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Madhya Pradesh High Court
Alok Raghuvanshi vs Ghanshyam Chaubey (Deleted) Through ... on 24 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:10089
1
MP-506-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
MISC. PETITION No. 506 of 2026
ALOK RAGHUVANSHI AND OTHERS
Versus
GHANSHYAM CHAUBEY (DELETED) THROUGH LRS (A) SHARDA
CHOUBEY AND OTHERS
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Appearance:
Shri Abhisehk Singh Bhadauria - Advocate for the petitioner.
Shri Kaushlendra Singh Tomar- Government Advocate for the State.
Shri Prashant Sharma- Advocate for the respondent no.2.
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Reserved on : 18-03-2026
Pronounced on : 24-03-2026
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ORDER
The petitioners are aggrieved by the order dated 01.02.2017 passed
by the 4th Civil Judge, Class 1, Gwalior, in R.C.S. No.49-A of 2014,
whereby their application under Order 22 Rule 3 read with Section 151 of
the Code of Civil Procedure has been rejected by the learned Trial Court.
2. For convenience, in this order, the petitioner no.2 is referred to as
'plaintiff', while petitioner no.1 is referred to as 'applicant', and the
respondents are referred to as 'defendants' as per their respective status in
the civil suit.
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3. To decide the controversy, it is necessary to understand the rival
claims of the plaintiff and defendants in the suit.
4. The plaintiff and one Prakash Choubey have filed a suit for
declaration and permanent injunction in relation to the suit property, as
mentioned in para 2 of the plaint, inter-alia stating that the land in dispute
is of the ownership of their grandfather, who had purchased the same by
registered sale deed dated 28.6.1944 from one Balmukund Chingamal
Brahmin. It is pleaded that since the defendants are interfering in their
possession over the suit land, claiming the same to be their own property, a
decree for permanent injunction is also claimed.
5. The plaintiffs have also challenged the judgment and decree dated
24.4.2009 passed by the Second Civil Judge, Class-I, Gwalior, in Civil Suit
No.47-A of 2007 as nullity against their interest. The plaintiffs thus claim
the property to be their own property, being the successors of their
grandfather.
6. On the other hand, the defendants have filed the written statement
denying the plaint averments. In substance, they claim this property on the
basis of the judgment and decree dated 24.4.2009 passed in Civil Suit
No.47-A of 2007. It is thus seen that the rival claims of the parties to the
suit are independent of the rights claimed by each of them. In other words,
they do not claim the property through a common ancestor who was owner
of the suit property.
7. The plaintiff no.1, Prakash Choubey, expired on 10.1.2016.
Admittedly, he was unmarried and has not left any Class-I heir behind him.
The applicant, Alok Raghuvanshi, filed an application under Order 22 Rule
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3 read with Section 151 of the Code of Civil Procedure, seeking his
substitution in place of deceased plaintiff no.1. The substitution was sought
on the strength of a registered Will dated 24.12.2007, stated to have been
executed by the deceased plaintiff in favour of the applicant. The prayer
for substitution was opposed by the defendants, alleging the will to be a
forged and fabricated one. The learned Trial Court, by the impugned order
dated 1.2.2017, has rejected the said application.
8. The learned Trial Court was of the view that even after the death of
plaintiff no.1, the right to sue survives in favour of the remaining plaintiff
no.2, Suresh Choubey, and therefore, the substitution of the applicant in
place of plaintiff no.1 is not required. The Court also held that the Will
relied upon by the applicant has not been proved so far, and if the
substitution on the basis of Will is accepted, the validity of the Will needs
to be examined in the suit, which will result in a tri-partite dispute between
the parties. The Court observed that if the plaintiff succeeds in the suit, the
applicant and the plaintiff no.2 can settle their issues separately.
Challenging this order, the present Misc. Petition has been filed. The
further proceedings have been stayed by the order of this Court.
9. Challenging the impugned order, the learned counsel for the
petitioners argued that the applicant has a registered Will in his favour
executed by the deceased plaintiff, and therefore, the substitution ought to
have been allowed, particularly when the defendants are not concerned
with the validity of the Will. It is his submission that the plaintiff no.2, who
could possibly have grievance against the Will, has not disputed the same
and, on the contrary, has given his affidavit in support of the application
under Order 22 Rule 3. The learned counsel further submitted that the
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applicant, being the propounder of the Will, is a necessary party to the lis
and is required to be substituted.
10. On the other hand, the learned counsel for the respondents opposed
the submissions made by the petitioners' counsel. As per his submission,
the Will cannot be accepted merely because the other plaintiff has not
raised any dispute. It is his submission that since the respondents have
disputed the Will, the enquiry with regard to the genuineness of the Will is
required to be conducted under Order 22 Rule 5 of the Code of Civil
Procedure. The learned counsel further submitted that the adjudication of
validity of the Will cannot be done in the present suit, as it will further
prolong the decision. He also submitted that since the right to sue survives
in favour of plaintiff no.2, the substitution of the applicant in favour of
deceased plaintiff is not warranted. He thus submitted that the impugned
order passed by the learned Trial Court is just and proper, and the petition
deserves to be dismissed.
