The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 23413 OF 2011 Sarada Prasad Dev and others …. Petitioners Mr. S. Udgata, Advocate Nava Kumari Devi and another …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 01.12.2023 4. 1. This matter is taken up through hybrid mode. 2. Order dated 20th June, 2011 (Annexure-2) passed by learned Senior Civil Judge, Rayagada in C.M.A. No.27 of 2007 is under challenge in this writ petition, whereby pursuant to the direction of learned District Judge, Rayagada in T.A. No.12 of 1997 and of this Court in F.A.O. No. 128 of 2006, learned trial Court made an enquiry and held the registered Willnama dated 9th May, 1988 to be a genuine document. 3. Mr. Udgata, learned counsel for the Petitioners submits that one, Nava Kumari Devi had filed T.S. No.4 of 1990 against Sarada Prasad Dev and Binapani Devi for declaration of her right over the compensation amount deposited in the OLR Case. The said suit was dismissed on contest. As such, Nava Kumari Devi filed T.A. No.12 of 1990. During pendency of the appeal, she died in the year, 1996. One, Kishore Chandra Singh and his mother, Gouri Devi claiming to be the legal representative on the basis of a registered Will filed a substitution petition to contest the appeal in place of deceased Appellant, Nava Kumari Devi. The said petition for substitution was allowed and Kishore Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 // 2 // Chandra Singh and his mother Gouri Kumari Devi were substituted in place of deceased Nava Kumari Devi in the appeal. Subsequently, Gouri Devi expired and Defendant No.1, Sarada Prasad Dev also died. Thus, said Kishore Chandra Singh filed an application to substitute the legal heirs of deceased Defendant No.1 as Respondent Nos.1(a) to 1(c). However, rest of the respondents were objected to substitution of Kishore Chandra Singh as the legal representative of Nava Kumari Devi to continue the appeal and prayed to recall the earlier order of substitution. Pursuant to the said direction, learned appellate Court directed learned trial Court to make an enquiry under Order XXII Rule 5 CPC. But, unfortunately, no enquiry could be made and record was sent back. Subsequently, the appeal itself abated. Thereafter, said Kishore Chandra Singh filed an appeal before this Court in F.A.O. No.128 of 2006, wherein it was directed to make enquiry as to the genuineness of the Will on the basis of which Kishore Chandra Singh claims to be the legal representative of the deceased of original Plaintiff, Nava Kumari Devi. 4. It is his submission that pursuant to the direction of this Court for enquiry, C.M.A. No.27 of 2007 was registered on the board of learned Civil Judge (Senior Division), Rayagada. It is submitted that the enquiry itself is perfunctory and the finding of learned trial Court with regard to genuineness of the Will is also vitiated. Hence, he prays for setting aside the impugned order under Annexure-2. Mr. Udgata, learned counsel for the Petitioners also filed a detailed written note of submission along with citations, which is taken on record. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 // 3 // 5. Law is well settled that a substitution can be made on the basis of a registered Will even if there is no probate to the said Will. By virtue of the Will, the substituted legal representative is only permitted to represent the estate of the deceased and the said legal representative cannot claim any independent right over the property of the deceased by such substitution. In the case of Pramodini Pattnaik (since dead) Vs Smt. Jayashree Tarai & another 2015 SCC OnLine Ori 491, it is held as under: that from the definition legal “11. It emanates representative is a person, who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. From the provisions of law as discussed above, it is to be seen as to whether the petitioner, who is undisputedly the executor of the Will dated 24.10.2005, can be treated to be the legal representative of the sole deceased appellant. It leaves no room for doubt that the legal representative is only entitled to continue the suit or appeal, as the case may be, on the basis of the claim laid by the deceased plaintiff and/or appellant. He is not entitled to plead contrary and obtain reliefs which the plaintiff himself/herself is not entitled to. He is also not entitled to claim independent title of his own in respect of the property contrary to what had been claimed in the suit. He only represents the estate of the deceased [See 51 (1981) CLT 42]. Thus, the term ‘legal representative’, as appears in Section 211 of the Act, cannot be given a different meaning. It is also not in conflict with the meaning as defined in Section 2(11) of CPC. All the properties of the testator covered under the testament vests with the executor, but the same does not give any right to him to establish his independent right letter of over administration, as required under Section 213 of the Act, is granted in his favour. He being an executor is only entitled to protect the estate and to continue the litigation. Mr. Dash placed reliance upon a decision of the Patna High Court in the case of Ramcharan Singh v. Mst. Dharohar Kuer, reported in AIR 1954 Pat, 175.” the property unless a probate or 6. In view of such submission, this Court is of the considered opinion that substitution of Kishore Chandra Singh Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 // 4 // as the legal representative of deceased Nava Kumari Devi is not illegal or unjustified. He can represent the estate of the deceased and continue the litigation to protect the interest of the deceased. It is, however observed that the genuineness of the Will can be ascertained only in a properly constituted proceeding under the Indian Succession Act. 7. In that view of the matter, I find that the impugned order under Annexure-2 has no bearing on the adjudication of the appeal. It is, however, observed that said Kishore Chandra Singh be allowed to represent the estate of the deceased and continue the litigation, i.e., T.A. No.12 of 1997 to protect the interest of said deceased Nava Kumari Devi. 8. With the aforesaid observation, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4