Sunday, 27 October 2019

Whether a person added in proceeding as legal representative is entitled to get right in suit property?

 Even otherwise an order determining in an inquiry under this Rule that a person is a legal representative is confined to the proceedings to enable the claimant to proceed with or continue the suit or appeal as the case may be. It does not confer or recognise heirship. The fact that the order mentions a person to be a legal representative does not confer on an intermeddler any right, title or interest in the deceased's estate. It only empowers him to continue the suit or appeal as the case may be.

14. Here it shall be apposite to refer to the observations made by the Hon'ble Supreme Court in Jaladi Suguna vs. Satya Sai Central Trust MANU/SC/7614/2008 : (2008) 8 SCC 521 wherein it was held as under:

"10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-à-vis. other rival claimants to the estate of the deceased."

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

R.S.A. No. 652 of 2005

Decided On: 08.03.2019

Raman Kumar Vs.  Narain Dev 

Hon'ble Judges/Coram:
Tarlok Singh Chauhan, J.

Citation: AIR 2019 HP 70


1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants/defendants against the judgment and decree dated 15.9.2005 passed by learned District Judge, Hamirpur, H.P. in Civil Appeal No. 57 of 2003 whereby he reversed the judgment and decree passed by learned Sub Judge 1st Class (I), Hamirpur on 17.5.2003 in C.S. No. 4 of 1998.

2. The facts, in brief, are that Narain Dev, plaintiff alongwith his mother Smt. Durgawati, plaintiff No. 2 and his aunt Smt. Duarku Devi, plaintiff No. 3 on 1.1.1998 had instituted a suit for possession by partition against the defendants on the allegations that he had been owner in possession of 13/24 share in the land/property described in Khata Khatauni No. 88/103, Khasra No. 283 measuring 4 K - 19 M, situated in Tika Kot, Mouza Kohla, Tehsil Nadaun, District Hamirpur, H.P. It was averred that the suit property was owned and possessed by plaintiff No. 3 Duarku Devi to the extent of ½ share. The remaining ½ share of the suit property was owned and possessed by the plaintiff and his brother Sh. Dharamvir in equal share. Sh. Dharamvir had died intestate on 19.11.1995. After the death of Sh. Dharamvir, his ¼ share in the suit property was to go to his two daughters, two sons, one widow (defendants No. 5 to 9) and mother, plaintiff No. 2 in equal share. As against this, defendants No. 5 to 9 on 28.2.1996, had got mutation No. 1286, copy Ext. P-3 of the estate of Sh. Dharamvir attested in their favour. The plaintiff alleged that mutation No. 1286 was wrong, illegal and void to the extent, the plaintiff No. 2 had been deprived of her 1/6 share in the estate of her son. It was further averred that the defendants No. 5 to 7 and 9 could not sell the share of plaintiff No. 2 to defendant No. 1. The plaintiff No. 3 Smt. Duarku Devi had sold her ½ x ½ share in the suit property in favour of Smt. Kaushalya Devi and Santosh Kumari (defendant No. 2). Smt. Duarku Devi had been left with ¼ share in the suit property. Smt. Kaushalya Devi had sold her share in the suit property in favour of defendant No. 3 Roshan Lal and defendant No. 4 Biasan Devi. It was averred that the share of plaintiffs No. 1 to 3 in the suit property was 13/24. The suit property was joint and undivided and was liable to be partitioned through the process of the court. Defendant No. 1 unauthorisedly and illegally had trespassed into the house of the plaintiff No. 1 and had broken the lock of the house of the plaintiffs and had taken forcible possession thereof. The plaintiff No. 1 had reported the matter to the local police but without any action. Defendant No. 8 had also threatened to alienate the share of plaintiff No. 2 in the suit property. Defendants No. 1 to 4 wanted to raise construction on the best portion of the suit land and they were liable to be restrained from raising construction in the best portion of the suit land till partition by issuance of a decree of perpetual injunction.

3. Defendants No. 1 to 3 resisted and contested the suit by filing written statement, in which preliminary objections qua maintainability, estoppel and cause of action were taken. On merits, defendants No. 1 and 3 had stated that Sh. Dharamvir had been co-owner in possession of ¼ share of the suit property. Sh. Dharamvir died on 19.11.1995 and after his death, his share in the suit property had rightly been mutated in favour of defendants No. 5 to 9 vide mutation No. 1286 on 28.2.1996. Plaintiff No. 2 was not entitled to the state of Dharamvir or any share therein. Defendants No. 5 to 7 and 9 had rightly sold their share in the suit property in favour of defendant No. 1. The plaintiffs could not be said to be owners in possession of 13/24 share of the suit property. It was averred that the suit property had been privately partitioned long back. The parties had been in separate possession of built up and vacant area of the suit property. Defendant No. 1 had denied having taken forcible possession of the house property of the plaintiffs. Defendants No. 1 to 3 had denied having started construction in the best portion of the suit property. They prayed that the plaintiffs were not entitled to any relief much less to the relief of possession by partition and permanent injunction.

