IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 27.11.2008. S.B. CIVIL WRIT PETITION NO.13319/2008 Shailendra & Ors. Vs. ADJ (FT) No.5, Jaipur city & Ors. HON'BLE MR. JUSTICE DALIP SINGH Shri A.C. Upadhyaya, for the petitioners This writ petition has been filed on account of the application filed under Order 22 Rule 3 being allowed by the impugned order dated 16.10.2008 and permitting the applicant to be substituted in place of the deceased Smt. Shakuntala Devi as her legal representatives to prosecute the suit. Smt. Shakuntala Devi the plaintiff filed a suit for cancellation of the adoption deed dated 25.10.1999 executed in favour of the defendant Shailendra. The plaintiff Smt. Shakuntala Devi was pre- deceased by her husband Shri Surya Narain. During the pendency of the present suit Smt. Shakuntala Devi the sole plaintiff died on 5.2.2008. The application under Order 22 Rule 3 CPC came to be filed on 19.3.2008 by Smt. Shanti Devi, Archana Sharma, Usha Kiran Sharma and three more persons that the deceased Shakuntala Devi had on 14.11.2007 executed a Will bequeathing her entire movable and immovable properties to a Trust to be created in the name of “Smt. Shakuntala Devi Surya Narain Jan Kalyan Trust” of which she appointed 8 persons as trustees whose name have been furnished in para 3 of the application Annexure-1. It is stated that Smt. Shanti Devi is the Managing Trustee in accordance with the Will and on account of the death of Shakuntla Devi the plaintiff on the basis of the Will and her testamentary disposition having created a trust and having made Smt. Shanti Devi and others as the trustees and right to sue survived upon the the applicants who were the Trustees as such they may be substituted in place of deceased Smt. Shakiuntala Devi. A reply was filed by the petitioner defendant No.1 Shailendra wherein the fact of death and the date of death of Smt. Shakuntala Devi the sole plaintiff was admitted it was however stated that she is not survived by any children (sons and daughters). The execution of the Will dated 14.10.2007 was denied and also the creation of any trust such as “Smt. Shakuntala Devi Surya Narain Jan Kalyan Trust” was also denied and it was alleged that if any such trust has been created by her during her life time the plaintiff would have made the said fact known in the suit itself filed before the learned trial court. The petitioner has also alleged that the alleged Will is a forged document, it was also objected that the Will not having been filed, the application can not be allowed. The learned trial court having considered the application filed by the Trustees under Order 22 Rule 3 as well as the objections by way of reply submitted by the petitioner allowed the application by the impugned order dated 16.10.2008. While allowing the said application it was held as follows : “िनिवर्वािदत रूप से मौजूदा वाद मृतक वादȣ ने ूितवादȣ संÉ या-1 के प¢ मɅ िनं पािदत िदनांक 25.10.1999 मे गोदनामे को िनरः त करने व ः थाई िनषेधा£ा के अनुतोष हेतु ूः तुत िकया था । इस ूबम पर ूितवादȣ संÉ या-1 कȧ ओर से ूः तुत हः तिलिप िवशेष£ कȧ ǐरपोटर् के आधार पर यह अिभिनधार्ǐरत नहȣं िकया जा सकता है िक ूाथȸगण Ʈारा ूः तुत कȧ गई वसीयत फजȸ हो ऐसा िनं कषर् प¢कारान Ʈारा ूः तुत िकये जाने वाली साआ य के आधार पर हȣ िकया जा सकता है । चंिक ूितवादȣ संÉ या-1 Ʈारा वादȣ कȧ मृ× यु कȧ ितिथ बाबत िववाद ् नहȣं िकया गया है और ूाथȸगण Ʈारा ूः तुत आवेदन समयाविध से परे है । अत: ऐसी ǔः थित मɅ हमारȣ राय मɅ ूाथȸगण का आवेदन ः वीकार िकये जाने योÊ य है ।” The submission of the learned counsel for the petitioner is that in the facts and circumstances of the present case it was the duty of the learned trial court where the fact of the execution of the Will were disputed by the defendant No.1 petitioner herein to have conducted an enquiry in terms of Order 22 Rule 5 CPC to determine the question with regard to who are the legal representatives. It is submitted that the learned trial court has committed a jurisdictional error in not having conducted such an enquiry as contemplated by Rule-V of Order 22 CPC and substituted the applicant in place of deceased plaintiff to pursue the suit. I have considered the above submission. From the order passed by the learned trial court which has been quoted above it is clear that the learned trial court has not given any specific finding regarding the validity of the Will and the fact of its' execution by the deceased and has permitted the applicants to be substituted in place of the deceased plaintiff and has held that the question with regard to validity of the Will which would be decided after recording the evidence during the trial. It is relevant here to note that suit was filed by the deceased Smt.Shakuntala Devi who was contesting the claim of the defendant No.1 that he was her adopted son and had filed a suit for cancellation of the adoption deed and a declaration. Since the deceased herself has disputed the fact of adoption being the wife of the deceased Suraj Narain and her consent was a necessity under law as well as the execution of the adoption deed and there being no other surviving heir in the natural line of succession none would be in a position to contest the fact of adoption which if went unchallenged would result in the property falling in the hands of the defendant No.1-petitioner. If the contents of the Will were to be seen and read with the averments in the plaint duly signed and verified by the deceased plaintiff which fact of filing of the present suit has been mentioned in the Will itself by the deceased plaintiff on page 6 of the hand written copy of the Will (Annexure-3) that she has already filed a suit No.27/2000 (397/2004) which is pending in the court of Additional District Judge (Fast Track) No.5, Jaipur and that after her death the aforesaid suit be prosecuted by the trustees which she constituted under her Will, the averments to this effact is as follows:- "मेरे Ʈारा दायर वाद संÉ या 27/2000 397/04 जो िक वतर्मान मɅ ए डȣ जे फाः ट शेक नं. 