(Order on Civil Misc. Applications No.18 of 2018, 19 of 2018 & 20 of 2018 and Civil Misc. Abatement Application No.7 of 2018).
1. Plaintiff Ram Naresh Singh instituted the present probate petition with a prayer for grant of probate of Will dated 13.05.1984 alleged to have been executed by Late Smt. Rani Rebati Devi. The plaintiff is the executor named in the said Will.
2. The present probate petition was earlier instituted in the court of District Judge, Deoria and was numbered as 72 of 2006, later on probate petition was renumbered as Case No. 37 of 2007. The aforesaid probate petition was transferred by the Apex Court by order dated 10.08.2018 in Civil Appeal No. 3668 of 2018 to this Court. On being transferred, the present probate petition is numbered as 1 of 2018.
3. After the record of probate petition is received, notices were issued to defendants in the suit. The registry submitted a report on 24.07.2018 that defendant no. 15 (Sri Kanhaiya Prasad Singh) & 20 (Vindhyavasini Singh) are dead. In another report of the registry dated 01.08.2018, it is stated that defendant no.11 (Smt. Rani T.R. Devi) is dead. Consequently, on the reports of registry, learned counsel for the plaintiff filed substitution application No. 2 of 2018 on 07.08.2018 to substitute the legal heirs of defendant nos. 15 and 20. Another substitution application no. 9 of 2018 along with delay condonation application no. 8 of 2018 was filed by the plaintiff on 19.08.2018 for substituting the legal heirs of defendant no.11. On the aforesaid applications, contesting defendants were granted time to file objection.
4. After filing the aforesaid substitution applications, plaintiff filed Civil Misc. Applications No.18 of 2018, 19 of 2018 and 20 of 2018 with a prayer for deleting the defendants no.11, 15 and 20 respectively from the array of the parties. This Court by order dated 30.11.2018 on the prayer made by learned counsel for the plaintiff dismissed the application nos.8 & 9 of 2018 and 2 of 2018 as not pressed.
5. It is also relevant to mention that defendant no.11 being real sister of the testator was impleaded being one of the heirs as described in paragraph 7 of the probate petition, while defendant no.15 & 20 were impleaded as they were named as trustee in the Will. Since all the defendants whose deletion has been sought by the plaintiff in the aforesaid three application had died prior to the institution of probate petition, therefore, in all the three applications, issues are common. Hence, they are being decided by common order. For the sake of convenience, the facts from the Civil Misc. Application No.18 of 2018 are taken.
6. In the application no. 18 of 2018 with respect to deletion of defendant no.11, plaintiff has stated that defendant no.11 was the real sister of Late Smt. Rani Revati Devi and had died on 22.02.1988 prior to the institution of present probate petition and as her death could not be ascertained at the time of filing the probate petition therefore, she was arrayed as defendant. The plaintiff prays that he be permitted to delete defendant no.11 from the array of the parties.
7. To the aforesaid applications, defendant no.1 Smt. Sharad Kumari filed objection contending therein that plaintiff did not make any effort to find out the correct date of death of defendant no.11, and the substitution application was filed by the plaintiff with an inordinate delay and no explanation was submitted by the plaintiff for condoning the delay in filing the said application. It is further pleaded that plaintiff has given the list of near relatives in paragraph 7 of the probate petition and further, in the present application plaintiff has stated that defendant no.11 has left behind her son as heir and legal representative, therefore, deletion of defendant no.11 from the array of the parties is not permissible and probate petition deserves to be dismissed as abated not only against defendant no.11 but also against defendants who have been arrayed as near relatives of the deceased Smt. Rani Revati Devi as their interests are common.
