Delhi High Court - Orders
Jitender Chopra vs Y.S.Manchanda on 26 May, 2023
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 523/2005
JITENDER CHOPRA ..... Plaintiff
Through: Mr. Ajay Kohli and Ms.Dipika
Prasad, Advocates
(M:8800149680, e-mail:
[email protected])
versus
Y.S.MANCHANDA ..... Defendant
Through: Mr. Kuljeet Rawal and Mr.Vikram
Alung, Advocates for LR(i) Sachin
Manchanda, (M:9958373993, e-mail:
[email protected])
Mr. Ajay Bahl, Advocate for LR No.3
(M:9811222542)
CORAM:
MS. VANDANA JAIN (DHJS) JOINT REGISTRAR(JUDICIAL)
ORDER
% 26.05.2023 I.A No. 9270/2021 (application filed by the plaintiff u/O 22 Rule 4 r/w Section 151 CPC for impleadment of legal heirs of deceased defendant) I.A No. 16436/2021 (application filed by applicant u/O 22 Rule 4 CPC r/w Section 151 CPC for impleadment as sole legal heir in counter claim of counter claimant) I.A No. 6611/2022 (application filed by Mr. Sachin Manchanda-LR of deceased defendant u/O XXII Rule 5 r/w Section 151 CPC)
1. Vide this order, I shall dispose of all the three applications, one moved by plaintiff and other two moved by the proposed legal heir Mr.Sachin Manchanda of the deceased defendant.
2. Before coming to the application, it is pertinent to mention here CS(OS) 523/2005 Page 1 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:49 certain facts. It is a suit for specific performance filed by the plaintiff against the defendant. The defendant had also filed a counter-claim along with the written statement. Defendant expired during the pendency of the suit. Deceased defendant had left three legal heirs, one son Mr. Sachin Manchanda and two daughters, namely Ms. Shivani Malhotra and Ms. Shalini Pahawa on application bearing No. 9270/2021 was filed by the plaintiff for impleadment of all the LRs of deceased defendant. The reply to the said application was filed by LR no.1 Mr. Sachin Manchanda, who is the applicant in other two applications bearing IAs No. 6611/2022 & 16436/2021. The reply to the I.A. of plaintiff was also filed by the other proposed LR no.3 Ms. Shalini Pahawa. In the reply filed by LR no.1 Mr.Sachin Manchanda, he has objected to the plaintiff's application by stating that his late father had left his last legal valid Will dated 11.05.2020 by virtue of which, his assets, all movable or immovable has been exclusively bequeathed in his favour. The said Will is challenged by his sister i.e. LR no.3 Ms. Shalini Pahawa. The other sister LR no.2 Ms. Shivani Malhotra, has not turned up despite service.
3. Other application bearing I.A. No.16436/2021 has been moved by applicant Mr. Sachin Manchanda for his impleadment as sole LR in the counter-claim filed by the defendant. The reply to the said application has been filed by the plaintiff. There is yet another application bearing I.A. No.6611/2022 moved by applicant Mr. Sachin Manchanda under Order XXII Rule 5 CPC wherein it has been prayed that the disposal of the other two applications be deferred till the time this application is decided.
4. In the I.A. No.6611/2022, it is stated that since the applicant Mr.Sachin Manchanda is propounding a Will, therefore, he is the sole and CS(OS) 523/2005 Page 2 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:49 exclusive beneficiary of the assets of his deceased father and he should only be substituted as the sole legal representative of deceased defendant.
5. Learned counsel for the applicant has stated that this application has been filed seeking inquiry in terms of Order XXII Rule 5 CPC. Learned counsel while addressing the arguments, has stated that the said question has to be determined before adverting to the remaining applications for the substitution of the LRs. In this regard, he has relied upon the following judgments:
1. Jaladi suguna vs. Satya Sai Central Trust (2008) 8 SCC 521
2. Satyanand vs. Shyam Lal Chauhan (2018) 18 SCC 485
3. Karedla Parthasaradhi vs. Gangula Ramanamma (D) through L.Rs.
& Ors. 2014 lawpack (SC) 54869
6. Learned counsel for the applicant has argued that the reading of these judgements would make it clear that the question as who is the legal representative of the deceased has to be decided at the first instance and only thereafter the suit can be proceeded further.
7. On the other hand, learned counsel for the plaintiff has vehemently opposed these averments and has stated that the dispute amongst the legal heirs of the deceased defendant cannot be decided in the present proceedings and it is a separate and independent cause of action which is to be determined in separate proceedings. He has also argued that in case this inquiry is taken up in this suit, his suit will take a back seat and will lag behind. He has relied upon Suresh Kumar Bansal vs Krishna Bansal and Ors. MANU/SC/1891/2009 decided on 14.12.2019.
8. Learned counsel for LR no.3 Ms. Shalini Pahawa has submitted that CS(OS) 523/2005 Page 3 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:50 the she is disputing the Will propounded by Mr. Sachin Manchanda and, therefore, it has to be decided whether applicant solely would represent the estate of the deceased or all the three legal heirs.
9. I have heard the arguments and have perused the record carefully.
10. Before adverting to the factual matrix, it is important to note the provisions of law Order XXII Rule 4 CPC is the relevant provision for impleadment of legal representative in the case of death of a deceased defendant. Same is provided herein under:
"(4). Procedure in case of death of one of several defendants or of sole defendant.-(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit."
