Gujarat High Court
Nakiben Wd/O Durlabhbhai Keshavlal ... vs Maneklal Bhagwandas on 22 October, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
NAKIBEN WD/O DURLABHBHAI KESHAVLAL PATEL THRO HEIRS AND....Petitioner(s)V/SMANEKLAL BHAGWANDAS RESHAMWALATHRO LEGAL HEIRS AJAYKUMAR M C/SCA/1707/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1707 of 2013 ================================================================ NAKIBEN WD/O DURLABHBHAI KESHAVLAL PATEL THRO HEIRS AND....Petitioner(s) Versus MANEKLAL BHAGWANDAS RESHAMWALATHRO LEGAL HEIRS AJAYKUMAR M & 8....Respondent(s) ================================================================ Appearance: MR PERCY C KAVINA, LEARNED SENIOR ADVOCATE WITH MR VIRAL K SHAH, ADVOCATE for the Petitioner(s) No. 1 MR AS VAKIL, ADVOCATE for the Respondent(s) No. 7 MR SH SANJANWALA, LEARNED SENIOR ADVOCATE WITH MR DILIP L KANOJIYA, ADVOCATE for the Respondent(s) No. 9 MR SHITAL R PATEL, ADVOCATE for the Respondent(s) No. 1 - 6 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 22/10/2013 ORAL ORDER
1. The challenge in this petition under Article 227 of the Constitution of India, is to three orders passed by the learned Principal Senior Civil Judge, Surat (the Trial Court), all dated 31.01.2013, below the applications at Exh.43, Exh.1 and Exh.5, respectively, in Special Civil Suit No.422 of 2011. The application at Exh.43 was filed by the petitioner to permit him to join as the plaintiff in the above-mentioned suit filed by deceased original plaintiff Nakiben, being her legal representative and the beneficiary of a Registered Will dated 06.05.2005 and Registered Codicil, (described as a Supplementary Will) dated 10.08.2011. The Trial Court, vide the impugned order below Exh.43, has rejected the said application made by the petitioner on the ground that the suit property has been sold by Nakiben on 08.05.1990, vide a Registered Sale Deed executed by her Power of Attorney, therefore, on the date of making the Will, she did not have any interest in the suit property to bequeath, by way of the Will. The Trial Court has, therefore, rejected the application of the petitioner at Exh.43 to be joined as the plaintiff.
By the impugned order passed below Exh.1, the Trial Court has held that in view of, and for the reasons, stated in the order passed below Exh.43, the suit has abated.
As a consequence of the order passed below Exh.1, the Trial Court has rejected the application at Exh.5, filed by the original plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 ( the Code for short).
In the context of the above challenge, elaborate and detailed submissions have been advanced by learned counsel for the respective parties, that are briefly summarised hereinbelow:
Mr. Percy C. Kavina, learned Senior Advocate with Mr. Viral K. Shah, learned advocate, appearing on behalf of the petitioner, has submitted thus:
(1) That by way of the Registered Will dated 06.05.2005, and the Supplementary Will dated 10.08.2011, executed by the original plaintiff Nakiben, in favour of the petitioner, he has stepped into the shoes of Nakiben. The suit has been instituted on 25.08.2011, in the lifetime of Nakiben, challenging the Sale Deed executed on her behalf by her Power of Attorney, in the year 1990, on various grounds, inter-alia, with a prayer to declare that the Sale Deed is illegal and inoperative, for the reasons stated in the suit. On 16.03.2012, Nakiben passed away. The petitioner claims the right, title and interest in the property that has been bequeathed to him by Nakiben, by the Registered Will.
That Nakiben had, in her own lifetime, challenged the sale transaction entered into by her Power of Attorney on her behalf, in the year 1990, for reasons stated in the suit. She has categorically and specifically stated that the said transaction is not binding upon her. She is entitled in law to do so. However, by circular reasoning, the Trial Court has held that, as the land in question has been sold by the Sale Deed challenged in the suit, Nakiben had no interest left in the land to bequeath to the petitioner. The Trial Court has ignored the aspect that Nakiben had, herself, challenged the sale transaction; therefore, as the petitioner is her legal representative, being the beneficiary of the Will, he is entitled to step into her shoes and be substituted as the plaintiff in the suit.
