KAMALWATI GUPTA Vs. KANWARI LAL JAIN

JUDGEMENT

(1.) This second appeal was originally filed by plaintiff Smt. Kamalwati Gupta, who was landlord of the respondent, against judgment and decree passed by learned Additional District judge No.2, Jaipur City, Jaipur, reversing the judgment and decree of the Additional Civil Judge (Senior Division), whereby the suit for eviction filed by plaintiff-appellant was decreed on the ground of personal bona-fide necessity. During the pendency of appeal, the sole appellant died on 01.05.2010. An application under Order 22 Rule 3 of the CPC was moved by her counsel for impleadment of partnership firm M/s. Hotel Sweet Dream, of which the appellant was a partner with 33% share with her two sons as shareholders of half each of the remaining. The appellant executed a will on 12.02.2003 bequeathing the disputed shop, let out to defendant-respondent, in favour of the firm M/s Hotel Sweet Dream. The application was therefore made for substitution of original appellant by the said firm. Application was opposed by defendant-respondent and this court by order dated 27.01.2011, as per consent given by the parties, disposed of the application allowing said firm to argue the appeal on behalf of appellant, subject to legal objections to be raised by respondent including that the said firm is not legal representative of the decreased appellant. When the appeal was taken up for admission, an objection was raised by the counsel appearing for defendant-respondent as to maintainability of the appeal by said firm contending that it cannot be considered a legal representative of deceased-appellant.

(2.) The Supreme Court in Jalai Suguna (deceased) through L.Rs. v. Satya Sai Central Trust and Others, 2008 8 SCC 521, held that when an application for bringing on record legal representatives of deceased is filed, the court should consider and decide such question first and until such decision, the persons claiming to be legal representatives have no right to represent the estate of the deceased nor prosecute or defend the case. Decision of this objection has thus become necessary before the matter is taken up for arguments on admission in view of Jalai Suguna, supra, wherein the Supreme Court held that the court cannot postpone the decision of such question for being decided along with the appeal on merits, for that would leave the estate of the deceased unrepresented which, as held in that case, would amount to hearing of an appeal against a dead person, which was clearly impermissible in law and the judgment rendered therein was held to be nullity and inoperative. It is therefore that the matter has been heard on such objection.

(3.) Shri R.K. Agarwal, learned Senior Advocate, appearing on behalf of the defendant-respondent, argued that appellant has died leaving behind a will executed by her, wherein no one has been nominated as executor, therefore, even if there is no necessity of obtaining probate in the State of Rajasthan according to Section 211 of the Indian Succession Act, 1925, (for short, 'the Act of 1925'), letters of administration under Section 213, has to be necessarily obtained. It was argued that had the appellant died intestate, the property would have devolved upon her legal heirs as per the personal law i.e. Hindu Succession Act and in that event, possibly they could straightaway substitute the original appellant Smt. Kamalwati to prosecute the present appeal, to which course the defendant-respondent is not having any objection even now. However, if they want the firm to substitute the deceased-appellant as appellant on the strength of will, this can be done only within the four-corners of law according to provisions contained in the Indian Succession Act, 1925. On this point, Shri R.K. Agarwal, learned Senior Advocate, relied on a decision of the Supreme Court in FGP Limited Vs. Saleh Hooseini Doctor and Another, 2009 10 SCC 223, and argued that the Supreme Court in that case has drawn a fine distinction between Sections 211 and 213 of the Act of 1925. It was argued that if someone is nominated to act as executor and he accepts such office, the property vests in him and the executor derives his title from the will and becomes the representative of deceased even without obtaining probate. Grant of probate does not put any title on the executor. It just makes his title certain. However, under Section 213 of the Act of 1925, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will. Vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. Section 213 enjoins that rights under the will by an executor or a legatee cannot be established unless probate or letters of administration are obtained. This proposition of law has been laid down by the Supreme Court in the context of term "legal representative" as defined in Section 2(11) of the CPC. The appellant firm cannot therefore be treated as legal representative.