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2012 DIGILAW 1689 (RAJ)

Radhey Shyam v. Radha Mohan Paliwal

2012-08-01

BELA M.TRIVEDI

body2012
Hon'ble TRIVEDI, J.—The present petition has been filed by the petitioner-original defendant No.3 under Article 227 of the Constitution of India challenging the order dated 23rd May, 2012 passed by the Addl. District Judge (Fast Track) No.4, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 169/03, whereby the trial court has rejected the claim of the petitioner to represent the estate of the deceased defendant No.1 Chand Narain as his legal representative and allowed the application of the respondent No. 1-plaintiff to amend the plaint as prayed for. 2. The precise question that falls for consideration before this court is as to whether the court while determining the question as to who is or is not the legal representative of the deceased party under O. XXII, R. 5 of CPC, could decide the question of legality and validity of the Will allegedly executed by the deceased in favour of the person claiming to be his legal representative? 3. The short facts giving rise to the present petition are that the deceased Bhagat Lal was the owner of the property in question. He had three sons named Shri Srinarain, Shri Govind Narain and Shri Ramchandra. Shri Srinarain, had one son named Devi Narain (deceased) and the present petitioner-original defendant No.3 and other defendants i.e. defendant Nos.4,5 and 6 were the heirs of the said Devi Narain (deceased). The respondent No.1 (original plaintiff) happened to be the son of Shri Ramchandra (deceased). The respondent No.1-plaintiff had filed the suit seeking partition of the properties in question against said Chand Narain, the petitioner and the respondent Nos. 2 to 7 (original defendants). The said suit was resisted by the said Chand Narain-defendant No.1, and the present petitioner-defendant No.3 by filing joint written statement and other defendants had filed their written statements separately. During the pendency of the suit, the defendant No.1 Chand Narain expired on 5.5.03. The respondent No.1-plaintiff therefore moved an application dated 2.8.03 stating interalia that there was no heir of the deceased Chand Narain in Class-I and Class-II and therefore his share in the suit property was liable to be divided amongst the agnates and cognates, who are the plaintiff and the remaining defendants and that the plaint may be permitted to be amended accordingly. The said application was resisted by the petitioner-defendant No.3 contending interalia that the deceased Chand Narain had executed a Will dated 5.4.01 in his favour and by virtue of the said Will he was the sole legal representative of the deceased defendant No.1. Since the question arose as to whether the petitioner was the legal representative of the deceased Chand Narain or not, the trial court conducted the enquiry as contemplated under Order XXII Rule 5, CPC and vide the impugned order dated 23.5.12, allowed the application of the plaintiff dated 2.8.03 permitting him to amend the plaint as prayed for. Being aggrieved by the said order, the petitioner has preferred the present petition invoking Article 227 of the Constitution of India. 4. The learned counsel Mr. Sudesh Bansal for the petitioner has vehemently submitted that the trial court had failed to appreciate that in the enquiry under Order XXII Rule 5 of CPC, the legality or validity of the Will executed by the deceased defendant No.1 could not be examined. According to Mr. Bansal, the deceased Chand Narain had initially executed one Will dated 21st July, 1996 and thereafter the Will dated 5.4.01 giving reference of earlier Will, and in both the Wills, the petitioner has been shown as the legatee of the Will. He further submitted that though the concerned attesting witnesses and the scriber of the Will were examined by the petitioner to prima facie prove the execution of both the Wills, the trial court had exceeded its jurisdiction in holding that the said Will dated 5.4.01 was not duly proved, enlarging the scope of enquiry under Order XXII Rule 5 of CPC, which was not permissible in the eye of law. Mr. Bansal has placed heavy reliance on the decisions of the Apex Court in case of Jaladi Suguna (deceased) through LRs. vs. Satya Sai Central Trust & Ors. (2008) 8 SCC 521 and in case of Suresh Kumar Bansal vs. Krishna Bansal & Anr. (2010) 2 SCC 162 in support of his submission that the legatee under the Will is required to be treated as the legal representative to represent the estate of the deceased in the suit. 5. However, the learned senior counsel Mr. (2008) 8 SCC 521 and in case of Suresh Kumar Bansal vs. Krishna Bansal & Anr. (2010) 2 SCC 162 in support of his submission that the legatee under the Will is required to be treated as the legal representative to represent the estate of the deceased in the suit. 5. However, the learned senior counsel Mr. R.K. Agrawal for the respondent No.1-plaintiff has submitted that both the Wills relied upon by the petitioner for the purpose of representing the estate of the deceased Chand Narain in the suit were found to be suspicious by the trial court, in the enquiry conducted under Order XXII Rule 5 of CPC and, therefore, the trial court has rightly allowed the application of the respondent No.1-plaintiff seeking amendment in the plaint to the effect that the deceased Chand Narain having no heir in Class-I and Class-II, his share in the suit property was liable to be divided amongst the plaintiffs and the defendants as his agnates and cognates. Mr. Agrawal relying upon the decision of the Apex Court in case of Kanhiya Singh Santok Singh & Ors. vs. Kartar Singh (2009) 5 SCC 155 and in case of Ajambi (dead) by LRs. vs. Roshanbi & Ors. (2010) 11 SCC 168 , submitted that the trial court was required to make enquiry under Order XXII Rule 5, as to the factual matters regarding the status of a person claiming to be the legal representative and also the validity and genuineness of the Will propounded by the legatee. 