Civil Appeal No. 177 of 2001 · High Court · 2025

possession of Mr. H.N. Gargary. With regard to property in question, three separate suits were filed with Suit No. 354 of 1983 being filed by Mr. H.N. Gargary against the Ram Krishna Mission (opposite party no. 4 herein) for cancellation of registered gift deed dated 07.02.1981 and the registered correction deed dated 26.09.198 allegedly executed by Mr. H.N. Gargary in favour of the Mission.

5. The second suit bearing Regular Suit No. 106 of 1984 was instituted by one Ms. Jhutika Chatterji for declaration of title on the basis of a will deed dated 04.04.1976 allegedly executed by Mr. H.N. Gargary in her favour which was registered posthumously. The defendants in this suit were wife, son and daughter of Mr. H.N. Gargary, who are arrayed as opposite parties no.1, 2 and 3 in the present revision.

6. The third suit bearing Regular Suit No. 150 of 1993 was instituted by the Ram Krishna Mission for arrears of rent and ejectment of sole defendant, Ms. Jhutika Chatterji. The basis of claim was the registered gift deed dated 07.02.1981 and the registered correction deed dated 26.09.1981.

7. It is submitted that during pendency of Regular Suit No. 354 of 1983, Mr. H.N. Gargary passed away on 04.12.1983 and was substituted by Ms. Jhutika Chatterji claiming herself to be the sister-in-law of Mr. H.N. Gargary on the basis of will deed dated 04.04.1976. The wife, son and daughter of Mr. H.N. Gargary were arrayed as defendants in the aforesaid proceedings.

8. The three suits were thereafter consolidated and were decided by means of common judgment and order dated 31.07.2001 whereby Suits No. 354 of 1983 and 106 of 1984 were dismissed while decreeing Regular Suit No. 150 of 1993.

9. Against the aforesaid judgment, three separate first appeals bearing No. 177 of 2001, 178 of 2003 and 179 of 2001 were preferred and in all the appeals, the sole appellant was Ms. Jhutika Chatterji. The first appeals are said to be yet pending.

10. It is submitted that during pendency of the aforesaid first appeals, the sole appellant Ms. Jhutika Chatterji passed away on

12.06.2006 whereafter revisionists herein, Mr. Sanjay Kumar and Mr. Vijay Kumar filed their substitution application on the basis of registered adoption deed and registered will deed dated

17.02.2005 said to have been executed by Ms. Jhutika Chatterji in their favour.

11. The said substitution application was allowed by means of order dated 28.07.2007 which was unchallenged.

12. Subsequently the revisionists herein filed Application No. 201 in terms of the provisions indicated hereinabove which has been rejected by means of impugned order dated 04.09.2015 leading to filing of the present revision.

13. Learned counsel for revisionists submits that as has been indicated in Application No. 201, the right of revisionists has been objected to by opposite party no.4 and therefore the aforesaid application was preferred under Order 22 Rule 5 of the Code requiring determination of the aspect of legal representative.

14. It is submitted that whenever a question arises pertaining to a particular person being a legal representative of the deceased, the same has to be determined by the Court after inquiry and parties are required to be permitted to lead evidence, which shall form a basis for recording of finding in terms of Order 22 Rule 5 of the Code. It is submitted that it is the ultimate interest of legal representatives and in the instant case the question regarding determination of legal heirs of the deceased appellant are involved and is an important aspect which has been ignored by the first appellate Court while rejecting the application. It is further submitted that the first appellate Court has erred in rejecting the application since it would amount to providing a finding without giving proper opportunity to newly substituted legal heirs to adduce their oral and documentary evidence with regard to their right to continue the suit.

15. Learned counsel has placed reliance on the following judgments in the case of Mahendra Kumar versus Lalchand and another reported in AIR 2001 Supreme Court 807, Muniappa Nadar and others versus Doraipandi Nadar and another reported in AIR 1988 Madras 117 and Suraj Mani and another versus Kishori Lal reported in AIR 1976 Himachal Pradesh 74.

16. Learned counsel for opposite party no. 4 has refuted submissions advanced by learned counsel for revisionists with the submission that once the application for substitution preferred by revisionists had already been allowed, there was no occasion for any further order being passed in terms of Order 22 Rule 5 of the Code particularly since title of revisionists cannot be decided in terms of Order 22 Rule 5 of the Code, which is only for purpose of continuation of suit proceedings. It is further submitted that in case the revisionists require an adjudication with regard to their title over suit property, they would be required to file a separate suit for the same and recourse cannot be taken to provisions of Order 22 Rule 5 of the Code for the said purpose.

17. He has placed reliance on the following judgments in the case of Murti Bhagwan Sri Laxmi Narain Ji and another versus Sri Sudarshan Dharam Setu Samit and others reported in 2012 AIR CC 1298, Swami Vedvyasanand Ji Maharaj (D) Thr Lrs. versus Shyam Lal Chauhan and others reported in 2024 INSC 352 and Dashrath Rao Kate versus Brij Mohan Srivastava reported in 2010 ICC 1.