That the Will has not been challenged by any person and neither has the Trial Court came to a conclusion that the Will is forged or fabricated, therefore, the said instrument is not under a cloud. The Trial Court has, in paragraph-6 of the impugned order passed below Exh.43, observed that the petitioner is not claiming to be a direct lineal descendant of Nakiben, but is claiming to be her legal representative as a beneficiary of the Will. However, the petitioner is also related to Nakiben, being the son of Nakiben s brother s daughter.
It is submitted that the issue before the Trial Court, while deciding Exh.43, was whether, in view of the provisions of Order 22 Rule 3 of the Code, the plaintiff ought to have been substituted as the plaintiff in the suit. The Trial Court was not called upon to decide whether Nakiben had any right, title or interest in the property in question, that is the subject matter of the Will. The issue before the Trial Court was to decide whether the suit has abated or whether the right to sue survives in favour of the petitioner, or not. Instead of doing so, the Trial Court has digressed by recording a finding that Nakiben could not have transferred her interest in the land in question, by way of the Will to the petitioner, as she had no right to execute a Will in respect of the property in question. In holding as such, the Trial Court has exceeded the jurisdiction vested in it while deciding Exh.43.
That the finding of the Trial Court to the effect that Probate, or Letters of Administration, have not been obtained, and for that the petitioner does not derive any interest in the property on this ground, is misconceived. It is not necessary to obtain probate or Letters of Administration, as the Will is not disputed.
That the Trial Court has committed an error in recording a finding regarding the validity of the grounds averred by Nakiben in the suit and also on the point of limitation, which aspects are to be decided in the suit and not in an application under Order 22 Rule 3 of the Code. The impugned order of the Trial Court below Exh.43 is, therefore, without jurisdiction.
That insofar as the order passed below Exh.1 is concerned, the Trial Court has held that the suit has abated for the reasons stated in the impugned order below Exh.43. As the order below Exh.43 is not in accordance with law and without jurisdiction, consequently, the orders passed below Exhs.1 and 5, in addition to the order passed below Exh.43, are liable to be quashed and set aside.
On the above grounds, learned Senior Counsel for the petitioner prays that the said orders may be stayed, and ultimately, quashed and set aside.
Mr. S.H. Sanjanwala, learned Senior Advocate has appeared with Mr. Dilip L. Kanojiya, learned advocate for respondent No.9, who is the purchaser of the land from respondent No.7. The submissions advanced by him are as follows:
The Trial Court has rightly held that Nakiben has no bequeathable interest in the land in question, as she has executed a Registered Sale Deed in respect of the same in the year 1990. The suit has been instituted in the year 2011, only when she was faced with the transaction entered into in favour of respondent No.9. The suit is speculative in nature and as Nakiben had no interest left after selling the land, the Trial Court has rightly held that the suit has abated.
That Nakiben did not challenge the Power of Attorney before filing the suit and neither did she give a notice for cancellation of the same. In any event, the suit is liable to be dismissed under the provisions of Order 7 Rule 11 of the Code, as the sale transaction is of the year 1990 and the suit has been filed in the year 2011. As such, the suit is barred by limitation.
That the petitioner has no locus standi to make the application at Exh.43, as he has derived no interest in land, which has already been sold. The impugned orders of the Trial Court are, therefore, just and proper and deserve no interference.
That insofar as the order below Exh.1 is concerned, whereby the suit is held to have abated, the remedy of the petitioner would lie in filing a First Appeal and not in challenging the said order by filing a petition under Article 227 of the Constitution of India. The petitioner has an alternative remedy to challenge the impugned order below Exh.1, whereby the suit has been dismissed as having abated. Similarly, he has an alternative remedy in respect of the impugned order below Exh.5 as well.
On the strength of the above submissions, it is prayed that the prayers made in the petition do not deserve to be granted.
