Whether the court can permit A legal representative with conflicting interest with that of the deceased to represent his estate?

  The reliefs claimed in the present suit by Late Shri S.K. Beri were specifically against Deepak Beri and his family members. Deepak Beri has contested the suit by filing a written statement controverting the averments made in the plaint and seeking dismissal of the present suit. Where the

interest of the legal representative is in conflict with the interest of the deceased plaintiff and he was a party in the suit as a defendant, he cannot be permitted to represent the estate of the deceased plaintiff. Therefore, in my considered view, the ‘right to sue’ in the present case cannot accrue in favour of Deepak Beri. The ‘right to sue’ can only accrue in favour of Atul Beri, who was neither a party in the suit, nor had any conflict with the interest of Late Shri S.K. Beri.{Para 15}

IN THE HIGH COURT OF DELHI AT NEW DELHI

 + CS(OS) 162/2018

S.K. BERI Vs DEEPAK BERI & ORS.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

AMIT BANSAL, J. 

Dated : 9th February, 2023

Citation: 2023/DHC/000991

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When theory of last seen is not applicable for convicting accused for murder?

Last seen theory: Proof and effect

28. The prosecution has relied upon another circumstance that the deceased was lastly in the company of the Appellant and she had failed to explain his whereabouts as also the circumstances leading to his death.

28.1. Insofar as the 'last seen theory' is concerned, there is no doubt that the Appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the Appellant, by itself, does not mean that a presumption of guilt of the Appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act11 directly operates against the Appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:

10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused......

28.2. On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company on 28.04.1997 when he allegedly expressed his dejection and fear as also his plan to return with luggage. The Appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and postmortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out.

28.3. In the given set of circumstances, the last seen theory cannot be operated against the Appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the Appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. In SK. Yusuf (supra), this Court has said:

21. The last seen theory comes into play where the time gap between the point of time when the Accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1046 of 2010

Decided On: 19.09.2019

 Gargi  Vs.  State of Haryana

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Whether court can direct bank to deposit money of deceased for distribution to legal heirs inspite of nomination?

With regard to the first point, this Court in a Judgment reported in MANU/GH/0183/1997 : 1998 (2) GLT 350 in the case of Smt. Sunita Shambhu Shirodkar v. Shri Madhukar Lotlikar & Ors. has held that the nominee does not step into the shoes of the legal heirs merely on account of his nomination by the depositor. The provisions of Section 45ZA of the Banking Regulations Act relied upon by the learned Counsel appearing for the Respondent No. 1 have also been taken into consideration whilst coming to the conclusion that even though the nominee may have a right to recover the amounts from the Bank, nevertheless, it is always open to the Court to direct such amount to be deposited in the Court for distribution among the legal heirs. The learned Single Judge of this Court has observed at Paras 10, 11, 12 and 13 thus :

"10. Now as far as the State of Goa is concerned, the law of succession which is in force in the State provides that where any person dies without disposing of his properties, or disposing only a part thereof, or having made the disposition, the will is annulled, revoked or lapses, all legal heirs shall have the said properties or part thereof, in respect of which the testator has not made any disposition. The provisions in this regard are found in Article 1968 of Portuguese Civil Code. The order of legal succession is firstly to the descendants, then to the ascendants, followed by brothers and their descendants, then surviving spouse, then to the collaterals and lastly to the State as is provided in Article 1969 of the said Code.

11. Applying the law laid down by the Apex Court in the above referred matter and considering the provisions of the law of succession in force in the State as also the provisions contained in Section 45ZA of the said Act, it is clear that whenever a depositor appoints his nominee and the depositor dies before the maturity of the fixed deposit for release, the nominee so appointed would certainly be entitled to collect the amount payable on such fixed deposit amount on its maturity for release. However, that would not take away the right of the legal heirs of the deceased depositor from claiming right to the amount standing to the credit of the deceased depositor in accordance with the provisions of law of succession in force. This is so because a nominee is merely a representative of the lawful successor of the deceased depositor to receive the payment on the maturity of the deposit for release. The nominee does not step in the shoes of the legal heirs merely on account of nomination by a depositor.

IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal No. 49 of 2016

Decided On: 15.03.2017

 Vishwanath Yadav and Ors.Vs. Kashinath Yadav and Ors.

Hon'ble Judges/Coram:

F.M. Reis, J.

Citation: 2017(4) MHLJ 162,AIR 2017 Bom 258

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Whether succession certificate can be used against legal heirs of deceased?

In Part X of the Act there are provisions
regarding issuance of succession certificate. Certificate
can be granted in respect of the property of the deceased
which goes to the heirs of the deceased. In the present
matter the brothers had claimed succession certificate in
respect of provident fund and gratuity amount and such
certificate can be issued in respect of provident fund as it
is treated as security. Provisions of Sections 372 and 373
of the Act show that inquiry involved in this application is
of summary nature and limited investigation is required to
be made. These provisions show that public notice is
required to be issued of this proceeding. Section 372 (3)
of the Act shows that even if intricate questions of law or
fact are involved which cannot be decided in summary
manner, the Court may grant the certificate if the
applicant has prima facie case. Thus in this provision even
when there is summary procedure given and there is

contest, the succession certificate can be issued. Inquiry
after framing of issues etc. is required if there is contest
but that inquiry is also summary in nature. The provisions
show that the purpose of giving such certificate is to give
authority to the holder of certificate to realize the debt or
security of the deceased and to give valid discharge. Thus,
this is only authority given to the holder of the certificate
to collect security or realize the debt and it needs to be
presumed that the amounts so collected need to be
disposed of in accordance with the rights of the persons
who are entitled to this amount. That is the duty imposed
on the person who is holding the certificate. This
certificate is conclusive as against the persons owing such
debt or who are liable to such security as provided in
section 381 of the Act. Thus, the certificate cannot be
used against the legal heirs of the deceased who have
better title.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AT AURANGABAD
Civil Revision Application No. 45 of 2015

 Beersing Charan Karosiya

V
 Tanhabai Pratap Karosiya

 CORAM: T.V. NALAWADE, J.

 DATE : 26th NOVEMBER 2015
Citation: 2016(6) ALLMR 333

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Whether legal heirs of deceased defendant can take plea contrary to one taken by deceased defendant?

I have heard the respective counsel for the parties at length. The
defendant No.1 had filed his written statement on record on 22/04/1996.  It
is not in dispute that the defendant No.1(ii) has been brought on record in
the capacity of legal heir of the original defendant No.1.     The impleadment
of the defendant No.1(ii) is under provisions of Order XXII Rule 4 of Code of
Civil Procedure, 1908 (for short, the Code).  As per provisions of Order XXII
Rule 4(2) of the Code, the defence appropriate to the character of defendant
No.1(ii) as legal representative of deceased defendant No.1 was permissible
to the taken.  The impleadment being as legal heir of the deceased defendant
No.1,   the   legal   representative   would   merely   step   into   the   shoes  of   said
defendant.  A plea contrary to the one taken by the deceased defendant as
well as a plea personal to the legal representative could not be permitted to
be taken by him by virtue of such impleadment.  This position is clear from

the   ratio   of   the   decisions   relied   upon   by   the   learned   counsel   for   the
petitioner.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4924 OF 2015
  Nilkanth s/o Pandurang Wath 

vs­
 Amarkanth s/o Pandurang Wath, 
 
CORAM  : A.S.CHANDURKAR, J. 
   DATE   :  July 22, 2016 
 Citation: 2016(6) MHLJ 46,2017(1) ALLMR 819

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Whether court should quash prosecution against building contractor based on compromise with legal heirs of deceased?