18. Upon considerations of submissions advanced by learned counsel for parties and perusal of material on record, the factual aspects as indicated hereinabove are undisputed as well as the fact that substitution application preferred in terms of Order 22 Rule 3 of the Code by revisionist at the first appellate stage was allowed by means of order dated 28.04.2007 and remains unchallenged. The basic purpose of allowing substitution application under Order 22 of the Code is for continuation of suit proceedings in order to arrive at an adjudication without abatement of the proceedings.

19. By means of impugned order, the aforesaid application has been rejected primarily on the ground that the right and title of original appellant, Ms. Jhutika Chatterjee has already been determined and revisionists would only step into her shoes without any independent adjudication of their title.

20. It is evident that the application preferred by revisionists is under provisions of Order 22 Rule 3 (1) and Order 22 Rule 11 read Order 22 Rule 5 with Section 151 CPC.

21. Order 22 Rule 3 prescribes procedure in case of death of one of several plaintiffs or of sole plaintiff with Order 22 Rule 11 merely indicating that provisions of Order 22 would be applicable upon appellate proceedings as well. The provisions of Order 22 Rule 5 of the Code pertains to determination of question as to legal representative.

22. It is noticeable that earlier application for substitution preferred by revisionists under Order 22 Rule 3 (1) of the Code has already been allowed by means of order dated 28.07.2007 and as such the present application can be deemed only for the purpose of Order 22 Rule 5 of the Code read with Section 151 CPC.

23. The provisions of Order 22 Rule 5 of the Code are as follows:- "5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]"

24. The aforesaid provisions of Order 22 Rule 5 of the Code are applicable where a question arises as to whether any person is or is not the Legal Representative of the deceased plaintiff or a deceased defendant. The proviso thereto indicates that once such a question arises, it is the discretion of appellate Court to direct any sub-ordinate Court to try the question and return the records together with evidence whereafter the appellate Court may take the same into consideration in determining the question.

25. Thus, it is evident that for purposes of applicability of Order 22 Rule 5 of the Code, the question as to whether any person is or is not the legal representative of the deceased is primarily to be required to be brought into play.

26. In the considered opinion of this Court, the provisions of Order 22 Rule 5 of the Code would be particularly inapplicable once the substitution application has already been allowed on

28.07.2007 due to which no question remained with regard to continuation of appellate proceedings at the instance of revisionists as legal representatives of the deceased appellant. This is moreso since there is no one else setting up their case as legal representatives of the sole appellant.

27. So far as judgments relied upon by learned counsel for revisionists are concerned, judgment of Mahendra Kumar (supra) clearly is inapplicable for the very facts since there the aspect of legal representative of the deceased was contested with two claimants having filed separate applications whereas in the present case, there is no dispute with regard to right being claimed by revisionists as legal representative of the deceased.

28. In the case of Siraj Mani (supra), it has been held that the definition of legal representative as indicated in Section 2 (11) of the Code is very wide and would include a person who seeks to represent the state of a deceased person. However, the said judgment also enunciates that substitution does not make the legal representative an heir to the property of deceased and that provisions of Order 22 Rule 5 of the Code must be limited to the purpose of carrying on the suit and cannot have the effect of conferring any right or ownership to property.

29. The case of Muiappa Nadar (supra) relied upon by learned counsel for revisionists also is on the proposition that inquiry and adjudication under Order 22 Rule 5 of the Code is only for limited purpose of enabling the legal representative to carry on the suit but will not have effect of conferring rights on the property in favour of the legatee of the will. It has also been held that the inquiry under Order 22 Rule 5 of the Code is summary in character and would not operate as res judicata in subsequent proceedings when a question arises with regard to succession of deceased.

30. From a perusal of the aforesaid judgments, thus, it is evident that enunciation of law therein is clearly against the submissions made by learned counsel for revisionists. The aforesaid judgments are an exposition for the proposition that provisions of Order 22 Rule 5 of the Code are only for the purposes of continuation of suit proceedings so that they may not abate and do not confer any right or title over the property in question for such separate suit proceedings are required to be filed by the legal representatives.

31. The judgments relied upon by learned counsel for opposite parties are also on the same aspect as has been held particularly by Supreme Court in the case of Swami Vedvyasanand Ji Maharaj (Supra) and in Dashrath Rao Kate (supra).

32. In view of aforesaid discussions, this Court does not find any occasion to interfere with order impugned.

33. The revision, therefore, being devoid of merit is dismissed. Parties to bear their own cost. Order Date :- 19.2.2025 Satish SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench

possession of Mr. H.N. Gargary. With regard to property in question, three separate suits were filed with Suit No. 354 of 1983 being filed by Mr. H.N. Gargary against the Ram Krishna Mission (opposite party no. 4 herein) for cancellation of registered gift deed dated 07.02.1981 and the registered correction deed dated 26.09.198 allegedly executed by Mr. H.N. Gargary in favour of the Mission.

