Allahabad High Court
Ram Paras And 4 Others vs Smt. Gyani Devi (Since Deceased) And 3 ... on 17 October, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 5 Case :- FIRST APPEAL FROM ORDER No. - 524 of 2020 Appellant :- Ram Paras And 4 Others Respondent :- Smt. Gyani Devi (Since Deceased) And 3 Others Counsel for Appellant :- Vineet Kumar Singh Counsel for Respondent :- Ashish Kumar,Abhishek Dwivedi,Siddhartha Srivastava AND Case :- FIRST APPEAL FROM ORDER No. - 525 of 2020 Appellant :- Dilip Kumar Respondent :- Smt. Gyani Devi (Since Deceased) And 7 Others Counsel for Appellant :- Vineet Kumar Singh Counsel for Respondent :- Ashish Kumar,Abhishek Dwivedi,Siddhartha Srivastava Hon'ble Saral Srivastava,J.
1. Heard Sri Vineet Kumar Singh, learned counsel for the appellants, and Sri Siddhartha Srivastava learned counsel for the respondents.
2. Since, these two appeals involve common issues, therefore, both appeals are being decided together with this common judgement.
3. The F.A.F.O. No.524 of 2020 has been preferred by Ram Paras and others, who have been substituted as legal heirs of late Tilakdhari who was defendant no.1 in Original Suit No.427 of 1991, challenging the order dated 16.01.2020 passed by the Additional District Judge, Court No.1, Maharajganj whereby, it has allowed application (55Ga) filed by respondent no.4-Smt. Runa Devi in Civil Appeal No.29 of 2009 for impleading her under Order 22 Rule 10 of C.P.C. as assignee of late Gyani Devi, who was the plaintiff in Original Suit No.427 of 1991.
4. F.A.F.O. No.525 of 2020 has been preferred by Dilip Kumar, who was defendant no.2 in Original Suit No.427 of 1991, against the same order i.e. order dated 16.01.2020 passed by the Additional District Judge, Court No.1, Maharajganj.
5. For the sake of convenience, facts are being delineated from F.A.F.O. No.524 of 2020.
6. The brief facts of the case are that one Smt. Gyani Devi (hereinafter referred to as 'plaintiff') instituted Original Suit No.427 of 1991 for declaring the 'Will' dated 12.09.1985 executed by late Ram Adhare Das (husband of the plaintiff-Smt. Gyani Devi) in favour of Dilip Kumar, (defendant no.2 in the Original Suit No.427 of 1991) void. The plaintiff further prayed for a decree of permanent injunction in respect of the suit property and a decree of cancellation of the sale deed executed by Dilip Kumar (defendant no.2) in favour of Late Tilakdhari (father of the appellants). Tilakdhari had died during the pendency of the suit, and therefore, the legal heirs of Late Tilakdhari, who are appellants in the present appeal, were substituted.
7. The suit has been instituted by the plaintiff contending interalia that the suit property was owned by Late Ram Adhare Das, who died on 13.11.1985. It was further pleaded that Dilip Kumar (defendant no.2) was not the son of the Late Ram Adhare Das and Ram Adhare Das has not executed any 'Will' dated 12.09.1985 in favour of Dilip Kumar.
8. The suit was contested by the appellants as well as Dilip Kumar contending interalia that Dilip Kumar is the son of Late Ram Adhare Das who had executed a 'Will' dated 12.09.1985 in favour of Dilip Kumar, and hence, a sale deed executed by Dilip Kumar in favour of Late Tilakdhari (father of the appellants) in respect of suit property is as per law.
9. The trial court on the basis of pleadings between the parties framed several issues. On the issue as to whether Dilip Kumar (defendant no.2) was the son of the Late Ram Adhare Das, the trial court after appreciating the evidence on record held that Dilip Kumar is not the son of the Late Ram Adhare Das, rather he is the son of one Udit Das, who was the brother of Late Ram Adhare Das. The trial court found merit in the case of the plaintiff. Accordingly, it vide judgement dated 08.09.2009 decreed the suit of the plaintiff declaring the 'Will' dated 12.09.1985 void, and consequently, it also held the sale deed void. However, the trial court refused to grant a decree of permanent injunction.
