Allahabad High Court
Kamlesh Kumari And 8 Others vs Rajrani (Deceased) And 3 Others on 22 July, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON 18.5.2022 DELIVERED ON 22.7.2022 Court No.- 5 Case :- MATTERS UNDER ARTICLE 227 No. - 3828 of 2022 Petitioner :- Kamlesh Kumari And 8 Others Respondent :- Rajrani (Deceased) And 3 Others Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- Divakar Rai Sharma Hon'ble Salil Kumar Rai, J.
1. The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 15.3.2022 passed by the Additional District Judge, Court No. 3, District-Aligarh in Civil Appeal No. 42 of 2011 (Smt. Kamlesh Kumari & Others Vs. Smt. Rajrani & Others) whereby the appellate court has directed the appellants-petitioners to take appropriate steps for substituting the respondent No. 1/1 in place of respondent No. 1 and to substitute respondent No. 1/1/1 and 1/1/2 in place of respondent No. 1.
2. The facts of the case are that Babu Lal was the son and Premwati was the daughter of one Shiv Lal. Premwati has been impleaded as respondent No. 1/1 in the present petition. Babu Lal had two wives namely Jeewa Kumari and Rama Devi. Babu Lal had no issue from Jeewa Kumari and had a daughter Rajrani from Rama Devi. Rajrani has been impleaded as respondent No. 1 in the present petition. Jeewa Kumari had a sister Ramshree, who was married to Kunwar Pal. Netrapal, i.e., the deceased petitioner No. 2 is admittedly the son of Ramshree. The paternity of Netrapal is in dispute between the parties.
3. Before her death Jeewa Kumari had transferred the property inherited from Babu Lal. Rama Devi died on 21.7.1992. Kamlesh Kumari and Netrapal, i.e., the deceased petitioner Nos. 1 and 2 claim succession to the estate of Rama Devi by virtue of a Will dated 20.7.1992 allegedly executed by Rama Devi in their favour. Rajrani, i.e., the deceased respondent No. 2 claimed succession to the estate of Rama Devi being the only daughter of Rama Devi. Consequently, Rama Devi instituted Original Suit No. 135 of 2006 (Rajrani Vs. Kamlesh Kumari & Others) praying for a decree cancelling the Will dated 20.7.1992. It may be noted that the suit property is agricultural property and devolution of the estate is governed by the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'). The aforesaid suit was decreed by the trial court vide its judgement and decree dated 29.1.2011. Kamlesh Kumari and Netrapal, i.e., petitioner Nos. 1 and 2 challenged the aforesaid decree through Civil Appeal No. 42 of 2011 filed under Section 96 of the Code of Civil Procedure, 1908. During the pendency of Civil Appeal No. 42 of 2011, Netrapal died on 7.1.2014. Petitioner Nos. 2/1 to 2/7 who are the sons and daughters of Netrapal were substituted in his place being the legal representatives of Netrapal.
4. Subsequently, Rajrani, i.e., respondent No. 1 also died on 1.12.2015. The petitioner Nos. 2/1 to 2/7 claiming themselves to be the legal representatives of the deceased Rajrani filed an application praying to be impleaded as respondent No. 1/1 to 1/7 in Civil Appeal No. 42 of 2011. The basis of the aforesaid claim of petitioner Nos. 2/1 to 2/7 shall be referred subsequently. The said application was allowed by the appellate court vide its order dated 28.3.2016. Premwati, i.e., the sister of Babu Lal also filed an application numbered as Paper No. 65Ga for a direction to the appellants-petitioners to substitute her in place of Rajrani claiming succession to the estate of Rajrani. The claim of Premwati was on the basis of Section 171 of the Act, 1950 as after the death of Rajrani the succession, in accordance with Section 172 of the Act, 1950 would have devolved upon the nearest surviving heir of the last male Bhumidhar, i.e., Babulal ascertained in accordance with the provisions of Section 171 of 1950. It was claimed that the estate of Rajrani would devolve on Premwati, she being the sister of Babulal. The said substitution application was allowed by the appellate court vide its order dated 18.4.2016.
