Tuesday 3 September 2013

Enquiry as to legal heirs-factors to be taken in to consideration

Now coming to the judgments of the Apex Court (supra),  in the 
case of Jaladi Suguna's case (supra), the facts were that the Plaintiff Suguna 
died during the pendency of the Appeal which was filed against the decree 
which was in her favour. Two applications for being brought on record as heirs 

were filed, one by her husband who claimed to be the sole heir, and the other 
application which was filed by her nieces and nephews, who claimed on the 
basis of a Will executed by Suguna in their favour. The High Court of Andhra 
Pradesh directed the Trial Court under the proviso to Rule 5 of Order XXII of 
the Code of Civil Procedure to try the said question and submit its findings. 
The Trial Court accordingly held an enquiry and submitted a report to the High 
Court. However, the High Court did not proceed to determine the said issue as 
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to who was the legal representative of the said Suguna but proceeded to hear 
the main Appeal and decided the same.  It is in the said context that the Apex 
Court held that the High Court should have decided the said issue firm before 
deciding   the   Appeal,   as   by   not   deciding   the   issue,   the   Appeal   has   been 
proceeded with against a dead person. However, what is relevant to note in the 
context of the present Petition is that there were a competing claims in the said 
case.
In the case of M/s. Kanhiya Singh Santok Singh (supra) the facts 
were that a decree was passed in favour of the landlord i.e. Kartar Singh on the 
ground of bonafide requirement, the said decree was passed at the Appellate 
stage as the Trial Court had dismissed the suit in question. Against the said 
decree the Defendant tenant Santok Singh had filed a Second Appeal in the 
High Court. Pending the Second Appeal, the said Santok Singh died. The sons 
of the said Santok Singh namely Man Mohan Singh and Jaswant Singh filed an 

application  for being brought on record as Appellants as according to them 
they   were   ordinarily   carrying   on   business   along   with   their   father   as   the 
members of his family. The Respondent landlord filed a reply opposing the said 
application, and prayed that the Appeal be dismissed as abated.   The Lower 
Appellate   Court   rejected   the   application   by   the   sons.   The   objection   of   the 
Respondent landlord was on the touchstone of the definition of “tenant” under 
Section   3(vii)   of   the   Rajasthan   Premises   (Control   of   Rent   &   Eviction)   Act, 
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1950, as it was the case of the landlord that the sons of Santok Singh had 
separated   in   view   of   the   partition   having   taken   place   by   way   of   family 
settlement, the Applicants did not come within the category of a tenant. It is in 
the said context that the Apex Court held that the High Court ought to have 
conducted an enquiry under Order XXII Rule 5 of the Code of Civil Procedure 
as to whether the Applicants could substitute the said Santok Singh.  The said 
enquiry   was   required   to   be   conducted   as   the   landlord   had   disputed   the 
entitlement of the sons of Santok Singh to be brought on record in view of the 
definition of “tenant” in the Reajasthan Premises (Control of Rent & Eviction) 
Act, 1950.
It is in the fact situation of the cases before the Apex Court, that 
the Apex Court held that an inquiry under Rule 5 of Order XXII of the Code of 
Civil Procedure would be necessary. However, such is not the case in the instant 
matter as there are no competing claims and the issue is sought to be raised by  

the   Defendant   Nos.2   and   3   by   only   making   a   bald   statement   that   the 
Defendant Nos.4(a) to 4(c) are not the heirs of the original Plaintiff. Hence in 
by the Trial Court could not be faulted with.
so far as the instant matter is concerned, the enquiry to the extent carried out 
In   so   far   as   the   Applicant     Mrs.   Francesca   Agatha   Von   Geyer   is 
concerned, it is required to be noted that the suit in question has been filed by 

her   as   the   Power   of   Attorney   holder   of   the   Plaintiff   in   the   year   1999.   As 
contended by Shri Denzill D'mello, the learned counsel appearing on behalf of 
the Respondent Nos.1 to 3 herein, she is not a stranger but is related both to 
the Plaintiff and the original Defendant No.1 and now the Defendant Nos. 1(a) 
to 1(c). The Applicant is the wife of Arnold who is the cousin of the original 
Plaintiff. Hence it cannot be said that the proceedings are being conducted by a 
stranger or that she is not entitled to file the application for bringing the heirs 
of the Plaintiff on record. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

