Rajasthan High Court - Jaipur
Shakuntala Mathur D/O Late Shri ... vs Smt. Beena Mathur W/O Shri Anil Nag on 29 July, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 810/2018
Shakuntala Mathur D/o Late Shri Ramrichhpal (since deceased)
through Legal successors
----Appellant
Versus
Smt. Beena Mathur W/o Shri Anil Nag
----Respondent
For Appellant(s) : Mr. N.K. Maloo Sr. Adv. with
Mr. Pratyush Sharma
Mr. Arvind Gupta
Mr. Amit Singh Shekhawat
For Respondent(s) : Mr. R.K. Agarwal Sr. Adv. with
Mr. Adhiraj Modi
Mr. J.P. Goyal Sr. Adv. with
Ms. Jyoti Swami
Mr. O.P. Mishra
Mr. Rahul Tiwari
Mr. Peush Nag
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
29/07/2022
Reportable
1. This order would decide the issue as to whether after death
of sole appellant-plaintiff Shakuntla Mathur during pendency of
first appeal, any of her legal representatives can be allowed to be
substituted in her place as appellants to continue the proceedings
of first appeal?
2. This is not in dispute that appellant- Shakuntla Mathur was
unmarried and her parents had already been passed away when
she died on 1.2.2020. Her two nephews namely Shaleen Mathur
and Naleen Mathur sons of Rajendra Swaroop Mathur, have moved
an application (1/2020) on 14.2.2020 seeking their substitution as
legal representatives of deceased appellant, on the basis of her
will dated 28.1.2003. On the other hand her natural brothers, one
Rajendra Swaroop Mathur has moved application (3/2021) on
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19.4.2021, another brother Ashok Mathur has moved applications
(1/2021 and 2/2021) on 8.2.2021, Rakesh & Anil sons of
deceased brother Y.S. Mathur have moved separate applications
(1/2022 and 2/2022) on 9.2.2022 and (3/2022 and 4/2022) on
15.2.2022, One Mr. Alok son of deceased sister Shardha Mathur
has moved applications (6/2022 and 7/2022) seeking their
substitution as legal representatives of deceased appellant in the
present appeal. Thus, application (1/2022) is based on
testamentary succession (on the basis of will executed by
deceased appellant) and all other applications are based on non-
testamentary succession, filed by natural successor.
3. In order to decide the issue, it is necessary to look into the
nature of first appeal arises against the judgment and decree
dated 20.7.2018 whereby and whereunder the civil suit for
declaration and permanent injunction filed by appellant-plaintiff
was dismissed on merits.
4. The property in question is house No.A-13, Triveni Nagar,
Jaipur constructed over a plot measuring 216.66 square yards.
This is not in dispute that the said house property was of self
acquired property of deceased appellant she was the sole owner.
5. It appears from the record that deceased appellant instituted
a civil suit on 23.8.2006 alleging inter alia that she mortgaged her
house with United Commercial Bank in order to secure a loan
taken by her younger brother Rajendra Swaroop Mathur and his
wife Ms. Asha Mathur. Since the loan was not cleared, therefore,
bank initiated proceedings under SARFAESI Act, 2002 and she
received bank notice on 31.12.2005 that if the due loan amount of
Rs.7,72,907/- is not paid by 21.1.2006, the possession of the
house will be taken by the bank. She further stated in the plaint
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that younger sister, Smt. Beena Mathur who is respondent-
defendant herein approached her and gave an offer to clear the
outstanding loan amount of bank subject to condition of
mortgaging the house in her favour. Plaintiff stated that she
accepted the offer and thereafter, her younger sister- defendant
cleared the bank loan and got redeemed the mortgaged property
but instead of getting the mortgage deed she got executed sale
deed in her favour for sale consideration of Rs.8 lacs. Plaintiff has
stated that actual market value of her house property is about 30
lacs and her younger sister has played fraud and by applying
tactics has got executed the sale deed registered in her favour, in
the garb of getting the mortgage deed registered. After having
knowledge, thereafter, deceased appellant-plaintiff challenged the
sale deed of defendant dated 20.1.2006 by filing the present suit
immediately on 23.8.2006 with a prayer to cancel the sale deed
and to declare the same as illegal, null and void and for
consequential decree for permanent injunction to protect her
possession over the property in question.