5. The petitioner filed Petition No. 3761 of 2016 under Article 227 of the Constitution of India challenging the order dated 18.4.2016. This Court vide its order dated 23.5.2016 allowed Petition No. 3761 of 2016 and remanded back the matter to the appellate court to decide the dispute regarding heirship of Smt. Rajrani under Order 22, Rule 5 C.P.C. This Court vide its order dated 23.5.2016 quashed the order dated 18.4.2016 and further directed that the earlier order passed on application dated 28.3.2016 shall be subject to the fresh orders passed by the appellate court. The appellate court remitted the matter to the trial court under the Proviso to order Order 22, Rule 5 C.P.C. to try the issue regarding the heirship of Smt. Rajrani and to return a finding thereon to the appellate court.
6. In the trial court, the case of the petitioners was that Netrapal was the son of Babulal. It was the case of petitioner Nos. 2/1 to 2/7 that as Babulal had no son from his two wives, i.e., Jeewa Kumari and Rama Devi, therefore, he had expressed his wish for a third marriage, which was arranged with Ramshree, but the marriage could not take place. It was claimed by petitioner Nos. 2/1 to 2/7 that Netrapal was born out of the physical relationship between Babulal and Ramshree. It was also stated that Netrapal was born after the death of Babulal. It was further stated that, subsequently, in order to defend the honour and prestige of the family Ramshree was married to Kunwarpal. In short, the case of petitioner Nos. 2/1 to 2/7 was that Netrapal was the illegitimate son of Babulal.
7. The trial court after considering the evidence on record, held that the petitioners had not been able to prove that Netrapal was the son of Babulal. The subordinate court further held that as the suit property was agricultural property, therefore, Premwati being the sister of Babulal succeeded to the estate of Rajrani by virtue of Section 171 read with Section 172 of the Act, 1950. While recording its finding regarding the paternity of Netrapal, the subordinate court took into consideration the Family Register, which indicated that Netrapal was born in 1958 and the fact that admittedly Babulal had died in 1945. The trial court further took into consideration that if Netrapal had been the son of Babulal then the estate of Babulal would not have devolved on Jeewa Kumari and Rama Devi, but would have devolved on Netrapal. It is to be noted that the devolution of estate of Babulal on Jeewa Kumari and Rama Devi and the transfers made by Jeewa Kumari of her share in the estate of Babulal was never challenged by Netrapal. On the aforesaid consideration, the trial court vide its order dated 23.10.2018 held Premwati to be the legal representative of Rama Devi and forwarded its finding to the appellate court.
8. While the matter was pending before the subordinate court, Premwati executed a Will date 6.5.2016 in favour of respondent No. 1/1/1 and 1/1/2 and filed an application before the appellate court to take on record the said Will. However, the said application was dismissed apparently on the ground that Premwati was still alive and therefore the Will was not operative. Subsequently, Premwati died on 8.5.2021. Consequently, respondent Nos. 1/1/1 and 1/1/2 filed an application numbered as Paper No. 368Ka praying for amendment in Paper No. 65Ka filed by Premwati so as to indicate that they were the heirs and legal representatives of deceased Premwati and in the alternative also pleaded that they may be impleaded as respondent in the appeal being the legal representatives of the deceased Premwati.
9. The appellate court vide its order dated 15.3.2022 has directed the petitioners to take appropriate steps to substitute the respondent Nos. 1/1/1 and 1/1/2 as respondent Nos. 1/1/1 and 1/1/2 in Civil Appeal No. 42 of 2011 in place of Premwati after substituting Premwati as respondent No. 1/1 in place of Rajrani. Hence, the present petition.
10. It was argued by the counsel for the appellant that in its order dated 23.5.2018, the appellate court has mechanically relied on the findings of the subordinate court without giving any opportunity to the petitioners to file their objections to the findings of the subordinate court. It was further argued that Paper No. 368Ka could not have been decided without first deciding Paper No. 65Ka, i.e., the issue relating to the heirship of Rajrani and, therefore, the impugned order is contrary to the direction of this Court as recorded in the order dated 23.5.2016 passed in Matters Under Article 227 No. 3761 of 2016. It was argued that no decision has been taken by the appellate court on the issue regarding the heirship of Rajrani. It was argued that for the aforesaid reasons the order dated 15.3.2022 passed by the appellate court is contrary to law and liable to be quashed.
11. Rebutting the argument of the counsel for the petitioner, the counsel for the respondents has supported the order dated 15.3.2022 and the reasons given in the same.
