High Court
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Ethape( 1 ) WP-3248-2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3248 OF 2023Gopinath S/o. Bapurao Kakade,Age: 53 Years, Occu. Agriculture,R/o. Old Kautha, Taluka & Dist. Nanded....PETITIONER(Orig. Defendant No.1)VERSUS1. Sau. Girijabai w/o. Bapurao KakadeOrig. Plaintiff(since deceased)2. Bapurao s/o. Naroji Kakade(since deceased)3. Sau. Dhrupadabai w/o. Ramji MatreAge: 66 years, Occu. Household,R/o. Sukali, Taluka- Kalamnuri,Dist. Hingoli.4. Vatchalabai Pundlikrao HolepadeAge: 64 years, Occu. Agriculture,R/o. Lon, Taluka Basmath,Dist. Hingoli. 5. Sau. Kamlabai w/o. Keshavrao YevleAge: 55 years, Occu. Household,R/o. Kautha, Taluka & Dist. Nanded. ...RESPONDENTS(Nos. 2 to 5- Orig. Defendants)6. Rajesh s/o. Keshavrao YevleAge: 37 years, Occu. Agriculture,R/o. Old Kautha,Taluka and Dist. Nanded.7. Balaji s/o. Keshavrao YevleAge: 34 years, Occu. Agriculture,R/o. As above. ...ADDED DEFENDANTS Ethape( 2 ) WP-3248-2023…..Mr.Girish Rane, h/f Mr. Swapnil S. Rathi, Advocate for the Petitioner. Mr.Akash D. Gade, Advocate for Respondent Nos.3 to 7. …..CORAM:KISHORE C. SANT, J.RESERVED ON :31st JANUARY 2025PRONOUNCED ON:18th FEBRUARY 2025ORDER :-1.This Writ Petition arises out of order dated 11th October 2022passed by the learned 3rd Joint Civil Judge, Junior Division, Nanded onapplication below Exh.155 in RCS No.195 of 2009. By way of impugnedorder, the application of the respondents came to be allowed directingthem to be added as defendants in the said suit. The present petition isfiled by original plaintiff, who is aggrieved by the said order. The presentrespondent Nos. 6 and 7 are directed to be added as defendant Nos.6and 7. Respondent No.1 is the original plaintiff, who died during thependency of the suit. The respondent Nos. 3 to 5 are now transposed asplaintiff being daughter of Respondent No.1. Respondent No.2 is theoriginal defendant No.2 (now deceased). Respondent No.3 to 5 are the Ethape( 3 ) WP-3248-2023original defendant Nos.3 to 5. 2.Plaintiff, Girijabai Kakade filed a suit for partition and separatepossession of 1/3 portion in the suit land survey No.61 areaadmeasuring 1H 56R and 77 R. situated at Kautha Taluka & DistrictNanded. It is the case that, the land is the ancestral property of theplaintiff and defendant No.2. The defendant No.1 is her son. DefendantNo.2 mutated the suit land in the name of defendant No.1 withoutknowledge of the plaintiff and without any allotment in the suit land tothe plaintiff. The plaintiff resides separately from defendant No.1 and 2.They are not maintaining the plaintiff and on this ground she claimed1/3 share in the suit land. The defendants appeared and filed writtenstatement. It is the case of defendant No.1 that the plaintiff has no rightto claim any partition. The land is transferred to defendant No.2 todefendant No.3 by way of sale-deed wherein even plaintiff herself isconsenting party. The defendant Nos.3 to 5, who happens to be sisters,are also signatories to the said sale-deed. The mutation entry is taken byconsent of the sisters as well. It is accepted that the land Gut No.61 is Ethape( 4 ) WP-3248-2023the ancestral property of plaintiff’s and defendant’s family. The relationis also accepted. It is mainly the case of the defendants that thedefendant No.2 Bapurao Kakade was the owner of land Gut No.68 and69. During his lifetime, he effected the partition between himself and histhree sisters. He sold 1H and 36R land from land Gut No.69 in favourof one Sunil and Sachin. The sisters have received their shares in theproperty in cash and Bapurao i.e. father sold the property that fallen tohis share. Thus the defendant No.1 only received land admeasuring 1H59R from Gut No.61. It is on the basis of this, the partition mutationentry is taken. 3.In the suit, the application came to be filed by the presentrespondent Nos.6 and 7 stating that, they are the heirs of defendantNo.5 who transposed of plaintiff No.1 after death of Girijabai. It is thecase that the plaintiff and defendant No.2 were drove away bydefendant No.1 Gopinath and therefore both were staying withdefendant Nos.6 and 7. However, after filing of the suit, Girijabai andBapurao both expired in the house of applicants. It is the case that the Ethape( 5 ) WP-3248-2023defendant No.1 has prepared falls and bogus consent deed executed ofthe plaintiff. Now it is the case of defendant Nos. 6 and 7 that Girijabaihad executed a registered Will No.7804 of 2011 to the extent of hershare in the property in favour of defendant No.6 i.e. Rajesh Yevle. Thedeceased Bapurao also executed a Will bearing No.8300 of 2012 to theextent of his share of the property in favour of defendant No.7 i.e. BalajiYevle on 13th September 2012. Thus, both the defendants becamesuccessor of their grand parents respectively on the strength of Willsexecuted by them. In the application, they prayed that they be added asplaintiff in the suit. It is this application that came to be allowed.However, instead of adding them as plaintiffs, the trial Court directed toadd them as defendants and directed the plaintiffs to carry out necessaryamendment in the plaint. 