6. In order to appreciate rival contentions raised by the learned counsels for the parties, it would be necessary to reproduce the definition of “legal representative” contained in Section 2(11) of CPC, which reads as under :- “2(11) “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.” 7. So far as determination of legal representative of the deceased is concerned, it cannot be gainsaid 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 is required to be determined by the court under Order XXII Rule 5 of CPC. In the instant case also, the question having arisen as to whether the petitioner was the legal representative of the deceased defendant No.1 Chand Narain or not, an enquiry was conducted by the trial court under Order XXII Rule 5 of CPC. However, while doing so, the trial court has also examined the legality and validity of the two Wills dated 30.7.96 and 5.4.01 propounded by the petitioner and allegedly executed in his favour by the deceased Chand Narain. The trial court after appreciating the evidence of the witnesses examined by the parties came to the conclusion that the petitioner-defendant No.3 had failed to discharge his burden of proving the said Wills legally and therefore could not be said to be the legal representative of the deceased. The trial court accordingly allowed the application of the respondent No.1-plaintiff seeking amendment in the plaint as prayed for by him. In the opinion of the court, the impugned order suffers from gross illegality in view of the ratio of the judgment delivered by the Apex Court in case of Jaladi Suguna (deceased) through LRs. vs. Satya Sai Central Trust & Ors. (supra), which has also been followed in the subsequent judgment in case of Suresh Kumar Bansal vs. Krishna Bansal & Anr. (supra). The Apex Court in case of Jaladi Suguna (deceased) through LRs. vs. Satya Sai Central Trust & Ors. has held in para 12 and 15 as under :- “12. 'Legal representative' according to its definition in Section 2(11) CPC, 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. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. 15. ........If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. 15. ........If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased." 8. In view of the above settled legal position, the legatee under the Will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. In the instant case, the petitioner who was the legatee under the Will executed by the deceased defendant No.1, being an intermeddler with the estate of the deceased, would be the legal representative of the deceased. Though the trial court was required to determine as to who was the legal representative of the deceased in the enquiry under Order XXII Rule 5 CPC, such determination was only for a limited purpose and it would not confer on the person held to be legal representative, any right to the property which was the subject matter of the suit. As per the above stated legal position, such a legal representative, who is the legatee under the Will would be only entitled to represent the estate of the deceased testator and he could not be said to have any right in the suit property vis-a-vis the other rival claimants to the estate of the deceased. As per the above stated legal position, such a legal representative, who is the legatee under the Will would be only entitled to represent the estate of the deceased testator and he could not be said to have any right in the suit property vis-a-vis the other rival claimants to the estate of the deceased. Thus, in the opinion of this court, the trial court has clearly exceeded its jurisdiction in determining the question as to the legality and the validity of the wills relied upon by the petitioner for the purpose of representing the estate of the deceased Chand Narain while conducting the enquiry under Order XXII Rule 5 CPC, and in holding that the petitioner had legally failed to prove the said Wills. The trial court was not at all called upon to examine the validity of the said Wills in the enquiry to be conducted under Order XXII Rule 5 of CPC, which was only for the purpose of determining as to whether the petitioner was the legal representative of the deceased or not. The impugned order thus suffers from legal infirmity and deserves to be set aside. The petitioner being the legatee of the Will of the deceased, deserves to be permitted to represent the estate of the deceased as his legal representative in the suit. 9. In that view of the matter, the impugned order dated 23.5.12 is set aside. The petitioner is permitted to be substituted as the legal representative of the deceased defendant No.1 Chand Narain in the suit. The petition stands allowed accordingly.