Himachal Pradesh High Court
Ketan And Another vs Chander Prakash @ Chemit Rigzin And ... on 13 June, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Civil Revision No.115 of 2017.
Date of decision: 13.06.2017.
Ketan and another .....Petitioner s.
Versus
Chander Prakash @ Chemit Rigzin and others ..... Respondent s.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioners : Mr.R.K.Bawa, Senior Advocate with Mr.Amit Kumar Dhumal, Advocate.
For the Respondents : Nemo Tarlok Singh Chauhan, Judge (Oral).
This revision petition under Section115 of the Civil Procedure Code is directed against the order passed by the learned District Judge, Kinnaur, Civil Division Rampur Bushahr, Camp at Reckong Peo, on 16.05.2017, whereby he dismissed the application filed by the petitioners for deleting their names from the array of parties.
2. It appears that on account of death of respondent No.3 before the learned first Appellate Court, an application was moved by the appellant therein for impleading the present petitioners as parties on account of their being the legal representatives of deceased-respondent No.3.
3. The applicants thereafter moved the instant application under Order 22 Rule 2 read with Section 151 CPC seeking therein their deletion from the array of parties on the ground that they are tribals and governed by the custom which is duly recognized since time immemorial. As per the custom, polyandry is prevalent where two or more brothers marry with one Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/06/2017 23:59:12 :::HCHP 2 lady and in the event of death of any brother in common marriage, the estate of the deceased brother devolves upon the surviving brothers and it is only .
in the event of death of last surviving brother that all the sons born from the aforesaid common marriage succeed him in equal shares and all the progenies of common marriage would be deemed to be the last surviving brothers. Even, here it is only the sons, who inherit the property of the father, whereas, daughters and widows are not entitled to inherit in the presence of the sons.
4. It was further averred that respondents No.1 and 2 namely Hukam Dev and Sharab Chhopel alongwith deceased respondent No.3 before the learned first appellate Court were in common marriage with a lady named Raj Kumari and out of aforesaid common marriage two sons i.e. present petitioners were born. Hence, as per the custom, the estate of deceased-respondent No.3 was to be succeeded not by the petitioners but by his brothers i.e. respondents No.1 and 2 before the learned first appellate Court and it was they alone, who were legal heirs of deceased-respondent No.3 and, therefore, their names should be struck off from the array of parties.
5. The learned first appellate Court took into consideration the contents contained in the application and dismissed the same by according the following reasons:-
"Perusal of the record goes to show that respondents No.1 to 3 had filed joint reply before the lower Court and therein they had not raised any such plea of polyandry. It is the settled legal position that after the demise of a party to a lis, his successor(s) step into his shoes and as such, they are bound by the nature of plea set up by their predecessor-in-interest earlier while filing written statement. So in view of the above, to my mind, no such plea could be allowed to be taken by the L.R.s of respondent No.3 and they are bound by the nature of plea earlier set up by their predecessor-in-interest.::: Downloaded on - 15/06/2017 23:59:12 :::HCHP 3
However, in case they think that as per the aforementioned custom, they do not consider themselves to be the successors of their .
deceased father, they are at liberty not to join the present proceedings. Consequently, the application merits dismissal and is hereby dismissed."
6. It is vehemently argued by Shri R.K.Bawa, Senior Advocate, assisted by Shri Amit Kumar Dhumal, Advocate, for the petitioners that once the application filed by the petitioners is not disputed, then there was no occasion for the Court below to have not allowed the same.
7. I have considered the said submission and find no merit in the same because there is no compulsion whatsoever for the petitioners to join or even contest the petition and in case they feel that they have been un-necessarily dragged into an avoidable and unwarranted litigation, then it is always open for them to take recourse to such remedies as are available to them under the law, but in no event is the order passed by the learned first appellate Court open to challenge by way of present petition.
8. Having said so, I find no merit in this petition and the same is dismissed in limine. Pending application, if any, also stands disposed of.
9. However, before parting, it is made clear that this Court has not expressed any opinion on the merits of the case and the learned Court below will decide the case uninfluenced by the dismissal of the revision petition or what has been observed hereinabove.
13th June, 2017. (Tarlok Singh Chauhan),
(krt) Judge.
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