6. It is relevant and worthy to take notice that in the plaint
itself, deceased appellant-plaintiff has pleaded that her younger
brother Rajendra Swaroop Mathur was financially weak and
therefore, she maintained his family as well as bored all expenses
of higher education for his both sons namely Shaleen Mathur and
Naleen Mathur. It is specifically stated in the plaint that deceased
appellant-plaintiff had executed a will dated 28.1.2003 in favour
of, Shaleen Mathur and Naleen Mathur, both sons of her younger
brother Rajendra Swaroop Mathur. Thus, deceased appellant-
plaintiff has given reference of her will dated 28.1.2003 in the
plaint itself. It may also be noted here that she has produced her
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will dated 28.1.2003 in her evidence and marked the same as
Ex.10 which is available on record of the trial Court.
7. Respondent-defendant contested the civil suit.
8. During course of evidence before the trial Court, appellant's
younger brother Rajendra Swaroop Mathur appeared as Pw.2 and
deposed his statement in support of plaintiff's suit. Her another
brother Ashok Mathur appeared from the side of defendant as
Dw.3 and supported the sale deed in favour of defendant. Mr. Anil
Mathur son of Y.S. Mathur deceased brother of plaintiff, who is one
of witness of sale deed in question, appeared as Dw.2 from the
side of defendant to support the sale deed in question.
9. Learned trial Court, vide judgment dated 20.7.2018
dismissed the plaintiff's suit on merits.
10. Appellant-plaintiff preferred this first appeal, assailing the
judgment and decree dated 20.7.2018 and to pursue her civil suit
for cancellation of her sale deed dated 2.1.2006 on the ground of
fraud and other grounds mentioned in the plaint.
It may also be noted here that after hearing both parties, the
first appeal was admitted for hearing vide order dated 15.3.2019
and the stay application was disposed of in the manner that since
appellant-plaintiff is in possession of suit premises, hence, she
would continue to remain in possession till disposal of appeal,
however, in that undisputed fact that loan amount of
Rs.7,72,000/- against the house in question was paid by
respondent-defendant to the bank, therefore, appellant is directed
to pay mesne profit at the rate of Rs.10,000/- per month to
respondent by 15th day of each month beginning from April,
2019. Respondent provided her bank account details and
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deceased appellant deposited mesne profit in the bank account of
respondent in compliance of the order dated 15.3.2019 during her
lifetime. Thereafter, appellant-plaintiff has passed away on
1.2.2020, hence, the applications referred hereinabove have been
filed, seeking their substitution in place of deceased appellant in
the present first appeal.
11. In the backdrop of aforementioned facts of the present
appeal, before decided the issue as to who can be allowed to be
substituted as legal representative of deceased appellant-plaintiff
to pursue proceedings of present first appeal, it is expedient to
consider the provision of Section 2(11) of the Code of Civil
Procedure, 1908 which defines the term "legal representatives".
Section 2(11) of CPC reads as under:
"(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 suied;"
12. With regard to applications filed by natural successors, an
argument has been raised that few of natural successors are
having adversarial and conflicting interest to the deceased
appellant and therefore they may not be allowed to be substituted
as legal representatives in place of deceased appellant because
they may or may not pursue the cause of litigation and
proceedings of first appeal as initiated by deceased appellant. In
support of arguments, reliance has been placed on the judgment
of the Hon'ble Supreme Court in Gajaraj Vs. Sudha [(1999) 3
SCC 109] and in this case the Supreme Court observed that legal
representatives take the place of and are bound by pleadings of
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their predecessors and they cannot allowed to take up other
defenses arising from their individual rights. In Bajrang Lal Vs.
Dal Chand [AIR 2009 Rajasthan 36], Rajasthan High Court has
observed that legal representatives who have conflicting the
interest with deceased's interest, are dis-entitled to represent the
deceased.
In support of aforementioned principle of law, other
judgments of Rajasthan High Court delivered in case of Smt.
Dayali Vs. Kumari Lata [2002 WLC UC (Raj.) 593],
Rameshwar Prasad Vs. Pratap Singh [1989 (2) RLR 273],
LRs. of Shri Bhanwar Lal Vs. LRs. of Shri Kanhaiya Lal
[2002 WLC UC (Raj.) 329] and judgment of Orissa High
Court in Radhakrishna Padhi Vs. Bhajakrishna Panda [AIR
1981 Orissa 63] and Gujarat High Court in Ibrahimbhai
Karimbhai Vs. State of Gujarat [AIR 1968 Gujarat 202] have
been relied upon. The principle of law which emerge is that legal
representatives of deceased party can continue the original cause
and claim of deceased and cannot set up any individual right or
hostile interest contrary to the interest and right of deceased.
