Madhya Pradesh High Court
Late Shri Modiram Through Lrs. Smt. Kala ... vs Late Smt. Ayodhya Bai Thr Lrs Gulab Bai on 6 January, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 6th OF JANUARY, 2023
MISC. PETITION No. 3394 of 2022
BETWEEN:-
LATE SHRI MODIRAM THROUGH LRS. SMT.
KALA BAI W/O LATE SHRI MODIRAM, AGED
ABOUT 60 YEARS, OCCUPATION: HOUSEWIFE,
1.
R/O DAMPURA, VILLAGE HARSOLA TEHSIL
MHOW, DISTRICT INDORE (MADHYA
PRADESH)
PAWAN JAT S/O LATE SHRI MODIRAM JAT,
AGED ABOUT 36 YEARS, OCCUPATION:
2. AGRICULTURE, R/O DAMPURA, VILLAGE
HARSOLA TEHSIL MHOW, DISTRICT INDORE
(MADHYA PRADESH)
BHARAT JAT S/O LATE SHRI MODIRAM JAT,
AGED ABOUT 34 YEARS, OCCUPATION:
3. AGRICULTURE, R/O DAMPURA, VILLAGE
HARSOLA TEHSIL MHOW, DISTRICT INDORE
(MADHYA PRADESH)
.....PETITIONERS
(SHRI RISHI TIWARI, LEARNED COUNSEL FOR THE PETITIONER.)
AND
LATE SMT. AYODHYA BAI W/O NANDRAM
THROUGH L.R. GULAB BAI W/O SHRI
1. GHASIRAM, AGED ABOUT 59 YEARS, R/O
VILLAGE AALI, TEHSIL AND DISTRICT DHAR
(MADHYA PRADESH)
2. GOPAL GIRI S/O MAHADEV GIRI, AGED ABOUT
49 YEARS, OCCUPATION: AGRICULTURE, R/O
DAMPURA, VILLAGE HARSOLA, TEHSIL
MHOW, DISTRICT INDORE (MADHYA
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 09-01-2023
19:14:09
-2-
PRADESH)
MUKESH S/O MAHADEV GIRI, AGED ABOUT 49
YEARS, OCCUPATION: AGRICULTURE, R/O
3.
DAMPURA, VILLAGE HARSOLA TEHSIL MHOW,
DISTRICT INDORE (MADHYA PRADESH)
STATE OF MP THROUGH THE COLLECTOR,
4. COLLECTOR OFFICE, INDORE (MADHYA
PRADESH)
GRAM PANCHAYAT, VILLAGE HARSOLA
THROUGH SARPANCH, GRAM PANCHAYAT
5.
HARSOLA TEHSIL MHOW DISTRICT INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI ANIL NAGRANI, LEARNED COUNSEL FOR THE RESPONDENT NO.3.
SHRI NITIN PHADKE, LEARNED COUNSEL FOR THE RESPONDENT NO.1.)
--------------------------------------------------------------------------------------------------------
This petition coming on for orders this day, the court passed the
following:
ORDER
Petitioners (hereinafter referred to as defendants) have filed this present petition under Article 227 of the Constitution of India against the order dated 12.05.2022 and 04.07.2022 passed by I Civil Judge Junior Division, Dr Ambedkar Nagar (M.P.). whereby the application under Order 22 Rule 3 and Order 6 Rule 17 has been allowed.
[2] The facts of the case in short are as under:
[2.1] Smt. Ayodhya Bai through the power of attorney holder Smt.
Gulab Bai has filed a suit for declaration and permanent injunction against defendants No.1 to 3 and respondents No. 2 to 4. The plaintiff is seeking a declaration of title of the suit house and open land by virtue of succession after the death of her husband and also seeking a declaration that the sale Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 09-01-2023 19:14:09 -3- deed dated 23.06.2008 executed by defendant No.1 in favour of defendant Nos.2 and 3 be declared void and not binding on her. The suit was filed on 11.05.2010. The petitioners/defendants filed a written statement denying the averment made in the plaint. Defendants Nos. 2 and 3 also filed the written statement. Vide order dated 10.10.2013 the learned Trial Court framed eight issues for adjudication.
[2.2] During the pendency of the suit, Ayodhya Bai died on 28.09.2019, hence Gulab Bai (power of attorney holder) has filed a composite application under Order 22 Rule 3 and Order 6 Rule 17 on 29.11.2019. By way of this application, Smt. Gulab Bai sought substitution of her name as a legal representative by virtue of a Will dated 03.03.1998 executed by the late Ayodhya Bai. By way of amendment under Order 6 Rule 17 she has claimed a declaration that by virtue of Will she has become the exclusive owner of the suit property.
