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2015 DIGILAW 154 (RAJ)

Suraj Karan v. Harinarain

2015-01-17

ALOK SHARMA

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JUDGMENT : Alok Sharma, J. A challenge has been laid to the judgment dated 7.11.2013 passed by the Board of Revenue, Ajmer (hereinafter 'the Board') dismissing the revision petition filed by the petitioners and upholding the order dated 14.8.2013 passed by the Assistant Collector Fast Track, Dudu District Jaipur (hereinafter 'the trial court') in two consolidated cases No. 08/2013 and 360/2010. 2. One Bhuli Devi was one of the defendants in one suit and the plaintiff in the other. The aforesaid two suits were consolidated. During the adjudication of the aforesaid two suits Bhuli Devi died on 14.10.2012. Two applications came to be filed; one- under Order 22, Rule 3 CPC and another under Order 22, Rule 4 CPC before the trial court for braining Bhuli Devi's legal representatives on record. Ramkaran & Ors were the applicants in the application filed under Order 22, Rule 3 CPC (in suit No. 340/2010) and Surajkaran under Order 22, Rule 4 CPC (in suit No. 306/2010). The trial court on consideration of the case of Ramkaran and others based on testamentary succession claimed under a registered will dated 24.7.2004 allowed the application under Order 22, Rule 3 CPC and rejected the application filed by Surajkaran under Order 22, Rule 4 CPC vide order dated 14.8.2013. The order dated 14.8.2013 passed by the trial court was challenged unsuccessfully by Suraj Karan and others by way of a revision petition before the Board. Hence this petition. 3. Heard the counsel for the petitioners and perused the order dated 7.11.2013 passed by the Board. 4. Counsel for the petitioners submits that in impleading the respondents Ramkaran and others on the basis of a purported registered will dated 24.7.2004 executed by Bhuli Devi, the trial court as also the Board have negated the obligation of a Court to conduct the inquiry under Order 22, Rule 5 CPC where there is a dispute with regard to the legal representatives of the deceased litigant- in the capacity of the plaintiff/ defendant as the case may be. It has been submitted that the purported registered will dated 24.7.2004 executed by Smt. Bhuli Devi (since deceased) in favour of Ramkaran and others is under challenge by way of a civil suit for cancellation of the registered will dated 24.7.2004 and consequently neither the trial court nor the Board could have relied upon the said will to implead Ramkaran & Ors as parties in the two suits. Counsel submits that it was incumbent upon the trial court to determine the issue of right to impleadment as legal representatives between the consisting parties as the petitioners were agitating their right to impleadment as successors under the Hindu Succession Act, 1956 (hereinafter 'the Act of 1956') by holding a regular inquiry based on evidence of the parties. It has been submitted that the provisions of Order 22, Rule 5 CPC are mandatory. 5. Order 22, Rule 5 CPC indeed provides that where a question arises as to whether any person is or is not the legal representative of a deceased, such question shall be determined by the trial Court. And the Hon'ble Apex Court in the case of Jaladi Suguna v. Satya Sai Central Trust, AIR 2008 SC 2866 has held that the provisions of Order 22, Rule 5 CPC are mandatory. But in the case at hand that is besides the point. The trial court under its order dated 14.8.2013 has determined the contesting claims to be impleaded as legal representatives of the deceased Bhuli Devi in the two consolidated suits by adjudicating prima-facie dispute with regard thereto between the contesting parties on the basis of the registered will dated 24.7.2004 where under the respondents Ramkaran and others were the testamentary successors of Bhuli Devi and hence were impleaded as parties. 6. I find no force in the submissions of the counsel for the petitioners that merely because the registered will dated 24.7.2004 is under challenge in a regular suit at the instance of the petitioners, it could not have been relied upon by the trial court without inquiring into its validity. It is well settled that impleadment of a party as legal representatives of a deceased plaintiff/ defendant as the case may be, is not determinative and conclusive of rights as to their succession as impleadment is merely to continue the proceedings in the absence of the deceased. It is well settled that impleadment of a party as legal representatives of a deceased plaintiff/ defendant as the case may be, is not determinative and conclusive of rights as to their succession as impleadment is merely to continue the proceedings in the absence of the deceased. It is equally well settled that the rights to the estate of the deceased can be determined only in the independent proceedings taking in regard thereto without any prejudice from the impleadment of any-one of the parties as legal representatives of the deceased in any pending proceedings. 7. The upshot of the above discussion is that the petition is without force and accordingly dismissed. It is however made clear that impleadment of Ramkaran and others before the SDO, Dudu as legal representatives of the deceased Smt. Bhuli Devi on the basis of the registered will dated 24.7.2004 will not be determinative of the rights to succession which will be adjudicated in regular proceedings as in the present case in the challenge stated to have been laid by the petitioners and others against Ramkaran and others qua the validity of the registered will dated 24.7.2004 stated to be executed by Smt. Bhuli Devi in their favour.