Himachal Pradesh High Court
Madho Dass @ Lakhvinder Singh Chela Shri ... vs Mahant Jagat Dass Chela Mahatma Hans ... on 24 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CMPMO's Nos. 278 and 288 of 2018
Decided on: September 24, 2019
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1. CMPMO No. 278 of 2018
Madho Dass @ Lakhvinder Singh Chela Shri Chetan
Dass .........Petitioner
Versus
Mahant Jagat Dass Chela Mahatma Hans Dass
...Respondent
2. CMPMO No. 288 of 2018
Madho Dass @ Lakhvinder Singh Chela Shri Chetan
Dass .........Petitioner
Versus
Mahant Jagat Dass Chela Mahatma Hans Dass
...Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
____________________________________________________________
For the petitioner: Mr. Sunil Mohan Goel, Advocate.
For the respondent: Mr. Ajay Sharma, Senior Advocate
with Mr. Ajay Thakur, Advocate.
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Sandeep Sharma, J. (Oral)
Since both the petitions came to be tagged together and were being heard together, same are being disposed of vide this common judgment.
2. CMPMO No. 278 of 2018 has been filed under Art. 227 of the Constitution of India, laying therein challenge to order dated 13.12.2017, passed by learned Senior Civil Whether reporters of the Local papers are allowed to see the judgment? . ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -2- Judge, Dehra, District Kangra, Himachal Pradesh, whereby CMA No. 404/17 in Civil Suit No. 153/12, filed under Order XXII, rule 3 CPC by the respondent/defendant (hereinafter, .
'defendant'), came to be allowed.
3. Similarly, CMPMO No. 288 of 2018 has been filed under Art. 227 of the Constitution of India, laying therein challenge to order dated 13.12.2017, passed by learned Senior Civil Judge, Dehra, District Kangra, Himachal Pradesh whereby CMA No. 403/17 in Civil Suit No. 54/12, filed under Order XXII, rule 3 CPC by the respondent/defendant (hereinafter, 'defendant'), came to be allowed
4. Necessary facts, as emerge from the record are that Mahant Jagat Dass (since deceased) filed two suits in the court of learned Senior Civil Judge, Dehra, under Ss. 34, 38 and 39 of the Specific Reliefs Act, one seeking therein declaration that the plaintiff being Mahant /Manager of Dhuna Sahib Darbar Baba Ghati alone is entitled to manage the entire property of Shree Dhuna Sahib Darbar Baba Ghati, including all the bank accounts standing in and for the name and style of Shree Dhuna Sahib, in any bank or elsewhere and another seeking permanent perpetual prohibitory injunction against the defendant, restraining him from ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -3- interfering in any manner in the management of Shree Dhuna Sahib and its property.
5. Before the aforesaid suits could be decided, original .
plaintiff Mahant Jagat Dass expired on 15.12.2015, whereafter, respondent Garib Dass claming himself to be Chela of Mahant Jagat Dass, filed applications under Order XXII, rule 3 in both the suits for his impleadment as plaintiff in place of Mahant Jagat Dass, on the basis of Prabandhak Nama dated 29.8.2012. Respondent Garib Dass claimed in the application that he is legal representative of original plaintiff, Jagat Dass, who expired on 15.12.2015. He further stated in the application that Mahant Jagat Dass himself appointed him as Chela and his Mohatmim vide Prabandhak Nama dated 29.8.2012, which stands duly admitted by original plaintiff, Jagat Dass in the court on 25.8.2014. Garib Dass also claimed that since he has been appointed by original plaintiff Mahant Jagat Dass in the presence of devotees at Dera Dhuna Sahib Ghati, there is no legal representative except him and prayer made on his behalf for impleadment as plaintiff in place of Jagat Dass may be allowed.
6. Aforesaid prayer made on behalf of Garib Dass, came to be resisted on behalf of the defendant, who though ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -4- admitted that the original plaintiff Jagat Dass has expired but specifically denied that Garib Dass is legal representative of Jagat Dass. He claimed that Jagat Dass was only a .
manager of the institution and as such, he had no power or any right to further appoint the manager or Prabandhak. He claimed that there is a Bheikh i.e. supreme body of Sadhu Samaj, which appoints Mahant after death of a Mahant/Manager of the institution. Defendant Madho Dass claimed that he is the only Mahant and succeeded Jagat Dass after his death. He claimed that he was appointed as Mahant of Dhuna Sahib on 31.12.2015 in the presence of other saints, believers and general public and since he is performing duties of Mahant of Dhuna Sahib, as such, he only has the right o manage the property of Dhuna Sahib after death of Jagat Dass. He further claimed that since original plaintiff was not competent or having any authority to appoint any person as Manager or Prabandhak, documents, if any, to that effect do not create any right of Mahantship in favour of Garib Dass. Defendant claimed that no Succession Act in such institutions applies and it is only Sadhu Samaj which is competent to appoint a Mahant.
7. Learned court below, on the basis of pleadings adduced on record by parties, allowed aforesaid applications ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -5- vide impugned orders, both dated 13.12.2017. Being aggrieved and dissatisfied with the aforesaid orders of impleadment of Garib Dass as plaintiff, defendant has .
approached this Court in the instant proceedings.
