ZIAUL HASSAN Vs. TOOFEQ KHAN

JUDGEMENT

(1.) Challenge in this writ petition is to the impugned order dtd. 8/5/2018 passed in Civil Suit-65A/2008, passed by the Second Additional District Judge whereby trial Court allowed application filed under Order 22 Rule 3(1) rw 151 CPC filed by respondent after conducting enquiry under Order 22 Rule 5 of CPC.

(2.) Learned counsel for the petitioner would submit that Saeda Begam, sole plaintiff filed a Civil Suit against defendants therein for declaration of title and permanent injunction over immovable suit property mentioned therein, which is a residential house. He submits that sole plaintiff died on 1/6/2009. Petitioner submitted an application under Order 22 Rule3(1) rw 151 of CPC for his impleadment, pleading therein that house owned by deceased plaintiff Saeda Begam was given on rent. From rental income as well as financial help given by defendants, deceased plaintiff was maintaining herself. On 28/5/2009 deceased plaintiff has given both her houses to petitioner by oral gift(Hiba). Gift was accepted by petitioner and this fact was brought to the notice of respondent which he also accepted. Respondent filed an application for his impleadment in place of deceased plaintiff (in application wrongly mentioned as Order 22 Rule4 of the CPC). Learned trial Court has erroneously allowed application filed by respondent without considering the fact that the Will on which respondent is claiming him to be legal representative was not proved in accordance with law. Will placed on record is with respect to entire property, whereas under Muslim law, owner of property can execute testamentary Will with respect to only 1/3 of total property owned by any of the owner. Hence also, the will on the basis of which respondent is claiming him to be legal representative is not a valid will. He submits that trial Court further erred in rejecting claim of petitioner, overlooking the provisions of Muslim law, wherein oral gift is permissible. Lastly, he contended that even if trial Court has come to conclusion that respondent is having right to continue the suit as legal representative of deceased plaintiff, then, trail Court ought to have clarified that finding recorded by trial Court will not grant any right over property, which is subject matter of Will. Allowing application is with respect to granting him right to continue to the suit only.

(3.) Shri Anoop Majumdar, learned counsel for the respondent would submit that application of respondent has been allowed by trial Court after following due procedure prescribed under Code of Civil procedure. Learned trial Court in facts of the case, has rightly taken recourse of Order 22 Rule 5 of the CPC for deciding the disputed claim between petitioner and respondent with respect to their status as 'legal representative' of deceased plaintiff. Learned trial Court in an enquiry under Order 22 Rule 5 of CPC has recorded evidence of respective parties to prove Will. Petitioner examined scribe of will by name Nitin Kumar Tonk, he stated that he typed the Will, after signature of testator and witnesses he got the said will registered. He contended that Will is required to be proved for limited purpose in the proceedings which is subject matter of writ petition ie proceeding under Order 22 Rule 5 of CPC. Execution of document (Will) has been proved by respondent and therefore, there is no error in finding recorded by learned trial Court that respondent is legal representative of deceased based on Will. Proceeding under Order 22 Rule 5 of CPC is only with respect to granting right to legal representative to continue with the suit filed by deceased plaintiff or respondent. Learned trial Court also recorded that claim of petitioner based on oral gift could not be proved due to contradictory statement of plaintiff and his witnesses, which is based on appreciation of evidence available before the trial Court which cannot be said to be erroneous. Learned counsel for respondent further submits that during pendency of claim of petitioner, as well as respondent to be legal representative of deceased plaintiff, defendant-1 Mahboobal Hassan also died. Petitioner filed application under Order 22 Rule 4 of CPC pleading specifically that he is one of the legal representatives of deceased respondent-1 and prayed for impleadment of other legal representatives of deceased Mahboobal Hassan. It is contended that in view of application filed by petitioner before trial Court for bringing legal representatives of defendant-1 and he being one of his sons, his claim that oral gift was executed in his favour is also suspicious. Therefore, trial Court has rightly rejected his claim to be legal representatives of deceased plaintiff-Saeda Begam.