Gujarat High Court
Babubhai Kikabhai Patel vs Laxmiben Wd/O Jerambhai ... on 30 November, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9790 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ?
Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution No
of India or any order made thereunder ?
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BABUBHAI KIKABHAI PATEL
Versus
LAXMIBEN WD/O JERAMBHAI GANESHBHAI(DECD. CHILDLESS)
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Appearance:
MR UTPAL M PANCHAL(1075) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 2
MS.Z J SURATI(7075) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 30/11/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. Utpal Panchal on behalf of the petitioner and learned Advocate Mr. S.P. Majmudar with learned Advocate Mr. Parv Gupta on behalf of the respondent No.2.
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C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022
2. By way of this petition, the petitioner challenges an order passed by the learned 10th Additional Senior Civil Judge, Surat, dated 11.04.2022 below Exh. 158 in Special Civil Suit No. 593 of 2012, whereby the present respondent No.2 is joined as a party in the said civil suit.
3. Learned Advocate Mr. Panchal for the petitioner would submit that the original plaintiff was owner of a parcel of land bearing Revenue Survey No. 276 situated at village Hazira, District Surat, and whereas the present petitioner had purchased the said land from the original plaintiff vide a registered sale deed dated 03.02.1999. Learned Advocate would submit that 13 years after the said sale, the original land owner had filed a civil suit being Special Civil Suit No. 593 of 2012, whereby the registered sale deed was sought to be cancelled. It is submitted by the learned Advocate that during pendency of the said suit, the original plaintiff had expired on 01.10.2021 and whereas according to the learned Advocate, the suit had abated thereafter, more particularly since the original plaintiff did not have any legal heirs. It is submitted that vide an application Exh. 158 dated 06.11.2021, the respondent No.2 as trustee of the respondent No.2-Trust had preferred an application for being joined as legal representative of the original plaintiff, more particularly contending that vide a registered Will dated 22.05.1995, the original plaintiff had bequeathed the property in question in favour of Page 2 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 the said temple trust and whereas on account of the fact the said applicant- respondent No.2 herein would be interested in the outcome of the suit, and therefore the applicant-respondent No.2 herein be joined as legal representative. Learned Advocate would submit that while the present petitioner had contested the said application, yet without appreciating the contention of the present petitioner in its proper perspective, vide the impugned order dated 11.04.2022 the learned Civil Court had joined the present respondent No.2 as legal representative of the original plaintiff in the suit in question.
3.1 Learned Advocate Mr. Panchal would draw the attention of this Court to the registered sale deed in favour of the present petitioner dated 03.02.1999 and would submit that at Page No.6 of the sale deed, there is a recital whereby the original plaintiff i.e. owner of the property has clearly stated that she does not stand by the registered Will dated 22.05.1995 and whereas she now wishes to cancel the said Will and she wishes to sell the property in question to the present petitioner by way of the said sale deed. Learned Advocate would submit that the such recital in the registered sale deed, renders the Will in favour of the respondent No.2 as ineffective and to be treated as cancelled. Learned Advocate would submit that such being the position, on the strength of such a Will, the respondent No.2 ought not to Page 3 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 have been joined as legal representative of the original plaintiff. Learned Advocate would also submit that the PTR of the trust in question at some point of time had noted that the land belong to the trust and whereas later on even from the PTR the land had been scored off showing as the land not belonging to the trust in question. Learned Advocate would submit that such being the position, there not being any thing in existence which would show that the trust had any interest whatsoever in the land in question, therefore the learned Civil Court had gravely erred in joining the respondent No.2 as legal representative of the original plaintiff. Learned Advocate Mr. Panchal would therefore request that the impugned order may be set aside by this Court and this Court may declare that the suit having been abated upon the demise of the original plaintiff.
4. This petition is vehemently objected to by learned Advocate Mr. S.P. Majmudar with learned Advocate Mr. Parv Gupta for the respondent No.2. Learned Advocate Mr. Majmudar would submit that the original plaintiff in the plaint itself has clearly averred that the registered sale deed was obtained by the present petitioner fraudulently and whereas it was always her wish and desire that the land be bequeathed to the temple trust represented by the respondent No.2 and whereas under such circumstances, according to the learned Advocate, the present respondent No.2 was rightly joined as a Page 4 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 legal representative. Learned Advocate Mr. Majmudar would also draw the attention of this Court to an order dated 30.07.2015 under Exh. 5 passed by the learned Civil Court in the present civil suit and would submit that even in the said order, which was passed during the lifetime of the original plaintiff, the submissions of the original plaintiff had been recorded i.e. "the plaintiff wants to donate the suit land to the Sikotar Maa Temple and for that she has also prepared a registered Will, bequeathed her immovable suit property to the Sikotar Maa Temple. But the defendant who was engaged with the temple administration activities, under the guise of misrepresentation deceived the plaintiff and got registered sell deed of the bequeathed property in his favour". Learned Advocate would submit that this being the contention of the original plaintiff as recorded by the learned Civil Court, the fact of the registered Will in favour of the respondent No.2 being cancelled by the registered sale deed in favour of the present petitioner is highly disputed. Learned Advocate would submit that the intent of the testator being very clear, that the land was to be bequeathed to the temple trust and whereas the testator herself during her lifetime having filed the suit wherein she had questioned the registered sale deed in favour of the petitioner, would at this stage be enough material to show that the registered sale deed bequeathing the property in favour of the present petitioner was still in vogue. Having regard to such submissions, learned Advocate Mr. Page 5 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 Majmudar would submit that the learned Civil Court not having committed any error whatsoever no interference is called for by this Court.