Mumtaz Iqbal Shaikh

versus

Alain Lousi Philip Cousin1
Citation;2013(3) ALL M R 884
R. M. SAVANT, J.
22nd March 2013
Citation; 2013 (3) ALL M R 884



Rule, with the consent of the learned counsel appearing for the 
parties made returnable forthwith and heard.
2
The   writ   jurisdiction   of   this   Court   under   Article   227   of   the 
Constitution of India is invoked against the order dated 12/02/2013 passed by 
the   learned   Judge,   City   Civil   Court,   Greater   Mumbai,   by   which   order   the 
application being Chamber Summons No.954 of 2012 for bringing the heirs of 
the   original   Plaintiff   by   transposing   the   Defendant   Nos.4(a)   to   4(c)   as 
Plaintiffs came to be allowed.

The issue therefore which arises in the above Petition is as regards 
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the   entitlement   of   the   Defendant   Nos.4(a)   to   4(c)   to   be   transposed   as 
Plaintiffs.
4
The   suit   in   question   was   originally   filed   in   this   Court   and   was 
numbered as L.C. Suit No.1948 of 1999.  On the pecuniary jurisdiction of the 
City Civil Court, Greater Mumbai being enhanced, the said suit came to be 
transferred to the City Civil Court, Greater Mumbai and is now numbered as 

S.C. Suit No.8446 of 1999. The said suit has been filed for seeking declaration 
that the original Plaintiff and the Defendant No.4 are the owners of one­half 
undivided share in the property known as Victoria Terrace comprising of Flat 
Nos. 2, 4 and 6 with the proportionate common areas together with one half 
undivided   share   in   the   land   on   which   the   said   building   is   standing.     The 
original Plaintiff also sought a declaration that the Agreement for Sale dated 
3/7/1969 allegedly executed by the Plaintiff in favour of the Defendant No.1, 
the Deed of Confirmation dated 23/10/1996 executed by the Defendant No.1 
in   her   own   favour   and   the   Indenture   dated   1/11/1996   executed   by   the 
Defendant No.1 in favour of the Defendant Nos.2 and 3 are null and void and 
liable to be set aside.  The original Plaintiff has also sought a declaration that 
the   transfer   of   tenancy   in   respect   of   flat   No.4   in   Victoria   Terrace   by   the 
Defendant   No.1   to   Defendant   No.3   is   null   and   void   and   she   is   entitled   to 
possession of the said flat No.4.  The original Plaintiff has also sought certain 
consequential reliefs like mense profit and rendering of accounts etc.


In the said suit, the Plaintiff filed an application for injunction and 
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for appointment of receiver by way of Notice of Motion .  Whilst adjudicating 
upon   the   said   Notice   of   Motion,   a   learned   Single   Judge   of   this   Court 
(A.P
.Shah.J. as His Lordship then was) has recorded a finding in respect of the 
genuineness   of   the   said   Agreement   for   Sale   dated   3/7/1969.     The   learned 
Judge has  expressed serious doubts about execution of the said Agreement for 
are inter­alia the following :­
The request of the Defendant No.1 for a Power of 
(i)

Sale. The reasons recorded for the same, as can be seen from the said order, 
Attorney to be executed in her favour was turned down 
by   the   original   Plaintiff   Monica   alias   Mona   Grace 
Cousin;
(ii)
The Defendant No.1 had addressed a letter to the 
Plaintiff that her share is not put up for disposal;
(iii)
That   for   a   period   of   15   years   during   which 
correspondence   was   exchanged   between   the   parties 
there   was   not   a   whisper   by   the   Defendant   No.1   in 
respect of the alleged Agreement dated 3/7/1969.

