Bombay High Court
Smt. Sunetradevi Wd/O Vinayakrao Buti ... vs Shri Avinash S/O Dinkarrao Bohate ... on 29 September, 2015
Author: R. K. Deshpande
Bench: R. K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1456 OF 2015
1] Smt. Sunetradevi wd/o Vinayakrao Buti,
aged about 65 years, Occ. Household,
R/o. Sitabuldi, Nagpur.
2] Salasar Trade Link through
Lalit s/o Nandlal Bais, R/o. Deshbandu
Ward, Bhandara, Tah. & Distt.
Bhandara,...... PETITIONERS
...VERSUS...
1] Shri Avinash Dinkarrao Bohate
(Dead through his L.Rs)
1A] Smt. Harsha wd/o Avinash Bohate,
aged about 60 years, Occ. Household,
1B] Ashish Avinash Bohate,
aged about 33 yeas, Occ. Service,
1C] Swapnil Avinash Bohate,
aged 32 years, Occ. Business,
1D] Snehal w/o Ashotash Chorgade,
aged about 30 years, Occ. Service,
R/o. U-93, Rajvilas Apartments,
Sundarvan Lay-out, Near Ambhore
Hospital, Narendra Nagar, Nagpur.
1E] Ratnakar Dinkarrao Bohate,
aged 56 years, Occ. Service.
1F] Laxmikant Dinkarrao Bohate,
aged 52 years, Occ. Service.
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Respondent Nos. 1A to 1C and 1E
to 1F are R/o. Ravindranath
Tegor Ward, In front of Indira
Gandhi Primary School, Bhandara....RESPONDENTS
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Shri K.B.Zinjarde, counsel for Petitioners.
Shri N.B.Kalwaghe, counsel for Respondents
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CORAM: R. K. DESHPANDE, J.
th
DATE : 29 SEPTEMBER, 2015 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Shri Kalwaghe, the learned counsel appearing for the respondents waives service of notice.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2] Special Civil Suit No. 41 of 2010 was filed by one Avinash S/o Dinkarrao Bohate, seeking specific performance of contract, some time in the year 2011. He died on 26.02.2014. An application at Exh.80 came to be filed on 10.04.2014 for brining the names of Respondent Nos. 1A to 1F in this petition as legal representatives of the sole plaintiff. The challenge in this petition is to the order dated 01.12.2014 passed by the trial Court, allowing application ::: Uploaded on - 03/10/2015 ::: Downloaded on - 04/10/2015 00:00:28 ::: 3 wp1456.15.odt Exh.80 in Special Civil Suit No. 41 of 2010 filed under Order XXII, Rule 3 of Code of Civil Procedure.
3] The objection in the present petition is that, the respondent Nos. 1A to 1D are the legal heirs of the deceased Avinash S/o Dinkarrao Bohate, but the respondent Nos. 1E and 1F are his real brothers, who cannot be joined as legal representatives of the deceased. The petitioners who are the original defendants have no objection to bring the names of respondent Nos. 1A to 1D on record as legal representatives of the original plaintiff. It is urged that respondent No. 1E to 1F are the real brothers of the deceased and they do not fall within the definition of "legal representative" under Section 2(11) of Code of Civil Procedure. The trial Court could not have, therefore, permitted their names to be brought on record as the legal representatives of the deceased.
4] Shri Kalwaghe, the learned counsel appearing for the respondents has invited my attention to Para 2 of the application at Exh. 80 wherein the averment is that the respondent Nos. 1E and 1F (applicant Nos. 5 and 6) are the real brothers of the deceased Avinash S/o Dinkarrao Bohate ::: Uploaded on - 03/10/2015 ::: Downloaded on - 04/10/2015 00:00:28 ::: 4 wp1456.15.odt and they are residing in a joint Hindu family of which deceased Avinash S/o Dinkarrao Bohate was the Karta. It is also stated that they are jointly managing the Hindu joint family and therefore, representing the interest of the deceased Avinash. Shri Kalwaghe, the learned counsel has relied upon two decisions of the Apex Court, one in the case of Custodian of Branches of Banco National Ultramarino vrs. Nalini Bai Naique, reported in 1989 Supp (2) SCC 275 and another in the case of Chiranjilal Shrilal Goenka through L.Rs vrs. Jasjit Singh and others, reported in (1993) 2 SCC 507. He has urged that the definition of "legal representative" is inclusive in character and its scope is wide and is not confined to legal heirs only. According to him, respondent Nos. 1E and 1F are the intermeddlers as defined under Section 2(11) of the "legal representative' under the Code of Civil Procedure.
5] It is not in dispute that the respondent Nos. 1E and 1F are not entitled to succeed to the estate of the deceased Avinash S/o Dinkarrao Bohate, particularly when all Class-I heirs are available and they are brought on record.
The present suit is for specific performance of contract and ::: Uploaded on - 03/10/2015 ::: Downloaded on - 04/10/2015 00:00:28 ::: 5 wp1456.15.odt after going through the averments made in the plaint, it is apparent that it was filed by the deceased in his individual capacity. Obviously, he is the sole purchaser of the suit property under the contract of which specific performance is sought. It is neither the case made out that the respondent nos. 1E and 1F intermeddles with the estate of the deceased in any manner nor that they are entitled to represent the estate of the deceased.
6] Shri Kalwaghe, the learned counsel for the respondents has relied upon the provisions of Order XXII, Rule 5 of Code of Civil Procedure and has sought an enquiry as to the status of the respondent Nos. 1E and 1F to be the legal representatives of the deceased.
7] Once it is held that no case is made out in the pleadings about the respondent Nos. 1E and 1F representing the estate of the deceased, the question of making an enquiry as contemplated by Order XXII, Rule 5 of C.P.C.
does not at all arise. In the facts of the present case, the decision relied upon are also not applicable.
::: Uploaded on - 03/10/2015 ::: Downloaded on - 04/10/2015 00:00:28 :::6 wp1456.15.odt 8] In the result, the writ petition is partly allowed and the order passed by the trial Court on 01.12.2014 below Exh. 80 in S.C.S. No. 41/2010 to the extent it permits the names of respondent Nos. 1E and 1F to be brought on record as legal representatives of the deceased plaintiff Avinash S/o Dinkarrao Bohate is hereby quashed and set aside.
The suit is of 2010. The trial Court is expected to decide it at an earliest.
Rule is made absolute in these terms. No orders as to costs.
JUDGE Rvjalit ::: Uploaded on - 03/10/2015 ::: Downloaded on - 04/10/2015 00:00:28 :::