5 जयपुर मे लǔà बत है कȧ पैरवी मɅ मेरे ः वगर्वास के पँ चात उÈ त शः ट मेरे ् उ× तरािधकारȣ के रूप मɅ करेगी ।" In view of the above, she desire and wish expressed by the deceased in her Will left behind by her by which she has created the aforesaid Trust and the trustees through Managing Trustee have come forward to contest the suit on the basis of the present application, the same in my view has rightly been allowed. It may also be mentioned that in the Will the deceased has stated that her husband also died under mysterious circumstances soon thereafter with a view to usurp the property and her money and her jewelery were stolen for which she lodged an FIR No.3066/2000 and in the course of which investigation, her ornaments and certain documents were recovered in the case No.3066/2000, were ordered to be returned to her by the court. In the light of the above, it becomes all the more necessary that matter should not be allowed to come to a close by abatement on account of the death of the plaintiff. If the application of the Trustees is rejected, there would be none to contest the suit against the defendant- petitioner which claim of adoption the deceased plaintiff was herself contesting that he was not her adopted son and the adoption deed be declared inoperative. In the facts and circumstances of the present case where the deceased who was the sole plaintiff and the dispute is of the alleged adoption deed dated 25.10.1999 executed in favour of the defendant No.1 petitioner which has been challenged by the plaintiff wife of the deceased Surya Narain who was the executent of the adoption deed in the absence of any legal representative being impleaded in place of the deceased would go unchallenged and result in the entire property vesting in favour of the defendant No.1. The further submission of the learned counsel for the petitioner is that if the deceased had created the trust of any property as above mentioned the same fact would have been brought on record in the suit. So far as this is concerned, suffice it to say that the trust had been created under the Will dated 14.11.2007 which has to take effect only after the death of the testator and therefore the facts not having been brought on record earlier in the suit in my opinion becomes immaterial as the trust was to be formed and take effect after her death and not during her life time. The relevant portion of the Will reads as follows:- "मुझे अब यह अहसास होने लगा है िक मेरे जीवन का कोई भरोसा नहȣ है व मेरȣ उÈ त चल व अचल सà पǔ× त िकÛ हȣं गलत हाथो मɅ न चली जाये अत: मɇ अपने पूणर् होश हवास मɅ यह अǔÛ तम वसीयत उÈ त चल व अचल सà पǔ× त के बाबत कर रहȣ हं । मेरे ् ू ः वगर्वास के पँ चात मेरे ः वािम× व व आिधप× य कȧ ् उÈ त चल व अचल सà पǔ× त ौीमित शकुंतला देवी, सूयर्नारायण जन कã याण शः ट को ूाÜ त होगी । उÈ त शः ट के ूधान शः टȣ मेरȣ बडȣ बिहन ौीमित शांित देवी, मेरे बहनोई मदन मोहन जी व मेरȣ उÈ त बिहन कȧ सभी लडिकयां रहɅगे जो उÈ त चल व अचल सà पǔ× त का उपयोग एवं उपभोग िसफर् सामाǔजक एवं धािमर्क िहत के िलये हȣ उÈ त शः ट के संचालन हेतु िवधान एवं िनयम बनायɅगे और आयर् समाज मɅ आः थावान अÛ य å यǔÈ तयɉ तथा मिहलाओं को भी उÈ त शः ट का शः टȣ िनयुÈ त कर सकɅ गे । उÈ त ूधान शः टȣ मेरȣ बडȣ बिहन ौीमित शांित देवी व अÛ य शः टȣ मेरे आदशर् नगर वाले Ü लाट सं. सी-15 पर मेरे व मेरे पित के नाम से ौीमित शकुंतला देवी, सूयर्नारायण धमर्शाला ः थािपत करे..." In the light of the above, there is no room for the above argument and the same deserves to be rejected. In the facts and circumstances therefore the rights of the parties have not been decided finally by the learned trial court and the learned trial court has only directed the applicants to be substituted in place of the deceased plaintiff to carry on the suit as has been noticed from the order quoted above which was passed by the learned trial court the rights of the parties have not been adjudicated. During trial after the evidence is recorded in the trial the court shall determine whether the deceased executed the Will, as alleged. Also whether she assigned the property to the Trustees as alleged and then whether the adoption was invalid as alleged in the suit. The legal representatives are claiming their rights in the property of the deceased not on the basis of survivorship in their favour qua the other heirs of the deceased and hence the provision of Order 22 Rule 5 CPC for insisting on an enquiry before the proceeding with the suit would not strictly apply. It is not a case of a dispute between two sets of legal representatives but the legatees under the Will as trustees of a Trust created by the Will itself left behind by the deceased plaintiff. Since in the present case the question with regard to the validity of the Will and the creation of the trust would also be required to be gone into after evidence of both the parties on the aforementioned issues is recorded, the learned trial court has rightly, in my opinion in the facts and circumstances of the present case, decided that the matter would be heard and decided at the trial and allowed the application for substitution filed by the Trust and the trustees to be substituted as legal representatives. This writ petition is accordingly dismissed as no case for interference under Article 226 of the Constitution of India is made out. (DALIP SINGH),J. Ramchandrkhatri,PS