In so far as the Deed of Confirmation is concerned, the learned 
Judge has posed a question  as to how the  Plaintiff can confer title on herself 
by signing a  Deed of  Confirmation  in  her own  favour.   The learned Judge, 
therefore, allowed the said Notice of Motion and appointed the Court Receiver, 
High   Court,   Bombay   as   a   Receiver   of   the   property   pending   the   suit.     The 
Receiver still continues to be in possession of the property. 
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The   Defendant   No.4   i.e.   Alan   Cousin   died   on   17/7/2010,   as   a 
consequence of which a Chamber Summons was filed by the Applicant i.e. the 
Power   of   Attorney   Holder   of   the   original   Plaintiff   for   bringing   his   heirs   on 
record. The said Chamber Summons No.1309 of 2010 came to be allowed by a 
learned   Single   Judge   of   this   Court   by   order   dated   22/12/2010.   It   is   an 
undisputed position that the said order was not carried further and therefore 
the order allowing the heirs of the Defendant No.4  i.e. the Defendant Nos.4(a) 
to 4(c) to be brought on record has become final. 
Thereafter   the   Plaintiff  i.e.   Marie   Lousie   Arlene   Cousin   died   on 
15/5/2012.   This   has   resulted   in   the   Applicant   i.e.   her   Power   of   Attorney 
Holder Mrs. Francesca Agatha Von Geyer filing an application for bringing her 
heirs on record in the matter of substituting the Plaintiff by Defendant Nos.4(a) 
and 4(c). This was by way of the present Chamber Summons No.954 of 2012. 
To the affidavit in support of the said Chamber Summons a death certificate of 

the said Marie Cousin was annexed. The said Chamber Summons was filed on 
the basis of the Power of Attorney which has been executed by the Defendant 
Nos.4(a) to 4(c) in favour of the Applicant which is dated 1/6/2012.  The said 
Chamber Summons was founded on the fact that the Defendant Nos.4(a) to 
4(c)   are   the   only   heirs   of   the   original   Plaintiff   and   since   the   right   to   sue 
survives to them, they are required to be brought on record. 
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To the said Chamber Summons, the Defendants have also 
filed their replies and the opposition to bring the Defendant Nos.4(a) to 4(c) 
on record is on the ground that though it is claimed that there is a Will in 
favour of the Defendant Nos.4(a) to 4(c), no probate of the said Will has been 
obtained or even the Will produced.   It is further averred that the Defendant 
Nos.4(a) and 4(c) have failed to establish that they are the heirs and legal 
representatives of the deceased Plaintiff. The Defendants questioned the Power 
of   Attorney   executed   by   the   Defendant   Nos.4(a)   to   4(c)   in   favour   of   the 
Applicant on the ground that there was no rubber stamp of the notary and the 
number of the notary registration was not affixed and therefore according to 
the Defendants the said Power of Attorney was suspicious. It was the case of 
the Defendants that under Order XXII Rule 5 of the Code of Civil Procedure the 
Court   is   required   to   adjudicate   upon   the   issue   as   to   who   are   the   legal 
representatives of the Plaintiff in the event an objection is raised in that regard. 
lgc 

In answer to the said objection, it was the case of the Applicant 
that   the   Power   Attorney   Holder   bears   the   seal   of   the   notary   and   that   the 
Defendant Nos.4(a) and 4(c) are the only legal representatives of the Plaintiff. 
It was further the contention of the Applicant that under the Indian Succession 
Act, the heirs of the deceased who dies intestate are entitled to succeed to his 
property and therefore to represent the estate of the Plaintiff, the heirs of the 
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Plaintiffs are required to be brought on record in the suit.
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The Trial Court considered the said Chamber summons and by the 
impugned order has allowed the same. The gist of reasoning of the Trial Court 
as can be seen is that the claim of the Applicant that the Defendant Nos.4(a) to 
4(c) being the heir of the original Plaintiff is not challenged by any third party 
who in turn claims to be the heirs of the deceased Plaintiff.   The Trial Court on 
a   perusal   of   the   Power   of   Attorney   also   observed   that   the   said   Power   of 
Attorney is executed in the U.K. and bears the seal of the notary and in view of  
the presumption which arises under Section 85 of the Indian Evidence Act, a 
presumption would arise that the Power of Attorney has been executed before 
the notary. The Trial Court therefore reached a conclusion that the Applicant 
was therefore entitled to file the application in question and since the estate of 
the Plaintiff was required to be represented by the Defendant Nos.4(a) to 4(c) 
they were required to transposed as Plaintiffs in place of the original Plaintiff. 
As indicated above, it is the said order dated 12/2/2013 which is impugned in 
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the present Petition.
Heard   the   learned   counsel   for   the   parties.   On   behalf   of   the 
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Petitioners the principal contention of Shri Rajesh Shah the learned counsel 
appearing for the Petitioners is that in case of dispute as to who are the legal 
representatives of a party it is incumbent upon the Trial Court to conduct an 
inquiry as contemplated by Rule 5 of Order XXII of the Code of Civil Procedure. 

