Delhi High Court
Dayawati vs State on 3 July, 2023
Author: Sachin Datta
Bench: Sachin Datta
$~J-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 08.05.2023
% Judgment pronounced on: 03.07.2023
+ O.A. No. 8/2022 in TEST. CAS. 30/2000
DAYAWATI (deceased) through LRs ....Petitioner
Through: Ms. Meenakshi Midha, Mr. Kapil
Midha and Mr. Garv Singh, Advs.
Versus
STATE & ANR. ....Respondents
Through: Mr. Ajay Kumar Chopra, Dr. Krishan
Mahajan and Mr. Mudit, Advs. for
R-2.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
SACHIN DATTA, J.
O.A. No. 8/2022 (under Rule 5, Chapter - II of Delhi High Court (Original Side) Rules, 2018
1. The present chamber appeal under Rule 5 of Chapter II of the Delhi High Court (Original Side) Rules 2018 has been filed on behalf of respondent no. 2/appellant against order dated 22.12.2021 ("impugned order") passed by Ld. Joint Registrar. By way of the aforesaid impugned order, the Ld. Joint Registrar disposed of I.A. No. 8659/2021 under Order XXII, Rule 3 read with Section 151 of Code of Civil Procedure, 1908 to bring on record the legal representatives of the deceased petitioner no. 2, Mrs. Uma Jain, who passed away on 10.06.2021.
Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 1 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:272. The relevant factual background is that the testator Sh. Sital Pershad Oswal died on 14.04.1999 leaving behind a widow and three children. The widow of the late testator i.e., Smt. Dayawati, filed the present petition seeking probate with respect to the Will dated 22.12.1992 executed by her late husband in his lifetime. The children of the testator, namely, Mrs. Usha Jain, Mrs. Uma Jain and Sh. Satish Oswal were made parties to the probate petition. Thereafter, objections to the probate petition were filed on behalf of Sh. Satish Oswal, who is contesting the Will dated 22.12.1992 of his late father, inter alia, on the ground that the Will dated 22.12.1992 is neither a genuine document nor is it the last will of the deceased testator. It is also claimed by him that the true and last Will of the deceased testator is a Will dated 07.04.1999.
3. This Court vide Order dated 23.05.2005 had framed issues in the present Petition as under:
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i) Whether the will dated 7.4.1999 is the last legal and valid testament of Lt. Sh. Sital Pershad Oswal? OPLR-4
ii) If issue no. 1 is decided against the propounder of the will dated 7.4.1999 whether the will dated 22.12.92 is the last legal and valid testament of late Sh. Sital Pershad Oswal?
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4. The petitioner (Smt. Dayawati) died on 05.06.2010, leaving behind her three children who were her legal heirs and already parties to the present probate petition. This Court vide Order dated 10.12.2010 in the present petition directed the Registry to reflect the cause title of the present case as under:
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In re: the estate of Sh. Sital Pershad Oswal
1. Legal Heir No. 1 - Mrs. Usha Jain
2. Legal Heir No. 2 - Mrs. Uma Jain Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 2 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27
3. Legal Heir No. 3 - Mr. Satish Oswal ....‖
5. During the pendency of the present petition, the aforesaid Legal Heir No. 2 Mrs. Uma Jain expired on 10.06.2021 and is survived by her husband Sh. Shugan Jain and his two children, namely, Mr. Ankit Jain and Ms. Anita Jain (stepchildren of Mrs. Uma Jain), who filed I.A. 8659/2021 for bringing themselves on record in the probate petition as her legal representatives. The Ld. Joint Registrar disposed of the aforesaid application while allowing the husband and stepchildren of deceased petitioner no. 2 to be brought on record.
