Smt. Neelam Kapoor & Ors. vs Bhag Chand Thr. Lr
2011 Latest Caselaw 1468 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RFA Nos.241/1999 & 242/1999

%                                                  14th March, 2011
1.RFA No.241/1999

SMT. NEELAM KAPOOR                                ...... Appellant
               Through:         Mr. Arvind Nayar, Advocate


                          VERSUS


BHAG CHAND THR. LR                              ...... Respondent

              Through:          Mr. Manoj Sharma with
                                Mr. Sumit Bhardwaj & Mr. Kapil Kaushik,
                                Advocates
2.RFA No. 242/1999

SMT. NEELAM KAPOOR & ORS.                 ...... Appellants
               Through: Mr. Arvind Nayar, Advocate


                          VERSUS


BHAG CHAND THR. LR                              ...... Respondents
              Through:          Mr. Manoj Sharma with
                                Mr. Sumit Bhardwaj & Mr. Kapil Kaushik,
                                Advocates

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. A new counsel, Mr. Arvind Nayar, Advocate, has appeared

on behalf of the appellants and therefore the earlier counsel, Mr. Rahul

Bakshi stands discharged. Mr. Rahul Bakshi states that he has handed

over back the fee cheque and the case file to the appellants which is

confirmed by the counsel who is now appearing for the appellants.

2. The challenge by means of these Regular First Appeals

under Section 96 of the Code of Civil Procedure, 1908 is to the

impugned judgment and decree dated 16th January, 1999 which

decided the lis between the sons and widow of Sh. Rup Chand. The

dispute was with respect to the property B-IV/15, Amar Colony, Lajpat

Nagar, New Delhi. The subject property was conveyed by means of a

Lease Deed dated 21st November, 1967, executed by the Land and

Development Office of the Ministry of Rehabilitation, Government of

India in favour of Smt. Assi Bai widow of Rup Chand and Sh. Mohan Lal

(her one son, defendant no.2 Bhag Chand being the other son) giving

shares of 3/4th and 1/4th respectively to Smt. Assi Bai and Sh. Mohan

Lal. Smt. Assi Bai is stated to have executed a gift deed dated

19.2.1982 in favour of her other son Sh. Bhag Chand and which gift

deed was registered on 20.2.1982. As of today neither Sh.Mohan Lal is

alive nor is Sh.Bhag Chand alive and nor Smt. Assi Bai. In the

proceedings before the Trial Court, Mohan Lal claimed complete

ownership of the property inter alia for the reasons that property was

benami in the name of the mother but Mohan Lal was the actual

owner, Mohan Lal had constructed on the property and hence was the

owner by law of adverse possession/law of prescription and so on. Sh.

Bhag Chand disputed the case of Sh. Mohan Lal and claimed inter-alia

that the property in fact belonged to him as he had 3/4th share of the

property which his mother Smt. Assi Bai had gifted by a gift deed dated

19/2/1982 registered on 20.2.1982 and that Mohan Lal was only 1/4th

owner. These disputes have been decided by the Trial Court in the

impugned judgment which decided two suits, one filed by Mohan Lal

against Bhag Chand and the second filed by Bhag Chand against

Mohan Lal and Assi Bai. By the impugned judgment the suit of Mohan

Lal was dismissed and the suit of Bhag Chand was decreed and it was

held that Mohan Lal was not entitled to 3/4th share of Smt. Assi Bai and

in fact Bhag Chand was entitled to 50% ownership (back portion) of the

suit property.

