Nawal Kishore Patel Vs. Smt. Indrapati Devi
EmailAppeal: Civil Appeal No.3561 of 1989
Petitioner: Nawal Kishore Patel
Respondent: Smt. Indrapati Devi
Apeal: Civil Appeal No.3561 of 1989
Judges: M.M. PUNCHHI & R.M. SAHAI, JJ.
Date of Judgment: Apr 24, 1990
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
O. 22, R. 5 – Legal representative – Scope of proceedings – Limited to finding as to who represents the estate of the deceased – The question unless put to issue cannot be enlarged.
JUDGEMENT:
O R D E R
1. This appeal by special leave is against an Interlocutory Order of the Patna High Court dated 18th April, 1988.
2. Two brothers, namely, Pramod Kumar and Prem Kumar were engaged in a civil dispute pertaining to partition of their joint properties. After the decree of partition by the Trial Court, Prem Kumar went up in appeal which was assigned to the Court of the Third Additional District Judge, Muzaffarpur. While the appeal was pending Pramod Kumar died. A lady by the name of Veena Devi claiming herself to be the widow of the Pramod Kumar sought permission to be impleaded as legal representative of the estate of Pramod Kumar under Order 22 Rule 3 C.P.C. One N.K. Patel, also moved an application under Order 22 Rule 10 C.P.C. for leave of being substituted in place of Veena Devi as an assignee of her interest in the litigation. Initially, the Third Additional District Judge, vide order dated October 13, 1980 allowed the first prayer of Veena Devi, declining the second prayer of N.K. Patel on the ground that the latter had not been able to substantiate the assignment in his favour. The matter was then taken by him to the High Court in revision which was allowed and it was remitted back for reconsideration. This time Patel was successful in having him impleaded as a party. It appears on the other hand that Prem Kumar too had died and thus his legal representatives took the matter in revision before the Patna High Court, firstly on 25-1-1988 and then on 18-4-1988. P.S. Mishra, J. took the view that the matter with regard to Veena Devi being the sole heir of Pramod Kumar would have to be decided in the instant suit itself and that the finding recorded earlier by the Third Additional District Judge to the effect that she represented the estate of Pramod Kumar was not on that point final. Similarly it was expressed that the question whether Veena Devi had legal title to pass on to Patel would also have to be decided in that light and that no point of res judicata was involved in taking such a view. It is to challenge this order that this appeal has been preferred by the legal representatives of Prem Kumar.
3. Order 22 Rule 5 C.P.C. provides the procedure for determination of the question as to who is or is not the legal representative of a deceased plaintiff or defendant. Legal representatives as defined in Section 2 (11) C.P.C. means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. It is thus clear that the scope of proceeding under Order 22 Rule 5 is limited to the question of finding as to who represents the estate of a deceased plaintiff or defendant. Obviously, the question unless put to issue as to who was the heir to the estate of the deceased cannot be enlarged. Similarly, in proceeding under Order 22 Rule 10 a person who claims himself to be an assignee or one on whom any interest during the pendency of a suit has been created or devolved seeks leave of the court to become party and look after his interests therein. Here as well no question of title is settled. In this light of the matter we are of the considered view, having heard learned counsel for the parties, that no res judicata was involved just because at an earlier stage in the appeal sufficient evidence had been introduced to establish that Veena Devi was the widow of the deceased Pramod Kumar. That finding arose out of a question posed about representation and not decided by regular issue and did not finally determine her heirship to the estate of the deceased.
4. In view of the above discussion the High Court in these circumstances was right in its view calling for no interference. We are aware that the High Court could have directed the parties to establish the question of Veena Devi’s title in a separate suit but in the facts and circumstances of the present case, when the suit itself was for partition it was the right direction in the circumstances to have the issue of heirship decided in the instant suit itself. Accordingly, finding no infirmity in the impugned order of the High Court we reject the appeal. Parties to bear their own costs. We expect the trial to be expedited. The Trial Court be directed accordingly.
1. This appeal by special leave is against an Interlocutory Order of the Patna High Court dated 18th April, 1988.
2. Two brothers, namely, Pramod Kumar and Prem Kumar were engaged in a civil dispute pertaining to partition of their joint properties. After the decree of partition by the Trial Court, Prem Kumar went up in appeal which was assigned to the Court of the Third Additional District Judge, Muzaffarpur. While the appeal was pending Pramod Kumar died. A lady by the name of Veena Devi claiming herself to be the widow of the Pramod Kumar sought permission to be impleaded as legal representative of the estate of Pramod Kumar under Order 22 Rule 3 C.P.C. One N.K. Patel, also moved an application under Order 22 Rule 10 C.P.C. for leave of being substituted in place of Veena Devi as an assignee of her interest in the litigation. Initially, the Third Additional District Judge, vide order dated October 13, 1980 allowed the first prayer of Veena Devi, declining the second prayer of N.K. Patel on the ground that the latter had not been able to substantiate the assignment in his favour. The matter was then taken by him to the High Court in revision which was allowed and it was remitted back for reconsideration. This time Patel was successful in having him impleaded as a party. It appears on the other hand that Prem Kumar too had died and thus his legal representatives took the matter in revision before the Patna High Court, firstly on 25-1-1988 and then on 18-4-1988. P.S. Mishra, J. took the view that the matter with regard to Veena Devi being the sole heir of Pramod Kumar would have to be decided in the instant suit itself and that the finding recorded earlier by the Third Additional District Judge to the effect that she represented the estate of Pramod Kumar was not on that point final. Similarly it was expressed that the question whether Veena Devi had legal title to pass on to Patel would also have to be decided in that light and that no point of res judicata was involved in taking such a view. It is to challenge this order that this appeal has been preferred by the legal representatives of Prem Kumar.
3. Order 22 Rule 5 C.P.C. provides the procedure for determination of the question as to who is or is not the legal representative of a deceased plaintiff or defendant. Legal representatives as defined in Section 2 (11) C.P.C. means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. It is thus clear that the scope of proceeding under Order 22 Rule 5 is limited to the question of finding as to who represents the estate of a deceased plaintiff or defendant. Obviously, the question unless put to issue as to who was the heir to the estate of the deceased cannot be enlarged. Similarly, in proceeding under Order 22 Rule 10 a person who claims himself to be an assignee or one on whom any interest during the pendency of a suit has been created or devolved seeks leave of the court to become party and look after his interests therein. Here as well no question of title is settled. In this light of the matter we are of the considered view, having heard learned counsel for the parties, that no res judicata was involved just because at an earlier stage in the appeal sufficient evidence had been introduced to establish that Veena Devi was the widow of the deceased Pramod Kumar. That finding arose out of a question posed about representation and not decided by regular issue and did not finally determine her heirship to the estate of the deceased.
4. In view of the above discussion the High Court in these circumstances was right in its view calling for no interference. We are aware that the High Court could have directed the parties to establish the question of Veena Devi’s title in a separate suit but in the facts and circumstances of the present case, when the suit itself was for partition it was the right direction in the circumstances to have the issue of heirship decided in the instant suit itself. Accordingly, finding no infirmity in the impugned order of the High Court we reject the appeal. Parties to bear their own costs. We expect the trial to be expedited. The Trial Court be directed accordingly.