12. I have considered the submissions of the counsel for the2 parties.
13. The substitution of a legal representative of a deceased defendant in a suit or a deceased respondent in an appeal is governed by Order 22, Rule 4 C.P.C. Order 22, Rule 4 (1) and Order 22, Rule 4(2) of the Code of Civil Procedure, 1908, which are relevant for adjudication of the dispute raised in the present petition are reproduced below :-
4. Procedure in case of death of one of several defendants or of sole defendant.--(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
14. At this stage, it would be relevant to note that any enquiry as to whether any person is or is not a legal representative of the deceased party is summary in nature and there is no finality attached to the determination under Order 22, Rule 5 C.P.C. The decision is only for purposes of substitution and for continuing with the proceedings of the suit and does not confer any right over the property. For the said reason, the impugned order dated 15.3.2022 does not finally determine the rights of the parties in the present petition and, therefore, it is not a fit case for interference under Article 227 of the Constitution of India. However, the Court has also entered into the merits of the impugned order.
15. It is apparent from a reading of Order 22, Rule 4(2) C.P.C. that a legal representative of a deceased defendant who has been brought on record may take any defence appropriate to his character as legal representative of the deceased defendant. In the proceedings in appeal or in the suit the rights and liabilities of the legal representative of the deceased party is not to be determined, but it is the rights and liabilities of the deceased which is to be decided. It is settled law that the legal representative of a deceased party enters into the shoes of the deceased and is bound by the pleadings of the deceased. A legal representative is not entitled to take up a defence, which is not available to the defendant while alive. The legal representative can not plead a new case and is not allowed to take a stand contrary to what had been taken by his predecessor in title. A person who claims a title or any right to the suit property, which are hostile to the interest of the deceased can not be substituted as a legal representative of the deceased.
16. It is apparent from the facts stated above that the case set up by the original defendants in Original Suit No. 135 of 2006 and in Civil Appeal No. 42 of 2011 is hostile to that of Rajrani. The original defendant apart from pleading the Will dated 20.7.1992 in his favour which if accepted would exclude Rajrani from succeeding to the estate of Rama Devi, also pleaded that Netrapal was the son of Babulal and, therefore, succeeded to his estate. Thus, the petitioners can not claim themselves to be the legal representatives of the deceased Rajrani because they also claim interest in the suit property through Netrapal whose claim was hostile to Rajrani. In case the petitioner Nos. 2/1 to 2/7 are allowed to be substituted as heirs and legal representatives of Rajrani the proceedings in civil appeal can not be continued and the whole contest in Original Suit No 135 of 2006 would fall.
17. It is true that certain technical and procedural flaws have been committed by the lower appellate court while passing the order dated 15.3.2022. It was the appellate court which was required to determine the dispute regarding the legal representative of Rajrani and the findings remitted by the trial court were not binding on the appellate court. However, in its order dated 15.3.2022, the appellate court has held that the issue relating to the heirship of Rajrani has been decided by the trial court. The said approach is not correct as the trial court not have decided the issue but could have only returned its findings for consideration by the appellate court while deciding the issue. I do not find the said irregularity in the order of the appellate court sufficient to interfere inasmuch as, for the reasons stated previously, the petitioners can not be considered to be the legal representative of the deceased Rajrani. Premwati being the sister of Babulal succeeded to the estate of Rajrani after her death in accordance with Section 171 read with Section 172 of the Act, 1950. For the same reason, the order dated 15.3.2022 requires no interference on the ground that no opportunity was given to the petitioners by the appeal court to rebut the findings returned by the subordinate court vide its order dated 23.10.2018. Further the present respondent No. 1/1/1 and 1/1/2 claim to be legal representative of deceased Premwati on the basis of a Will dated 8.5.2021 and, therefore, by virtue of Section 2(11) of the Code of Civil Procedure, 1908 are the legal representatives of the deceased Premwati. The other errors pointed out by the counsel for the petitioners are merely technical in nature and do not substantially affect the merits of the dispute and are only procedural irregularities which do not adversely affect the rights of the parties in relation to the suit property or the merits of the dispute and are not sufficient to occasion interference by this Court.
18. For the aforesaid reasons, the petition lacks merit and is dismissed.
Order Date :- 22.7.2022 Anurag/-