Dismissed

Arvind Purohit v. Pankaj Purohit and Ors.

Rajasthan HC31 Jul 2019CW/1378/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a writ petition challenging an appellate court order substituting Pankaj Purohit as the sole respondent in a civil appeal, deleting other heirs. The court held that no prejudice was caused and supervisory jurisdiction was not invoked as the error, if any, was not grave or manifest.

What did the court decide?

Writ petition and stay application dismissed; impugned order of Appellate Court upheld.

Arvind Purohit Vs Pankaj Purohit and Ors. — Succession and Inheritance | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 1378/2018

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Arvind Purohit S/o Late Shri Radhakishan Purohit, R/o Behind Punjab National Bank Old, Opposite Mahatma Gandhi Hospital, Jodhpur.

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----Petitioner

¶5

Versus

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Pankaj Purohit S/o Late Shri Dr. Gopikrishan Purohit, R/o Gopikrishan, E-22, Shastri Nagar, Opposite Lions Club, Jodhpur.

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Smt. Veena W/o Shri R.p. Vyas, D/o Late Shri Dr. Gopikrishan Purohit

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Smt. Kalpna W/o Late Shri Aswani Chhangani, D/o Late Shri Dr. Gopikrishan Purohit

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Smt. Sadhna W/o Shri Indar Ji Vyas, D/o Late Shri Dr. Gopikrishan Purohit

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Smt. Vandna W/o Shri N.k. Chhangani D/o Late Shri Dr. Gopikrishan Purohit, All Resident Of Gopikrishan, E-22, Shastri Nagar, Opposite Lions Club, Jodhpur.

¶11

----Respondents

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For Petitioner(s) : Mr. M.R. Singhvi, Sr. Advocate with Mr. Bhavit Sharma, Mr. Hukam Singh For Respondent(s) : Mr. B.M. Bhojak

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JUSTICE DINESH MEHTA

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Order

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Date of Order ::: July 31^st , 2019

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The present writ petition under Article 227 of the Constitution of India has been preferred, calling in question, the order dated 04.12.2017, passed by the learned Additional District Judge, No.1, Jodhpur Metro (hereinafter referred to as ‘the Appellate Court’).

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(2 of 9)

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[CW-1378/2018]

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The facts appertain to the present writ petition are a few, which concisely run as under:-

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2.1 Dr. Gopikishan Purohit–plaintiff, propositus of respondents Nos.1 to 5, filed a suit against Radhakishan Purohit (petitioner’s father). During the pendency of the suit, the defendant Radhakishan passed away and his legal representatives were brought on record. The suit so filed filed by the plaintiff, came to be decreed vide judgment and decree dated 31.01.2009.

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2.2 The legal representatives of the deceased defendant filed an appeal against the said judgment and decree. During the pendency of the appeal, respondent in the appeal-the plaintiff (Dr. Gopikishan Purohit) expired, for which an application dated 19.11.2011, under Order XXII Rule 4 of the Code of Civil Procedure came to be filed by the appellant (petitioner herein), praying that legal representatives of Dr. Gopikishan Purohit, be substituted in his place. The petitioner gave names of all the legal representatives of Dr. Gopikishan Purohit, viz., Smt. Vimla Devi, Pankam, Smt. Veena, Smt. Kalpana, Smt. Sadhna and Smt. Vandana, and prayed that they be substituted in place of the deceased respondent.

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2.3 Smt. Vimla Devi, wife of Dr. Gopikishan Purohit, filed a reply to the application and asserted that the property in question has vested in her, by virtue of a Will dated 31.05.2006, executed by Dr. Gopikishan Purohit and thus right to sue survived in her, while placing a copy of the Will on record.

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2.4 Before the application and the appeal could be decided, on 25.06.2017, Smt. Vimla Devi (respondent No.1/1 in appeal) died too; hence, an application under Order XXII Rule 4 of the Code, came to be filed by the appellant-defendant that name of

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(3 of 9)

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[CW-1378/2018]

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Smt. Vimla Devi be deleted, as her other heirs were already on record.

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2.5 The legal representatives of Smt. Vimla Devi filed a reply to the said application under Order XXII Rule 4 of the Code and contended that as per the covenant of the Will, the property in question, after the death of Smt. Vimla Devi, has devloved in Pankaj Purohit (son of Dr. Gopikishan Purohit), hence, the right to defend the appeal survives in him. The respondent requested the appellate court to make an endorsement of the factum of death of Smt. Vimla Devi and substitute Pankaj Purohit as a respondent.

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2.6 Along with the reply aforesaid, affidavit of Pankaj Purohit, so also affidavits of all other legal representatives of Dr. Gopikishan Purohit/Smt. Vimla Devi Purohit were filed, indicating therein that by virtue of Will dated 31.05.2006, executed by their father Dr. Gopikishan Purohit, the property had earlier devolved in Smt. Vimla Devi Purohit and after her death, in Pankaj Purohit and hence, name of Pankaj Purohit be substituted in place of respondents.