11. Considered the arguments and perused the record.
12. The term 'legal representative' is defined under Section 2(11) of CPC
as under;
(11) "legal representative" 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 and where a party sues or is sued in a
representative character the person on whom the estate
devolves on the death of the party so suing or sued;
13. Thus, the definition is inclusive and broad in nature. It not only
includes the natural legal heirs of the deceased party but also includes a
person who may or may not be the heir but is eligible to inherit the
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deceased estate. In such a case, the person is required to be substituted in
the suit so as to represent the estate of the deceased. This will definitely
include a person who claims interest in the property on the basis of a Will.
14. Order 22 Rule 5 CPC then contemplates a summary enquiry with
regard to issue as to legal representative. This summary enquiry is only for
the purpose of continuance of lis and substitution by virtue of enquiry
under Order 22 Rule 5 CPC does not in any manner finally make him the
heir of the deceased litigant or fetter the other party to the litigation from
questioning his claim in any appropriate procedure. This has been so held
by this Court in the case of Raghunathsingh Vs. Gangabai reported in
1961 MPLJ 398 wherein the Court held as under:
"It is well established principle that the mere fact of the
substitution of any claimant does not in any manner
finally make him the heir to the deceased litigant or
fetter the other party to the litigation from questioning
his claim in an appropriate proceeding. The legal
representative brought on record is for the limited
purpose of conducting the litigation. It is, therefore, left
open to Raghunath Singh if he considers fit, to get the
dispute between him and Bhuwansingh in regard to the
succession to the estate of Gangabai, cleared in
separate litigation."
15. The similar issue was considered by this Court in the case of Than
Singh v. Majboot Singh reported in 2010(3) MP LJ 379. Dealing with the
issue, the Court held as under:
"7. It is true, that S.A. No. 34/82 was submitted by
Bhairosingh, father of the parties to the suit. On his
death during pendency of appeal, Than Singh alone
submitted an application for being substituted in place
of the deceased as the sole representative on the
strength of alleged Will dt. 15-10-1979. Application
was allowed and Than Singh alone was substituted as
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legal representative of the deceased father. The term
"legal representative" is defined in clause (11) of
section 2 of the Code of Civil Procedure as follows:--
'legal representative' 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 and where a party sues or is
sued in a representative character the person on
whom the estate devolves on the death of the party
so suing or sued.
Perusal of this definition makes it clear that the term
'legal representative' is not synonymous to 'legal heir'.
Order 22, Rule 3 read with Rule 11 of the Code of Civil
Procedure empowered this Court in case of death of
appellant to substitute for him his legal representative.
It was merely for the purpose of empowering the Court
to proceed with the appeal and nothing more. This
Court while deciding the application under Order 22,
Rule 3 read with Rule 11, Civil Procedure Code was
not required to decide the heirship of the deceased. The
decision as to who was the legal representative was
limited for the purpose of carrying on the appeal and
cannot have the effect of conferring any right to
heirship or to property. I am fortified in my this view
by this Courts decision in the case of The Kalyanmal
Mills Ltd. v. Wali Mohammad, 1965 MPLJ 452 : AIR
1965 MP 72, wherein it is observed:
"The effect of an order passed under Order 22,
Rule 5 would not be to confer on the intermeddler
any right or title or interest, if there be none. Such
an order is only for the purposes of the suit itself.
The right of the intermeddler has to be adjudicated
upon independently of such order."
Thus, the legal representatives are impleaded in the
proceedings only for the purpose of prosecuting the
case and the right as legal heir is to be established in an
independent proceeding and accordingly an order of
substitution under Order 22 of Civil Procedure Code
does not operate as res judicata in a subsequent suit. I
may successfully refer here the Full Bench Decision of
Punjab and Haryana High Court in the case of
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Mohinder Kaur v. Piara Singh (FB), AIR 1981 Punjab
and Haryana 130, wherein it has been observed:--
"9. We are, therefore, of the opinion that in
essence a decision under Order 22, Rule 5, Civil
Procedure Code, is only directed to answers an
orderly conduct of the proceedings with a view to
avoid the delay in the final decision of the suit till
the persons claiming to the representatives of the
deceased party get the question of succession
settled through a different suit and such a decision
does not put an end to the litigation in that regard.
It also does not determine any of the issues in
controversy in the suit. Besides this it is obvious
that such a proceeding is of a very summary nature
against the result of which no appeal is provided
for. The grant of an opportunity to lead some sort
of evidence in support of the claim of being a legal
representative of the deceased party would not in
any manner change the nature of the proceedings.
