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Suraj Mani and anr. Vs. Kishori Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 5 of 1975
Judge
Reported inAIR1976HP74
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11) and 11 - Order 22, Rules 3 and 5
AppellantSuraj Mani and anr.
RespondentKishori Lal
Appellant Advocate Inder Singh, Adv.
Respondent Advocate S.S. Ahuja, Adv.
DispositionRevision dismissed
Cases ReferredRam Kalap v. Banshi Dhar
Excerpt:
- .....filed a suit for possession. on december 10, 1971 he died. an application for substitution as his legal representative was made by the respondent kishori lal. kishori lal claimed that the deceased had executed a will in his favour. the will was a registered document. the claim to substitution was opposed by the petitioner on the ground that the will was invalid and the legal representatives of hari krishan were in fact his sons and daughters. the learned senior subordinate judge examined the material on the record and came to the finding that the will was a reliable document and operative in law and that therefore the respondent was entitled to be brought on the record as the legal representative of hari krishan. that order was made on november 1, 1974. against that order the petitioner.....
Judgment:
ORDER

R.S. Pathak, C.J.

1. This is a defendant's revision petition against an order of the learned Senior Subordinate Judge, Mandi allowing a substitution application.

2. One Hari Krishan filed a suit for possession. On December 10, 1971 he died. An application for substitution as his legal representative was made by the respondent Kishori Lal. Kishori Lal claimed that the deceased had executed a will in his favour. The will was a registered document. The claim to substitution was opposed by the petitioner on the ground that the will was invalid and the legal representatives of Hari Krishan were in fact his sons and daughters. The learned Senior Subordinate Judge examined the material on the record and came to the finding that the will was a reliable document and operative in law and that therefore the respondent was entitled to be brought on the record as the legal representative of Hari Krishan. That order was made on November 1, 1974. Against that order the petitioner now applies in revision.

3. The contention of learned counsel for the petitioner is that by the impugned order the learned Senior Subordinate Judge has permitted a trespasser to be brought on the record and has enabled him thereby to prosecute the suit. It is submitted by learned counsel that this is not permissible in law. I am unable to agree. The definition of 'legal representative' in Section 2 (11) of the Code of Civil Procedure is very wide. It will certainly 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. The learned Senior Subordinate Judge acted within his jurisdiction in substituting the respondent as the legal representative of the deceased. The substitution does not make the legal representative heir to the property of the deceased. It was pointed out by the Lahore High Court in Daulat Ram v. Mt. Meero, AIR 1941 Lah 142, in a case where the legal representative of a deceased plaintiff was brought on the record, that a decision to do so under Order 22, Rule 5 must be limited to the purpose of carrying on the suit and cannot have the effect of conferring any right to heirship or to property. Even if the learned Senior Subordinate Judge has Held that the will relied on by the respondent is a valid will, that finding had been rendered merely for the purpose of enabling the prosecution of the suit to go on. It cannot be construed as a decision on the merits of the suit. The finding that the will is valid cannot operate as res judicata where that very question needs to be decided in order to resolve the controversy in the suit on its merits. I am supported in this view by Parsotam Rao v. Jankibai, (1906) ILR 28 All 109; Antu Rai v. Ram Kinkar Rai, ILR 58 All 734 = (AIR 1936 All 412) and Chiragh Din v. Dilwar Khan, AIR 1934 Lah 465. It was held by the Allahebad High Court in Ram Kalap v. Banshi Dhar, AIR 1958 All 573 that an order under Order 22, Rule 5 involves a summary enquiry as to who should be substituted in place of the deceased party in the pending proceeding and that such a decision does not operate as res judicata. It is still open to the petitioner in the present case, during the trial of the suit, to establish that the will is incompetent and confers no right, title and interest on the re?pondent and that, therefore, the respondent is not entitled to any relief in the suit

4. The revision petition is dismissed. There is no order as to costs.


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