4.This is how the original defendant No.1 is before this Courtchallenging the order. It is the case that the defendant Nos.6 and 7 haveno locus standi to file an application. Their application below Exh. 91with the same prayers was rejected by the Court. They could not have Ethape( 6 ) WP-3248-2023made similar application after lapse of time. The application Exh.91 wasmade in the year 2013 and same was rejected on 8th September 2015and the said fact is suppressed. The execution of the Will by grand-mother and grand-father is specifically denied. The application was notmaintainable as there is specific provision under Order XXII Rule 5 of theC.P.C. The application ought to have been filed under Order XXII Rule 5of C.P.C.. In this view, it is submitted that the application under Order 1Rule 10 of the C.P.C. was not maintainable. Thus, merely on this ground,the application ought to have been rejected. 5.Mr.Gade, the learned Advocate for the Respondent Nos.3 to 7strongly opposes the petition. It is the case that when the Will isexecuted in favour of applicants, the learned trial Court has rightlypassed the order under Order 1 Rule 10 of Code of Civil Procedure, 1908(for short “CPC”) as they are the successor and are the persons havinginterest in the property. The copies of the Will are annexed to theaffidavit-in-reply. Even other documents showing the names of theapplicants are on record in the form of 7/12 extract and other revenue Ethape( 7 ) WP-3248-2023records. 6.This Court finds that, the Wills were properly registered. Thedeceased Girijabai had executed the Will in the office of the Registrar on27th September 2012. In the said Will it is seen that it is clearly statedthat the defendant No.1 i.e. present petitioner is residing separately. Sheis looked after by defendant No.6, Rajesh Yevle. There is also specificmention of the suit in the Will that she bequeathed the property infavour of Rajesh Yevle. 7.Will of Bapurao Kakade is also on record which is registered on13th September 2012 wherein he has stated that son Gopinath Kakade isresiding separately. He is looked after by defendant No.7 Balaji Yevle. Hehas bequeathed the property in his name. There are certificates onrecord showing that both these persons were in fit condition to givestatements. He also relied upon the order passed by the learned trialJudge dated 17th February 2015 allowing to transpose original defendantNos.3 to 5 as plaintiff No.1-A to 1-C. That order is not challenged. Onthis, the Court has to consider this petition. Ethape( 8 ) WP-3248-20238.The learned Advocate for the petitioner relied upon the judgmentsin the case of Jagadi Suguna (dead) through L.Rs. Vs. Satya Sai CentralTrust and Ors.1 and Mahanth Satyanand Alias Ramjee Singh Vs. ShyamLal Chauhan and Ors.2.9.In the case of Jagadi Suguna (supra), the Hon’ble Apex Court heldthat, the Legal Representatives of the deceased are to be brought onrecord under Order XXII Rule 5 or Order XXII Rule 11 of Code of CivilProcedure. It is held that the provision of Rule 4 and 5 of Order XXII aremandatory. When the respondent in an appeal dies, the Court cannotsimply say that it will hear all rival claimants to the estate of thedeceased-respondent and proceed to dispose of the appeal. It is alsoheld that it is only when the question of legal representative isdetermined by the Court and such legal representatives are brought onrecord, in such cases, it can be said that the estate of the deceased isrepresented and therefore, the inquiry under Order XXII Rule 5 for thelimited purpose is necessary. 1AIR 2008 SC 28662(2018) 18 SCC 485 Ethape( 9 ) WP-3248-202310.In the case of Mahanth Satyanand (supra), the Hon’ble Apex Courtheld that, there is burden cast upon the Court to first decide as to who isthe legal representatives of the deceased. Without doing this exercise,the Court cannot proceed with the disposal of the case on hand. At thesame time, the Court cannot make all the contenders as parties. The saidquestion cannot be postponed till final disposal of the appeal on merits.The Court, in this case, has also considered the judgment in the case ofJagadi Saguna (supra). 