Civil Rev. Appln. No. 74 of 1993

16th June, 1993

Petitioner Counsel: S. V. Mundhe
Respondent Counsel: Ms. C. G. Chincholkar, C. G. Solshe

JUDGMENT

JUDGMENT :- When two or more persons put forth their claim as sole heir of the deceased plaintiff, what would be the scope of the enquiry under Order XXII, Rule 5 of the Code of Civil Procedure is the question which arises for determination in this revision application.

2. Prayagbai w/o Mahadu Shete filed a Regular Civil Suit No. 216 of 1986 for perpetual injunction against Prabhuappa and Narayan. During the pendency of the said suit, Prayagbai died on 24-7-1986. On 8-10-1986, the learned trial Judge passed order that suit has abated since the heirs of the plaintiff were not brought on record in time. On 13-10-1986, Bapurao s/o Banderao Shete filed an application for setting aside abatement and bringing him on record as legal representative of deceased Prayagbai, since Prayagbai allegedly executed will deed in his favour on 11-3-1984. It was also contended by him that suit cannot abate before expiry of 90 days' period from the date of death and hence order of the learned Judge is not legal. One Shivraj Ramji Paul Shete also filed an application claiming to be heir of Prayagbai on the basis of will deed which she had executed in his favour on 18-3-1986. The learned Civil Judge, Junior Division, Gangakhed in Misc. Case No. 21/86 pleased to hold that will executed in favour of Bapurao is the last and true will and the will executed in favour of Shivraj is not last will executed by Prayagbai. He was pleased to allow application of Bapurao and rejected the application of Shivraj vide his order dated 30-6-1992. This order has been challenged in this revision application.

3. Rule 5 of Order XXII of the Code of Civil Procedure, 1908 lays down that 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. When more than one claimant put up rival claims before the Court, the Judge is required to hold an enquiry and determine the question as to which of the legal representatives is entitled to be substituted for the deceased party. When the dispute is on the basis of the genuineness of either of the will, then the scope of enquiry would require finding about genuineness of the wills. Though there is no dispute that an order passed by the Court under Order XXII, Rule 5 would not be res judicata in the subsequent proceedings, it is final so far as that suit or appeal is concerned.

4. Interpreting the provisions of Order XXII, Rule 5 and section 47(3) of the Code of Civil Procedure, the Division Bench of this Court in the case of Shaligram Bhagoo Kunbi and another vs. Mt. Dhurpati w/o Shamroo Kunbi, AIR 1939 Nagpur 147 was pleased to hold that though a decision under Order XXII, Rule 5 is not res judicata because it does not operate as a decree, still it is final so far as the suit in which it is made is concerned, not on the ground of res judicata but because of section 47. No subsequent decision in a separate suit can be used to affect the rights of the parties so far as questions relating to the "execution, discharge or satisfaction" of the decree in connection with which the order was made is concerned. If a person is not a party to the suit, he can agitate that a party who was allowed to continue the suit as a legal representative, is not heir or has no right to that property but for that purpose, he will have to file a separate suit. It is desirable that when two or more persons put forth their claims contradictory to each other in respect of the property of the deceased or they being his heirs, the question is decided at a full length trial by adding all of them as party to the suit. The determination of the point to be made by the Court under Order XXII, Rule 5 is whether a person is entitled to continue the suit by substituting himself in place of the deceased person. It is not really the decision on the heirship as was held by Lahore High Court in the case of Daulat Ram vs. Mt. Meero and others, AIR 1941 Lahore 142. While deciding so, the learned Judge of Lahore High Court has relied on the judgment of the Division Bench of this Court in the case of Balabai vs. Ganesh Shankar Pandit, I.L.R. 27 Bombay 162, which holds that a decision under this rule should be limited to the purpose of carrying on a suit and cannot have effect of conferring any right to heirship or to property. Following the judgment of Lahore High Court, the learned single Judge of Himachal Pradesh took the same view in the case of Suraj Mani and another vs. Kishori Lal, AIR 1976 Himachal Pradesh 74. Determination of a person being legal representative does not confer upon him the heirship of the deceased person. This is particularly so since the enquiry under Order XXII, Rule 5 is of summary nature and is not a full scale enquiry. When two will deeds making claims contrary to each other are produced before the Court to form the basis of he right of claimant as a legal representative of the deceased, the Court may be required to decide as to which of them should be allowed to act as legal representative, but the Judge, exercising his jurisdiction under Order XXII, Rule 5 should, as far as possible, refrain from going into the question of genuineness of the will in such an enquiry. It is likely that a finding recorded in such a summary enquiry may prejudice the rights of the claimant which can be determined in that suit itself.

