Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr.
2010 Latest Caselaw 2445 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             C.M. No.3513/2008 (by the legal representative of
              the deceased respondent No.1 u/O 22 R-10A CPC)
              and C.M. No.11447/2008 (by the petitioner u/O 22 R-
              4A CPC) in C.R.P. No. 550/1998 and C.M.
              No. 3515/2008 (by the legal representative of the
              deceased respondent No.1 u/O 22 R-10A CPC) and
              C.M. No.11520/2008 (by the petitioner u/O 22 R-4A
              CPC) in C.R.P. No.1204/2000


                                                 Date of decision : 06.05.2010

IN THE MATTER OF :

        SHRI CHANDERPAL SINGH                            ..... Petitioner
                      Through: Mr. Ravinder Sethi, Sr. Advocate with
                      Ms. Saundarya Singh and Mr. Puneet Sharma,
                      Advocates

                    versus

        SMT. SWARAN LATA DHOBHAL & ANR.                ..... Respondents
                      Through: Mr. Manoj K. Singh, Advocate with
                      Mr. Pradyuman Sevar, Advocate



        CORAM

*       HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may                      Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?                     Yes

     3. Whether the judgment should be                             Yes
        reported in the Digest?


HIMA KOHLI, J. (ORAL)

1. Vide order dated 20.08.2009, the Registrar was directed to

submit his report in terms of Order 22 Rule 5 CPC to enable the Court to

determine as to whether Ms.Kalpana Dhobhal, applicant in CM

No.3513/2008 and CM No.3515/2008 is the legal representative of the

deceased respondent No.1, Shri D.C. Dhobhal, or not. After conducting an

enquiry, the Registrar has submitted his report dated 24.11.2009. It is

stated in the report that the statements of RW1, Mr.Ramesh Chandra

Dhobhal, RW2, Ms.Kalpana Dhobhal and RW3, Mr.Balbir Singh, were

recorded on 19.11.2009 and 24.11.2009. Based on the deposition of the

aforesaid witnesses, the Registrar has opined that in his view, Ms.Kalpana

Dhobhal is a Class-I legal heir of the deceased respondent No.1, Shri D.C.

Dhobhal, being his duly wedded wife. The report further states that as the

directions in the order dated 20.08.2009 were for recording of statement to

conduct an enquiry only, no opportunity was given to either of the parties to

examine or cross-examine the witnesses and address arguments for the

purposes of preparation of the report.

2. Counsel for the petitioner disputes the aforesaid report

submitted by the Registrar and states that he was not afforded an

opportunity to cross-examine the witnesses summoned by the applicant who

has set up a Will dated 27.3.2004, allegedly executed by the deceased

respondent No.1 and that the applicant cannot be treated as his sole legal

heir for being substituted in his place in the present proceedings.

3. Counsel for the respondents responds by stating that without

going into the issue as to whether Ms. Kalpana Dhobhal is the legally

wedded wife of the deceased respondent No.1 or not, in view of the fact that

under the Will dated 27.03.2004 executed by the deceased respondent No.1,

he has bequeathed all his movable and immovable properties to Ms.Kalpana

Dhobhal, she may be permitted to represent his estate and be brought on

record as his legal representative in terms of Section 2(11) of the Code of

Civil Procedure. In support of his submission, he refers to two recent

decisions of the Supreme Court in the case of Jaladi Suguna (deceased)

through LRs vs. Satya Sai Central Trust and Ors. reported as AIR 2008 SC

2866 and Suresh Kumar Bansal vs. Krishna Bansal and Anr. reported as

AIR 2010 SC 344.