13. Firstly, the application (1/2020) moved on 14.2.2020 by
Shaleen Mathur and Naleen Mathur alleging themselves to be the
legal representative being legatee of deceased appellant on the
basis of her will dated 28.1.2003 is being considered. This
application has been filed well within time, immediately after 14
days of death of sole appellant. It is stated in the application that
both applicants have succeeded the suit property belonging to
deceased appellant by virtue of her will dated 28.1.2003 and
therefore, right to continue the first appeal and to pursue
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proceedings survives upon them and as such they may be
substituted as legal representatives of deceased appellant-plaintiff
to continue the suit and appeal. It is stated that as per their
knowledge, will dated 28.1.2003 executed by appellant Shakuntla
Mathur is her sole and last will and no other will was ever
executed by her in her lifetime in respect of suit property. It is
stated that no prejudice will be caused to respondent-defendant, if
both applicants being legatee of deceased appellant shall be
allowed to be substituted in place of deceased appellant as they
are also ready to honour the order of the High Court dated
15.3.2019 and have also deposited the mesne profit at the rate of
Rs.10,000/- per month in the bank account of respondent-
defendant Smt. Beena Mathur in compliance thereof.
14. Respondent-defendant has filed reply to the application
(1/2020) moved by applicants Shaleen Mathur and Naleen Mathur.
In the reply, it is contended that the suit property has already
purchased by respondent-defendant vide registered sale deed
dated 20.1.2006 and sale deed in question has been held valid by
the trial Court in its judgment dated 20.7.2018. While denying the
execution of will dated 28.1.2003 and disputing the execution,
attestation and validity of alleged will, the respondent alleged that
will is a false and fabricated document and further since appellant-
plaintiff Shakuntala Mathur has already executed a registered sale
deed dated 20.1.2006, therefore, bequeathing her property by
way of executing the alleged will dated 28.1.2003 in favour of her
nephew Shaleen Mathur and Naleen Mathur is of no significance in
the eyes of law. It is stated that mere producing the will in
evidence and marking the will as Ex.10 during the course of trial
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ipso facto will not hold the alleged will dated 28.1.2003 to be a
valid document. Thus, it is contended that right to sue does not
survive or devolves upon applicants on the basis of alleged will
and applicants have no right to be substituted as legal
representative in place of deceased appellant. It is also stated that
after death of deceased appellant Shakuntla Mathur, respondent
has come in possession of the suit property and same is presently
under her lock and key. The amount of mesne profit deposited by
applicants have been returned by respondent and applicants have
filed the application under Order 22 Rule 3 CPC simply to
complicate and prolonged the present litigation, therefore, the
application be dismissed.
15. Counsel for applicants namely Shaleen Mathur and Naleen
Mathur submits that applicants are the legatee under the will of
deceased appellant who only intend to represent the estate of
deceased appellant in order to pursue proceedings of first appeal.
He submits that except applicants, there are no other legal
representatives who are claiming as legal representatives of
deceased appellant on the basis of her any testamentary
document and as per definition of Section 2(11) of CPC, they fall
within the purview of legal representative of deceased appellant as
such are entitled to be substituted in place of deceased appellant
at least in order to pursue the proceedings of first appeal. Reliance
has been placed on the judgment of Jaladi Suguna (Deceased)
Vs. Satya Sai Central Trust [(2008) 8 SCC 521] and Radhey
Shyam Vs. Radha Mohan Paliwal [2013 (1) WLC (Raj.)
557].
16. Per contra, counsel for respondent-defendant has argued
that will dated 28.1.2003 on which applicants are placing reliance
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is a fake and fabricated document and otherwise also same does
not become enforceable and of no significance, when after
execution of will dated 28.1.2003, deceased appellant has
executed the registered sale deed dated 20.1.2006 transferring
the suit property in favour of respondent. He submits that before
allowing applicants as legal representatives of deceased appellant,
an enquiry as provided under Order 22 Rule 5 CPC would be
required. He has placed reliance on judgment of Mahendra
Kumar Vs. Lalchand [(2001) 2 SCC 619], R.Krsna Murtii Vs.
