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Mangat and anr. Vs. Surja - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1880 of 1977
Judge
Reported inAIR1979P& H194
ActsCode of Civil Procedure (CPC), 1908 - Sections 11(2) - Order 22, Rule 5
AppellantMangat and anr.
RespondentSurja
Cases ReferredIn Suraj Mani v. Kishori Lal
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........locus standi to file the application because he was neither the adopted son of surja nor was his legal representative. according to them, the counsel for the parties had been informed about the date of hearing of the appeal.4. the learned district judge framed the following issues:1. whether the application for setting aside the ex parte decree and for rehearing of the appeal on merits is within time ? 2. whether the applicant has locus standi to file this application ? 3. whether there are sufficient grounds for accepting the present application ?5. all the three issues have been decided in favour of iswar singh, respondent by order dated oct. 27, 1977. it is against this order that the present revision is directed.6. the ex parte decree was passed by the appellate court on aug. 18,.....
Judgment:
ORDER

1. Surja (now deceased) filed a suit against Mangat and his brother Hukum, petitioners for a declaration that the gift-deed dated June 17, 1969, alleged to have been executed by him in respect of agricultural land measuring 62 Kanals 16 Marlas in village Sandhir, Tahsil Karnal, in their favour is null and void and for a permanent injunction restraining them from interfering with his possession of the said land. The trial court decreed the suit in favour of Surja on March 13, 1974. Mangat and Hukum preferred an appeal which remained pending in the Court of District Judge, Karnal, who vide order dated Feb. 26, 1975, adjourned it sine die. On Aug. 1, 1975, the District Judge entrusted this appeal to the Additional District Judge, Karnal, directing that the appeal will be taken up for arguments in the transferee Court on Aug. 7, 1975. The Order dated Aug. 1, 1975, purported to have been passed in the presence of Shri B. P. Jain, counsel for the petitioners and Shri Chinta Mani, counsel for Surja. On Aug. 7, 1975, nobody appeared before the Additional District Judge, Karnal, on behalf of Surja. The Additional District Judge heard ex parte arguments of the petitioners and vide Order dated Aug. 18, 1975, accepted the appeal and dismissed the suit of Surja.

2. On Sep. 15, 1975, Ishwar Singh respondent claiming to be the adopted son of Surja filed an application for re-hearing of the appeal stating that Surja died on Aug. 29, 1975, and no intimation was received by him or his counsel that the appeal had been posted for arguments for a particular date. Ishwar Singh is a minor. The application, was filed on his behalf by his father Parsa. It was stated in the application that Parsa visited Karnal on Aug. 28, 1975, to make enquiries about the appeal from Sri Chinta Mani, Advocate, who informed him (Parsa) that no information had been received regarding the fixation of the appeal. On further enquiry, Parsa learnt that the appeal had been heard and decided ex parte. The absence of Surja in the appellate court on Aug. 18, 1975, was not intentional. It was accordingly prayed that the ex parte decree passed by the appellate court be set aside and the appeal be reheard.

3. Mangat and Hukum, petitioners contested the application of Iswar Singh. They denied that Ishwar Singh had locus standi to file the application because he was neither the adopted son of Surja nor was his legal representative. According to them, the counsel for the parties had been informed about the date of hearing of the appeal.

4. The learned District Judge framed the following issues:

1. Whether the application for setting aside the ex parte decree and for rehearing of the appeal on merits is within time ?

2. Whether the applicant has locus standi to file this application ?

3. Whether there are sufficient grounds for accepting the present application ?

5. All the three issues have been decided in favour of Iswar Singh, respondent by Order dated Oct. 27, 1977. It is against this order that the present revision is directed.

6. The ex parte decree was passed by the appellate court on Aug. 18, 1975 and the application for rehearing of the appeal was submitted on Sep. 15, 1975. The application was, therefore, well within time. Issue No. 1 was not pressed before the learned District Judge. It has been rightly found against the petitioners.

7. Shri Chinta Mani, Advocate, appeared as a witness and he stated on oath that he was not informed about the date of hearing of the appeal in the Court of Additional District judge, Karnal. In view of his categorical statement it is difficut to hold that he had been informed about the date of hearing or he absented intentionally. It appears that there crept some unintentional error when his Presence was recorded at the time of the transfer of the appeal from the Court of District Judge, Karnal, to that of Additional District Judge on Aug. 1, 1975. The learned District Judge has rightly found issue No. 3 in favour of the respondent.

