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Himachal Pradesh High Court · body

2016 DIGILAW 202 (HP)

Rakesh Mohindra v. Union of India

2016-03-08

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The petitioner herein/plaintiff in the civil suit and respondent No.3 herein are real brothers. Initially, respondent No.3 herein staked a claim to the estate of his deceased mother under a testamentary disposition executed by her in his favour. The claim was reared in the suit instituted by respondent No.3 herein before the Civil Court concerned. The learned trial Court decreed the suit of respondent No.3 herein. The first Appellate Court allowed the appeal and reversed the decree of the learned trial Court. Respondent No.3 herein assailed the decision of the first Appellate Court by instituting a Regular Second Appeal before the High Court concerned whereat the decision of the first appellate Court stood affirmed. In an appeal preferred before the Hon'ble Apex Court, the decree of the first appellate Court dismissing the suit of respondent No.3, wherein he claimed a right to succeed to the estate of his deceased mother under a testamentary disposition executed by her in his favour, stood affirmed by the Hon'ble Apex Court. In sequel, both the petitioner herein and respondent No.3 herein have as heirs of their deceased mother a right to succeed to her estate besides a right stood invested in other siblings to succeed to the estate of their deceased mother. 2. During the pendency of the civil suit before the learned trial Court, an application under Order 1, Rule 10 of the CPC was preferred by respondent No.3 herein claiming his impleadment in the array of defendants. The application aforesaid stood allowed by the learned trial Court on 16.04.2013. However, subsequently an application under Order 1, Rule 10 CPC stood instituted at the instance of the petitioner herein before the learned trial Court for striking out the name of respondent No.3 from the array of the defendants. The said application stood rejected by the learned trial Court hence the instant petition before this Court. 3. However, subsequently an application under Order 1, Rule 10 CPC stood instituted at the instance of the petitioner herein before the learned trial Court for striking out the name of respondent No.3 from the array of the defendants. The said application stood rejected by the learned trial Court hence the instant petition before this Court. 3. The gravamen of the reasoning afforded by the learned trial Court for rejecting the application aforesaid instituted by the petitioner herein before it stands squarely harboured upon the factum of the Hon'ble Apex Court affirming the decree rendered by the first Appellate Court whereby the latter Court dismissed the suit of respondent No.3 herein wherein he staked a solitary claim to the ouster of the other legal heirs of his deceased mother to the latter's estate, claim whereto solely rested on the strength of a testamentary disposition executed by her in his favour. The discountenancing of the right of respondent No.3 to stake an exclusive claim to succeed to the estate of his deceased mother on her demise on the anvill of a testamentary disposition executed by her qua her estate in his favour on the score of it suffering legal effacement, obviously forestalled the exclusive rights of respondent No.3 herein to succeed to the estate of his deceased mother on the latter's demise, yet it would not oust his right to, given the pre-eminent factum of his while being the son of the deceased, who for reasons aforestated died intestate besides he being her heir in the order of succession along with the plaintiff/petitioner herein, assert a right along with other siblings of their deceased mother to succeed to her estate on her demise. Consequently, the order of impleadment rendered on 16.04.2013 by the learned trial Court which was sought to be reopened by the plaintiff/petitioner by way of his instituting an application under Order 1, Rule 10 of the CPC claiming therein a relief of striking off the name of respondent No.3 from the array of defendants, was on the strength of the verdict of the Hon'ble Apex Court neither reviewable nor any relief claimed therein was open to be afforded to the petitioner herein/plaintiff in the civil suit, preponderantly for the reasons aforesaid of the rendition of the Hon'ble Apex Court neither impinging upon nor baulking the right of respondent No.3 herein to succeed to the estate of his mother on her demise jointly along with his brother besides alongwith other siblings. Moreover, the order of the learned trial Court rendered previous to the order impugned before this Court wherein the prayer of respondent No.3 for his being added in the array of defendants stood allowed acquired finality, finality whereof would not suffer dissipation unless it was concerted to be set aside by an appeal/revision standing preferred against it before the appropriate Court. However, the conclusivity and finality imbuing it was neither reopenable besides unreviewable at the instance of the petitioner/plaintiff by his subsequently instituting an application at hand before the learned trial Court, more so, when the said resort to by the petitioner herein tantamounted to it exercising a revisional jurisdiction thereto. Consequently, the impugned order is not liable for interference. Moreover, given the prayer canvassed in the plaint of the order bearing No. BC/9/154/K/DEO/95 OF 29.8.2011 being liable to be declared to be wrong, illegal, null and void besides its being set aside which relief/prayer being decreed would to the derogation or prejudice of the rights of other siblings of the plaintiff/petitioner herein vest in him an exclusive right to succeed to the estate of his deceased mother, who for the reasons hereinabove died intestate. As a sequitur, the impleadment of respondent No.3 as a defendant in the civil suit is just as well as fair. As a sequitur, the impleadment of respondent No.3 as a defendant in the civil suit is just as well as fair. Even if, any right which respondent No.3 herein holds in the suit property stands as submitted by the counsel for the plaintiff/petitioner herein abandoned or foregone by him under an affidavit executed during the lifetime of their mother, nonetheless, the apposite fact in consonance therewith is enjoined to be pleaded in the plaint for facilitating an appropriate opposition or denial thereto at the instance of respondent No.3. Resultantly a mere submission anvilled upon the factum aforesaid would not suffice at this stage for barring or baulking respondent No.3 to seek his impleadment as a party to the suit. 4. For the foregoing reasons, the instant petition is dismissed and the impugned order is affirmed and maintained. All pending applications stand disposed of.