8. Defendant nos. 3 and 4 also filed objection to the application contending therein that defendant no.11 had died on 22.02.1988 prior to the institution of probate petition and no substitution application has been filed by the plaintiff within 90 days prescribed period of limitation for filing the substitution application, and as no application for setting aside the abatement has been filed within the period of limitation, therefore, in view of Order 22 Rule 4(3) of Code of Civil Procedure, 1988 (hereinafter referred to as "C.P.C.") and Order 22 Rule 9 of C.P.C., the probate petition is liable to be dismissed as abated.
9. Defendant no.2 also filed counter affidavit contending therein that by the alleged will dated 30.05.1984 a trust was constituted and defendant no.11 was one of the trustee. It is submitted that the probate petition against defendant no.11 has abated and, therefore, plaintiff cannot be permitted to delete the name of defendant no.11 from the array of the parties.
10. In a separate rejoinder affidavit filed against aforesaid three counter affidavits, plaintiff has denied the fact about the knowledge of death of defendant no.11,15 & 20.
11. Learned counsel for the plaintiff has contended that prior to the institution of suit, defendant no.11 had died on 22.02.1988 and inadvertently defendant no.11 has been arrayed as party and by deleting the defendant no.11 from the array of the parties, the rights of contesting defendants are not prejudiced or affected in any way. He further contends that under Chapter 30 of Rule 35 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") there is a provision of caveat by a person to oppose the probate petition and mere impleadment of the defendant no.11 does not give her an indefeasible rights to contest the probate petition unless caveate has been entered by a person interested in opposing the probate petition. Thus, plaintiff is entitled for the prayer sought in the aforesaid application. In support of his contention he has placed reliance upon the judgement of Apex Court in the case of Razia Begum Vs. Sahebzadi Anwar Begum and others AIR 1958 SC 886.
12. Per contra, Sri Manish Dev Singh, learned counsel for the defendant no.2 contends that as per the proviso to Order 1 Rule 9 of C.P.C.1908, defendant no.11 being the real sister of deceased is a necessary party and, therefore, the suit is liable to be dismissed for non-joinder of the necessary party as plaintiff has sought to delete the defendant no.11 from the array of the parties. In support of his contention, he has placed reliance upon the judgements of Apex Court in the case of Bhagirath Vs. Ram Ratan, Amba Bai and Others Vs. Gopal and Others AIR 2001 SC 2003 and Ashok Transport Agency Vs. Awdhesh Kumar and Another 1998 (5) SCC 567.
13. Sri Om Prakash Pandey, learned counsel for the respondent/defendant contends that in the facts of the present case, Order 22 Rule 4(3) of C.P.C. comes into play and as the substitution application has not been filed within the period of limitation, the suit stands abated. He further placed reliance upon Section 295 of Indian Succession Act, 1925 (hereinafter referred to as "Act, 1925") to contend that procedure provided in C.P.C. shall be followed in deciding the probate petition and thus, by virtue of Order 22 Rule 4(3) of C.P.C., the suit stands abated.
14. Sri A.K. Rai, learned counsel for the defendant/respondent no.1 submits that defendant no.11 is a necessary party for effective adjudication of the case. Thus, on account of death of defendant no.11, the suit stands abated not only against defendant no.11 but also against all the defendants as their interests are enshrineable. In support of his aforesaid contention he has placed reliance upon the following judgements in the case of Punnoose Vs. K.V. Chacko and Others, AIR 1990 Kerala 352, Bibhuti Prasad Chaudhury and Others Vs. Mt. Pan Kuer and Others AIR 1930 Patna 488, and Full Bench judgement of this Court in the case of Mahendra Kaur Vs. Hafiz Khalil 1983 AWC 837 Alld.
15. Sri Mehrtora, learned counsel for defendant no.25 submits that proper course for the plaintiff is to implead the heirs of defendant no.11 as according to para 7 of plaint, defendant no.11 was the real sister of deceased Late Rani Revati Devi and had interest in the estate of deceased Late Rani Revati Devi.
16. I have considered the rival submissions of the parties and perused the record.
17. On the basis of the pleadings, the moot question which needs to be decided in this case is as to whether the provisions of Order 22 Rule 4(3) of C.P.C. are attracted in the facts of the present case.
