Madhya Pradesh High Court
Babulal vs Smt.Dhapubai on 29 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
FA No. 512 of 2006
(BABULAL Vs SMT.DHAPUBAI AND OTHERS)
Dated : 29-05-2024
Senior Advocate Shri Sunil Jain along with Shri Kushagra Jain,
learned counsel for the appellant.
Shri Rohit Kumar Mangal, learned counsel for the Respondent [R-1].
Shri Shalabh Sharma GA for the Respondent/State.
1. Heard on IA no. 7262/2023, which is an application filed under Order
22 Rule 4 and 5 read with section 151 of C.P.C.
2. Learned Sr. Counsel for the appellant submits that respondent no. 1
Dhapubai died on 22/07/2023. It is alleged that Dhapubai had executed a will in
favor of one Phoolchand s/o Shree Khimji and he is the only legal representative
of late Dhapubai, therefore, there is serious dispute regarding right, title and
ownership in respect of the suit property. The alleged WILL is a forged and
fabricated document and its genuineness is disputed, therefore, genuineness of
the WILL is required to be examined by leading evidence. Hence, he prays that
the trial Court be directed to decide the genuineness of the WILL after
affording proper opportunity of leading evidence to both the parties.
3. Learned counsel for the respondent/s opposed the aforesaid prayer
and prays for its rejection by submitting that if the appellant did not state that
they are the legal heirs of deceased Dhapubai, then they have no right to raise
any question with regard to genuineness and authenticity of the WILL
Respondent no. 1 has no Class-I legal hears and the proposed legal heir is
genuine representative. The WILL is not forged or fabricated document, hence
the application deserves to be dismissed.
4. For the sake of reference, Order 22 Rule 5 of CPC is reproduced
hereunder :
"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.] "
5. Learned counsel for the appellant has placed reliance upon the
judgment delivered by Hon'ble Supreme Court in the case of Jaladi Suguna
(deceased) through LRs Vs. Satya Sai Central Trust and others reported
in (2008) 8 SCC 521. For the sake of reference, para nos. 16 an 17 are
reproduced hereunder :
"16. 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.
17. The third respondent, who is the husband of the deceased,
wants to come on record in his capacity as a sole legal heir of the
deceased, and support the case of the Trust that there was a valid gift by
the deceased in its favour. On the other hand, the appellants want to
come on record as testamentary legatees in whose favour the suit
property was bequeathed by will, and represent the estate of the
deceased Suguna as intermeddlers. They want to continue the contest to
the appeal. When Suguna - the first respondent in the appeal before the
High Court died, the proper course for the High Court, was first to
decide as to who were her legal representatives. For this purpose the
High Court could, as in fact it did, refer the question to a Subordinate
Court under the proviso to Rule 5 of Order 22 CPC, to secure findings.
After getting the findings, it ought to have decided that question, and
permitted the person/s who are held to be the legal representative/s to
come on record. Only then there would be representation of the estate of
the deceased respondent in the appeal. The appeal could be heard on
merits only after the legal representatives of the deceased first
respondent were brought on record. But in this case, on the dates when
the appeal was heard and disposed of, the first respondent therein was
dead, and though rival claimants to her estate had put forth their claim
to represent her estate, the dispute as to who should be the legal
representative was left undecided, and as a result the estate of the
deceased had remained unrepresented. The third respondent was added
as the legal representative of the deceased first respondent only after the
final judgment was rendered allowing the appeal. That amounts to the
appeal being heard against a dead person. That is clearly
impermissible in law. We, therefore, hold that the entire judgment is a
nullity and inoperative.
6. Respondent no. 1 Dhapubai allegedly executed a WILL in favour of
the Phoolchand S/o Shri Khimaji. Genuineness of the WILL has been
challenged by the appellant, therefore, a question arises as to whether
Phoolchand S/o Shri Khimaji is legal representative of deceased Dhapubai or
no? and it is mandatory for this Court to be decided the said question.
7. Therefore, as per the provision of Order 22 Rule 5 of CPC it is
directed the first Additional District Judge, Sardarpur, District - Dhar to try the
question regarding legal representative of respondent no. 1 Dhapubai on the
basis of alleged WILL within a period of four months from today after
providing sufficient opportunity for adducing evidence to both the parties in
respect of the aforesaid issue/question and return back the record together with
the evidence to this Court.
8. Registry is directed to sent a copy of this order along with the reply
and the copy of the aforesaid WILL to First Additional District Judge,
Sardarpur, District - Dhar to comply the order passed by this Court.
9. List the matter after four months.
CC as per rules.
(ANIL VERMA)
JUDGE
amol