10. The present appellants preferred Civil Appeal No.29 of 2009 challenging the judgement and decree dated 08.09.2009 passed by the trial court. During the pendency of the appeal, plaintiff-Gyani Devi died. After the death of the Late Gyani Devi, the appellants filed an application 34Ga for making an endorsement 'since deceased' after the name of the Late Gyani Devi.
11. Application 34Ga was contested by respondent no.4 Smt. Runa Devi claiming herself to be the daughter of the Late Gyani Devi on the ground that application 34Ga was not maintainable.
12. The trial court vide order dated 01.09.2016 allowed the application 34Ga and permitted the appellants to make necessary corrections in the memo of civil appeal and accordingly, the words 'since deceased' have been added after the name of Gyani Devi in the civil appeal.
13. The present respondent no.4, thereafter, filed an application under Order 22 Rule 10 of C.P.C. claiming herself to be the assignee of the estate of deceased Gyani Devi on the basis of registered 'Will' dated 21.01.2008 in the civil appeal. The said application was contested by the appellants by filing the objection.
14. The lower appellate court vide order dated 28.02.2017 allowed the application of respondent no.4 which came to be challenged by the appellants in F.A.F.O. No.2110 of 2017 contending interalia that the lower appellate court without adopting the procedure as contemplated under Order 22 Rule 5 of C.P.C. has allowed the application of respondent no.4 under Order 22 Rule 10 of C.P.C.
15. It was contended that there was a dispute with respect to the legal heir of deceased Gyani Devi, therefore, it was incumbent upon the lower appellate court to conduct an inquiry in the manner as provided in Order 22 Rule 5 of C.P.C. and as the said provision has not been followed in letter and spirit, therefore, the order impugned is not sustainable in law.
16. This Court vide judgement dated 10.07.2017 allowed the F.A.F.O. No.2110 of 2017 of the appellants and permitted respondent no.4 Runa Devi to file a fresh application under Order 22 Rule 10 of C.P.C. or such other application as she may be advised in accordance with the law. This Court further observed that if any such application is filed, the same may be dealt with and decided as expeditiously as possible, preferably within four months therefrom in accordance with the law. This Court permitted the present appellants to contest the said application on such grounds as they may raise.
17. In compliance with the order of this Court dated 10.07.2017 passed in F.A.F.O. No.2110 of 2017, respondent no.4 again filed an application 55Ga under Order 22 Rule 10 read with Order 1 Rule 10(2) of C.P.C. for substituting her name as respondent no.4 in the appeal which application was allowed by the lower appellate court vide order dated 16.01.2020 holding that original copy of registered 'Will' 59Ga has been filed on record and perusal of which reveals that Late Gyani Devi had bequeathed her movable and immovable property in favour of respondent no.4 by registered 'Will' dated 21.01.2008. The Will was written by one Chandrabhan Vishwakarma, and Harishchandra and Ayodhya were witnesses of the 'Will'.
18. The lower appellate court further held that respondent no.4- Smt. Runa Devi appeared as a C.W.-1 before it and stated that 'Bainama' was executed. Chandrabhan Vishwakarma, who was the writer of the 'Will', also appeared before the lower appellate court and stated that Will was written by him and witnesses had signed the 'Will' in his presence. The lower appellate court further recorded a finding that by mistake, C.W.-1 has stated in his statement 'Bainama' in place of 'Will'. The lower appellate court prima facie found that respondent no.4 has filed a registered 'Will', therefore, it cannot be presumed at this stage that the 'Will' was void. Accordingly, it found that respondent no.4-Runa Devi has an interest in the suit property and allowed the application under Order 22 Rule 10 of C.P.C.
19. Challenging the aforesaid order, learned counsel for the appellants has made threefold submissions; the lower appellate court while considering the application under Order 22 Rule 10 of C.P.C. was bound to follow the procedure as contemplated under Order 22 Rule 5 of C.P.C. and should have made an inquiry in the manner as provided under Order 22 Rule 5 of C.P.C. before concluding in favour of respondent no.4. In other words, it is submitted that provision of Order 22 Rule 5 of C.P.C. is mandatory to be adhered to which provides that an inquiry in case of dispute with regard to the legal heir of deceased-plaintiff or deceased defendant is to be made by the court while allowing the application under Order 22 Rule 10 of C.P.C., but in the instant case, as the lower appellate court has failed to follow the said procedure, the impugned order is not sustainable.
