Tarun Vedi v. Sudershan Vedi

15. It is further submitted that the petitioner has intentionally not placed on record the Will of Sh. K.K. Vedi dated 9th May 2000, whereby the suit property was entirely bequeathed to the deceased plaintiff and the Will of the deceased plaintiff dated 1st March 2018, whereby a portion of the suit property was bequeathed to the respondent. It is further submitted that the concealment is fatal to the present revision petition thereby, making the petition liable to be dismissed.

16. It is further submitted that the respondent was bequeathed 50% ownership in the said property and was allowed to continue in the suit to its logical conclusion thereby establishing the respondent‟s right to sue.

17. Learned counsel for the respondent relied on the judgment of the Hon‟ble Supreme Court in Kedar Lal vs. Babu Lal Vyas & Ors., (2003) 9 SCC 624, wherein the Court held that the right to sue exists in a person in whose favour a Will has been executed by a deceased party. The relevant portion has been reproduced hereinbelow:

21. Learned counsel appearing on behalf of the respondent opposed the reliance placed by the petitioner on the judgment of the Hon‟ble Supreme Court in Paras Ram Gupta by LRs vs Ram Asrey (Supra) and submitted that the portion relevant to this case, to argue that the respondent has been rightly impleaded as a legal representative, is re produced hereinbelow:

22. It is also submitted that despite the claim of the petitioner that the legal representatives of a POA holder cannot be impleaded under Order XXII Rule 3, the respondent is still rightfully impleaded since she has an interest in the suit property by virtue of the Will dated 1st March 2018.

23. It is further submitted on behalf of the respondent that the case of the respondent rests on the Wills dated 9th May 2000 and 1st March 2018 whereas the petitioner is misleading the Court by arguing that POA confers a personal right and legal representatives cannot be impleaded. It is further submitted that the suit from which the impugned order arises was filed in 2010 and continued till 2019, till the demise of the deceased plaintiff. It is submitted that no objections were taken by the petitioner in this regard at that time.

24. Hence, in view of the foregoing submissions, the respondent seeks that this Court be pleased to dismiss the said revision petition thereby upholding the impugned order.

ANALYSIS AND FINDINGS

25. Heard learned counsel appearing on behalf of the parties and perused the record.

26. It is submitted on behalf of the petitioner that no right to sue survives on the legal representatives of a POA holder. Per contra, it is submitted on behalf of the respondent that the suit property was bequeathed in favour of the deceased plaintiff by Sh. K.K. Vedi and in turn the respondent was bequeathed half of the property by the deceased plaintiff making the respondent a legal heir, allowing her to continue the suit to its logical conclusion and providing her a right to sue.

27. It is relevant at this stage to reproduce Order XXII Rule 3 of the Civil Procedure Code. It lays down as under:

28. At the outset, it is relevant for this Court to appreciate the intent of Order XXII of the CPC. The object of Order XXII is the continuation and culmination, in an effective adjudication and not to retard the proceedings, and the rights of the parties involved. Since, Order XXII is a procedural tool, the same is to be interpreted flexibly as to render substantial and real justice to the parties. It is trite law that procedure is the handmaid of justice and should not hamper the cause of justice. This intent behind Order XXII was explained by the Hon‟ble Supreme Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272. The relevant paras has been reproduced herein: “Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not interdependent upon one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and nonsuit the others as well.”

29. After perusing the abovementioned contentions, and the intent of Order XXII, it is relevant for this Court to consider whether the respondent is a legal representative for the purposes of continuing the suit in the present case. The term „legal representative‟ has been defined under Section 2(11) of the CPC. The definition is reproduced herein: “"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 a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.”

30. The Karnataka High Court in Vrishendramani v. Venugopal Rai, 1994 SCC OnLine Kar 279, has provided an expansive interpretation to the term „legal representative‟ and has observed that the inheritance is a legal and fictitious continuation of the personality of a dead man and a legal representative assist in the representation of that personality. The relevant passage has been reproduced herein:

