Gujarat High Court
Ravindra Khushaldas Mehta vs Legal Repr. Of Decd. Smt. Indumati ... on 15 September, 2023
NEUTRAL CITATION
C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16050 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
RAVINDRA KHUSHALDAS MEHTA
Versus
LEGAL REPR. OF DECD. SMT. INDUMATI RAMESHCHANDRA PANDIT
NAVINBHAI KANABHAI KANGAD
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR VIMAL PATEL for VMP LEGAL(7210) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 15/09/2023
CAV JUDGMENT
1. Rule. Learned advocate Mr. Vimal Patel waives service of notice of rule for the respondent.
Page 1 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined
2. In the petition filed under Article 227 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned order dated 25.4.2019 passed by the learned 7 th Addl. Senior Civil Judge, Rajkot below Exh.173 in CMA No.10 of 1994.
3. Brief facts of the case are that deceased Indumati Rameshchandra Pandit had filed an application being CMA No.10 of 1994 before the Civil Court, Rajkot seeking relief of obtaining letter of administration with the will annexed dated 27.12.1990 stated to have been executed by late Jayagauri Khushalchand Mehta. Pendente lite, Indumati Rameshchandra Pandit expired, but prior to that, she had executed a will dated 22.8.2014, in favour of the respondent. Alike codicil was also executed on 9.9.2014. Since during the pendency of CMA No.10 of 1994, the petitioner has expired, the respondent claims that he is the legal representative of the deceased Indumati Rameshchandra Pandit and thus, he has to be joined in place of deceased Indumati Rameshchandra Pandit. Therefore, he preferred an application Exh.173 in CMA No.10 of 1994. The learned court below allowed the application inter alia on the ground that prima facie, the respondent proved that he is inheriting legal estate of the deceased and falls within the definition of legal representative as the deceased Indumati Rameshchandra Pandit had executed a will and codicil in favour of the respondent. The findings and reasoning have weighed the court below to grant application below Exh.173 to substitute the respondent as legal representative of deceased Indumati Rameshchandra Pandit in CMA No. 10 of 1994.
Page 2 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined Being aggrieved, the present petition.
4. Some other facts, which are necessary for the decision that deceased Indumati Rameshchandra Pandit was daughter of deceased Jayagauri Khushalchand Mehta and deceased Khushalchand Kalidas Mehta. She was the only child of deceased Jayagauri and therefore she was universal legatee. Deceased Jayagauri had executed a registered will dated 27.12.1990 bequeathing her all movable and immovable properties in favour of deceased Indumati Rameshchandra Pandit.
5. Matrimonial discord had taken place between Jayagauri Mehta and deceased Khushalchand Kalidas Mehta. Deceased Indumati Rameshchandra Pandit was the only child begotten by them from their marriage. According to the will of deceased Jayagauri Khushalchand Mehta, her husband Khushalchand Kalidas Mehta had contracted a second marriage, but the properties which are bequeathed in her will dated 27.12.1990 is exclusively belonged to her.
6. When deceased Indumati Rameshchandra Pandit filed CMA No.10 of 1994 before the court below seeking letter of administration with the will annexed. This application was objected by the present petitioner being son of deceased Khushalchand Kalidas Mehta born out of his second marriage. In the CMA, as it has become contested, the issues were framed at Exh.40. Subsequently, Indumati Rameshchandra Pandit died on 2.2.2015, leaving behind a registered will dated 22.8.2014 Page 3 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined and codicil dated 9.9.2014 bequeathing the movable and immovable properties, she was expecting to receive from the will of late Jayagauri in favour of the respondent. In view of such bequeath, the respondent moved an application Exh.173 to substitute him in place of deceased Indumati Rameshchandra Pandit and to permit him to produce the evidence for proving the will of deceased Jayagauri Mehta inter alia on the ground that he is representing the estate of deceased Indumati Rameshchandra Pandit and therefore he is legal representative.
