Punjab-Haryana High Court
Karamjit Singh vs Harbans Singh on 3 September, 2024
Neutral Citation No:=2024:PHHC:117244
1
CR No.4015 of 2024 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.4015 of 2024 (O&M)
Date of Reserve: 23.07.2024.
Date of Decision: 03.09.2024
KARAMJIT SINGH ......Petitioner(s)
Vs
HARBANS SINGH ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJ
MANUJA
Present: Mr. Mansur Ali, Advocate with
Mr. Tushaar Madaan, Advocate
for the petitioner.
Mr. Divanshu Jain, Advocate
for the respondent.
***
HARKESH MANUJA, J.
[1]. By way of present revision petition filed under Article 22 227 of the Constitution of India, challenge has been laid to an order dated 31.05.2024 passed by the Addl. District Judge, SAS Nagar (Mohali) (hereinafter to be referred as 'the First Appellate Court'), Court') whereby application filed at the instance of applicant-
applicant Karamvir Singh seeking his impleadment as legal representative of deceased Harbans Singh/plaintiff stands allowed. [2]. In the given facts, respondent/plaintiff respondent/plaintiff-Harbans Singh filed a suit for possession by way way of ejectment against petitioner qua the property i.e. House No.1683 (Ground & First Floor), situated at Phase 3B2, SAS Nagar (Mohali). The suit was decreed in favour of Harbans Singh/plaintiff vide judgment and decree dated 11.01.2016 passed by the Civil Civil Judge (Jr. Divn.) Mohali. Aggrieved thereof, petitioner/defendant filed a Civil Appeal No.132 of 2016. During its pendency, 1 of 18 ::: Downloaded on - 09-09-2024 21:25:43 ::: Neutral Citation No:=2024:PHHC:117244 2 CR No.4015 of 2024 (O&M) Harbans Singh/plaintiff expired on 12.04.2021 followed by an application dated 12.01.2022 filed on behalf of applicant-Karamvir applicant Karamvir Si Singh seeking his impleadment as legal representative of the deceased. The said application was though opposed at the instance of petitioner, however, the same came to be allowed vide order dated 30.03.2022 by the Addl. District Judge, SAS Nagar (Mohali). [3]. Aggrieved thereof, the petitioner approached this Court by way of filing revision petition bearing CR No.1282 of 2023, which came to be disposed of vide order dated 03.10.2023 and the matter was remanded back to the Appellate Court for adjudication upon upon the application filed on behalf of the applicant-
applicant Karamvir Singh seeking his impleadment as legal representative of deceased Harbans Singh with the following observations:-
observations:-
"10. Considering the submissions addressed by both the sides and taking note of the judgment reported in Jaladi Suguna (dead) through L.Rs case (supra), I hereby deem it appropriate to set aside the order dated 30.03.2022 by directing the respondent herein to file his application afresh under Order XXII Rule 5 CPC and accordingly, th thee petitioner herein would also be given a chance/effective opportunity to file his detailed reply.
Thereupon, the same would be decided a fresh by the learned Appellate Court after taking note of the provisions of law under Order XXII Rule 5 CPC and the judgment judgment referred herein above.
11. Ordered accordingly. The said exercise would be completed within four weeks from the date of receipt of certified copy of this order.
12. Accordingly, both the petitions stand disposed of." [4]. In pursuance thereof, fresh application dated 16.10.2023 seeking his impleadment as legal representative of deceased Harbans Singh claiming himself to be the son, was filed by the applicant-Karamvir applicant Karamvir Singh and reply to the said 2 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 3 CR No.4015 of 2024 (O&M) application was also filed by the petitioner. In vview of such situation, the First Appellate Court framed the following issues:-
issues:
"1. Whether Sh. Harbans Singh has expired on 12.04.2021 ? OPA
2. Whether Karamvir Singh is the only adopted son of the deceased Harbans Singh and therefore, he is his legal rep representative?
resentative? OPA
3. Whether Karamvir Singh is the legal representative of the deceased Harbans Singh on the basis of Will dated 14.02.2011? OPA"
4. Relief."
[5]. Both the sides were afforded opportunity to lead their respective evidence in relation to the aforesaid issues. Finally vide the impugned order dated 31.05.2024, the First Appellate Court allowed the application filed on behalf of Karamvir Singh while impleading him as legal representative of deceased Harbans Singh for the purposes of pursuing pursuing the Civil Appeal No.132 of 2016. Aggrieved thereof, the present revision petition has been filed.
