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Rajasthan High Court · body

2016 DIGILAW 689 (RAJ)

Kishan Pyari v. Bhanwari Devi through Sukh Ram

2016-05-16

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 25.10.2013 passed by the trial court, whereby application filed by respondent under Order I, Rule 10 and Order 22, Rule 10 C.P.C. read with Section 151 C.P.C. has been allowed and application filed by the petitioner under Order 22, Rule 4A C.P.C. has been rejected. 2. The petitioners-plaintiffs filed a suit for declaration and injunction against defendant – Smt. Bhanwari Devi. The defendant - Smt. Bhanwari Devi passed away during the pedency of the suit and the said fact came to the notice of the Court, when counsel representing Smt. Bhanwari Devi passed away and notice was ordered to be issued to Smt. Bhanwari Devi. 3. An application under Order I, Rule 10 read with Order 22, Rule 10 C.P.C. was filed on 05.11.2003 by Sukh Ram, inter alia, with the averments that Smt. Bhanwari Devi adopted him on 14.12.1988 and an adoption deed was registered on 14.12.1988, on account of her death, he is owner of her entire property, in possession and entitled to the same. In the suit, the applicant is a proper and necessary party as based on the Will, he is legal representative of Smt. Bhanwari Devi and, therefore, he may be impleaded as party. It was also indicated that the power of attorney holder of Smt. Bhanwari Devi informed him about the pendency of the suit and on getting the information, the application is being filed. 4. After filing of the application by Sukh Ram on 05.11.2003, the plaintiffs filed application under Order 22, Rule 4A C.P.C. inter alia, with the averments that there is no legal representative of Smt. Bhanwari Devi, neither she has any son nor daughter, and her husband and mother are not alive, plaintiffs are not aware of her other relatives and, therefore, Administrator General or any other competent person be appointed as legal representative. 5. The application filed by the petitioners under Order 22, Rule 4A C.P.C. was resisted by applicant – Sukh Ram on the ground that he is adopted son of Smt. Bhanwari Devi and, therefore, the application is not maintainable. 6. The application filed by Sukh Ram under Order I, Rule 10/Order 22, Rule 10 C.P.C. was resisted by petitioners. 5. The application filed by the petitioners under Order 22, Rule 4A C.P.C. was resisted by applicant – Sukh Ram on the ground that he is adopted son of Smt. Bhanwari Devi and, therefore, the application is not maintainable. 6. The application filed by Sukh Ram under Order I, Rule 10/Order 22, Rule 10 C.P.C. was resisted by petitioners. The existence of the adoption deed was denied and it was alleged that the document was forged; the rituals under Hindu Law for adoption were not performed; the adoption is not legal and on account of the fact that Sukh Ram was aged about 43 years and Smt. Bhanwari Devi was aged about 51 years at the time of alleged adoption, the adoption is illegal. Other submissions were also made questioning the legality and validity of the adoption deed and it was prayed that the application be dismissed. 7. The trial court after hearing the parties on both the applications, came to the conclusion that at the present stage in light of all the facts and nature of the suit, the Court is not required to decide the validity of the adoption deed; Court is only required to see whether Sukh Ram can legally represent the estate of deceased Smt. Bhanwari Devi and in view of the averments made in the application supported by affidavit, the Court found it reasonable to implead him as legal representative. Consequently, the application filed by Sukh Ram was allowed and that by petitioners was dismissed. 8. It is submitted by learned counsel for the petitioners that the trial court was not justified in dismissing the application filed by the petitioners and accepting the application filed by the respondent; the trial court instead of deciding the applications in a summary manner should have adopted procedure under Order 22, Rule 5C.P.C. and only after proper inquiry, a finding regarding the legal representative of Smt. Bhanwari Devi could have been recorded; the adoption deed was on its face invalid on account of non-compliance of statutory requirements under the Hindu Adoptions and Maintenance Act, 1956, and consequently, the orders impugned deserves to be quashed and set aside. 9. Reliance was placed on Jaladi Suguna (Dead) through L.Rs. v. Satya Sai Central Trust & Ors., AIR 2008 SC 2866 . 10. 9. Reliance was placed on Jaladi Suguna (Dead) through L.Rs. v. Satya Sai Central Trust & Ors., AIR 2008 SC 2866 . 10. Vehemently opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondent submitted that the respondent filed the application based on a registered adoption deed and no person other than the applicant has approached the Court for being impleaded as legal representative of Smt. Bhanwari Devi and in those circumstances, there was no reason for the trial court to adopt procedure under Order 22, Rule 5 C.P.C. and the objections raised by the petitioners regarding the validity of the adoption deed cannot be subject matter of scrutiny at the stage of deciding the application under Order I, Rule 10/Order 22, Rule 10 C.P.C. and, therefore, the writ petition filed by the petitioners deserves to be dismissed. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. The suit was filed for declaration and injunction by the petitioners against Smt. Bhanwari Devi, who expired during the pendency of the suit and application was filed by applicant Sukh Ram only based on a registered adoption deed said to have been executed by Smt. Bhanwari Devi, wherein said Sukh Ram was adopted by her. The adoption deed is a registered document as indicated in the application itself. 13. Besides said Sukh Ram, no one appeared before the trial court and sought impleadment as legal representative of the deceased Smt. Bhanwari Devi, however, the plaintiffs, who were seeking relief against Smt. Bhanwari Devi sought to question the legality and validity of the adoption deed relied on by Sukh Ram for his impleadment as legal representative and also filed application under Order 22, Rule 4A C.P.C. for appointment of Administrator General or an Officer of the Court or such other person as the Court thought fit to represent the estate of Smt. Bhanwari Devi for the purpose of the suit. 14. The submissions made by learned counsel for the petitioners that in view of the objection raised by the petitioners qua the validity of the adoption deed and in view of the application filed by the petitioners, the Court should have adopted procedure under Order 22, Rule 5 C.P.C. is without any substance. 15. This Court in Sher Singh & Anr. v. LRs. 15. This Court in Sher Singh & Anr. v. LRs. of Smt. Veerendra Kumari & Ors., S.B. Civil Writ Petition No.8527/2014, decided on 26.11.2014, inter alia, held as under:- "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 C.P.C. in absence whereof application could not have been allowed. Reliance was placed on Mrs. Mary Joyce Poonacha v. M/s. K.T. Plantations Private Limited, 1996 A I H C 1590; Karamjit Kaur & Anr. v. Gurbant Singh & Ors., 2003(3) Civil Court Cases 88 (P&H); Peta Thallamma & Anr. v. Pedamallu Gopala Krishna Murthy, 2003(3) Civil Court Cases 90 (A.P.) and Mangat & Anr. v. Surja, AIR 1979 Punjab & Haryana 194. I have considered the submissions made by learned counsel for the petitioners. Provision of Order 22, Rule 5 C.P.C. 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 therefore, and the Appellate Court may take the same into consideration in determining the question.]" 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. 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. The application under Order 22, Rule 3 C.P.C. has to be determined on its own merits irrespective of the provisions of Order 22, Rule 5 C.P.C. 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. 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." 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." 16. 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." 16. So far as judgment in the case of Jaladi Suguna (supra) is concerned, the issue raised therein pertained to dispute between the two conflicting parties seeking to represent the estate of the deceased and the judgment was delivered in the said context dealing with provisions of Order 22, Rule 5 C.P.C. As already noticed hereinbefore, there is no party competing against the applicant – Sukh Ram for representing the estate of deceased Smt. Bhanwari Devi and, therefore, the judgment in the case of Jaladi Suguna (supra) as such has no application. 17. So far as examining the validity of the adoption deed by the trial court is concerned, even in an inquiry under Order 22, Rule 5 C.P.C. this Court in Radhey Shyam v. Radha Mohan Paliwal & Ors., 2012(4) WLN 3, after considering the law laid down by Hon'ble Supreme Court in the case of Jaladi Suguna (supra) and Suresh Kumar Bansal v. Krishna Bansal & Anr., (2010) 2 SCC 162 , held as under:- "7. 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 22, Rule 5 C.P.C. 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-à-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-à-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 22, Rule 5 C.P.C. 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 22, Rule 5 of C.P.C. 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. In that view of the matter, the impugned order dated 23.05.2012 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." 18. In view of the above, the trial court was justified in not examining the validity of the adoption deed at the stage of deciding the application under Order I, Rule 10/Order 22, Rule 10 C.P.C. 19. In view of the above discussion, it cannot be said that the trial court committed any error in accepting the application filed by the respondent – Sukh Ram and rejecting the application filed by the petitioners so as to require interference by this Court under Article 227 of the Constitution of India. There is no substance in the writ petition, the same is, therefore, dismissed.