7. The learned court below has allowed the application Exh.173. This order has given rise to the present petition.
8. Heard learned advocate Mr SP Majmudar for the petitioner and learn advocate Mr Vimal Patel for the respondent.
9. Learned advocate Mr Majmudar has made multiple submissions to attack the impugned order. His first attack was on the ground that to obtain the letter of administration with the will annexed, is a personal right. The right would not pass on to any person until the letter of administration with the will annexed has been granted to the propounder or legatee. He would further submit that since it is a personal right, the legatee cannot pass on as a right to sue in favour of any other party even executing will. On death of legatee, the right to obtain letter of administration would not survive. He would further submit that this principle of law has been totally missed to read by the learned court below. To buttress the suspect, he has relied upon the judgment of the Bombay High Court in case of Thrity Sam Page 4 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined Shroff Vs. Shiraz Byramji Anklesaria and another reported 2007(4) MLJ 56, learned advocate Mr. SP Majmudar would submit that in the present case, admittedly, deceased Indumati Rameshchandra Pandit, who is in capacity of legatee, claimed to be beneficiary of the will of deceased Jayagauri, expired without getting relief of letter of administration with the will annexed. He would further submit that present respondent, upon the will of deceased Indumati Rameshchandra Pandit, cannot claim that he is succeeding the estate of the deceased. He would further submit that since will executed by the deceased Jayagauri was not proved before the learned court below, deceased Indumati Rameshchandra Pandit had no right whatsoever to execute the will to bequeath the property said to have been part of the will of deceased Jayagauri, to any third party. He would further submit that the learned court below could not close its eyes to this legal and sound principle while deciding application Exh.173 and as such erred in passing the impugned order.
10. Another submission canvassed by learned advocate Mr Majmudar that perusal of the impugned order indicates that the learned court below has kept the inquiry pending to be decided at the final proceedings of CMA No.10 of 1994, that whether the respondent is proved to be a legal representative of deceased Indumati Rameshchandra Pandit. He would further submit that in view of law laid down by the Hon'ble Apex Court in case of Mahant Satyanand @ Ramjee Singh Vs. Shyari Lal Chauhan reported in 2018(5) SCALE 314, the aspect of deciding legal representative cannot be postponed, with a view the same to be decided at the time of final disposal. He would further submit Page 5 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined that the learned trial court fell in error in postponing the enquiry that whether the respondent is legal representative of the deceased or not. Reiterating his earlier argument that to claim the letter of administration with the will annexed is a personal right and does not survive on the death of the propounder, learned advocate Mr Majmudar has relied upon the judgment of the Bombay High Court in case of Anita Anant Patil Vs. Malini Anant Patil reported in 2019 SCC Online Bom 8833.
11. Upon above submission, he submits to allow this petition and to quash and set aside the impugned order.
12. Learned advocate Mr Vimal Patel appearing for the respondent while supporting the impugned order, placing reliance upon the judgment of the Hon'ble Apex Court in case of Suresh Kumar Bansal Vs. Krishna Bansal and another reported in (2010) 2 SCC 161, would submit that in view of Order 22 Rule 3 & 5 of the CPC read with provision of Indian Succession Act as well as reading section 2(11) of the CPC, the respondent was intermeddling with the estate of the deceased, as he had received the estate of the deceased Indumati Rameshchandra Pandit bequeathing through registered will and registered codicil, which the deceased Indumati Rameshchandra Pandit had got bequeathed via registered will from her late mother Jayagauri, the respondent became the legal representative and which allowed him to carry the proceedings of letter of administration with will annexed filed by the deceased Indumati Rameshchandra Pandit as to prove the genuineness of the will of deceased Jayagauri. He would further submit that the Page 6 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined respondent has already filed another petition before the learned court below being CMA No.436 of 2016 inter alia praying for letter of administration with the registered will and codicil annexed executed by deceased Indumati Rameshchandra Pandit. He would further submit that in view of the said aspect, the present petitioner falls in a definition of legal representative and as such, he has been rightly substituted by the learned court below by passing the impugned order. He would further submit that under the limited supervisory jurisdiction, this court is not required to interfere with the impugned order as the impugned order does not smack illegality or suffers from the error of law. The submission is canvassed to dismiss the petition.
13. In present petition, the question is limited that whether the respondent could be substituted as a legal representative of deceased Indumati Rameshchandra Pandit.
14. To understand the issue, firstly, let refer section 2(11) of the CPC which defines the legal representative as follows:-
"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 issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued"
15. It would also apt to quote Order 22 Rule 3 of the CPC along with Order 22 Rule 5 so as to deal with the controversy in the present case.