31. In the case of Manranjan v. Rani Brijraj, 1946 SCC OnLine Pat 275, the Patna High Court has held that the estate is said to be sufficiently represented if one or more heirs are impleaded in the suit in a bona fide manner without any element of fraud, and collusion. The Court observed that: “Chowdhury Mahabir Singh v. Musst. Motirani Kuar [(1917) A.I.R. (Pat.) 432.], Keshavasami Iyar v. A.L.R. Narayanan [(1912) 18 Ind. Cas. 632.], Sri Gaja Rati Radhamani Gam v. Maharani Sri Pusapati Alakarajswari [(1890) L.R. 19 Ind. App. 184.] and Gouri Nath Kakaji v. Musst. Gaya Kuer [(1928) 10 Pat. L.T. 199, P.C.] to establish that when there are several widows succeeding to the estate 1, or several co-administrators administering the estate or several co-legatees entitled to the estate, they must all join together in order to affect the parent estate by any transaction of their own and if any one of them is omitted from the transaction concerned, the transaction does not bind the estate. He has also relied upon a decision of the Madras High Court in Rathnammal v. Sundaram Achari [(1933) A.I.R. (Mad.) 508.] in which it was held that if a decree for a debt due to the deceased debtor is passed against one of her representatives having a life-estate and the other representatives though originally impleaded are subsequently expunged or exonerated from the liability the decree passed against the representative with a limited interest cannot be executed against the others. In reply the learned Counsel appearing for the respondent, Mr. Jha cites Muttyjan v. Ahmad Ali [(1882) I.L.R. 8 Cal. 370.], Dinamoni Chowdhurani v. Elahadut Khan [(1904) 8 Cal. W.N. 843.] and Musst. Daropdi v. Musst. Sada Kuer [(1913) 22 Ind. Cas. 242.] in which it has been held that some of the heirs may under certain circumstances represent the entire estate. In the view that I am going to take with, regard to the interpretation of the decree as it stands it is not necessary for us to give any final opinion, upon these respective propositions of law; but in view of the length of argument advanced by learned Counsels at the Bar, I feel constrained to say that the true rule consists in that where one or more heirs out of many is impleaded as being solely in possession of the properties of the deceased and it is so done bona fide without any element of fraud, or collusion, the estate can be held to have been sufficiently represented even though all the co-heirs are not brought on the record. Of course the decisions vary on account of the varying facts and circumstances in which the decree was passed. Learned Counsels for both sides have also cited a large number of authorities in order to help us to come to a decision as to whether the rule of primogeniture prevails in this estate. Learned Counsel for the appellant has cited Rani Brijraj Kumari v. Rambilas Singh [(1944) Pat. W.N. 137.], a decision relating to this very estate, in which this Court has come to the conclusion that the estate is not governed by the rule of primogeniture in matters of succession. He has also placed before us two unreported decisions which proceed on the same basis. It has been represented to us that the decision which has been reported in 1944 P.W.N. 137 is now under appeal to the Privy Council. As against that Mr. Jha appearing for the other side has cited: Babu Gunesh Dutt Singh v. Maharaja Moheshwar Singh [(1855) 6 Moo. I.A. 164.], Fanindra Deb Raikat v. Rajeswar Das alias Jogindra Deb Raikat [(1884) L.R.

55 Ind. App. 45.]. He relies upon these decisions to show the futility of the logic and the reasoning advanced in the decision reported in 1944 P.W.N. 137 in view of the observations of the Privy Council. He relies upon several passages which are to the effect that if for a large number of years—say 200 years— an estate has been handed down from generation to generation to a single heir that would be a circumstance furnishing a very cogent proof of impartibility and urges that in the face of this expression of opinion of the Privy Council it cannot be held to be correct that in this particular case the very circumstance of its descent to one single heir for a large number of generations is not sufficient to establish impartibility. The argument is no doubt fallacious. The mere fact of descent to a single person without more has never been held by the Judicial Committee to establish primogeniture beyond all reasonable doubt. There may be cases in which on such descent, the rival heirs might have been sufficiently compensated thereby preventing them from advancing their claims or some testamentary disposition may have intervened or there might be similar other circumstances preventing the estate from descending to more than one heir. Therefore, it will be difficult for us to come to any final decision on argument furnished on the basis of the authorities cited by Mr. Jha to pronounce that the decision reported in 1944 P.W.N. is not correct. At any rate it is not necessary for us to come to any decision because for the purposes of determining whether the decree binds the estate in the hands of the junior Rani, we assume that the senior Rani did represent the estate at the time.”