20. Secondly, it is contended that once respondent no.4 has contested the application 34Ga filed by the appellants for making an endorsement 'since deceased' after the name of Late Gyani Devi in the civil appeal and the application was allowed, and the order dated 01.09.2016 passed on the application 34Ga has not been assailed by the respondent no.4, therefore, application of respondent no.4 under Order 22 Rule 10 of C.P.C. is not maintainable as the same is barred by principles of estoppel.
21. Thirdly, it is submitted that the order of the lower appellate court is without application of mind since the impugned order does not deal with any of the objections raised by the appellants in their objection while deciding the application 55Ga and thus, the impugned order being non-speaking is liable to be set aside by this Court on this ground.
22. Per contra, learned counsel for the respondents has contended that the lower appellate court has recorded a categorical finding that the original 'Will' has not been disputed by the appellants. It is submitted that it is also not in dispute that respondent no.4 is the daughter of the Late Gyani Devi. He further contends that the writer of the 'Will' Chandrabhan Vishwakarma has appeared before the lower appellate court and stated that 'Will' was written by him and witnesses of the 'Will' have signed the 'Will' before him, and accordingly, the 'Will' was prima facie proved by respondent no.4 Runa Devi and thus, the lower appellate court has done sufficient inquiry about the genuineness of the 'Will', and after recording its prima facie satisfaction that 'Will' is genuine, allowed the application 55Ga.
23. It is further contended that the provision under Order 22 Rule 5 of C.P.C. is not applicable in the application under Order 22 Rule 10 of C.P.C. as the lower appellate court while granting leave under Order 22 Rule 10 of C.P.C. has to exercise its discretion judicially and in the instant case, the lower appellate court has exercised its discretion judicially. It is further submitted that in the instant case, respondent no.4 is seeking continuance of the suit. It is submitted that in case the application of respondent no.4 is not allowed, the estate of the deceased would go unrepresented since Dilip Kumar, who claims to have acquired the suit property through a registered 'Will' dated 12.09.1985 is in collusion with appellants and as there is nobody to look after the estate of the deceased, the natural consequence will be that the suit will be dismissed, and the estate of deceased will go in the hands of appellants, who have illegally acquired the suit property.
24. Lastly, it is submitted that no material has been brought on record by the appellants disputing the genuineness of the 'Will' dated 21.01.2008 and only a bald objection has been made in paragraphs 5 and 8 of the objection of the appellants denying the genuineness of the 'Will'. Hence, it is contended that the order passed by the lower appellate court reflects its application of mind while allowing the application 55Ga.
25. I have heard the rival submissions of the parties and perused the record.
26. Before dealing with the respective contention of the parties, it would be apt to refer to the judgement of the Apex Court in the case of Chandra Bai (Dead) through Legal Representatives Vs. Khandalwal Vipra Vidyalaya Samiti and Others 2016 (12) SCC 534 wherein Apex Court has held that the court should exercise its discretion judicially while considering the application under Order 22 Rule 10 of C.P.C. Para 8 of the said judgement is reproduced herein below:-
"8. We have further noticed that in Baijnath Ram & Ors. v. Tunkowati Kuer 1962 SCC Online Pat.5, the Full Bench of the Patna High Court has held:
"15...Another thing to notice in connection with this rule is that a party on whom the interest of the deceased plaintiff or defendant devolves is not entitled to continue the suit or appeal as a matter of right, it is essential to obtain the leave of the Court. The granting of leave is within the discretion of the Court. The Court, however, is to exercise its discretion judicially and according to well-established principles. Further, unlike Rules 3 and 4, no limitation is prescribed for presentation of an application under this rule and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant was devolved. Therefore, the right to make an application under this rule is a right which accrues from day to day and can be made at any time during the pendency of a suit. There is no abatement under this rule."