18. It would be worth to have a glance at Order 22 Rule 4 (1) and (3) of C.P.C relevant in the context of present case and the same are extracted hereunder:-
"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 part and shall proceed with the suit.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant"
19. A bare reading of Order 22 Rule 4 (1) of C.P.C. indicates that the provisions of Order 22 Rule 4(1) would attract where any suit or proceedings is pending and the death of one or several defendants occurred during the pendency of the suit or proceedings.
20. The judgement of the Apex Court relied upon by the learned counsel for the plaintiff in the case of Razia Begum (supra) was delivered in a different fact situation, therefore, the said judgement is of no help to the plaintiff.
21. However, in the context of present case, It would be useful to notice the judgement of Apex Court in the case of Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya (Deceased) 2017 (9) SCC 700 wherein a suit was instituted by the appellant for setting aside the sale deed in respect of a parcel of land purchased by defendant no.7 who died prior to the institution of suit. The appellant (Pankajbhai) filed an application under Order 22 Rule 4 of C.P.C. to bring on record the legal heirs of defendant no.7. The application was dismissed by the trial court taking a view that Order 22 Rule 4 applies only when the party dies during the pendency of proceedings and not when the party dies prior to the institution of suit. Consequently, trial court dismissed the application under Order 22 Rule 4. After dismissal of the application under Order 22 Rule 4 of C.P.C., the appellant preferred an application under Order 1 Rule 10 of C.P.C. to bring the legal heirs of defendant no.7 on record which was also dismissed by the trial court on the ground that as application under Order 22 Rule 4 of C.P.C has been dismissed, the order passed in the said application shall operate as resjudicata and consequently, application under Order 1 Rule 10 C.P.C. Was dismissed as not maintainable. The order of the trial court dismissing the application of appellant under Order 1 Rule 10 of C.P.C. was affirmed by the High Court. Thereafter, appellant went in appeal before the Apex Court challenging the aforesaid two orders, and the Apex Court held that Order 22 Rule 4 of C.P.C. will apply in cases where defendant dies during the pendency of suit or proceedings but not in a case where defendant has died prior to the institution of suit or proceedings. Consequently, Apex Court held that order passed in application under Order 1 Rule 10 of C.P.C. would not operate as res-judicata as the only course open to the appellant was to move an application under Order 1 Rule 10 of C.P.C. to bring legal heirs of defendant no.7 on record. Paragraph 6 and 16 of the aforesaid judgement is extracted herein below:-
"6. The bare reading of Order 22 Rule 4 of the Code makes it clear that Order 22 Rule 4 of the Code applies only in the case where the death of one of the several defendants or the sole defendant occurs during the subsistence of the suit. If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code. Before proceeding further, it is relevant to note the provisions of Order 1 Rule 10 and Sections 151 & 153 of the Code, which read thus:
10.Suit in name of wrong plaintiff. - 1. Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court things just.
2. Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
3. No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
4. Where defendant added, plaint to be amended.- where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
5. Subject to the provisions of the India Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
151: Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
153: General power to amend - The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
16. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non- mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice."
22. Now coming to the judgements relied upon by Sri A.K. Rai, learned counsel for defendant no.1, none of the judgements do come in aid for the defendants. The judgement of Keral High Court in the case of Punnoose (supra) is a case where in a probate proceeding filed by the appellant (Punnoose), the respondents were impleaded as defendants. Respondents have received citations and were allowed to urge their contentions relevant to the proceedings and in the facts of the said case, High Court held that once respondents have been impleaded as defendants and they had received citation and were allowed to contest the proceedings, plaintiff cannot turn around and say that they shall not be allowed to file objection and if they file objection the contents of the objection in relation to will must be ignored and the proceeding shall be treated as non-contentious .