[2.3] The defendants jointly filed a reply to the aforesaid application opposing the substitution of legal heirs as well as an amendment in the plaint on the ground that the Late Ayodhya Bai never executed a Will in favour of Smt. Gulab Bai and the said Will is forged. It is further submitted that Leelabai wife of Ramchandra Gurjar is the sole daughter of Ayodhya Bai therefore, her name is liable to be brought on record as the legal heir as well as the legal representative. [2.4] So far as the application filed under order 6 Rule 17 is concerned, it is contended that by seeking a declaration of title by virtue of will the plaintiff cannot be permitted to change the nature of the suit. Learned Trial Court vide impugned order dated 12.05.2022 has allowed the application. Thereafter the defendants filed an application seeking consequential amendment in the written statement that too has been Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 09-01-2023 19:14:09 -4- allowed vide order dated 04.07.2022. Thereafter the plaintiff filed an application seeking re-examination of Gulab Bai as a plaintiff in the suit which has been allowed vide order dated 04.07.2022.
The petitioner has filed this present petition challenging the order dated 12.05.2022 as well as the order dated 04.07.2022 however, at the time of argument on admission on 18.08.2022 the petitioner has restricted his prayer so far as the ''relief No.7.1'' is concerned, i.e. the validity of the order dated 12.05.2022.
[3] Shri Rishi Tiwari, learned counsel for the petitioner submits that the learned Trial Court has committed a grave error of law while allowing under Order 22 Rule 3 of the C.P.C. without conducting any inquiry to ascertain who is the legal heirs/legal representative of the late Ayodhya Bai when the defendant came up with the specific plea that the daughter of Ayodhya Bai is alive therefore, her name is liable to be brought on record. It is further submitted that while allowing the application under Order 6 Rule 17 of the C.P.C., the learned Court ought to have examined that by way of amendment the nature of the suit is likely to be changed which is not permissible as held by Apex Court in the case of Chakreshwari Construction Private Limited v/s Manohar Lal reported in (2017) 5 SCC 212.
[4] Per contra, Shri Nitin Phadke, learned counsel for respondent No.1/plaintiff argues that the petitioners/defendants are estopped from challenging the validity of the order dated 12.05.2022 concerning the amendment allowed under Order 6 Rule 17 because the consequential amendment has been made in the written statement and now the suit is liable to be decided on merit. It is further submitted that the plaintiff late Ayodhya Bai claimed the title over the suit property by way of present suit Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 09-01-2023 19:14:09 -5- filed for declaration of title and now after her death Gulab Bai entered into the shoes of the plaintiff therefore, she is also required to seek a declaration of title by way of the will executed in her favour, therefore, the nature of the suit is not going to be changed. Since Leela Bai has no right to be substituted in place of the plaintiff or she is not a necessary or proper party in this suit as there is a will in favour of Smt. Gulab Bai. If Leelabai is aggrieved by the will, she may file a separate suit challenging the will in favour of Gulab Bai.
I have heard the learned counsel for the parties and perused the record.
[5] The plaintiff late Ayodhya Bai filed a suit for a declaration of title as well as a permanent injunction that she became the owner of the property after the death of her husband. Therefore, the suit is filed in respect of the declaration of the title. Now, the Ayodhya Bai expired and the Gulab Bai filed an application claiming herself to be substituted as legal representative by virtue of a Will, therefore, now by virtue of will she is seeking a declaration of title of the suit property, the nature of the suit is not going to be changed especially when the defendants are disputing the execution of the will hence, the learned Court has not committed any error of law under Order 6 Rule 17 of the C.P.C. and thereafter now the petitioner has made consequential amendment in the written statement, therefore, now the petitioner is estopped from challenging the validity of the said order in respect of amendment in the plaint.
[6] Order 22 Rule 5 of the C.P.C. specifically provides that if the question arises as to whether any person is or is not the legal representative of the deceased plaintiff or a deceased-defendant such question shall be determined by the Court. In the present case, the defendants came up with Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 09-01-2023 19:14:09 -6- plea that Leelabai is a daughter, therefore, the name of Gulab Bai is not liable to be brought on record as a legal representative in place of the plaintiff. The learned Trial Court, without conducting any inquiry under the above provision of the C.P.C. has allowed the application, hence, the impugned order is set aside and the matter is remitted back to the learned Trial Court to decide the application filed under Order 22 Rule 5 of the C.P.C. afresh after giving notice to Leela Bai before proceeding in the trial.
It is made clear that if the learned trial court comes to the conclusion that the suit is liable to be continued through Smt. Gulab Bai then the amendment brought by way of Order 6 Rule 17 shall continue but if the learned Trial Court comes to the conclusion that the suit is liable to be continued by substituting the name of Leela Bai as one of the plaintiffs then Leela Bai shall be free to participate in the pending suit.
In view of the above, the present petition is partly allowed. No order as to cost.
(VIVEK RUSIA) JUDGE Divyansh Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 09-01-2023 19:14:09