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2016 DIGILAW 735 (MP)

Mahila Ramkali v. Narendra Kumar

2016-08-24

S.A.DHARMADHIKARI

body2016
ORDER 1. Heard the learned counsel for the parties on I.A.No.2659/2016 an application under Order 22 rule 3 read with section 151 of the Code of Civil Procedure, 1908. 2. It is submitted that during the pendency of the appeal, the appellant No.1 Mahila Ramkali died on 17.4.2016. An application for substitution of legal representatives of appellant No.1 has been moved by one Prashant, son of Surendra Shrivastava and Nishant, son of Surendra Shrivastava claiming to be the owner of the property of deceased appellant No.1 by virtue of the Will executed by the appellant No.1 on 13.4.2016 and as such right to sue survives and, therefore, the appellants deserves to be substituted in place of deceased appellant No.1. 3. Learned counsel for the appellant has placed reliance in support of his contentions on the decision of the apex Court, reported in 2010(2) JLJ=2010(2) MPLJ 304 (Suresh Kumar Bansal v. Krishna Bansal and another) to contend that the application for bringing LRs on record be allowed instead of relegating the matter to the trial Court for an inquiry so that the delay in disposal of the appeal can be avoided. 4. The respondent No.1 has moved an I.A.No.2393/2016 under Order 22 rule 10(A) of the Code of Civil Procedure and raised an objection that since no steps have been taken to substitute the legal representatives, the present appeal stands abated and the same is liable to be dismissed. The learned counsel further contended that the application for substitution cannot be allowed mechanically but the question as to whether a particular person is a legal representative of the deceased appellant is required to be decided as per the procedure prescribed in Order 22 rule 5 CPC which reads as under :- “ORDER XXII rule 5 of CPC 1. xxxxx 2. xxxxx 3. xxxxx 4. xxxxx 5. xxxxx 2. xxxxx 3. xxxxx 4. xxxxx 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 sub-ordinate Court 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.” 5. The learned counsel for the respondent No.1 has placed reliance in support of his contention on the decision of the apex Court, reported in (2014)15 SCC 789 , Karedla Parthasaradhi v. Gangula Ramanamma. 6. After hearing the learned counsel for the parties, this Court is of the considered opinion that the matter needs to be remanded to the trial Court by taking recourse to the provision of Order 22 rule 5 proviso for deciding the question as to whether Prashant and Nishant are the legal representatives of the deceased appellant No.1 (Mahila Ramkali), if so, in what capacity on the strength of Will dated 13.4.2016. 7. In light of the foregoing submissions and keeping in view the subsequent events which have material impact on the right of the parties with reference to the suit property, the case is remanded to the trial Court concerned i.e. (Civil Judge, Class-II, Sevda, District Datia (M.P.) for holding an inquiry to enable this Court to pass appropriate orders on the application under Order 22 rule 3 CPC) I.A.2659/2016. The trial Court will decide the question keeping in view the provisions of Order 22 rules 3 and 5 CPC and record a finding on the following questions :- “(i) Whether Prashant and Nishant are the legal representatives of deceased appellant No.1 (Mahila Ramkali) and if so on what basis? (ii) Whether the deceased appellant No.1 (Mahila Ramkali) executed Will dated 13.4.2016 in favour of Prashant and Nishant and if so, whether the Will is genuine as per law ? and (iii) if the Will is found to be genuine, whether bequeath of the suit property is made by virtue of the Will in favour of Prashant and Nishant ?” 8. and (iii) if the Will is found to be genuine, whether bequeath of the suit property is made by virtue of the Will in favour of Prashant and Nishant ?” 8. The trial Court is directed to hold an enquiry after affording an opportunity to all the concerned parties to file reply and adduce evidence and, thereafter, record reasoned findings. The said exercise be done within three months. The trial Court shall return the findings so recorded with documents and evidence led in the inquiry proceedings. 9. The parties are directed to appear before the trial Court on 15.9.2016 and on subsequent dates as may be fixed by the trial Court along with certified copy of the order passed today. 10. The Registry is directed to send the records of the Court below to the concerned trial Court forthwith along with the copy of this order for enabling the trial Court to hold the inquiry and submit the report as directed within the time fixed. 11. Let this appeal be listed for passing appropriate orders on I.A.No.2659/2016 on receipt of findings from the trial Court. V. K. Bhardwaj with Anand Bhardwaj for appellants; Ravi Gupta for respondent No.1.