R.R. Jagadesan [(2022) 0 Supreme(SC) 622] and Mahanth
Satyanand Vs. Shyam Lal Chauhan [(2018) 18 SCC 485].
17. This Court is not oblivious about the provision of Order 22
Rule 5 which provides a procedure for determination of question
as to legal representatives which runs as follows:
"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: 1 [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."
18. It is trite law that determination under Order 22 Rule 5 CPC
is summary in nature and for limited purpose to ascertain legal
representatives. Such determination does not confer any right to
property of deceased even to the person who is held to be his
legal representative in relation to subject property vis-a-vis to
rival claimants of property of deceased. Thus, in order to claim the
property rights over the suit property on the basis of will dated
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28.1.2003, applicants has to prove the will in accordance with law.
Mere substitution of applicants as legal representatives of
deceased appellant on the basis of will, would not confer any right,
title and interest of the suit property to them. It may be noticed
that there are no other applicants who are claiming themselves as
legal representatives of deceased appellant on the basis of any
testamentary document like will as claimed by applicants. As far
as will dated 28.1.2003 of deceased appellant is concerned, it is
on record that appellant herself has given reference of her will in
the plaint as well as has produced her will in her evidence as
Ex.10. Respondent-defendant though has denied and disputed the
execution, genuineness, attestation and validity of will in her reply
to the application but has not filed any suit for
cancellation/declaration of will as null and void. It is needless to
say that the issue which is being decided by this Court with regard
to substitution of legal representatives, do not adversely affects
the right of respondent-defendant as far as the challenge and
disputing the will of deceased appellant. The applicants, being
legatee under the will of appellant, can be treated as having
semblance of interest in pursuing the proceeding of appeal. The
Apex Court in case of Jaladi Suguna (supra) has held in para 12
and 15 as under:
"12.`Legal representative' according to its
definition in section 2(11) of 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.
15. If there is a dispute as to who is the legal
representative, a decision should be rendered on such
dispute. Only when the question of legal representative
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is determined by the court and such legal representative
is brought on record, it can be said that the estate of the
deceased is represented. The determination as to who is
the legal representative under Order 22 Rule 5 will of
course be for the limited purpose of representation of
the estate of the deceased, for adjudication of that case.
Such determination for such limited purpose will not
confer on the person held to be the legal representative,
any right to the property which is the subject matter of
the suit, vis-a-vis other rival claimants to the estate of
the deceased."
19. The Co-ordinate Bench of Rajasthan High Court in case of
Radhey Shyam (Supra) has observed that the legatee under the
will, who intents to represent the estate of deceased testamentary
being an inter-meddler with the estate of deceased will be a legal
representative.
20. Judgment relied upon by counsel for respondent have no
application to the facts of present case. In case of Mahendra
Kumar (Supra) the Court declared the appeal as abated, without
following procedure laid down in Order 22 Rule 5 CPC, therefore,
the Supreme Court observed that no abatement of appeal could
be ordered until determination of the question as to legal
representatives after holding the enquiry under Order 22 Rule 5
CPC.
21. In case of R. Krsna Murtii (supra), the application seeking
substitution as legal representative was dismissed without
restoring to the enquiry under Order 22 Rule 5 CPC, therefore, the
Supreme Court observed that the trial Court could have adopted
the course envisaged by Rule 5 of Order 22 of the Code of Civil
Procedure.
22. In case of Mahant Satyanand (Supra), two rival chela
(disciples) of deceased relying on certain customs claimed their
substitution as legal representatives of deceased Guru, therefore,
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enquiry under Order 22 Rule 5 CPC was ordered by the Supreme
Court. In this judgment, the Supreme Court has relied upon the
principle laid down in case of Jaladi Suguna and has observed as
under:
"8. The procedural aspect to be followed when an
application is filed under Order 22 Rule 5, CPC is no
longer res integra as this Court in Jaladi Suguna
(deceased) through Lrs. Vs. Satya Sai Central Trust and
Others, (2008) 8 SCC 521, has interpreted Order 22
Rule 5 of CPC in the following terms:
"15.Filing an application to bring the legal
representatives on record, does not amount to
bringing the legal representatives on record.