5. If the defendant dies and two claimants claim to be his heirs on the basis of two separate will deeds or any other plea which is contrary to each other, it is always better to add both of them in the array of the defendants. In the case of S. Charanjit Singh and another vs. Bharatinder Singh and others, AIR 1988 Punjab and Haryana 123, learned Judge of the Punjab and Haryana High Court was pleased to hold that when rivals claim, one based on will of deceased defendant and other on natural succession are put forth before the Court, proper course to follow is to bring all the legal representatives on record so that they vouchsafe the estate of the deceased for ultimate benefit of the real legal representative. This would also avoid delay in disposal of the suit. Though following ratio, somewhat different course will have to be adopted if legal representative of the plaintiff is to be brought on record. It would not be possible and proper for bringing rival claimant on record as legal representative of the plaintiff. The proper course would be to allow one of them to be legal representative of the plaintiff and add the other claimant as the defendant in the suit.

6. The nature of the inquiry under Order XXII, Rule 5 was explained by the Full Bench of Punjab and Haryana High Court in the case of Mohinder Kaur and another vs. Piara Singh and others, AIR 1981 Punjab and Haryana 130 as under -

"In essence a decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings."

Once we holding that the determination of the legal representative of the deceased party under Order XXII, Rule 5 is not a judgment about theheirship or right to the property and is merely for the purpose of continuation of the suit, we will also have to hold that the Courts are free to to pass proper orders as exgencyin particular suit would require. Since the determination. of the genuineness of the two wills contrary to each other is not desirable in the summary enquiry, it would be better if one of the party is allowed to substitute the deceased plaintiff as legal representative and other claimant is added as a defendant in the suit. The Court has ample power to add any party and, therefore, though the second claimant claimed to be the legal representative of the plaintiff, he can be added as defendant in the suit so that he may have opportunity to prove his case in the full length trial in that very suit and multiplicity oflitigation is avoided and substantial justice is done. Code of Civil Procedure though takes care of exigencies which normally arise, circumstances may illude the imagination of rule makers and a reasonable interpretation to the procedural law is the only way out.

7. Inherent powers of the Court can always be resorted to for finding a solution in the light of the general principles laid down by the rules of the procedural law. In the case of Sangram Singh vs. Election Tribunal, Kotah and another, AIR 1955 SC 425, Supreme Court reminded :

"A Code of procedure must be regarded as such. ... Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means deigned for the furtherance of justice be used to frustrate it."

8. Of the two claimants, the Court may select one of them who in his opinion and after summary enquiry, has better right to be legal representative of the deceased plaintiff and direct the other claimant to be added as defendant and leave the final adjudication of the rival claims for the hearing and the disposal of the suit. This procedure may not be necessary when one of the rival claims can be discarded as totally baseless or unfounded or the entitlement of either of them is so obvious which can be determined in summary inquiry.

9. In the instant case, since two will deeds have been produced before the Court, both are in writing, it was desirable that the determination of the truthfulness of either of them is postponed till final hearing of the suit. The order of the trial Judge allowing Bapurao to substitute himself in place of deceased Prayagbai as legal representative of the plaintiff is upheld. However, it is clarified that the determination is not a final adjudication of his claim on the basis of the will. Petitioner Shivraj is directed to be added as defendant in the case. The observations made by the learned Judge about the genuineness of the will are considered to be only prima facie and the rival claims between Bapurao and Shivraj are left for the decision of the final disposal of the suit. It is desirable that the suit is heard by some other Judge other than the one who has passed the impugned order since he had considered the genuineness of the will, which will have to be again determined at the time of final hearing. If the other Judge is not available at Gangakhed, the learned Judge may write to the learned District Judge for getting the suit transferred in case he is there at the time of final hearing, but the transfer is not necessary any time before that. Till then, he can continue with the suit. Rule is made absolute partly to the above extent. There be no order as to costs.

Order accordingly.