Dismissed

Anil Kumar Bhati and Another v. Sanjeev Kumar Singh

Allahabad HC4 Jul 2023A227/4037/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a District Judge's order rejecting an objection to the impleadment of a substitute legal representative. The Court upheld the trial court's direction to decide the application for substitution under Order 22 Rule 5 CPC.

What did the court decide?

Writ petition dismissed; direction to trial court to decide application for substitution under Order 22 Rule 5 CPC.

Anil Kumar Bhati and Another Vs Sanjeev Kumar Singh — Property and Title | Allahabad HC (2023)

¶1

¶2

Neutral Citation No. - 2023:AHC:131478

¶3

Court No. - 1

¶4

Case :- MATTERS UNDER ARTICLE 227 No. - 4037 of 2023

¶5

Petitioner :- Anil Kumar Bhati And Another Respondent :- Sanjeev Kumar Singh Counsel for Petitioner :- Pravin Kumar Mishra,Dileep Chandra Mathur Counsel for Respondent :- Shiv Prakash Gupta

¶6

Hon'ble Jayant Banerji,J.

¶7

Sri Dileep Chandra Mathur, whose name appears in the cause list as counsel for the petitioners states that he has filed a vakalatnama on 20.4.2023 which is not on record.

¶8

Office is directed to trace out the same and place it on record.

¶9

Under challenge in the present writ petition is the order dated 28.3.2023, passed by the District Judge, Gautam Budh Nagar in Civil Revision No. 23 of 2022 (Sanjeev Kumar Singh Vs. Vaishali Bhati and others), whereby while allowing the revision filed by the respondentrevisionist, the order dated 31.5.2022 passed in Original Suit No. 467 of 2018 (Rajendra and others Vs. Sarjeet Singh and others), passed by the Court of Civil Judge (Senior Division), Gautam Budh Nagar was set aside and the trial court was directed to decide the application of substitution afresh in light of the observations.

¶10

It is the contention of the learned counsel for the petitioners that Rajendra, who was lessee of the property in dispute pursuant to a lease executed in his favour by the NOIDA, had executed a sale deed dated 29.8.2018 in favour of father of petitioner no.1, namely, Sarjeet. It is stated that the respondent, who is a builder, got a fraudulent will deed prepared in his favour by all the plaintiffs, Rajendra, Rajveer and Phire Ram, all sons of Ranjeet Singh. It is stated that the aforesaid Rajendra died on 1.1.2021 and thereafter, an application (paper No. 61-Ka) was filed by the respondent in Original Suit No. 467 of 2018. The suit No. 467

¶11

¶12

of 2018 was filed by the said Rajendra and others against the father of petitioner No.1 seeking cancellation of sale deed executed in favour of father of petitioner no.1 on 29.8.2018. In opposition to the aforesaid paper no. 61-Ka, the petitioners filed their objections which came to be decided by the trial court by means of an order dated 31.5.2022.

¶13

It is contended that the application paper no. 61-Ka was rejected by the trial court. The aforesaid order dated 31.5.2022 was challenged by the respondent-revisionist in the aforesaid Civil Revision No. 23 of 2022 which came to be allowed by means of the impugned order. It is stated that the order is illegal as the will itself was fraudulent document and a separate suit bearing Suit No. 717 of 2020 was filed by the father of petitioner no.1 against Rajendra and others which is still pending. It is further contended that the application for substitution filed by the respondent cannot be allowed as the will itself is fraudulent. In support of his contention, learned counsel for the petitioners has relied upon a judgment dated 20.11.2018 passed by a Coordinate Bench of this Court in Matter Under Article 227 No. 7434 of 2017 (Narbdeshwar and others Vs. Ram Naresh Chaudhari) .

¶14

Learned counsel for the respondent, Sri Shiv Prakash Gupta has opposed the writ petition and has contended that the trial court was bound to decide the substitution application in view of the mandate of order 22 Rule 5 of the CPC. It is contended that accordingly, the order of the District Judge passed in the aforesaid revision is justified. That, it is not disputed by the petitioners that the respondent has set up his claim for substitution in Original Suit No. 467 of 2018 on the basis of a will purportedly executed by the plaintiffs in the suit in his favour. Such being the case, the mandate of Order 22 Rule 5 CPC is that the issue of representation has to be necessarily determined by the Court.

