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Himachal Pradesh High Court · body

2018 DIGILAW 684 (HP)

Randhir Singh v. Santosh Kumari

2018-04-18

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this petition filed under Article 227 of the Constitution of India, petitioners have prayed for quashing of orders dated 10.2.2017 and 8.5.2017 passed by the Court of learned Senior Civil Judge, Una, District Una, H.P. in CMA No. 43-VI-17 and CMP No.634/17 in Civil Suit No. 7/14/04 titled as Shamsher Singh etc. Vs. Daulat Ram etc. 2. Facts as they emerge from the petition are that Kewal Devi who was the mother of the petitioners and proforma respondents was joint owner in possession of certain properties i.e., land comprised in Khewat No. 32min, khatauni No. 55, khasra No.1221, 2115, 2116, 2117, 2118, 2133, 2134, kita 7 situated at village Bharolian Khurd, Tehsil and District Una, H.P. The said land was acquired by Himachal Pradesh Housing and Urban Development Authority, Shimla. After the award was passed by Land Acquisition Collector, it transpired that ownership of the said land stood conferred upon the tenants i.e., Daulat Ram and others under Section 104 of the H.P. Tenancy and Land Reforms Act and these persons had become owner thereof and the same stood recorded in the revenue records. Real owners of the land filed a civil suit for declaration that the entries appearing in the names of said tenants were wrong, illegal, void, ineffective, inoperative and against the exclusive rights of the plaintiffs. The suit was registered as Civil Suit No. 07/14/04, titled as Shamsher Singh etc. Vs. Daulat Ram etc. Smt. Kewal Devi was arrayed as plaintiff No.4 in the said civil suit. She was being represented through her real nephew, namely, Shamsher Singh, who was her General Power of Attorney. According to the petitioners, neither they nor the proforma respondents were aware about the pendency of the civil suit. The General Power of Attorney holder of Kewal Devi, namely, Shamsher Singh, who was himself a plaintiff in the said suit, died in the year 2012. After the death of Shamsher Singh, his legal heirs were substituted as plaintiff No.1 (a) to 1(d) . His widow Santosh Kumari who stood arrayed as plaintiff No.1(a) took Kewal Devi to Una and there Kewal Devi appointed Rajinder Singh son of late Shamsher Singh as her General Power of Attorney on 25.4.2011. Rajinder Singh also died in the year 2015. His widow Santosh Kumari who stood arrayed as plaintiff No.1(a) took Kewal Devi to Una and there Kewal Devi appointed Rajinder Singh son of late Shamsher Singh as her General Power of Attorney on 25.4.2011. Rajinder Singh also died in the year 2015. Thereafter on 10.6.2015 Santosh Kumari again took Kewal Devi to Una where she got another General Power of Attorney prepared from Deed Writer, Deepak Kumar at Una in favour of her younger son Rippan Kumar i.e., son of Santosh Kumari. As per petitioners, in the garb of preparation of the General Power of Attorney, a Will was also got executed fraudulently by present respondents No.1 to 3 from their deceased mother qua the parental property of their mother. Both the General Power of Attorney as well as Will so executed were entered into register maintained by Deepak Kumar, Deed Writer at Sr. No. 170 and 171, respectively. 3. On 17.3.2016 Kewal Devi executed a Will out of her free will and volition with respect to her entire movable and immovable properties in favour of her both sons, namely, Darshan Singh and Randhir Singh and grandsons, namely, Surinder Pal and Baljit Singh sons of her late son Gurbax Singh. This Will was scribed by Faquir Chand, Deed Writer, at Una and was got registered in the office of Sub Registrar, Una on 17.3.2016. It was mentioned in this Will that in case any other Will had been got inadvertently executed from Kewal Devi, then the same be treated as cancelled. A copy of the Will stands appended with the present petition as Annexure P-7. 4. Kewal Devi died on 10.7.2016. After her death, an application was filed under Order 1 Rule 10 of CPC by respondents No.1 to 3, namely, Santosh Kumari, Avtar Singh and Jangbahadur in civil suit, along with the copy of the unregistered Will dated 31.5.2016, which allegedly was executed by Kewal Devi. A prayer was made in the application that in view of the Will so executed by late Kewal Devi in favour of the applicants therein, her name be deleted from the array of plaintiffs, as her legal heirs were already on record in the suit. 5. A prayer was made in the application that in view of the Will so executed by late Kewal Devi in favour of the applicants therein, her name be deleted from the array of plaintiffs, as her legal heirs were already on record in the suit. 5. Defendants in the said suit when called upon to file reply to the said application objected the application filed under Order 1 Rule 10 of CPC on the ground that the names of the legal heirs were incorrectly mentioned as deceased Kewal Devi had executed a Will in favour of her sons and grandsons. Present petitioners were neither aware of pendency of the said suit nor the application. Thereafter Santosh Kumari filed a civil suit i.e. Civil Suit No. 3/2017 for declaration and injunction against present petitioners titled as Santosh Kumari Vs. Darshan Singh and others claiming the entire estate of Kewal Devi on the strength of Will dated 11.6.2015. In the meanwhile, application so filed under Order 1 Rule 10 of CPC by Santosh Kumari and others was allowed by the learned court below, vide order dated 10.2.2017. Another similar application filed by petitioners under Order 1 Rule 10 of CPC was rejected by the learned trial court on 8.5.2017. 6. Feeling aggrieved, the petitioners has filed this petition. 