11. From reading of aforesaid provision, it becomes relevant to know as to who is legal representative. The definition of legal representative is given under Section 2(11) CPC which reads as under:
"Legal representative" 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 the 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".
12. In Majuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 the Hon'ble Supreme Court held as under:-
"As observed by this Court in Custodian of Branches of BANCO CS(OS) 523/2005 Page 4 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:50 National Ultramarino v. Nalini Bai Naique1 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without tile either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression legal representative."
13. Hence, Section 2(11) referred to above 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 a 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 executor or as administrator in possession of the estate of the deceased. All such persons are covered by the expression "legal representative".
14. The application filed by the applicant Mr. Sachin Manchanda bearing No.6611/2022 is taken up first for disposal to the exclusion of the other two legal heirs.
15. Learned counsel for the applicant has stated that since the deceased defendant had executed a Will in favour of the applicant Mr. Sachin Manchanda, therefore, he is the sole legal representative of the deceased defendant.
16. While addressing the arguments, he had argued that since one of the sister is disputing the Will, therefore, the provisions of Order XXII Rule 5 CPC comes into picture and before proceedings with this suit, the dispute as CS(OS) 523/2005 Page 5 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:50 to who is the legal representative of the deceased defendant has to be decided by holding an enquiry in terms of Order XXII Rule 5 CPC.
17. In this regard, it is noticed that the discussion made herein above with respect to the definition of legal representative leaves no scope for further discussion. The definition of legal representative is an inclusive definition and is not confined only to legal heirs. Applicant is the son of defendant and the other two legal heirs are his sisters. Since the persons coming forward in this case to substitute the deceased defendant are legal heirs of the defendants, therefore, they all are legal representatives of deceased defendant. Now, it is to be seen as to whether the provisions of Order XXII Rule 5 CPC are applicable to the case in hand or not.
18. The counsel for the applicant had relied upon three judgments as given in para no.5 above. As far as Jaladi Suguna (supra) is concerned, the dispute in the case was between husband of the deceased on one side and niece and nephews on other side, who claimed to be a legal representative of the deceased on the basis of a Will allegedly executed by the deceased in their favour. It is worthwhile to note here that the dispute as who would become the legal representative was not amongst the Class-I legal heirs. It was amongst Class-I legal heirs on one side and the persons intermeddling with the estate of the deceased on the other. In these facts, enquiry under Order XXII Rule 5 CPC was directed. The facts of this case cannot be equated with the case in hand wherein the dispute is between the legal heirs only. Therefore, this judgment is clearly not applicable to the case in hand.
19. As far as the other judgment Karedla Parthasaradhi (Supra) is concerned, in this case also dispute was between the brother and sisters of deceased on one side and, a lady/ cook claiming to the wife of the deceased CS(OS) 523/2005 Page 6 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:50 and becoming a Class-I legal heir, on the other side. So in these circumstances,, Order XXII Rule 5 CPC came into picture and it was held that the enquiry under Order XXII Rule 5 CPC was necessitated. Similarly, in the third judgment i.e. Satyanand (Supra) also, the position was same. A Mahant died and two separate Swamies claimed themselves to be legal representative of the deceased Mahant and filed separate IAs for their substitution. Here also, there was no dispute amongst the natural heirs.
20. All the three judgments placed in reliance of the submissions made by learned counsel for the applicant Mr.Sachin Manchanda are clearly not applicable to the facts in hand and no enquiry under Order XXII Rule 5 CPC is required as all the three are the legal heirs of the deceased defendant and the definition of legal representative is a wider definition which includes the legal heirs as well as the persons who intermeddles with the estate of the deceased.
21. Learned counsel for the plaintiff on the other hand has relied upon Suresh Kumar Bansal (Supra) wherein though the dispute was between natural heirs of one side and the legatee under the Will on the other side, even then it was observed that no enquiry under Order XXII Rule 5 CPC is required. The facts of the present case are on a higher footing. The son of deceased defendant claims himself to be the sole beneficiary under a Will allegedly executed by the father, though one of the sisters has disputed the Will. The second sister has not appeared despite service. Since all the legal heirs are legal representatives, there cannot be any dispute with respect to any of them being not a legal representative. Hence no enquiry under Order XXII Rule 5 CPC is required. The dispute between the legal heirs, if any, is a separate and independent cause of action and is not required to be decided CS(OS) 523/2005 Page 7 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:50 in these proceedings.
22. The applicant Mr.Sachin Manchanda has taken a stand that in addition to being a legal heir, he is the sole legal representative as he has propounded a Will executed by his late father in his favour. Even if his argument is taken to be true, then at the most, he can be substituted in both the capacities, as a legal heir and in the capacity of a legatee under a Will.
23. Hence, the I.A. moved by the applicant bearing No.6611/2022 stands dismissed. Resultantly I.A. moved by the plaintiff bearing No.9270/2021 stands allowed and I.A. No.16436/2021 filed by the applicant in the counter- claim stands dismissed.
24. All the three natural heirs of deceased defendant are allowed to be brought as his legal representatives in the present suit as well as in the counter-claim.
25. Amended memo of parties is taken on record.
26. All the three IAs stand disposed of accordingly.
VANDANA JAIN (DHJS) JOINT REGISTRAR(JUDICIAL) MAY 26, 2023/tp CS(OS) 523/2005 Page 8 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 11:29:50