Civil Revision No. 2497 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 2497 of 2009. [O&M] Date of Decision: 04th November, 2009. Jasjit Singh Thiara Petitioner through Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate. Versus Jasarvinder Singh & Anr. Respondents through Mr. B.S.Walia, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL) This order shall dispose of Civil Revision Nos. 2277 and 2497 of 2009 as common questions of law and fact are involved in both these cases. For brevity, the facts are being extracted from Civil Revision No. 2497 of 2009. [2]. The controversy herein pertains to the estate of Lt. Col. Dr. Man Singh, who passed away on 24.12.2003. [3]. The undisputed facts are that Lt. Col. Man Singh had one issue – the daughter [Bakshish Kaur] from his first wife who unfortunately passed away during his life time. He thereafter solemnized second marriage with Smt. Amarjit Kaur – the plaintiff. No issue was born out of the 2nd wedlock. Lt. Col. Man Singh adopted the first respondent - Col. Jasarvinder Singh, who is otherwise son of Lt. Col. Man Singh's real brother. Respondent No. 2 Civil Revision No. 2497 of 2009. ::-2-:: is son of respondent No.1. [4]. During his life time, Lt. Col. Man Singh executed a Will dated 2.8.1985, a copy of which has been appended as Annexure P2 thereby bequeathing his movable and immovable properties in favour of his daughter [Bakshish Kaur], his 2nd wife [Amarjit Kaur], adopted son – then Major Jasarvinder Singh and grand son – Jhujhar Singh. [5]. The bone of contention, however, is the ownership of House No. 2571, Sector 35-C, Chandigarh, in relation to which Para 4 of the Will reads as follows:- “My grand son Jhujhar Singh son of Major Jasarvinder Singh shall be the sole owner of House No. 2571, Sector 35-C, Chandigarh but my wife Smt. Amarjit Kaur would be entitled to reside during her life time and also to utilize the rent of this house and during her life time. My grandson Jhujhar Singh will not transfer the said house in any manner during her life time”. [6]. It does appear that unfortunately Smt. Amarjit Kaur – the second wife of Lt. Col. Man Singh did not have cordial relations with the daughter, adopted son or grand son of Lt. Col. Man Singh. There have been civil and criminal litigations between the parties. [7]. Smt. Amarjit Kaur filed a suit for Mandatory Injunction against the adopted son and grand son of Lt. Col. Man Singh, seeking a direction them to vacate and hand-over the vacant possession of guest room, namely, a portion of the afore-stated house and for recovery of Rs.20,000/- @ Rs.5000/- per month towards user charges of the said portion or future damages till the possession was delivered to her. Civil Revision No. 2497 of 2009. ::-3-:: [8]. During the pendency of the said suit, Smt. Amarjit Kaur unfortunately expired on 9.12.2005. Before her death, Smt. Amarjit Kaur had also executed a registered Will on 22.12.2003 [Annexure P-3] wherein after referring to her strained relations with her adopted son and grand son etc., she has willed her immovable properties including the house in dispute in favour of her brother – Jasjit Singh Thiara. [9]. Based upon the Will that the petitioner – Jasjit Singh Thiara moved an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure for his impleadment as a legal representative of the deceased plaintiff. [10]. The afore-stated application has been dismissed by the learned Civil Court, Chandigarh vide the impugned order relying upon the decision of the Hon'ble Supreme Court in Sadhu Singh v Gurdwara Sahib Narike & Ors. [2006] 8 SCC, 75. [11]. Aggrieved, the petitioner has approached this Court. [12]. I have heard the counsel for the parties and perused the material on record. [13]. The question that arises for consideration in these civil revisions is the alleged right of the petitioner to pursue the civil suit filed by his deceased sister, who is said to have executed a registered will in his favour. The Civil Court has dismissed the petitioner's application for impleadment relying upon the decision of the Hon'ble Supreme Court in Sadhu Singh's case [supra] as according to the Civil Court the deceased sister of the petitioner had only a limited right of residence and to collect rent in the said house as per the Will dated 2.8.1985 executed by her deceased husband – Civil Revision No. 2497 of 2009. ::-4-:: Late Lt. Col. Man Singh. In addition, the counsel for the respondent has pressed into aid yet another decision of the Supreme Court in G.Buchivenkata Rao v Union of India & Ors., [1972] 1 SCC, 734 to contend that the personal right granted to the deceased – plaintiff to reside or recover rent of the house in question did not survive after her death and can not be claimed to have been inherited by the petitioner on the basis of the alleged registered will and, thus, he could not seek his impleadment as a legal representative of the deceased plaintiff. [14]. On the other hand, counsel for the petitioner relies upon a later decision of the Supreme Court in Santosh & Ors. V Saraswathibai & Anr. [2008] 1 SCC, 465 in order to urge that even limited or restricted right given to the deceased sister of the petitioner for her residence and recovery of rent, which was an integral part of her right to maintenance, would ripe into absolute ownership in terms of Section 14[1] of the Hindu Succession Act, 1956. He also relies upon a Full Bench decision of this Court in Mohinder Kaur & Anr. v Piara Singh & Ors., AIR 1981 Punjab & Haryana, 130 to contend that the application for impleadment as a legal representative of the deceased – plaintiff or seeking an opportunity to lead some evidence in support of that prayer is only for the purpose of pursuing the suit and acceptance of that application by itself has no bearing on the merits of the lis. [15]. In my considered view, the Civil Court ought not to have dismissed the petitioner's application for impleadment after determining that Smt. Amarjit Kaur had only a limited right to reside or recovery of rent as per the Will dated 2.8.1985 executed by late Lt. Civil Revision No. 2497 of 2009. ::-5-:: Col. Man Singh. The questions as to whether or not the deceased plaintiff had a limited right of residence/recovery of rent or that the said right could not mature into absolute ownership under Section 14 [1] of the Hindu Succession Act, 1956 or as to whether or not the petitioner on the basis of the alleged Will executed by Amarjit Kaur, had a cause of action to pursue the said civil suit, are not simplicitor questions to be answered merely on the basis of pleadings or one or the other judicial precedents. In other words, these questions are mixed questions of law and facts and it would have been appropriate for the Civil Court to accept the petitioner's application for the limited purpose to allow him to pursue the civil suit filed by Smt. Amarjit Kaur – the plaintiff, with an explicit stipulation in the order that mere impleadment of the petitioner as a plaintiff would not entitle or permit him to step into the shoes of the deceased plaintiff. This would have enabled the petitioner to lead the relevant evidence and prove before the Civil Court as to whether or not the deceased plaintiff had an absolute right in the said house notwithstanding the rider imposed by Lt. Col. Man Singh while bequeathing his estate in favour of different legal heirs vide his Will dated 2.8.1985. In the given situation and in order to resolve the controversy at the earliest, the Civil Court could have invoked its powers and frame preliminary issues and then return its findings. [16]. No observations need be made by this Court as to which, out of the two sets of decisions rendered by the Apex Court, referred to above, shall apply as unless all the facts are on record, it would be too premature to apply the cited principles. The observations, if made by this Court may unnecessarily prejudice the parties as well. Suffice Civil Revision No. 2497 of 2009. ::-6-:: it to say that the petitioner having successfully raised a contentious issue as to whether the plaintiff had acquired an absolute or limited right in the house in question, it was imperative upon the Civil Court to implead him as legal representative of the deceased on the basis of the registered Will dated 22.12.2003 relied upon by the petitioner. [17]. For the reasons afore-stated, the revision petitions are allowed, the impugned orders are set aside and the application filed by the petitioner under Order 22 Rule 3 CPC is allowed and he is permitted to be impleaded as a legal representative of the plaintiff for the limited purpose of pursuing the civil suit filed by Smt. Amarjit Kaur. The impleadment of the petitioner shall not be considered as if this Court as accepted Smt. Amarjit Kaur to be the absolute owner of the house in question or that there exists a validly executed Will dated 22.12.2003 by Smt. Amarjit Kaur in favour of the petitioner. In other words, all the vital and legal issues are left open to be adjudicated upon by the Civil Court at an appropriate stage on the basis of the evidence to be led by the parties. [18]. The parties are directed to appear before the Civil Court at Chandigarh on 4.12.2009. [19]. Dasti. November 4, 2009. ( SURYA KANT ) dinesh JUDGE