7. Learned counsel for the petitioners has argued that the impugned orders were not sustainable in the eyes of law because if the said orders are permitted to remain on record, the same will amount to travesty of justice, as it will be peculiar situation where the real sons and grandsons of deceased Kewal Devi would not be in a position to contest a suit which so stood filed in the name of Kewal Devi alongwith other plaintiffs and persons, who have got themselves impleaded as legal representatives of Kewal Devi by wrongly getting the name of Kewal Devi deleted from the array of plaintiffs by representing themselves to be her legal representatives on the strength of Will which was procured by playing fraud would continue to represent her estate in the lis. 8. On the other hand learned counsel for the respondents No. 1 to 3 has argued that the orders passed by learned court below were fair and just orders passed taking into consideration the material which was available before the learned court below and the same do not call for interference. 8. On the other hand learned counsel for the respondents No. 1 to 3 has argued that the orders passed by learned court below were fair and just orders passed taking into consideration the material which was available before the learned court below and the same do not call for interference. 9. I have heard learned counsel for the petitioners as also learned counsel for respondents No.1 to 3. 10. In my considered view, the impugned orders so passed by learned court below are not sustainable. The application which was so filed by respondents No.1 to 3 under Order 1 Rule 10 of CPC for deleting the name of Kewal Devi could not have been disposed of in the mode and manner in which it was done by the learned court below, vide impugned order dated 10.2.2017. This is for the reason that when an objection was taken by the non applicant therein that description of legal representatives was not correctly mentioned in the application and in fact the deceased had bequeathed her property by way of a registered Will in favour of her sons and grandsons, then in my considered view, in the interest of justice it was incumbent upon learned court below to have had issued notices to the sons and grandsons of the deceased, before it could have passed any order on the application filed under Order 1 Rule 10 of CPC by present respondents No.1 to 3. 11. Similarly, the application filed later on by present petitioners under Order 1 Rule 10 of CPC could also not have been disposed of in the mode and manner in which it has been done by learned court below, simply by holding that as there already was a suit pending with regard to Will of Kewal Devi so controversy inter se Santosh Kumari and present petitioners if when settled would take care of their respective rights. 12. Learned court below while rejecting the application of the present petitioners held that after the death of Kewal Devi, they never came forward to show that they were representatives of Kewal Devi and they came at the stage when the name of Kewal Devi stood deleted. 12. Learned court below while rejecting the application of the present petitioners held that after the death of Kewal Devi, they never came forward to show that they were representatives of Kewal Devi and they came at the stage when the name of Kewal Devi stood deleted. While doing so, learned court below erred in not appreciating that when the petitioners were not in the knowhow of the pendency of the civil suit in which their mother was arrayed as plaintiff and they were not in the knowhow that an application stood filed on the strength of an unregistered Will by Santosh Kumari, allegedly executed by their mother then how they could have had approached the learned court for substituting them as the legal representatives of late Kewal Devi. When this issue was before the learned trial court by way of an application so filed under Order 1 Rule 10 of CPC by the present petitioners, it was incumbent upon the learned trial court to have had adjudicated upon the same in view of the peculiar facts of the case and more so keeping in view the fact that applicants before it were none other than the sons and grandsons of the deceased. Learned trial court having failed to do so has indeed gravely prejudiced the case of the present petitioners and in view of above, the impugned orders are not sustainable and are liable to be quashed and set aside. 13. At this stage, it is pertinent to mention that the factum of determination as to who is the legal representative of deceased plaintiff or defendant under Order 22 Rule 5 of CPC is only for the purposes of bringing such legal representatives on record for the purpose of the conduct of the legal proceedings only. Who is brought on record does not in itself operate as a res judicata with regard to inter se dispute between the rival legal representatives and said dispute has to be independently tried and adjudicated upon in separate proceedings. In a case where facts were quite similar to the present petition, the Hon''ble Punjab and Haryana High Court in S. Charanjit Singh and another Vs. In a case where facts were quite similar to the present petition, the Hon''ble Punjab and Haryana High Court in S. Charanjit Singh and another Vs. Bharatinder Singh and others, AIR 1988 Punjab and Haryana 123 held that in such like circumstance, proper course to follow is to bring all legal representatives on record, so that they vouchsafe the estate of the deceased for ultimate benefit of the real legal representatives and the same would avoid delay in disposal of the suit. This Court concurs with the above view. In view of above discussion, this petition succeeds. Both the impugned orders dated 10.2.2017 and 8.5.2017 passed by learned Senior Civil Judge, Una District Una, H.P. in CMA No. 43-VI-17 and CMP No.634/17 in Civil Suit No. 7/14/04 titled as Shamsher Singh etc. Vs. Daulat Ram etc. are set aside and learned trial court is directed to rehear and re-adjudicate upon both the applications so filed under Order 1 Rule 10 of the CPC by present petitioners as well as respondents No.1 to 3 and pass orders on the same in accordance with law after affording an opportunity to the parties of being heard. Represented parties through their leaned counsel are directed to appear before the learned trial court on 5th May, 2018.