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2016 DIGILAW 3067 (ALL)

Brahmn Dev Lal v. Somwati Awasthi (Now Deceased)

2016-09-07

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri Prateek Sinha, learned counsel for the revisionist and Sri Prakhar Tandon, learned counsel appearing for the respondent no. 1/1. 2. Respondent no. 2 is a formal party as the contest is between the revisionist and respondent no. 1/1 only. 3. The revisionist has preferred this revision against the order dated 04.08.2016 passed by the Small Causes Court permitting substitution of respondent no. 1/1 in place of the deceased plaintiff Smt. Somwati Awasthi and refusing to recognise him as her heir and legal representative. 4. The dispute is regarding a House No. 130/90 (1) Bagahi, Kanpur Nagar. Smt. Somwati Awasthi as the owner and the landlord of the said house, instituted a small cause suit against the tenant Kishore Kumar Gupta. During the pendency of the said suit, the plaintiff Smt. Somwati Awasthi died. 5. The respondent no. 1/1 Indu Kumar Dwivedi moved an application alleging that she has died issue-less, but has left a registered will on the basis of which he has succeeded to the ownership of the property and is entitle to be substituted. 6. On the other hand, the revisionist Brahma Dev Lal also moved an application for getting him substituted on the basis of unregistered will allegedly executed subsequent to be registered will set up by respondent no. 1/1. 7. The court below giving preference to the registered will and stating that the registered will cannot be done away by means of unregistered will though executed subsequently, permitted respondent no. 1/1 to be substituted and refused substitution of the revisionist. 8. It may not be out of context to mention here that the revisionist has filed a separate suit for declaration of his rights over the said property as the heir and legal representative or the successor of the deceased. The said suit is pending wherein notice has been issued to the respondent no. 1/1. 9. It is important to note that under Order 22, Rule 5 the question as to who are the persons to be substituted as legal representative of the deceased is required to be determined by the Court before whom the suit/appeal is pending. 10. In view of the above provision, the court below was obliged to decide about the heir and legal representatives of the deceased entitle to be substituted in her place after her death. 10. In view of the above provision, the court below was obliged to decide about the heir and legal representatives of the deceased entitle to be substituted in her place after her death. The court below instead of deciding to said issue only for the reason that the respondent no. 1/1 was having a registered will of the deceased in his favour permitted him to be substituted and has ignored the claim of the revisionist on the basis of the will set up by him which was subsequent in time. 11. It is true that a registered document could not be nullified by executing an unregistered document, but the said principle is not applicable in the case of a will as the registration of will is optional and not mandatory. A registered will stands super seeded by the subsequent will if duly executed even though unregistered. 12. In view of the above, the court below manifestly erred in ignoring un-registered will and giving preference to the registered will. 13. The validity and the genuineness of the wills set up by both the parties is to be adjudged in a regular civil suit and cannot be gone into by court of small causes in summary proceedings. 14. It is settled vide 2008 (8) SCC 521 , Jaladi Suguna v. Satya Sai Central Trust and others that the substitution of the heirs and legal representatives of a deceased in a suit or appeal is only for the purpose of pursuing the case and not for the purposes for determining the property rights which have to be determined under a separate suit. 15. In Dewan Singh & others v. Bala Singh & another, 2004 (57) AIR 97, it has been held that the issue of heir ship and the declaration of right can be re agitated in a separate suit and the order passed under Order 22, Rule 5 CPC is only limited purpose of carrying on the suit and cannot have the effect of conferring any right to heirship or right to property. 16. In view of the aforesaid legal position as the revisionist and the respondent no. 16. In view of the aforesaid legal position as the revisionist and the respondent no. 1/1 both are claiming rights as the heirs of the deceased and it was not possible for the Small Causes Court to adjudicate about the validity either of the wills set up by them, it is appropriate to substitute both of them so as pursue the suit in place of deceased Smt. Somwati inasmuch as substitution would not confer any rights upon them in the property which have to be decided by means of separate suit. 17. Accordingly, the order impugned is modified and the revisionist is also permitted to be substituted in the suit as ½ in addition to respondent no. 1/1. 18. The revision is allowed to the above extent. Revision allowed.