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2016 DIGILAW 798 (MP)

Ashok Kumar Goyal v. State of M. P.

2016-09-09

SHEEL NAGU

body2016
ORDER 1. The power of superintendence of this Court under Article 227 of the Constitution of India is invoked to assail the interlocutory orders dated 9.4.2010 and 24.9.2010 allowing an application under Order XXII rule 3 of CPC, preferred by the plaintiff No.2 thereby allowing substitution of seven legal representatives (four daughters and one minor son of deceased daughter Smt. Gayatri Jain) instead of only two sons, i.e. the petitioner Ashok Kumar Goyal and his brother Yash Goyal as sought for, in place of deceased/plaintiff No.1 Harishankar Goyal. 2. Learned counsel for the petitioner/plaintiff No.2 contends that on 19.12.2008, the plaintiff No.1 Harishankar Goyal died which impelled the plaintiff No.2 to move an application for bringing two sons of deceased plaintiff No.1 i.e., the petitioner and his brother Yash Goyal to be impleaded as legal representatives of plaintiff No.1 by way of Order XXII rule 3 of CPC. The trial Court while allowing the application has directed impleadment of four daughters and one minor grandson of deceased plaintiff No.1 in addition to petitioner and his brother Yash Goyal. It is the submission of the learned counsel for the petitioner/plaintiff No.2 that by way of Will dated 22.1.2001 which was duly registered, the suit property bearing Survey No.505 devolved exclusively upon the said two sons, Ashok Kumar Goyal and Yash Goyal and not upon the remaining four daughters and one minor grandson. It is also submitted that the said Will remains unchallenged by any one. Thus, it is submitted that the trial Court ought not to have directed for impleadment of seven legal representatives including the daughters and one grandson of the deceased/plaintiff No.1. Reliance is placed on the single bench decision of this Court in the case of Than Singh v. Majboot Singh and others, reported in 2010(3) MPLJ 379 , to contend that the law recognizes marked distinction between the term “Legal Representative” and “Legal Heir” which is evident from reading of section 2(11) of CPC. 3. It is further submitted that the question of sisters of the petitioner inheriting any of the property left behind by the deceased father/plaintiff No.1 would arise only when father (plaintiff No.1) had died intestate (without leaving behind a Will). For this purpose distinction between section 8 which pertains to intestate succession and section 30 which pertains to testamentary succession of the Hindu Succession Act, 1956 is emphasized. “Section 8. For this purpose distinction between section 8 which pertains to intestate succession and section 30 which pertains to testamentary succession of the Hindu Succession Act, 1956 is emphasized. “Section 8. General rules of succession in the case of males.-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter - (a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) Secondly, if there is no heir of class II then upon the heirs, being the relatives specified in class II of the Schedule; (c) Thirdly, if there is no heir of any of the two classes, then upon the agitates of the deceased; and (d) Lastly, if there is no agnate, then upon the cognates of the deceased. Section 30.Testamentary succession. [* * *] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. 4. Learned counsel for the respondents/defendants opposed the prayer and contends that no prejudice shall be caused to the petitioner by the impugned order and therefore in view of limited supervisory jurisdiction of this Court under Article 227 of the Constitution of India, no interference is called for. 5. Learned counsel for the defendants/State has not disputed the factum of testamentary succession, which is evident from the registered Will dated 21.1.2001 left behind by the deceasedfather/plaintiff No.1. The said Will which is on record as Ex.P-5 mentions seven beneficiaries, i.e. petitioner herein and his brother Yash Goyal along with their four sisters and one grandson who was minor at that point of time. A bare perusal of the undisputed Will indicates that the entire agricultural land in village Gospura, Mahalgaon, Ramtapura, Morar, Girwai and Dabra within the District Gwalior (including the suit property) was directed to devolve upon two sons, i.e. Ashok Goyal and Yash Goyal. The Will does not devolve the agricultural property (including the suit property) upon any of the five beneficiaries mentioned therein apart from Ashok Goyal and Yash Goyal. 6. The Will does not devolve the agricultural property (including the suit property) upon any of the five beneficiaries mentioned therein apart from Ashok Goyal and Yash Goyal. 6. In this view of the matter, it is unambiguous that on death of plaintiff No.1 on 19.12.2008 by way of testamentary succession the suit property bearing Survey No.505 in question devolved upon Ashok Goyal and his brother Yash Goyal. 7. The trial Court by also directing impleadment of four sisters and one minor grandson has exceeded the jurisdiction vested in it. More so, no prejudice shall be caused to the said four sisters and minor grandson of deceased/plaintiff No.1 as the Will does not devolve the suit property upon them and also that the impleadment is of legal representatives which does not adversely affect the right of the sisters and minor grandson (if they can successfully establish that they are legal heirs of the suit property), as is evident from decision of the Single Bench of this Court in the case of Than Singh (supra). 8. Accordingly, this Court is of the considered view that the trial Court has travelled beyond the jurisdiction vested in it in directing impleadment of all seven persons as legal representatives in place of deceased/plaintiff No.1. 9. Accordingly, the impugned orders dated 9.4.2010 and 24.9.2010 so far as they relate to allowing substitution of all seven LRs of deceased-plaintiff No.1 under Order XXII rule 3 of CPC are set aside and it is directed that petitioner Ashok Goyal and his brother Yash Goyal be only impleaded as legal representatives of deceased-plaintiff No.1 and the trial be concluded as expeditiously as possible. 10. The interim order of stay granted by this Court on 8.12.2010 shall stand vacated. No cost. P. C. Chandil for petitioner; Prakhar Dhengula, Panel Lawyer for respondents/State.