Ram Niwas vs Naseema Begum And Ors.
2001 Latest Caselaw 1268 Del

JUDGMENT

Mahmood Ali Khan, J.

1. These two revision petitions have assailed two orders passed by the learned Civil Judge, Delhi in the execution proceedings. One revision petition (C.R. No. 487/2000) is filed against the order dated 15.3.2000 of the executing court by which he has allowed impleading of the respondent as the legal representatives of the deceased decree holder in the proceedings. The second revision petition (C.R. No. 576/2000) challenges the dismissal of the petitioner's application for review of the first order dated 29.4.2000.

2. Since common question of fact and law is involved, therefore, both these revision petitions are being disposed of by this common order.

3. For appreciating the controversy the relevant facts, in brief, are as follows. One Syed Akhar Ali purchased in court auction two dilapidated houses (Khandars) one big and the other small situated in Mehrauli which was described in sale certificate dated 19.1.1939. He died in March 1939 leaving behind his son Mohammad Swaleheen (the original decree holder) and second wife Ruqayya Begum. Ruqayya Begum filed a suit for administration of the property against Swaleheen. Both these two dilapidated houses (Khandars) were declared evacuee properties by the Government. The properties were restored back to Swaleheen on 1.2.1958. Swaleheen filed a suit for possession against Rati Ram (predecessor in interest of the present petitioners) in respect of bigger Khandar on 28.2.1967. Rati Ram contested the suit alleging that Swaleheen was not the owner of the property and it was also not restored to him by the Central Government. The suit property was an evacuee property and had vested in the Custodian and he had entered into the property as tenant under the Custodian about 20 years back and was paying rent to it. In the alternative, he pleaded that if it is proved that the suit property was restored to Swaleheen then he was ready to attorn to him as a tenant. Later on he amended the written statement and pleaded that he was tenant and lawful occupant of the property initially under the Custodian of Evacuee Property and later under the Central Government when it became part of compensation pool under Displaced Persons (Compensation and Rehabilitations) Act 1954. So, the ownership right therein were transferred to him being tenant and lawful occupant vide conveyance deed dated 6.3.1968 by the President of India.

4. Rati Ram died and his son Ram Niwas, widow Ms. Rati Ram and daughters were substituted as legal representatives. The Sub Judge decreed the suit in favor of Swaleheen on 22.4.1981. Ram Niwas and Ram Kali filed appeal against the order on 30.6.1981 in which the other legal heirs were imp leaded as respondents 2 to 6. But, on 29.10.1981 the said appeal was dismissed as withdraw. The other LRs, two daughters of Rati Ram namely Sarla and Santosh Gupta also filed an appeal against the order of the learned Sub Judge in which Ram Niwas and their mother and other sisters were imp leaded as respondents 2 to 7. This appeal was dismissed by the Additional District Judge on 31.5.1982. No second appeal was filed. The decree holder Swaleheen then moved application for execution of the decree. There came spate of applications and objections under Sections 47, 151 of the CPC and other provisions from the side of the judgment debtor raising objections against the executability of the decree and also that the land owned and possessed by the judgment debtor was not included in the sale certificate granted by the court in favor of Syed Akbar Ali. All these applications were dismissed by the Court. The judgment debtor again filed an application on 15.1.1988 for setting aside the judgment and decree dated 22.4.1981 on the ground that it has been obtained by playing fraud and making misrepresentation by the decree holder. It was contested by the decree holder. However, decree holder Mohammad Swaleheen died on 19.6.1988. An application for bringing his LRs on record was filed on 19.6.1988 on the basis of a will dated 3.2.1984 of the decree holder in accordance of which 1/3rd share of his property devolved on Ms. Naseema Begum wife of Syed Abdul Hamid and 2/3rd share devolved on Syed Mohammad Aslam and Abdul Hamid. These three legatees under the Will filed an application under Section 151 CPC for being imp leaded in the execution proceedings. There was contest to this application by the judgment debtors. They disputed that the applicants were legal representative of the deceased and contended that right to sue did not survive; the Will dated 3.2.1984 was forged and fabricated document; and that the judgment debtor was the owner of the disputed property under a registered sale deed executed by the Custodian of Evacuee Property in favor of their father, Rati Ram.

