Patna High Court - Orders
Smt. Saminta Devi vs Sri Dilip Kumar on 30 August, 2013
Author: Sharan Singh
Bench: Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.169 of 2013
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Smt. Saminta Devi W/O Sri Uday Parkash And D/O Late Ramashish Singh
Resident Of Village + P.O. Kothiya, P.S. Didarganj, District Patna.
.... Defendant.... Petitioner
Versus
Sri Dilip Kumar S/O Late Lalit Prasad Singh Presently Residing At Village
Kothiya, P.O. Kothiya, P.S. Didarganj, District Patna, Permanent Residing
At Village Hathi Tola, P.O. & P.S. Maner, District Patna.
.... Substituted plaintiff under impugned order.... Respondent
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Appearance :
For the Petitioner : Mr. Tilak Sao
Mr. Rajesh Mohan
For the Respondent : Mr. Rabindra Kumar
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL ORDER
4 30-08-2013This is an application filed under Article 227 of the Constitution of India. The petitioner, who is the defendant in a Probate Proceeding turned into a Title Suit, has questioned the legality of the order dated 05.11.2012 passed by learned Additional District Judge-IV, Patna City, in Title Suit No. 16 of 2011, which arises out of Probate Case No. 203 of 2010, whereby an application filed by the Respondent under Order XXII Rule 3 of the Code of Civil Procedure (hereinafter referred to as „the Code‟) has been allowed and he has been permitted to be substituted in place of deceased-plaintiff Ramashish Singh.
2. Facts of the case are not much in dispute. One Bulkania Devi had a daughter, namely, Nankuri Devi who was married to Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P2/12 Ramashish Singh (father of the Petitioner). Nankuri died during the life time of Bulkania Devi. Bulkania Devi is said to have executed a Will in favour of her son-in-law, the said Ramashish Singh. Ramashish Singh filed Probate Case No. 203 /2010 for grant of probate certificate in respect of the estate of Bulkania Devi. This is to be noted that after the death of Nankuri Devi, Ramashish Singh had married one Sharda Devi. One of the daughters of Ramashish Singh, namely, Saminta Devi objected to grant of probate certificate and, accordingly, the Probate case was converted into Title Suit No. 16 of 2011. Ramashish Singh, during the pendency of the said Suit No. 16 of 2011 died on 04.07.2012, leaving behind his widow Sharda Devi and three daughters, namely, Saminta Devi, Kalawati Devi and Munni Devi alias Manni Devi. Saminta Devi is the petitioner in the present application. Dilip Kumar, the Respondent is the husband of Munni Devi alias Munna Devi.
3. After the death of Ramashish Singh, the said Dilip Kumar, husband of one of the daughters of Ramashish Singh filed a petition under Order XXII Rule 3 of „the Code‟ for his substitution in the said Title Suit on the basis of a registered Will dated 18.08.2011, said to have been executed by Ramashish Singh. The said registered Will pertains to the estate of Bulkania Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P3/12 Devi which is the subject matter of the Will dated 02.07.1987 said to have been executed by Bulkania Devi in favour of Ramashish Singh.
4. The learned Court below allowed the said application filed under order XXII Rule 3 of „the Code‟ treating him to be the legal representative of the deceased-plaintiff on the basis of registered Deed of Will executed by the original Plaintiff, Ramashish Singh in favour of the Respondent, Dilip Kumar.
5. Learned counsel appearing on behalf of the petitioner has very vehemently submitted that by no stretch of imagination the Respondent can be said to be legal heir of said Ramashish Singh, particularly when his daughters and wife are alive.
6. It has been submitted that the sole basis of permitting the respondent to be substituted in place of Ramashish Singh, is a Will said to have been executed by said Ramashish Singh, in favour of the Respondent. He submits that the Will, said to have been executed by Ramashish Singh has no meaning unless it is probated in accordance with law. He has further submitted that the Respondent has not even taken any step for getting the alleged Will dated 18.08.2011, said to have been executed by Ramashish Singh in favour of the Respondent, probated. It has accordingly been submitted that the Court below acted beyond its jurisdiction Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P4/12 by allowing the Respondent to be substituted in place of said Ramashish Singh.
7. Learned counsel appearing on behalf of the Respondent on the other hand has submitted that there is no illegality in the impugned order. He submits that under Order XXII Rule 3 of „the Code‟, any person having interest in the estate of the deceased is a legal representative and Court on such satisfaction has the power to cause such legal representative of the deceased-plaintiff to be made party so as to proceed with the suit.
8. He has submitted that definition of legal representative under Section 2 (11) of the Code of Civil Procedure is wide enough and it includes a person who seeks to represent the estate of the deceased person on the basis of Will said to have been executed by deceased in his favour. He further submits that in any event, such substitution will in no manner prejudice the case of the petitioner inasmuch as in a probate proceeding, the Court is required to certify only as regards execution of Will by Bulkania Devi in favour of Ramashish Singh.
9. He submits that if the petitioner is not substituted in place of the Respondent in the facts and circumstances of the case, the last Will of Bulkania Devi will go unnoticed. He further submits that the Court below has committed no illegality by permitting the Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P5/12 Respondents to be substituted in place of the original Plaintiff Ramashish Singh.
10. Learned counsel for the Respondent has placed reliance on following judgments of the Supreme Court as well as the High Courts in support of his plea :-
1. "A.I.R. 1989 SC 1589 (Custodian, Branches of BANCO National Ultramarino V. Nalini Bai)
2. 2004 (7) SCC 505 (Commissioner, Jalandhar Division and Ors. V. Mohan Krishan Abrol and Anr.)
