JITENDER CHOPRA vs Y.S.MANCHANDA
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 10.07.2024
+ CS(OS) 523/2005
JITENDER CHOPRA …..Plaintiff
Through: Mr. Ajay Kohli and Ms. Dipika Prasad, Advs.
Mr. Kuljeet Rawal, Mr. Aditya Joshi and Mr. Akshit David, Advs. for LRs of deceased defendants (Sachin Manchanda) for applicant in O.A.68/2023.
versus
Y.S.MANCHANDA …..Defendant
Through: Mr. Ajay Bahl and Mr. Vikash Sharma, Advs. for D-3.
CORAM:
HON’BLE MR. JUSTICE VIKAS MAHAJAN (ORAL)
JUDGMENT
VIKAS MAHAJAN, J. (ORAL)
O.A. 68/2023 (by LRs of Sh. Sachin Manchanda against order dated 26.05.2023)
1. The present appeal has been preferred against the impugned order dated 26.05.2023 passed by the learned Joint Registrar whereby three applications i.e. I.A No. 9270/2021, I.A No. 16436-37/2021 and I.A No. 6611/2022 have been disposed of.
2. The present is a suit seeking specific performance of the Agreement to Sell dated 11.05.2005 entered into between the plaintiff and the sole defendant i.e. Late Y.S. Manchanda.
3. The said sole defendant in the suit passed away on 02.05.2021.
4. I.As.16436-37/2021 was filed by the son of the deceased defendant namely, Sachin Manchanda, under Order XXII Rule 4 in the counter claim filed by his father – Late Y.S. Manchanda. In the said application, the case of the applicant was that during his lifetime the deceased defendant had executed a Will dated 11.05.2020 whereunder he had bequeathed his entire estate to the applicant i.e. his son.
5. I.A. 9270/2021 was filed by the plaintiff under Order XXII Rule 4 seeking to substitute the LRs of the deceased defendant in the suit. It is alleged in the said I.A. that the deceased defendant was survived by his son namely, Sachin Manchanda and two daughters namely, Shivani Malhotra (plaintiff) and Shalini Pahawa. In this I.A. deceased defendants daughter Shalini Pahawa had filed a separate reply in which she had disputed the execution of Will by her deceased father in favour of his brother Sachin Manchanda.
6. I.A.6611/2022 has again been filed by the son of the deceased defendant under Order XXII Rule 5 in the suit praying for conducting an inquiry to the effect as to who will be the legal representatives of the deceased defendant in the present case.
7. The arguments on the aforesaid applications were heard by the learned Joint Registrar and vide impugned order dated 26.05.2023, all the applications were disposed of. I.A.9270/2021 filed by the plaintiff was allowed and consequently all the legal heirs of the deceased defendant were allowed to be brought on record as the legal representatives of the defendant in the present suit, as well as, in the counter claim. Resultantly, the I.A. moved by the son of the deceased defendant i.e. I.A.6611/2022 in the suit as well as I.A. 16436/2021 in the counter claim, were dismissed.
8. Against the impugned order dated 26.05.2023, the son the defendant namely, Sachin Manchanda has preferred the present Original Appeal.
9. The learned counsel for the appellant submits that in view of the definition of the legal representative in Section 2(11) CPC, the legal heirs are different from the legal representatives. He submits that the appellant being the sole beneficiary under the Will dated 11.05.2020 is the only legal representative of the defendant and accordingly, only the appellant could be impleaded as LR of the deceased defendant. He further submits that the learned Joint Registrar ought to have conducted an inquiry under Order XXII Rule 5 CPC to ascertain as to who is the legal representative of the deceased defendant to represent him in the present case.
10. In support of his submission, the learned counsel has placed reliance on the decisions of the Honble Supreme Court in Jaladi Suguna vs. Satya Sai Central Trust, (2008) 8 SCC 521 and Karedla Parthasaradhi vs. Gangula Ramanamma(D) Through LRs. & Ors., (2014) 15 SCC 789.
11. Per contra, the learned counsel for the respondent/plaintiff submits that the controversy as to whether the Will propounded by the son of the deceased is a valid Will cannot be gone into an inquiry under Order XXII Rule 5 CPC. He submits that for the purpose of the present suit all the legal heirs of the deceased defendants are ought to be impleaded as the legal representatives, all the more since the Will dated 11.05.2020 allegedly executed by the deceased defendant is being disputed. To buttress his contention, the learned counsel has referred to the decision of the Honble Supreme Court in Suresh Kumar Bansal vs. Krishna Bansal and Ors. (2010) 2 SCC 162.
12. I have heard the learned counsel for the parties and have perused the material on record.
13. Since the learned counsel for the appellant has laid much emphasis on Order XXII Rule 5 CPC, apt would it be to reproduce the said provision, which reads thus:
5. Determination of question as to legal representative.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 determined by the Court:
[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]
14. A reading of Order XXII Rule 5 CPC shows that the provision envisages a summary enquiry to ascertain as to who is the legal representative of the deceased plaintiff or defendant. In case there is an inter-se dispute between the legal heirs of the deceased party to the suit and one or more legal heirs claim the estate of the deceased on the basis of Will of deceased set up by him/them, the Court will not digress from the main issue or subject matter of the suit to initiate an enquiry as to the validity of the Will so propounded. In such a case the proper course is to bring on record all the heirs as well as the legal representatives who are claiming on the basis of Will. However, the inter se between the rival legal representatives as regard the validity of Will has to be independently adjudicated in probate proceedings. Reference in this may be had to the decision of Honble Supreme Court in Suresh Kumar Bansal (supra), the relevant part of which reads thus:
20.
..It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
22. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged will of the deceased plaintiff at this stage of the proceedings.…
(emphasis supplied)
15. In view of the aforesaid authoritative pronouncement of the Apex Court on the issue, the reliance placed by the appellant on the various decisions cited above, is of no consequence.
16. In the light of above discussion, I am of the view that all the legal heirs of the deceased defendant can be substituted as legal representatives of the deceased defendant to represent his estate/interest in present the suit. This being the position, there is no infirmity in the impugned order.
17. Accordingly, the appeal is dismissed being devoid of merit.
CS(OS) 523/2005 & CC 8/2009, I.As. 8716/2019, 9072/2019, 14036/2019, 15040/2023
18. List for final hearing on 19.09.2024.
VIKAS MAHAJAN, J
JULY 10, 2024
dss
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