¶15

Having heard the contentions of the learned counsel for the

¶16

¶17

petitioners, it is evident that the application paper No. 61-Ka was filed by the respondent in the aforesaid Suit No. 467 of 2018 seeking substitution. By the order dated 3.12.2022, the trial court has been swayed by the objection filed by the petitioners that the will deed executed is a fraudulent document. It has been observed that under the will deed, no right as claimed in the application would flow. It has further been directed that in view of the direction of the High Court, an application under Order 7 Rule 11 CPC was filed. The revisional Court, in an elaborate and well reasoned judgment dated 28.3.2023, has allowed the revision. In view of the mandate of Order 22 Rule 5 CPC read alongwith provisions of Section 2(11) of CPC, it was observed by the revisional court that the aspect of legal representation has to be determined by the trial court.

¶18

The judgment relied upon by the learned counsel for the petitioners is of no assistance to him, rather it is an iteration of the settled legal position that where there is a dispute as to who would be legal representative of a deceased party, the Court has to first determine the issue, under Order 22 Rule 5 CPC before proceedings further in the matter . The observations made by the coordinate Bench in the judgment aforesaid are reproduced below:-

¶19

“Taking a conspectus of the provisions in the Code and the decisions noticed above, the legal principles that could be deduced therefrom, concerning substitution of legal representative(s) of a deceased party, are:

¶20

(a) Where there is a dispute as to who would be legal representative of a deceased party, the Court has to first determine the issue, under Order 22 Rule 5 CPC, before proceeding further in the matter.

¶21

(b) An enquiry under Order 22 Rule 5 CPC is to determine the legal representative for the purposes of pursuing the suit or proceeding and, ordinarily, such an enquiry is of summary nature. A finding returned therein would not amount to res judicata in between parties, who set up rival claim against legatee, in regular probate proceeding. But such finding would be final and operate as res judicata as regards that suit or proceeding and cannot be re-agitated at a subsequent stage in the same suit or proceeding.

¶22

(c) Where the continuance of the suit or proceeding would depend upon decision on the issue as to whether a person is or is not the legal representative(s) of the deceased party, and other than that

¶23

¶24

person or persons there is no one else to represent the estate of the deceased for the purposes of suing or being sued, the Court must determine the issue before proceeding further in the suit or proceeding and for that purpose, if required, may take such evidence, as may be necessary.

¶25

(d) Where a person sets up a Will of a deceased party to claim substitution, and there are other natural heirs of the deceased party already on record or brought on record, to avoid unnecessary delay that might be caused on account of an inquiry as regards legality and validity of the Will, he may be impleaded along with other natural heirs of the deceased party even without a thorough enquiry as regards validity and legality of the Will, though subject to final determination of the rights of the parties in regular probate proceeding. Likewise, where a sole natural heir or one of the natural heirs of the deceased party is also a legatee of the deceased party, he may be impleaded as legal representative of the deceased party even without a thorough enquiry as regards validity or legality of the Will.

¶26

(e) Where a serious dispute is raised as to whether a person is or is not a legal representative of the deceased party, either as natural heir or as legatee of the deceased party, and the suit or proceeding would abate but for impleadment of such person, the Court must decide the issue by taking evidence. And, in such cases, where the basis of the claim for impleadment is a Will, validity or legality of the Will would have to be tested after taking evidence in proof thereof.”

¶27

In view of the aforesaid discussions, I find that there is no merit in

¶28

this petition and it is, accordingly, dismissed .

¶29

Order Date :- 4.7.2023 sfa/

¶30

(Jayant Banerji, J)

¶31

Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad

Anil Kumar Bhati and Another v. Sanjeev Kumar Singh

Case brief

What is this about?

What did the court decide?

Anil Kumar Bhati and Another v. Sanjeev Kumar Singh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Maharaj Kumari Vishnupriya and 2 Others Vs State of U.P. and 5 Others

Maharaj Kumari Vishnupriya and 2 Others Vs State of U.P.and 5 Others

Suraj Nath and 8 Others Vs the Board of Revenue at Allahabad and Another

Mohd Afazal Vs Smt Hina Kaushar

Smt.Sonali Jain Vs Samyak Jain and 4 Others

Ghanshyam and 7 Others Vs Smt. Manju Singh