8. Having heard learned counsel for the parties and perused the material available on record, this Court finds no illegality or infirmity in the impugned orders, as such, same do not call for any interference.
9. The Code of Civil Procedure defines "legal representative", which literally 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. In the case at hand, it is not in dispute that the original plaintiff Mahant Jagat Dass claiming himself to be Mahant/Manager of Dhuna Sahib, had filed two suits, seeking declaration to the extent that he alone is entitled to manage the entire property of Dhuna Sahib and for permanent perpetual prohibitory injunction restraining the defendant from interfering in any manner in the management of Dhuna Sahib. Replies to the applications as well as written ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -6- statements filed by the defendant, nowhere suggest that the claim of Mahant Jagat Dass that he is Manager of the institution ever came to be disputed on behalf of the .
defendant, rather, case as set up by the defendant is that Mahant Jagat Dass was only a manager of the institution and as such, he had no power or right to further appoint any Prabandhak or Manager, meaning thereby it stands duly admitted that at the time of filing of suits, original plaintiff, Mahant Jagat Dass was managing the affairs of the institution.
11. At r the time of deciding the application for impleadment, if any, filed after death of the original plaintiff, court is only required to see whether estate of the deceased plaintiff is sufficiently represented by somebody or not?
"Legal representative" as defined in the Code of Civil Procedure provides that a person, who represents the estate of the deceased person or who intermeddles with the estate of the deceased, can be said to be a legal representative. In the case at hand, respondent Garib Dass by way of placing on record Prabandhak Nama dated 29.8.2012, successfully established that he represents the estate of late Mahant Jagat Dass, who expired before decision of the suits filed by him, as such, learned Court below rightly held the respondent Garib ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -7- Dass to be legal representative of the deceased Mahant Jagat Dass.
12. Question, whether Mahant Jagat Dass was .
appointed as Mahant by Supreme Body of Sadhu Samaj and he was further competent to appoint Mahant or Mohatmim can definitely be decided during trial in the main suit pending before it, in the totality of evidence adduced on record by the respective parties. Once, it stands admitted that the original plaintiff Mahant Jagat Dass was managing the affairs of the Institution in the capacity of Mahant, it can be safely presumed /inferred that at the time of filing suits, he was in control of the affairs of the Institution. Moreover, careful perusal of impugned orders passed by learned Court below nowhere suggests that learned Court below, while holding respondent Garib Dass to be legal representative of late Mahant Jagat Dass, the original plaintiff, proceeded to determine the rights of the parties finally, which otherwise could not be decided in the instant proceedings.
13. In the case at hand, applications came to be filed on behalf of a person, who claimed himself to Chela of original plaintiff, Mahant Jagat Dass, whereas, defendant by way of written statements to the suit, disputed the claim of the original plaintiff, Mahant Jagat Dass that he was Mahant of ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -8- Dhuna Sahib. Defendant in his written statements has admitted that original plaintiff, Mahant Jagat Dass was only temporarily authorised to manage the affairs of the .
institution but he was never appointed as a Mahant but there is nothing on record to suggest that late Mahant Jagat Dass in the capacity of Mahant of the Institution was not in the helm of affairs of the Institution at the time of filing of suits.
14. This Court, in case Munish Kumar alias Munsih Gir Vs. Baghla Mukhi Devi, RSA No. 390 of 1989, decided on 6.8.1997 reported in 1997(2) CCC 543 (HP)has categorically held that after death of Mahant, successor of Mahant can continue the suit on the plea raised by the Mahant.
15. Hon'ble Apex Court in Custodian, Branches of BANCO National Ultramarino v. Nalini Bai, AIR 1989 SC 1589, has held that legal representative as defined in the Code of Civil Procedure 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. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP -9- be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons, who represent the estate .
even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". Hon'ble Apex Court has held as under:
"4. After hearing learned counsel for the parties, we are of opinion that the learned Judicial Commissioner committed serious error of law in setting aside the order of the trial Judge. "Legal representative" as defined in rCivil Procedure Code which was admittedly applicable to the proceedings in the suit, 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. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased. In the instant case it is not disputed that ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP
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under the Portugees Law of Inheritance which was applicable to Goa at the relevant time Mrs. Nalini Bai had acquired "Meeira rights" according to which she had acquired half share in the estate left by the deceased .
Vinaique Naique and the remaining half share was inherited by sons and daughters of the deceased who were subsequently brought on record. On the admitted facts Mrs. Nalini Bai therefore represented the estate of the deceased Vinaique Naique. Once the name of Mrs. Nalini Bai was brought on record within time and the application for setting aside abatement was allowed by the trial Judge, the suit could proceed on merits and the mere fact that the remaining legal representatives were brought on record at a subsequent stage could not render the suit defective. The Custodian of the appellant rBank had no knowl- edge that there were other legal representatives of deceased defendant along with Mrs. Nalini Bai. He had filed affidavit that on making diligent and bona fide inquiry, he had come to know that Nalini Bai was the sole legal representative but later on he acquired knowledge that the deceased had left four sons and two daughters as legal representatives, along with Mrs. Nalini Bai, therefore, he made another application for bringing them on record. The trial Judge accepted the testimony of the Custodian, and placing reli- ance on the decision of Andhra Pradesh High Court in Mannem Venkataramaih v. M. Munnemma & Ors., AIR 1963 A.P. 406 he allowed the substitution application. The trial court com- mitted no error in law, instead he applied correct princi- ples of law.