The   learned   counsel   for   the   Petitioners   would   contend   that   without   such 
inquiry the Chamber Summons for transposing the Defendant Nos.4(a) to 4(c) 
could not have been allowed. 
To   buttress   the   said   contention,   the   learned   counsel   for   the 
Petitioners sought to rely upon the judgments of the Apex Court reported in 
AIR 2008 SC 2866  in the matter of  Jaladi Suguna (Dead) through L.Rs. V  
Satya Sai Central Trust & ors.  and the judgment reported in  AIR 2009 SC  
1600  in the matter of  M/s. Kanhiya Singh Santok Singh & ors v/s. Kartar  
Singh.   The said judgments according the learned counsel for the Petitioners 
lay down the course of action which the Trial Court is required to follow in the 
event there is a dispute as to who is the heir or heirs of a particular party. The 
learned counsel would contend that though the Applicant relies upon the Will 
of the Plaintiff in favour of the Defendant Nos. 4(a) to 4(c), no such Will has 
been  produced.  The  learned counsel  for  the  Petitioners  would contend  that 


allowing the said Chamber Summons filed by the Applicant, who is the Power 
of Attorney Holder, would result in continuing the  litigation by proxy.   The 
learned  counsel   for  the   Petitioners   would  contend   that   nobody   has  seen  or 
knows the where abouts of the the Defendant Nos.4(a) to 4(c) which includes 
the heirs of the Defendant No.1.
The learned counsel appearing for the Defendant Nos.1(a) to 1(c) 
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i.e.   the   Respondent   Nos.4,   5   and   6   herein   Ms.Sheetal   Kumar   would   also 
support   the   contention   of   the   Shri   Rajesh   Shah   on   the   entitlement   of   the 
Defendant   Nos.4(a)   to   4(c)   for   being   transposed   as   Plaintiffs.   The   learned 
counsel Ms. Sheetal Kumar also urged that the Defendant Nos. 1(a) to 1(c) 
have not heard anything about the Defendant Nos.4(a) to 4(c).   The learned 
counsel for the said purpose also sought to rely upon the deposition of Arnold 
recorded in the companion suit.
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Per   contra,   Shri   D’Mello   the   learned   counsel   appearing   for   the 
Applicant would seek to rely upon the order passed in the Notice of Motion 
filed for appointment of the Receiver and would contend that at the stage of 
considering   the   application   for   appointment   of   Receiver,   this   Court   has 
recorded a finding as regards the falsity of the case of the Defendant No.1 and 
has expressed serious reservations about the genuineness of the Agreement for 
Sale dated 3/7/1969. The learned counsel would contend that the Power of 

Attorney Holder i.e. the Applicant is not a stranger but she is the wife of Arnold 
who is the cousin of the original Plaintiff, and therefore, the Applicant is also 
related to the original Plaintiff and the Defendant No.1(a) to 1(c).  The learned 
counsel would contend that the question of conducting an inquiry would arise 
only if there are rival claims, however, in the instant case, except the denial by 
the   third   parties   i.e.   the   Defendants   2   and   3,   which   denial   is   also   without 
mentioning any other heirs of the Plaintiff, an issue is sought to be raised.  The  

learned counsel for the Applicant would distinguish the facts of the present 
case with the facts before the Apex Court in the two judgments cited (supra). 
The learned counsel would contend that the scope of the inquiry in the present 
case would be limited and to the extent as carried out by the Trial Court.   The  
learned counsel would contend that ultimately the endeavour is to see that the 
estate of the deceased is represented. The learned counsel would contend that 
since the Defendant Nos.2 and 3 have not questioned the order allowing the 
Defendant   Nos.4(a)   to   4(c)   being   brought   on   record   as   the   heirs   of   the 
Defendant No.4, the said Defendants now cannot question the transposing of 
the said Defendant Nos.4(a) to 4(c) as Plaintiffs and, as the Plaintiff and  the 
Defendant   No.4   were   brother   and   sister.     The   learned   counsel   would   lastly 
contend that assuming that there is no Will, the Defendant Nos.4(a) to 4(c) are 
entitled to be brought on record as the heirs of the Plaintiff having regard to 
Section 45 of the Indian Succession Act.

