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2014 DIGILAW 1902 (RAJ)

Sher Singh v. LRs. of Smt. Veerendra Kumari’s

2014-11-26

ARUN BHANSALI

body2014
JUDGMENT : 1. This writ petition has been filed by the petitioners questioning the validity of order dated 29.09.2014 passed by Additional District Judge No.6, Jodhpur ('the trial court'), whereby, the application filed by Akshaya (applicant) under Order 22, Rule 3 CPC has been allowed and the application filed by the petitioner purportedly under Order 22, Rule 10A CPC has been rejected. 2. The suit was filed by Smt. Veerendra Kumari W/o. Late Thakur Jitendra Singh for possession, compensation and permanent injunction against the defendants Smt. Annapurna & Ors. During the pendency of the suit, the plaintiff Smt. Veerendra Kumari died and the application under Order 22, Rule 3 CPC was filed by Akshaya S/o. Late Thakur Jitendra Singh. In the application, it was claimed that the applicant was adopted son of Smt. Veerendra Kumari; the adoption deed was a registered document; Veerendra Kumari had executed a Will also in his favour, therefore, right to sue survives to the applicant and he may be impleaded as legal representative of the deceased sole-plaintiff Smt. Veerendra Kumari. 3. The application was opposed by the petitioner herein, whereby, the application under Order 22, Rule 10A CPC was filed indicating the death of the plaintiff and that the suit stands abated. Reply to the application under Order 22, Rule 3 CPC was also filed and the fact of adoption, right of Veerendra Kumari to execute a Will, and the validity of the Will itself were questioned. 4. The trial court by its order dated 29.09.2014 came to the conclusion that the contention of the defendants that as they are in possession of the suit property, Will could not be executed and cannot be examined at the stage of considering application under Order 22, Rule 3 CPC. The further objection regarding holding of inquiry under XXII, Rule 5 CPC was also declined as no one else had applied to the court seeking to be impleaded in the suit as legal representatives of the deceased Veerendra Kumari; on prima facie finding that the right to sue survives to the applicant and the application had been filed within limitation, the application under Order 22, Rule 3 CPC was allowed and the application filed by the defendants under Order 22, Rule 10A CPC was rejected. 5. 5. It is submitted by learned counsel for the petitioners that the trial court was not justified in rejecting the application filed by the petitioners and accepting the application filed by the applicant, inasmuch as, the defendants have raised dispute regarding the legality and validity of the adoption deed and the Will said to have been executed by the deceased-plaintiff Veerendra Kumari and, therefore, the court should have undertaken procedure under Order 22, Rule 5 CPC in absence whereof application could not have been allowed. 6. Reliance was placed on Mrs. Mary Joyce Poonacha v. M/s. K.T. Plantations Private Limited, 1996 AIHC 1590 ; Karamjit Kaur & Anr. v. Gurbant Singh & Ors., Peta Thallamma & Anr. v. Pedamallu Gopala Krishna Murthy and Mangat & Anr. v. Surja : AIR 1979 P&H 194. 7. I have considered the submissions made by learned counsel for the petitioners. 8. Provision of Order 22, Rule 5 CPC reads as under:- "5. 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 therefor, and the Appellate Court may take the same into consideration in determining the question.]" 9. A bare look at the provision reveals that where a question arise before the court as to whether any person is or is not the legal representative of a deceased-plaintiff or a deceased-defendant, such question has to be determined by the court. The provision essentially operates in a case where the dispute is inter se claimants as legal representatives and has apparently no application in a case where the rival party seeks to raise objection regarding the right of the applicant to be impleaded as a party. 10. The application under Order 22, Rule 3 CPC has to be determined on its own merits irrespective of the provisions of Order 22, Rule 5 CPC. 11. The judgments cited by learned counsel for the petitioners in the case of Mrs. 10. The application under Order 22, Rule 3 CPC has to be determined on its own merits irrespective of the provisions of Order 22, Rule 5 CPC. 11. The judgments cited by learned counsel for the petitioners in the case of Mrs. Mary Joyce Poonacha (supra), Karamjit Kaur (supra) and Peta Thallamma (supra) are all cases pertaining to dispute between rival claimants to be the legal representatives and in those circumstances, the courts came to the conclusion that the issue has to be determined by the court. 12. The judgment cited by learned counsel for the petitioner in the case of Mangat (supra) is a case where the objection was raised by the defendant and the Punjab & Haryana High Court held as under:- "In the instant case, a person claiming to be the legal representative of the deceased plaintiff set up a registered adoption deed by the deceased in his favour. He also alleged to be the legatee under a will by deceased and held a substantial portion of the land of the deceased. The lower court found him to be the legal representative. It was held that, applying the above principles, there was nothing wrong in the finding arrived at without deciding in detail the validity of the adoption or the will. Case law referred." 13. The judgment and the determination by the Punjab & Haryana High Court squarely applies to the present case, wherein also the objection is raised regarding the validity of adoption deed as well as the Will. The Punjab & Haryana High Court came to the conclusion that there were nothing wrong in the finding arrived at by the trial court without deciding the validity of the adoption and the will. 14. The right of the petitioners to question the validity of the adoption deed and the will cannot be said to have any basis while deciding application under Order 22, Rule 3 CPC as rightly observed by the trial court. The issues are yet to be framed and decided. 15. In that view of the matter, there is no substance in the present writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.Petition dismissed.