 The Supreme Court in Narinder Singh (supra) has observed that the
power to quash the criminal proceedings in cases which are not
compoundable should be exercised sparingly and with caution. The guiding
factors in such cases would be to secure the ends of justice, or to prevent
abuse of the process of any Court. In the facts of the present case, neither of
the aforesaid two objectives would be achieved if the criminal proceedings/
FIR in the present case were to be quashed. There is nothing to show that
the accident was providential, and that it occurred despite due care and
precaution being taken by the petitioner. There is also nothing to show that
the criminal proceedings initiated against the petitioner are a result of mala
fides of any person, or an abuse of the process of the Court. The accident
has, undoubtedly, taken place in which one labourer has lost his life. The
nature of the accident itself is, prima-facie, suggestive of gross negligence.
In my view, it would defeat the ends of justice if the criminal proceedings
were to be quashed. The present endeavour of the petitioner to seek
quashing of the FIR and the proceedings arising therefrom – premised on a
settlement with respondents No.2 to 9, itself tantamounts to an abuse of the 
process of this Court. In a case like the present, even though respondents
No.2 to 9 may have entered into a settlement with the petitioner, it cannot be
said that the possibility of conviction is remote. It cannot be said that the
petitioner would be put to great oppression and prejudice, or that extreme
injustice would be caused to him by not quashing the criminal case.
32. In my view, quashing the FIR in question at this stage would certainly
send a very wrong signal not only to the petitioner, but the whole society at
large and particularly to other builders, contractors and other agencies
engaged in undertaking construction work, that even if they are grossly
negligent in taking preventive measures so as to prevent predictable
accidents – which may lead to serious injury and even loss of life, they could
get away by paying some compensation to the heirs of the injured/ deceased.
In fact, such like contractors/ builders/ agencies may find it more
economical to risk the lives of their workforce, and in the eventuality of an
accident occurring, to pay compensation, than to undertake all safety
measures which, if taken, would prevent such accidents in the first place.
33. As observed by the Supreme Court in Sheonandan Paswan (supra),
criminal proceedings are not a proceeding for vindication of private
grievance. They are initiated for the punishment of the offender in the
interest of the society. It is for maintaining stability and orderliness in the
society that certain acts are constituted offences and the right given to any
citizen to set the machinery of criminal law into motion for the purpose of
bringing the offender to book.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 01.08.2016
 W.P.(CRL) 1280/2016 and Crl. M.A. No.6706/2016
BHAJAN LAL SHARMA

v
STATE (GOVT OF NCT OF DELHI) & ORS .
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
Citation: 2016 SCCONLINEDEL4234

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When unmarried brother and sisters of deceased are entitled to get compensation under motor vehicles Act?

In the present case, appellant nos. 3 and 4 were unmarried, they were living with the deceased alongwith their parents. It is not on record that the deceased was the sole bread earner of the family but we are of the opinion that dependency is not confined to material things. Brothers and sisters all unmarried living under the same roof not only have emotional attachment but emotional dependence also. Those who are unemployed expects something from their kith and kin to provide them things in material form though they may not be necessary for maintaining only their animal existence but useful for them to improve their quality of life. The contribution made by the deceased may include presents on festive occasions, eatable items, wearing apparels etc. In this way they are dependents of the deceased. In this factual background, we come to the conclusion that in the present case, appellant nos. 3 and 4 come within the category of legal representatives and they are entitled to be compensated. 
ALLAHABAD HIGH COURT
Case :- FIRST APPEAL FROM ORDER No. - 3857 of 2010 

Appellant :- Smt. Jai Kumari Devi & Others 
Respondent :- Smt. Pushpa Gupta & Another 

Hon'ble Krishna Murari,J. 
Hon'ble Pratyush Kumar,J. 

Citation;2016(1) ALLMR(JOURNAL)1ALLAHABAD

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When show cause notice issued to deceased will not be invalid?