23. The order challenged in appeal before the Patna High Court in the case of Bibhuti Prasad Chaudhury (supra) was an order of District Judge, Patna whereby, he has rejected the appellant's (Bibhuti Prasad Chaudhury) application for revocation of grant of letter of administration of the estate of Ram Keshwar Prasad Chaudhury to the respondent no.1 Mt. Pan Kuer. In the said case respondent no.1 Mt. Pan Kuer applied for letter of administration with respect to a will alleged to have been executed by Ram Keshwar Prasad Chaudhury on 21st July, 1917. In the said proceedings, citation was issued to father of appellant (Bibhuti Prasad Chaudhury) and he contested the probate proceedings but lost. In that facts situation Patna High Court held that once a citation has been issued to the nearest agnatic relation and such person had unsuccessfully contested the application for grant of letter of administration of the testator's estate, the son of such person has no locus standi to apply for revocation of the letters of administration on the ground that there was no citation on him.
24. The full judgement of this Court in the case of Mahendra Kaur (supra) was a case where Full Bench was considering the correctness of decision of Division Bench of this Court in the case of Khalid Ahmad Vs. Additional District Judge, Gorakhpur and others. In the said case suit was filed by one Khalid against Jiwan Kaur and one Sardar Inder Singh restraining them for making any construction on the land in suit. Jiwan Kaur died during the pendency of suit. Plaintiff Hafiz Khalil did not move any substitution application and application to set aside the abatement within time prescribed by law. Thereafter, plaintiff Hafiz Khalil filed application under Order 22 Rule 4 of C.P.C. for substituting the heirs of Jiwan Kaur along with delay condonation application and also an application for setting aside the abatement. The trial court held that the plaintiff could not satisfactorily explain the delay and consequently, it dismissed the substitution application as well as application to set aside abatement. However, trial court relying upon the judgement in the case of Khalid Ahmad (supra) held that heirs of deceased Jiwan Kaur could be brought on record under Order 1 Rule 10 of C.P.C.,1908. When the matter came up before the Bench of this court, it doubted the correctness of the decision of this Court in the case of Khalid (supra) and referred the matter to the Larger Bench.
25. In the case of Mahendra Kaur (supra) the Full Bench was considering the scope of Order 22 Rule 4 of C.P.C. and Order 1 Rule 10 of C.P.C. and found that there is vital difference between Order 22 Rule 4 and Order 1 Rule 10 of C.P.C. The Court was of the view that since there is specific provision dealing with the substitution, abatement and setting aside the abatement under Order 22 Rule 4, therefore, it will exclude the general provisions of addition of party made in Order 1 Rule 10 of C.P.C.
26. The Judgement of Mahendra Kaur (supra) also speaks that proviso to Order 22 C.P.C. applies to cases of creation, transfer or devolution of interest during the pendency of a suit. Relevant portion of the aforesaid judgement is extracted herein below:-
"Order XXII of the Code of Civil Procedure applies to cases of creation, transfer or devolution of interest during the pendency of a suit. It is exhaustive of the manner in which persons who died during the pendency of the suit or appeal can be represented by their heirs and legal representatives. The stage at which Order XXII comes into play is when one of the litigants, necessary to the suit, is dead. Immediately after the expiry of 90 days of the death of such a person, the suits automatically abated. If the suit is one in which the "right to sue" does not survive, the death puts an end to the suit. If, on the other hand, it is a suit in which the "right to sue" survives, the death will not put an end to the suit."
