Bombay High Court
Ghanshamdas Bhagwandas Bhutada And Anr vs Hiralal Ramjivan Bhutada And Anr on 11 October, 2021
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
8 CIVIL APPLICATION NO.9096 OF 2021
IN SA/769/2012
GHANSHAMDAS BHAGWANDAS BHUTADA AND ANR
VERSUS
HIRALAL RAMJIVAN BHUTADA AND ANR
...
Advocate for Applicants : Mr. Deshpande Dhananjay P.
Mr. S.J. Gaike and Mr. S.P. Tiwari, Advs. For R/1 & 2
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 11th October, 2021.
PER COURT :-
1. Present application has been filed for bringing the
legal representatives of applicant on record.
2. At the outset, it can be said that original
applicant No.2 had expired on 17.1.2019 and she had left
only original applicant No.1 as her legal representative. A
pursis to that effect was filed by learned Advocate for the
appellants. Though incorrect date appears to be mentioned
on the pursis as 3.6.2017, it was filed on 3.6.2019.
Therefore, though the office is raising an objection about
delay of 861 days, that will not survive.
3. Applicant No.1 expired on 25.2.2021. The
applicant has contended that applicant No.1 had left a valid
Will executed on 23.8.2011, bequething all the properties to
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the trust and donating all his bank amounts to the trust.
4. The said application has been objected by
Respondent Nos.1 and 2 by filing their say. They are
denying the execution of the Will and the status of the trust
as `legal representative' of applicant No.1. It will not be out
of place to mention here that in the application itself, the
applicant has stated that after death of both the appellants,
Respondent No.1 has filed Misc. Application No.474/2021 in
the Court of Civil Judge, Senior Division, Latur for heirship
certificate as heir of both the appellants on the basis of the
Adoption-deed, which is in question, in this Second Appeal.
5. Heard both sides. Learned Advocate appearing
for the appellants has strong objection to take any other
recourse, especially as available under Order XXII Rule 5 of
CPC, on the ground that the say contemplates that the Will
appears to have been challenged on the ground of ignorance
or lack of knowledge. It is then stated that Respondent
Nos.1 and 2 have no locus to challenge the Will and other
legal recourse is available to them.
6. At the outset, Section 2(11) of CPC defines "Legal
Representative" thus, -
"2(11) "legal representative" means a person
who in law represents the estate of a deceased
person, and includes any person who
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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."
7. Order XXII of the Code deals with death,
marriage and insolvency of parties. Original defendants
were the original plaintiffs, who had filed Regular Civil Suit
No.105/2007 before Joint Civil Judge, Junior Division, Latur
for declaration and perpetual injunction. The said suit came
to be partly decreed. The relief of declaring adoption-deed
as null and void was rejected. However, the defendants
were restrained from disturbing the plaintiffs possession
over the suit property permanently. It appears that the
original plaintiffs themselves then challenged the said
judgment and decree by filing Regular Civil Appeal No.
144/2008 before the learned District Judge-3, Latur. The
said appeal came to be dismissed by the concerned Court on
19.10.1999 and then this Second Appeal has been filed by
the original plaintiffs.
8. This Court, by order dated 25th July, 2017,
admitted the appeal by framing substantial questions of law.
Thus, it can be seen that deft.No.1 was claiming to be the
adopted son. Now, in view of death of both the appellants,
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he has already filed a proceeding before the competent
Court for getting the heirship certificate under the Bombay
Regulation Act and, therefore, when a question arises as to
whether any person is or is not a legal representative of a
deceased plaintiff or deceased defendant, such question
shall be determined by the Court as per Order XXII Rule 5 of
CPC. Further proviso prescribes that where such question
arises before the 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 therefor and the Appellate Court may take the same
into consideration in determining the question. Therefore,
when now the question arises as to who would be legal
representative of the appellants, recourse has to be taken to
the procedure so prescribed in the proviso to Rule 5 of
Order XXII of CPC.
9. Before giving further directions, it can be seen
that already one proceeding appears to have been filed
before learned Civil Judge, Senior Division, Latur. In the
normal course, issue of heirship certificate would go further
to any Civil Judge, Junior Division for its determination, but
when the Will would be in question, then it would be
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appropriate that such question would be determined by Civil
Judge, Senior Division, i.e. principal Court and, therefore,
directions will have to be issued to decide the question
involved in this appeal together with the said Misc.
Application No. 474/2021. Hence, the following order, -
ORDER
i. The question, as to who, i.e. whether the Trust now claiming to be legal representative of the appellants or whether Respondent No.1, claiming to be ownership, on the basis of the adoption, should be determined by learned Civil Judge, Senior Division, Latur (Principal Court). ii. It is clarified that evidence on the point of adoption deed shall not be allowed to be led on behalf of any parties since it is already led in RCS No.105/2007, which is subjudice before this Court.
iii. On the basis of the evidence led, as to who would be legal representative, the learned Civil Judge, Senior Division, Latur to give a finding on the same with reasons therefor and transmit the entire record to this Court. iv. It is further clarified that this question ::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 04:23:25 ::: (6) of determination as to who is legal representative, under Order XXII Rule 5 of CPC, be dealt with along with Misc. Application No. 474/2021. If that matter is already transferred/ made over to any other court, then it stands transferred to Civil Judge, Senior Division, Latur (Principal Court).
v. The decision so rendered along with the record be transmitted to this Court within a period of six months from today. vi. Learned Registrar (Judicial) to send necessary Record and Proceedings to the concerned Court along with a writ.
(SMT. VIBHA KANKANWADI) JUDGE BDV ::: Uploaded on - 12/10/2021 ::: Downloaded on - 13/10/2021 04:23:25 :::