CR No.5450 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5450 of 2007 DATE OF DECISION: 26.03.2010 **** Mahender Nath . . . . Petitioner VS. Satender Nath and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.D.K. Jangra, Advocate for the petitioner. Mr.Sanjeev Sharma, Advocate for the respondents. **** RAKESH KUMAR JAIN J. This revision petition is against the impugned order (Annexure P-1) dated 30.7.2007 passed by Additional Civil Judge (Sr. Division), Bhiwani while disposing of two applications moved by Mahender Nath (petitioner) and Satender Nath (respondent No.1) in which they had prayed for their impleadment as Legal Representatives of Onkar Nath (deceased – decree-holder). In the application filed by the Mahender Nath (petitioner), he claimed that he and Satender Nath (respondent No.1) are the sons of Onkar Nath (deceased), therefore, they both may be impleaded as his Legal Representatives. Whereas, in the application filed by CR No.5450 of 2007 -2- Satender Nath (respondent No.1), he claimed himself to be the only son of Onkar Nath (deceased), who had executed a registered Will dated 30.5.2005 in his favour, therefore, he alone is entitled to be impleaded as Legal Representative of the deceased-Onkar Nath. It is significant to mention that both the applications have been filed during the execution of a decree in which respondent No.2 (Joginder Nath) has submitted that before delivery of possession by way of warrant of possession, the instant applications be decided as to who is the Legal Representative of the deceased - Onkar Nath? Briefly stated, Onkar Nath (deceased) filed a suit for partition against his two brothers, namely, Joginder Nath (respondent No.2), Govind Nath (respondent No.3) and sister Savitri Devi. The suit was referred, with mutual consent of all the parties, to a referee, who gave his award dated 18.12.1992, which was made rule of the Court by Sub Judge First Class, Bhiwani vide decree dated 23.12.1992. Decree Holder Onkar Nath (deceased) filed an execution application of the decree dated 23.12.1992 but during its pendency, he died on 25.12.2006. In this execution application, two applications have been filed, one by Mahender Nath (petitioner), which is attached as Annexure P-4 and another by Satender Nath (respondent No.1), which is attached as Annexure P-5. The learned Executing Court, apparently, decided the application under Order 22 Rule 5 of Code of Civil Procedure (for short ‘CPC’) and ordered for impleadement of Satender Nath (respondent No.1) as Legal Representative of Onkar Nath (deceased) on the basis of aforesaid registered Will with liberty to the petitioner to file a suit in respect of the suit property. CR No.5450 of 2007 -3- The petitioner filed a Civil Suit No.531 of 2007 for declaration and permanent injunction against Joginder Nath and Satender Nath for forging the Will, in the Court of Senior Sub Judge, Delhi, in which, it is alleged that they were restrained on 20.9.2007, from deposing of the property in question till the next date of hearing i.e. 20.10.2007. Besides filing the civil suit in terms of the liberty granted in the impugned order, petitioner has challenged that order before this Court as well. Learned counsel for the petitioner has, inter alia, argued that both petitioner and respondent No.1 are the sons of deceased – Onkar Nath, therefore, both are entitled to be impleaded as his Legal Representatives and the Will dated 30.5.2005 set up by respondent No.1 is forged and fabricated, therefore, the impugned order dated 30.7.2007 whereby, respondent No.1 alone has been allowed to be impleaded as Legal Representatives should be set aside. In this regard, he relied upon a decision of this Court in the case of “S.Charanjit Singh and another Versus Bharatinder Singh and others” AIR 1988 Punjab and Haryana 123. In reply, learned counsel for respondent No.1, who is in fact the contesting respondent, has argued that, admittedly, both petitioner and respondent No.1 are the sons of Onkar Nath (deceased) but petitioner has not succeeded to his property as he has been excluded by Onkar Nath (deceased) by virtue of a registered Will executed in his favour on 30.5.2005. It is further submitted that because of this dispute between the parties, decree dated 23.12.1992 is still un-executed against the persons from whom the possession has to be taken and in this process almost 18 years have passed. It is further submitted that respondent No.1 is the owner of the property in CR No.5450 of 2007 -4- question by virtue of the registered Will, which has not been set aside by any Court so far. I have heard both learned counsel for the parties and have perused the record with their assistance. Term Legal Representatives has been defined in Section 2 Sub Section 11 of the CPC, which reads as under : - "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.” Similarly, Order 22 Rule 5 of the CPC reads as under: - “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.” A bare perusal of the definition of Legal Representative as provided under Section 2 Sub Section 11 CPC suggest that a legal CR No.5450 of 2007 -5- Representative would mean a person who in law represents the estate of a deceased person. In this case, both, petitioner and respondent No.1 are the sons of deceased – Onkar Nath. According to the learned counsel for the respondents, if, Onkar Nath had died intestate then both petitioner and respondent No.1 