Full Text
Date of Decision: 16th November, 2022
R-10 of CPC)
VINITA VERMA ..... Plaintiff
Through: Mr.Arun Sri Kumar, Advocate.
Through: Mr.Praveen K. Sharma and Mr.Sameer Rai, Advocates for plaintiff no.1(ii) and applicant in
Ms.Vishakha Gupta, Advocate for D-2.
CPC)
JUDGMENT
1. These are two separate applications filed on behalf of the plaintiff 1(ii), one of the legal heirs of the original plaintiff and the defendant no.2 for being impleaded as legal heirs of the defendant no.1, who is stated to have expired on 13th August, 2021.
2. To appreciate the controversy between the parties, it may be relevant to consider the following facts:
2.1. The present suit was instituted by Smt. Vinita Verma, the original plaintiff, in the year 2014 seeking relief of partition along with other ancillary reliefs.
2.2. The defendant no.1 (since deceased), was the brother of the plaintiff and the defendant no.2 is the sister of the plaintiff.
2.3. The immovable property, F-1/6 Hauz Khas Enclave, New Delhi (suit property) belonged to the mother of the parties, late Smt. Usha Katarmal, who is stated to have expired intestate on 1st April, 2013, leaving behind the original plaintiff and the defendants as her only Class-I legal heirs. Accordingly, the plaintiff claimed 1/3rd share in the aforesaid property.
2.4. In the written statement filed on behalf of the original defendant no.1, it has been pleaded that a family settlement was arrived at between the family members, whereby the defendant no.1 and his mother, late Smt. Usha Katarmal, were made joint owners of the aforesaid suit property. Therefore, the plaintiff can at best be entitled to 1/3rd share in the 50% share of her mother, late Smt. Usha Katarmal, and the defendant no.1 was entitled to 66.66% share in the suit property after the demise of his mother.
2.5. The original plaintiff expired on 11th March, 2019 and thereafter, two separate applications were filed under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (CPC) by her two children for implement as her legal heirs.
BANSAL
2.6. The aforesaid applications were allowed vide order dated 29th March, 2022 passed by this Court, whereby both her children, Mr. Amit Verma (son) and Mrs. Radhika Verma (daughter) were impleaded as legal heirs of the plaintiff, being plaintiff no.1(i) and plaintiff no.1(ii) respectively.
2.7. Subsequently, the defendant no.1, who did not have any Class-I legal heirs expired on 21st July, 2021 and the present applications were filed on behalf of the plaintiff no.1(ii) and the defendant no.2 for being impleaded as legal representatives of the defendant no.1.
2.8. The defendant no.2 seeks impleadment as legal representative of the defendant no.1 on the basis that the defendant no.1 expired intestate, without leaving behind any Class-I heirs with defendant no.2 being the only Class-II legal heir.
2.9. Plaintiff no.1(ii) has filed the application as the legal representative of the defendant no.1 on the basis of a registered Will dated 5th April, 2021, in terms of which the defendant no.1 had bequeathed the suit property in favour of the plaintiff no.1(ii).
3. Counsel for the defendant no.2 submits that the purported Will of the defendant no.1 propounded by the plaintiff no.1(ii) is surrounded by suspicious circumstances as the signatures of the defendant no.1 on the said Will do not match the signatures of the defendant no.1 on the pleadings filed in the present suit. Further, the defendant no.1 was suffering from severe ill health and was not in a position to visit the office of the Sub-Registrar for registration of the said Will. Therefore, in terms of Order XXII Rule 5 of the BANSAL CPC, the defendant no.2 alone should be impleaded as a legal representative of the deceased defendant no.1. Counsel for the defendant no.2 has placed reliance has been placed on the following judgments: i. Mahanath Satyanand v. Shyam Lal Chauhan, (2018) 18 SCC 485; ii. Jaladi Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521
4. On behalf of the plaintiff no.1(i), it has been submitted that the plaintiff no.1(ii) is already impleaded as the legal representative of the original plaintiff and therefore, the plaintiff no.1(ii) is bound by the pleadings of the original plaintiff in the present suit. Defendant no.1, in his written statement, has taken a stand at variance with the stand of the plaintiff. The plaintiff no.1(ii) cannot be permitted to wear two hats and take a position at variance with the pleadings of the original plaintiff. In the event that the plaintiff no.1(ii) is permitted to be impleaded as legal representative of the defendant no.1, her stand would be contradictory to that of the original plaintiff. Reliance is placed on the judgment in Sushila Yadav v. Lt. Col. Gaj Singh Yadav & Ors., 2012 SCC OnLine Del 5044.
5. Per contra, counsel for the plaintiff no.1(ii) submits that the registered Will dated 5th April, 2021 has been validly made by the defendant no.1 bequeathing the suit property to the plaintiff no.1(ii). He further submits that an issue may be framed in the present suit with regard to the validity of the said Will. In terms of the judgment of the Supreme Court in Jaladi Suguna (supra), provisions of Order XXII Rules 4 and 5 of the CPC are mandatory and the Court has to first make the determination as to the legal representatives of the deceased before proceeding further with the suit.
6. It is further submitted that there is no conflict with the plaintiff BANSAL no.1(ii) being a plaintiff in the present suit as well as the legal representative of the defendant no.1.
7. I have heard the counsels for the parties.
8. The scope of enquiry under Order XXII Rule 5 of the CPC is summary in nature and restricted to the limited purpose of substituting the legal representative of the deceased defendant in order to sufficiently represent his estate. In Jaladi Suguna (supra), the Supreme Court has observed that determination as to who is the legal representative under Order XXII Rule 5 of the CPC would be only for the limited purpose of representation of the estate of the deceased in the adjudication of that case. The said adjudication would not confer on the said legal representative any right to the property which is the subject matter of the suit vis-à-vis other rival claimants to the estate of the deceased.