32. The Hon‟ble Supreme Court in the case of Jaladi Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521 and Kedar Lal vs. Babu Lal Vyas & Ors., (2003) 9 SCC 624, has clearly held that a legatee under a will, who intends to represent the estate of the deceased testator is an intermeddler with the estate of the deceased and hence, will be a legal representative. The relevant paragraph has been reproduced herein:

33. From the foregoing precedents and discussions, this Court is of the view that the since, the respondent has a Will dated 1st March 2018 executed in her favour, she can be said to be a legal representative of the deceased plaintiff, under the ambit of Section 2(11) of the CPC and hence, the right to sue survives with the respondent. There is no need for this Court to delve into the question of the survival of right to sue on the death of the POA holder as the presence of a Will dated 1st March 2018 and 9th May 2000, negates the relevance of a POA. The learned Trial Court has correctly appreciated this point of law when it stated that the cause of action survives to the legal representatives, as they can assert the same right as the deceased plaintiff. The learned Trial Court correctly observed that: “The term legal representative as defined under section 2 (11) CPC means a person who in law can represent the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. it further includes a party upon whom the estate would devolve upon the death of the patty so suing or being sued. ln this regard, the law is settled that it shall include a person who seeks to represent the estate of a deceased person on the basis of any oral wishes/written instrument including a Will in favour of such a person. Further, right to sue means that the cause of action upon which the suit was originally filed by the deceased plaintiff/defendant the same is still existing upon the LRs of the deceased and the LRs of the deceased may assert their rights in the same relief which was claimed by the deceased party at the time of his/her death.”

34. It is important for this Court to clarify that the object of Order XXII is to carry out the suit and not with the effect of conferring any right of heirship to the parties. The order passed on an application filed under Order XXII cannot be said to be on the merits of the case and hence, the order of substitution does not make the legal representative an heir to the property of the deceased. The Himachal Pradesh High Court has used this line of thought in the case of Suraj Mani v. Kishori Lal, 1976 SCC OnLine HP 16, wherein it held that:

35. This Court cannot delve into the merits of the case in an application filed under Order XXII Rule 3 of the CPC. The validity of the Will dated 1st March 2018 and the Will dated 9th May 2000, made in the favour of the deceased plaintiff will be tested on the anvil of evidences led by the parties during the trial. Further, since it is not a mandate in Delhi to get the will registered or probated, the same cannot interfere in the respondent‟s path to be substituted as legal representatives of the deceased plaintiff. The learned Trial Court has rightly perused the Wills and rightly held that the application is based on the right to sue, the aspect of entitlement to the claim cannot be adjudicated at this stage and the same will be determined at time of the examination of the merits of the case. The learned Trial Court observed that: “Since, the main question of survival of right to sue in the applicant is revolving around the fact that whether the plaintiff would have ultimately been entitled to the relief claimed. having regard to the merits of the case upon the appraisal of the evidences. Hence, it cannot be said that the right to sue is not surviving in the applicant, in as much as the applicant is not merely a legal representative but also a legal heir to the deceased plaintiff upon whom the deceased plaintiff had bequeathed her entire estate vide Will dated 01.03.2018, which has not been challenged by the defendant/any of the legal heirs of the deceased plaintiff. Further, Will need not be registered or probated in NCT of Delhi. Whether the parties would be ultimately entitled in their claim or defence as the case may be-can only be determined having regard to the merits of this case and same is not the considering factor at the time of deciding an application under Order 22 Rule 3 CPC. It is further clarified that answering an application under Order 22 Rule 3 CPC only amounts to the fact that the suit may be represented by the person so allowed and it does not amount to any declaration or conferring of any rights or liabilities upon any of the party to the suit. ln view of the same, the application of the applicant seeking impleadment under Order 22 Rule 3 CPC stands disposed off as allowed and let Ms. Amita Vashisth be impleaded as the LRs of the plaintiff in the present matter. Since Mr. Jayant Vedi has notice of matter and chose not to appear and Ms. Kavita Vedi has given her statement on oath, let Sh. Jayant Vedi and Kavita Vedi be impleaded as proforma defendants in as much as the main dispute, even as per the contents of the Will on the face of it ultimately remains between Ms. Amita Vashisth and defendant.”