Mr. A.S. Vakil, learned advocate appearing for respondent No.7 has submitted as below:
That a Registered Sale Deed was executed by Nakiben on 08.05.1990, in favour of predecessor-in-interest of respondents Nos.1 to 6. Thereafter, proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948 ( Tenancy Act for short) were initiated. A plea was taken that the vendee was not an agriculturist and that there was a breach of the provisions of Section 63 of the Tenancy Act. On 06.05.2005, pending the revenue proceedings, Nakiben executed a Will and bequeathed the land to the petitioner. In the said Will, there is no reference to the sale transaction entered into in the year 1990, or to the revenue proceedings. These proceedings culminated in an order dated 11.07.2008, passed by the Gujarat Revenue Tribunal.
Against this order, two petitions were filed before this Court by Nakiben and respondents Nos.1 to 6, respectively. Pending the petitions, Nakiben executed a Codicil (Supplementary Will) on 10.08.2011 wherein a reference was made to the Sale deed of 1990 and the Tenancy proceedings. Within 50 days of making the Codicil, Nakiben, then aged 93 years, filed the present suit seeking a declaration that the first Registered Sale Deed dated 08.05.1990 and the subsequent Sale Deeds are illegal, bogus and not binding upon her. On 16.03.2012, Nakiben expired and on 07.04.2012, the petitioner filed the application at Exh.43 on the basis of the Will and Codicil, describing himself as the proposed plaintiff and heir of Nakiben. On 11.04.2012, the petitioner filed a Civil Application in the petitions that were pending before this Court wherein the judgments were yet to be pronounced. The application was contested by the respondents and vide an order dated 30.04.2012, this Court permitted the petitioner to be joined in the proceedings, making it clear that such joining may not be treated as a final adjudication of the status of the petitioner as a legal representative of Nakiben.
That as per Section 2(11) of the Code, the term legal representative has been defined to mean a person who, in law, represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. The petitioner cannot be said to be a legal representative of Nakiben, as he claims to be a legatee of a Will and the burden would lie on the petitioner to establish himself as such, especially as there was no bequeathable interest left with Nakiben, on the date of making Will. No interest in the property has, therefore, passed on to the petitioner. The petitioner has no estate to represent in respect of the property in question and cannot be termed as a legal representative of Nakiben. If the petitioner is not a legal representative, as defined in Section 2(11) of the Code, he has no right to apply under Order 22 Rule 3; therefore, the impugned orders have been rightly passed by the Trial Court.
Learned advocate for respondent No.7 has not pressed the point regarding obtaining of Probate and Letters of Administration in respect of the land in question, in view of Section 213 of the Indian Succession Act, 1925.
8. Mr. Shital R. Patel, learned advocate has appeared for respondents Nos.1 to 6 and has submitted as below:
(1) Respondents Nos.1 to 6 are the first purchasers of the property, vide the Registered Sale Deed executed on 08.05.1990. The Sale Deed was executed through the Power of Attorney of Nakiben, in favour of his father, Maneklal Reshamwala. The said Maneklal Reshamwala expired during the pendency of the litigation and respondents Nos.1 to 6 have been impleaded as his heirs. The stand taken by Nakiben in the suit is that, as the Power of Attorney sold the land to his father, the transaction is doubtful. However, the fact of the matter is that once the interest in the property has been transferred by way of the Sale Deed, Nakiben had no interest left in the land in question to bequeath by way of Will. Nakiben had also executed a Registered Confirmation Deed on 04.03.1991. Moreover, the sale consideration was given by cheque. During the RTS proceedings initiated under Section 84(C) of the Tenancy Act, regarding whether the Vendee was an agriculturist or not, Nakiben had filed a joint reply opposing the proceedings. These facts have been suppressed by Nakiben in the suit. Nakiben did not challenge the genuineness of the Sale Deed at any point of time, therefore, there is a fallacy in the arguments advanced by the learned Senior Advocate for the petitioner, that the petitioner has a right to continue with the litigation after the death of Nakiben and the right to sue survives. Even in the petition filed before this Court in the year 2009, Nakiben did not impeach the sale transaction that she has challenged in the suit filed in the year 2011. In the revenue proceedings, the Gujarat Revenue Tribunal has held that Nakiben had no locus standi as she had sold the land and pocketed the consideration.
