Gujarat High Court
Hirabhai Dahyabhai Patel vs Lt.Hiraben Wd/O.Bhagubhai Manilal ... on 24 June, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/144/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 144 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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HIRABHAI DAHYABHAI PATEL....Petitioner(s)
Versus
LT.HIRABEN WD/O.BHAGUBHAI MANILAL THRO LEGAL HEIRS &
2....Respondent(s)
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Appearance:
MR DEVARSHI C SHAH, ADVOCATE for the Petitioner(s) No. 1
MR NA SHASTRI, ADVOCATE for the Petitioner(s) No. 1
MR DHAVAL SHAH, ADVOCATE for the Respondent(s) No. 2
MR MAULIK R SHAH, ADVOCATE for the Respondent(s) No. 1.1 - 1.3
MR VIMAL M PATEL, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 24/06/2014
ORAL JUDGMENT
Page 1 of 16
C/SCA/144/2013 JUDGMENT
1. Rule. Mr. Maulik R.Shah, learned advocate waives service of notice of Rule for respondents Nos.1.1 - 1.3, Mr. Dhaval Shah, learned advocate waives service of notice of Rule for respondent No.2 and Mr.Vimal M.Patel, learned advocate waives service of notice of Rule for respondent No.3. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties,the petition is being heard and decided finally.
2. The petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India, inter alia, with a prayer to quash and set aside the order dated 30-11-2012, passed by the learned 8th Addl. Senior Civil Judge, Gandhinagar, below the application at Exh.120, in Special Civil Suit No.518 of 2005,whereby the said application preferred by respondent No.3, a third party, to join him as party- defendant in the Suit, has been allowed.
3. Briefly stated, the facts relevant to the decision of the petition are that the petitioner instituted Special Civil Suit No.518 of 2005, for Page 2 of 16 C/SCA/144/2013 JUDGMENT specific performance, in the court of learned Principal Senior Civil Judge, Gandhinagar, against deceased Hiraben (present respondent No.1 through legal heirs and defendant No.1 in the Suit). According to the petitioner, the suit land is an HUF property and belonged to deceased Hathibhai Mathurbhai Patel, who had four legal heirs, namely, (1) Diwaliben, widow of the deceased, (2) Manibhai, son of the deceased, (3) Dahyabhai, son of deceased and (4) Somabhai son of the deceased. All the said legal heirs passed away. Deceased Manibhai Hathibhai Patel had two legal heirs, namely, (1) Bai Jiba, wife of the deceased and (2) Bhagabhai, son of the deceased. Both these legal heirs have also expired. Bhagabhai had only one legal heir, that is, his wife Hiraben (original defendant No.1), who expired without leaving behind any heir. According to the petitioner, in relation to the HUF property, only the heirs of deceased Dahyabhai Hathibhai Patel had remained alive, therefore, they are the legal successors of the suit property, as per the provisions of the Hindu Succession Act. The property of deceased Hathibhai Mathurbhai Patel was divided by his heirs and an entry, being Entry No.1503 dated 15.02.1947, was mutated in the Revenue Records. During the Page 3 of 16 C/SCA/144/2013 JUDGMENT pendency of the suit, deceased respondent No.1 Hiraben (defendant No.1) executed a Sale Deed in favour of respondent No.2 (original defendant No.2). An application for amendment was preferred by the petitioner at Exh.25, to make the necessary amendments in the plaint, which was allowed. Original defendant No.1 Hiraben, died on 17.08.2008. Her legal heirs made an application to bring them on record by filing an application at Exh.116, on 07.07.2012. Thereafter, respondent No.3 herein made an application at Exh.120, to join him as party defendant in the suit, on the ground that he is an interested party as a Will has been executed in his favour by deceased Hiraben. Both the applications at Exh.116 and 120 were heard together and decided by a common order, by the Trial Court. By the impugned order dated 30.11.2012, the Trial Court rejected the application at Exh.116 filed by the heirs of deceased Hiraben and allowed the application at Exh.120 filed by respondent No.3. Aggrieved and dissatisfied by the above-mentioned order, to the extent that it allowed the application at Exh.120, preferred by respondent No.3, the petitioner has approached this Court by way of the present petition.
Page 4 of 16
C/SCA/144/2013 JUDGMENT 4. Mr.Devarshi C. Shah, learned advocate for the
petitioner submits that the impugned order dated 30- 11-2012, passed by the Trial Court, is illegal, unjust and against the provisions of law as the application of the third party, who had no locus standi to file such an application in the Suit on the basis of a Will executed by deceased defendant No.1, has been allowed.