36. It is relevant at this stage, for this Court to discuss, the scope and ambit of the revisional powers under Section 115 of the CPC. Section 115 of the CPC confers a supervisory power to this Court with the main aim of keeping superintendence. The scope of intervention by this Court is minimal and only to keep the illegal order of a Trial Court at bay. The intent of Section 115 has been explained by the Hon‟ble Supreme Court in the case of ITI Ltd. v. Siemens Public Communications Network Ltd., (2002) 5 SCC 510, wherein the Court observed that:

37. The Hon‟ble Supreme Court in the case of Michael Mascarenhas v. John Mascarenhas, 1996 SCC OnLine Kar 222 has explained the conditions for the invocation of Section 115 the CPC. The Court has explicitly stated that every order cannot be intervened by the revisional Court. The Court has to satisfy that the Courts below have either failed to exercise their jurisdiction, exercised a jurisdiction not vested in them or acted in an illegal or irregular manner. The relevant paragraphs have been reproduced herein: “3B. There could be no dispute that the revisional powers or this Court under Section 115 CPC. cannot be invoked unless the following conditions exist: (1) There must be a case decided by a Court; (2) The Court deciding the case must be subordinate to the High Court, and (3) No appeal must lie (to the High Court) against the decision; and (4) In deciding the case, the subordinate court must appear to have a) exercised a jurisdiction not vested in it by law, or b) failed to exercise a jurisdiction vested in it by law, or c) acted in the exercise of its jurisdiction illegally or with material irregularity. xxx xxx xxx

8. In this context, it is useful to refer to the observations made by the Supreme Court [(1969) 2 SCC 201: AIR 1970 SC 406.], which reads as under:— “A case may be said to be decided if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of CPC.””

38. Enumerating the limited scope of the revisional Court in exercising jurisdiction under Section 115 of the CPC, the Bombay High Court in Shripat Chaituji Mahajan v. Sanjay Radheshyam Jaiswal, 2001 SCC OnLine Bom 1020, has noted that the revisional Court cannot strike at the findings arrived by the subordinate Courts. The power of the revisional Court is certainly limited in comparison to an appellate Court. The Court observed that:

39. The Hon‟ble Supreme Court in the case of Prem Bakshi v. Dharam Dev, (2002) 2 SCC 2, has settled the law and has finally concluded that the revisional Court will intervene in the orders of the subordinate Courts only when there is failure of justice and irreparable injury being caused to the party concerned. The Court observed that:

40. Hence, from the foregoing discussions it is clear that this Court has a limited scope of interference under Section 115 of the CPC. The Court‟s interference is needed only when the order of the subordinate Court lacks jurisdiction or is ridden with irregularity or illegality as to cause failure of justice or irreparable injury to the rights of the parties concerned. The learned Trial Court, in a reasoned order, has correctly applied the law and has rightly allowed the impleadment application of the respondent.

41. From the perusal of the documents on record, it is clear that the respondent is a legal representative of the deceased plaintiff owing to the Will dated 1st March 2018, executed by the deceased plaintiff herself. This Will has not been challenged by the petitioner/defendant. Further, as far as the title of the deceased plaintiff is concerned, this Court is of the view that, prima facie, the Will dated 9th May 2000, confers a right to the deceased plaintiff which has been further transferred to the respondent by the deceased plaintiff bequeathing her property in the name of the respondent. Hence, the right to sue does not die with the deceased plaintiff. The same survives to her legal representatives, respondent in this case. The POA will not deter the respondent from contesting the suit as the title to the property in the present case derives from the Will dated 9th May 2000, executed by Late Sh. K.K. Vedi in favour of the deceased plaintiff.

42. This Court has not gone into the merits of the case and has not delved into the authenticity of the Wills. The same may be proved or disproved at the correct stage during the trial. Further, this Court has not adjudicated upon the POA and whether the right to sue survives on the legal representatives of the POA holder as the presence of Wills dated 9th May 2000 and 1st March 2018, negates the necessity of POA in the present case.

43. In view of the discussions in foregoing paragraphs, this Court does not find any cogent reasons to interfere in the impugned order dated 29th April, 2023 passed by the Civil Judge, West Delhi, Tis Hazari Courts. Accordingly, the instant petition, being devoid of any merits, stands dismissed along with pending applications, if any.

44. The order be uploaded on the website forthwith.