The Delhi High Court while adjudicating on the applications in a suit seeking partition opines that the scope of the suit shall be limited to ascertaining the rights between the original plaintiff and defendant and the scope cannot be extended to ascertain who will be the legal representative of the deceased party.
Brief Facts:
Smt. Vinita Verma, the original Plaintiff had filed a suit seeking partition in 2014. Defendant No.1 is the brother of Plaintiff, and the Defendant No. 2 is the sister of the Plaintiff.
The said property in the suit belonged to the mother of the parties who expired intestate leaving the three parties (Plaintiff, Defendants No.1 and 2) as Class – 1 legal heirs.
It was alleged by Defendant No.1 that under a family settlement between Defendant No.1 and his mother, Defendant No.1 was made the joint owner of the said property and therefore, at best Plaintiff is entitled to 1/3rd share in the 50% of the property owned by their late mother.
In 2019, Smt. Vinita Verma expired and subsequently, her two children filed applications under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) as her legal heirs. The said applications were allowed and hence, the children were impleaded as legal heirs being Plaintiff No.1 (i) and Plaintiff No.1 (ii).
In 2021, Defendant No.1 passed away without leaving any Class – 1 legal heirs, and hence, 2 applications were filed to be impleaded as legal representatives of Defendant No.1. One application was filed by Defendant No.2 who claims to be the only Class-2 legal heir, and another was by Plaintiff No.1 (ii) on basis of a registered will wherein the Defendant No.1 had bequeathed the suit property in favour of the Plaintiff No.1 (ii).
Contentions of Defendant No. 2:
It was alleged by Defendant No.2 that the will relied on by Plaintiff No.1 (ii) is suspicious as the signature of the Defendant No.1 does not match the signature on the pleadings. It was also argued that Defendant No.1 was severely ill and was not in a position to visit the Sub-Registrar’s office for registration of will. Based on this, it was contended that only Defendant No.2 should be impleaded as the legal representative of Defendant No.1.
Contentions of Plaintiff No. 1 (ii):
It was contended that the will is validly made by Defendant No.1 in the favour of Plaintiff No.1 (ii) and to further ascertain the validity, an issue may be framed in regard to the same. It was further argued that Order XXII Rules 4 and 5 of CPC are mandatory and hence, the Court first has to determine the legal representatives of the deceased before continuing with the suit.
Observations of the Court:
Concerning Order XXII Rule 5 of CPC, the Court observed that the scope of enquiry under this provision is summary in nature and the determination of the legal representative would not confer the representative with any right to the subject property.
It was remarked by the High Court that the suit is filed for partition between the original Plaintiff and Defendants. The scope of the suit cannot be expanded to ascertain the inter-se rights of the legal representatives of Defendant No.1 (deceased). The only way to determine this is by filing an independent suit. If Plaintiff No.1 (ii) is allowed to claim the estate of Defendant No.1, then in effect it would be equivalent to a trial within a trial and the same is not legally permissible.
The Bench, in the present case, allowed both Defendant No.2 and Plaintiff No.1 (ii) to represent Defendant No.1 in the suit. However, since the situation would get peculiar, the Court transposed Plaintiff No.1 (ii) as a Defendant.
The decision of the Court:
The Delhi High Court unequivocally held that such an arrangement would not create any special rights in favour of Plaintiff No.1 (ii). It was held that the scope of the suit would be limited to determining the rights of the original Plaintiff and Defendants. Accordingly, the application was disposed of.
Case Title: Vinita Verma v. Virender Katarmal & Anr.
Coram: Hon’ble Mr. Justice Amit Bansal
Case No.: CS(OS) 3409/2014
Advocates for Plaintiff: Adv. Mr. Arun Sri Kumar
Advocates for Respondent: Advs. Mr. Praveen K. Sharma, Mr. Sameer Rai, Ms. Vishakha Gupta
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