Page 7 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined "Order 22 Rule 3:-
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."
Order 22 Rule 5:-
Determination of question as to legal representative. Where a question arises as to whether any person is or is not the legal 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 therefor, and the Appellate Court may take the same into consideration in determining the question."
16. As stated in the earlier part of this order, centric issue involved in this petition is as to whether the respondent could be substituted in place of deceased Indumati Rameshchandra Pandit upon her death, in facts, and circumstances of the case, on the strength of non-probated will.
Page 8 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined
17. The conjoint reading of section 2(11) and Order 22 Rule 3 read with Order 22 Rule 5 of the CPC manifestly clear that any person, who represent estate of the deceased which includes a person who inter-meddle with the estate of the deceased, can be considered as legal representative and he can be substituted in case of death of such person in his place. To be noted that the legislature has consciously used word "legal representative" and not the "legal heir". Terms legal representative and legal heir are different. The term legal representative has been defined hereinabove and the term legal heir is defined in section 3(f) of the Hindu Succession Act, which reads as under:-
"3(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;
18. Any person, male or female, who is entitled to succeed the property of an intestate under the Hindu Succession Act is legal heir - immediate family members like his son, wife, daughter or mother, who can claim property of deceased after his death under clause I of Hindu Succession Act or in absence of class I heir, class II heir and likewise, other classes of heirs are legal heirs.
19. The Hon'ble Apex Court in case of Custodian, Branches of BANCO National Ultramarino Vs. Nalini Bai reported in AIR 1989 SC 1589 had an occasion to deal with the interpretation of section 2(11) of the CPC. The Hon'ble Apex Court in the judgment held thus:-
Page 9 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined "4.'legal representative' as defined in Civil Procedure Code 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 representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. If there are any heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased.
20. In view of above pronouncement reading with section 2(11) and Order 22 Rule 3 of the CPC, no doubt, can be raised about the proposition of law that legal representative within the meaning of Order 22 Rule 3 of the CPC shall include such person also, who represents the estate of the deceased person or intermeddles the estate and may not only legal heir of such deceased.
21. The question now arose that whether the respondent can successfully claim to be legal representative of the deceased Indumati Rameshchandra Pandit on the basis of her registered will and codicil without the same having been probated. It is important to refer section 211, 212, 213 of the Indian Succession Act. Section 211 declares that executor or Page 10 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined administrator of the deceased person is his legal representative for all the purposes and all the properties of the deceased person vested in him as such. Section 212 provides that no right to any part of the property of a person who dies intestate can be established in any court of justice unless letters of administration have first been granted. Section 213 of the Act spells that no right as executor or legatee can be established unless the court of competent jurisdiction has granted probate or will, under which the right is claimed. It was the sole argument of learned advocate Mr Majmudar that neither deceased Indumati Rameshchandra Pandit nor the present respondent has obtained the letter of administration from the court of law, to establish that he is legal representative of deceased Indumati Rameshchandra Pandit or deceased Indumati Rameshchandra Pandit had right to bequeath her property by way of will, which she could have received from the will of deceased Jayagauri. This aspect had been fallen for consideration before the Hon'ble Apex Court in case of Commissioner, Jalandhar Division and others Vs. Mohan Krishan Abrol and another reported 2004(7) SCC 505, relevant para 10 which laid down the law, as follows:-
"A bare reading of section 211 shows that the property vests in the executors by virtue of the will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the will. In the case of Kulwanta Bewa v. Karamchand reported in [AIR 1938 Calcutta 714] it has been held that section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v.Page 11 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023
NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined Supramanian Chetty reported in [43 Indian Appeals 113], the Privy Council has held that an executor derives his title from the will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator."
22. The Hon'ble Apex Court further held in same Para as following:-
" Section 213 acts as a bar to the establishment of rights under the will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under will is sought to be established. However an un-probated will can be admitted in evidence for collateral purposes in any other proceedings apart from a probate proceedings. (See: Cherichi v. Ittianam reported in [AIR 2001 Kerala 184]). Therefore, on the demise of the testatrix, the said property vested in the executors."