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2.7 Such being the position, the Appellate Court disposed of the application under Order XXII Rule 4 of the Code and substituted Pankaj Purohit – respondent No.1 as the respondent and deleted the names of respondents Nos.3 to 6 ( Smt. Veena, Smt. Kalpana, Smt. Sadhna and Smt. Vandana) from the array of respondents.

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Mr. M.R. Singhvi, learned Senior Counsel, oppugning the order dated 04.12.2017, argued that the Appellate Court has fallen into a manifest error of law in substituting Mr. Pankaj Purohit alone as a respondent in the appeal and deleting the

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(4 of 9)

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[CW-1378/2018]

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names of other legal representatives of Dr. Gopikishan Purohit and Smt. Vimla Devi Purohit.

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Expanding his argument, learned counsel invited the Court’s attention towards the following part of the Will dated 31.05.2006, executed by Dr. Gopikishan Purohit :

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“I wish to give my two Jodhpur House (I) – (ii) shall be the property of my wife Mrs. Vimla Devi Purohit and when she is no more, both the houses becomes the property of my son Pankaj Purohit.”

¶36

Mr. Singhvi contended that the aforesaid stipulation in the Will, though gives an impression that the contentious property has devolved in Smt. Vimla Devi Purohit, plaintiff’s wife and thereafter to Mr. Pankaj Purohit; but legally it has not. He argued that the estate of Smt. Vimla has devolved in her successors, inasmuch as latter part of the stipulation in the Will, viz., “and when she is no more, both the houses becomes the property of my son Pankaj Purohit”, is redundant or is liable to be ignored, as the testatrix had no right to bequeath the property to Mr. Pankaj Pruohit, having once given it to Smt. Vimla. After the death of Dr. Purohit, the suit property had become self acquired property of his wife-Smt. Vimla Devi Purohit and hence, she and she alone had the exclusive right to bequeath or transfer such property to any other person. In case of her dying intestate, the property would vest in her heirs as per the provisions of Hindu Succession Act, 1956.

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In support of his contention, Mr. Singhvi, relied upon the judgment of Hon’ble the Supreme Court, rendered in the case of Sadaram Suryanarayana & Anr. Vs. Kalla Surya Kantham & Anr.

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(5 of 9)

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[CW-1378/2018]

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[(2010) 13 SCC 147], particularly para No.23, which is being reproduced hereunder:-

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“Coming then to the facts of the case at hand it is evident from a careful reading of Clause 6 of the will extracted above that the same makes an unequivocal and absolute bequest in favour of the daughters of the testatrix. The use of words like ‘absolute rights of sale, gift, mortgage, etc.’ employed by the testatrix make the intention of the testatrix abundantly clear. The learned counsel for the plaintiff-respondents herein also did not have any quarrel with the proposition that the testatrix had in no uncertain terms made an absolute bequest in favour of her daughters. What was argued by him was that the bequest so made could be treated as a life estate not because the testament stated so but because unless it is so construed the second part of Clause 6 by which the female offspring of the legatees would get the property cannot take effect. It was on that premise contended that the absolute estate of Smt. Sadaram Appalanarasamma ought to be treated only as a life estate. The contention though attratctive on first blush, does not stand closer scrutiny. We say so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor, in the present case the testatrix.”

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Learned Senior Counsel, appearing for the petitioner, contended that the respondent No.1 – Pankaj Purohit cannot be held to be a legal representative upon whom the estate or the property has devolved. In support of his argument, learned counsel invited attention of the Court towards Section 2(11) of the Code of Civil Procedure, 1908, which defines the term “legal representatives”. His argument has been that the expression used in sub-section (11) of Section 2 of the Code, particularly who in law represents the estate of deceased person, means that all the legal representatives in whom the property has vested, are required to be impleaded as a party. He further argued that the

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(6 of 9)

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[CW-1378/2018]

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Appellate Court was required to implead all the children of Dr. Gopikishan Purohit/Smt. Vimla Devi Purohit, and only after that, the impleaded legal representatives may choose to abstain from the suit proceedings, as the requirement of law cannot be given a go-bye.

¶46

Mr. B.M. Bhojak, learned counsel appearing for the respondent No.1 Pankaj Purohit, argued that the Will, as a whole, is required to be read, in order to decipher or gather the true intention of the testatrix. A perusal of the Will reveals that Dr. Purohit had created only a life interest in Smt. Vimla Devi and the property in question had been bequeathed to the respondent No.1 – Pankaj Purohit. He argued that not only the respondent No.1, even other legal representatives of Dr. Gopikishan Purohit and Smt. Vimla Devi filed their affidavits, unequivocally asserting that the suit property has devolved in Pankaj Purohit and they do not have any interest or title in the property. While taking the Court through their affidavits, he pointed out that the other children of the plaintiff had prayed that their names be deleted from the array of respondents, hence, the Appellate Court was left with no option but to substitute present respondent No.1 in the appeal.