When an LR application is filed, the court
should consider it and decide whether the
persons named therein as the legal
representatives, should be brought on record
to represent the estate of the deceased. Until
such decision by the court, the persons
claiming to be the legal representatives have
no right to represent the estate of the
deceased, nor prosecute or defend the case. If
there is a dispute as to who is the legal
representative, a decision should be rendered
on such dispute. Only when the question of
legal representative is determined by the court
and such legal representative is brought on
record, can it be said that the estate of the
deceased is represented.
16. The provisions of Rule IV and V of Order
XXII are mandatory. When a respondent in an
appeal dies, the court cannot simply say that it
will hear all rival claimants to the estate of the
deceased respondent and proceed to dispose
of the appeal. Nor can it implead all persons
claiming to be legal representatives, as parties
to the appeal without deciding who will
represent the estate of the deceased and
proceed to hear the appeal on merits. The
court cannot also postpone the decision as to
who is the legal representative of the
deceased respondent, for being decided along
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with the appeal on merits. The Code clearly
provides that where a question arises as to
whether any person is or is not the legal
representative of a deceased respondent, such
question shall be determined by the court.......
Though Rule V does not specifically provide
that determination of legal representative
should precede the hearing of the appeal on
merits, Rule 4 read with Rule 11 makes it clear
that the appeal can be heard only after the
legal representatives are brought on record".
23. In case at hand, deceased appellant herself has given
reference in the pleadings of plaint that she mortgage her
property to clear the loan taken by her younger brother Rajendra
Swaroop Mathur. She stated that her younger brother Rajendra
Swaroop Mathur is financially weak, therefore, she has maintained
his family and bored all expenses of education of his children and
thereafter she made a reference that she has already executed a
will dated 28.1.2003 in favour of sons of Rajendra Swaroop
Mathur namely Naleen Mathur and Shaleen Mathur. Even the will
dated 28.1.2003 has been produced by deceased appellant-
plaintiff in her evidence during course of trial as Ex.10. The
interest and right of the applicant is in semblance to the deceased
appellant. Thus, prima facie, on the basis of such will dated
28.1.2003, both applicants can be treated to fall within the
definition of legal representatives as defined under Section 2(11)
of CPC and merely the respondent-defendant has disputed and
denied the will, the scope of Order 22 Rule 5 CPC for holding an
enquiry may not be invoked. When there is sufficient material on
record to determine the legal representative, inquiry under Order
22 Rule 5 may not be called for on askance of the opposite party.
When, in absence of any material on record, Court is unable
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determine the question of legal representative, the inquiry is
must. The substitution of applicant as legal representative is for
the limited purpose to pursue the proceedings of first appeal and
mere substitution would not confer any right, title and interest of
the suit property to applicants, nor the objection of respondent
defendant to challenge the execution, attestation and validity of
will in question would be adversely affected. In such backdrop of
facts, the enquiry under Order 22 Rule 5 CPC seems to be
unwarranted and therefore, in such special facts and
cirumstances, this Court is not inclined to hold any enquiry about
the will under Order 22 Rule 5 CPC. Moreso, when there are no
rival applicants qua the present applicants on the basis of will as
there is no another will or any other testamentary document of
deceased appellant has come on record. Therefore, this Court
prima facie finds that it would be just and proper to treat
applicants as legal representatives on the basis of will of deceased
appellant and they can be allowed to be substituted as appellants
in place of deceased appellant for the limited purpose of pursuing
the proceedings of first appeal.
24. Accordingly, application (1/2022) stands allowed and
applicants are treated as legal representatives of deceased
appellant.
25. As far as other applications are concerned, they are claiming
themselves as natural successor of property of deceased appellant
under the law of Hindu Succession Act. Before dealing with other
applications moved by applicants on the basis of alleging
themselves to be natural successors, the provision of Section 15
and 16 of the Hindu Succession Act may be taken into
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consideration. Section 15 and 16 of the Hindu Succession Act,
1956 reads as under:-
"15. General rules of succession in the case of
female Hindus.- (1) The property of a female Hindu
dying intestate shall devolve according to the rules set
out in section 16,--
(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),
--
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the husband.
16. Order of succession and manner of distribution among heirs of a female Hindu.--The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:--
Rule 1.--Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule 2.--If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.
Rule 3.--The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub- (Downloaded on 25/12/2022 at 03:52:30 AM)
(16 of 21) [CFA-810/2018] section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."