[6]. Learned counsel counsel for the petitioner submitted that the plea regarding adoption of Karamvir Singh by deceased Harbans Singh was rejected by the First Firs Appellate Court, however, the same was nowhere challenged by the applicant-
applicant Karamvir Singh and, thus, the only cause of action on the basis of which the applicant-Karamvir Karamvir Singh claimed himself to be legal representative of deceased remains the Will dated 14.02.2011 allegedly executed by deceased Harbans Singh in his favour. In this regard, learned counsel submits that though the Will dated 14.02.2011 been proved on record in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 read read with Section 68 of the Indian Evidence Act, 1872, yet the same being surrounded by suspicious circumstances was liable to be discarded on account of following grounds:
grounds:-
3 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 4 CR No.4015 of 2024 (O&M)
(a) Though the wife of testator Harbans Singh was alive at the time of execution of Will dated 14.02.2011, yet in the testamentary document, no mention about it or arrangements were made qua her rights.
(b) The Will in question was though executed on 14.02.2011, however, as per the deposition made by the attesting witness AW5- AW5 Davinder vinder Pal Singh, he was instructed by the testator not to disclose the factum of its execution to the beneficiary, whereas no such covenant finds mentioned in the testamentary document.
(c) The language used in the Will about the relationship of Karamvir Singh-beneficiary Singh eneficiary with the testator was not happily worded. The Will being vague, no details of properties owned or inherited by the testator mentioned therein. Even no reasons were mentioned in the Will for discarding the other natural legal heirs by the testator, testato especially his sisters, brothers and their wards. [6.1]. Learned counsel for the petitioner further referred to the proviso to Sub-Rule 5 of Order 22 CPC to submit that the First Appellate Court committed procedural irregularity in the absence of sending the matter to the Trial Court for the purposes of recording of evidence on the issue of applicant applicant-Karamvir Karamvir Singh being the legal representative representative of deceased Harbans Sin Singh.
gh. Learned counsel also submitted that once the Appellate Court was of the view that the issue regarding impleadment of applicant-Karamvir applicant Karamvir Singh as legal representative of deceased Harbans Singh required evidence, the First Appell Appellate ate Court was enjoined to send the matter to the Trial Court for the purposes of recording evidence on the said 4 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 5 CR No.4015 of 2024 (O&M) issue, rather than taking upon itself to records the same and adjudicate it.. In this regard, learned counsel refers to M/s Kanhiya Singh Santokh Singh & Ors. vs. Kartar Singh, 2009(5) SCC 155. He also refers to Karedia Parthasradhi vs. Gangula Ramanamma (D) Through L.Rs. and others, 2015(4) SCC (Civil) 515; 515 Swami Vedvyasanand Ji Maharaj (D) Thr LRs vs. Shyam Lal Chauhan & Ors., Civil Appeal Nos.5569-5570 Nos.55 5570 of 2004 @ SLP(C) Nos.1717 Nos.1717-1718 1718 of 2020 decided on 30.04.2024;; Jaladi Suguna (Dead) through LRs. vs. Satya Sai Central Trust and Ors., Civil Appeal No.3375 of 2008 (arising out of SLP(C) No.7818 of 2007) decided on 05.05.2008;
05.05.2008 Bharat Petroleum Corpo Corporation ration Ltd. vs. P. Kesavan and another, 2004(9) SCC 772 and Suresh Nanda vs. C.B.I., 2008(3) SCC 674. [6.2]. Learned counsel further submitted ted that once the factum of deceased Harbans Singh having other brothers and sisters was brought on record through deposition of AW-6 AW 6 Gurdial Singh, it was essential for the First Appellate Court to have brought all of them on record, record may be as proforma defen defendants.
dants. In this regard, learned counsel refers to decision passed by this Court in case of Shri Dhramvir 331 No other argument was addressed. vs. Mela Ram, 1990 PLJ 331.