11.The learned Advocate for the respondent relied upon the followingjudgment:-(i)Suresh Kumar Bansal Vs. Krishna Bansal and Anr.3(ii)Moreshar Yadaorao Mahajan Vs. Vyankatesh SitaramBhedi (D) Thr. Lrs. And Ors.4(iii)A Krishna Shenoy Vs. Ganga Devi G. and Ors.512.In the case of Suresh Kumar Bansal (supra), the parties weresought to be impleaded as party on the strength of Will. The trial Court3AIR 2010 SC 3444AIR 2022 SC 471052023 DGLS (SC) 1244 Ethape( 10 ) WP-3248-2023did not allow the application holding that the Will was suspicious.Ultimately, the Hon’ble Supreme Court allowed the application forimpleadment as party. It has held that the enquiry is limited for thepurpose of deciding such application. At this stage, Court need not go into the question of genuineness of Will etc. The said case was arising outof under Order XXII Rule 5 of the C.P.C. 13.In the case of Moreshar Yadaorao Mahajan (supra), it was the caseunder specific relief Act. An application was filed under Order 1 Rule 10of the C.P.C. The question was of necessary parties. In that case, theplaintiff had admitted that the suit property was jointly owned bydefendant, his wife and three sons. The objection was also taken by thedefendant in the written statement regarding non-joinder of necessaryparty. It was thus held that the suit was bad in law for non-joinder ofnecessary parties. The only thing needs to be considered that is the suitis held to be bad in law for non-joinder of necessary parties. 14.In the case of A. Krishna Shenoy (supra), the Hon’ble Apex Courtheld that, in the suit for partition, every party is deemed to be a plaintiff. Ethape( 11 ) WP-3248-2023Considering all above, the defendant Nos. 6 and 7 are not only claimingto be legal heirs of the plaintiff but also they claim to have derived aright in view of Will executed in their favour. It is thus no doubt thatthey are necessary parties to the suit. The question only in what manner,they are to be brought on record. Whether they were required to file anapplication under Order 1 Rule 10 of C.P.C. to join them as party beingnecessary parties or an application invoking the provision of Order XXIIRule 4 and 5 of C.P.C. If the nature of application is seen, the applicantsis filed under Order 1 Rule 10 of C.P.C. The earlier Application BelowExh.91 was rejected long back. There is no challenge to the said order.The respondent had accepted that order. The Defendant Nos. 3 to 5thereafter came to be transposed as plaintiff No. 1-A to 1-C. Though thepresent petitioners were shown as defendants. The learned Advocaterightly pointed out from the judgment in the case of A. Krishna Shenoy(supra) that in the suit for partition, every party is plaintiff. Thus, thedefendant No.1 is also plaintiff and can oppose adding the defendantNos.6 and 7 as party. In the judgments relied upon by the learnedAdvocate for the petitioners, there is nothing to suggest that though it is
Legal Reasoning
Ethape( 12 ) WP-3248-2023held that it is necessary to invoke the provision of Order XXII Rule 5 forbringing on record legal heirs on record. There is nothing to indicatethat no such application can be filed under Order 1 Rule 10 of C.P.C.Thus, the main objection of the petitioners that the application ought tohave been filed under Order XXII Rule 5 of C.P.C., is not acceptable. 15.So far as the judgment in the case of Suresh Kumar Bansal (supra),in that case, it was an application under Order XXII Rule 5 of C.P.C. Theonly dispute is about the Will which was alleged to be suspicious and theCourt held that there is no ground to deny the person to be added asparty to the suit. In the case of Moreshwar Mahajan (supra), this Courtfinds that it is only on the point of adding as necessary party. In thepresent case, there is no dispute about this proposition. 16.Considering all the submissions and the order passed by the trialCourt, this Court comes to the conclusion that the respondents are thenecessary parties. They are not claiming as legal representatives of thedeceased but claiming their rights on the strength of Will executed bythe Girijabai and Bapurao, respectively. This Court is of the view that it Ethape( 13 ) WP-3248-2023was not necessary for them to file an application under Order XXII Rule5 of the C.P.C. They had rightly filed an application under Order 1 Rule10 of C.P.C. This Court does not find any illegality in the impugned orderpassed by the trial Court. This Court finds that no case is made outcalling for interference at the hands of this Court. Hence, the followingorder:- ORDER(i)Writ Petition stands dismissed. (ii)No order as to costs. [KISHORE C. SANT, J.]