Delhi High Court
Raju And Others vs Gainda Devi on 25 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 25.03.2010
CM(M) No.194 of 2010
% 25.03.2010
RAJU AND OTHERS ... Petitioner
Through: Mr. UBS Yadav, Advocate
Versus
GAINDA DEVI ... Respondents
Through: Nemo.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER (ORAL)
1. By this petition, the petitioners have assailed an order dated 5th November,
2009 whereby an application of the petitioners under Order I Rule 10 of CPC was
dismissed.
2. The petitioners are sons of late Shri Phool Singh who was defendant in a
suit titled as "Smt. Gainda Devi Vs. Shri Phool Singh". After the death of Phool
Singh, Smt. Shanti Devi, mother of the petitioners, made an application to bring
her on record as the LR of late Shri Phool Singh on the ground that late Phool
Singh had left behind a Will bequeathing his interest in the suit property in her
favour. The petitioners did not contest this position and did not challenge the
CMM No. 194 of 2010 . Page 1 Of 3
validity of the Will and it was the case of the petitioners that the suit property was
bequeathed by deceased defendant in favour of Smt. Shanti Devi by a Will. In
view of the stand taken by the petitioners, Smt. Shanti Devi was impleaded as LR
of the deceased defendant vide order dated 15.05.2008. The petitioners
subsequently, made this application under Order I Rule 10 of CPC claiming that
since they were also in possession of the property after the death of Phool Singh
they were also necessary party to the suit, therefore, they should be impleaded as
parties. This application was dismissed by the Trial Court on the ground that the
applicants have no independent right as per their own averments in the suit and
their presence in the suit was not necessary for adjudication of the matter in
dispute.
3. It is settled law that where a defendant dies, those persons, who after death
represent his estate, are to be brought on record as his LRs. Since the suit in
question is in respect of the property and undisputedly, the deceased had executed
a Will in favour of his wife bequeathing the property to his wife to the exclusion of
present applicants, and the applicants had not challenged the correctness of the
Will, the applicants cannot be impleaded as parties to the suit, either as legal
representatives or as necessary parties.
4. The plea taken by the petitioners that they were in possession of the
property and therefore were necessary parties, is a baseless plea. Every family
member of the owner of the property is in possession of the property because of
the permission given by the owner of the property. Each one of them is not
required to be impleaded as a party. Only those persons are required to be
CMM No. 194 of 2010 . Page 2 Of 3
impleaded as a party, after the death of defendant, who represent his estate or
whose presence is necessary for the adjudication of the issues.
5. In the present case, neither the applicants represent the estate nor was their
presence considered necessary by the Trial Court for adjudication of the dispute.
The Trial Court rightly dismissed the application.
I find no force in this petition. The petition is dismissed.
March 25, 2010 SHIV NARAYAN DHINGRA, J.
acm
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