(emphasis supplied)
27. From the perusal of paragraph 8 of the judgement, extracted above, it is evident that the grant of leave under Order 22 Rule 10 of C.P.C. is within the discretion of the Court with the only rider that the court has to exercise such discretion judicially and according to well-established principles of law.
28. The Apex Court in the case of Amit Kumar Shaw and Another Vs. Farida Khatoon and Another 2005 (11) SCC 403 in paragraph 12 has held as under:-
"12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit."
29. Perusal of paragraph 12 of the judgment of Apex Court in the case of Amit Kumar Shaw (supra) reveals that no detailed inquiry at the stage of granting of leave is contemplated under Order 22 Rule 10 of C.P.C. Now if the principles enunciated in the judgements of the Apex Court in the case of Chandra Bai (supra) and Amit Kumar Shaw (supra) are read together, it is borne out from the two judgements that while deciding the application under Order 22 Rule 10 of CPC, the court has to exercise its discretion judicially in granting leave and once the court while exercising the discretion judicially prima facie finds the interest of the assignee in the property, the application has to be allowed.
30. In view of the aforesaid two judgments of the Apex Court, this Court does not find any substance in the submission of learned counsel for the appellants that while deciding the application under Order 22 Rule 10 of CPC, the court is bound to follow the procedure as contemplated under Order 22 Rule 5 of C.P.C.
31. On the touchstone of the aforesaid principles, now this Court proceeds to consider the submission advanced by learned counsel for the appellants as to whether in the instant case the lower appellate court has applied its discretion judicially while allowing the application under Order 22 Rule 10 of CPC.
32. The record reveals that an earlier application filed by respondent no.4 under Order 22 Rule 10 of C.P.C. was rejected by this Court in F.A.F.O. No. 2110 of 2017 on the ground that the original 'Will' was not filed before the lower appellate court. Respondent no.4 along with fresh application 55Ga filed the original 'Will' and produced herself as C.W.-1 and deposed that 'Bainama' had been executed about 9 years back by her mother. The writer of the 'Will' Chandrabhan Vishwakarma had appeared before the lower appellate court and deposed that 'Will' was written by him and the witnesses of the 'Will' had signed the 'Will' before him. The lower appellate court further found that by just a slip of tongue, respondent no.4 has stated the document as 'Bainama' in place of 'Will'. The lower appellate court further recorded that the genuineness of the 'Will' has not been disputed by the appellants.
33. In such view of the fact, the lower appellate court on prima facie satisfaction held that since the 'Will' is registered, therefore, a presumption to the genuineness of the 'Will' can be drawn at this stage. The aforesaid fact discloses that the lower appellate court while allowing the application 55Ga has exercised its discretion judicially and on the settled principles of law. It is pertinent to mention that the finding of the lower appellate court with respect to prima facie satisfaction holding the 'Will' to be genuine is perverse could not be demonstrated by the learned counsel for the appellants from the record.
34. The facts delineated above also disclose that the objection of the appellants regarding the validity of 'Will' has been dealt with by the lower appellate court.
35. In such view of the fact, this Court finds that the lower appellate court has exercised its discretion judicially. Thus, the first and third arguments of learned counsel for the appellants are devoid of merit and are hereby rejected.
36. So far as the second argument of learned counsel for the appellants with regard to the fact that as the impugned order dated 16.01.2020 has not been assailed by the appellants, and therefore that will operate as estoppel against respondent no. 4, this Court does not find any merit in the said submission for the reasons that Dilip Kumar (defendant no. 2) did not file any application claiming himself to be heir of Late Gyani Devi. The application was filed by the appellants for endorsing the words 'since deceased' after the name of Late Gyani Devi in the array of the parties and memo of appeal and has further prayed to incorporate paragraph 12A which states that Gyani Devi had no heirs. The said application does not decide the rights of respondent no.4 nor considers whether non-impleadment of respondent no.4 would prejudice the rights of an assignee. In such view of the fact, this Court does not find any merit in the second submission of learned counsel for the appellants and rejects the same.
37. Thus for the reasons given above, both the appeals lack merit and are accordingly, dismissed with no order as to cost.
38. Any observation made hereinabove shall not affect the disposal of the appeal on merit.
Order Date :- 17.10.2022 Sattyarth