Punjab-Haryana High Court
Smt. Sahab Kaur vs Avtar Singh And Ors. on 19 July, 2005
Equivalent citations: (2005)141PLR766
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. The revision petition has been filed under Article 227 of the Constitution of India against the order dated 28.7.2003 (Annexure P-3) passed by the learned Civil Judge (Junior Division), Ambala City whereby Avtar Singh and Didar Singh (respondents No. 1 and 2) have been impleaded as legal representatives of the deceased Smt. Bachni Devi, during the pendency of the suit on the basis of a registered Will dated 27.10.1998.
2. Smt. Bachni Devi, widow of Amar Singh filed a suit for possession by way of partition in respect of the house as detailed in the head note of the plaint, in which she claimed that she is the widow of Amar Singh (deceased). During the pendency of the suit Smt. Bachni Devi died on the intervening night of 15/16.4.2002 and respondent Nos. 1 and 2,who are the grand-sons of Smt. Bachni Devi, moved an application for their impleadment as the legal representatives on the basis of Will. The application was opposed by the petitioner Sahab Kaur, daughter of Amar Singh: It was submitted that respondent Nos. 1 and 2 are not the legal heirs of deceased Smt. Bachni Devi and she never executed the Will dated 27.10.1988 in their favour. It is stated that the applicants have no right to be impleaded as legal heirs of Smt. Bachni Devi as Smt. Sahab Kaur (petitioner) is her only legal heir and a prayer was made for dismissal of the application. The learned Civil Judge (Junior Division) vide his impugned order dated 28.7.2003 has allowed the application by taking into account the Will dated 27.10.1998.
3. Learned counsel for the petitioner contends that the impugned order is erroneous. In fact, it is contended that Smt. Bachni Devi was not married to Amar Singh and she is not the widow of Amar Singh (deceased).Besides, it is submitted that Amar Singh was married and the petitioner is the daughter of said Amar Singh from his only marriage with the mother of the petitioner. Besides, it is contended that Baljit Singh (respondent No. 3) is not the adopted son of Amar Singh. However, Smt. Bachni Devi had wrongly set up Baljit Singh to be the adopted son of Amar Singh and respondent Nos. 1 and 2 are the sons of Baljit Singh, who is fact was never adopted by Amar Singh. Therefore, it was contended that respondent Nos. 1 and 2 were not liable to be impleaded as legal representatives of the deceased Smt. Bachni Devi.
4. In response, learned counsel appearing for the respondents submits that the order passed by the learned trial Court is just and reasonable and calls for no interference by this Court. It is further submitted that the legal representatives of Smt. Bachni Devi have rightly been impleaded in view of the Will dated 27.10.1998 validly executed by Amar Singh. The same, it is contended,is a registered document. It is further contended that in case the petitioner is, in any manner, aggrieved from the Will dated 27.10.1998, she may challenge the same in accordance with law. Therefore, it is prayed that the revision petition may be dismissed.
5. I have given any thoughtful consideration to the contentions raised by the learned counsel appearing for the parties. In order to appreciate the contentions of learned counsel, it is appropriate to notice the provisions of Order 22 of the Code of Civil Procedure (C.P.C for short) which provides for death, marriage and insolvency of the parties. Rule 5 of Order 22 C.P.C. provides for determination of question as to legal representatives. The same 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 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."
6. A perusal of the above shows that where a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or deceased defendant such question is to be determined by the Court. In terms of the proviso if such question arises before the Appellate Court, it may remit the matter to the subordinate Court to try the question and to return the record together with evidence, if any, recorded at such trial with its findings and reasons, therefor. Order 22 Rule 5 thus provides the procedure for determining the legal representative of the deceased plaintiff or defendant. Section 2(11) C.P.C. defines 'legal representative' to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased person 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. Therefore, where there is a dispute as to who is the legal representative of a deceased party to the suit, it is incumbent upon the Court to determine and decide as to who is the legal representative. The decision, however, is limited and is only for the purpose of carrying on with the suit. The words, "such question shall be determined by the Court," in Rule 5 of the Order 22 enjoin that for the purpose of determining as to who is the legal representative, the Court, wherever necessary, must hold an enquiry in which evidence may even be adduced. In the case of a dispute regarding Will, the question requires to be determined by a limited enquiry by adducing evidence. The determination of the question of legal representative, however, does not confer any right to succession or heirship to the estate of the deceased. Therefore, evidently the question as to the authenticity of the Will for the limited purpose of impleading the legal representative of the deceased is to be gone into in accordance with the provisions of Order 22 Rule 5 C.P.C.
7. In the case in hand the respondent Nos. 1 and 2 claim to be the legal representatives of Smt. Bachni Devi on the basis of a registered Will dated 27.10.1998, and this question is to be determined after leading evidence for the limited purpose of impleading the legal representatives in accordance with the procedure provided under Order 22, Rule 5 C.P.C. This exercise had admittedly not been carried out by the learned trial Court. Therefore, the impugned order dated 28.7.2003 suffers from a jurisdictional error. As such the impugned order dated 28.7.2003 is not sustainable in law.
8. Insofar as the other contention whether Smt. Bachni Devi is the widow of Amar Singh and whether Baljit Singh (respondent No. 3) is the adopted son of Amar Singh is not to be gone into in this petition as that is the subject matter of the suit.
For the foregoing reasons the civil revision petition is allowed. The order dated 28.7.2003 passed by the learned trial Court is set aside. The learned trial Court shall take steps to determine the question of legal representatives of deceased Smt. Bachni Devi in a accordance with the procedure provided under Order 22 Rule 5 C.P.C. Both the parties shall be given opportunities to produce their evidence for the limited purpose of impleading the legal representatives of Smt. Bachni Devi. Nothing stated herein shall be taken as an expression on the merits of the controversy between the parties.