[7]. On the other hand, learned counsel representing the respondent submits that in the application filed under Order 22 Rule 5 CPC, it was specifically pleaded by the applicant-Karamvir applicant Karamvir Singh that he happens to be the son of deceased Harbans Singh. In this regard, regard learned counsel placed reliance upon the following documents, which were even proved on record through various witnesses:-
Witness Name & Designation of Document proved Exhibit No. No. witness AW-2 Sandeep Raini, Deputy Proved Account Ex.AW-2/1 Manager, Punjab National Statement of Joint Ex.AW-2/2 Bank Account of Harbans 5 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 6 CR No.4015 of 2024 (O&M) Singh and Karamvir Singh AW-3 Raj Kumar, Inspector, Proved Ration Card Ex.AW3/1 Food and Civil Supplies showing Karamvir Mark 6/1 Singh son of Harbans Singh AW-4 Sarabjit Singh, Proved Original Ex.PW-4/2 Registration Clerk Transfer Deed in favour of Karamvir Singh and Registered Will in favour of Karamvir Singh AW-5 Davinder Pal Singh, Proved Registered Ex.AW-4/2 Attesting Witness of Will Will in favour of Karamvir Singh AW-6 Gurdial Singh, Sarpanchy Proved Karamvir of Gram Panchayat, Singh was about 4 Gondpur days when Gurmeet Kaur and Harbans Singh brought him home AW-7 Jarnail Singh, Attesting Proved Transfer Ex.AW-4/1 Witness of Transfer Deed Deed in favour of Karamvir Singh AW-8 Harjinder Singh Proved Harbans (Biologinal Father of Singh adopted Karamvir Singh) Karamvir Singh since he was not having a child.
Harbans Singh told him not to disclose about adoption AW-9 Ms. Meenakshi Sharma, Proved Voter Card Ex.AW-9/1 from the office of Electoral and Voter List District Commission showing Karamvir Singh son of Harbans Singh AW-10 Anil Kumar Lamba, Jr. Proved 10th Ex.AW-10/1 Assistant, Office of CBSE Certificate and 12th Ex.AW-10/2 Certificate showing Karamvir Singh son of Harbans Singh AW-11 Garish Sharma, Civil Proved Birth Ex.AW-11/1 Registration, Assistant Certificate showing Office, Civil Surgeon, Karamvir Singh son Hoshiarpur of Harbans Singh AW-12 B.P. Yadav, JCO-cum- Proved Service Ex.AW-12/1 Clerk, New Delhi record of Lt. Col. Ex.AW-12/2 Harbans Singh and Ex.AW-12/7 letter dated Ex.AW-12/8 06.04.2017 showing 6 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 7 CR No.4015 of 2024 (O&M) Karamvir Singh son of Harbans Singh [7.1]. Learned counsel further submitted submit that the matter was being agitated by the petitioner as if the rights, title or interest in the property in question were to be adjudicated upon and conferred upon the parties to the present lis,, whereas infact the application merely pertained to the determination of legal representative of the deceased Harbans Singh and not his legal heirs. In this regard, he placed reliance upon the definition of legal representative as laid down under Section 2 Sub-Section 11 of CPC, which reads as under:-
"A A Legal representative is a person in law who represents the estate of the deceased and includes any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued."
Further, in the aforesaid aforesai context learned counsel placed reliance upon decision rendered by the Hon'ble Apex Court in case of Yashpal Jain Vs. s. Sushila Devi and others, others 2023 AIR (Supreme Court) 5652 5652.
[7.2]. Learned counsel also referred to para No.4 of the plaint filed by Harbans Singh seeking possession by way of ejectment against petitioner herein, where one of the ground seeking ejectment was the bona fide need of Karamvir Singh while referring him to be the son of deceased deceased/landlord-Harbans arbans Singh. The said paragraph from the plaint is extracted hereunder:
hereunder:-
"4. That the plaintiff wants to settle and to start his business at S.A.S. Nagar, Mohali. The son of the plaintiff namely Karamvir Singh also wants to get higher education at S.A.S. Nagar, Mohali. The house
7 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 8 CR No.4015 of 2024 (O&M) in suit is required for the plaintiff and his family for their personal use and occupation."