Having heard the learned counsel for the parties, I have bestowed 
my anxious consideration to the rival contentions.  At the out set it is required 
to be noted that the relief sought in the suit is a declaration which the Plaintiff 
sought that she and the Defendant No.4 are the joint owners of the one­half 
undivided   share   in   the   property   known   as   Victoria   Terrace.   As   adverted   to 
herein above, this Court has recorded findings at the stage of considering the 
application  for   appointment  of  Court  Receiver,  which  findings  are  revolving 
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around the falsity of the case of the Defendant No.1 as regards execution of the 
Agreement for Sale dated 3/7/1969.  A learned Single Judge of this Court has 
also   expressed   serious   doubts   about   the   genuineness   of   the   document,   and 
expressed surprise about the  fact that the  Defendant No.1 by executing the 
Deed of Confirmation has sought to bestow title upon herself.   The learned 
Single Judge of this Court, as mentioned herein above, deemed it fit to appoint 
the  Court Receiver who is still in possession of the property in question.
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One of the defining aspect as it were which has a bearing in the 
context   of   the   relief   sought   in   the   Chamber   Summons   is   the   order   dated 
22/12/2010 passed in Chamber Summons No.1309 of 2010 thereby allowing 
the Defendant Nos.4(a) to 4(c) to be brought on record as the heirs of the 
Defendant No.4.  The said Defendant Nos.4(a) to 4(c) are the children of the 
Defendant No.4 and they have been brought on record pursuant to the said 
order dated 22/12/2010.   Significantly the said order was not challenged by 

any   of   the   Defendants   by   carrying   the   matter   higher,   and   therefore,   as 
contended by the learned counsel appearing on behalf of the Applicant the said 
order has become final. The consequence of the said order have to be borne in 
mind   considering   the   fact   that   the   Defendant   No.4   was   the   brother   of   the 
Plaintiff. 
Now coming to the contention of the learned counsel appearing 
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for   the   Petitioners   Shri   Rajesh   Shah   that   the   Trial   Court   ought   to   have 
conducted an inquiry in view of the dispute raised by the Petitioners i.e. the 
Defendant Nos.2 and 3 as regards whether the Defendant Nos.4(a) to 4(c) are 
the heirs of the original Plaintiff. It would therefore be opposite to reproduce 
Rule 5 of Order XXII :­
“Rule 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.]”
Reading of the said Rule postulates that 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 .  The said 
Rule therefore postulates an inquiry when there is a dispute as to who is the 
legal   representative.   In   the   instant   case,   as   can   be   seen,   except   Defendant 
Nos.4(a) to 4(c), nobody has come forward to claim that he or she is the legal  
representative   of   the   original   Plaintiff.    Pertinently   it   is   only   the   Defendant 
Nos.2 and 3 who are the beneficiaries of the alleged Agreement for Sale dated 
3/7/1969   and   the   subsequent   Sale   Deed   dated   1­11­1996   executed   by   the 