5. Heard learned Advocates for the respective parties who have not submitted anything further.
6. At the outset, it is required to be noted that while the present petitioner seeks to draw certain reliance from the PTR etc., but in the considered opinion of this Court, the property having been mentioned in the PTR of the temple trust and later being scored off would be of no relevance for deciding the present petition. In any case, in the considered opinion of this Court, since the land was bequeathed to the temple trust by way of a registered Will, which would have come into effect upon demise of the testator, till the lifetime of the testator, the property could not have been stated to have devolved upon the trust in question and whereas under such circumstances, till the lifetime of the original testator, the property in question could not be shown as trust property in the PTR. Under such circumstances, no inference either way could be drawn on the basis of the property appearing in the PTR and thereafter being scored off.
7. At this stage, before going any further, it would be relevant to mention that the registered Will in favour of the temple trust is not Page 6 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 questioned by the present petitioner as regarding its genuineness. What is questioned by the present petitioner is the fact that by way of the registered sale deed in his favour, the seller of the property who was the testator of the Will, had clarified her intention that she would not want to honour the Will in favour of the temple trust rather she would want to sale the property in favour of the present petitioner.
8. The principal question which arises for consideration of this Court is whether the temple trust would be a legal representative of the deceased plaintiff and would be joined as such in the suit proceedings. In this regard, it would also be expedient to refer to Section 2 (11) of the Code of Civil Procedure, which defines the term "legal representative". Section 2(11) being relevant for the present purpose is reproduced hereinbelow for benefit.
"Section 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."
9. From a plain reading of the said definition, it appears that the term "legal representative" also includes any person to whom the estate devolves upon the death of the party suing. It appears here that the trust claims its Page 7 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 right over the property on basis of a registered Will dated 22.05.1995 and whereas the petitioner while not questioning the genuinity of the Will would question the valid existence of such Will after the registered sale deed dated 03.02.1999 in his favour, more particularly according to the petitioner, the recital in the registered sale deed referred to hereinabove has the consequence of cancelling the registered Will in favour of the temple trust. Such being the dispute, it would also be relevant to note that the testator during her lifetime, had preferred the civil suit in question wherein she had questioned the registered sale deed in favour of the present petitioner and had made her stand very clear that she always wanted the land in question to devolve upon the trust in question and whereas she never intended to sale the property to the present petitioner and whereas as can be clearly made out from the everments in the plaint, according to the testator, the registered sale deed was a fraudulent document, more particularly the present petitioner having taken disadvantage of the fact that he was closely connected with the activities of the trust, and therefore he had misrepresented to the plaintiff and got the registered sale deed done his favour. Thus, when it appears that the testator herself during her lifetime, had questioned the registered sale deed and whereas the testator herself had supported the existence of the Will in favour of the respondent No.2-temple trust, it could be said that the temple trust was an intermeddler in the estate Page 8 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 of the original plaintiff.
10. The term 'intermeddler' is of wide amplitude (Inasmuch as, the term 'meddle' as per its dictionary meaning means 'to interest oneself in what is not one's concern', or 'to interfere without right or property'- Merriam Webster Dictionary) and whereas a Full Bench of the Patna High Court (Majority View) in case of Sudama Devi and Others Vs. Jogendra Choudhary and Others, reported in 1986 SCC Online Pat 214, had an occasion to explain the term 'intermeddler' in the context as appearing in Section 2(11) of the CPC. Paragraphs Nos. 9 to 12 of the said decision being relevant for the present purpose are reproduced hereinbelow for benefit.
"9. To my mind, the heart of the issue herein is whether in the facts situation as also in the eye of law, the legal guardian of the deceased minor is not also at least an intermeddler with his estate. Section 2(11) of the Code of Civil Procedure is in the following terms : --
"'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;"
10. It is plain from the above that the definition herein is a wide and inclusive one and conceives of two distinct categories. Firstly, the heirs or persons, who in law represent the estate of the deceased person. However, at par with them and in a class by itself is any person who intermeddles with the estate of the deceased. Such a person is equally a legal Page 9 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 representative. Now the phrase intermeddler with the estate has come to be a term of art and has been construed as one of the widest amplitude. This apart, even the dictionary meaning of the word is one of considerable width. In Chambers's Twentieth Century Dictionary the word 'meddle' is given the meaning to "interfere unnecessarily, or, without being entitled". Intermeddle is "to meddle or to interfere improperly". In the New Oxford Illustrated Dictionary, 'meddle' means to concern one-self with what is not ones business. According to the Random House Dictionary 'intermeddler' means one who "interferes or intermeddles", which in turn means to "interfere officiously and unwantedly". It is thus manifest that even on its plain dictionary meaning the word is one of wide amplitude.