(2) That the submissions advanced by learned Senior Advocate for the petitioner with regard to the application are academic in nature.
Respondents Nos.1 to 6 have filed an application under Order 7 Rule 11 as there is no cause of action in the suit filed by Nakiben and it is also barred by the law of limitation. It is at this stage, that Nakiben expired and the application at Exh.43 came to be made.
(3) That the Trial Court has examined the entire issue in detail and has recorded its findings which are legal and valid. The Trial Court was conscious of the fact that Nakiben had no right in the property in question, therefore, she could not bequeath the property by way of Will. The impugned order rejecting the application at Exh.43, as also the orders below Exhibits 1 and 5, are just and proper and do not deserve to be interfered with, by this Court.
That in view of Section 59 of the Indian Succession Act, 1925, a person of sound mind, not being a minor, can dispose of his property. Explanation 1 to the said Section states that a married woman may dispose of any property by Will which she could alienate by her own act during her lifetime. In the present case, the property did not belong to Nakiben as she had executed a Sale Deed in respect of it, therefore, she was not capable of disposing of it by making a Will.
That in view of Section 6(e) of the Transfer of Property Act, 1882, a mere right to sue cannot be transferred. Therefore, in view of the above provisions of law, the orders of the Trial Court are just and proper. The suit has been filed merely with a view to harassing the rightful owners of the land. While deciding the petition under Article 227 of the Constitution of India, the Court would take into consideration that injustice may not be caused to either side, especially as, the questions raised by the petitioner are academic in nature.
(6) In support of the above submissions, a reliance has been placed in the case of Girja Datt V. Gangotri Datt reported in AIR 1955 SC 346.
On the above grounds, it is prayed that the petition be rejected.
9. In rejoinder, it is submitted on behalf of the petitioner that insofar as Section 6(e) of the Transfer of Property Act, 1882, is concerned, the same may not be applicable in the present case, as it is not only a mere right to sue that is in issue, but the right in the property in question has been transferred to the petitioner by way of the Will, to which there is no challenge.
In support of this contention, reliance has been placed by the learned Senior Advocate for the petitioner on the judgment of the Supreme Court in the case of Kedar Lal v. Babu Lal Vyas reported in (2003) 9 SCC 624.
10. Regarding Section 59 of the Indian Succession Act, 1925, it is submitted by the learned Senior Advocate for the petitioner that Nakiben, the original plaintiff, and the testator of the Will, has stated that she is the owner of the suit property which has been fraudulently sold by way of a false and fabricated Power of Attorney. A specific averment in this regard has been made in paragraph-2 of the application. This provision of law, therefore, would not be applicable in the present case.
11. This Court has heard learned Senior Counsel and counsel for the respective parties at length and in great detail, perused the averments made in the petition and the contents of the impugned orders.
12. The first aspect that emerges for consideration, is the nature of the application at Exh.43. The said application has been filed with a prayer to join the petitioner as a plaintiff in the suit in the capacity of her legal representative, being the beneficiary of a Will executed by the deceased plaintiff by Nakiben, the original plaintiff, in respect of the property in question. The suit has been instituted by the original plaintiff in her own lifetime, challenging the sale transaction dated 08.05.1990 on the ground that it has been executed on the basis of a false and fabricated Power of Attorney.
13. At this juncture, it would be fruitful to advert to the provisions of Order 22 Rule 3, which is relevant insofar as the application of Exh.43 is concerned, they read as under:
Order 22 Rule 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 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 defendant, 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.
14. The provisions of Order 22 Rule 5 may also be noticed, as below:
Order 22 Rule 5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
2[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question.]
15. It may be kept in mind that no person, especially, the respondents in the present case, have challenged the Will executed by Nakiben.
16. In an application under the provisions of Order 22 Rule 3, the question that would arise for adjudication before the Trial Court is, whether, the legal representative of the deceased plaintiff ought to be substituted as the plaintiff and be permitted to proceed with the suit. Under Order 22 Rule 5, the Court is to decide as to whether any person is, or is not, the legal representative of a deceased plaintiff or a deceased defendant. If the Court finds that the right to sue survives then the suit would not abate. This was the extent of the sphere of adjudication by the Trial Court, while deciding the application at Exh.43.