would have succeeded to his property by way of natural succession but as per registered Will dated 30.5.2005 of deceased-Onkar Nath, the petitioner would not succeed to the estate of deceased because as per will, respondent No.1 would step into his shoes as it is well settled that succession never remains in abeyance as it co-relates with the last breath of the deceased. However, in the case of S.Charanjit Singh and others (Supra), this Court has held that if there is a rival claim, one based on Will and other on natural succession, the proper course would be to implead both the claimants as Legal Representatives because in the said case, the learned trial Court, while deciding the application as to who shall be the legal representative of deceased – Jaswant Kaur, framed issues and after taking evidence held that the Will was duly proved and allowed the application of Teja Singh and others holding them to be Legal Representatives on the basis of Will and dismissed the application filed by Charan Jeet Singh and others, who had claimed natural succession. In the said case, it was held that the parties may get the dispute about genuineness of the Will determined in a regular suit. This Court in the case of “Mohinder Kaur and Anr. Versus Para Singh And Ors” AIR 1981 P&H 130 (FB) had also held that in essence a decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answer 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 CR No.5450 of 2007 -6- 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. Learned counsel for the petitioner has also relied upon latest decision of the Supreme Court in the case of “Suresh Kumar Bansal Versus Krishna Bansal & Anr.” 2010(1) Recent Apex Judgment 334. Facts of this case are that one Mohanlal Bansal filed a suit for eviction and recovery of arrears of rent against Bhogiram in respect of a shop located at Kampoo, Lashkar, Gwalior, Madhya Pradesh. Mohanlal Bansal died on 20.6.1989. His widow filed an application for substitution as an heir and Legal Representative in the suit. Whereas, the brother of Mohanlal Bansal filed an application for substitution as his heir and Legal Representative on the basis of a Will in his favour dated 11.6.1989. The learned Civil Judge vide his order dated 22.2.1991 allowed the application of the widow of Mohanlal Bansal and rejected the application of his brother on the ground that the Will did not seem to have been executed by him and as such his brother was not entitled to be substituted in the suit for eviction. The matter went to the High Court of Madhya Pradesh at Gwalior. The High Court held that the summary enquiry was conducted only to find out whether the brother of deceased Mohanlal Bansal is entitled to participate in the proceedings as a Legal Representative and in the said limited enquiry, finding was arrived at by the learned Civil Judge that the execution of the Will seemed to be suspicious and such finding of the learned Civil judge would only be treated as the decision on the question whether the brother of Mohanlal Bansal should be impleaded CR No.5450 of 2007 -7- as a party in the eviction suit or not. The said order of the High Court was challenged before the Apex Court, where the question was raised as to whether after the death of the original plaintiff, namely, Mohanlal Bansal, his brother, who is the legatee as per the Will was entitled to be impleaded / substituted in the suit for eviction along with natural heirs of the deceased (widow of Mohanlal Bansal). The Apex Court found that brother of Mohanlal Bansal had already filed case for probate of the said Will, therefore, while allowing the appeal, it was held that the question of genuineness of the Will cannot be conclusively gone into by the Court in the proceeding for substitution in a pending eviction suit, therefore, it was found to be a best course to allow both the natural heirs as well as the heir claiming on the basis of Will to be impleaded as party in the eviction suit subject to order passed in the probate proceedings. In the present case also, there is a contest of two Legal Representatives out of which one claims to be natural heir and other claims to be a legatee and the Will in favour of the legatee is already under challenge in a Civil Suit No.531 of 2007, which is pending in the Court of subordinate Judge at Delhi. Keeping in view the law laid down by this Court and the Apex Court in the aforesaid judgments, namely, Charanjit Singh and others (supra) and Mahender Kaur and Anr (supra) and Suresh Kumar Bansal (supra), I am of the view that the impugned order deserves to be set aside wherein, the application filed by Satender Nath to be substituted as Legal Representative of deceased Onkar Nath on the basis of Registered Will has been ordered and the application of Mahender Nath for substitution on the basis of his natural succession has been dismissed. It is, thus, ordered that natural heir, namely, Mahender Nath and Satender Nath, claiming CR No.5450 of 2007 -8- substitution on the basis of Will, should be impleaded as Legal Representatives of deceased Onkar Nath in the pending execution. However, this arrangement shall be subject to the decision of the Civil Suit No.531 of 2007 having been filed by Mahender Nath challenging the Will in favour of Satender Nath in the subordinate Court at Delhi. With these directions, present revision petition is disposed of. (RAKESH KUMAR JAIN) 26.03.2010 JUDGE vivek