Court No. - 36
Case :- WRIT - C No. - 40365 of 2013 Petitioner :- Reet Ram And 5 Others Respondent :- Sukh Pal And 4 Others Counsel for Petitioner :- L.P. Singh,Pramod Kumar Sharma Counsel for Respondent :- Pradeep Kumar Rai
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
The present petition is directed against the order dated 29.01.2013 passed in Original Suit No.46 of 1987 (Moti Ram Vs. Reet Ram & others) as also the order dated 03.05.2013 passed in Civil Revision No.66 of 2013 (Reet Ram & others Vs. Sukhpal & others). By means of the orders impugned, the substitution application filed by the opposite parties nos.1 to 4 for their substitution as legatees of the deceased-plaintiff has been allowed.
The ground of challenge raised in the present petition is that the Wills dated 15.06.1987 and 27.12.1990 are forged documents. The testator/plaintiff had no right to execute the Wills after he had sold the suit property through the registered sale deed dated 09.12.1986. It is contended by the learned counsel for the petitioner that in case of any objection with regard to the representation of the deceased/plaintiff or defendant, it is incumbent upon the Court to determine the said dispute under Rule 5 of Order 22 of the Code of Civil Procedure after taking evidence on record and returning a finding/reasoning thereon.
It is contended that in the instant case, the trial court had mechanically allowed the substitution application. No determination has been done under Order 22 Rule CPC as to whether the applicants had right to represent the estate of the plaintiff and, thus, have a right to be substituted or not. Reliance is placed upon the judgement of the Apex Court in Dashrath Rao Kate Vs. Brij Mohan Srivastava reported in 2010 (1) SCC 277 to submit that the question of representation on the basis of Will has to be determined by making a full-fledged enquiry with regard to the correctness of the Will i.e. after taking evidence of the attesting witnesses of the Will and their thorough cross examination by the defendants.
Learned counsel for the respondent, on the other hand placing reliance upon the judgements of this Court in Brahmn Dev Lal Vs. Somwati Awasthi (Now Deceased) & others reported in 2017 (120) ALR 9 and of the Apex Court in Suresh Kumar Bansal Vs. Krishna Bansal reported in 2010 AIR SC 344 and Jaladi Suguna Vs. Satya Sai Central Trust & others reported in 2008 (8) SCC 521 submits that the enquiry into the matter of representation of the estate of the deceased i.e. substitution of the legal representatives has to be done in case of any rival claim of the parties in accordance with the proviso to Rule 5 of Order 22. Moreover, the said enquiry is only summary in nature so as to find out as to who shall represent the estate of the deceased and would have a right to sue for the limited purpose of adjudication of that case. The question as to whether the deceased-plaintiff had a right to execute the Will can not be adjudicated before the civil court, in as much as, the question therein as to the validity of the sale deed dated 09.12.1986 allegedly executed by the plaintiff in favour of the defendant.
Having considered the submissions of learned counsel for the parties and perused the records, relevant is to note that the instant suit namely original suit no.46 of 1987 was filed by Moti Ram against 6 defendants/petitioners herein. The relief sought in the said suit is for declaration of the sale deed dated 09.12.1986 registered on 18.12.1986 as null and void document. During the pendency of the said suit, Moti Ram was murdered on 26.08.1992. He was unmarried. The question, therefore, arose as to who shall represent the estate of the deceased Moti Ram. The applicants filed substitution application on the ground that the plaintiff Moti Ram executed two Wills dated 15.06.1987 and 27.12.1990 bequeathing his entire immovable property in favour of the applicants. They sought to be impleaded as tenure holders of the suit property being legatees under the said Wills.
The objections taken by the defendant is regarding the rights of the applicant to seek substitution on the basis of the said Wills on the ground that the plaintiff testator had no right to execute Wills after execution of the sale deed under challenge in the instant suit.
In the said scenario, the objections raised by the defendants with regard to the correctness of the Will cannot be made subject matter of enquiry under Order 22 Rule 5 CPC in as much as, there is no rival claim of any other person to represent the estate of the deceased being his natural heirs or legal representatives. The defendants are claiming their right on the basis of the sale deed, correctness of which is subject matter of the suit filed by the testator/original owner. The right of the opposite parties substituted on the basis of the Will, is only to represent the estate of the deceased so as to get adjudication on the correctness of the sale deed. The question as to whether the testator had a right to execute the Wills after execution of the sale deed in question, would not arise for adjudication in the instant matter at all, in as much as, in case the sale deed is declared void for the plea taken in the suit, the property subject matter of suit would devolve upon the substituted plaintiffs by virtue of the Will.
In case, the opposite parties are not allowed to be substituted as legatees in the suit seeking cancellation of the sale deed in favour of the defendant, the result would be that the challenge to the correctness of the sale deed would fall as it is, as there would be no one to challenge the correctness thereof.
Even otherwise, the enquiry under Order 22 Rule 5 CPC is summary enquiry and is restricted to the right of the applicant to seek impleadment as legal representatives of the deceased for determination as to the right of representation of the estate of the deceased. The said determination is only for the purpose of the pending proceeding before the Court before whom substitution/implementation is sought and shall not in no way affects the right of the claimants to the estate of the deceased or the adjudication of any dispute among them in any independent proceeding.
The order of allowing substitution application by the court below, therefore, would not affect the rights of the defendants, in case, they succeed in the instant case.
For the aforesaid, no infirmity is found in the orders impugned. The present petition is, accordingly, disposed of.
Order Date :- 11.10.2018 Himanshu