Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr.

on 6 May, 2010

Delhi High Court

Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr. on 6 May, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.M. No.3513/2008 (by the legal representative of

the deceased respondent No.1 u/O 22 R-10A CPC)
and C.M. No.11447/2008 (by the petitioner u/O 22 R-
4A CPC) in C.R.P. No. 550/1998 and C.M.
No. 3515/2008 (by the legal representative of the
deceased respondent No.1 u/O 22 R-10A CPC) and
C.M. No.11520/2008 (by the petitioner u/O 22 R-4A
CPC) in C.R.P. No.1204/2000

Date of decision : 06.05.2010

IN THE MATTER OF :

SHRI CHANDERPAL SINGH ..... Petitioner

Through: Mr. Ravinder Sethi, Sr. Advocate with
Ms. Saundarya Singh and Mr. Puneet Sharma,
Advocates

versus

SMT. SWARAN LATA DHOBHAL & ANR. ..... Respondents

Through: Mr. Manoj K. Singh, Advocate with
Mr. Pradyuman Sevar, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

1. Whether Reporters of Local papers may Yes

be allowed to see the Judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be Yes

reported in the Digest?

HIMA KOHLI, J. (ORAL)

1. Vide order dated 20.08.2009, the Registrar was directed to submit his report in terms of Order 22
Rule 5 CPC to enable the Court to determine as to whether Ms.Kalpana Dhobhal, applicant in CM
No.3513/2008 and CM No.3515/2008 is the legal representative of the deceased respondent No.1,
Shri D.C. Dhobhal, or not. After conducting an enquiry, the Registrar has submitted his report dated

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 Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr. on 6 May, 2010

24.11.2009. It is stated in the report that the statements of RW1, Mr.Ramesh Chandra Dhobhal,
RW2, Ms.Kalpana Dhobhal and RW3, Mr.Balbir Singh, were recorded on 19.11.2009 and
24.11.2009. Based on the deposition of the aforesaid witnesses, the Registrar has opined that in his
view, Ms.Kalpana Dhobhal is a Class-I legal heir of the deceased respondent No.1, Shri D.C.
Dhobhal, being his duly wedded wife. The report further states that as the directions in the order
dated 20.08.2009 were for recording of statement to conduct an enquiry only, no opportunity was
given to either of the parties to examine or cross-examine the witnesses and address arguments for
the purposes of preparation of the report.

2. Counsel for the petitioner disputes the aforesaid report submitted by the Registrar and states that
he was not afforded an opportunity to cross-examine the witnesses summoned by the applicant who
has set up a Will dated 27.3.2004, allegedly executed by the deceased respondent No.1 and that the
applicant cannot be treated as his sole legal heir for being substituted in his place in the present
proceedings.

3. Counsel for the respondents responds by stating that without going into the issue as to whether
Ms. Kalpana Dhobhal is the legally wedded wife of the deceased respondent No.1 or not, in view of
the fact that under the Will dated 27.03.2004 executed by the deceased respondent No.1, he has
bequeathed all his movable and immovable properties to Ms.Kalpana Dhobhal, she may be
permitted to represent his estate and be brought on record as his legal representative in terms of
Section 2(11) of the Code of Civil Procedure. In support of his submission, he refers to two recent
decisions of the Supreme Court in the case of Jaladi Suguna (deceased) through LRs vs. Satya Sai
Central Trust and Ors. reported as AIR 2008 SC 2866 and Suresh Kumar Bansal vs. Krishna Bansal
and Anr. reported as AIR 2010 SC 344.

4. While examining the provision of Order 22 Rule 5 CPC which lays down the procedure to be
followed in the case of death of a defendant, the Supreme Court held in the case of Jaladi Suguna
(supra), as below:-

"8. 'Legal representative' according to its definition in Section 2(11) of CPC, means a
person who in law represents the estate of a deceased person, and includes any
person who intermeddles with the estate of the deceased. Thus a legatee under a will,
who intends to represent the estate of the deceased testator, being an intermeddler
with the estate of the deceased, will be a legal representative. Order 22 CPC inter alia
deals with death of parties. Rule 4 relates to the procedure in case of death of one of
several defendants or of the sole defendant. Rule 5 relates to determination of
question as to legal representative. Rule 11 relates to application of Order 20 to
appeals. The said rules, to the extent relevant, are extracted below:

4. Procedure in case of death of one of several defendants or of sole defendant.:- (1)

Where one of two or more defendants dies and the right to sue does not survive
against the surviving defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court, on an application
made in that behalf, shall cause the legal representative of the deceased defendant to

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 Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr. on 6 May, 2010

be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as
legal representative of the deceased defendant, xxxxxxx

5. Determination of question as to legal representative:-- Where a question arises as

to whether any person is or is not the legal representative of a deceased plaintiff or a
deceased defendant, such question shall be determined by the Court:

Provided that where such question arises before an Appellate Court, that Court may,
before determining the question, direct any subordinate Court to try the question and
to return the records together with evidence, if any recorded at such trial, its findings
and reasons therefore, and the Appellant Court may take the same into consideration
in determining the question.

11. Application of Order to appeals:-- In the application of this Order to appeals, so

far as may be, the word 'plaintiff shall be held to include an appellant, the word
'defendant' a respondent, the word 'suit' an appeal.

9. When a respondent in an appeal dies, and the right to sue survives, the legal
representatives of the deceased respondent have to be brought on record before the
court: can proceed further in the appeal. Where the respondent-plaintiff who has
succeeded in a suit, dies during the pendency of the appeal, any judgment rendered
on hearing the appeal filed by the defendant, without bringing the legal
representatives of the deceased respondent - plaintiff on record, will be a nullity. In
the appeal before the High Court, the first respondent therein (Suguna) was the
contesting respondent and the second respondent (tenant) was only a proforma
respondent. When first respondent in the appeal died, the right to prosecute the
appeal survived against her estate. Therefore it was necessary to bring the legal
representative/s of the deceased Suguna on record to proceed with the appeal.