11. This word has also been the subject matter of considerable judicial scrutiny both in Indian and English laws. In Mst. Naro v. Harbanslal AIR 1962 Punj 457 Tek Chand, J., speaking for the Division Bench, observed as under : --
"Intermeddling means to meddle with the affairs of others in which one has no concern, to meddle officious; to interpose or interfere improperly. It signifies meddling with the property of another improperly. Intermeddling may take several forms including collecting or taking possession of the assets or other act, which might evince a legal control. A legal person, who intermeddles, ison the same footing as an executor de son tort (executor of his own wrong) as he takes upon himself the office of an executor by intrusion and not so constituted by the testator. He is a person who without authority intermeddles with the estate of the deceased. Very slight act of intermeddling with the property of the deceased makes a person executor de son tort....
There is authority for the proposition that when a person intermeddles with the property of the deceased he is a legal representative of the deceased for the purposes of procedure to the extent of the property with which he has intermeddled...."Page 10 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022
C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 It would follow from the above that precedent has also authoritatively given to the word 'intermeddler' an extremely expanded construction. Indeed, as has been noticed above, an intermeddler is on the same footing as an executor de son tort. In the Halsbury's Laws of England, Fourth Edition, Vol. 17, in Para 754, it has been said as under with regard to an executor de son tort : --
"The slightest circumstance may make a person executor de son tort, if he intermeddles with the assets in such a way as to denote an assumption of the authority or an intention to exercise the functions of an executor of administrator. Demanding payment of debt due to the deceased, paying the deceased's debts, carrying on his business, or disposing of goods may make a person executor de sor tort; but setting up a colourable title to the deceased's goods is not enough, A person who enters upon or collects the rents of a deceased person's leasehold property and pays the ground rent may, by reason of privity of estate or estoppel, render himself liable to the landlord upon the covenants of the lease as executor de son tort, but a person who takes over leasehold property from an executor de son tort does not."
12. It would be manifest from the above that an intermeddler (who is on the saint footing as an executor de son tort in English law) is one who in any way whatsoever dabbles with or comes in touch with the estate of the deceased. The wide sweep of the phrase, as a term of art, and the intention of the legislature in expressly including an intermeddler in the definition of legal representatives under Section 2(11) of the Civil P.C. is thus not in doubt."
From the observations of the Patna High Court, it would be apparent that the legislature wanted to include as a legal representative any person Page 11 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 who had any semblance of interest in the estate of the deceased or had in any manner come in touch with the estate of the deceased. Such being the intent of the legislature, a person who is a beneficiary of a Will by the deceased testator would certainly qualify to be a legal representative.
11. This Court also seeks to rely upon the observations of the Hon'ble Apex Court in case of Jaladi Suguna Vs. Satya Sai Central Trust and Others, reported in (2008) 8 SCC 521. Paragraph 12 of the said decision being relevant for the present purpose is quoted hereinbelow for benefit.
"12. "Legal representative" according to its definition in Section 2(11) CPC, 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. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative."
The observation of the Hon'ble Apex Court squarely covering the issue inasmuch as the temple trust being a legatee under the Will of the deceased plaintiff will be a legal representative, no further discussion on this issue would be warranted.
12. At this stage, this Court seeks to rely upon the decision of the Hon'ble Apex Court in case of Garment Craft Vs. Prakash Chand Goel, reported in (2022) 4 SCC 181, more particularly paragraph 15 thereof. The Page 12 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 Hon'ble Apex Court in the said paragraph, has clearly laid down that the supervisory jurisdiction of the High Court under Article 227 does not empower the Court to reappreciate and reweigh the evidence or facts upon which a determination under challenge is based. The Hon'ble Apex Court has also observed that under the jurisdiction under Article 227 the High Court does not act as a first appellate Court and whereas the jurisdiction is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse or violation of fundamental principles of law or justice. The Hon'ble Apex Court has further observed that discretionary relief must be exercised to ensure that there is no miscarriage of justice. Paragraph No. 15 of the said decision being relevant for the present purpose is reproduced hereinbelow for benefit.
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of Page 13 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022 C/SCA/9790/2022 JUDGMENT DATED: 30/11/2022 fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice."
13. Having regard to the law laid down by the Hon'ble Apex Court, in the considered opinion of this Court, there is no miscarriage which appears to have occurred on account of the respondent No.2 having been joined as legal representative of the original plaintiff vide the order impugned. It also appears to this Court that the decision of the learned Civil Court does not suffer from either lack of evidence or perversity for the same to be interrfered with. Having regard to the same, in the considered opinion of this Court, the present petition being meritless is disposed of as rejected.
14. It is clarified that the observations made by this Court hereinabove are for the purpose of deciding the present petition and whereas the learned Civil Court may decide the Civil Suit independently on its own merits without being swayed by any of the observations made hereinabove.
(NIKHIL S. KARIEL,J) BDSONGARA Page 14 of 14 Downloaded on : Sat Dec 24 00:58:49 IST 2022