5. The Civil Judge framed following issue:

Whether the right to sue survive in favor of the applicant?

6. Other heirs of deceased Swaleheen filed no-objection to the substitution of the applicants in place of the deceased decree holder in reply and the affidavit filed in response to the application of the respondents. The evidence of the parties was recorded. The judgment debtors wanted to examine a handwriting expert. Applicant-respondents filed an application for permission to produce additional evidence by placing the signature of Mohammad Swaleheen appearing on the sale deed dated 9.5.1983 for comparison with those of the testators appearing on the Will dated 3.2.1984. In the meantime on 28.2.1994 was granted in favor of the applicants by this Court. Accordingly, application for additional evidence was dismissed as withdrawn and the copy of letter of administration was filed in the execution proceeding. Judgment debtor Rati Ram filed an application for revocation of the letter of administrator before this court which has been dismissed as withdrawn. The judgment debtor again filed an application on 23.2.1996 purported to be under Order 22 Rule 5 CPC stating that mere grant of probate or letter of administration of the will will not dispose off the objections of the judgment debtor. He requested that the parties be allowed to produce the remaining evidence and complete it on the issue framed by the Court. It was opposed by the applicant LRS and they pressed for their substitution in place of the decree holder.

7. The arguments of the counsel for the petitioner are three fold. Firstly, it is submitted that even after the grant of letter of administration the LRs of deceased decree holder Mohammad Swaleheen i.e. the applicant LRs, are required to prove due execution of the Will, its genuineness and validity before the executing court in view of Order 22 Rule 5 CPC. His second submission is that the grant of letter of administration or probate of the Will is not a proof that the testator was the owner of the property disposed off by the Will. Lastly, it was submitted that Rati Ram (predecessor of the petitioner), judgment debtor had purchased the property, which is in the occupation of his legal representatives, from the Custodian of Evacuee Property under a sale deed and that the petitioner has no objection if the property, which is not disposed of by that sale deed, is delivered to the decree holder in execution of the decree of possession. He submitted that the executing court should not curtail the proceedings, rather should reject the application of the respondent and disallow the applicant to be brought on record as the LRs of the decree holder in the proceeding. He placed reliance on the judgment in Nawal Kishore Patil v. Indrapate Devi, JT, 1991 (5) SC 212.

8. Conversely, the counsel for the LRs of the decree holder has submitted that the judgment debtor's objection that the decree is not executable for the reason that the disputed property could not be identified has already been rejected by the court repeatedly both before and after the grant of the decree. He further argued that the provisions of Order 22 CPC are not applicable over the execution proceeding. So no substitution of the LR of the decree holder as such was required. He lastly submitted that the executing court cannot go behind the decree and reopen the dispute of title of the suit property in the proceedings of execution of the decree and in particular in the application of the legal representatives of the deceased decree holder for leave to execute the decree.

9. It is now settled law that the provisions of Order 22 CPC are inapplicable over the execution proceeding. The LRs of the decree holder are not required to be substituted in place of the decree holder in accordance with this order and rules framed there under. They may approach the court after the demise of the decree holder and request the court to allow them to execute the decree. No substitution order, as such, is required to be passed. This view if fully supported by the judgment of Allahabad High Court in Moti Ram and Ors. v. Onkar Prasad and Ors., of Bombay High Court in Rama Maruti Changule v. Mallappa Krishna Chaugule, AIR (29) 1942 Bombay 309.

