Suresh Kumar Bansal vs Krishna Bansal & Anr

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. 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.

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]

NEW DELHI: ...............................J. DECEMBER 14, 2009. [DR.B. S. CHAUHAN]