4.1 That in her lifetime, deceased Hiraben had executed a Sale Deed in respect of the Suit property, on 22.11.2005, in favour of respondent No.2, therefore, the Will of the deceased Hiraben cannot be made a ground for joining the present respondent No.3 as party defendant No.3 in the Suit.
4.2 That the Trial Court has failed to appreciate that respondent No.3 is claiming his right through a Will purportedly made by deceased Hiraben, but has not filed any Probate Application; therefore, he cannot claim on the basis of the Will.
4.3 That the Trial Court has failed to observe that respondent No.3 has no right, whatsoever, after a Sale Page 5 of 16 C/SCA/144/2013 JUDGMENT Deed has been executed in favour of respondent No.2 by the deceased, in respect of the same property. 4.4 That the application at Exh.120 has been filed after a considerable delay. Hiraben died on 17.08.2008, whereas the application has been filed on 27.07.2012. If respondent No.3 was aware of the Will, he could have taken steps earlier.
4.5 That the property is a HUF property and not a self-acquired property, therefore, Hiraben had no right to execute the so called Will.
4.6 No other grounds have been urged by the learned advocate for the petitioner.
5. On the basis of the above submissions, it is urged that the impugned order dated 30.11.2012,allowing the application at Exh.120, be quashed and set aside and the petition allowed.
6. The petition has been strongly resisted by Mr.Vimal M. Patel, learned advocate for respondent No.3. It is submitted that as per sub-section 11 of Section 2 of the Code of Civil Procedure, 1908 ("the Page 6 of 16 C/SCA/144/2013 JUDGMENT Code" for short), "legal representative" has been defined as 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.
6.1 It is submitted that under the Will executed by deceased Hiraben in favour of respondent No.3, he has become a legal representative of Hiraben, and in terms of the above definition, is entitled to be impleaded as party defendant to the suit. It is submitted that the Will has not been challenged by the petitioner, therefore, the objection raised by the petitioner is not sustainable.
6.2 In support of the submission that a legatee is a legal representative of the estate of a deceased person, reliance has been placed upon a judgment of the Supreme Court in Andhra Bank Ltd. V. Srinivasan, reported in AIR 1962 SC 232.
6.3 It is next submitted that the dispute is between Page 7 of 16 C/SCA/144/2013 JUDGMENT two rival sets of legal heirs of Hiraben. The petitioner is claiming his right by way of a Will therefore, the Trial Court has rightly allowed his application.
6.4 Learned advocate for respondent No.3 has further relied upon a judgment of the Supreme Court in Harbans Singh vs. Manjit Inder Kaur reported in (2004) 138 PLR 499.
6.5 It is submitted on behalf of respondent No.3 that there is no legal requirement for obtaining probate of the Will, therefore, the objection raised by the petitioner to this effect, cannot be sustained. 6.6 In support of the above submission reliance is placed upon a judgment of this Court in the case of Minaxiben Shashikantbhai Patel v. District Collector, Gandhinagar, reported in 2007(1) GLR 277.
On the basis of the above submissions, it is prayed that the petition be rejected.
7. Mr.Dhaval Shah, learned advocate for respondent No.2, supports the stand taken by respondent No.3, and Page 8 of 16 C/SCA/144/2013 JUDGMENT adopts the arguments addressed by learned counsel for respondent No.3. He further submits that the impugned order does not suffer from any legal infirmity, hence, the court may not exercise its supervisory jurisdiction.
8. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned order and other documents on record.
9. Respondent No.3 is claiming to be the legal representative of deceased Hiraben on the basis of a Will executed by her in his favour. The definition of "legal representative" in Section 2(11) of the Code reads as below:
"2(11) "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;"Page 9 of 16
C/SCA/144/2013 JUDGMENT
10. From the above definition, it is clear that a legal representative would include a person who, in law, represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Further, it also includes a party who sues or is sued in a representative character and the person on whom the estate devolves on the death of the party so suing or sued. According to respondent No.3, the estate of deceased Hiraben has devolved upon him by way of the Will executed by her in his favour. The said Will has not been challenged by the petitioner, who claims to be the legal heir of the deceased. The application of the petitioner at Exh.116, for joining as party defendant to the suit has been rejected. It has been submitted that the order below Eh.116, insofar as it rejects the said application, has been challenged by filing an appeal, which is pending.
11. In the present petition, the only question that arises for determination is whether respondent No.3, upon whom the estate of the deceased defendant No.1 has devolved by way of a Will, ought to be joined as party defendant in the suit, or not.Page 10 of 16
C/SCA/144/2013 JUDGMENT
12. In Andhra Bank Ltd. V. Srinivasan (supra), cited on behalf of respondent No.3, the Apex Court has observed as under:
"18. **** **** **** **** In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the clause "a person who in law represents the estate of a deceased person" must include different legatees under the will. There is no justification for holding that the "Estate" in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of S.2 (11) is against Mr.Sastri's argument, apart from the fact that considerations of logic and commonsense are equally against it."