10. Filing an application to bring the legal representatives on record, does not
amount to bringing the legal representatives on record.

When an LR application is filed, the court should consider it and decide whether the
persons named therein as the legal representatives, should be brought on record to
represent the estate of the deceased. Until such decision by the court, the persons
claiming to be the legal representatives have no right to represent the estate of the
deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal
representative, a decision should be rendered on such dispute. Only when the
question of legal representative is determined by the court and such legal
representative is brought on record, it can be said that the estate of the deceased is
represented. The determination as to who is the legal representative under Order 22
Rule 5 will of course be for the limited purpose of representation of the estate of the

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 Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr. on 6 May, 2010

deceased, for adjudication of that case. Such determination for such limited purpose
will not confer on the person held to be the legal representative, any right to the
property which is the subject matter of the suit, vis-a-vis other rival claimants to the
estate of the deceased.

11. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in
an appeal dies, the Court cannot simply say that it will hear all rival claimants to the
estate of the deceased respondent and proceed to dispose of the appeal. Nor can it
implead all persons claiming to be legal representatives, as parties to the appeal
without deciding who will represent the estate of the deceased, and proceed to hear
the appeal on merits. The court cannot also postpone the decision as to who is the
legal representative of the deceased respondent, for being decided along with the
appeal on merits. The Code clearly provides that where a question arises as to
whether any person is or is not the legal representative of a deceased respondent,
such question shall be determined by the court. The Code also provides that where
one of the respondents dies and the right to sue does not survive against the surviving
respondents, the court shall, on an application made in that behalf, cause the legal
representatives of the deceased respondent to be made parties, and then proceed
with the case. Though Rule 5 does not specifically provide that determination of legal
representative should precede the hearing of the appeal on merits, Rule 4 read with
Rule 11 make it clear that the appeal can be heard only after the legal representatives
are brought on record." (emphasis added)

5. To the same effect is the decision of the Supreme Court, in the case of Suresh Kumar Bansal
(supra), wherein, while relying on the aforesaid judgment, it was observed that determination of the
question as to who is the legal representative of the deceased plaintiff or defendant under Order
XXII Rule 5 of the Code of Civil Procedure, is only for the purposes of bringing legal representatives
on record for the conduct of those legal proceedings only and does not operate as res judicata and
the inter se dispute between the rival legal representatives has to be independently tried and decided
in probate proceedings. Adverting to the decision in the case of Jaladi Suguna (supra), it was held as
below :

"10. Before parting with this judgment, it is necessary to consider the decision of this
Court in the case of Jaladi Suguna (deceased) through L.Rs. v. Satya Sai Central Trust
and Ors. (2008) 8 SCC 521 cited by the learned senior counsel for the appellant. In
Jaladi Suguna (supra), this Court held that the interstate heir (husband) and the
testamentary legatees (nieces and nephews), seeking impleadment as the heirs of the
deceased respondent in an appeal have to be brought on record before the Court can
proceed further in the appeal. Furthermore, in that decision it was also held that a
legatee under a Will, who intends to represent the estate of the deceased testator,
being an intermeddler with the estate of the deceased testator, will be a legal
representative. In view of the aforesaid discussions and in view of the decision
reported in Jaladi Suguna (supra), we are also of the view that in an eviction
proceeding, when a legatee under a Will intends to represent the interest of the estate

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 Shri Chanderpal Singh vs Smt. Swaran Lata Dhobhal & Anr. on 6 May, 2010

of the deceased testator, he will be a legal representative within the meaning of

Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction
suit to decide whether the Will on the basis of which substitution is sought for, is a
suspicious one or that the parties must send the case back to the probate Court for a
decision whether the Will was genuine or not."

6. In the light of the aforesaid judgments, the submission of the counsel for the petitioner that the
applicant, Ms.Kalpana Dhobhal be permitted to be brought on the record as the legal representative
of the deceased respondent No.1, upon her undertaking to file a probate petition to establish the
genuineness of the Will dated 27.3.2004 executed by the deceased respondent No.1, seems
reasonable.

7. Counsel for the respondents states that his client has no objection to apply for probate of Will
dated 27.3.2004 executed by Late Shri D.C. Dhobhal insofar as the property, subject matter of the
present petitions, is concerned and that she shall take necessary steps in that regard at the earliest.

8. In view of the aforesaid statements made by the counsels for the parties, which is in consonance
with the spirit of the decisions of the Supreme Court mentioned above, the controversy is resolved.
It is directed that Ms. Kalpana Dhobhal be brought on the record as the legal representative of the
deceased respondent No.1, so as to represent his estate in the present proceedings. The same is,
however, subject to grant of probate by a competent Court of law in respect of the Will dated
27.03.2004, stated to have been executed by Shri D.C. Dhobhal, in a probate petition to be filed by
the applicant in respect of immovable property, subject matter of the present petitions, described in
the Will as plot/premises No. 205, Mushalmani Mohalla, Patparganj, Delhi, measuring 2554 sq.
yards. If the Will is found to be genuine in the probate proceedings and the applicant is granted the
probate, she shall be entitled to seek execution of the decree, in case she ultimately succeeds in the
present proceedings.

9. The applications are disposed of. An amended memo of parties shall be filed by the petitioner
within two weeks, with an advance copy to the counsel for the respondents.

(HIMA KOHLI)
MAY 06, 2010 JUDGE
rkb

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