10. But he fact remains that a person who has applied for leave to execute the decree is still required to establish that he is legal representative of the deceased decree holder and has a right to execute the decree and further that right to execute the decree survived in his favor. To that extent a limited enquiry may be conducted by the executing court.

11. It is also now well settled that the executing court cannot go behind the decree. It has to execute the decree as it is. It will be precluded from embarking upon the adjudication of the question of title and the disputes which have been gone into and decided or could have been raised before the decree was passed. The objection of the judgment debtor that the decree was not executable because the property in respect of which the decree of possession was passed was not identifiable at the site has already been considered and rejected by the court. The title of the decree holder in the suit property has also been settled by the decision of the trial court and which was affirmed in appeal by the Additional District Judge. It cannot be called in question again by the judgment debtor during the executing proceeding. The contention of the judgment debtor that the property which was acquired by their predecessor Rati Ram from the Custodian of Evacuee Property is distinct from the property owned by the decree holder Mohammad Swaleheen is also not tenable because this was the precise defense of the judgment debtor in the civil suit. The decree has been passed in favor of the decree holder after full contest by the judgment debtor. Its execution cannot be resisted by the judgment debtor by raking up the very issues in the executing proceeding which were decided in the suit.

12. The contention of the petitioners that even after the grant of letter of administration and probate the LRs of a deceased person in whose favor the grant was made were required to prove the genuineness and validity of the will deceased decree holder in the execution proceeding is untenable in law. The letter of administration and probate of a will granted by a court of competent jurisdiction is a judgment in remand it is binding on all the sundry. It is conclusive proof of the due execution and genuineness of the Will and once it is granted no other authority can initiate parallel proceedings to find out the genuineness and validity of the will. The execution and validity of the will has been established in the testamentary proceeding before the grant of letter of administration in respect of the will of Mohammad Swaleheen by this High Court. The testamentary court has exclusive jurisdiction to decide upon this matter once it is raised before it in the proceeding for probate or letters of administration. The civil court cannot sit in appeal over the judgment of the testamentary court of competent jurisdiction. The genuineness and validity of the will cannot be called in question in the civil suit or execution proceeding before a civil court. The only remedy available to the person like the judgment debtor was by way of filing a petition under Section 263 of the Indian Succession Act and get the letter of administration revoked. The petitioner did file such an application before the testamentary court but it is stated by the counsel for the petitioner that the said application was dismissed as withdrawn. Two of the legatees/beneficiaries under the will were the heirs of the deceased and the third was the wife of one of the legatee. The other heirs of the deceased have given their consent to the will executed by Mohammad Swaleheen after the death of testator. They have given their consent in the reply and the affidavit filed with it. Any way the LRs in whose favor grant is made are administrators of the estate of the deceased decree holder and have acquired right to execute the decree in respect of the property of testator Mohammad Swaleheen in view of the letter of administration granted in their favor.

13. The right to execute the decree is survived in favor of heirs and legal representatives of the deceased Mohammad Swaleheen. There is no doubt about it. No dispute about it is raised either.

14. The case of Naval Kishore Patil (supra) does not advance the case of the petitioner. This judgment on the other hand reinforces the case of the respondents. This case at the first place did not arise out of execution proceedings and further it lays down that under Order 22 Rule 5 CPC the court only decides as to who is the legal representatives of the deceased plaintiff or defendant. In the instant case the question as to who is the legal representative of deceased decree holder and who has right to administer his estate is settled by the grant of letter of administration.

15. For all these reasons the learned Civil Judge was perfectly justified in not recording further evidence in the matter. It would have been an exercise in futility after the administrators of estate of deceased decree holder were appointed by a court of competent jurisdiction by making grant in their favor. The applicants-legal representatives had established the due execution and genuineness of the will of the decree holder and they were not required to prove it again. The grant being a judgment in rem has to be recognised and given effect to by the executing court.

16. I do not find any error of jurisdiction or material irregularity in the exercise of jurisdiction warranting interference. Both the petitions are dismissed.