5. In Daya Ram & Ors. v. Shyam Sundari, [1965] 1 SCR 231 this Court recognised the principle of representation of the estate by some heirs, where the defendant died during the pendency of the suit to enforce claim against him and all the heirs are not brought on record within ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP
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time. This Court held that if after bona fide inquiry, some, but not all the heirs, of a deceased defendant, are brought on record the heirs so brought on record represent the entire estate of the deceased and the .
decision of the Court in the absence of fraud or collusion binds even those who are not brought on record as well as those who are impleaded as legal represen- tatives of the deceased defendant. In N.K. Mohd. Sulaiman v. N.C. Mohd. Ismail, [1966] 1 SCR 937 this Court rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim, if all the heirs of the deceased were not impleaded in the suit and a decree was obtained, and in execution the property was sold, the auc- tion purchaser could have title only to the extent of the interest of the heirs who were impleaded, rand he could have no title to the interest of those heirs who had not been impleaded to the suit. The Court held, that those who were impleaded as party to the suit in place of the deceased defendant represented the entire estate as they had share in the property and since they had been brought on record the decree was binding on the entire estate
6. In the instant case Mrs. Nalini Bai had admittedly hall share in the property left by the deceased defendant and as she was brought on record within time, she represented the estate of the deceased defendant and the suit could proceed on merit. In this view the impleadment of other legal repre- sentatives at a subsequent stage could not affect validity of the proceedings. In the result we allow the appeal and set aside the judgment and order of the Judicial Commission- er dated 30.6.1972, and restore the order of the trial Judge. Since trial of the suit has been delayed, we direct the trial court to make every effort to ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP
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decide the suit expeditiously. The appellant is entitled to its costs throughout."
.
16. High Court of Rajasthan in Kalu Ram v. Charan Singh, AIR 1994 Raj 31, has again held that persons other than legal heir can also be legal representative. Even an intermeddler with the estate of deceased can also be allowed to represent the estate for the purpose of pending proceedings before the court. It is true that all legal heirs ordinarily are the legal representatives, but the converse is not true, because, all the legal representatives are not necessarily legal heirs. The decision as to who is the legal representative for the purpose of proceedings is necessarily limited for the purpose of carrying on the proceedings and cannot have the effect of conferring of any right of heirship to the estate of the deceased. The decision on this issue also does not operate res judicata on the question of heir-ship in the subsequent proceedings. The High Court of Rajasthan has held as under:
"6. Having given my careful consideration to the rival contentions raised before me, I am of the opinion that this Revision Petition merits acceptance. Section 2(11) of the C.P.C., which defines 'legal representative', makes it abundantly clear that the persons other than legal heir can also be legal representative. Even an intermeddler ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP
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with the estate of deceased can also be allowed to represent the estate for the purpose of pending proceedings before the court. It is true that all legal heirs are, ordinarily, also legal representatives, but the .
converse is not true. All legal representatives are not necessarily legal heirs as will. The decision as to who is the legal representative for the purpose of proceedings is necessarily limited for the purpose of carrying on the proceedings and cannot have the effect of conferring of any right of heirship to the estate of the deceased. The decision on this issue also does not operate res judicata on the question of heir-ship in the subsequent proceedings. In view of this settled position of law, it must beheld that the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not a legal representative for the purpose of proceedings before the court. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on litigation and is not any imposter. In case of rival claimants, it may also be necessary to decide that out of the rival claimants, who really is the person entitled to represent the estate for the purpose of particular proceedings. Even that determination does not result in determination of inter se right to succeed to property to the deceased and that right has to be established in independent proceedings in accordance with law.
17. Close scrutiny of impugned orders clearly reveals that learned Court below, while holding Garib Dass to be the legal heir of original plaintiff, Mahant Jagat Dass, has categorically held that contention of the defendant that deceased plaintiff Mahant Jagat Dass was neither competent ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP
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nor had authority to further appoint any person as Prabhandhak cannot be seen /decided at this stage, rather, same would be decided on its own merit on the basis of .
evidence adduced on record by respective parties and as such, this Court is of the view that no prejudice is going to be caused to the parties.
18. In view of above, this court finds no merit in both the petitions, which are accordingly dismissed. Orders passed by learned Court below are upheld. Needless to say, observations made hereinabove, shall have no bearing on the merits of suits pending before learned trial Court, which shall be decide don their own merits. Record, if received, be sent back forthwith.
19. Parties through counsel, undertake to appear before learned Court below on 1.10.2019, enabling it to proceed further with the matter.
Pending applications, if any, in both the petitions stand disposed of. Interim directions, if any, stand vacated.
(Sandeep Sharma) Judge September 24, 2019 (Vikrant) ::: Downloaded on - 26/09/2019 20:30:59 :::HCHP