23. What falls from the discussion made here in above, the definition of legal representative under section 2(11) of the CPC is wide enough and includes a person who seeks to represent the estate of the deceased person or intermeddle it, even before will stated to have been executed by the deceased in his favour. In the present case, from the record, at present, it transpires that deceased Indumati Rameshchandra Pandit filed CMA for getting the letter of administration with the will annexed of the will of deceased Jayagauri in capacity of universal legatee. She could not obtain it as she died during the pendency of the proceedings. At present the registered will and codicil said to have been executed by the deceased Indumati Rameshchandra Pandit indicates that she has bequeathed the immovable property to the respondent. It could be noticed that the property which deceased Page 12 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined Indumati Rameshchandra Pandit has bequeathed to the respondent had been bequeathed by deceased Jayagauri to her at least is visible on plain reading of the documents. Looking to this juxtaposition factual situation of the case, at this juncture, what appears that the respondent intermeddles the estate of the deceased Indumati Rameshchandra Pandit and therefore he falls in the definition of legal representative and he can be substituted in place of deceased Indumati Rameshchandra Pandit on her death.
24. There are several other issues involved in the matter. However, this court has confined itself to the decision that whether the respondent is legal representative of the deceased Indumati Rameshchandra Pandit, and whether he intermeddled the estate of the deceased, enabling him to define, as legal representative to be substituted in place of deceased Indumati Rameshchandra Pandit. All other issues and contentions involved in the matter are like that whether without obtaining letter of administration with the will annexed and without getting conclusiveness as per section 273 of the Indian Succession Act, can deceased Indumati Rameshchandra Pandit by way of a will and codicil bequeath property to respondent and other related issues are not touched and they are kept alive to be decided during the proceedings of CMA No.10 of 1994.
25. Insofar as judgment upon which learned advocate Mr. SP Majmudar has relied upon the decision of Mahant Satyanand @ Ramjee Singh (supra) would not render any assistance in view of the aspect that, it was a probate proceeding, whereby the Page 13 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined executor has sought probate of the will of the deceased. Needless to say that executors are the trustees of the will so they cannot be represented by any legal representative. The executor has no personal right and thus, that judgment will not render any help.
26. In the decision of Anita Anant Patil (supra), the prayer was made for issuance of heirship certificate to declare wife of deceased Anant Patil. The petitioner died during the pendency of the petition. Substitution of party was not permitted on ground that relief claimed is of personal nature. Thus, decision is of no avail.
27. Order 22 Rule 5 of the CPC is clear that what said by the Hon'ble Apex Court in case of Mahant Satyanand @ Ramjee Singh (supra) that the Court is required to make inquiry while deciding the aspect of legal representative and it cannot be postponed with a view to decide the same at the time of disposal.
28. On perusal of the impugned order, it does indicate that the learned trial court has postponed the enquiry of being the legal representative. What has been observed by the learned court below that under the testamentary jurisdiction, the jurisdictional Court cannot decide the title of the immovable property. The learned court below has kept the enquiry open to decide as to whether the will of deceased. Jayagauri is genuine or not at the final hearing of the CMA, which, in fact, the learned court below was required to do so. Under the provisions of the Indian succession act, every will for which the relief of probate or letter Page 14 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023 NEUTRAL CITATION C/SCA/16050/2019 CAV JUDGMENT DATED: 15/09/2023 undefined of administration has been asked, is required to be proved in view of section 63 of the Indian Succession Act read with section 68 of the Indian Evidence Act.
29. For the foregoing reasons, since the petitioner has failed to make out a case to interfere under the limited supervisory jurisdiction under article 227 of the Constitution of India, the petition, sans merit and is accordingly dismissed. Rule discharged. Interim relief, if any, stands vacated forthwith.
FURTHER ORDER Learned advocate Mr. HJ Karathiya for the petitioner, after pronouncement of the judgment, submits that interim relief may be extended for a period of four weeks to enable the petitioner to approach the higher forum. Since the issue involved about substitution of deceased applicant in CMA No.10 of 1994 and as such, lis is pending since 1994, request made by learned advocate for the petitioner is not acceded to and accordingly, it is rejected.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 15 of 15 Downloaded on : Sat Sep 16 17:22:28 IST 2023