Punjab-Haryana High Court
Surjit Kaur And Others vs Balwinder Kaur And Others on 26 August, 2010
Author: Hemant Gupta
Bench: Hemant Gupta
Civil Revision No.4868 of 2009 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.4868 of 2009 (O&M)
Date of Decision: August 26, 2010
Surjit Kaur and others .....Petitioners
Versus
Balwinder Kaur and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Mandeep S. Sachdev, Advocate, for the petitioners.
Hemant Gupta, J. (Oral)
Challenge in the present petition is to the order dated 16.2.2009 passed by the trial Court, whereby the legal representatives of deceased Lashkar Singh-plaintiff, were ordered to be impleaded.
Plaintiff-Lashkar Singh filed a suit for possession by partition of his 2/3rd share of the total suit land. The defendant is none else, but his real brother-Khushal Singh. It is the case of the plaintiff that Dunna Singh, father of the parties, was the owner of the suit property and after his death, the property was inherited by the parties and their sister Gurbachan Kaur. Laskhar Singh claims to have Civil Revision No.4868 of 2009 (O&M) [2] purchased 1/3rd share of the property from his sister and thus, claimed 2/3rd share of the suit property.
The defendant denied the ownership of Dunna Singh and asserted that it is his exclusive property. It was also pleaded that if the plaintiff is able to establish that Dunna Singh was the owner of the suit property, even then he has become owner of the suit property by adverse possession. The suit was decreed by the trial Court on 26.8.1994 and a preliminary decree was passed. Thereafter, the plaintiff moved an application for passing of the final decree by appointment of the Local Commissioner on 18.4.2000. It was during the pendency of such petition, Laskhar Singh died. An application was filed by the respondents in the present petition to seek impleadment as legal heirs of Laskhar Singh on the basis of Will dated 13.8.1999. Such application was contested by the petitioners, legal representatives of the deceased Khushal Singh on the ground that that Balwinder Kaur is not widow of Laskhar Singh and that Laskhar Singh has not executed any Will dated 13.8.1999.
It may be noted that Khushal Singh, judgment debtor, has also died and his legal representatives, have been brought on record. The application filed by the respondents for impleading themselves as legal representatives of deceased Lashkar Singh, was allowed by the learned trial Court on 16.2.2009 for the reason that the present case does not in any way involve the controversy of the legal heirs of Laskhar Singh, inter- se as the very purpose of impleading Balwinder Kaur in the suit for the purposes of representing the estate of the deceased.
In reply to the application filed by Balwinder Kaur for impleading the legal heirs of Lashkar Singh, it was, inter-alia, stated that the application has not been filed by all the legal heirs of Lashkar Singh. It was denied that the applicant-Balwinder Kaur, is the widow of Civil Revision No.4868 of 2009 (O&M) [3] deceased. The execution of the Will by Lashkar Singh in favour of Balwinder Kaur, was also denied. It was also stated that Balwinder Kaur- applicant has to take probate from the competent Court, before she seeks impleadment in the proceedings for preparation of the final decree.
Learned counsel for the petitioners has vehemently argued that the trial Court has allowed the application for impleadment of Balwinder Kaur without conducting an inquiry as required under Order 22 Rule 5 of the Code of Civil Procedure. It is contended that since the applicant-respondents have claimed right under the Will, the Court was required to conduct an inquiry and on such inquiry alone, the applicants could have been impleaded as party. It is also argued that the applicants are relying upon the Will executed in England, but such Will cannot be relied upon in India, unless a probate from the competent Court is obtained. Therefore, the order passed by the learned trial Court suffers from patent illegality. Learned counsel for the petitioner has, inter-alia, relied upon the judgments reported as Keshar Singh Sant Singh and others v. Tej Kaur, AIR 1961 Punjab 509; Smt. Bharpur Singh v. Jangir Kaur and another, 1991(2) CLJ 431; Smt. Sahab Kaur v. Avtar Singh and others, 2005(3) RCR (Civil) and Shish Ram and another v. Vijender & others, 2010(3) Civil Court Cases 397.
I have heard learned counsel for the petitioner at some length, but do not find any merit in the present petition.