6. The respondent no. 2 raised objections in response to I.A. 8659/2021 with respect to the impleadment of the husband and the two stepchildren of Mrs. Uma Jain as her legal representatives. The respondent no. 2 contended that the husband and two stepchildren of late Mrs. Uma Jain cannot be impleaded as her legal representatives since they have no locus standi as they are not the beneficiary under any Will and by virtue of Section 15 (2)
(a) of the Hindu Succession Act, 1956. The respondent no. 2 further stated that the claim of the husband and two stepchildren of Mrs. Uma Jain of being her legal representatives is undocumented and unverified and they are required to prove their relationship. The respondent no. 2 further stated in his reply that even if Mrs. Uma Jain had died intestate, then under Section 15 (2) (a), the possible speculative share from the pending probate case would devolve only upon the heirs of late Mrs. Uma Jain‟s father and in case the Will dated 22.12.1992 is held to be not valid, even then the late testator would be in the position of an intestate deceased Hindu male and that a son- in-law and his children from his previous wife would not be entitled to any share. The contention is that in any eventuality, the applicants in I.A. Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 3 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27 8659/2021 would not be entitled to any portion of the estate of late Sital Pershad Oswal.
7. The respondent no. 2 has also objected to the impugned order on the ground that the Ld. Joint Registrar could not have passed any such order and should have after making an inquiry, placed the matter with his report and findings before the Judge in Chambers as per Rule 3(37) of Chapter II of Delhi High Court (Original Side) Rules 2018. The respondent no. 2 has further contended that the finding of the Ld. Joint Registrar in the impugned order that "the properties had not come to her by way of inheritance from her father" pre-empts the outcome of the probate petition and assumes that the Will has been probated already. Further, as per the respondent no. 2, while allowing the substitution of the legal representatives of the deceased petitioner no. 2 Mrs. Uma Jain, the Ld. Joint Registrar has adjudicated the probate petition inasmuch as the Ld. Joint Registrar has relied upon V. Dandapani Chettiar vs. Balasubramanian Chettiar (Dead) by LRs and Others, (2003) 6 SCC 633 to state that "the properties had not come to her by way of inheritance of her father" and has thereby assumed that the Will is liable to be probated, and on that basis observations have been made which tantamount to finally deciding inter-se rights. The appellant has further argued that the husband of deceased petitioner no. 2 has no place in the Will dated 22.12.1992.
8. While stating that that the impugned order is not in consonance with Rule 3(37) of Chapter II of Delhi High Court (Original Side) Rules 2018, the appellant has relied upon the following Judgments in support of the contention that "if a statute requires a thing to be done in a particular manner, it should done in that manner or not at all‖ Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 4 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27
1. Nazir Ahmad vs. Emperor MANU/PR/0111/1936
2. Ramchandra Keshav Adke (Dead) by LRs. and Ors. vs. Govind Joti Chavare and Ors. MANU/SC/0511/1975
3. Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 SCC 225
9. The respondent no. 2 also objected to the impleadment of Mr. Ankit Jain on the ground that there was no affidavit accompanying his application and there was no power of attorney filed by either his sister Ms. Anita Jain or his father Mr. Shugan Jain authorizing them to contest on his behalf.
10. The applicants in I.A. 8659/2021 - Mr. Shugan Jain, Ms. Anita Jain and Mr. Ankit Jain filed their rejoinder to respondent no. 2‟s reply and also brought on record a copy of the Passport, Aadhaar card and Ration card of Mr. Shugan Chand Jain evidencing the name of Ms. Uma Jain as his wife, a copy of the Passport and Aadhaar Card of late Ms. Uma Jain, a copy of OCI card of Ms. Anita Jain wherein her mother‟s name (Uma Jain) is reflected, a copy of Ms. Anita Jain‟s passport, a copy of Mr. Shugan Jain‟s surviving member certificate and a copy of Mr. Shugan and Mrs. Uma Jain‟s wedding photos. The applicants reiterated that when a Hindu female dies intestate, under Section 15 (1) of the Hindu Succession Act, 1956, the first right upon her movable and immovable properties is upon the sons and daughters (including the children of any pre-deceased son or daughter) and her husband and also stated that accordingly, the properties falling to the share of late Mrs. Uma Jain would devolve upon them as Mrs. Uma Jain is evidently a beneficiary under the Will dated 22.12.1992.
11. It is further submitted on behalf of the applicants that the Ld. Joint Registrar while allowing I.A. 8659/2021 has rightfully held that the three applicants therein, i.e., the husband and stepchildren of the deceased Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 5 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27 petitioner no.2 have a legal right to get themselves impleaded as LRs of deceased petitioner no.2.
