Kewal Chand vs Civil Judge and Others

Prakash Tatia, J.—Heard learned Counsel for the petitioner.

The petitioner is aggrieved against the order dt. 11.01.2008 by which the trial Court allowed the application of the legal representatives of the plaintiff filed under Order 22 Rule 3 CPC and impleaded all the legal heirs of deceased plaintiff Geeta Devi as plaintiffs as legal representatives of Smt. Geeta Devi.

According to the petitioner-defendant Smt. Geeta Devi died on 10.12.2006. The applicant Ashok Kumar submitted application under Order 22 Rule 3 CPC on 09.03.2007 and stated that since Smt. Geeta Devi executed a Will in his favour on 18.03.2005, therefore, he alone is entitled to be impleaded as party plaintiff in the suit after the death of Smt. Geeta Devi. According to learned Counsel for the petitioner, the petitioner-defendant submitted reply to the application and pointed out that there are other legal representatives of Smt. Geeta Devi and they challenged the Will also. In this situation, the applicant Ashok Kumar submitted another application and prayed that in case the Ashok Kumar who is alone son of Smt. Geeta Devi in whose favour there is Will if is not impleaded as party as legal representative of Smt. Geeta Devi then the legal representatives who are applicants Nos. 1 to 5 may also be impleaded as party in the suit. That application was allowed by the trial Court by impugned order.

According to learned Counsel for the petitioner the plaintiff''s second application is beyond the statutory period of limitation and the suit of the plaintiff already abated before that. The plaintiff''s legal representatives did not submit any application under Order 22 Rule 9 CPC for setting aside of the abatement of the suit. It is also submitted that the trial Court did not hold any inquiry about the Will dt. 18.03.2005 as is required under Order 22 Rule 5 CPC, therefore, the order of the trial Court suffers from error of law.

I considered the submissions of learned Counsel for the petitioner and perused the facts of the case.

It is not in dispute that one of the legal representatives Ashok Kumar by virtue of Will or otherwise is legal representative of plaintiff being son of the plaintiff submitted an application under Order 22 Rule 3 CPC within 90 days from the date of death of Smt. Geeta Devi on 09.03.2007. When defendant objected to his being impleaded as party on the ground that there are other legal representatives then applicant submitted another application so as to complete the array of parties. Once application is submitted by any of the legal representativesof deceased plaintiff within the period of limitation and Court reaches to the conclusion that there are other legal representatives then the Court can direct the applicant to implead those persons also as party legal representatives of deceased, but suit cannot abate when an application has been filed by one of the legal representatives without impleading other legal representatives as party. The second application was filed by the applicants on 27.08.2007 is only in sequence to the first application and that has been filed to meet with the objections of the defendant and to avoid the controversy about the validity of the Will dt. 18.03.2005 or its due execution.

It is true that order Order 22 Rule 5 CPC provides for holding an inquiry when the status of the legal representative is disputed by the other party, but it is not mandatory for the Court to hold inquiry in all cases where the applicants are the natural heirs and that fact is not in dispute. Even in a case where natural heirs of deceased plaintiffs are there and one of the legal heirs comes with the Will in his favour and all the legal heirs of the deceased agrees for his being impleaded as party on the basis of Will or in a case where there is Will in favour of one of the heirs of the deceased and rest of the legal heirs are also impleaded as party being legal representatives of the deceased because of the reason that if will stand proved then one is legal successor and if not proved then also all other heirs are legal representatives of the deceased plaintiff, in above situation, there is no necessity of holding an inquiry for the reason that the concerned persons who may have been effected by the Will jointly agreed for impleading one person as legal representative. At this juncture, it will be worthwhile to mention here that there is difference between the "heirs" and "legal representatives" and it is not necessary that one must be heir to be a legal representative of the deceased in civil suit.

In view of the above, I do not find any merit in the writ petition and the same is hereby dismissed.