[Cites 6, Cited by 0]
Delhi High Court
Anupma Mitra vs Amit Mitra (Deceased) Through Lr Prerna ... on 16 December, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11.12.2025
Judgment pronounced on:16.12.2025
+ FAO 247/2025 & CM APPL. 55668/2025
ANUPMA MITRA .....Appellant
Through: Ms. Jasmine Damkewala and Mr.
Divyam Khera, Advocates.
versus
AMIT MITRA (DECEASED) THROUGH LR PRERNA SEEMAR
KALRA .....Respondent
Through: Mr. Samman Vardhan with Mr. Shrey
Gupta, Ms. Khsuhi, Ms. Priyam
Tiwari, Ms. Anshika and Ms.
Rukhshaar Saifi, Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. The present appeal under Order XLIII of the Civil
Procedure Code, 1908 (the CPC) has been filed by the defendant in
CS No. 93/2020 on the file of the learned Additional District
Judge, South District, Saket Courts, Delhi, aggrieved by the order
dated 01.07.2025 by which an application under Order XXII Rule
3 and Rule 10 CPC filed by the respondent herein claiming to be
the legal representative of the plaintiff based on a Will was
allowed.
2. In this appeal, the parties herein shall be referred to as
described in the plaint.
3. Brief facts necessary for the adjudication of the appeal are
as follows: The plaintiff instituted CS No. 93/2020 seeking
partition, rendition of accounts, and separate possession of the
immovable property bearing B-77, Freedom Fighters Enclave, Neb
Sarai, New Delhi, asserting an undivided 50% share in the said
property, the remaining half being owned by his sister, the
defendant. During the pendency of the suit, an interim order was
passed restraining both parties from creating third-party interests
or alienating the suit property. Subsequently, on 15.12.2023, the
trial court passed a preliminary decree for partition directing
partition of the property by metes and bounds and allowing one
half share each to the plaintiff and the defendant.
3.1. During the pendency of the proceedings, the sole
plaintiff died. An application under Order XXII Rule 3 read with
Rule 10 CPC was filed by the respondent herein seeking
substitution. According to her, the right to sue has survived and
that she should be brought on record as the plaintiff's legal
representative relying on a registered Will dated 11.11.2022, by
which the plaintiff bequeathed his 50% share in the suit property to
her. She also relied on an Agreement to Sell dated 06.09.2021,
under which the plaintiff is stated to have agreed to sell his share
in the property to her for consideration, which she claimed have
been paid.
3.2. The defendant opposed the application by contending
that she was the sole legal heir of the plaintiff, who died unmarried
and issueless. She alleged that the documents relied upon by the
applicant/respondent were not genuine and had been obtained
when the plaintiff was seriously ill and vulnerable. She referred to
a handwritten note dated 23.12.2023, said to have been written by
the plaintiff in hospital, in which he expressed that he did not wish
to continue the litigation and that he was under pressure from the
applicant and others. The execution of the Will was denied.
4. The trial court vide the impugned order allowed the
application for substitution by holding that it was sufficient for the
applicant/respondent to show a prima facie case to represent the
estate of the deceased. The trial court treated the registered Will,
placed on record as adequate for substitution. Aggrieved, the
defendant has come up on appeal.
5. It is submitted by the learned counsel for the
defendant/appellant that the trial court erred in allowing
substitution merely on the basis of a registered Will without
requiring the applicant to first prove its genuineness in accordance
with law. She relies on the decisions in Janak Datwani v. Anand
Datwani, 2025 SCC OnLine Del 6796, and Dhani Ram (D)
through LRs v. Shiv Singh, 2023 SCC OnLine SC 1263, to
contend that mere registration of a Will raises only a rebuttable
presumption and, in the absence of probate or letters of
administration, no enforceable right can be claimed under the Will,
particularly when its authenticity is being seriously disputed by the
defendant. The Will relied upon is surrounded by suspicious
circumstances, its execution has been specifically contested, and
therefore the applicant could not have been treated as the legal
representative at this stage.
6. Per contra, it is submitted by the learned counsel for the
applicant/respondent quite emphatically and persuasively, that as
the will in question is a registered will, no probate is required in
Delhi. Therefore, there is no infirmity committed by the trial court
calling for an interference by this Court, goes the argument.
7. Heard both sides.
8. Here, it would be apposite to refer to Order XXII Rule 5 of the
Code of Civil Procedure, 1908, which reads thus:
"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 therefor,
and the Appellate Court may take the same into
consideration in determining the question."
(Emphasis supplied)
9. In this context, I refer to the dictum in Kunchikavu vs
Kesabanayar, 1959 KHC 150:AIR 1960 Kerala 79. The said
case involved a suit for arrears of maintenance. Pending trial the
sole plaintiff died and his son applied to get himself impleaded as a
legal representative of his father on the strength of a will.
9.1. The application was opposed by the defendant,
questioning the genuineness and validity of the will. The trial court
allowed the application adding that the genuineness of the Will can
be considered in the suit. In appeal, a learned single Judge of the
High Court of Kerala, after referring to Order XXII Rule 5 CPC,
held that the trial court had erred in permitting the son to be
impleaded, without first deciding whether he was in fact the legal
representative of his father. It was held that it is clear from the
wording of Order XXII Rule 5, that when a question as to whether
any person is or is not the legal representative of a deceased
plaintiff arises, the court must first decide on it, and it is equally
clear that the court must determine the question, before proceeding
any further in the suit. Holding so, the order impleading the son of
the plaintiff as a legal representative was reversed and the matter
was remanded to the trial court for fresh disposal after due enquiry
as contemplated under Order XXII Rule 5.(See also Jaladi
Suguna v. Satya Sai Central Trust,AIR 2008 SC 2866;Arangil
Raghavan v. K. Sreedhara Panicker,AIR 2001 Kerala 203,
Ajambi v. Roshanbi, (2010) 11 SCC: 2010 KHC 4634,R. Krsna
Murtii v. R.R. Jagadesan, AIR 2022 SC 3477: 2022 KHC
6736).
10. In the light of the procedure contemplated under Order
XXII Rule 5, the trial court ought not to have allowed the
application for substitution without conducting an enquiry. Hence,
the impugned order is set aside, and the matter remanded to the
trial court, which shall conduct an enquiry as contemplated under
Order XXII Rule 5 and pass orders accordingly.
11. The appeal is allowed as herein above stated.
Applications, if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
DECEMBER 16, 2025