[7.3]. Learned counsel also submitted that the primary reason for rejecting the plea of adoption as set up by the applicant-Karamvir Karamvir Sin Singh gh was that no specific pleadings in this regard were made in the application fi filed led under Order 22 Rule 5 CPC, besides, esides, the absence of proof of statutory requirement requirements under Sections 6 to 11 of the Hindu Adoption and Maintenance Act, 1956. It was, thus, submitted that even if the plea of adoption was not established on record, there was ample evidence to show that the applicant-Karamvir applicant Karamvir Singh remained in custody of deceased Harbans Singh since his childhood and was throughout acknowledged being his son, may it be his educational records,, the voter identity card or even the other statutory documents including PAN card, ration card, passport etc. as well as the service record pertaining to deceased Harbans Singh. [7.4]. As regards the plea of suspicious circum circumstances stances allegedly surrounding the Will in question, learned counsel submitted that the same was dealt with by the First Appellate Court in extensive, extensive finding none to be suspicious. It was also submitted that the adjudication/determination of applicant-Karamvir mvir Singh as legal representative of deceased Harbans Singh was based on proper appreciation of detailed documentary evidence available on record including the registered Will dated 14.02.2011 and, thus, the same calls for no interference. [7.5]. Learned counsel for the respondent also submitted that the reliance upon proviso to Rule 5 of Order 22 CPC by the other side, was wholly misplaced as the same nowhere where mandates the First Appellate Court in all possible situations to send the matter back to the Trial Court for the purposes of recording of evidence 8 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 9 CR No.4015 of 2024 (O&M) on the issue of impleadment of an individual being legal representative/legal heir of deceased litigant. He also points out that no such objection was even raised by the petitioner before the First Appellate Court upon framing of issues and even thereafter while the evidence was being led in pursuance thereof.
In support of his submissions, submissions, learned counsel placed reliance upon Madan Mohan Singh vs. Ved Prakash Arya, 2021(2) R.C.R. (Civil) 304 304; Net Ram vs. Virender Kumar, 2013(26) R.C.R. (Civil) 943 943; Harbans Lal and others vs. Devinder Kumar and others, 2010(1) R.C.R. (Civil) 626 626; Neeraj Kumar and another vs. Naresh Kumar, RSA No.928 of 2010 decided on 02.03.2010 02.03.2010; Anguri Devi vs. Jasmer Singh, 2006(4)
4) R.C.R. (Civil) 707 707; Laxmidas Morarji (Dead) by LRs vs. Miss Behrose Darab Madan, 2009(2) R.C.R. (Rent) 347 347; Yashpal Jain vs. Sushila Devi & others, 2023d AIR (Supreme Court) 5652 and Jai Parkash vs. Ashok Kumar Sawhney, 2020(2) R.C.R. (Rent) 206 206. [8]. I have heard learned counsel for the parties and gone through the paper book. I am unable to find substance in the submissions made on behalf of the petitioner.
[9]. Summarily, learned Counsel for the petitioner raised two arguments. Firstly, although the t Will ill was proved in accordance with law, but it was surrounded by suspicious circumstances. Secondly, in view of Order 22 Rule 5 CPC, the First Appellate Court should have remanded the proceedings back to the Trial rial court for recording of the evidence. Both Both these contentions are dealt with in the following paras in detail.
9 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 10 CR No.4015 of 2024 (O&M) Discussion regarding suspicious circumstances around the Will [10]. In the humble opinion of this Court, no suspicion can be found in the circumstances tried to be projected by the petitioner. Voluminous documentary evidence was brought on record by the applicant applicant-Karamvir Singh, which was proved in accordance with law as well. Additionally, oral ev evidence idence of other witnesses leavess no doubt in the mind of the C Court ourt that for all practical purposes, there existed a relationship of son and father between applicant-Karamvir Karamvir Singh and Harbans Singh. Even though on technical grounds, Karamvir Singh could not be held as the adopted son of Harbans Harb Singh, but the First Appellate Court rightly held that since Karamvir Singh was brought up from the age of 33-4 4 days by Harbans Singh and his wife Gurmeet Kaur, the they y treated him like his son and accordingly his name was also recorded as their son in all documentary evidence starting from the birth certificate till ECHS Card of the applicant applicant. Still further, besides having examined AW-5 AW 5 Davinderpal Singh, who happened to be one of the attesting witness to the Will dated 14.02.2011, A AW4-Sarabjit Singh, Clerk k from the office of Sub-Registrar, Registrar, was also examined, who not only verified the execution of Will dated 14.02.2011 .02.2011 in favour of applicant-
applicant-Karamvir Singh, but also proved record pertaining to transfer deed executed by Harbans Singh in respect of 99 kanals 19 marlas of agricultural ral land in favour of applicant applicant-Karamvir Karamvir Singh son of Harbans Singh vide transfer deed document 2020 2020-2021/160/1/649 2021/160/1/649 dated 17.11.2020. This comprehensively established the fact that Harbans Singh started transferring his property pr in favour vour of applicant applicant-Karamvir Karamvir Singh out of love and affection even when he was alive.
