Suresh
Kumar Bansal Vs. Krishna Bansal & ANR. [2009] INSC 1797 (14 December 2009)
Judgment
REPORTABL
E IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL
NO.8271 OF 2009 (Arising out of SLP)No.7687 of 2006) Suresh Kumar Bansal
...Appellant VERSUS Krishna Bansal & Anr. ...Respondents
TARUN
CHATTERJEE,J.
1.
Leave granted.
2.
This appeal by special leave arises from the judgment and order
dated 18th of January, 2006 of the High Court of Madhya Pradesh at Gwalior in
Writ Petition No.261 of 2006 dismissing the writ petition and affirming the
order dated 17th of November, 2005 passed by the 8th Civil Judge, Class I,
Gwalior in Civil Suit No. 40-A/2004.
3.
One Shri Mohanlal Bansal (since deceased) as a plaintiff had
instituted a suit for eviction and recovery 2 of arrears of rent against one
Shri Bhogiram (since deceased) in respect of a shop room situated at Kampoo,
Lashkar, Gwalior, M.P. (in short the `suit premises'). During the pendency of
the suit, the plaintiff had expired on 20th of June, 1989 and thereafter his
widow, the respondent No.1 herein, filed an application for substitution as an
heir and legal representative of the deceased in the pending suit.
The
appellant herein, the brother of the deceased plaintiff also filed an
application for substitution/impleadment as heir and legal representative of
the deceased plaintiff claiming the suit premises on the allegation that the
deceased plaintiff had executed a Will in his favour on 11th of June, 1989. The
learned Civil Judge by an order dated 22nd of February, 1991 had allowed the
application for substitution/impleadment filed by the widow of the deceased
plaintiff, namely, the respondent No.1 and rejected the application for
substitution/impleadment filed by the appellant on the ground that the Will of
the 3 deceased plaintiff did not seem to have been executed by him and,
therefore, the appellant was not entitled to be substituted/impleaded in the
suit for eviction as he was not the legal representative of the deceased plaintiff.
4.
Feeling aggrieved by the aforesaid order of the learned Civil
Judge, a revisional application was filed in the Court of the IVth Additional
Judge to the Court of District Judge, Gwalior (in short, "the Additional
Judge") and the Additional Judge, by his order dated 11th of November,
1991, set aside the order of the learned Civil Judge to the extent it held that
the appellant was not the legal representative of the deceased plaintiff and
thereafter remanded the case back to the Civil Judge for fresh decision of the
application for substitution/impleadment filed at the instance of the
appellant. Again, the Civil Judge by his order dated 17th of November, 2005
decided the application for substitution/impleadment filed by the appellant and
rejected the same observing that the 4 execution of the Will by the testator
i.e. the original plaintiff on the basis of which substitution/impleadment was
sought for, seemed suspicious. This time, the appellant herein, feeling
aggrieved by the order of the learned Civil Judge, filed a writ application in
the High Court of Madhya Pradesh at Gwalior which came to be registered as
W.P.No.261 of 2006. By the impugned judgment of the High Court, the writ
petition filed by the appellant for his substitution/impleadment in the suit
for eviction was also rejected affirming the order of the learned Civil Judge
rejecting the application for substitution/impleadment of the appellant holding
inter alia that there was no ground to interfere with the order of the Civil
Judge in the exercise of its power under Article 227 of the Constitution. The
High Court held that the summary enquiry was conducted only to find out whether
the appellant was entitled to participate in the proceeding as a legal
representative of the deceased plaintiff and in the said limited 5 enquiry,
finding was arrived at by the learned Civil Judge that the execution of the
Will seemed to be suspicious and such finding of the learned Civil Judge would
only be treated as the decision on the question whether the appellant should be
impleaded as a party in the eviction suit.
5.
It is this order of the High Court that was challenged by the
appellant in this Court by way of a special leave petition which on grant of
leave was heard in the presence of the learned counsel for the parties.
6.
During the pendency of this appeal in this Court, more precisely
on 27th of October, 2007, the original tenant, the respondent No.2 herein, had
expired and his heirs and legal representatives were brought on record.