9. The judgment in Jaladi Suguna (supra) was followed in Suresh Kumar Bansal v. Krishna Bansal, (2010) 2 SCC 162, wherein the Supreme Court has held that the determination as to who is the legal representative of a deceased plaintiff or defendant under Order XXII Rule 5 of the CPC is only for the purposes of bringing the legal representative on record and for conducting of the legal proceedings and does not operate as a res judicata. It was further observed that the inter se dispute between the rival claimants has to be independently tried and decided in probate proceedings.
10. In Sushila Yadav (supra), this Court was seized of a similar issue wherein there were two rival sets of defendants to the estate of the deceased defendant, who were already impleaded as defendants in the suit. One of the BANSAL claimants sought impleadment on the basis of a Will in his favour and the other set of claimants sought impleadment on the basis that they were Class- I legal heirs of the deceased. The trial court took on record both the set of rival claimants and observed that the inter se dispute between the legal representatives cannot be adjudicated in the present suit and both parties would have a right to establish their claim over the share of the deceased defendant before an appropriate forum. The aforesaid order of the trial court was upheld by a Co-ordinate Bench of this Court holding that that the proper course to follow was to bring on record all the legal representatives. The relevant observations of the Court are set out below: “…Following the proceeding of proving of the Will by the petitioner in the instant suit would amount to a trial within a trial and which is not permissible. In view of Charanjit Singh (Supra) the proper course to follow is to bring all the legal representatives on record so that they vouchsafe the estate of the deceased for ultimate benefit of the real legal representatives. The question about the genuineness or the validity of the Will cannot be decided in the instant suit. I do not see any infirmity or illegality in the impugned order of the learned ADJ.”
11. The present case has been filed seeking partition in respect of the estate of late Smt. Usha Katarmal, who was the mother of the original plaintiff, defendant no.1 and defendant no.2. Therefore, the scope of the suit is restricted to determining the respective shares of the original plaintiff and the original defendants. The scope of the suit cannot be expanded so as to determine the inter se rights of the legal representatives of the deceased defendant no.1 in respect of the estate of defendant no.1. That can only be adjudicated by way of independent legal proceedings and cannot be made the subject matter of the present suit. In the event the plaintiff no.1(ii) seeks BANSAL to lay a claim over the estate of the defendant no.1 on the basis of a Will, independent proceedings would have to be filed for the same and it cannot be decided in the present suit. Permitting a legal representative to prove the Will in the present suit would amount to trial within a trial, which is not permissible. This would also delay the trial in the present suit, which was filed in 2014.
12. The dicta of the Supreme Court in Mahanath Satyanand (supra) and Jaladi Suguna (supra) to the effect that the court has to make a determination of a legal representative under Order XXII Rule 5 of the CPC before proceeding further with the suit, would not be applicable in the present case as in the said cases before the Supreme Court, the legal representatives of the deceased were not already parties in the proceedings therein. Therefore, an inquiry under Order XXII Rule 5 of the CPC was required to be conducted before the proceedings could progress. This is not the case here as both the rival claimants are already parties in the suit and can sufficiently protect the interest of the estate of the deceased defendant no.1.
13. Therefore, both the plaintiff no.1(ii) and the defendant no.2 are taken on record as the legal representatives of the deceased defendant no.1. Both shall be entitled to represent the estate of the defendant no.1 for the adjudication of the present suit. However, this would create a peculiar situation since different positions have been taken by the original plaintiff in the suit and the deceased defendant no.1 and the defendant no.2 in their respective written statements. The question that would arise is as to how the parties would lead evidence in the present situation. Counsel for the plaintiff BANSAL no.1(i) submits that the plaintiff no.1(ii) should not be permitted to lead evidence in a manner that would compromise the case of the original plaintiff. Defendant no.2 has filed her own written statement and is bound by the same. On the other hand, the counsel for the plaintiff no.1(ii) submits that the plaintiff no.1(ii) be transposed as a defendant so as to represent the interest of the deceased defendant no.1. Accordingly, in the facts and circumstances of the present case, it is deemed appropriate that the plaintiff no.1(ii) is transposed as a defendant.
14. In view of the aforesaid, it is directed that the plaintiff no.1(i) shall lead evidence on behalf of the original plaintiff, the plaintiff no.1(ii) shall lead evidence on behalf of the defendant no.1 and the defendant no.2 shall lead evidence in terms of the written statement filed by her. This arrangement has been worked out only for the purposes of conduct of a smooth trial in the suit and will not create any special rights in favour of the plaintiff no.1(ii) in respect of the suit property. It is reiterated that the scope of the suit would be confined to determining the inter se rights of the original plaintiff and the defendants no.1 and 2. The scope shall not be expanded to determine the inter se rights of the plaintiff no.1(ii) and the defendant no.2 from the share of the deceased defendant no.1, for which both the plaintiff no.1(ii) and the defendant no.2 shall have the right to initiate separate legal proceedings in accordance with law.
15. The applications stand disposed of in above terms. CS(OS) 3409/2014
16. In terms of the order passed above, amended memo of parties be filed by the plaintiff no.1(i) within two weeks. Both the plaintiff no.1(ii) and the BANSAL defendant no.2 shall be shown as the legal representatives of the defendant no.1.
17. List before the Joint Registrar on 16th January, 2023. AMIT BANSAL, J NOVEMBER 16, 2022 BANSAL