Dismissed

Suresh Kumar etc. v. Prem Parkash etc.

Punjab & Haryana HC16 Sept 2010CR/6990/2009

Case brief

AI extract

What is this about?

The High Court dismissed the petitioners' challenge to the trial Court's order allowing impleadment of a respondent as a legal heir based on a Will. The Court held that impleadment was for procedural necessity to continue the suit, not to confer inheritance rights, and reserved the validity of the Will for later evidence.

What did the court decide?

Petition dismissed. The trial Court order allowing impleadment was upheld as there is no merit in the challenge under Order 22 Rule 5 CPC.

Suresh Kumar etc. Vs Prem Parkash etc. — Succession and Inheritance | Punjab & Haryana HC (2010)

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C.R.No.6990 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH.

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C.R.No.6990 of 2009 (O&M) Date of decision: 16.9.2010

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Suresh Kumar and others

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...Petitioners.

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Versus Prem Parkash and others.

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......Respondents.

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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG.

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Present: Mr.Ashish Gupta, Advocate, for the petitioners. RAKESH KUMAR GARG,J.

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Petitioners (Defendants No. 1 and 2), have challenged the order dated 19.8.2009, passed by learned trial Court whereby an application for impleading the respondent No.1 as legal representative of Radhey Sham Gupta, was allowed.

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Facts in brief are that one Radhey Sham Gupta filed a suit for declaration and permanent injunction against the petitioners and others. During the pendency of the suit aforesaid Radhey Sham Gupta died on 5.7.2008 and thereafter respondent No.1 filed an application for impleading him as legal heir of Radhey Sham Gupta on the basis of a registered Will dated 25.7.2006 executed by Radhey sham Gupta in his favour. According to respondent No.1, on the basis of the aforesaid Will he became the exclusive owner of the disputed property qua the share of the deceased Radhey Sham Gupta and after his death he was the only legal heir to proceed with the suit.

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The aforesaid application for impleading respondent No.1 as

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C.R.No.6990 of 2009

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legal representative of Radhey Sham Gupta was contested by the petitioners by filing reply dated 23.9.2008 wherein it was stated that Radhey Sham Gupta died intestate. Execution of the Will dated 25.7.2006 propounded by respondent No.1 was denied stating that the suit property was an ancestral property and Radhey Sham Gupta was not competent to execute the alleged will. It was further stated that Radhey Sham Gupta had also left Class-I heirs as mentioned in the reply and therefore, respondent No.1 cannot be considered as legal heir on the basis of the aforesaid Will.

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The trial Court vide impugned order dated 19.8.2009 allowed the application filed by respondent No.1 and ordered to implead him as legal heir of plaintiff Radhey Sham Gupta observing that the issues as to whether the suit property was ancestral or whether the plaintiff was authorised to alienate the same through a Will or not, is a matter of evidence and the same can only be decided after appreciation of evidence and in case the impleadment is not allowed the suit itself will not continue. The trial Court also observed that the validity of Will at this stage was not being determined as the impleadment of respondent No.1 was only to continue with the proceedings initiated by Radhey Sham Gupta.

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Challenging the aforesaid order, learned counsel for the petitioners has vehemently argued that the impugned order has been passed without following the provisions of Order 22 Rule 5 of the Code of Civil Procedure, according to which if any question arises regarding the legal representatives of the deceased then such question is to be determined by the Court in terms of the said provision. It is argued that in the case in hand, respondent claimed to be legal representative on the basis of Will and this question can be determined after leading evidence in accordance with the

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C.R.No.6990 of 2009

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procedure provided under Order 22 Rule 5 of the Code of Civil Procedure. Since the aforesaid procedure has not been adopted, the impugned order suffers from jurisdictional error and cannot be sustained in the eyes of law and is liable to be set aside. In support of his case, learned counsel for the petitioners has also relied upon a judgment of this Court in the case of Smt.Sahab Kaur v. Avtar Singh and others, 2005(3)R.C.R.(Civil)825 .

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I have heard the learned counsel for the petitioners and perused the impugned order and the other documents placed on the record of the case.

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Admittedly, the petitioners are strangers and are not claiming any right to the inheritance of Radhey Sham Gupta. The rights of the parties inter se on the basis of the Will are yet to be determined and that can only be decided in case the civil suit filed by Radhey Sham Gupta proceeds further. Respondent No.1 has been allowed to be impleaded for a limited purpose only to continue with the proceedings initiated by Radhey Sham Gupta. The validity of the Will in question is yet to be determined and is open. There is no dispute with the proposition of law that wherever there is a dispute with regard to the legal representatives of a deceased and wherever the Court thinks it is necessary, an inquiry can be held to determine the question of legal representative.

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In the present case, the impleadment of respondent No.1 does not confer any right upon him to succeed to the estate of the deceased on the basis of the alleged Will and he has been impleaded for limited purpose to carry out the present suit.

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C.R.No.6990 of 2009

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Therefore, no error can be found in the impugned order. No merit. Dismissed.

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(Rakesh Kumar Garg) Judge

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September 16, 2010 rk

Suresh Kumar etc. v. Prem Parkash etc.

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Suresh Kumar etc. v. Prem Parkash etc.

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