Defendant   No.1   who   have   taken   an   objection   and   have   denied   that   the 
Defendant Nos.4(a) to 4(c) are the heirs of the original Plaintiff.  However, it is 
not their case that there are   any other heir or heirs of the original Plaintiff 
who   have   a   better   right   than   the   Defendant   Nos.4(a)   to   4(c).     Hence 
considering the nature of the objection, the inquiry was limited to the extent 
whether the application made by the Applicant was in order, and whether the 
Applicant could represent the estate of the deceased. As indicated above there 
are no competing or rival claims between heirs for being brought on record. 
The Trial Court as can be seen from the impugned order has gone into the 
aspect   of   legality   and   validity   of   the   Power   of   Attorney   executed   by   the 
Defendant Nos.4(a) to 4(c) in favour of the Applicant and in the light of there 
being no competing claim came to a conclusion that the Defendant Nos.4(a) to 
4(c) are required to be brought on record as the heirs of the original Plaintiff. 
Since   the   order   passed   in   the   Chamber   Summons   No.1309   of   2010   dated 
22/10/2012 being not taken exception to by the Defendants, it is questionable 

whether   the   Defendants   can   now   take   exception   to   the   said   Defendant 
Nos.4(a) to 4(c) being transposed as the Plaintiff considering the fact that the 
original   Defendant   No.4   was   the   brother   of   the   Plaintiff   and   the   suit   in 
question has been filed for a declaration that the Plaintiff and the Defendant 
No.4 have one half undivided share in the property known as Victoria Terrace 
comprising   of   Flat   Nos.   2,   4   and   6   with   the   proportionate   common   areas 
together with a one half undivided share in the land in which the building is 
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standing. 
An issue was also sought to be raised as regards the status of the 

original Plaintiff at the time of her death, as according to the learned counsel 
appearing for the Petitioners herein Shri Rajesh Shah it is no where mentioned 
as to whether the Plaintiff died a spinster or whether she was married. In the 
present Petition, an affidavit has been filed on behalf of the Respondent Nos. 1  
to 3 i.e. the Defendant Nos.4(a) to 4(c). An affidavit in rejoinder has been filed 
by   the   Petitioners   disputing   the   averments   made   in   the   affidavit   of   the 
Respondent Nos. 1 to 3.
In Paragraph No.2 of the affidavit of the Respondent Nos.1 to 3, it 
has been stated that the original Plaintiff Marie Louise Monica Arlene Cousin 
who expired on 17th  May, 2012 was a spinster.   It has further been stated in 
Paragraph No.6 that the Respondent Nos.4 to 6 being the 1 st  cousins of the 

original Plaintiff are fully aware that she was never married and that she had 
only 1 sibling i.e. her brother Alan (the original Defendant No.4).  In the said 
context   the   death   certificate   of   the   original   Plaintiff   can   also   be   perused. 
Though undoubtedly the death certificate can only be said to be an evidence of 
the death of a particular person. The said death certificate also indicates that 
the original Plaintiff has died a spinster as her maiden name appears in the 
said certificate and in the column of marital status there is a blank appearing 

and a line is put across in the said box.   Hence there is a substance in the 
contention   of   the   learned   counsel   appearing   on   behalf   of   the   Respondent 
Nos.1, 2 and 3 that assuming that there is no Will in favour of the Defendant 
Nos.4(a) to 4(c) they are entitled to be brought on record as the heirs of the 
original   Plaintiff   having   regard   to   Section   45   of   the   Indian   Succession   Act. 
Though large number of prejudicial facts were sought to be stated by either 
side, in my view, it is not necessary to go into the said aspect as the controversy 
in the present Petition is limited only to the issue as to whether the Defendant 
Nos.4(a) to 4(c) are entitled to be brought on record as the heirs of the original 
Plaintiff and for their transposition as such.

Now coming to the judgments of the Apex Court (supra),  in the 
case of Jaladi Suguna's case (supra), the facts were that the Plaintiff Suguna 
died during the pendency of the Appeal which was filed against the decree 
which was in her favour. Two applications for being brought on record as heirs 