Order 22 Rule 5 of the Code of Civil Procedure 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 representatives of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court.
xx xx xx"Civil Revision No.4868 of 2009 (O&M) [4]
Considering the said provision, a Full Bench of this Court in the judgment reported as Mohinder Kaur and another v. Piara Singh and others, AIR 1981 Punjab and Haryana (Full Bench) 130, held to the following effect:-
"8. At least one of the reasons that the appointment of a legal representative is only for the purposes of that suit alone noted by us above, has met the approval of the Supreme Court in Daya Ram v. Shyam Sundari, AIR 1965 SC 1049. In that case, while examining and interpreting the provisions of Order 22, Rule 4, Civil Procedure Code, in the context of the question involved, that is, when this provision speaks of `legal representatives', is it the intention of the Legislature, that unless each and every one of the legal representatives of the deceased defendants, where these are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate, the Court on the basis of almost universal consensus of opinion of all the High Courts in India, while holding that the impleaded legal representative sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record, approved the following enunciation of law in an earlier decision of the Madras High Court in Kadir Mohideen v. Muthukrishna Ayyar, (1903) ILR 26 Mad 230:-
"In our opinion a person whom the plaintiff alleges to be legal representatives of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the Civil Revision No.4868 of 2009 (O&M) [5] absence of any fraud or collusion the decree passed in such suit will bind such estate..... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specifically so in the case of a Muhammadan Party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative.
This, in our opinion, correctly represents the law" (Emphasis provided). This principle of law was again reiterated and approved by the Supreme Court in later judgment, that is Harihar Prasad Singh v. Balmiki Prasad Singh, AIR 1975 SC 733."
9. We, are therefore, of the opinion that in essence a decision under Order 22 Rule 5, Civil Procedure Code, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is Civil Revision No.4868 of 2009 (O&M) [6] provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings. In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial Court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of a very summary nature. It is thus manifest that the Civil Procedure Code proceeds upon the view of not imparting any finality to the determination of the question of succession or heirship to the deceased party."
Considering the aforesaid Full Bench of this Court, it was held by this Court in a judgment reported as Harbans Singh v.Manjit Inder Kaur, 2004(3) PLR 499, that the question, which is required to be determined in terms of Rule 5 of Order 22, is between the rival legal representatives and not between the rival parties to the suit. It was held to the following effect:-
"5. A perusal of the said provisions would show that if a question arises as to whether any person is or is not the legal representative, the said question shall be determined by the Court. The question is whether the question which arises for determination is between the rival legal representatives or between the rival parties to the suit? In my view, the question which is required to be determined in terms of Rule 5 of Order 22 is between the rival legal representatives and not between the rival parties to the suit. The legal representatives are impleaded to represent the estate of the deceased for successful contest of the proceedings and therefore, it is the consistent view of this Court that the determination of question after inquiry under Order 22 Rule 5 of the Code does not operate as res-judicata."Civil Revision No.4868 of 2009 (O&M) [7]
The said view was in fact taken in earlier two judgments of this Court reported as M/s Aggarwal Textiles, Ahmedabad v. Kusum Lata, 1992(1) PLR 125 and Ram Narain Singh v. Gurinder Kaur, 1997(2) PLR 1.
The judgment in Bharpur Singh's case (supra), was between two rival sets of the representatives. Such dispute between the rival legal representatives is required to be decided by the Court in a summary manner under Order 22 Rule 5 of the Code of Civil Procedure. In Sahab Kaur's case (supra), similarly, there were two sets of legal representatives claiming the estate of Bachni Devi. In Shish Ram's case (supra), the judgment in Harbans Singh's case (supra), has not been noticed, wherein a distinction has been drawn in respect of the dispute between the legal heirs and the controversy between the rival parties to the suit. Since the judgment of this Court in Harbans Singh's case (supra), has not been noticed in Shish Ram's case (supra), therefore, the said judgment does not lay down a binding precedent.
In Suresh Kumar Bansal v. Krishna Bansal and another, (2010)2 Supreme Court Cases 162, again the dispute was between two rival sets of legal representatives, claiming the estate of deceased Mohan Lal Bansal. The Court has permitted both the sets to be impleaded as legal heirs of the deceased. It was noticed that the question of genuineness of the Will cannot be conclusively gone into by the Court in the proceedings for substitution in a pending eviction suit and that determination of the question as to who is the legal representatives of the deceased-plaintiff or the defendant is only for the purposes of bringing legal representatives on record for the conduct of those legal proceedings only and it does not operate as resjudicata inter-se between the rival parties.
