Smt. Shail Agarwal and Others vs Illrd Additional District Judge and Others

D.K. Seth, J.—The order dated 23.8.1999 passed by the learned Additional District Judge, IIIrd Court, Allahabad in Civil Revision No. 1660 of 1998, reversing the order dated 23.11.1998 passed by the learned Civil Judge, Junior Division. Vth Court, Allahabad in Original Suit No. 1257 of 1992, has since been challenged by Shri Mool Behari Saxena, learned Counsel for the Petitioner on the ground that the substitution in the present case is governed by Order 22 Rule 4 (A) of the Code of Civil Procedure, and as such the order passed by the learned trial court was justified. The revisional court had wrongly reversed the said order . He also contends that whenever such question comes, the court is to decide the same in view of Order 22 Rule 5 of the Code. He further contends that the revision against the order is not maintainable since even if the order is erroneous unless it is shown there is a jurisdictional error. According to him the trial court had jurisdiction to decide the question one or other way. Since there was no want of jurisdiction or erroneous exercise of jurisdiction, even if the order is illegal or erroneous, the revision may not be maintainable. As such the order of the revisional court is liable to be set aside.

Learned Counsel for opposite party Shri R.N. Upadhyaya contends that since the legal representative has sought to be substituted under Order 22 Rule 3, Order 22 Rule 4 (A) prima-facie is not applicable. The question that has been raised by Mr. Saxena according to him is a question which can be determined only on evidence after issues are framed and the matters are decided at the time of hearing of the suit or otherwise. The question whether an administrator or receiver should be appointed in view of Order 22 Rule 4 (A) the same is still open to be decided even after a person is substituted under Order 22 Rule 3 of the Code. But such question is to be decided on the merits of the case having regard to the material that might be produced by the respective parties. According to him the question of substitution is determined on affidavit and no scope of allowing evidence of inter-se parties who should become the Mahant , cannot be decided. He further contends that even if any decision is arrived at in a proceeding under Order 22, the same is not final determination of the rights. It is only to enable the process of the case to be proceeded with by one or the other way. The rights or interests of the parties can be decided only upon material evidence that might be produced by the parties or of framing issues or at the time of hearing of the case as the case may be. He, therefore, supports the order passed by the learned Additional District Judge in civil revision,. He further contends that if there is any illegal or irregular exercise of jurisdiction even then a revision is maintainable. In the present case according to him the learned trial court had determined the issues between the parties finally without evidence and as such it had adjudged the issue while deciding the application under order 22 Rule 3 and thus it acted illegally and with material irregularity in exercise of jurisdiction vested in him. Therefore, the revision is very much maintainable.

I have heard learned Counsel for the parties at length.

In a case when there is no legal representative, Order 22 Rule 4(A) is applicable. If it is a case that succession is asked for in the office of Mahant in that even it would be governed under Order 22 Rule 10 but in case it is contended that the office is filled up by nomination of the erstwhile Mahant and it is contended that such nomination has already been made or it is contended that the appointment has already been made during the life time of the deceased in such case the same may be governed under Order 22 Rule 3. But then the substitution is only a technical matter by which the process of court continues. Whatever decision is arrived at in the process of substitution the same is subject to the final determination on the basis of material on record. Even if the substitution of a legal representative is allowed, it is open to the opposite parity either to raise the question that he is not the legal representative and despite having been substituted, he had no right to continue as Mahant, or he has no right to claim as a Plaintiff or that administrator should be appointed. This question can be gone into on the basis of the material produced by the parties after deciding the respective contentions on the basis of the material placed before the court. The substitutions so allowed will neither operates as res-judicata nor it precludes the parties from raising the issue for determination by the court. If such issues are raised it is incumbent upon the court below to determine the issue in accordance with law. No title or right is conferred on a person substituted on the basis of the substitution application, except right to represent the lis or estate.

Then again Order 22 of the code requires substitution of the legal representative. Legal representative as defined in Section 2 Sub-section (ii) of the code - "includes any person who intermeddles with the estate of the deceased...". Apart from the legal heirs or a person representing in law the deceased, a person intermeddling with the estate of the deceased, even representing the estate without law is also a legal representative for the purpose of Order 22 of the Code. Section 4 Sub-section (24A) of the U.P. General Clauses Act 1897 has adopted the definition of legal representative as that of Section 2(II) of the code.

In present case the opposite party had made out a prima facie case to the extent he could stake his claim as successor to the office at least purport to represent the estate. Even if it cannot be presumed to show then also he could definitely be said to be intermeddling with the estate. As such intermeddler he could well be considered as a legal representative in view of the definition of Section 2(II) of the Code and Section 4(24A) of the U.P. General Clauses Act 1897.

Thus the Petitioner appears to be a person eligible for substitution under Order 22 of the Code in the present case as is apparent on the materials disclosed.