8. Surja owned more than 126 Kanals of land. He had allegedly gifted 62 Kanals 16 Marlas of land in favour of Hukum and Mangat. Surja being an old man, his land was cultivated by different persons on Batai. According to Khasara Gurdawari, Hukum was in possession of 31 Kanals 17 Marlas, including 23 Kanals 7 Marlas of the gifted land. Parsa, natural father of Iswar Singh, also cultivated some land of Surja on Batai. The learned District Judge, in these circumstances, has found that Ishwar Singh being a minor, his father Parsa himself must now be cultivating the land on behalf of his son Ishwar Singh, who is claiming to be the adopted son of Surja deceased.

9. Ishwar Singh applied for rehearing of the appeal as a legal representative of Surja deceased. In his application dated Sep. 15, 1975, he claimed himself to be the adopted son of Surja. He produced a copy of the adoption deed executed by Surja in his favour on Aug. 25, 1975, which was registered on Aug. 26, 1975. Ishwar Singh also put forth his claim as a legal representative of Surja deceased on the basis of a will executed in his favour by Surja on Aug. 27, 1975. The learned District Judge has held that Ishwar Singh is the legal representative of Surja deceased and has a locus stand! to file application dated Sep. 15, 1975.

10. The contention of the learned counsel for the petitioners is that the approach of the learned District Judge is erroneous. It was necessary for the learned District Judge to have found if the adoption of Ishwar Singh by Surja was valid or not and further the will set up by him in his favour was valid or otherwise. The District Judge without having decided the points relating to the validity of the adoption of Ishwar Singh by Surja as also the alleged will made by him could not hold that Ishwar Singh was the legal representative of Surja deceased.

11. The learned District Judge after having found that there is reason for Iswar Singh to intermeddle with the estate of Surja deceased in view of the registered adoption deed in his favour as also the will dated Aug. 27, 1975, held him the legal representative of the deceased without going into the question of validity of adoption or of the will in detail.

12. A ''legal representative'' is defined in Section 2, sub-section (11) of the Civil P. C. and it reads:

''legal representative' 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 and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the ''party so suing or sued.'

13. Rule 5 of Order 22, Civil Procedure Code, relates to the determination of question as to legal representative and it reads:--

'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.'

14. The emphasis of the learned counsel for the petitioners is that it was incumbent upon the learned District Judge to decide whether Iswar Singh was the adopted son and or the legatee of Surja or not. In support of his contention, the learned counsel has drawn my attention to the word ''shall'' in O. 22, R. 5, reproduced above. I do not agree with this contention. It is true that the Court is bound to determine whether any person is a legal representative or not but the word ''determine'' is not to be equated with 'decide'. A determination under O. 22, R. 5 of the Civil P. C. is not res judicata, It was held in Chiragh Din v. Dilawar Khan. AIR 1934 Lah 465, that wherein a proceeding under O. 22, R. 5, a certain person is (or is not) held to be the legal representative of a deceased party the same question can be reagitated in a separate suit and is not barred by the rule of res judicata. In Daulat Ram v. Mt. Meero, AIR 1941 Lah 142, it was found that a decision under O. 22, R. 5 shall be limited to the purpose of carrying on the suit and cannot have the effect of conferring any right to heirship or to property. In Zalim v. Tirlochan Prasad Singh, AIR 1937 Oudh 220 (FB), it was held that the determination of question whether a certain person is or is not the legal representative of a deceased party in a proceeding under O. 22, R. 5, Civil P. C. does not operate as res Judicata so as to preclude the same question from being reagitated in a separate suit. In Suraj Mani v. Kishori Lal, AIR 1976 Him Pra 74, it was held that an order under O. 22, R. 5 involves a summary enquiry as to who should be substituted in place of the deceased party in a pending proceeding and such a decision does not operate as res judicata. It was also held that the definition of 'legal representative' in Section 2(11) is very wide. It will include a person who seeks to represent the estate of a deceased person on the basis of a will said to be executed by the deceased in his favour. The estate will be sufficiently represented by such a person.

15. It is clear from the authorities cited above that a legal representative is one who is to represent the estate of the deceased for the limited purpose of carrying on the suit and may not essentially be his heir. An enquiry in the matter of determination of a legal representative under O. 22, R. 5 is by and large summary. The order of determination under O. 22, R. 5 is not res judicata between the parties.

16. The learned District Judge has found that Ishwar Singh is an intermeddler qua the estate of Surja deceased inasmuch as he is in possession of a substantial part of his land. He has further claimed to be the adopted son of the deceased on the basis of a registered adoption deed in his favour. He has set up a will allegedly executed by the deceased in his favour. In view of the principles enunciated above, the learned District Judge rightly found him to be the legal representative of the deceased. Under these circumstances, it was not necessary to go into details to decide the validity or otherwise of his adoption by the deceased as also of the will in his favour.

17. In view of the discussion above, the revision fails and is dismissed with no order as to costs.

18. Revision dismissed.


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