Rajasthan High Court - Jaipur
Kalu Ram S/O Shri Ganga Ram vs Charan Singh And Anr. on 4 January, 1993
Equivalent citations: AIR1994RAJ31
ORDER Rajesh Balia, J.
1. The respondent-Charan Singh filed a suit in the court of Civil Judge, Sriganganagar, against Hazari Ram, since deceased, seeking mandatory injunction, directing the defendant-Hazari Ram to execute a sale-deed in favour of the plaintiff. Hazari Ram died during the pendency of the suit and his widow Musammat Roopi Devi was impleaded as Defendant, as legal representatives of Hazari Ram. The suit filed by the plaintiff-respondent was decreed on 24-5-1982. Aggrieved with the same, Mst. Roopi filed an appeal in the Court of Addl. Districat Judge No, 1, Sriganganagar The appellant Mst. Roopi Devi died during the pendency of appeal, on 7-8-1990. On 30th August, 1990, Kalu Ram, the present petitioner before this Court, moved an application under Order 22, Rule 4, for being impleaded as Legal Representative of Musammat Roopi, on the basis of a registered Will, executed in his favour by Mst. Roopi on 4-8-1990.
2. A reply to the application was filed, in which it was denied that the applicant was the sole legal representative of the deceased-appellant. It was also alleged that the Will, on the basis of which the applicant claims right to represent the estate of the deceased is void and no succession certificate of probate has been filed in support of claimant's right to inherit the estate of Musammat Roopi. The Addl. Sessions Judge No. 1, by his order dated 17-8-1991, rejected the applicant's application and ordered that the appeal is abated. Hence, this petition before this Court.
3. Learned counsel for the petitioner has urged that the learned lower-appellate court has committed material irregularity and illegality in exercise of jurisdiction, in not appreciating the distinction between the concept of 'legal representative' for the purpose of representing the estate of a deceased litigant in the proceedings before it, and, a 'legal heir', entitled to succeed to the property left by the deceased. In the proceedings under Order 22, Rule 4, the court is only required to determine whether a person, claiming to represent the estate of deceased before the court in the proceedings pending before it; has any such right to represent the estate, or not and, if he has sufficient interest to represent the estate of deceased-litigant in the proceedings before the court, then he is to be impleaded as a 'legal representative'.
4. In this connection, it was further contended by learned counsel for the petitioner that apart from the petitioner, no one else has come forward to represent the estate and existence of a registered Will in his favour has not been disputed by any one, but what has been disputed is that the purported will having been executed merely 3 days before the death of Musumamat Roopi Devi leads one to infer that the execution of the Will was surrounded by suspicious circumstances and, therefore, it cannot be considered to be a validly executed Will. By not drawing the aforesaid distinction, between 'legal representative' and 'legal heir', particularly in the light of definition of 'legal representative', given under Section 2(11) of the Code of Civil Procedure and the provisions of Order 22, has resulted in grave infirmity in the exercise of jurisdiction by the lower appellate-court, and, on account of said error, it has resulted in substantial failure of justice inasmuch as the proceedings have been held to have been abated and the decree has been made absolute, against the estate of the deceased.
5. Learned counsel for the respondent has supported the order dated 17-8-1991.
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 intermiddler 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 repreentatives, but the converse is not true. All legal reprsentatives 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 requried 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.
7. As to the facts of the present case are concerned, it is not disputed that a registered Will do exist in favour of the applicant, though, whether it confers any title in the property covered by Will on the applicant is disputed and it is also disputed whether the Will has been validly executed in accordance with the provisions of Succession Act; but, it definitely goes to show that the applicant has a reasonable edifice to put forward his claim for the purpose of being impleaded as legal representative of the deceased-appellant. No other claim to the estate of deceased has come forward to have a better right to represent the estate before the Court. The only objection that has been raised by a successful suitor, to keep the prospective claimants to the property of Mst. Roopi Devi at bay from prosecuting the appeal filed by her, is that the appellant has not acquired any right through the alleged will on the ground that alleged will is not valid. In these circumstances, it cannot be held that the applicant had no interest in the litigation to represent the estate of deceased Roopi Devi in the appeal. It is true that by representing Mst. Roopi in the appeal, he is not absolved from getting his right as a legal heir to Mst. Roopi, to be determined in appropriate proceedings to establish the validity of will and rights flowing therefrom. Though decision on merits of the appeal shall be binding on the estate of deceased.
8. As a result, the Revision is allowed. The order of Addl. District Judge No. 1, Sriganganagar dated 17-8-1991 in Appeal No. 14/82, is set aside. The application of petitioner Kalu Ram is allowed and it is ordered that he be impleaded as appellant-legal representative of Musammat Roopi Devi, in the aforesaid appeal in the court of Addl. District Judge No. 1, Sriganganagar. As a consequence thereof, the order of abatement of the appeal is also set aside.
9. There shall be no order as to costs.