In Dashrath Rao Kate v. Brij Mohan Srivastava, (2010)1 Supreme Court Cases 277, the question arose whether the evidence led Civil Revision No.4868 of 2009 (O&M) [8] in the inquiry under Order 22 Rule 5 of the Code of Civil Procedure to prove a Will can be read into evidence while deciding the main proceedings. It was held that an inquiry under Order 22 Rule 5 of the Code of Civil Procedure is summary in nature and finding therein cannot amount to resjudicata. It was held that the legal position is true only in respect of those parties said to have rival claim against the legatee. It was held to the following effect:-
"24. We have closely seen the relied upon ruling of the Himachal Pradesh High Court in Suraj Mani & Anr. Vs. Kishori Lal, AIR 1976 HP 74. The ruling undoubtedly correctly holds that the finding in an enquiry under Order 22 Rule 5 cannot operate as res-judicata, provided the very question needs to be decided. The factual situation, however, differs substantially. The case before the Himachal Pradesh High Court only pertained to the correctness of the order passed in the enquiry under Order 22 Rule 5, CPC. That was not a case where the question, as in the present case, fell for consideration. In fact, the Himachal Pradesh High Court also observed and, in our view, correctly, that it was still open to the petitioner (therein) during the trial of the suit to establish that the Will was competent and conferred no right, title or interest on the respondent and, therefore, the respondent was not entitled to any relief in the suit. Unfortunately, on evidence in this case, the respondent/defendant did not do anything and did not even challenge the evidence of the appellant that he had become owner of the Will. Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-
2) was not repeated all over again, it cannot be held that the appellant/plaintiff could be non-suited on this ground.
25. Dr. Kailash Chand, Learned Counsel, appearing for the respondent also relied on ruling in Vijayalakshmi Jayaram Vs. M.R. Parasuram, AIR 1995 A.P. 351. It is correctly held by the Andhra Pradesh High Court that the Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se Civil Revision No.4868 of 2009 (O&M) [9] dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant/plaintiff. Therefore, there was no question of the appellant/plaintiff proving the Will all over again in the same suit.
26. The other judgment relied upon is Full Bench Judgment of Punjab & Haryana High Court in Mohinder Kaur & Anr. Vs. Piara Singh & Ors., AIR 1931 Punjab & Haryana 130. The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant/plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the Will (Exhibit P-1)." The aforesaid is the view taken by this Court in Harbans Singh's case (supra).
In the present case, the petitioners are not claiming to be the legal heirs of deceased Lashkar Singh. The only stand is that the names of the legal heirs have not been disclosed. Since Balwinder Kaur is claiming the estate of the deceased on the basis of Will allegedly executed by the deceased-plaintiff in England, the learned trial Court has not committed any patent illegality or material irregularity, in allowing such application. The extent of inquiry to be conducted, would depend upon the facts of each case. Since the facts of the case did not lead to dispute between the rival sets of the legal representatives, the order passed by the learned trial Court is perfectly justified in law.
The argument raised by the petitioner is that the Will was required to be probated. This Court in Ram Chand Ganesh Dass v. Sardara Singh and another, AIR 1962 Punjab 382, relying upon the earlier judgment of the Lahore High Court reported as Sohan Singh v. Bhag Singh, AIR 1934 Lah 599, held that it is not necessary to obtain Civil Revision No.4868 of 2009 (O&M) [10] probate in order to set up a title based on a Will relying upon Section 213 and Section 57 of the Succession Act, 1925. It was held to the following effect:-
"7. As I have said the clear reading of the provisions of the Act, leave no doubt whatever that no probate is necessary in order to set up a claim regarding property either movable or immovable on the basis of a Will executed in the Punjab and not relating to property situated in the territories mentioned in Sec.57(a). I accordingly accept the revision petition and set aside the order of the lower Court requiring the petitioner to obtain probate."
The said case was in respect of the Will executed in Punjab and thus, probate was found not necessary in terms of Clause (a) of Section 57 of the Succession Act. In the present case, though the Will is said to be executed in England, but is in respect of the immovable property situated in Punjab, thus, in terms of Clause (b) of Section 57 of the Succession Act, it is not necessary to seek probate of a Will for the same reasons as are applicable in respect of Clause (a) of Section 57. Therefore, for the same analogy, in respect of the Wills either executed in Punjab or in respect of immovable property situated in Punjab, the provisions of the Succession Act, are not applicable.
In view of the above, I do not find any patent illegality or material irregularity in the impugned order passed by the trial Court, which may warrant interference by this Court, in exercise of its revisional jurisdiction.
Hence, the present petition is dismissed.
[ HEMANT GUPTA ]
August 26, 2010 JUDGE
ds