4. While examining the provision of Order 22 Rule 5 CPC which lays down

the procedure to be followed in the case of death of a defendant, the

Supreme Court held in the case of Jaladi Suguna (supra), as below:-

"8. 'Legal representative' according to its definition in Section 2(11) of CPC, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. Order 22 CPC inter alia deals with death of parties. Rule 4 relates to the procedure in case of death of one of several defendants or of the sole defendant. Rule 5 relates to determination of question as to legal representative. Rule 11 relates to application of Order 20 to appeals. The said rules, to the extent relevant, are extracted below:

4. Procedure in case of death of one of several defendants or of sole defendant.:- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant, xxxxxxx

5. Determination of question as to legal representative:-- 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:

Provided that where such question arises before an Appellate Court, 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 at such trial, its findings and reasons therefore, and the Appellant Court may take the same into consideration in determining the question.

11. Application of Order to appeals:-- In the application of this Order to appeals, so far as may be, the word 'plaintiff shall be held to include an appellant, the word 'defendant' a respondent, the word 'suit' an appeal.

9. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court: can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent - plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (tenant) was only a proforma respondent. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal.

10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record.

When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal

representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased.

11. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record." (emphasis added)

5. To the same effect is the decision of the Supreme Court, in the

case of Suresh Kumar Bansal (supra), wherein, while relying on the

aforesaid judgment, it was observed that determination of the question as to

who is the legal representative of the deceased plaintiff or defendant under

Order XXII Rule 5 of the Code of Civil Procedure, is only for the purposes of

bringing legal representatives on record for the conduct of those legal

proceedings only and does not operate as res judicata and the inter se

dispute between the rival legal representatives has to be independently tried

and decided in probate proceedings. Adverting to the decision in the case of

Jaladi Suguna (supra), it was held as below :

"10. Before parting with this judgment, it is necessary to consider the decision of this Court in the case of Jaladi Suguna (deceased) through L.Rs. v. Satya Sai Central Trust and Ors. (2008) 8 SCC 521 cited by the learned senior counsel for the appellant. In Jaladi Suguna (supra), this Court held that the interstate heir (husband) and the testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the deceased respondent in an appeal have to be brought on record before the Court can proceed further in the appeal. Furthermore, in that decision it was also held that a legatee under a Will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased testator, will be a legal representative. In view of the aforesaid discussions and in view of the decision reported in Jaladi Suguna (supra), we are also of the view that in an eviction proceeding, when a legatee under a Will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the probate Court for a decision whether the Will was genuine or not."

6. In the light of the aforesaid judgments, the submission of the

counsel for the petitioner that the applicant, Ms.Kalpana Dhobhal be

permitted to be brought on the record as the legal representative of

the deceased respondent No.1, upon her undertaking to file a probate

petition to establish the genuineness of the Will dated 27.3.2004 executed

by the deceased respondent No.1, seems reasonable.

7. Counsel for the respondents states that his client has no

objection to apply for probate of Will dated 27.3.2004 executed by Late Shri

D.C. Dhobhal insofar as the property, subject matter of the present

petitions, is concerned and that she shall take necessary steps in that regard

at the earliest.

8. In view of the aforesaid statements made by the counsels for the

parties, which is in consonance with the spirit of the decisions of the

Supreme Court mentioned above, the controversy is resolved. It is directed

that Ms. Kalpana Dhobhal be brought on the record as the legal

representative of the deceased respondent No.1, so as to represent his

estate in the present proceedings. The same is, however, subject to grant of

probate by a competent Court of law in respect of the Will dated 27.03.2004,

stated to have been executed by Shri D.C. Dhobhal, in a probate petition to

be filed by the applicant in respect of immovable property, subject matter of

the present petitions, described in the Will as plot/premises No. 205,

Mushalmani Mohalla, Patparganj, Delhi, measuring 2554 sq. yards. If the

Will is found to be genuine in the probate proceedings and the applicant is

granted the probate, she shall be entitled to seek execution of the decree, in

case she ultimately succeeds in the present proceedings.

9. The applications are disposed of. An amended memo of parties

shall be filed by the petitioner within two weeks, with an advance copy to

the counsel for the respondents.

                                                        (HIMA KOHLI)
MAY    06, 2010                                            JUDGE
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