10 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 11 CR No.4015 of 2024 (O&M) [11]. In view of these attending circumstances, objections raised by learned Counsel for the petitioner to show that Will dated 14.02.2011 was surrounded by suspicious circumstances are frivolous and imaginary and are discussed in more detail in subsequent paras.
paras But before adverting to the merits of these objections/circumstances, it is necessary to point out that these objections are also liable to be discarded on multiple multiple counts apart from there being any substance in these objections. In the humble opinion of this Court, in the facts and circumstances of the present case, the petitioner has no locus to raise these objections. Admittedly, he happened to be a tenant in the disputed property and it was also admitted by him that the tenancy agreement brought on record by him was not signed by the landlord-Harbans landlord Harbans Singh. While a person having some legal interest in the property can be held to be entitled to raise such objec objections, tions, but petitioner, who at best has possession as a tenant only (though it has been denied by the respondent), cannot be allowed to raise all these objections. In this context, this Court is in complete concurrence with the reliance placed upon by lear learned ned First Appellate Court C in judgment passed by the Hon'ble Apex Court in "Dashrath Rao Kate v. Brij Mohan Srivastava", reported as (2010) 1 SCC 277.. Relevant para from this judgment is reproduced here under under:-
"19.
19. All this is apart from the fact that the tenant in this case could not have challenged the Will at all. He was an utter outsider and had no interest in the property as owner. Indeed, from the pleadings and evidence, it is clear that tenant-respondent tenant respondent has not even ventured to claim any rival interest interest against the appellant/plaintiff.
appellant/plaintiff."
[12]. In this context, argument raised by learned counsel for the applicant-
applicant Karmvir Singh also gains significance that application in concern was only to 11 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 12 CR No.4015 of 2024 (O&M) decide the legal representative(s) of Harbans Singh in the pr present esent case and not to decide the legal heir(s). This Court finds substance in this submission and accordingly, the obligation to prove the fact that applicant applicant-Karamvir mvir Singh can represent the estate state of Harbans Singh against a stranger third party is prima-facie facie only. In this context, it is appropriate to notice the observation made by the Hon'ble Apex Court in Yashpal Jain's case (Supra) while interpreting the meaning of the term "legal representative" differentiating it from "legal heir", wherein, the Hon'ble Apex Court observed as hereunder:-
hereunder:
"3. At this juncture, we would like to point out that a careful perusal of the application and the orders passed by the courts below would indicate that the parties and the courts below seem to have proceeded on the the footing that they were to adjudicate the rights of a legal heir which if seen in the light of expression used in the Code of Civil Procedure (hereinafter referred to as `CPC') is impermissible, as it is not referable to `legal heir' but `legal represent representative' ative' as defined under Section 2(11) which reads:
"Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. On the death of a party to the suit it is the legal representative who is/are entitled to prosecute the proceedings and, in law, represent the estate of the deceased. The legal representative who is brought on estate record not only includes a legatee under a Will but also an intermeddler of the property who would be entitled to sue and to be sued and/or continue to prosecute the proceedings. This vital aspect aspe seems to have been lost sight of by the courts below conveniently."