Now it is time to consider the impact of Order 22 Rule 5 of the Code. Order 22 Rule 5 of the code requires the Court to decide the question who is or are the legal representatives of the deceased. But the said determination does not require elaborate enquiry. Such a view was taken by the Madras High Court in the case of Krishnakumar Vs. N. Goverdhana Naidu and Another, . An adjudication in the course of proceeding to substitute legal representatives does not make the legal representative heirs as such. The finding should be construed to have given only for the prosecution of the proceeding. It is not a decision on merits. It cannot operate as res judicata It was so held in the case of Sakhtivel v. H.S. Govindan (1988) 2 Ren CJ 647 by the Madras High Court. Similar view was taken by the Madras High Court in the case of Muniappa Nadar and Others Vs. K.V. Doraipandi Nadar and Another,

The Rajasthan High Court had also taken the same view as that of Madras High Court in the case of Kalu Ram Vs. Charan Singh and Another, that the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not legal representative for the purpose of proceeding before the Court. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on litigation and is not an imposter. In case of rival claimants, it may also be necessary to decide that out of the rival claimants, who really is the person entitled to represent the estate for the purpose of a particular proceeding. Even that determination does not result in determination of inter se right to succeed to the property of the deceased and that right has to be established in independent proceedings in accordance with law. In the said case, in a suit for specific performance of contract of sale the transferor died leaving his widow who too died during the proceeding. One stranger on the strength of an unprobated will seek to be impleaded in the suit. He was allowed to be substituted in place of the widow.

Punjab High Court had also taken the same view that the decision in a proceeding under Order 22 Rule 5 of the Code does not operate as res judicata. It was so held by the Full Bench of the Punjab High court in the case of Mohinder Kaur v. Piara Singh AIR 1981 Punj 130. Following the said decision the Punjab High Court in the case of S. Charanjit Singh v. Bhatinder Singh AIR 1988 Punj 123had held that when two categories of legal representatives, one set claiming under a Will and another as natural and non-testamentary successors claim to be impleaded, the proper course is to implead both.

The Himachal Pradesh High Court had also taken the same view in the case of Nisapati Vs. Smt. Gyatri and Others, holding inter-alia that in such an enquiry the question that a Petitioner is an exclusive heir may be left open. Enough if he is found to be representing the estate of the deceased to the extent of a fractional share.

Whereas the Apex Court in the decision in the case of Mrs. Annupam Pruthi and Others Vs. Rajen Bal and Others, did not deviate and did not take a contrary view than those cited above. Though it had held that once an order of substitution was made at the instance of A substituting A,B,C as legal representatives, then A cannot be permitted to say that only A and M are to be substituted and not B and C on the strength of a will found.

But then the question to be decided under Order 22 is confined to the scope and ambit of Order 22. The scope and ambit of Order 22 is related to the carriage of the proceedings to the extent who is to carry on the proceedings. It does not determine the rights of the parties or even persons claiming as legal representatives, the definition of legal representative as defined in Section 2 (ii) of the CPC includes a person who inter-meddles with the estate of the deceased. Thus it is only a proceeding for ascertaining as to who is the legal representative eligible to continue the lis. the scope of enquiry under Order 22 cannot surpass the purpose and object for which Order 22 is prescribed. It cannot be stretched to the extent of determining the lis between the parties on merits by deciding title. Thus the provision of Rule 5 of Order 22 relating to determination of the question as to legal representative is confined only to the extent of determining the legal representative for the purpose of carriage of the proceeding and representing the lis or the estate even though he may be a inter-meddler. It does not determine the rights of the parties. Even if it is so determined, the same would wholly outside the scope of final determination in the suit here the question is involved the question remains open to be decided in appropriate proceeding either in the suit itself or in a separate suit or proceeding as the case may be. The substitution does not preclude the parties to establish their respective right during the course of hearing of the suit, where it could be so permitted within its scope and ambit, on materials to be produced by adducing evidence oral or documentary. Even if a legal representative is excluded still then he has a right to apply for being added as a party to a proceeding if he is so advised depending on the facts and circumstances of the case.

However, the Calcutta High Court in the case of Rabindra N. Das Vs. Santosh Kumar Mitra and Others, had taken the view that an order under Order 22 is not in the nature of inter-locutory order and is conclusive and binding. With great respect and humility, I am unable to agree with the reasoning of the said decisions in view of the discussion made above particularly in view of my agreement with the decision of the High Courts of Madras, Punjab, Rajasthan, Himachal Pradesh as cited above.

In such circumstances, after having gone through the order dated 23.8.1999 passed by the learned Additional District Judge, III rd Court, Allahabad in Civil Revision No. 1660 of 1998, it appears that the said order was justified. It has also noted the situation in the order itself. In such circumstances I do not find any reason to interfere with the said order. Therefore, this petition fails and is accordingly dismissed. However, none of the observation made by the learned trial court or by the revisional court or by this Court, shall be taken note of, when issues are raised by the parties or decided by the court on merit which should be decided on the basis of the material that might be produced before the court below in accordance with law. If the parties are so advised they may make an application to the trial court to frame and decide as to the right of the opposite party No. 3 to continue the suit or to claim as successor or Mahant and decide the same along with the suit. It is expected that the learned trial court shall decide the suit as early as possible.

With the aforesaid observation this writ petition is dismissed. However, there will be no order as to cost.