7.
Before us, the only question that has to be gone into is whether
the appellant, on the death of the original plaintiff, namely, Mohanlal, was
entitled to be impleaded/substituted in the suit for eviction along with the
natural heirs and legal representatives of the deceased, namely, respondent
No.1 and others.
8.
6 Ms.Indu Malhotra, learned senior counsel appearing on behalf of
the appellant submitted that since a separate probate proceeding has already
been instituted by the appellant for grant of probate in the competent Court of
Law which is now pending, the only course open to the court was to substitute
or implead the appellant in the eviction proceeding along with natural heirs
and legal representatives of the deceased plaintiff, that is to say, the entire
proceeding should be carried on not only by the natural heirs and legal
representatives of the deceased plaintiff but also by the appellant subject to
grant of probate by a competent court of law. In support of this contention,
Ms.Malhotra, learned senior counsel appearing on behalf of the appellant had
drawn our attention to a decision of this Court in the case of Jalai Suguna vs.
Satya Sai Central Trust [2008 (8) SCC 521]. Ms.Malhotra also submitted that in
a proceeding under Order XXII Rule 5 of the Code, it was not open to the court
to consider genuineness of the Will alleged 7 to have been executed by the
testator and come to a finding that the Will was suspicious and, therefore, the
appellant could not be substituted/impleaded as a legal representative of the deceased
plaintiff.
8. This
submission of the learned senior counsel for the appellant was hotly contested
by the learned counsel for the respondent. According to the learned counsel for
the respondent, the question of impleading/substituting the appellant on the
basis of the Will alleged to have been executed by the original plaintiff in
respect of the suit premises could not arise at all, as according to him, in
the impugned order, it was found by the High Court as well as by the Civil
Judge that the Will seemed to be suspicious.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Having heard the learned counsel for the parties and after going
through the impugned order as well as the application for substitution of the
appellant on the basis of the Will alleged to have been executed by the
deceased plaintiff, we are of the view that the impugned order of the High
Court is liable to be 8 interfered with and the application for impleadment
filed at the instance of the appellant on the basis of the Will alleged to have
been executed by the deceased plaintiff must be allowed and the appellant must
be impleaded in the suit along with the natural heirs and legal representatives
of the deceased plaintiff, subject to grant of probate by a competent court of
law. It is true that in the impugned order, the High Court has made it clear
that the finding regarding genuineness of the Will was made only for the
purpose of deciding the application for impleadment filed at the instance of
the appellant. But, in our view, if at this stage, the appellant is not
permitted to be impleaded and in the event an order of eviction is passed
ultimately against the tenant/respondent, the tenants will be evicted by the
natural heirs and legal representatives of the deceased plaintiff who thereby
shall take possession of the suit premises, but if ultimately the probate of
the alleged Will of the deceased plaintiff is granted by the competent court of
law, the suit property would 9 devolve on the appellant but not on the natural
heirs and legal representative of the deceased. Therefore, in the event of
grant of probate in favour of the appellant, he has to take legal proceeding
against the natural heirs and legal representatives of the deceased plaintiff
for recovery of possession of the suit premises from them which would involve
not only huge expenses but also considerable time would be spent to get the
suit premises recovered from the natural heirs and legal representatives of the
deceased plaintiff. On the other hand, if the appellant is allowed to carry on
the eviction petition along with the natural heirs and legal representatives of
the deceased plaintiff, in that case decree can be passed for eviction of the
tenant when the appellant shall not be entitled to get possession from the
tenants in respect of the suit premises until the probate in question is
granted and produced before the Court. Therefore, ultimately if the court
grants a decree for eviction of the tenant/respondent from the suit premises,
such decree shall be passed subject to 10 production of probate by the
appellant. That apart, since the question of genuineness of the will cannot be
conclusively gone into by the court in a proceeding for substitution in a
pending eviction suit and in view of the fact that an application was made at
the instance of the appellant for impleadment as a legal representative of the
deceased on the basis of the Will which is yet to be probated, in our view,
