PRIYAVADAN PANACHAND SHAH Vs. RANCHODBHAI BHAICHANDBHAI PATEL

JUDGEMENT

(1.) The petitioners are defendants No.5 and 6 in the suit filed by respondent No.1 being Regular Civil Suit No.385 of 2010. In the suit, it is prayed to cancel sale deed executed in favour of defendant No.5 for suit land by declaring that he got sale deed executed in his favour on 21.05.1996 fraudulently and such sale deed is not binding to the plaintiff and for grant of permanent injunction restraining the defendant No.5 from transferring or alienating the suit land and/or from creating any third party right in the suit land and from disturbing or interfering with the plaintiff's possession of the suit land. Pending the suit, the plaintiff No.1 died on 27.06.2013, therefore, an application at Exh.21 came to be filed by his widow and two sons to permit them to join as legal representatives of the plaintiff. The petitioners filed their written objections against such application mainly on the ground that the plaintiff has made Will in their favour and, therefore, they became the legal representative of the plaintiff and the widow and the sons of the plaintiff have no right to join themselves as parties in the suit. Learned 3rd Additional Civil Judge, Gandhinagar allowed application at Exh.21 by order dated 06.01.2017 and ordered to join the widow and sons of plaintiff as legal representatives of the plaintiff. It is this order which is challenged in the present petition filed under Article 227 of the Constitution.

(2.) Learned advocate Mr. Mitul Shelat appearing with learned advocate Mr. Paresh Darji for the petitioners submitted that on death of a party to the suit, his legal representative could be made party to the suit as provided in the Order 22 of the Civil Procedure Code, 1908 ("the Code"). Mr. Shelat submitted that legal representative would not mean only the natural heirs of the deceased party but as per the definition of legal representative in Section 2(11) of the Code, it also includes any person who inter-meddles with the estate of the deceased. Mr. Shelat submitted that a person holding the Will executed by the deceased for his property which is subject matter of the suit is the person who inter-meddles with the estate of the deceased and, therefore, he becomes legal representative on death of such party to the suit to represent his estate. Mr. Shelat submitted that the deceased plaintiff made Will in favour of the petitioners for his estate and by virtue of such testamentary succession in favour of the petitioners, the petitioners are the only persons to be as legal representative of the deceased plaintiff. Mr. Shelat submitted that since the petitioners also claim to be the legal representative of the deceased plaintiff as against the claim of the applicants - the widow and the sons of deceased plaintiff, learned Judge ought not to have allowed the application Exh.21 without holding inquiry as contemplated in Rule 5 of Order 22 of the Code. Mr. Shelat submitted that learned Judge has not dealt with the contention raised on behalf of the petitioners and the order is unreasoned order and without addressing on the issues raised in the context of the provisions of Order 22, Rule 5, learned Judge has passed impugned order which cannot stand scrutiny of law and, therefore, it is required to be quashed and set aside in exercise of powers by this Court under Article 227 of the Constitution.

(3.) The Court, having heard learned advocate Mr. Shelat, finds from the perusal of the plaint of the suit that deceased plaintiff has alleged that the petitioners got the sale deed executed for the suit land in favour of the petitioner No.1 by playing fraud with him and behind his back. With such amongst other allegations, the deceased plaintiff has prayed to cancel sale deed by declaring that the sale deed executed in favour of the petitioner No.1 was fraudulently made and not binding to him. Thus, it is not a case where the suit could be decided without deciding the dispute as to whether the sale deed executed in favour of the petitioner No.1 was fraudulently executed or not. In fact, the petitioners could be said to be the parties adverse to the deceased plaintiff. The stand of the petitioners to oppose the application at Exh.21 is that deceased plaintiff made Will in their favour and, therefore, they are also the legal representative as per the definition of legal representative in Section 2(11) of the Code. It is required to note that there is no application made by the petitioners to join them as legal representative of the deceased plaintiff. The petitioners have also not taken any action in connection with the Will. Be that as it may, by application at Exh.21, learned Judge has permitted the wife and sons of the deceased plaintiff who are the natural heirs to join in the suit to represent the estate of the deceased plaintiff. In fact, considering the nature of the dispute raised in the suit, since the petitioners could be said to be contesting parties in the suit, the wife and sons of the deceased plaintiff could be said to be only legal representatives who can prosecute the suit for protecting the estate of the deceased plaintiff. When the petitioners have taken stand that they have got Will in their favour for the suit property, if they are permitted to join as legal representatives in place of the deceased plaintiff, they will not represent the estate of the deceased plaintiff for the purpose of deciding the dispute in the suit but they will act in their interest, and this is what learned advocate Mr. Shelat submitted that since the deceased plaintiff made Will in favour of the petitioners, the petitioners have straightway acquired right and interest in the suit property and the suit may not survive. Therefore, the Court is of the view that it is not always required that whenever an objection is raised as to who could be the legal representative of the deceased party, the inquiry is must though natural heirs are available and irrespective of the nature of the dispute to be decided in the suit. If from the nature of the dispute to be decided in the suit, the Court finds that the natural heirs are available and the person claims to be legal representative of the deceased based on any testamentary document is not a person who can act for protecting the interest of the deceased or can represent the estate of the deceased, there is no need to hold any inquiry and the natural heirs could be permitted to prosecute the suit to represent the estate of the deceased. Learned advocate Mr. Shelat has relied on the decisions in the case of Jaladi Suguna v. Satya Sai Central Trust reported in 2008 (8) SCC 521 , in the case of Karedla Parthasaradhi v. Gangula Ramanamma reported in 2014 (15) SCC 789 so as to submit that as held by Hon'ble Supreme Court, inquiry is required under Order 22, Rule 5 to find out who is the legal representative of the deceased party in the suit. The Court having gone through the said judgments finds that in the facts of the case the judgments shall have no application.