 The contention of the counsel for the appellants that show cause notices were issued to some of the deceased persons i.e. Parkash Chand, Charan Dass and Gurcharan Singh were not proper show cause notices as envisaged under Section 4 cannot be accepted as in pursuance to these show cause notices where the conditions as specified in Section 4 stood fulfilled cannot be said to illegal when it is an admitted fact that all unauthorized occupants of the premises in question appeared before the Collector and filed their replies to the show cause notices which contain the grounds on which the order of eviction was proposed to be made. No prejudice has been caused to the appellants or their predecessors-in-interest in any manner which would have an impact of rendering the proceedings initiated against the appellants illegal or void.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

LPA No. 1032 of 2014 (O&M)

Decided On: 28.01.2015

Appellants: Rakesh Kumar Jaswal and Ors.
Vs.
Respondent: State of Punjab and Ors.

Hon'ble Judges/Coram:S.J. Vazifdar, Actg. C.J. and Augustine George Masih, J.

Augustine George Masih, J.

Citation;AIR 2015 Punjab and haryana142

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Under which circumstances the court can decide the suit without bringing legal representative of one of deceased defendant on record?

The provision of Order XXII Rule 4 CPC is as under :-
“4. Procedure in case of death of one of
several defendants or of sole defendant –
(1) Where one of two or more defendants dies and
the right to sue does not survive against the
surviving defendant or defendants alone, or a
sole defendant or sole surviving defendant dies
and the right to sue survives, the Court, on an
application made in that behalf, shall cause the
legal representative of the deceased defendant to
be made a party and shall proceed with the suit.

(2) Any person so made a party may make any
defence appropriate to his character as legal
representative of the deceased defendant.
(3) Where within the time limited by law no
application is made under sub-rule (1), the suit
shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt
the plaintiff from the necessity of substituting
the legal representatives of any such defendant
who has failed to file a written statement or
who, having filed it, has failed to appear and
contest the suit at the hearing; and judgment
may, in such case, be pronounced against the
said defendant notwithstanding the death of such
defendant and shall have the same force and
effect as if it has been pronounced before death
took place.
(5) Where-
(a) the plaintiff was ignorant of the death of a
defendant, and could not, for that reason, make
an application for the substitution of the legal
representative of the defendant under this
rule within the period specified in the Limitation
Act, 1963 (36 of 1963) and the suit has, in
consequence, abated, and
(b) the plaintiff applies after the expiry of the
period specified therefor in the Limitation Act,
1963 (36 of 1963), for setting aside the
abatement and also for the admission of that
application under section 5 of that Act on the
ground that he had, by reason of such
ignorance, sufficient cause for not making the
application within the period specified in the said
Act, the Court shall, in considering the
application under the said section 5, have due
regard to the fact of such ignorance, if proved.”
The Apex Court has held that in view of this
provision the Court can decide to proceed ex parte even
after death of a defendant without Legal Representative of
deceased defendant if parameters of Order XX Rule 4(4)
CPC are complied with. The object behind this provision
needs to be kept in mind and the power given to the Court
can be used in a case like present one.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Application No.12021 of 2012
In
Second Appeal No.117 of 2011
Prabhakar s/o Apparao Pawar
And Another. .. Applicants.
Versus
Vaijnath s/o Babarao Pawar
And Others. .. Respondents.


CORAM: T.V. NALAWADE, J.
DATE : 13th MARCH 2014
Citation;2015(4) ALLMR 273

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Whether statement of deceased recorded in revenue proceeding can be considered in view of S32 of Evidence Act?

The Trial Court had not considered the circumstances like contentions made by Anjanabai in revenue proceeding.

Admittedly, the name of plaintiff No. 1 was entered in the revenue record on the basis of mutation, which was made in a proceeding started by Anjanabai. Statement of Anjanabai was recorded in that proceeding. That record is relevant and needs to be considered in view of provision of section 32 of Evidence Act.