3. A.I.R. 1976 HP 74 (Suraj Mani and Anr. V. Kishori Lal)
4. A.I.R. 2001 Pat 181 (Jogendra Prasad alias Bhola and Ors. V. Kamlesh Kumar and Ors.)
5. A.I.R. 1982 A.P. 410 (Tynala Musalayya V. Mohanraj and Ors.) and
6. A.I.R. 1987 P& H 232 (Col. Adarsh Rattan and Ors.
V. State Bank of India, Jalandhar)."
11. Section 2 (11) of „the Code‟ defines legal representatives as follows:-
"legal representative" means a persons who is law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P6/12 on whom the estate devolves on the death of the party so suing or sued"
12. It would be apt to quote Order XXII Rule 3 of „the Code‟ for quick reference so as to deal with the controversy in the present case. The main question involved in the present case is as to whether the Respondent could be substituted in place of Ramashish Singh upon his death in the facts and circumstances of the case on the strength of an unprobated Will. Order XXII Rule 3 of „the Code‟ reads thus:-
"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."
13. The conjoint reading of Section 2(11) and Order XXII Rule 3 of „the Code‟ will leave no room for any doubt that a Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P7/12 person who can represent the estate of a deceased and includes such person who intermeddles with the estate of the deceased can be substituted in case of death of such person, in his place and; that such legal representative may not be the legal heir of the deceased person.
14. The Supreme Court in case of Custodian, Branches of BANCO National Ultramarino V. Nalini Bai (supra) had the occasion to deal with and interpret Section 2(11) of „the Code‟. The Court in paragraph-4 of the judgment held thus:-
"4."Legal representative" as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative".
If there are many heirs, those in possession bona Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P8/12 fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased."
15. The Himachal Pradesh High Court has also dealt with the said provision in case of Suraj Mani and Anr. V. Kishori Lal (supra) wherein the Court held that definition of legal representatives in Section 2(11) of „the Code‟ was wide enough and would certainly include a person who seeks to represent the deceased person on the basis of the Will said to be executed by the deceased in his favour.
16. In view of the above pronouncements, there cannot be any doubt about proposition that the legal representative within the meaning of Order XXII Rule 3 shall include such persons also who represent the estate of the deceased persons and may not be the legal heirs of such deceased persons. The question now arises as to whether the respondent could successfully claim to be the legal representatives of the deceased plaintiff on the basis of the registered Deed of Will executed by the said plaintiff, without the same having been probated. Before dealing with this aspect, it would be appropriate to refer to Section 211, 212 and 213 of the Indian Succession Act, 1925. Section 211 declares that the executor or administrator of a deceased person is his legal representatives for all purposes and all the property of the Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P9/12 deceased person vests in him as such. Section 212 provides that no right to any part of the property of a person who has died intestate can be established in any Court of justice unless letters of administration have been granted by a Court of competent jurisdiction. Section 213 of the Indian Succession Act reads as follows:-
"Right as executor or legatee when established.-(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2)This Section shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply-
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limit.]"
17. Referring to Section 213 of the Indian Succession Act, it Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P10/12 is being contended on behalf of the petitioner in the present application that no right as executor or legatee can be established unless Court of competent jurisdiction has granted probate of Will under which the right is claimed. It has been strenuously submitted by learned counsel for the petitioner, as has been noted above, that in the absence of grant of probate of the Will, the respondent could not have claimed to be a legatee and his substitution is bad in the facts and circumstances of the case. This aspect had fallen for consideration before Supreme Court in case of Commissioner, Jalandhar Division and Ors. V. Mohan Krishan Abrol and Anr. reported in (2004) 7 SCC 505, reliance upon which has been placed by learned counsel for the Respondent. The Supreme Court in paragraph-10 laid down the law as follows:-
"10. A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v. Karam Chand Soni it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty the Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P11/12 Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator."
18. The Court further held in the same paragraph as follows:-
"Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. (See Cherichi v. Ittianam.) Therefore, on the demise of the testatrix, the said property vested in the executors."
19. Similar view has been taken by Punjab and Haryana High Court in case of Col. Adarsh Rattan and Ors. V. State Bank of India, Jalandhar (supra). In case of Jogendra Prasad alias Bhola and Ors. Vs. Kamlesh Kumar and Ors. reported in A.I.R. 2001 Pat 181, this Court has held that in a probate proceeding, on the death of the executor who had filed the probate case, his son who is also a legatee would be substituted in his place in probate proceeding.
20. From the discussions as above, I am of the view that Patna High Court CWJC No.169 of 2013 (4) dt.30-08-2013 P12/12 definition of legal representatives under Section 2(11) of „the Code‟ is very wide and will certainly include a person who seeks to represent the estate of a deceased person on the basis of Will said to have been executed by the deceased in his favour. As has been held by the High Court of Himachal Pradesh in case of Suraj Mani and Anr. V. Kishori Lal (supra), the estate will be sufficiently represented by such a person. The substitution would certainly not confer any special right nor would make such representative an heir to the property of the deceased.
21. I am further of the view that the impugned order permitting substitution will not cause any prejudice to the petitioner as effect of such substitution is merely to prove execution of the Deed of Will by Bulkania Devi in favour of Ramashish Singh.
22. In view of the above, I do not find any infirmity or illegality in the impugned order. The impugned order does not warrant interference by this Court. This application is accordingly dismissed.
(Chakradhari Sharan Singh, J.) Saif/-