...There is a vital difference between Order 1, Rule 10, and Order XXII, Rules 4 and 9 of the Code of Civil Procedure. Order 1, Rule 10, does not deal with substitution of heir and legal representative of a deceased. It confers power on the Court to implead or add a person as party or to strike down a person improperly joined, if the court finds it necessary for determination of the real matter in dispute. Order XXII, Rule 4, confers right on a plaintiff to bring on record the heirs and legal representatives of a deceased. If the right to sue does not survive, the suit shall come to an end and shall abate. The right conferred by Order 1, Rule 10, C.P.C., enabled the court to add a person as a party. Order 1, Rule 10, has a specific and limited purpose which is different from one contemplated by Rules 4 and 9 of Order XXII of the Code of Civil Procedure. The two provisions deal with different eventualities and contingencies. As already held above, it is one thing to file an application to implead certain persons as party to the suit in place of a deceased party under Order XXII, Rule 4, C.P.C., and it is entirely different to apply under Order 1, Rule 10, C.P.C., add a new party. The main difference is that the rights of the parties in one case would be altogether different than that of the party in the other case. A legal representative has the same status and rights as that of the deceased, whereas the rights and obligations of a person impleaded under Order 1, Rule 10, C.P.C., would not be circumstanced, and that he would be entitled to take any plea which he is advised to do.
...
What will follow from the above principle is that since there is a specific provision dealing with the substitution, abatement and setting aside the abatement in Order XXII, Rule 4, that would exclude the general provision of addition of party made in Order 1, Rule 10(2), of the Code of Civil Procedure".
27. The judgement of the Apex Court in the case of Pankajbhai (Supra) and the paragraphs of the Full Bench extracted above elucidates that provisions of Order 22 shall come into play when plaintiff or defendant dies during the pendency of proceeding or suit.
28. So far as the judgements of Apex Court relied upon by Sri Manish Dev Singh, learned counsel for defendant no.2 they are not applicable in the facts of the present case. The judgment of Bhagirath (supra) was also a case where one of the party in proceeding had died during the pendency of the suit and the second appeal arising out the suit proceeding was preferred against a dead person and in that context, Apex Court held that High Court could have not have proceeded against the heirs of dead person.The case of Amba Bai (supra) and Ashok Transport Agency (supra) have been rendered in a context where one of the parties to the suit died after the institution of the suit.
29. It is also relevant to point out that Order 22 Rule 4(3) would come into play only after the plaintiff has failed to file appropriate application within a period of limitation for substituting the legal heirs of defendant who has died during the pendency of the suit or any proceeding, and in the event of non filing of the aforesaid application, the suit stands automatically abated against the defendant. It is only when the suit is abated , the question of setting aside the abatement of suit shall arise.
30. In the instant case, it is not in dispute that the defendant no.11 had died prior to the institution of the suit, and on the date of death of defendant no.11, no suit or proceeding was pending, therefore, the application of the plaintiff for substituting the legal heirs of defendant no.11 was not maintainable.
31. Further, Order 22 Rule 4(1) and (3) of C.P.C. are inter dependent, and the provision of Order 22 Rule 4 (3) of C.P.C. would come into operation only when the provision of Order 22 Rule 4(1) of C.P.C. is applicable. In the present case, the suit would not abate as Order 22 Rule 4 (1) of C.P.C does not come into play for the reasons stated above, therefore there is no occasion for the plaintiff to file an application for setting aside the abatement.
32. The submission of learned counsel for the defendants that since the defendant no.11 was a necessary party and in the absence of heirs of defendant no.11, no effective order or decree can be passed is not relevant at this stage as the issue as to whether suit is bad for non joinder of necessary parties can be considered after exchange of pleading of parties at the time of determination of issues. It would be apposite to mention that it is the choice of the plaintiff to implead as many defendants he likes. However, if he has failed to implead necessary and proper party, he would run the risk of dismissal of suit on the ground of non-joinder of necessary party.
33. Thus, for the reasons given above, Civil Misc. Applications No.18 of 2018, 19 of 2018 and 20 of 2018 are allowed and the plaintiff is permitted to delete the defendants no.11, 15 & 20 from the array of the parties within a period of three days from today.
34. Since the Applications for deleting the defendants no.11, 15 & 20 from the array of parties are allowed, consequently, Civil Misc. Abatement Application No.7 of 2018 is dismissed.
Order Date :- 26.04.2019 Sattyarth