26. Since this is undisputed fact that deceased appellant was unmarried woman and her parents had pre-deceased, therefore Section 15 (1) (a), (b) and (c) does not apply and (d) comes in operation. In this manner, heirs of father of deceased appellant would come under the Law of succession and as per Section 16 Rule 1, all heirs of her father shall take simultaneous right of succession. Now who are heirs of the father of deceased appellant, for that the Schedule part of section 8 of the Hindu Succession Act has to be considered. As per Schedule, all brothers and sisters of deceased appellant and son & daughter of pre deceased brother and sister of deceased appellant come in class-I as her natural heirs. Thus, as per Section 15(1) (d) and with the aid of Schedule of Section 8 of the Hindu Succession Act and applying the Rule 1 of Section 16, natural brothers and sisters of deceased appellant and son & daughter of pre-deceased brother and sister of deceased appellant, can be treated as natural successor of deceased appellant.
27. In compliance of the order dated 22.4.2022, an application (5/2022) has been filed giving details of surviving natural successors of the deceased appellant and details of family of deceased appellant as provided therein. In the family of father of deceased appellant, there were six sons namely Y.S. Mathur (Deceased), Dwarka Prasad Mathur (Deceased), Virendra Swaroop Mathur (Deceased), Rajendra Swaroop Mathur, Umesh Mathur and (Downloaded on 25/12/2022 at 03:52:30 AM) (17 of 21) [CFA-810/2018] Ashok Mathur and four daughters namely Sharda Mathur (Deceased), Shakuntla Mathur (deceased appellant herein), Uma Mathur and Veena Mathur (respondent defendant). The family tree of father of deceased appellant is as under:
Sh. Ram Rishipal Ji Mathur and Wife Smt. Chaggan Devi Mathur Y.S.Mathur Dwarka Pd. Virendra Rajendra Veena Sharda Shakuntala Uma (deceased) Mathur Swaroop Swaroop Umesh Ashok Mathur Mathur Mathur Mathur Mathur Mathur (deceased) Mathur Mathur (defendant-
(deceased) (plaintiff-
(deceased) respondent)
appellant)
Shaleen Naleen
Rakesh Anil
Mathur Mathur
Alok Alka
28. Deceased appellant's brother Rajendra Swaroop Mathur has moved application (3/2021) on 19.4.2021 seeking his substitution as her legal representatives which has been filed purportedly under Order 22 Rule 3 and Order 1 Rule 10 read with Section 151 CPC. It is clear from record that applicant Rajendra Swaroop Mathur has already appeared as Pw.2 in suit proceedings and his two sons, Shaleen Mathur and Naleen Mathur have already been treated as legal representatives of deceased appellant on the basis of will dated 28.1.2003, this Court is not inclined to substitute the brother of deceased appellant as her legal representative, hence, application is dismissed.
29. Deceased appellant's another brother Ashok Mathur has moved applications (1/2021 & 2/2021) on 8.2.2021. These applications have been filed under the provisions of Order 22 Rule 3 and 9 read with Order 1 Rule 10 CPC and under Section 5 of the Limitation Act. As per record, it is clear that applicant Ashok Mathur is one of the witness in the present proceedings who (Downloaded on 25/12/2022 at 03:52:30 AM) (18 of 21) [CFA-810/2018] appeared as Dw.3 to support respondent-defendant and to state that sale deed in question challenged by the appellant is lawful and valid, therefore, the interest of appellant is wholly adverse to the interest of deceased appellant and he has no semblance of right with the deceased appellant to pursue proceedings of first appeal, and as such cannot be substituted as legal representative of deceased appellant. Therefore, applications are dismissed.
30. Deceased appellant's deceased brother Y.S. Mathur's another son Anil Mathur has moved applications (3/2022 and 4/2022) on 15.2.2022. Applications have been filed under the provisions of Order 22 Rule 3 and 9 and Section 5 of the Limitation Act. As per record applicant Anil Mathur, is one of signatories as witness to the sale deed in question dated 20.1.2006 and he appeared as Dw.2, to support the respondent-defendant to hold the sale deed in question as lawful and valid. His interest in the suit property is adverse to the deceased appellant and as such he cannot be substituted as her legal representative, at least to pursue the cause of suit and proceedings of present appeal, therefore, applications are dismissed.