In the instant case the brevity of the order
(reproduced above) with which the report
submitted by the trial Court after enquiry into the
matter was accepted, is a clear pointer to the fact
that the proceedings resorted to were treated to be
of a very summary nature. It is thus manifest that
the Civil Procedure Code proceeds upon the view
of not imparting any finality to the determination
of the question of succession or heirship of the
deceased party."
This Court also in the case of Raghunathsingh v.
Gangabai, 1961 MPLJ 398 has observed as under:--
"It is a well established principle that the mere
fact of the substitution of any claimant does not in
any manner finally make him the heir to the
deceased litigant or fetter the other party to the
litigation from questioning his claim in an
appropriate proceeding. The legal representative
brought on record is for the limited purpose of
conducting the litigation. It is, therefore, left open
to Raghunath Singh if he considers fit, to get the
dispute between him and Bhuwansingh in regard
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to the succession to the estate of Gangabai, cleared
in a separate litigation."
At this juncture, it is useful to quote the following
passage from the Division Bench decision of Madras
High Court in the case of Subramania Pillai v.
Masterly, AIR 1976-Madras 303:--
"It is not always a legal requisite that, inevitably,
only the heirs, all of them or any of them, should
figure as legal representatives. The procedural law
requiring representation will stand satisfied if
there is substantial representation in the sense that
all that could be done in defence was done by
someone interested in the issue in the suit."
This apart, it may be seen that there is no iota on
record to establish that the plaintiffs were made aware
of claim of Thansingh to the property of the deceased
father on the strength of the alleged Will, It is nowhere
established that the plaintiffs had accepted the Will and
had conceded to the substitution of Thansingh in place
of deceased Bhairosingh as his sole legal heir on the
basis of the alleged Will. Accordingly, it is held that the
defendant/appellant does not derive any benefit from
his substitution as legal representative in S.A. No.
34/82 in place of the deceased Bhairosingh.
16. Thus, the enquiry contemplated under Order 22 Rule 5 CPC is
summary in nature and is required only for purposes of conducting the suit.
In the facts of the present case, the enquiry as contemplated under Order
22 Rule 5 CPC is not warranted. The reason being, the only affected party,
because of execution of will by deceased plaintiff, could be the plaintiff
no.2, who has consented for substitution of the applicant in the suit on the
basis of will. The defendants, since are having their independent claim and
are not affected because of the Will executed in favour of the applicant, are
actually not adversely affected because of the Will.
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17. Considering the aforesaid, and particularly in view of the fact that
the rival claims set up by the plaintiffs and defendants in the present suit
are independent of each other and has to stand on their own legs, the
defendants are, infact, not concerned with the validity of the Will. They
can succeed in the suit on their own legs. However, on the other hand, if
the defendants succeed, the applicant would adversely suffer as he gets
interest in the property by virtue of the will and decree would be passed
behind his back. Therefore, for purposes of continuation of this suit, the
substitution of the applicant, who claims interest in the property based
upon a registered Will, ought to have been allowed.
18. The matter can be understood from a different angle. If the suit
succeeds, nobody would be adversely affected by not taking the applicant
on record as a legal representative of the deceased plaintiff. However, if
the defendants succeed in the suit, that would definitely adversely affect
the applicant, inasmuch as he claims interest in the property on the basis of
the registered Will. In such a case, the decree would be passed behind the
back of a necessary party.
19. The applicant himself has come up for his substitution on the basis
of the Will. That means he has readily offered himself to be bound by the
decree that may be passed in the suit. If the application is rejected and he is
not made a party, any decree that may be passed in favour of the
defendants would not bind the applicant. However, this eventuality can be
avoided by substituting him on record as legal representative of the
deceased plaintiff.
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20. In view of the discussion made above, it is evident that nobody is
adversely affected if the applicant is substituted in place of the deceased
plaintiff. On the other hand, the applicant would be adversely affected if
the decree is passed in favour of the defendants without impleading him.
21. In view of the aforesaid discussion, the order dated 1.2.2017 passed
by the 4th Civil Judge, Class 1, Gwalior, in Civil Suit No.49-A of 2014 is
set aside. The application under Order 22 Rule 3 CPC filed by the
petitioners is allowed. The applicant, Alok Raghuvanshi, is permitted to be
substituted in place of the deceased plaintiff no.1.
22. However, it is made clear that this substitution has been allowed
only for the purposes of continuation of the lis and would not mean that the
validity of the Will has been adjudicated and accepted by this Court. In the
case of rival claims, if any, raised by the party affected by the Will in
future, the same shall be adjudicated independently in accordance with
law.
23. With the aforesaid observations, the revision petition stands allowed
and disposed of.
(ASHISH SHROTI)
JUDGE
Vpn/-