3. After final arguments were heard in the case in the Trial

Court, and the case was reserved for judgment, both Bhag Chand and

Mohal Lal expired. As per Order 22 Rule 6 CPC, a judgment can be

passed, although a party to a case has expired after the case is

reserved for judgment but before pronouncement of judgment and it

will be deemed as if he died after the pronouncement of judgment. In

such circumstances for an appeal against the judgment of the trial

court, the persons who will file the appeal, and also who would be

respondents in the appeal have naturally to be the legal heirs of the

parties who contested the case in the Trial Court. In the present case,

there is no dispute as to the legal heirs of late Sh. Mohan Lal because

they are the natural legal heirs being the children of Mohan Lal,

however, so far as Bhag Chand is concerned, the position is not so

simple. Bhag Chand was a bachelor and therefore on his death he left

behind no natural legal heirs who could have been his widow or

children or other legal heirs as specified in Class 1 of the Schedule of

Hindu Succession Act, 1956. The representation on behalf of Sh.Bhag

Chand in this Court is by one Sh. Jagdish Lal Dua who is said to have in

his favour a registered Will dated 26.1.1999. There is therefore a

dispute as to whether Sh. Dua is entitled to represent the estate of

Bhag Chand. I may note that Sh. Dua had filed an application in the

Trial Court after conclusion of final arguments and after the

pronouncement of judgment and the Trial Court had allowed the said

application and treated Mr. Dua as the decree holder and legal heir of

Sh. Bhag Chand. This order of the Trial Court dated 24th November,

1999 was challenged in this Court by the legal heirs of Mr. Mohan Lal

and which challenge filed in this Court failed. A further challenge was

laid in the Supreme Court in Civil Appeal nos. 7218-7219/2002

titled as Sanjay Kapoor and Anr. vs. Jagdish Lal Dua (dead). The

Supreme Court in the SLP passed the following order on 6.5.2008:-

"Heard learned counsel for the appellant.

This appeal is directed against the order of the High Court allowing the substitution application. Allowing of substitution application does not create any right. It is open to the appellant to urge all the contentions available to him under the law at the time of hearing of the appeal. It is also open to the appellant to urge that Jagdish Lal Dua is not a legal heir of Bhag Chand @ Subhash Chand.

With the aforesaid clarification, the appeal is dismissed."

4. It is a disputed question of fact whether Sh.Jagdish Lal Dua

is the legal heir entitled to represent the estate of Sh.Bhag Chand, and

such a disputed question of fact cannot be decided except by leading

evidence. The procedure to decide such disputes of representation to

an estate of a deceased person, in a pending litigation, is provided by

Order 22 Rule 5 CPC which reads as under:-

"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 Appellate Court may take the same into consideration in determining the question.]"

5. The disputed question of fact with regard to existence or

otherwise of a Will in favour of Jagdish Lal Dua by late Sh. Bhag Chand

can only be decided after trial following the procedure under Order 22

Rule 5 CPC. The present is not a normal case where there is at least

one admitted natural legal heir of late Sh.Bhag Chand and therefore I

could leave the further decision as to the inter se rights between such

natural legal heirs of Bhag Chand to another litigation by allowing one

or some or all natural heirs to represent the estate of late Sh. Bhag

Chand. It is therefore required to be decided as to whether Jagdish Lal

Dua (who himself has expired, and now is represented by his natural

legal heirs) had inherited the estate of Sh. Bhag Chand by means of

the Will dated 26.1.1999. In view of the above and in terms of the

mandate of Order 22 Rule 5 CPC and the order dated 6.5.2008 of the

Supreme Court I remand this case back to the Trial Court to decide the

issue as to whether Sh. Jagdish Lal Dua was the legal heir of late Sh.

Bhag Chand by virtue of the Will dated 26.1.1999 executed in his

favour. The Trial Court would frame appropriate issues including with

regard to the existence and validity of the Will dated 26.1.1999

executed by Sh. Bhag Chand in favour of Sh. Jagdish Lal Dua and allow

both the parties to lead evidence. The Trial Court thereafter must

record its finding with its reasons and return such finding to this Court.

6. The appeals are adjourned sine die. Parties to appear

before the District and Sessions Judge on 26.4.2011, and on which

date, the Districts and Sessions Judge will mark the case to an

appropriate Court for decision of the issue with regard to

representation to the Estate of late Sh.Bhag Chand.

7. Trial Court will make an endeavor to dispose of the case so

far as possible within a period of one year from the first date fixed

before the said Court. Counsel for the parties are agreeable that none

of the parties will take unnecessary adjournments in the matter and

the Trial Court will be entitled to impose costs for unnecessary

adjournments being taken in the matter. Trial Court record be sent

back.

MARCH 14, 2011                                     VALMIKI J. MEHTA, J.
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