Whether order passed in an inquiry under O 22 R 5 of CPC is a decree?

 In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C. {Para 7}

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007.

Read full Judgment here: Click here

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Whether the court has jurisdiction to question registered adoption deed in collateral proceeding?

 Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:

16. Presumption as to registered documents relating to adoption. - Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. {Para 10}

11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:

In view of Section 16 aforesaid whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.

12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007

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Whether a person will acquire right in suit property if he is added as party to suit as legal representative?

The Full Bench of the Punjab & Haryana High Court in a judgment

reported as Mohinder Kaur & Anr. v. Piara Singh & Ors.AIR 1981 P&H 130

examined the question as to whether a decision under Order XXII

Rule 5 of the Code would act as res judicata in a subsequent suit

between the same parties or persons claiming through them. The

Court held as under:

“5. So far as the first argument of Mr. Bindra, noticed

above is concerned, we find that in addition to the

judgments of the Lahore High Court and of this Court,

referred to in the earlier part of this judgment, he is

supported by a string of judgments of other High Courts

as well wherein it has repeatedly been held on varied

reasons, that, a decision under Order 22, Rule 5, Civil

Procedure Code, would not operate as res judicata in a

subsequent suit between the same parties or persons

claiming through them wherein the question of

succession or heirship to the deceased party in the

earlier proceedings is directly raised. Some of these

reasons are as follows:—

(i) Such a decision is not on an issue arising in the suit

itself, but is really a matter collateral to the suit and has

to be decided before the suit itself can be proceeded

with. The decision does not lead to the determination of

any issue in the suit.

(ii) The legal representative is appointed for orderly

conduct of the suit only. Such a decision could not take

away, for all times to come, the rights of a rightful heir

of the deceased in all matters.

(iii) The decision is the result of a summary enquiry

against which no appeal has been provided for.

(iv) The concepts of legal representative and heirship of

a deceased party are entirely different. In order to

constitute one as a legal representative, it is

unnecessary that he should have a beneficial interest in

the estate. The executors and administrators are legal

representatives though they may have no beneficial

interest. Trespasser into the property of the deceased

claiming title in himself independently of the deceased

will not be a legal representative. On the other hand the

heirs on whom beneficial interest devolved under the

law whether statute or other, governing the parties will

be legal representatives.

xx xx xx

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 be 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.”

11. The judgment in Mohinder Kaur was referred to and approved by

this Court in a judgment reported as Dashrath Rao Kate v. Brij

Mohan Srivastava (2010) 1 SCC 277.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5673 OF 2009

VARADARAJAN Vs  KANAKAVALLI

HEMANT GUPTA, J.

Dated:JANUARY 22, 2020.

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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

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