff in the said Civil Appeal No.3.AlI987. It is against this order; the respondents/defendants have filed this Revision. 3. Learned counsel for the applicants submits that the Lower Appellate Court was not justified in passing an order for substitution of respondent No. 1 and a wrong determination of question of Legal Representatives has been made. She refers to the provisions of Rule 5 of Order 22. She further submits that by virtue of this order, the Court below has held the Will to be genuine for all purposes, whereas, the will itself is under challenge by them and the defendants are disputing the genuineness of the will. She also submits that in such summary proceedings, validity of the document/(Will) cannot be examined for all purposes. She prays for setting aside the order. 4. On the other hand, learned counsel for the respondent No.1 supports the order. His contention is that apart from the merits of the petition, he also challenges the maintainability of this Revision in view of the provisions of Section 115 of CPC. 5. She prays for setting aside the order. 4. On the other hand, learned counsel for the respondent No.1 supports the order. His contention is that apart from the merits of the petition, he also challenges the maintainability of this Revision in view of the provisions of Section 115 of CPC. 5. I have heard learned counsel for the parties at length and have also perused the records of the Civil Revision. 6. First of all, the maintainability of the Revision is to be considered. Proviso to sub-section 1 of Section 115, as amended by Act 46 of 1999 provides that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. 7. A plain reading of section 115, as it stands, makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable, 8. In the present case, there was only one appellant and after her death, if the substitution is not done or an application for substitution is refused, the entire appeal of the appellant would have been dismissed. Therefore, in the facts and circumstances, if the present Revision challenging the substitution is allowed, it will certainly give finality to the appeal pending before the Appellate Court, In view of the above, this Revision would be/maintainable. The objection raised by the Counsel for the respondent is hereby overruled. 9. Now coming on the merits, first of all, this is to be seen as to what is the impact and nature of order passed under Order 22 Rule 3 read with Rule 11 of the Code of Civil Procedure. In a matter under Order 22 Rule 3 or 4, the question is of due representation of the estate of the deceased as these rules provide for substitution of the Legal Representatives. The word 'Legal Representative' has been defined under Section 2(11) CPC. In a matter under Order 22 Rule 3 or 4, the question is of due representation of the estate of the deceased as these rules provide for substitution of the Legal Representatives. The word 'Legal Representative' has been defined under Section 2(11) CPC. It has been defined that "In this Act, unless there is anything repugnant in the subject or context '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. 10. Rule 3 of Order 22 makes it clear that a Legal Representative of the deceased/plaintiff is made a party with an intention to proceed with the suit if right to sue survives, therefore, it is clear that the Court at the time of substitution is not concerned with the succession of the deceased or disputed successory rights of the persons inter-se claiming to be the successors, but it is only concerned to substitute a person, who appears to be the Legal Representative and who represents the estate of the deceased. If on the basis of enquiry conducted under Rule 5 of Order 22, a person or persons have been determined to be the Legal Representatives of the deceased for the purpose of substitution, it is only limited for the purpose of prosecution of the suit or appeal, as the case may be, and the person so determined is only allowed to represent the estate of the deceased for attaining finality to the lis of the deceased pending at the time of his death. In this summery enquiry, the person who is claiming to be the Legal Representative of the deceased on the basis of will, said to have been executed by the deceased in his favour, as in the present case, can be allowed to represent the estate of the deceased. This action taken by the Court does not mean that a party against whom the will has been pressed into motion and all other natural successors, if they are, shall be precluded from challenging the validity of will on the grounds available to them under the law. This action taken by the Court does not mean that a party against whom the will has been pressed into motion and all other natural successors, if they are, shall be precluded from challenging the validity of will on the grounds available to them under the law. Will is a testamentary disposition of property which changes the line of succession and which essentially divests the natural successors of the deceased to whom the property is to be vested during the course of general succession after the death of the testator. There may be a case in which a party other than the natural successor is defending a case against the deceased and he only has contested against the holder of a will of the deceased for the reason that the enquiry is conducted for substitution among the said holder and the defendants of the case. In such situation, essentially, the rights of the natural successors at least to contest the authority of the will is taken off and if the question of validity of the will is held to be finally concluded without giving them opportunity, it will effect their rights. Therefore, it is always open to the party concerned to challenge the will at the appropriate stage on the appropriate ground and permission of a Court about substitution and representation of the estate of the deceased under Order 22 Rule 3 or 4 CPC does not come in the way of beneficiaries. The Legal Representatives substituted under these provisions do not get recognition of any other right except a right to represent the estate of deceased in a lis for the purposes of attaining finality to the lis subject to the conditions of Order 22 Rule 3 & 4 CPC. 11. So far as jurisdiction of the Appellate Court is concerned, it has been provided in Sub Rule 5 that where a question arises as to whether any person is or is not the Legal Representative of the deceased/ plaintiff or deceased/defendant, such question shall be determined by the Court. Provided that where such question arise 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 there for and the Appellate Court may take the same into consideration in determining the question. Provided that where such question arise 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 there for and the Appellate Court may take the same into consideration in determining the question. 12. A perusal of the proviso would show that it is not always an obligation on the Appellate Court to direct the Subordinate Court to try the question as above, but the Appellate Court can also decide this point and the Law does not prohibits the same as is clear from the language used in proviso to Rule 5. 13. In the present case, the Appellate Court itself has made a summary enquiry and has determined that respondent No. 1,- on the basis of alleged will, was the Legal Representative to represent the estate of the deceased in the appeal. 14. For the foregoing reasons, I do not find any infirmity in the order passed by the Appellate Court and the Revision filed against the said order is dismissed. Revision Rejected.