Madhya Pradesh High Court
Arjuman Aara vs Bismilla Bee on 19 September, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF SEPTEMBER, 2022
WRIT PETITION NO.2422 OF 2015
Between:-
1. ARJUMAN AARA W/O SHRI
ASHRAF, D/O SHRI RASULUDDIN,
AGE 43 YEARS, R/O SOTIGANJ,
DELHI ROAD, MEERUT (UTTAR
PRADESH)
2. SALTANAT AARA W/O SHRI EFAJ
D/O SHRI RASULUDDIN, AGE 38
YEARS, R/O BAAVAN PAIYGA,
CHITRA LAUNDRY (DISC CIRCLE)
GWALIOR (MADHYA PRADESH)
3. FARHAT AARA W/O SHRI VALI
AHMED, D/O SHRI RASULUDDIN,
AGE 36 YEARS, R/O KENDRIYA
ANCHAL COLONY, KANPUR
(UTTAR PRADESH)
4. NIKHAT AARA W/O SHRI IMTIYAZ
D/O SHRI RASULLUDIN, AGE 34
YEARS, R/O BAAVAN PAIYGA,
(DISC UNCLE), NEAR CHITRA
LAUNDRY, GWALIOR (MADHYA
PRADESH)
5. AJMAT AARA W/O SHRI SUFI, D/O
SHRI RASULUDDIN, AGE 32
YEARS, R/O FATEHGANJ
AMINABAD ROAD, LUCKNOW
(UTTAR PRADESH) (C/O HAAJI
2
KHUDABAKSH, HAAJI FAKEER
BAKSH TAMBAKUWALE)
6. FARHADIVA W/O SHRI SAAKIB,
D/O SHRI RASULUDDIN, AGE 30
YEARS, R/O BADA BAZAR, VIDISH
(MADHYA PRADESH)
........PETITIONERS/DEFENDANT NO.1 TO 6
(BY SHRI A.V. BHARDWAJ - ADVOCATE)
AND
1. BISMILLA BEE WD/O SHRI ABDUL
KAREEM, D/O LATE SHRI
MOHAMMED RASUL, AGED
ABOUT 78 YEARS, R/O INFRONT
OF MUGHAL TOLA MASJID,
VIDISHA (MADHYA PRADESH)
2. NASIRUDDIN S/O LATE SHRI
MOHAMMAD RASUL, AGED
ABOUT 54 YEARS, R/O QILE
ANDAR, MUGHAL TOLA, VIDISHA
(MADHYA PRADESH)
(DELETED VIDE ORDER DATED
31.7.2019)
a) SMT. SHAKRA BEGUM W/O LATE
SHRI NASEERUDDIN, AGE 62
YEARS.
(DELETED VIDE ORDER DATED
8.2.2022)
b) NAHID KHANAM D/O LATE SHRI
NASEERUDDIN, AGE 44 YEARS.
c) NAVED ALAM S/O LATE SHRI
NASEERUDDIN, AGE 40 YEARS
d) AADIL ALAM S/O LATE SHRI
NASEERUDDIN, AGE 38 YEARS
e) JUBER ALAM S/O LATE SHRI
NASEERUDDIN, AGE 36 YEARS
3
f) NADEEM ALAM S/O LATE SHRI
NASEERUDDIN, AGE 33 YEARS.
g) USAMA ALAM S/O LATE SHRI
NASEERUDDIN, AGE 23 YEARS
ALL R/O RAISEN GATE, MUGHAL
TOLA, VIDISHA (MADHYA
PRADESH)
3. STATE OF MADHYA PRADESH
THROUGH COLLECTOR, VIDISHA
(MADHYA PRADESH)
........RESPONDENTS
(SHRI G.K. AGRAWAL - GOVERNMENT ADVOCATE FOR
STATE AND SHRI ROHIT BANSAL - ADVOCATE FOR
RESPONDENT NO.2)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed against the order dated 11.03.2015 passed by Fourth Civil Judge, Class-II, Vidisha in Civil Suit No.73-A/2010, by which the application filed by Naved Alam respondent No. 2(c) for substitution of his name in place of Bismilla Bee on the strength of registered Will has been allowed.
2. The necessary facts for disposal of present petition in short are that Late Bismilla Bee filed a suit for declaration of title and injunction. It was her case that the plaintiff is the paternal aunty of the petitioners and she is having 1/5th share in the property. Late Bismilla Bee died during 4 pendency of the suit and, accordingly, one Naved Alam s/o defendant No. 7 Naseerudeen filed an application for substitution of his name as legal representative of original plaintiff on the ground that original plaintiff Bilmilla Bee has executed a registered Will in his favour. The said application was opposed by the petitioner. However, by the impugned order, the Trial Court has allowed the application on the ground that whether the Will is a forged document or not, is a question of evidence which cannot be adjudicated at this stage.
3. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that filing of an application for bringing the legal representative on record does not amount to bringing the legal representative on record. When such an application is filed, the Court should consider and decide whether the person named therein are the legal representatives or not and until such a decision is given, the proposed legal representative has no right to represent the estate of the deceased. The petitioner as well as Naved Alam are nephews of deceased Bismilla Bee.
4. Per contra, the petition is vehemently opposed by the counsel for the respondents and supported the order passed by the Trial Court.
5. Heard the learned counsel for the parties.
6. The Order 22 Rule 5 of CPC 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 5 question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.
7. Thus, wherever the question is raised before the Trial Court as to whether the person is or is not the legal representative, then such question has to be determined by the Court.
8. The Supreme Court in the case of Karedla Parthasaradhi v. Gangula Ramanamma reported in (2014) 15 SCC 789 has held as under:-
26. This Court in Jaladi Suguna v. Satya Sai Central Trust [Jaladi Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521] had the occasion to interpret Order 22 Rules 4 and 5 CPC, R.V. Raveendran, J., speaking for the Bench after examining the object underlying in Order 22 Rules 4 and 5, held as under: (SCC pp. 526-27, paras 15-16) "15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation 6 of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased.
16. The provisions of Order 22 Rules 4 and 5 are mandatory. When a respondent in an appeal dies, the court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal.
Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record."
9. Whenever a question arises as to whether the person is the legal representative or not, then such question cannot be postponed for decision at a later stage. Thus, it is clear that for the purpose of verifying 7 as to whether the applicant is a legal representative or not, the Court must conduct a limited enquiry under Order 22 Rule 5 of CPC. Adjudication of property rights and adjudication of right to represent the estate of deceased are two different aspects.
10. Under these circumstances, this Court is of the considered opinion that the Trial Court committed material illegality by postponing the decision on the question of Will for the purposes of adjudicating the question that who is legal representative. Under these circumstances, the impugned order dated 11.03.2015 cannot be given stamp of approval and consequently it is hereby set aside.
11. The Trial Court is directed to conduct limited enquiry to adjudicate as to whether any Will was executed by Bismilla Bee in favour of the respondent No. 2(c) / son of defendant No. 7 or not and decide the question of legal representative accordingly.
12. Since the further proceedings were stayed by this Court, therefore, parties are directed to appear before the Trial Court on 17.10.2022.
13. With aforesaid observations, the petition succeeds and is hereby allowed.
(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.09.22 16:38:31 +05'30'