12 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 13 CR No.4015 of 2024 (O&M) In such circumstances, Will dated 14.02.2011 being a registered testament; even proved as per the requirement of law in terms of Section 63 of the Indian Succession Act, 1925 and Section Section 68 of the Indian Evidence Act, 1872, 1872 a third party which is stranger to the estate of Harbans Singh, cannot be allowed to raise any objection that the Will was surrounded by suspicious circumstances. [13]. Apart from all the documentary evidence brou brought on record ecord by the applicant- Karamvir Karamvir Singh, his status as legal representative in the present case is further fortified from the content of the civil suit filed by Harbans Singh. While seeking ejection of the petitioner, apart from mentioning that pla plaintiff intiff wants to settle and to start his business at S.A.S. Nagar, Mohali, it was also specified by him that the son of the plaintiff namely Karamvir Singh also wants to get higher education at S.A.S. Nagar (Mohali), and accordingly, the house which is subject subj matter of suit was required for the plaintiff and his family for their personal use and occupation. Once the basis of the suit was personal and bona fide need of Harbans Singh and applicant-Karamvir applicant Karamvir Singh; in the absence of Harbans Singh, there remains no doubt that applicant-Karamvir Karamvir Singh is the only legal representative to pursue the appeal. [14]. Now let us advert to each of these objections, which are discussed individually in the following sub-paras:-
(i) With regard to the first objection, that the testator Harbans Singh made no arrangements for his wife, who was alive at the time of execution execution of Will dated 14.02.2011, it can be noted that there ere is specific mention in the Will Will regarding the future arrangements of his wife and it has been recorded corded that his pension would suffice for
13 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 14 CR No.4015 of 2024 (O&M) her. Though nothing can be said abou aboutt the uncertainty of the life, age/health of wife of Harbans Singh must have been equivalent to his age/health and in view of the prevailing circumstances of the case, the purpos of the Will was to ensure purpose re the rights of applicant applicant-Karamv Karamvir Singh. Therefore, Therefore this circumstance does not cause any dent in the Will.
ill.
(ii) Second objection raised by the learned Counsel for the petitioner is that AW5-Davinder vinder Pal Singh made a statement that he was instructed by the testator not to disclose the factum of execution of Will in question to the beneficiary, whereas no such covenant finds mentioned in the testamentary document. Harbans Singh might have made a request to AW-5 AW 5 not to disclose tthe execution of this Will ill and its content so that the fact regarding Harbans Singh not being the actual ual father of applicant-Karamvi applicant Karamvirr Singh comes to his knowledge during the lifetime life of Harbans Singh. It is required to be noted that in the peculiar circumstances circumstances of the case, this witness was also the biological father of the applicant and was also in close relationship biological with Harbans Singh being his brother brother-in-law.
law. He might have made this innocuous request on account of their closeness and no fault can be found fou with the Will, merely because such condition was not recorded therein.
(iii)
iii) Objection regarding details of properties not being mentioned in the Will ill is not sustainable, as respondent considered applicant applicant-Karamvir vir Singh his only heir and intended to devolve all his 14 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 15 CR No.4015 of 2024 (O&M) propert properties with him only. There is also no substance in the another objection raised that no reason has been specified while discarding the th rights of other legal heirs. Harbans Singh no not only brought up the applicant Karamvir Singh, when he was 33-4 applicant- 4 days old only, he also considered him as his son and in all probability, this Will ill was prepared to protect protect his right from other class class-II II heirs, which is quite natural and on this account as well, this cannot ot be taken as suspicious circumstances. For this reason, judgment in Shri Dhramvir's case (supra) cannot be made applicable in the present case, particularly taking into consideration the fact that no such objection as such was raised by the petitioner before be the First Appellate Court.
