HEMANT LAL HANSDA Vs. PAKU MURMU

JUDGEMENT

(1.) The petitioner, who is the defendant no.2 in Title Suit No.56 of 2006, is aggrieved of order dated 04.08.2012 by which the defendant no.1 namely, Maklu Hembrom has been substituted through Baburam Murmu, son of Boro Murmu and Ashutosh Hansda, son of Hemant Lal Hansda.

(2.) Plea urged on behalf of the petitioner is that before her death the defendant no.1-Maklu Hembrom has deposed that she has one son namely, Ashutosh Hansda and therefore without causing an enquiry under Order XXII Rule 5 CPC Baburam Murmu cannot be substituted as one of the legal heirs of the deceased defendant no.1.

(3.) At the outset it needs to be recorded that from the stand taken by the defendant no.2 in his rejoinder to the application under Order XXII Rule 4 CPC it appears that the defendant no.2 admits that late Maklu Hembrom was married thrice. His stand is that her first husband had died and name of her first husband was not disclosed in the plaint. The plaintiffs now assert that Boro Murmu was the first husband of late Maklu Hembrom and from the said wedlock one son namely, Baburam Murmu was born. There is no dispute that Ashutosh Hansda is the son of the defendant no.1 and defendant no.2. Now in the above facts, the dispute sought to be raised by the defendant no.1 appears to be a dispute in contemplation of partition of the suit schedule property, in the event the suit fails. In law, even if a deceased defendant is not represented through all his/her legal heirs and successors, this would not be a defect warranting interference with the order of the substitution, unless one or the other legal heirs/successors of a deceased has a claim at variance with other legal heirs/successors. After all the deceased defendant no.1 is represented through her surviving legal heirs and successors.