RADHEY SHYAM Vs. RADHA MOHAN PALIWAL

JUDGEMENT

(1.) The present petition has been filed by the petitioner-original defendant No.3 under Article 227 of the Constitution of India challenging the order dated 23rd May, 2012 passed by the Addl. District Judge (Fast Track) No.4, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 169/03, whereby the trial court has rejected the claim of the petitioner to represent the estate of the deceased defendant No.1 Chand Narain as his legal representative and allowed the application of the respondent No. 1-plaintiff to amend the plaint as prayed for.

(2.) The precise question that falls for consideration before this court is as to whether the court while determining the question as to who is or is not the legal representative of the deceased party under Order XXII, Rule 5 of CPC, could decide the question of legality and validity of the Will allegedly executed by the deceased in favour of the person claiming to be his legal representative?

(3.) The short facts giving rise to the present petition are that the deceased Bhagat Lal was the owner of the property in question. He had three sons named Shri Srinarain, Shri Govind Narain and Shri Ramchandra. Shri Srinarain, had one son named Devi Narain (deceased) and the present petitioner-original defendant No.3 and other defendants i.e. defendant Nos.4,5 and 6 were the heirs of the said Devi Narain (deceased). The respondent No.1 (original plaintiff) happened to be the son of Shri Ramchandra (deceased). The respondent No.1-plaintiff had filed the suit seeking partition of the properties in question against said Chand Narain, the petitioner and the respondent Nos. 2 to 7 (original defendants). The said suit was resisted by the said Chand Narain-defendant No.1, and the present petitioner-defendant No.3 by filing joint written statement and other defendants had filed their written statements separately. During the pendency of the suit, the defendant No.1 Chand Narain expired on 5.5.03. The respondent No.1-plaintiff therefore moved an application dated 2.8.03 stating interalia that there was no heir of the deceased Chand Narain in Class-I and Class-II and therefore his share in the suit property was liable to be divided amongst the agnates and cognates, who are the plaintiff and the remaining defendants and that the plaint may be permitted to be amended accordingly. The said application was resisted by the petitioner-defendant No.3 contending interalia that the deceased Chand Narain had executed a Will dated 5.4.01 in his favour and by virtue of the said Will he was the sole legal representative of the deceased defendant No.1. Since the question arose as to whether the petitioner was the legal representative of the deceased Chand Narain or not, the trial court conducted the enquiry as contemplated under Order XXII Rule 5, CPC and vide the impugned order dated 23.5.12, allowed the application of the plaintiff dated 2.8.03 permitting him to amend the plaint as prayed for. Being aggrieved by the said order, the petitioner has preferred the present petition invoking Article 227 of the Constitution of India.