Bombay High Court

Subhash vs Maroti on 11 June, 2014

Bench: T.V. Nalawade

Citation; 2015(2)ALLMR144

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Right of mother and wife of deceased to receive succession certificate

If it is once held that the respondent is the wife of the late Paranthaman and her subsequent remarriage will not disqualify her from succeeding to the estate of her late husband, then she is entitled to succeed to half the share of the deceased Paranthaman. It is not necessary to drive parties to some other forum because the necessary parties are before this Court in both the Original Petitions. As held by the Supreme Court in Vidhyadhari and others v. Sukhrana Bai and Others ((2008) 2 SCC 238), this Court can itself declare the rights of the parties with the proportionate share to each of them so as to succeed to the estate of Late Paranthaman.

26. Accordingly, Mrs.J.Yamunadevi, petitioner in O.P.No.193/2005 (mother of late Paranthaman) and Mrs.Nalini,petitioner in O.P.No.892 of 2005 (wife of Paranthaman) are each entitled to succeed to half share in respect of the dues payable to late Paranthaman. Let a Succession Certificate be issued on the above terms.

Madras High Court

Mrs.Yamuna Dhevi vs Mrs.D.Nalini

DATED : 18.09.2009

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Whether it is permissible to seize property inherited by widow of deceased in execution of decree?

Now, it is quite clear that Mt. Kalawati did not acquire her interest as a survivor. She had acquired it under a statute and although the statute does not say expressly that she will acquire the interest of her husband as his heir, yet it seems to me that if she does not get the interest by survivorship then she must be held to have acquired it as an heir. If she got it as an heir then the interest is an asset of her husband in her hands and can be proceeded against by the creditor. This is precisely the view which has been propounded in Saradambal v. Subbarama Ayyar AIR 1942 Mad 212. In that case the plaintiff had obtained a decree for money against a member of the joint family who died sometime after the decree. His wife was then brought on the record as his legal representative. A question arose whether the interest she had acquired under Hindu Women's Bights to Property Act could be attached in the execution of the decree. Venkataramana Rao J. who decided the case, dealt with this question as follows:

Under Section 3 (2) the interest taken by the widow is the same interest as the husband himself had, that is, the interest of. an undivided member of a joint family in the joint family property. The said interest is capable of definition and so far as this presidency is concerned, it is liable to separation by partition and alienable inter vivos for valuable consideration and liable to be seized in execution of a decree for the personal debts of the member. Giving the language its plain meaning, the widow takes that interest subject to the rights and obligations attached to that interest and subject to the restrictions placed on her powers by Clause (3) of Section 3 of the Act. That clause leaves the right to partition untouched but restricts the right of alienation because the nature of the interest which she takes is a Hindu woman's interest. "What a Hindu woman's interest is, is well defined in Hindu law, that is, she is competent to alienate that interest only for purposes sanctioned by Hindu law and that interest is liable to be seized in execution of decrees for the payment of debts of the last male owner. Taking both, the clauses together, the property taken by her is liable for the debts of her husband. The contention of Mr. Vedanta Subramaniam is that as the husband died undivided and the other creditor has not taken any steps during his life-time to attach the said property, his remedy is lost. It is true that if the Act had not been passed, as the husband died without leaving a male issue the property would have gone by survivorship to his undivided brother and his brother's son and the doctrine of survivorship would prevent the creditor from attaching that property. But the Act has taken away that rule of survivorship and allowed the property to descend to his wife. Once the rule of survivorship no longer operates, there is nothing to preclude a creditor from attaching the property. Though the interest she takes is a limited interest of a Hindu woman, she is conferred the same status as that of a male owner. Even in the case of a female who takes a Hindu women's estate, the inheritance vests in her for the time being as fully as it vests in any male succeeding to the property but only with a restricted right of alienation. As pointed out by the Judicial Committee in 5 Cal. 7763 at p. 789, 'the whole estate is for the time vested in her absolutely for some purposes, though -in some respects for only a qualified interest.

Equivalent Citation: AIR1945Pat116

IN THE HIGH COURT OF PATNA

Decided On: 15.08.1944

Appellants: Siveshwar Prasad Narain Singh and Ors.
Vs.
Respondent: Lata Harnarain Mal Bahal

Fazl Ali, C.J.

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