Where There Is Dispute Regarding Legal Heirs Of Deceased, Trial Court Should Adopt Summary Inquiry Under Order 22 Rule 5 CPC: Jharkhand HC

The High Court was considering a Petition preferred on behalf of the petitioner against the order passed by the Civil Judge in a Title Suit whereby the Court below allowed the petition filed by the intervenor/opposite parties under Order XXII Rule 10 read with Section 151 of C.P.C.

The Single-Judge Bench of Justice Subhash Chand affirmed, “It is the settled law that if any legal heirs of a party in suit comes to be substituted on the basis of will as plaintiff/appellant in a suit, for the same, there is no requirement of probate. But claiming to be the legal heir on the basis of the will Dhruo Shankar Dubey has not filed the will along with the petition for substitution as plaintiff.”

Advocate Amar Kr. Sinha represented the Petitioner while Advocate Sumit Kumar represented the Respondent.

It was the petitioner’s case that a title suit was filed by Ram Dulari Devi against Diwakar Chandra Pandey which was registered as a Title Suit in the Court of Sub Judge. During the pendency of the Suit, an application was given on behalf of Dhruo Shankar Dubey to be substituted as the legal heir of the plaintiff in that suit after the death of the original sole plaintiff, Ram Dulari Devi, based on the will, alleged to have been executed by Ram Dulari Devi in favour of Dhruo Shankar. The Trial Court allowed the petition ignoring the very material fact that the will was not annexed with the application for the affidavit given in support thereof. Further, the petitioner Dhruo Shankar Dubey had also concealed this material fact that deceased Ram Dulari had also left four daughters as natural legal heirs. This very plea was also taken by the defendant/petitioner herein in the objection against that application.

On the contrary, it was the case of the opposite party that even if the will was not filed along with this application, the same was also adduced before the Trial Court with the list of documents and the execution of the will wasn’t denied by the defendant. On a perusal of the Petition, the Bench noticed that the petitioner Dhruo Shankar Dubey had stated that the sole plaintiff died in 2017 and before her death in her lifetime, the plaintiff had executed a will in the year 2013 in favour of the petitioner bequeathing the property in suit. On this basis of the will, sought to be substituted as legal heirs of the sole plaintiff. However, Dhruo Shankar Dubey had nowhere mentioned that after death, Ram Dulari Devi had also left her natural legal heir, i.e. her daughters.

“From the very perusal of the impugned order, it is found that the learned Court below has not taken into consideration while allowing the application of Dhruo Shankar Dubey, this very material fact that deceased had also left the natural legal heirs, four daughters and the legal heirs of fifth daughter as well and also ignored this fact that the will was not filed along with the application”, the Bench said.

It was also emphasized by the Bench that the very application of Dhruo Shankar Dubey was under Order 22 Rule 10 of C.P.C. which was the wrong provision, still, it was not fatal because the caption of the application was not material, rather it was the subject matter of the application. The Bench agreed with the contention of the Opposite Party that the will had been filed by the list of the documents and the same should have been taken into consideration by the lower Court below while passing the impugned order but the Court ignored this material fact.

As per the Bench, it was incumbent upon the Court below given the settled legal proposition of law that both the natural legal heirs and Dhruo Shankar Dubey who was claiming based on the will would have been impleaded as party in the suit.

The Court further clarified, “Where there is dispute in regards to legal heirs of deceased plaintiff or defendant the trial court should adopt summary inquiry under Order 22 Rule 5 of the Civil Procedure Code as to who is the legal heir from the rival claimants. It is mandatory for the court to determine the legal heir taking into consideration the right to sue or be sued is surviving.”

Moreover, Dhruo Shankar Dubey in his application had not mentioned that deceased plaintiff Ram Dulari had also left the legal heirs of four daughters of the legal heirs of fifth daughter as well. This fact was brought to the knowledge of the Court by the defendants but the Court below ignored this material fact while disposing of the substitution application filed by Dhruo Shankar Dubey.

Thus, holding that the impugned order passed by the Court below was based on a perverse finding, the Bench held, “Accordingly, this petition is hereby allowed and the impugned order dated 16.01.2023 passed by Learned Civil Judge (Senior Division) VII is set aside.”

A direction was also passed to the Trial court to dispose of this application of Dhruo Shankar Dubey afresh after allowing him to file the will, if the same had not been filed on record and also to take into consideration whether the natural legal heirs of the deceased sole plaintiff come forward to be substituted as plaintiff.

Cause Title: Diwakar Chandra Pandey v. Dhruo Shankar Dubey (Case No.: C.M.P. No. 228 of 2023)

Appearance:

Petitioners: Advocates Amar Kr. Sinha, Sandeep Verma, Sumit Kumar,

Respondents: Advocates Bhaiya Viswajeet Kumar, Sheo Kumar Singh

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