17. A perusal of the impugned order passed by the Trial Court below Exh.43 prima-facie, reveals that the aspect whether the petitioner ought to be joined as plaintiff or not, and the reasons for arriving at either conclusion, have not been specifically dealt with. The Trial Court has digressed and has concentrated more on deciding whether the deceased-original plaintiff had the right to execute the Will qua the suit property. This would not be the primary issue for adjudication in the application at Exh.43. While passing the impugned order below Exh.43, the Trial Court has relied upon the very Sale Deed dated 08.05.1990 executed by Nakiben through her Power of Attorney, which she challenged on the ground of fraud. On that basis, the Trial Court has held that Nakiben had no interest left in the suit property to transfer by way of the Will. The Trial Court appears to have ignored or overlooked the fact that this very sale transaction is the subject matter of challenge in the suit. While deciding the application at Exh.43, under Order 22 Rule 3 of the Code, the Trial Court has ultimately passed an order on merits in rejecting it, without any formal adjudication or leading of evidence. To this extent, it prima-facie, appears that the order below Exh.43 deserves to be stayed.
18. Learned counsel for the respondents have argued at length about the revenue proceedings that took place between the parties. It is not necessary for this Court to dwell on the revenue proceedings in the present matter, therefore, the submissions advanced in this regard are not being dealt with, at this stage.
19. Regarding submission pertaining to Section 59 of the Indian Succession Act, it may be said that the point in issue in the application at Exh.43 was not whether the original plaintiff was capable of making a Will, or not. The present proceedings arise out of a suit filed by the original petitioner, challenging the very Sale Deed that is held against the petitioner. Neither the respondents nor any other person has challenged the Will. The validity of the Will was not in question in the suit, and a finding that the Will could not have been executed by the original plaintiff, appears to be beyond the sphere of adjudication of Exh.5.
20. In the judgment in the case of Girja Datt V. Gangotri Datt (Supra), cited by Mr. Shital R. Patel, learned advocate for respondents Nos.1 to 6, pertains to the issue that the propounder of a Will has to prove the due attestation thereof. Since the Will is not in question in the suit, the said judgment would not be applicable. On the same grounds, it is not necessary to deal with the judgment cited by the learned counsel for the petitioner in Kedar Lal v. Babu Lal Vyas (Supra).
21. For the above reasons, this Court finds that the petitioner has made out a prima-facie case for admission of the petition and stay of the impugned orders passed below Exh.43, Exh.1 and Exh.5.
22. Insofar as the impugned orders passed below Exhs.1 and 5 are concerned, a contention has been raised on behalf of the respondents that the petitioner has an alternative remedy regarding the said orders. This contention is kept open and may be taken into consideration at the time of the final decision of the petition.
23. It is clarified that the observations made hereinabove are purely prima-facie in nature, from the perspective of hearing the learned counsel for the respective parties for admission of the petition and the grant of interim-relief. The same may not be taken as an expression of final opinion on the merits of the case, at the time of the final hearing of the petition, or before the Trial Court.
24. Hence, in view of the above, the following order is passed:
Issue Rule, returnable on 23.12.2013.
Mr. Shital R. Patel, learned advocate, waives service of notices of Rule on behalf of respondents Nos.1 to 6.
Mr. A.S. Vakil, learned advocate, waives service of notice of Rule on behalf of respondent No.7.
Mr. Dilip L. Kanojiya, learned advocate, waives service of notice of Rule on behalf of respondent No.9.
The implementation, execution and operation of the impugned order dated 31.01.2013 passed by the learned Principal Senior Civil Judge, Surat below the application at Exh.43, shall remain stayed, till the final decision of the petition. As the impugned orders, both dated 31.01.2013 passed below Exhs.1 and 5 respectively are consequential to the order below Exh.5, the said order shall also remain stayed till the final decision of the petition.
It is clarified that the stay of the orders below Exhs.1 and 5 will not prevent learned counsel for the respondents from advancing their plea that an alternative remedy is available to the petitioner, insofar as those orders are concerned.
(SMT. ABHILASHA KUMARI, J.) piyush Page 25 of 25