31. Deceased appellant's deceased brother Y.S. Mathur's son Rakesh Mathur has moved two applications (1/2022 and 2/2022) on 9.2.2022. Applications have been filed involving, provisions of Order 22 Rule 3 and 9 and Section 5 of the Limitation Act. It may be noticed that real brother of Rakesh namely Anil is one of the witness of sale deed in question and his father Y.S. Mathur is signatory to the document Ex.6 which is being pursued against deceased appellant to show that after execution of sale deed in question dated 20.1.2006, she remained in possession of the (Downloaded on 25/12/2022 at 03:52:30 AM) (19 of 21) [CFA-810/2018] house property as licensee on the basis of document Ex.6, therefore, it may not be said that the interest of applicant in the suit property is parallel to the deceased appellant and he may or may not pursue proceedings of present appeal and therefore he may not be substituted as legal representatives of deceased appellant, as such applications are dismissed.
32. Deceased appellant's deceased sister Shardha Mathur's son Alok Mathur has moved application (6/2022 and 7/2022) dated 18.7.2022. Applications are delayed by near about more than one and half year, therefore provisions of Order 22 Rule 3 read with Rule 9 and Section 5 of the Limitation Act have been resorted. In the application, he has stated that deceased appellant's brother Rajendra Swaroop Mathur has deposed one affidavit containing false and misleading facts. This affidavit was circulated by son of defendant respondent and thereafter, he has filed this application.
This Court is of the considered opinion that applicants need not to be allowed to substitute as legal representative of deceased appellant, when on the basis of will of deceased appellant, her legatees have been allowed to be substituted, to pursue proceedings of present first appeal. Prima facie, it appears that application has been filed, only to complicate the issue and same may not be treated as bonafide. Accordingly, applications are dismissed.
33. Keeping in mind the nature of dispute involved in the present appeal between two real sister regarding cancellation of sale deed, when respondent-defendant, being real sister of deceased appellant, falls in the similar category of the other natural successors who have moved application seeking their substitution (Downloaded on 25/12/2022 at 03:52:30 AM) (20 of 21) [CFA-810/2018] as legal representatives of deceased appellant, this Court is not inclined to allow any of natural successor to be substituted as legal representative of deceased appellant as far as the present first appeal is concerned. As discussed hereinabove, few of natural successor of deceased appellant apparently have supported the respondent-defendant and have adversarial interest to the deceased appellant, few supported the appellant, few are neutral and few have not moved any application. When, this Court has treated two nephews of deceased appellant namely Shaleen Mathur and Naleen Mathur as legal representatives of deceased appellant on the basis of will dated 28.1.2003 executed and produced by deceased appellant's heirs, as well as their interest is parallel and in semblance to the interest of deceased appellant, other natural heirs are not require to be substituted who are otherwise also not in the category of first class successor but are in the category of successor equivalent to the category of contesting respondent.
At the cost of repetition, it may be noted that is has also been clear hereinabove that merely allowing substitution of any person as legal representatives of deceased appellant, same would not confer any right, title and interest in the suit property. The substitution is only for the limited purpose to pursue proceedings of first appeal, filed by deceased appellant.
34. The final outcome of order is that applicants Naleen Mathur and Shaleen Mathur are treated as legal representatives of deceased appellant, on the basis of her will dated 28.1.2003 and they are allowed to be substituted as legal representatives of deceased appellant in the present first appeal for the limited (Downloaded on 25/12/2022 at 03:52:30 AM) (21 of 21) [CFA-810/2018] purpose of pursuing proceedings of first appeal and to pursue the cause of suit. Amended cause title, enclosed with application (1/2020) is taken on record.
35. Office is directed to place the amended cause title at appropriate place.
36. At the cost of repetition, it is made clear that this order would not affect the legal and property rights of any of the party including applicants and other natural successors who have moved the application seeking their substitution as legal representatives of deceased appellant, as also other natural successors of deceased appellant who have not moved any application and the respondent as well.
37. In view of above, applications (1/2020, 1/2021, 2/2021, 3/2021, 1/2022, 2/2022, 3/2022, 4/2022, 5/2022, 6/2022, 7/2022) stand disposed of.
(SUDESH BANSAL),J NITIN /53 (Downloaded on 25/12/2022 at 03:52:30 AM) Powered by TCPDF (www.tcpdf.org)