19. In support of his argument Mr.Sastri has referred us to a decision of the Madras High Court in Natesa Sastrigal v.Alamelu Achi. 1950-1 Mad L J 476 : (AIR 1950 Mad 541). In that case the Madras High Court no doubt seems to have observed that S.2(11) does not include legatees of apart of the estate. With respect,we think the said observation does not represent the correct view about the interpretation of S.2(11)."
(emphasis supplied)
13. Thus, the Supreme Court has held that a person Page 11 of 16 C/SCA/144/2013 JUDGMENT who in law represents the estate of a deceased, includes different legatees under the will, even though the estate that devolved upon the said legatee may not be the whole of the estate of the deceased. Considering the principle of law enunciated by the Supreme Court in the above-mentioned judgment and the definition of "legal representative" in Section 2(11) of the Code, in the view of this Court, respondent No.3, being the beneficiary of the estate of the deceased defendant No.1 by way of a Will, can certainly be said to be the "legal representative" of the deceased. In that capacity, there does not appear to be any legal infirmity in the impugned order, joining him as party defendant in the suit. It is noteworthy that the Will of the deceased Hiraben has not been challenged by the petitioner. Respondent No.3 would be a necessary party in the suit, being the person upon whom the estate of the deceased has devolved. The submissions made by the learned advocate for the petitioner that respondent No.3 ought not to have been joined as party defendant on the basis of the Will, cannot be accepted.
14. It has been submitted on behalf of the petitioner that the deceased has executed a sale deed in respect Page 12 of 16 C/SCA/144/2013 JUDGMENT of the land in question in favour of respondent No.2 in her lifetime and, therefore, could not have bequeathed the said property to respondent No.3 by way of the Will. This aspect is a matter on which evidence would be required to be led at the trial. The present proceedings arise from an order permitting respondent No.3 to join as party defendant in the suit and the question whether the deceased Hiraben could have made a Will in respect of the said property is not required to be decided at this stage.
15. In Harbans Singh vs. Manjit Inder Kaur (Supra), the Apex Court has held as under:
"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 Page 13 of 16 C/SCA/144/2013 JUDGMENT 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."
16. It has been submitted on behalf of the petitioner that Hiraben died on 17.08.2008 and the application was filed on 27.07.2012, meaning thereby, that there is a delay in filing the same that would be fatal to respondent No.3. This submission is not sustainable, as there is no bar in Order 1 Rule 10 of the Code to this effect. What has to be seen is whether the person filing the application for joining as party is a proper or necessary party, or not. In the present case, as the estate of the deceased has devolved upon respondent No.3, he is a proper and necessary party.
17. The submission made by the learned advocate for the petitioner to the effect that respondent No.3 has not filed any application for obtaining probate of the Will, is also without substance. The issue has been decided by this Court in Minaxiben Shashikantbhai Patel v. District Collector, Gandhinagar (Supra), in Page 14 of 16 C/SCA/144/2013 JUDGMENT the following terms:
"9. If the facts of the present case are considered in light of the above referred legal position, it cannot be disputed that the property is situated at Gandhinagar and is outside the territories of the original civil jurisdiction of the High Court of Bombay and the property is even otherwise is situated in Gujarat State, which is outside the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta. Therefore, even without probate, the rights acquired by the executor or legatee of the Will can be established before the Court or before any other authority which in the present case is revenue authority.
10. Therefore, in view of the aforesaid legal position that for a Will executed by a Hindu qua the immovable property situated outside the territory of original civil jurisdiction of High Court of Bombay and Madras, the Probate is not compulsory for establishing the rights in the property as the property in the present case is situated in Gandhinagar, even without probate the legatee who is the petitioner in the present case can establish the rights pursuant to the Will executed by deceased Chandubhai Jiavabhai Patel who is admittedly Hindu. Hence, the stand of the District Collector insisting the probate for the Will in question cannot be sustained in the eye Page 15 of 16 C/SCA/144/2013 JUDGMENT of law and deserves to be quashed and set aside."
18. Considering the entire spectrum of the facts and circumstances of the case, the principles of law enunciated by the Supreme Court and this Court in the above-quoted judgments, and for the reasons discussed hereinabove, this Court does not find any legal infirmity or perversity in the impugned order, so as to warrant interference in exercise of its supervisory jurisdiction.
19. The petition deserves to be rejected. It is, accordingly, rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) ARG Page 16 of 16