12. With respect to the objection with regard to no affidavit being filed by Mr. Ankit Jain, the Ld. Joint Registrar recorded that the affidavit of Mr. Ankit Jain had been brought on record. The Ld. Joint Registrar also held that since the deceased Ms. Uma Jain admittedly claimed ownership of the suit properties by virtue of a Will allegedly executed by her father in her favour and that of her sister, the properties had not come to her by way of inheritance from her father. It was held by the Ld. Joint Registrar that the provisions of Section 15 (2) (a) of Hindu Succession Act, 1956, would not be applicable in the present case in view of the observations in Tavidisetty Venkateswara Rao vs Tavidisetty Nageswara Rao (6) ALT 161. The Ld. Joint Registrar further held that in the event of the petitioners succeeding in the Test Case, both stepchildren being the beneficiaries under the Will dated 22.12.1992 will be entitled to the share of deceased and that even in case they fail, the properties had to devolve as per Section 15 (1) and not as per 15 (2) (a) of Hindu Succession Act, 1956.
13. Learned counsel for the applicants in I.A. 8659/2021 has also relied upon Order dated 05.12.2017 passed by this Court in Maharaja Jagat Singh versus Lt. Col Sawai Bhawani Singh, 2017:DHC:7527, wherein this Court has held that a stepson can stake a claim only under the category of "heirs of the husband" referred to in clause (b) of Section 15(1). The contention is that the rights asserted by the applicants would clearly fall within the scope of Section 15 (1) (b) even if assumed that Section 15 (1) (a) is not attracted. Reliance is also placed on Tavidisetty (supra) to contend that Section 15 (2) of Hindu Succession Act, 1956 is not attracted in the present case.
Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 6 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:2714. The Ld. Counsel for the applicants in I.A. 8659/2021 has also relied upon the Judgment in V. Dandapani Chettiar (supra) wherein it is held by the court that Section 15 (2) (a) of the Hindu Succession Act, 1956 would be applicable in case of properties „inherited‟ by a Hindu female dying intestate. Reliance has also been placed upon Ayi Ammal versus Subramania Asari & Anr., AIR 1966 Madras 369 wherein the Madras High Court has clarified that the word "inherit" means to receive as heir, that is succession by descent and has held that that if the property is gifted to a female by her parents or by virtue of will and the woman died intestate, Section 15(1) of the Act will govern the case.
15. This Court has perused the record and has heard the counsels for both the parties.
16. Rule 3 (37) of Chapter II of the Delhi High Court (Original Side) Rules 2018 is reproduced hereinbelow :
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Chapter II ....
3. Powers of the Registrar.-
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(37) Application under Order XXII of the Code for bringing on record legal representative of the deceased party;
Provided that no order of substitution or revival shall be made by the Registrar-
(i) where a question arises as to whether any person is or is not a legal representative of the deceased party; or
(ii) where a question of setting aside the abatement of the cause is involved.
In such cases as (i) and (ii) above, the Registrar shall, after making an inquiry, place the matter with his report and findings before the Judge in Chambers;
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17. The term legal representative has been defined in Section 2(11) of the Code as "a person who in law represents the estate of a deceased person, Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 7 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27 and includes any person who inter-meddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
18. For the purpose of deciding the I.A. 8659/2021 filed by the legal heirs of Mrs. Uma Jain under Order XXII Rule 3 of the Code, this Court is not concerned with the issue as to whether or not Section 15 (1) or Section 15 (2) of the Hindu Succession Act, 1956 applies in respect of the substantive claim/s of respective parties in the probate petition. All that this court is concerned with is whether the applicants are legal heirs of the deceased person (Mrs. Uma Jain) so as to be entitled to represent / substitute her for the purpose of continuation of the present probate proceedings. In this regard, the Supreme Court in Jaladi Suguna (Deceased) Through LRs. Vs. Satya Sai Central Trust and Others (2008) 8 SCC 521, inter alia held as under:
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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, 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, 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 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.
16. The provisions of Rules 4 and 5 of Order 22 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 Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 8 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27 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 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. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 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.
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19. The Supreme Court in Suresh Kumar Bansal vs. Krishna Bansal and Another (2010) 2 SCC 162, while upholding Jaladi Suguna (Supra) held as under:
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20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or respondent under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 9 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27......"