Accordingly, circumstances projected by learned Counsel for the petitioner to contend that the execution of W Will is suspicious,, are without any substance and liable to be rejected. Discussion regarding compliance of Order 22, Rule 5 CPC. [15]. This Court also does not find any merit in the second contention of learned Counsel for the petitioner that the First Appellate Court committed procedural irregularity by not referring the matter to the Trial Court for the purpose off recording evidence on the issue of applicant applicant-Karamvir Karamvir Singh being legal representative of deceased Harbans Singh. To examine this contention it is necessary to peruse the Order 22 Rule 5 CPC,, which is reproduced hereunder:
hereunder:-
"Rule 5 : Determination of question question as to legal representative - Where a question arises as to whether any person is or is not the legal
15 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 16 CR No.4015 of 2024 (O&M) 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 question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the the Appellate Court may take the same into consideration in determining the question." [15.1]. A perusal of the second part of the provision reveals that, the Appellate Court ourt "may" direct direct the matter to subordinate C Court ourt for the purpose of conducting trial on on the question of determining legal representative. The language of the provision in view of the word used used "may", clearly reveals that the Appellate Court "may" either direct the subordinate Court Court to try this question or may use its discretion to conduct the the trial itself. The reliance placed upon the judgment of Kanhiya's case (supra) is misplaced for multiple reasons. Firstly, in Kanhiya's case (supra), neither the trial trial was conducted nor evidence recorded by any subordinate Court ourt on this aspect. While in present case, it is not the case of the petitioner that evidences have not been recorded by the First Appellate Court, Court rather his only grievance is that the First Appellate Court should have directed ected the Trial Court ourt to record the evidence/conduct the trial trial.. Learned counsel for the petitioner has not been able to point out anything concrete to show that any prejudice at all has been caused to the petitioner on account of evidence being recorded by the First Appellate Court.
[15.2]. Secondly, the t mandatory character aracter of the provision of Order 22 Rule 5 CPC,, as observed in Kanhiya's case (supra), is only to the extent that if question of 16 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 17 CR No.4015 of 2024 (O&M) legal representative presentative arises before the Appellate Appellate Court, ourt, a trial is required to be conducted on this aspect and the Appellate Court ourt should determine this question after recording evidence. The mandatory character of the provision does not come from the fact that matter for this purpose should be necessarily remanded to the Trial Court.
ourt. This view is also supported from the judg judgment of the Hon'ble Apex Court in Vedvyasanand's case (supra), wherein it was held that the Appellate ppellate Court ourt is not bound bound by the findings given by the T Trial Court ourt after recording evidence. Relevant para from this judgment is reproduced hereunder:
hereunder:-
"17. Proviso to Rule 5 does not say that the Appellate Court can direct the subordinate court to decide the question as to who would be the legal representative, it only provides that the Appellate Court can direct the subordinate court to try the question and return the records to the Appellate Court, along with the evidence and the subordinate court has then to send a report in the form of a reasoned opinion based on evidence recorded, upon which the final decision has to be made ultimately by the Appellate Co Court, urt, after considering all relevant material. While dealing with the report sent by the subordinate court under Order 22 Rule 5 of CPC, the Appellate Court may consider the findings of the subordinate court and then give its reasons before reaching any conclusion.
conclusion. The words `the Appellate Court may take the same into consideration in determining the question' used in the proviso to Rule 5 gives discretion to the Appellate Court to make its own separate opinion notwithstanding the opinion of the subordinate court. The proviso cannot be construed to be a delegation of the powers of the Appellate Court to substitute the deceased party, but is merely to assist it in ultimately deciding the issue of substitution. Thus, the Appellate Court `may' take into consideration the material referred by the subordinate court under consideration 17 of 18 ::: Downloaded on - 09-09-2024 21:25:44 ::: Neutral Citation No:=2024:PHHC:117244 18 CR No.4015 of 2024 (O&M) Rule 5 of Order 22, CPC along with the objections, if any, against the report while deciding on the substitution of the appellant." In view of this judgment, once the A Appellate Court is not bound d by the t findings of the Trial T Court ourt and it can very well make its own opinion on the basis of evidences recorded, then it is immaterial whether the evidences are recorded by the Trial Court ourt or by the First Appellate Court.
Conclusion [16]. In view of the
the aforesaid discussion, other judgments relied upon by the learned Counsel for the petitioner also cannot be made applicable in the facts and circumstances of the present case. In that eventuality, it cannot be stated that this procedural irregularity has affected the merits of the case in any manner and, and therefore, this contention is also liable to be dismissed. Accordingly, in view of discussion made in the foregoing paras, finding no merit in the present petition, the same is hereby dismissed. Pending application(s), if any, shall also stand disposed of.
(HARKESH MANUJA) September 03,, 2024 202 JUDGE Atik Whether hether speaking/reasoned Yes/No Whether reportable Yes/No 18 of 18 ::: Downloaded on - 09-09-2024 21:25:44 :::