Writ petition challenging substitution of plaintiff in a civil suit for recovery of rent and eviction. Court held tenant has no right to challenge new plaintiff's will and substituted son is proper since daughter did not oppose.
Writ petition under Article 227 of the Constitution dismissed as it has no merit.
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Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 2948 of 2018 Petitioner :- Kewang Respondent :- Smt. Jareena Peeters (Deceased) And Another Counsel for Petitioner :- Bed Kant Mishra Counsel for Respondent :- Virendra Kumar
Hon'ble Manoj Kumar Gupta,J.
The instant writ petition has been filed invoking supervisory jurisdiction of this Court under Article 227 of the Constitution challenging the orders dated 19.1.2018 passed by the Court of Small Causes, Kanpur Nagar in SCC Suit No. 271 of 2014 and the order dated 3.4.2018 passed by the District Judge, Kanpur Nagar in SCC Revision No.43 of 2018.
The petitioner, who was tenant of first floor of a building, is defendant in a suit filed by Zarina Peters (for short 'the original plaintiff') for recovery of arrears of rent and for his eviction. During the pendency of the suit, the original plaintiff died on 15.1.2016. Her son Subodh Joy Peters filed an application seeking substitution in her place on basis of a will dated 1.3.2011 executed by his deceased mother. The petitioner opposed the substitution application alleging that the original owner of the property namely Symon James Peters, the deceased husband of the original plaintiff in his will dated 23.11.1996 had desired that first floor of the building be bequeathed by his wife, the legatee, in favour of his daughter Smt. Sneh Lata Puthrana and second floor in favour of his son Subodh Joy Peters. He therefore contended that Smt. Sneh Lata Puthrana had inherited the first floor, which is in his tenancy and the substitution application filed by Subodh Joy Peters should be dismissed.
The trial court took into consideration the registered will dated 23.11.1996 executed by Symon James Peters and held that the first and second floor of the building including the tenanted premises was bequeathed in favour of the original plaintiff. After death of Symon James Peters, the original plaintiff became absolute owner of the first floor and
2.
second floor of the building. It was noted that although in the will executed by her husband dated 23.11.1996, he had expressed a desire that her wife should bequeath the first floor in favour of her daughter and the second floor to her son but it was observed that since bequest in favour of her wife was absolute in character consequently the wish expressed by the testator was not binding on the original plaintiff. The trial court also noted the recital in the will of Zarina Peters dated 1.3.2011 to the effect that her daughter Sneh Lata Puthrana is married at Allahabad and after death of her husband, she was in need of money to buy a house at Allahabad and arrangement wherefor was made by her by liquidating the entire fixed deposit receipts and other movable properties belonging to her as well as her son. The will further mentions that the wish of the husband to make available first floor of the building to her daughter stood fulfilled upon being extended financial help by her mother and brother in purchasing a house at Allahabad. The substitution application filed by the son of the original plaintiff was allowed and he was permitted to be substituted in place of the original plaintiff. The revisional court did not interfere with the same on the ground that the order impugned was interlocutory in nature.
Counsel for the petitioner submitted that in view of the last wish expressed by the original owner of the property, it was not open to the plaintiff to bequeath the first floor portion in favour of her son. He further submitted that daughter is a necessary party to the proceedings and should be substituted in place of the deceased plaintiff.
Concededly, bequest of first floor and second floor of the building by Symon James Peter by will dated 23.11.1996 in favour of his wife was of absolute nature without any condition. The wish expressed by the testator that the first floor of the building should, after death of her wife, be bequeathed in favour of his daughter, was duly taken care of by the original plaintiff by making available finances for purchasing a house at
Allahabad. However, without expressing any final opinion upon the said issue, the material fact for the purpose of considering claim for substitution is that Smt. Sneh Lala Puthrana has not opposed the claim of her brother to seek impleadment in place of the original plaintiff. She has also not challenged the will executed by her mother by which even first floor was given to her brother. The petitioner, who is merely a tenant, has no right to contend that the will executed by the original plaintiff is contrary to the last wish of Late Symon James Peter. The purpose of substitution is to carry forward the litigation after death of the original party. The said purpose is duly served by bringing on record son of the deceased plaintiff.
Accordingly, this Court does not find any merit in the instant petition.
It is accordingly dismissed.
Order Date :- 4.1.2019 skv
(Manoj Kumar Gupta, J.)
3 issues framed by the court
Whether the petitioner as a tenant has locus to challenge the validity of the substituted plaintiff's will contrary to the testator's last wish.
Whether the substitution of the son in place of the deceased original plaintiff in the suit is proper despite the daughter not being a necessary party.
Whether the writ petition challenging the trial and revisional courts' orders allowing substitution has merit.
1 provisions across 1 enactments
Kewang
Smt. Jareena Peeters (Deceased)
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