20. This Court in Satyawati Sharma (Deceased) through LRs. vs. Indian Overseas Bank &Ors. 2006 SCC OnLine Del 527, while allowing an application of the petitioners therein under Order 22 Rule 3 of the Code held as under:
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13. The expression ―legal representatives‖ is very wide. A person who in law represents the estate of the deceased or a person on whom the said estate devolves on the death of the deceased is entitled to be impleaded as a legal representative. ―Legal representative‖ as used in the Code is a person who in law represents the estate of the deceased and may even include a person who intermeddles with the estate of the deceased. However, cases of inter-meddling must involve an assumption of a representative capacity in relation to an estate, and not an assertion of a claim or a right adverse to the estate of the deceased (see observations of Madras High Court in U. Abdul Jabbar v. Manonmani Pictures, AIR 1976 Mad 368).
14. A legal representative as a matter of right can ask for his impleadment on the death of the plaintiff. The Court has no discretion in this regard. On an application being moved under Order 22 Rule 3 of the Code it is mandatory for a Court to implead the legal representatives and continue with the proceedings. This is clear from the word ‗shall' used in Order 22 Rule 3 of the Code, which is reproduced for the sake of convenience:
―3. Procedure in case of death of one of several plaintiffs or of sole plaintiff--(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under Sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the respondent, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
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15. The purpose and object of Order 22 Rule 3 of the Code is to allow legal representatives to carry on proceedings in the suit. Any order under Order 22 Rule 3 does not confer any right of heirship upon the legal representative. In case of any dispute as to whether a person is Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 10 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27 entitled to be impleaded as a legal representative, a Court is required to decide the matter under Order 22 Rule 4 of the Code by adopting and following a summary procedure. In depth inquiry is not required to be held under Order 22 Rule 4 and an order passed in the aforesaid section does not operate as res judicata.
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21. In the present proceedings, the petitioners are seeking probate of the Will dated 22.12.1992 of Late. Sh. Sital Pershad, on the basis of the assertion that his wife late Smt. Dayawati and his two daughters Mrs. Usha Jain and Mrs. Uma Jain are beneficiaries thereunder. In case the validity of the Will dated 22.12.1992 is upheld, the petitioner no. 2 would be one of the beneficiaries. To what extent would Section 15 (1) and / or Section 15 (2) of the Hindu Succession Act, 1956 would be applicable upon the demise of Mrs. Uma Jain, would not be decided at this stage since this aspect is also not relevant for the purpose of I.A. 8659/2021. The only issue which is relevant is whether the applicants can be said to be the legal heirs of the deceased Mrs. Uma Jain. There is no controversy on this aspect of the matter. As such there was no impediment for the Ld. Joint Registrar in deciding I.A. 8659/2021 to bring on record the legal heirs of deceased Mrs. Uma Jain. The embargo imposed by the proviso to Rule 3 (37) of Delhi High Court (Original Side) Rules 2018 was clearly not attracted in the present case and I.A. 8659/2021 was rightly allowed by the Ld. Joint Registrar.
22. However, it is clarified that the observations made by the Ld. Joint Registrar in the impugned order regarding the applicability of Section 15 (1) and/or Section 15 (2) of the Hindu Succession Act, 1956 shall not be construed as rendering any conclusive finding with regard to the said aspect, the same being not relevant for the purpose of deciding I.A. 8659/2021. All Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 11 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27 rights and contentions of the parties in this regard are kept open to be decided at an appropriate stage.
23. It is also made clear that the impleadment of the applicants in I.A. 8659/2021 shall not be construed as conferring any right upon them to the properties which are the subject matter of the Will dated 22.12.1992; the validity of the Will dated 22.12.1992 and the issue of applicability of Section 15 of the Hindu Succession Act, 1956 would be duly pronounced upon while finally deciding the pending probate petition based on the material / evidence on record and after hearing the respective parties.
24. The present appeal is disposed of in the aforesaid terms.
SACHIN DATTA, J.
JULY 03, 2023/dk Signature Not Verified O.A. No. 8/2022 in TEST. CAS. 30/2000 Page 12 of 12 Digitally Signed By:RADHA BISHT Signing Date:03.07.2023 17:35:27