Punjab-Haryana High Court
Karamjit Kaur And Anr. vs Gurbant Singh And Ors. on 3 April, 2003
Equivalent citations: (2003)134PLR707
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This revision petition is directed against the order dated 29.9.2000 passed by civil Judge (Senior Division), Ropar vide which application filed by Karamjit Kaur alias Kamaljit Kaur and Harpreet Singh for impleading them as LRs of deceased Nirmal Singh were allowed.
2. Brief facts of the case are that Gurbant Singh, respondent No. 1, filed a suit against Nirmal Singh, Smt. Amar Kaur widow, Bant Kaur and Dalip Kaur daughters of Surjan Singh, Labh Singh and Parminder Singh for joint possession. During the pendency of the suit filed by Gurbant Singh, Nirmal Singh, husband of petitioner No. 1 and father of petitioner No. 2 died on 28.7.2000. The petitioners moved an application before the trial Court for bringing them on record as the LRs of deceased Nirmal Singh. Tejwant Singh, respondent No. 7 also moved an application for impleading him as LRs of Nirmal Singh.
3. The application filed by Karamjit Kaur and Tejwant Singh were allowed. Aggrieved by the order of the learned trial Court with regard to the allowing of the application of Tejwant Singh, the widow of deceased Nirmal Singh has filed the present revision petition.
4. Mr. Gurcharan Dass, learned counsel for the petitioners submitted that the order passed by the learned trial court is erroneous. He contended that the trial court has not taken into consideration the mandatory provisions of Order 22 Rule 5 Civil Procedure Code and impleaded Tejwant Singh as LR of Nirmal Singh. He contended that it was the bounded duty of the learned trial court to determine the question whether Tejwant Singh, respondent No. 7, was the LR of deceased Nirmal Singh and still such time a finding is given, respondent No. 7 could not be brought on record. He further submitted that Nirmal Singh deceased appeared as PW2 in case State v. Gurbant Singh, (FIR No. 25 dated 8.5.1995, P.S. Morinda) and stated that he did not know Tejwant Singh Boparai. He also deposed that he never gave any power of attorney to anyone regarding his land. Even he made a statement that he did not know whether Tejwant Singh was the son of Dr. Sohan Singh, who was the President of Panthak Committee. In support of his submission he relied upon Mehan Singh and Anr. v. Amarjit Kaur and Ors., (1993-2)104 P.L.R. 363.
5. On the other hand, learned counsel for the respondents submitted that there was a registered will in favour of respondent No. 7. He submitted that a legatee under the Will is entitled to represent his estate. Therefore, he is a legal representative of Nirmal Singh. In support of his argument, he relied upon Andhara Bank Ltd. v. R. Srinivasan and Ors., A.I.R. 1962 Supreme Court 232.
6. After hearing learned counsel for the parties, I am of the considered opinion that this petition has merit and deserves to succeed. Before considering the rival contentions, it will be appropriate to notice the provisions of Rule 5 Order 22 Civil Procedure Code which lead as under:-
"5. Determination of question as to legal representative.- Where a question arises as to whether any parson 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 therefor, and the Appellate Court may take the same into consideration in determining the question."
7. Perusal of the above said provisions shows that when there is a dispute between the parties as to who are the legal heirs of the deceased, it is incumbent upon the Court to adjudicate on the point and without adjudication, the LRs cannot be brought on record. Petitioner No. 1 is the widow and petitioner No. 2 is posthumous daughter of deceased Nirmal Singh. So they are natural heirs of Nirmal Singh. Respondent No. 7 claims himself to be the legal heir of Nirmal Singh on the basis of the Will. The trial Court without considering the genuiness of the Will impleaded respondent No. 7 also as the LR of Nirmal Singh. It is pertinent to mention here that Nirmal Singh deceased had made a statement on oath in the court of Addl. Chief Judicial Magistrate, Ropar on 21.12.1999 that he did not know Tejwant Singh. He has not executed any power of Attorney in favour of anyone. The power of attorney did not bear his signatures. Shri Nirmal Singh has also deposed that he did not know whether Tejwant Singh was the son of Dr. Sohan Singh, who was the President of the Panthak Committee. Learned trial court has not taken into consideration the statement of Nirmal Singh deceased which he had made before Additional Chief Judicial Magistrate, Ropar. There is no dispute regarding the proposition of law laid down in Andhra Bank Ltd. (supra) by the Apex Court that a legatee represents the estate of the deceased but the preposition in hand is whether a person can be impleaded as LR without determining the point as laid down under Order 22 Rule 5 Civil Procedure Code. In the instant case before impleading respondent No. 7 as LR of Nirmal Singh deceased, there is no determination as required under Order 22 Rule 5 Civil Procedure Code.
8. For the reasons mentioned above, this revision petition is accepted and the impugned order with regard to the allowing of the application of Tejwant Singh is set aside and the trial Court is directed to determine the question as to whether Tejwant Singh is the LR of deceased Nirmal Singh as provided under Rule 5 Order 22 Civil Procedure Code within three months on receipt of the copy of the order. Parties are directed to appear before the trial court on 21.5.2003.