were filed, one by her husband who claimed to be the sole heir, and the other 
application which was filed by her nieces and nephews, who claimed on the 
basis of a Will executed by Suguna in their favour. The High Court of Andhra 
Pradesh directed the Trial Court under the proviso to Rule 5 of Order XXII of 
the Code of Civil Procedure to try the said question and submit its findings. 
The Trial Court accordingly held an enquiry and submitted a report to the High 
Court. However, the High Court did not proceed to determine the said issue as 
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to who was the legal representative of the said Suguna but proceeded to hear 
the main Appeal and decided the same.  It is in the said context that the Apex 
Court held that the High Court should have decided the said issue firm before 
deciding   the   Appeal,   as   by   not   deciding   the   issue,   the   Appeal   has   been 
proceeded with against a dead person. However, what is relevant to note in the 
context of the present Petition is that there were a competing claims in the said 
case.
In the case of M/s. Kanhiya Singh Santok Singh (supra) the facts 
were that a decree was passed in favour of the landlord i.e. Kartar Singh on the 
ground of bonafide requirement, the said decree was passed at the Appellate 
stage as the Trial Court had dismissed the suit in question. Against the said 
decree the Defendant tenant Santok Singh had filed a Second Appeal in the 
High Court. Pending the Second Appeal, the said Santok Singh died. The sons 
of the said Santok Singh namely Man Mohan Singh and Jaswant Singh filed an 

application  for being brought on record as Appellants as according to them 
they   were   ordinarily   carrying   on   business   along   with   their   father   as   the 
members of his family. The Respondent landlord filed a reply opposing the said 
application, and prayed that the Appeal be dismissed as abated.   The Lower 
Appellate   Court   rejected   the   application   by   the   sons.   The   objection   of   the 
Respondent landlord was on the touchstone of the definition of “tenant” under 
Section   3(vii)   of   the   Rajasthan   Premises   (Control   of   Rent   &   Eviction)   Act, 
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1950, as it was the case of the landlord that the sons of Santok Singh had 
separated   in   view   of   the   partition   having   taken   place   by   way   of   family 
settlement, the Applicants did not come within the category of a tenant. It is in 
the said context that the Apex Court held that the High Court ought to have 
conducted an enquiry under Order XXII Rule 5 of the Code of Civil Procedure 
as to whether the Applicants could substitute the said Santok Singh.  The said 
enquiry   was   required   to   be   conducted   as   the   landlord   had   disputed   the 
entitlement of the sons of Santok Singh to be brought on record in view of the 
definition of “tenant” in the Reajasthan Premises (Control of Rent & Eviction) 
Act, 1950.
It is in the fact situation of the cases before the Apex Court, that 
the Apex Court held that an inquiry under Rule 5 of Order XXII of the Code of 
Civil Procedure would be necessary. However, such is not the case in the instant 
matter as there are no competing claims and the issue is sought to be raised by  

the   Defendant   Nos.2   and   3   by   only   making   a   bald   statement   that   the 
Defendant Nos.4(a) to 4(c) are not the heirs of the original Plaintiff. Hence in 
by the Trial Court could not be faulted with.
so far as the instant matter is concerned, the enquiry to the extent carried out 
In   so   far   as   the   Applicant     Mrs.   Francesca   Agatha   Von   Geyer   is 
concerned, it is required to be noted that the suit in question has been filed by 

her   as   the   Power   of   Attorney   holder   of   the   Plaintiff   in   the   year   1999.   As 
contended by Shri Denzill D'mello, the learned counsel appearing on behalf of 
the Respondent Nos.1 to 3 herein, she is not a stranger but is related both to 
the Plaintiff and the original Defendant No.1 and now the Defendant Nos. 1(a) 
to 1(c). The Applicant is the wife of Arnold who is the cousin of the original 
Plaintiff. Hence it cannot be said that the proceedings are being conducted by a 
stranger or that she is not entitled to file the application for bringing the heirs 
of the Plaintiff on record. 
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In   my   view,   therefore,   the   view   taken   by   the   Trial   Court   in 
allowing the Application being Chamber Summons No.954 of 2012 cannot be 
taken   exception   to.   There   is   no   error   of   jurisdiction   or   any   other   illegality 
committed by the Trial Court in allowing the said Chamber Summons. No case 
for interference is, therefore, made out. The above Writ Petition to accordingly 
stand dismissed. Rule discharged with no order as to costs. 

At   this   stage   the   learned   counsel   appearing   on   behalf   of   the 
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Petitioners   seeks   continuation   of   the   stay   which   was   initially   granted   on 
12/2/2013 by the Trial Court and which is to continue till 25/3/2013 by virtue 
of   the   order   passed   by   this   Court   on   21/3/2013.     In   the   facts   and 
circumstances of the present case, the said stay is continued for a period of 
[R.M.SAVANT, J]


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