Premsukh Mansukh Sancheti And ... vs Rajendra Balraj Potpulewal
2021 Latest Caselaw 9686 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      16 CIVIL APPLICATION NO.5050 OF 2021
                                  IN SA/15/2020
                        WITH CA/426/2020 IN SA/15/2020


                 PREMSUKH MANSUKH SANCHETI AND OTHERS
                                         VERSUS
                  RAJENDRA BALRAJ POPULEWAL AND OTHERS
                                            ...
                          Mr. P.F. Patni, Advocate for applicants
                 Mr. K.A. Ingale, Advocate for the respondent No.2
                                            ...

                                     CORAM :      SMT. VIBHA KANKANWADI, J.
                                     DATE :       26th JULY, 2021.


ORDER :

1 Present application has been filed by the legal representatives of

the original respondent No.4 in the Second Appeal to bring themselves on

record. In fact, present respondent No.2 is the original appellant in the

Second Appeal. He has not filed any application for bringing the legal

representatives of respondent No.4 but the legal representatives themselves

have come.

2              Heard learned Advocate Mr. P.F. Patni for applicants and learned





                                         2                                    CA_5050_2021



Advocate Mr. K.A. Ingale for the respondent No.2.


3              It has been vehemently submitted on behalf of the applicants

that the proposed legal representatives of the respondent No.4 are the son

and widow left by respondent No.4. Respondent No.4 Madanlal Ratanlal

Varma expired on 23.03.2021. It is stated that the suit is in respect of

possession of the immovable property based on title, and therefore, the cause

of action survives against them. They are necessary parties to the proceeding

and therefore, they be allowed to be brought on record. Learned Advocate

for the applicants relied on the Adoption Deed, which is a registered

document executed on 12.07.2002. Thereafter, the adopted son, by

Notification in the official Gazette changed his name, and therefore, after the

demise of respondent No.4 the widow and the son had filed Civil

Miscellaneous Application No.653/2021 before Civil Judge Senior Division,

Aurangabad, for grant of legal heirship certificate and succession certificate.

That application came to be allowed on 24.05.2021 by the learned Joint Civil

Judge Senior Division, Aurangabad, and therefore, those applicants are the

legal representatives of respondent No.4. They should be brought on record.

4 Per contra, the respondent No.2 has filed affidavit-in-reply and

objected the application stating that Madanlal Ratanlal Varma died issue-less.

He is taking objection in respect of inclusion of the alleged son as legal

3 CA_5050_2021

representative. In fact, that son is the son of one Badrinarayan Varma and

not Madanlal Varma. Learned Advocate appearing for the respondent No.2-

original appellant vehemently submitted that the alleged adoption is illegal

and against the principles of Section 10 of the Hindu Adoption and

Maintenance Act, 1956. Section 10 of the said Act specifically puts a

condition that a person to be adopted should not be a married person, so

also, he should not have completed the age of his 15 years. But then it can be

seen that at the time of alleged adoption present applicant No.4-A is stated to

be aged 22 years and he was married at that time. He could not have been

taken in adoption. Therefore, that adoption is illegal. Further, in view of

Order XXII Rule 5 of the Code of Civil Procedure, 1908, the question, about

determination as to legal representative, will have to be referred to the

subordinate Court, in view of the proviso. He, therefore, prayed for referring

the question accordingly before admitting the applicant No.4-A as legal

representative of deceased respondent No.4.

5 At the outset, it can be seen that as per Order XXII Rule 5 of the

Code of Civil Procedure, 1908, "where a question arises as to whether any

person is or is not the legal representative of a deceased plaintiff or a

deceased defendant, such question shall be determined by the Court". The

proviso says that - "Where such question arises before an Appellate Court,

4 CA_5050_2021

that Court may, before determining the question, direct any subordinate

Court to try the question and to return the records together with evidence, if

any, recorded as such trial, its findings and reasons therefor, and the

Appellate Court may take the same into consideration in determining the

question". It is required to be seen, as to whether there is any necessity to

adopt such provision in this case. Now, as regards the point raised about

adoption being illegal, in view of Section 10 of the Hindu Adoption and

Maintenance Act is concerned, it would be for the respondent to raise it

before appropriate Court. This is in view of the fact that already the present

applicant Nos.4-A and 4-B had approached Civil Court by filing Civil

Miscellaneous Application No.653/2021, for grant of legal heirship certificate

and succession certificate and they have received it by way of order dated

24.05.2021. They have been declared as heirs of deceased Madanlal. It is to

be noted from the documents those have been produced on record that notice

was issued to the respondent/State of Maharashtra and also citation was

issued in the paper inviting objections. When no objections were received it

appears that the concerned Court had proceeded to take up the further

proceedings in the matter and then ultimately allowed that application. The

said Judgment and order would be Judgment in rem as it relates to

succession. Further in view of Section 41 of the Indian Evidence Act, 1872,

the final Judgment of a competent Court, exercising the powers of probate,

5 CA_5050_2021

matrimonial, admiralty or insolvency proceedings, which confers upon or

takes away from any person any legal character, would be relevant, and

therefore, when a competent Court has come to the conclusion and given the

certificate holding applicant No.4-A as son of deceased Madanlal, then this

Court cannot go beyond that. There is absolutely no necessity to take up the

procedure as contemplated under Order XXII Rule 5 of the Code of Civil

Procedure, 1908. The application, therefore, deserves to be allowed. Hence,

following order.

ORDER

1 The application stands allowed in terms of prayer clause "B".

2 The applicant Nos.4-A and 4-B be brought on record in the

Second Appeal as legal representatives of deceased respondent No.4.

3 The necessary amendment be carried out by the appellant,

within a period of two weeks from today.

4                Interim relief to continue.




                                                   ( Smt. Vibha Kankanwadi, J. )



agd