Punjab-Haryana High Court
Harbans Singh vs Manjit Inder Kaur on 5 July, 2004
Equivalent citations: (2004)138PLR499, AIR 2005 (NOC) 199 (P&H), 2005 A I H C 56, (2004) 3 PUN LR 499, (2004) 3 RECCIVR 805
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1.The defendant-petitioner is aggrieved against the order passed by the learned First Appellate Court allowing the applicant Manjit Inder Kaur to be impleaded as thelegal represetative of the deceased plaintiff-appellant to represent the estate of the deceased.
2. Plaintiff Nirankar Singh Dhillon died on 13.2.2003. Manjit Inder Kaur applicant filed application for impleading herself as the legal representative of the deceased alleging therein that she is the adopted daughter of the deceased by virtue of adoption deed dated 8.01.1957. She has also relied upon the order No.653 dated 7.10.1958 wherein she is recorded as the adopted daughter of deceased Nirankar Singh Dhillon. She has also relied upon the affidavit suffered by the deceased on 26.7.1993 to the effect that the applicant is his daughter. Applicant has also relied upon the identity Card of the deceased wherein the applicant is reflected as the adopted daughter. The First Appellate Court has found that although in the revenue record Manjit Inder Kaur is recorded as the daughter of Onkar Singh but that does not in anyway deprive of claiming herself to be the daughter of Nirankar Singh Dhillon. It has been found that she has got the estate of Onkar Singh not by way natural inheritance but on the basis of will. Thus, the court allowed Manjit Inder Kaur to represent the estate of deceased.
3. The defendant has challenged the said order in the present revision petition on the ground that the first Appellate Court has not conducted any inquiry in terms of the Order 22 Rule 5 of the Code of Civil Procedure and relies upon a judgment of this Court reported as Karamjit Kaur and Anr. v. Gurbant Singh and Ors, (2003-2)134 P.L.R. 707. He has further argued that the applicant has no right to continue with the suit as the suit was for permanent injunction which was a personal right which has come to an end with the death of the plaintiff.
4. After hearing the learned counsel for the parties, I do not find any merit in the arguments raised by the learned counsel for the petitioner. Order 22 Rule 5 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 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 record together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question."
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 Rale 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.
6. This Court has occasion to interpret Order 22 Rule 5 of the Code in Ram Parkash and another v. Smt. Shamkari and Ors., A.I.R. 1968 Punjab and Haryana 293 and Smt. Suraj Kaur v. Shingara Singh and Ors., A.I.R. 1972 Punjab and Haryana 341. In both cases, the dispute which to be determined was between the rival legal representatives and it was held that the Court is required to determine the question that who is legal representative and cannot resort to the practice of impleading all the applicants as legal representatives.
7. A Full Bench of this court in Mohinder Kaur and Anr. v. Piara Singh and Ors., A.I.R. 1981 Punjab and Haryana 130 held that determination of the question that who is the legal representative does not operate as res judicata. Some of the reasons in support of such findings were detailed as under :
(i) Such a decision is not on an issue arising in the suit itself, but is really a matter collateral to the suit and has to be decided before the suit itself can be proceeded with. The decision does not lead to the determination of any issue in the suit.
(ii) The legal representative is appointed for orderly conduct or the suit only. Such a decision could not take away, for all times to come, the rights of a rightful heir of the deceased in all matters.
(iii) The decision is the result of a summary enquiry against which no appeal has been provided for.
(iv) The concepts of legal representative and heirship of a deceased party are entirely different. In order to constitute one as a legal representative, it is unnecessary that he should have a beneficial interest in the estate. The executor and administrators are legal representative though they may have no beneficial interest. Trespasser into the property of the deceased claiming title in himself independently of the deceased will not be a legal representative. On the other hand the heirs on whom beneficial interest devolved under the law whether statute or other, governing the parties, will be legal representatives.
8. The Full Bench thus concluded that the decision under Order 22 Rule 5 of the Code is only directed to answer an ordinary 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. It may be pointed out that the question in dispute before the Full Bench was between the rival legal representatives.
9. Reliance of the petitioner on the judgment of this court in Karamjit Kaur's case is clearly distinguishable. In the said case the dispute was between rival legal representatives of deceased Nirmal Singh. Therefore, the reliance of the petitioner on the said judgment is not applicable to the facts of the present case as the determination of the rival claimants is required to be determined in terms of the Order 22 Rule 5 of the Code.
10. Thus I am of the opinion that the determination of the question contemplated in Rule 5 is between the rival legal representatives.
11. As far as the question whether in the suit for permanent injunction a person has a right to protect his possession. The learned First Appellate Court has recorded a finding relying upon the judgment of Allahabad High Court reported as Krishna Behari Goel v. Raj Mangal Persad and Ors., A.I.R. 1954 Allahabad 182. Andhra Pradesh High Court has also taken a view in M. Rama Murthy v. A. Chhinapp (dead) and Ors., 1990 Civil Court Cases 782 that such a right is not a personal right which comes to an end with the death of the deceased plaintiff.
12. Consequently, I do not find that the order passed by the learned first Appellate Court suffers from any patent illegally or material irregularity warranting interference by this Court in the revisional jurisdiction under Article 227 of the Constitution of India. No merit. Dismissed.