Sushila Yadav vs Lt.Col. Gaj Singh Yadav & Ors.
2012 Latest Caselaw 5759 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI
+                CM(M) 1072/2008
                                 Date of Decision: 25.09.2012

SUSHILA YADAV                                   .....Petitioner
                         Through:     Ms Geeta Luthra, Sr. Advocate
                                      with Mr Rohit Bhardwaj, Adv.

                                Versus

LT.COL. GAJ SINGH YADAV & ORS.        ...... Respondents
                  Through: Mr R.M. Sinha, Adv. for R-3 to
                           R-6
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution is directed against the orders dated 05.05.2008 and 19.03.2008 of the Additional District Judge, Fast Track Court, Delhi.

2. The respondent No. 1 Lt.Col. Gaj Singh Yadav (Rtd.) had filed a suit for partition against the defendants. The petitioner was arrayed as defendant No. 3 in the said suit. A preliminary decree was passed in the year 1989. During the pendency of the suit, defendant No. 4 Ms Saroj Nalini Yadav expired in March 2004. The Respondent No. 1/plaintiff filed an application under Order 22 r/w Section 151 CPC for deletion of her name from the array of parties, as her legal heirs were already arrayed as defendants. The petitioner, who was the defendant No. 3 in the suit, opposed this application by filing reply to the same, stating therein that Ms Saroj Nalini Yadav had died living behind a

Will dated 20.08.2003 bequeathing her share in the suit property in her favour. She, thus, requested to be impleaded as her only legal representative. This was opposed by the other defendants, particularly, defendants No. 6 to 8 alleging the said Will to be forged and fabricated document. It was their case that defendant No. 4 Ms Saroj Nalini Yadav died intestate and, thus, based on the said Will, in the absence of Probate, the petitioner/defendant No. 3 could not be substituted as the sole legal representative of the deceased Ms Saroj Nalini Yadav. The learned ADJ disposed of the application taking on record all the legal representatives of the deceased, and thereby, rejected the request of the petitioner/defendant No. 3 to be impleaded as the sole legal representative of the deceased.

3. Thereafter, the petitioner/defendant No. 3 filed review application under Order 47 Rule 1 CPC which came to be dismissed by the learned ADJ vide the impugned order dated 05.05.08.

4. The petitioner challenges the impugned order of the ADJ.

5. I have heard learned counsel Senior Counsel for the petitioners as also the counsel for the respondent Nos. 3 to 6.

6. Learned senior counsel for the petitioner submits that since deceased defendant No.4 Ms. Saroj Nalini Yadav has executed Will in favour of petitioner Sushila Yadav, and there being no requirement of probate in Delhi, it was the petitioner alone who was entitled to be substituted in place of deceased. On the other hand, submission of the learned counsel for respondent Nos. 3 to 6 is that Will in question is forged and fabricated and since the respondents are disputing the same,

the petitioner alone cannot be substituted in place of deceased defendant No.4 Ms. Saroj Nalini Yadav. The learned ADJ, relying upon the decision of Punjab & Haryana High Court in S. Charanjit Singh and another v/s Bharatinder Singh and others 1987 held that the inter se disputes between the legal representatives of the deceased can only be decided in an independent separate proceedings. While allowing all the legal representatives of deceased who are already defendants, he declined the request of the petitioner to be substituted only in place of the deceased, reasoning as under:-

"In the instant case, defendant no.3 claims over the share of deceased defendant No.4 on the basis of alleged Will dated 20.08.03 while defendants no. 6 to 8 claim their right over her share being the natural legal heirs. Admittedly, the share of deceased defendant no.4 had already been determined in the preliminary decree. If there is any dispute among the legal representatives of deceased defendant no.4 over the share of deceased defendant, they have liberty to initiate a separate and independent legal proceedings. In view of the law laid down in the judgment (supra) their dispute cannot be adjudicated in the present suit. Both parties will have a right to establish their claim over the share of deceased defendant before the appropriate forum. Genuineness and validity of Will is left open."

7. I do not see any illegality or infirmity in the afore mentioned reasoning of the Learned ADJ. The reliance placed by the Senior Counsel for the petitioner upon the decision of this court in Hans Raj and Anr. Vs. Jeet Kaur (deceased) 2002 (61) DRJ 314 is mis- placed. That was an eviction case against the tenant and he was held

to be having no locus standi to question the genuineness of the Will or the bequests made therein. It was held that it would be quite open to the other natural heirs to seek impleadment in the petition, or to oppose it, or to record any objection they have to Will, or to take appropriate action to vindicate their rights in case there is an opposition to the Will.

8. In the present case, the petitioner who is defendant No.3 in the suit has tried to set up her claim based on the Will, and which is being opposed by the other defendants. It is not a case where the petitioner could be easily substituted in place of deceased based on the Will. In the suit of partition between the share holders, when one of them claims to be the exclusive legal representative of the deceased, he would be required to prove his such entitlement. That would be a subject matter of independent proceedings and cannot be decided within the pending suit. Following the proceeding of proving of the Will by the petitioner in the instant suit would amount to a trial within a trial and which is not permissible. In view of Charanjit Singh (Supra) the proper course to follow is to bring all the legal representatives on record so that they vouchsafe the estate of the deceased for ultimate benefit of the real legal representatives. The question about the genuineness or the validity of the Will cannot be decided in the instant suit. I do not see any infirmity or illegality in the impugned order of the learned ADJ.

M.L. MEHTA, J.

SEPTEMBER 25, 2012/awanish/pkv