Allowed

Ashish Kumar v. Neeraj Kumar Gupta and Others

Allahabad HC4 Jan 2019WRIA/41875/2012

Case brief

AI extract

What is this about?

Single judge quashed the Prescribed Authority's rejection of a substituted applicant's request to take over a release application filed by a deceased original applicant. The Authority based rejection on missing death certificate and revenue mutation, and pendency of another claim. The Court held a registered Will sufficed and other claims were merit-only issues.

What did the court decide?

Impugned order dated 22.5.2012 is quashed. Substitution of the petitioner in place of the deceased applicant Raghunath Rai, ordered.

Ashish Kumar Vs Neeraj Kumar Gupta and Others — Property and Title | Allahabad HC (2019)

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Court No. - 19

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Case :- WRIT - A No. - 41875 of 2012

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Petitioner :- Ashish Kumar Respondent :- Neeraj Kumar Gupta & Others Counsel for Petitioner :- Ashish Mohan Srivastava Counsel for Respondent :- Nitin Kumar Agrawal

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Hon'ble Manoj Kumar Gupta,J.

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A supplementary affidavit has been filed by the petitioner and the same is taken on record.

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With consent of learned counsel for the parties, the writ petition is being decided finally without inviting any further affidavits from them.

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The petition is direction against an order dated 22.5.2012 whereby, the Prescribed Authority while deciding a substitution application filed by the petitioner seeking his substitution in place of the original applicant in proceedings under Section 21(1)(a) of U.P. Act No. 13 of 1972 has rejected the same.

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The release application was filed by Raghunath Rai, grand-father of the petitioner. During pendency of the release application, he died on 16.9.2011. According to the petitioner, the tenanted premises devolved upon him on basis of a registered Will dated 13.12.2007 executed by his grand-father Raghunath Rai. Consequently, after his death, he filed the application for his substitution in place of his grand-father. The application was opposed by respondent Nos. 1 & 2 by filing objections contending that the deceased had left behind his widow and daughters as his heirs and legal representatives, who have not been impleaded, therefore, the application filed by the petitioner

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should be rejected.

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The Prescribed Authority rejected the release application by observing that the death certificate of Raghunath Rai has not been brought on record nor the petitioner has filed any evidence to prove that his name was mutated in the revenue records, after the death of his grand-father. The Court has also observed that the applications filed by other owners of the property seeking impleadment are still pending, against which no objection has been filed by the petitioner so far. Having regard to the above factors, the substitution application has been rejected.

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After hearing counsel for the parties, I am of the considered opinion that none of the grounds taken by the Prescribed Authority for rejecting the substitution application are sustainable in law. It is not in dispute between the parties that Raghunath Rai, the original applicant died on 16.9.2011 during pendency of the release application, therefore, even if the death certificate was not brought on record, it would hardly have any adverse effect on the merits of the substitution application. The mutation of the name of the petitioner in revenue records in place of his grand-father was not at all necessary for allowing the substitution application. Concededly, the Will in favour of the petitioner is a registered one. The need set-up in the release application was also that of the petitioner. None of the natural heir of the deceased applicant in Clause I of the Schedule to the Hindu Succession Act, 1956 has come forward to seek impleadment in place of the deceased applicant. In such circumstances, there was no impediment in the way of the Prescribed Authority in allowing the

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substitution application of the petitioner on the basis of the registered Will.

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In case, any application has been filed by any person claiming himself to be co-owner of the tenanted premises, such an application has to be decided on its own merits, but merely because of its pendency, the substitution application could not be rejected. Accordingly, the impugned order dated 22.5.2012 is quashed. The petition is allowed. The Prescribed Authority shall permit the substitution of the petitioner in place of the deceased applicant Raghunath Rai. It is clarified that the instant order would not amount to adjudication of the right of the petitioner to inherit to property on basis of alleged Will and in case, such issue arises in any proceeding, the same shall be decided on merits and without being influenced by any observation made in the instant order.

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(Manoj Kumar Gupta, J.) Order Date :- 4.1.2019 AM/-

Ashish Kumar v. Neeraj Kumar Gupta and Others

Case brief

What is this about?

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Ashish Kumar v. Neeraj Kumar Gupta and Others

Case brief

What is this about?

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