best course open to the court is to allow impleadment of the appellant in the
eviction proceeding, thereby permitting him to proceed with the eviction suit
along with natural heirs and legal representatives of the deceased plaintiff,
but in case the decree is to be passed for eviction of the tenant from the suit
premises such eviction decree shall be subject to the grant of probate of the Will
alleged to have been executed by the deceased plaintiff. At the same time, it
is clear that in case the Will of the deceased plaintiff is found not to be
genuine and probate is not granted, the court shall proceed to grant the
eviction decree in 11 favour of the respondent no.1 and not in favour of the
appellant. It is well settled that in the event, the Will is found to be
genuine and probate is granted, only the appellant would be entitled to get an
order of eviction of the tenants/respondents from the suit premises excluding
the claim of the natural heirs and legal representatives of the deceased
plaintiff. The Code of Civil Procedure enjoins various provisions only for the
purpose of avoiding multiplicity of proceedings and for adjudicating of related
disputes in the same proceedings, the parties cannot be driven to different
Courts or to institute different proceedings touching on different facets of
the same major issue. Such a course of action will result in conflicting
judgments and instead of resolving the disputes, they would end up in creation
of confusion and conflict. It is now well settled that determination of the
question as to who is the legal representatives of the deceased plaintiff or
defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for
the purposes of bringing legal 12 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. 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. In
view of our discussions made 13 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.
10.
Before parting with this judgment, it is necessary to consider the
decision of this Court in the case of Jalai Suguna (deceased) through L.Rs. v.
Satya Sai Central Trust and Others, [(2008) 8 SCC 521] cited by the learned
senior counsel for the appellant. In Jalai Suguna (supra), this Court held that
the intestate heir (husband) and the testamentary legatees (nieces and
nephews), seeking impleadment as the heirs of the deceased respondent in an
appeal have to be brought on record before the Court can proceed further in the
appeal. Furthermore, in that decision it was also held that a legatee under a
Will, who intends to represent the estate of the deceased testator, being an
intermeddler with the estate of the deceased 14 testator, will be a legal
representative. In view of the aforesaid discussions and in view of the
decision reported in Jalai Suguna (supra), we are also of the view that in an
eviction proceeding, when a legatee under a Will intends to represent the
interest of the estate of the deceased testator, he will be a legal
representative within the meaning of Section 2(11) of Code of Civil Procedure,
for which it is not necessary in an eviction suit to decide whether the Will on
the basis of which substitution is sought for, is a suspicious one or that the
parties must send the case back to the probate Court for a decision whether the
Will was genuine or not.
11.
For the reasons aforesaid, we are of the view that the High Court
as well as the trial Court had acted illegally and with material irregularity
in the exercise of their jurisdiction in not impleading not only the natural
heirs and legal representatives of the deceased plaintiff but also the
appellant who is claiming his 15 impleadment on the basis of an alleged Will of
the deceased plaintiff.
12.
Accordingly, the impugned order of the High Court is set aside and
the application for impleadment filed by the appellant is allowed. For this
reason, the eviction proceeding shall be carried on not only by the natural
heir of the deceased plaintiff, but also the appellant who claims to be a legal
representative of the deceased plaintiff on the basis of a Will alleged to have
been executed by the deceased plaintiff.
13.
But we make it clear that in the event, the probate of the will of
the deceased plaintiff is not granted on the ground of genuineness of the Will,
it is needless to say that the natural heirs and legal representatives of the
deceased plaintiff would only be entitled to get possession on the basis of
inheritance of the suit property on the death of the original plaintiff.
14.
However, we also make it clear that the appellant would be entitled
to obtain order of eviction of the tenants/respondents if the ground taken in
the plaint 16 stand proved, but such decree for eviction shall be passed
subject to grant of probate of the Will of the deceased plaintiff in favour of
the appellant.
15.
The appeal is allowed to the extent indicated above.
There
will be no order as to costs.
...............................J. [TARUN CHATTERJEE]
...............................J.
NEW DELHI
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