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Learned counsel for the respondent No.1 further argued that neither the Appellate Court nor this Court is required to interpret the Will, as suggested by the learned counsel for the petitioner. The Appellate Court was simply required to decide that who should be substituted in place of respondent and in view of the categorical affidavits, filed by the other legal representatives, the Court has rightly impleaded the respondent No.1, while dropping the names of others.

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(7 of 9)

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[CW-1378/2018]

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Mr. Bhojak also argued that the appellant can neither force the other legal representatives (proforma respondents Nos.2 to 6) to contest the appeal, nor can he drag them in litigation, particularly when they themselves have shown their reluctance, giving regard to the fact that their father had bequeathed the contentious property to Pankaj Purohit.

¶51

Learned counsel for the respondent urged that the petitioner’s argument that by virtue of the Will, the property has not vested in Pankaj Purohit is untenable in law, inasmuch as the Will had created only a life interest in Smt. Vimla Devi Purohit and as a matter of fact, the bequeath had been made in favour of the respondent No.1 – Pankaj Purohit. In support of his argument, learned counsel relied upon a judgment of Hon’ble the Supreme court in the case of Lakshmana Nadar & Ors. Vs. B. Ramier [AIR 1953 SC 304].

¶52

Having made submissions on the merit of the order dated 04.12.2017, learned counsel also argued that neither any prejudice has been caused to the appellant, consequent to the deletion of names of proforma respondents Nos.2 to 6, nor any irregularity, error of law or of jurisdiction has crept in the order under consideration, warranting this Court’s interference in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

¶53

Heard and considered the submissions.

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Sheet anchor of Mr. Singhvi’s argument has been that the covenant of the Will, reproduced in para No.4 above, if interpreted in accordance with law laid down by various Courts and Hon’ble the Supreme Court, the property could only devolve in Smt. Vimla Devi. The argument so advanced may be legally

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(8 of 9)

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[CW-1378/2018]

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correct, but, in absence of any challenge to devolution of the property in Mr. Pankaj Purohit, by any of the concerned party, this Court and for that matter, the Appellate Court, cannot pronounce upon rights of respondent No.1 – Pankaj Purohit in the property. Such an attempt would all the more be an academic and superfluous exercise, in the teeth of the fact that all other concerned parties, being legal representatives of Dr. Gopikishan Purohit/Smt. Vimla Devi have stated before the Appellate Court that the property has devolved in Mr. Pankaj Purohit, and he is the sole inheritor of the suit property.

¶58

That apart, this Court is of the firm opinion that as a result of substitution of respondent No.1 – Pankaj Purohit and deletion of the names of all other heirs of plaintiff/Smt. Vimla Devi, no adverse effect, much less prejudice has been caused to the present petitioner. The order impugned has not impaired or impacted the proceedings of appeal, in any manner.

¶59

The Appellate Court has conducted a summary enquiry, as envisaged under Order XXII, Rule 5 of the Code of Civil Procedure and in view of the affidavits filed by other heirs of Smt. Vimla Devi, it has reached to a conclusion that the respondent No.1-Pankaj Purohit, in law, represents the estate of Smt. Vimla Devi, so far as the suit property is concerned. The adjudication by the Appellate court is in tandem with the definition of expression “legal representatives” defined in sub-section (11) of Section 2 of the Code. Hence, the order impugned does not suffer from any error, much less apparent error on the face of the record.

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Even if it is presumed that the order dated 04.12.2017 suffers from some error, the same cannot be labelled as a grave error of law. This Court, thus, does not find it to be a fit case for

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(9 of 9)

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[CW-1378/2018]

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exercise of its supervisory jurisdiction, as no prejudice has been caused to the petitioner. This view of mine is a mere reflection of one of the principles enunciated by the Apex Court, in the case of

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Surya Dev Rai Vs. Ram Chander Rai & Ors. [(2003) 6 SCC 675] ; wherein Hon’ble the Supreme Court has ruled that the supervisory jurisdiction is not meant to correct mere errors of fact or of law, unless a grave injustice or failure of justice has occasioned:

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“Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii )a grave injustice or gross failure of justice has occasioned thereby.”

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Same views were echoed by Hon’ble the Supreme Court, albeit in some different words in case of Shalini Shyam Shetty and Ors. Vs. Rajendra Shankar Patil (2010)8 SCC

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329, wherein it has been observed as under:-

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“(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.”

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As an upshot of the discussion aforesaid, writ petition is dismissed, so also the stay application filed therewith.

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/skm/-

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(DINESH MEHTA),J

Arvind Purohit v. Pankaj Purohit and Ors.

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Arvind Purohit v. Pankaj Purohit and Ors.

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