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Madhya Pradesh High Court · body

2012 DIGILAW 1029 (MP)

Jyoti Bala @ Jyoti v. Chironjilal (Dead)

2012-10-09

S.K.GANGELE

body2012
Judgment S. K. Gangele, J;- 1. The petitioner has filed this petition against the order dated 12-03-2010, passed by the Civil Judge, Class-I, Vidisha in Civil Suit No. 207-A/2003. The trial Court rejected the application of the petitioner filed under Order 22 Rule 3 of Code of Civil Procedure in regard to substitution of the petitioner as legal heir of the plaintiff. Plaintiff, father of the petitioner, instituted a suit for declaration and permanent injunction. During the pendency of the suit, he died on 14-04-2006. After death, the petitioner (daughter) and sons of the deceased both had filed separate applications under Order 22 Rule 2 of Code of Civil Procedure in regard to substitution of their names as legal heirs on account of death of their father. The application was opposed by the respondents No. 5 to 7 on the ground that during the lifetime, the plaintiff, father of the petitioner, executed a "Will" and he bequeathed the property in favour of the respondents No. 5 to 7. The trial Court accepted the contentions of the respondents No. 5 to 7 and held that because the plaintiff had executed a registered 'Will' which was in accordance with law, hence, the petitioner is not entitled to be substituted as legal heir of the plaintiff. 2. The aforesaid point has been considered by the Hon'ble Supreme Court in the case Suresh Kumar Bansal Vs. Krishna Bansal and Another, (2010) 2 SCC 162 and the Hon'ble Supreme Court has held as under:- 19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. 20. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. 20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on a for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. 21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit. 22. In view of our discussions made herein-above, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged will of the deceased plaintiff at this stage of the proceedings. 3. In view of the aforesaid principle of law laid down by the Hon'ble Supreme Court, in my opinion, the learned trial Court has committed an error of law in rejecting the application of the petitioner. 4. Consequently, the petition of the petitioner is allowed. The impugned order dated 12-03-2010 passed by the trial Court is hereby quashed. 3. In view of the aforesaid principle of law laid down by the Hon'ble Supreme Court, in my opinion, the learned trial Court has committed an error of law in rejecting the application of the petitioner. 4. Consequently, the petition of the petitioner is allowed. The impugned order dated 12-03-2010 passed by the trial Court is hereby quashed. It is hereby clarified that the trial Court shall decide the question in regard to entitlement of the petitioner and other heirs of their share in the property at the time of final disposal and the trial Court shall also substitute all the persons who are heirs of the deceased plaintiff. Accordingly, the writ petition is disposed of.