4. On the pleadings of the parties, following issues were framed by the learned trial Court on 15.10.2001:

1. Whether the plaintiff is entitled to the relief of possession by way of partition qua the share of the plaintiff i.e. 13/24 share of the suit land as mentioned in the body of the plaint as claimed? OPP

2. Whether the suit is not maintainable? OPD

3. Whether the plaintiff has no cause of action? OPD

4. Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD

5. Relief.

5. The learned trial Court after recording the evidence and evaluating the same dismissed the suit filed by the plaintiff. Aggrieved by the judgment and decree passed by the learned trial Court on 17.5.2003, plaintiff/respondent No. 1 preferred an appeal before the learned lower appellate Court, who vide its judgment and decree dated 15.9.2005 allowed the appeal and reversed the judgment and decree passed by learned trial Court.

6. Aggrieved by the judgment and decree dated 15.9.2005 passed by the learned lower Appellate Court, the appellants/defendants have come in second appeal before this Court.

7. This Court vide order dated 4.5.2006 admitted the appeal on the following substantial question of law:

"Whether the first appellate Court was not right in passing a preliminary decree of partition when partition had already been ordered by metes and bounds by the Revenue Officer having jurisdiction in the matter?"
8. I have heard learned counsel for the parties and have gone through the records carefully.

9. It is not in dispute that the partition has already been ordered by metes and bounds by the competent Revenue Officer and the said order has also attained finality. However, learned counsel for the appellants would argue that since these partition proceedings were instituted after filing of the suit, therefore, these have no consequences, more particularly, when it is settled law that the order passed by the Civil Court is binding on the revenue court.

10. There can be no quarrel with the proposition that it is the order of the civil court that would prevail over the revenue court. However, nonetheless since the partition had already been effected and respondent No. 1 did not assail the same that in itself would go to prove and establish that he was not aggrieved by the orders passed by the revenue court. That apart, at no stage had the respondent No. 1 moved an application before the civil court for staying the proceedings before the revenue court.

11. In addition to the above, it would be noticed that the suit was initially filed by the three plaintiffs namely Narain Dev, Smt. Durgawati and Smt. Duarku Devi and all the plaintiffs together had claimed 13/24 share in the suit property. It is borne out from the record that during the pendency of the suit, both Smt. Durgawati and Smt. Duarku Devi died, yet the learned first Appellate Court gave the shares of Smt. Duarku Devi and Smt. Durgawati to respondent No. 1, even though Smt. Duarku was left with no property after having sold the same. As regards the share of Durgawati that would have been inherited by respondent No. 1 alone but would be inherited alongwith the other heirs, but the first appellate Court by holding that there was a Will in favour of respondent No. 1, held him entitled to the said share.

12. These findings to say the least are perverse. The learned first appellate Court has gone on record to hold that respondent No. 1 had produced registered Will stated to have been executed in his favour by his mother Smt. Durgawati, which findings, is contrary to the record. No doubt, respondent No. 1 had placed on record a photocopy of the alleged Will with an application for bringing on record the legal heirs of Durgawati, but then no inquiry as envisaged under Order 22 Rule 5 CPC was held by the Court so as to determine the title of respondent No. 1 on the basis of alleged Will. Respondent No. 1 was simply brought on record as legal representative of Durgawati for the purpose of prosecuting the suit.

13. Even otherwise an order determining in an inquiry under this Rule that a person is a legal representative is confined to the proceedings to enable the claimant to proceed with or continue the suit or appeal as the case may be. It does not confer or recognise heirship. The fact that the order mentions a person to be a legal representative does not confer on an intermeddler any right, title or interest in the deceased's estate. It only empowers him to continue the suit or appeal as the case may be.

14. Here it shall be apposite to refer to the observations made by the Hon'ble Supreme Court in Jaladi Suguna vs. Satya Sai Central Trust MANU/SC/7614/2008 : (2008) 8 SCC 521 wherein it was held as under:

"10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-à-vis. other rival claimants to the estate of the deceased."
15. As observed above, even though the order of partition passed by competent Revenue Officer was not assailed by respondent No. 1, yet the learned first Appellate Court proceeded to set-aside this order even though the same was not even placed before it. What is more glaring is that the plaintiffs had sought possession but had not specifically assailed the sale effected by defendants No. 5 to 7 and 9 of the share of plaintiff No. 2 in the alleged suit property in favour of defendant No. 1 and, therefore, in absence of any declaration such sale could not have been set-aside.

16. The learned first Appellate Court proceeded to observe that since a larger relief of possession by partition of the suit property had been sought, therefore, such relief of possession would include the relief of declaration. The reasoning accorded by learned first Appellate Court is absolutely fallacious and contrary to the settled law. The lis inter se the parties is to be determined on the basis of the issues framed and evidence led on such issues. There was no issue inter se the parties regarding the validity or otherwise of the aforesaid sale deed and, therefore, the sale deed in the given circumstances could not have been set-aside.

17. It would thus be evident from the aforesaid discussion that the judgment and decree passed by learned first Appellate Court to say the least is perverse. The learned first Appellate Court has in fact carved out an entirely different case in favour of respondent No. 1 and thereafter decreed the same contrary to law. All norms of propriety and procedure have been given a complete go-bye. The plaintiff has kept mum for more than one and half decades from the date of order of partition passed by the competent Revenue Officer and reasons for the same is not difficult to guess in view of what has been narrated above.

The substantial question of law is answered in favour of the appellants and against the respondents.

18. In view of the aforesaid discussion, I find merit in this appeal and the same is allowed. Consequently, the judgment and decree passed by the learned first Appellate Court is set-aside and that of the learned trial Court is restored, leaving the parties to bear their own costs. Pending application(s) if any, also stands disposed of.




Print Page

No comments:

Post a comment