YASHPAL JAIN Vs. SUSHILA DEVI

JUDGEMENT

(1.) PREFACE : Even after 41 years, the parties to this lis are still groping in the dark and litigating as to who should be brought on record as legal representative of the sole plaintiff Mrs. Urmila Devi (hereinafter referred to as 'Urmila Devi' for the sake of brevity). This is a classic case and a mirror to the fact that litigant public may become disillusioned with judicial processes due to inordinate delay in the legal proceedings, not reaching its logical end, and moving at a snail's pace due to dilatory tactics adopted by one or the other party. The said suit, OS No.2 of 1982, was instituted for the relief to declare the sale deed, executed by Shri Mangal Singh (hereinafter referred to as 'first defendant' for the sake of convenience) in favour of defendants No.4 to 32 in respect of the suit properties described in the plaints schedule as item No.1 to 8, to be null and void by claiming to be the owner of the said properties; and for a decree of possession of the suit properties with costs.

(2.) When the aforesaid suit was still at infancy stage the sole- plaintiff expired on 18/5/2007. One Mr. Manoj Kumar Jain filed an application to substitute him as her legal heir, by placing reliance on the Will dtd. 19/5/1999 and claiming to be a legatee under the said registered Will. He also filed an affidavit stating thereunder that Mr. Yashpal Jain (hereinafter referred to as 'appellant' for the sake of convenience) was a witness to the said registered Will. The defendants objected to the said application contending inter alia that the appellant herein was the adopted son of late Urmila Devi by relying upon the adoption deed dtd. 6/1/1973 duly registered in the office of the Sub-Registrar. In the said proceedings, the present appellant also filed an affidavit stating thereunder that he was a witness to the Will dtd. 19/5/1999 executed by Urmila Devi in favour of Manoj Kumar Jain. The application filed by Manoj Kumar Jain came to be allowed by order dtd. 24/2/2010.

(3.) At this juncture, we would like to point out that a careful perusal of the application and the orders passed by the courts below would indicate that the parties and the courts below seem to have proceeded on the footing that they were to adjudicate the rights of a legal heir which if seen in the light of expression used in the Code of Civil Procedure (hereinafter referred to as 'CPC') is impermissible, as it is not referable to 'legal heir' but 'legal representative' as defined under Sec. 2 (11) which reads: