UJWALA RAJE GAEKWAR Vs. HIREN ACHYUTBHAI SHAH

JUDGEMENT

(1.) By way of the present petitions preferred under Article 227 of the Constitution of India, the petitioner original defendant prays to issue writ, order or direction quashing and setting aside the order dated 23.01.2015 passed by the learned 12th Additional Civil Judge & J.M.F.C., Vadodara below Exh.48 in Regular Civil Suit No.913 of 2008 and order dated 09.07.2015 passed by the learned 4th Additional Senior Civil Judge, Vadodara below Exh.53 in Special Civil Suit No.533 of 2011 whereby, the learned trial Judge allowed the applications preferred by the legal heirs of deceased - original plaintiff under the provisions of Order 22 Rule 3 of the Code of Civil Procedure (for short, the 'Code') and impleaded them as legal heirs and representatives of deceased original plaintiff in the above suits.

(2.) Briefly stated, original plaintiff Mr.Achyutbhai H. Shah filed Regular Civil Suit No.913 of 2008, inter alia, praying for injunction restraining the present petitioner from alienating the property described in the plaint as 1/3rd share in the land bearing Survey No.86 Paiki and land bearing Survey No.126 Paiki 134/95/B Paiki situated at Village: Jetalpur, District: Vadodara known as Shivmahal Palace bequeathed to the deceased plaintiff under Will dated 09.12.1991 executed by Late Princess Smt.Kamla Devi Raje Gaekwar, grandmother of the petitioner, who passed away on 02.02.1992. Similarly, deceased plaintiff Mr.Achyut Shah also filed Special Civil Suit No.533 of 2011 against the petitioner and one Mr.Chandrakant Laxmidas Patel, inter alia, praying for cancellation of registered sale deed dated 19.03.2010 in respect of land bearing Survey No.86 Paiki admeasuring 3000 sq.mtr. situated at Mouje Taluka: Jetalpur, Vadodara City for consideration of Rs.17,76,06,000/-. Pending hearing of the above suits instituted by plaintiff Mr.Achyut Shah against the petitioner and also purchaser of the part of the suit property, said Mr.Achyut Shah expired on 28.05.2013 and, therefore, his legal heirs moved applications under the provisions of Order 22 Rule 3 of the Code which came to be allowed by the learned trial Judge in both the suits. Hence, the present petitions preferred by the petitioner (original defendant before the learned trial Court).

(3.) While assailing the impugned orders, learned Senior Counsel Mr.Mihir Thakore appearing for learned advocate Mr.S.M. Thakore for the petitioner would contend that right to sue does not survive to the deceased plaintiff as he was the alleged executor of Late Princess Smt.Kamla Devi Raje Gaekwar under alleged Will and, therefore, right of executor is a personal in nature and such right would die with him. Therefore, right to sue does not survive to the legal heirs of deceased plaintiff in both the suits. Learned Senior Counsel Mr.Thakore would contend that the alleged Will was not produced before the learned trial Court but the same is placed on record of the present proceedings before this Court and, therefore, the impugned orders are bad in law. Learned Senior Counsel Mr.Thakore would contend that the suit being Regular Civil Suit No.913 of 2008 is based on succession certificate issued to the deceased plaintiff with respect to immovable properties in Probate Application No.74 of 2000. Against grant of succession certificate, the petitioner has filed revocation petition being Civil Petition No.161 of 2008 for revocation of the alleged and completely illegal succession certificate. Vide order dated 19.09.2008, the Civil Court, Vadodara restrained the deceased plaintiff from holding out to have any right in the properties mentioned in the Will and also restrained him from creating any liabilities and rights in the properties and the said order is in force as on today. Learned Senior Counsel Mr.Thakore would contend that by order dated 03.10.2005, the Hon'ble High Court of Judicature at Bombay in Testamentary Petition No.402 of 2004, granted letter of administration to the petitioner and thus, appointed her to be the sole administrator of Late Princess Smt.Kamla Devi Raje Gaekwar's estate which included assets/properties, both movable or immovable. The said grant of letter of administration is still in force and operative. Lastly, learned Senior Counsel Mr.Thakore would contend that the learned trial Judge has passed the impugned orders without assigning any reasons and, therefore, the learned trial Judge has committed error of law in accepting the applications of the legal heirs of deceased plaintiff preferred under the provisions of Order 22 Rule 3 of the Code. In support of his submissions, learned Senior Counsel Mr.Thakore pressed into service the decision of the Hon'ble Apex Court rendered in the case of State of Chhattisgarh and others V/s. Dhirjo Kumar Sengar, 2009 AIR(SC) 2568 for the proposition of law that the succession certificate merely enables to collect the dues of the deceased and no status gets conferred in favour of any person. By reason of grant of succession certificate, a person under whose favour, succession certificate is granted, becomes a trustee to distribute the amount payable to the deceased to his heirs and legal representatives and he does not derive any right thereunder. Learned Senior Counsel Mr.Thakore also placed reliance upon the decision rendered in the case of Chhangi Devi (through Lrs.) V/s. General Public and others reported in for the proposition of law that the proceedings for grant of succession certificate lapse on the death of the applicant and legal heirs of such applicant cannot be substituted to continue the proceedings.