Delhi District Court
Ram Nath vs . Rama Wati @ Ramwati on 11 May, 2022
IN THE COURT OF MS. CHITRANSHI ARORA , CIVIL
JUDGE-02, SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI.
CS SCJ 3/20
RAM NATH Vs. RAMA WATI @ RAMWATI
11.05.2022
ORDER
1. Vide this order, I shall decide the application under Order 22 Rule 3 CPC read with Section 151 CPC filed by the applicant Sh. Ram Lal to be impleaded as the legal representative of the deceased plaintiff.
2. In the application, it has been averred that the plaintiff had expired on 24.04.2021 and he had debarred the defendant and his children namely Sunita, Rita, Anita and Jitender Kushwaha from all his moveable and immovable assets. However, he had executed his last registered Will dated 21.07.2020 and bequeathed all his properties in favour of his elder son i.e. the applicant Sh. Ram Lal. It has been further averred that the right to sue survives in favour of the applicant and hence he be impleaded as a legal representative Late Sh. Ram Nath.
3. In reply to the application, the defendant has averred that the present application has been filed on the basis of a CS SCJ 3/20 RAM NATH Vs. RAMA WATI @ RAMWATI page no. 1 of 7 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2022.05.11 17:06:03 +05'30' forged and fabricated Will since the deceased plaintiff, due to ill health and his old age was unable to read, write or understand and hence the Will cannot be relied upon. Further, the Will has not been validated by filing probate or any other case before any court of law. Therefore, the applicant is not the sole legal heir of the deceased plaintiff. Further, the defendant has averred that the applicant has already filed a civil suit on the basis of the alleged Will and the said Will has been disputed by the other legal heirs. Also, the defendant has averred that the right to sue does not survive against the defendant mother who is also a legal heir of the deceased plaintiff and hence the present suit has become infructuous.
4. Arguments were advanced by the Ld. Counsels for both the parties.
5. The plaintiff had initially filed a suit for injunction against his wife i.e. the defendant seeking relief that she may be restrained from transferring or creating any third party interest in any manner in the suit property and from harming the original property documents i.e. GPA, Agreement to sell, affidavit and receipt dated 12.02.1986 in respect of the property bearing house no. 2841, Gali No. 69, Block E-II, Molarband Extension, Badarpur, New Delhi-110044 along with decree for mandatory injunction directing the defendant to hand over the property papers to the plaintiff.
CS SCJ 3/20RAM NATH Vs. RAMA WATI @ RAMWATI page no. 2 of 7 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2022.05.11 17:06:21 +05'30'
6. It is a matter of record that the plaintiff expired on 24.04.2021. The applicant Sh. Ram Lal wants to be impleaded as the legal representative of the deceased plaintiff.
7. The first objection raised by the defendant is that the Will on the basis of which the applicant seeks to be impleaded as a party to the suit is forged and fabricated and not validated by filing probate or any other case. Further, the defendant has averred that the Will has been disputed by the other legal heirs in another case bearing CS No. 1140/2021. However, this objection is not tenable since O 22 R 3 CPC is only for the purpose of bringing on record the legal representative for conducting the legal proceedings in that particular case and does not impact the interse dispute between the rival legal heirs. The 'legal representative' for the purpose of Order 22 Rule 3 CPC, does not mean 'legal heir'. If the application under O 22 R 3 CPC is to be allowed, it only means that the applicant is the 'legal representative' of the deceased plaintiff in this case and does not lead to any conclusion as to the veracity of the Will dated 21.07.2020. The real character of whether the applicant is the 'legal heir' of the deceased plaintiff or not will be decided by the competent court in which the Will has been challenged. I place reliance on the judgment of the Hon'ble Supreme Court in the case of 'Suresh Kumar Bansal Vs. Krishna Bansal and Anr' (2010) CS SCJ 3/20 RAM NATH Vs. RAMA WATI @ RAMWATI page no. 3 of 7 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.05.11 17:06:36 +05'30' 2SCC 162, wherein the Hon'ble Supreme Court has held as follows: -
"it is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under O 22 R 5 of the Code of Civil Procedure is only for the purpose of bringing legal representative on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter-se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings"
8. Further, in the case of Binapani Kar Chowdhury vs Sri Satyabrata Basu And Anr on 16 May, 2006 SC, the Hon'ble Supreme Court has observed as follows: -
"Therefore, where the right of either an executor or a legatee under a Will is in issue, such right can be established only where probate (where an executor has CS SCJ 3/20 RAM NATH Vs. RAMA WATI @ RAMWATI page no. 4 of 7 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2022.05.11 17:06:51 +05'30' been appointed under the Will) or letters of administration (where no executor is appointed under a Will) have been granted by a competent court. Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a, claim as an executor or a legatee, in the absence of a Probate or Letters of Administration in regard to such a will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs) and he dies during the pendency of the suit, the executor or legatee under his will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 not come in the way of an executor or legatee being so substituted in place of the deceased plaintiff, even though at the stage of such substitution, probate or letters of administration has not been granted by a competent court".CS SCJ 3/20
RAM NATH Vs. RAMA WATI @ RAMWATI page no. 5 of 7 CHITRANSHI Digitally signed by CHITRANSHI ARORA ARORA Date: 2022.05.11 17:07:03 +05'30'
9. Thus, in view of the above judgments of the Hon'ble Apex Court of India, it is clear that there is no bar on the applicant being impleaded as the legal representative in the present suit, even though the Will has been disputed.
10. The second objection raised by the defendant is that the right to sue in favour of the plaintiff does not survive. However, in a suit relating to injunction in respect to immovable property the right to sue is not personal to the plaintiff and does survives to his legal representatives. I place reliance upon the observations of the Hon'ble Karnataka High Court in the case titled as 'Chennaiah and Ors Vs. Bylappa and Anr' decided on 11.04.2022, wherein it is observed that:-
"if it is to be held that in a suit for injunction, whenever a plaintiff or defendant dies, the suit would abate, it would be virtually creating a never ending cycle of litigation, which obviously would result in an absurd situation where a party is to be perennially litigating in courts"
11. Thus, both the objections raised by the defendant are CS SCJ 3/20 RAM NATH Vs. RAMA WATI @ RAMWATI page no. 6 of 7 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.05.11 17:07:15 +05'30' not tenable. Therefore, there is no reason for the court to disallow this application.
12. In view of the above discussion, the application under O 22 R 3 CPC is allowed and the application Sh. Ram Lal is impleaded as the legal representative of the deceased plaintiff. Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.05.11 17:07:27 +05'30' (Chitranshi Arora) CJ-02, South-East, Saket Court, ND 11.05.2022 CS SCJ 3/20 RAM NATH Vs. RAMA WATI @ RAMWATI page no. 7 of 7