SHIVRAJ S O RAMJI PAUL SHETE Vs. PRAYAGBAI

JUDGEMENT

(1.) WHEN two or more persons putforth their claim as sole heir of the deceased plaintiff, what would be the scope of the enquiry under Order XXII, Rule 5 of the Code of Civil Procedure is the question which arises for determination in this revision application.

(2.) PRAYAGBAI w/o. Mahadu Shete filed a Regular Civil Suit No. 216 of 1986 for perpetual injunction against Prabhuappa and Narayan. During the pendency of the said suit, Prayagbai died on 24-7-1986. On 8-10-1986, the learned trial Judge passed order that suit has abated since the heirs of the plaintiff were not brought on record in time. On 13-10-1986, Bapurao s/o. Banderao Shete filed an application for setting aside abatement and bringing him on record as legal representative of deceased Prayagbai, since Prayagbai allegedly executed Will deed in his favour on 11-3-1984. It was also contended by him that suit cannot abate before expiry of 90 days period from the date of death and hence order of the learned Judge is not legal. One Shivraj Ramji Paul Shete also filed an application claiming to be heir of Prayagbai on the basis of Will deed which she had executed in his favour on 18-3-1986. The learned Civil Judge, Junior Division, Gangakhed in Misc. Case No. 21 of 1986 pleased to hold that Will executed in favour of Bapurao is the last and true Will and the Will executed in favour of Shivraj is not last Will executed by Prayagbai. He was pleased to allow application of Bapurao and rejected the application of Shivraj vide his order dated 30-6-1992. This order has been challenged in this revision application.

(3.) RULE 5 of Order XXII of the Code of Civil Procedure, 1908 lays down that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be dertermined by the Court. When more than one claimant put up rival claims before the Court, the Judge is required to hold an enquiry and derernine the question as to which of the legal representative is entitled to be substituted for the deceased party. When the dispute is on the basis of the genuineness of either of the Will, then the scope of enquiry would require finding about genuineness of the Wills. Though there is no dispute that an order passed by the Court under Order XXII, Rule 5 would not be res judicata in the subsequent proceedings, it is final so far as that suit or appeal is concerned.