5. The second suit bearing Regular Suit No. 106 of 1984 was instituted by one Ms. Jhutika Chatterji for declaration of title on the basis of a will deed dated 04.04.1976 allegedly executed by Mr. H.N. Gargary in her favour which was registered posthumously. The defendants in this suit were wife, son and daughter of Mr. H.N. Gargary, who are arrayed as opposite parties no.1, 2 and 3 in the present revision.

6. The third suit bearing Regular Suit No. 150 of 1993 was instituted by the Ram Krishna Mission for arrears of rent and ejectment of sole defendant, Ms. Jhutika Chatterji. The basis of claim was the registered gift deed dated 07.02.1981 and the registered correction deed dated 26.09.1981.

7. It is submitted that during pendency of Regular Suit No. 354 of 1983, Mr. H.N. Gargary passed away on 04.12.1983 and was substituted by Ms. Jhutika Chatterji claiming herself to be the sister-in-law of Mr. H.N. Gargary on the basis of will deed dated 04.04.1976. The wife, son and daughter of Mr. H.N. Gargary were arrayed as defendants in the aforesaid proceedings.

8. The three suits were thereafter consolidated and were decided by means of common judgment and order dated 31.07.2001 whereby Suits No. 354 of 1983 and 106 of 1984 were dismissed while decreeing Regular Suit No. 150 of 1993.

9. Against the aforesaid judgment, three separate first appeals bearing No. 177 of 2001, 178 of 2003 and 179 of 2001 were preferred and in all the appeals, the sole appellant was Ms. Jhutika Chatterji. The first appeals are said to be yet pending.

10. It is submitted that during pendency of the aforesaid first appeals, the sole appellant Ms. Jhutika Chatterji passed away on

12.06.2006 whereafter revisionists herein, Mr. Sanjay Kumar and Mr. Vijay Kumar filed their substitution application on the basis of registered adoption deed and registered will deed dated

17.02.2005 said to have been executed by Ms. Jhutika Chatterji in their favour.

11. The said substitution application was allowed by means of order dated 28.07.2007 which was unchallenged.

12. Subsequently the revisionists herein filed Application No. 201 in terms of the provisions indicated hereinabove which has been rejected by means of impugned order dated 04.09.2015 leading to filing of the present revision.

13. Learned counsel for revisionists submits that as has been indicated in Application No. 201, the right of revisionists has been objected to by opposite party no.4 and therefore the aforesaid application was preferred under Order 22 Rule 5 of the Code requiring determination of the aspect of legal representative.

14. It is submitted that whenever a question arises pertaining to a particular person being a legal representative of the deceased, the same has to be determined by the Court after inquiry and parties are required to be permitted to lead evidence, which shall form a basis for recording of finding in terms of Order 22 Rule 5 of the Code. It is submitted that it is the ultimate interest of legal representatives and in the instant case the question regarding determination of legal heirs of the deceased appellant are involved and is an important aspect which has been ignored by the first appellate Court while rejecting the application. It is further submitted that the first appellate Court has erred in rejecting the application since it would amount to providing a finding without giving proper opportunity to newly substituted legal heirs to adduce their oral and documentary evidence with regard to their right to continue the suit.

15. Learned counsel has placed reliance on the following judgments in the case of Mahendra Kumar versus Lalchand and another reported in AIR 2001 Supreme Court 807, Muniappa Nadar and others versus Doraipandi Nadar and another reported in AIR 1988 Madras 117 and Suraj Mani and another versus Kishori Lal reported in AIR 1976 Himachal Pradesh 74.

16. Learned counsel for opposite party no. 4 has refuted submissions advanced by learned counsel for revisionists with the submission that once the application for substitution preferred by revisionists had already been allowed, there was no occasion for any further order being passed in terms of Order 22 Rule 5 of the Code particularly since title of revisionists cannot be decided in terms of Order 22 Rule 5 of the Code, which is only for purpose of continuation of suit proceedings. It is further submitted that in case the revisionists require an adjudication with regard to their title over suit property, they would be required to file a separate suit for the same and recourse cannot be taken to provisions of Order 22 Rule 5 of the Code for the said purpose.

17. He has placed reliance on the following judgments in the case of Murti Bhagwan Sri Laxmi Narain Ji and another versus Sri Sudarshan Dharam Setu Samit and others reported in 2012 AIR CC 1298, Swami Vedvyasanand Ji Maharaj (D) Thr Lrs. versus Shyam Lal Chauhan and others reported in 2024 INSC 352 and Dashrath Rao Kate versus Brij Mohan Srivastava reported in 2010 ICC 1.

18. Upon considerations of submissions advanced by learned counsel for parties and perusal of material on record, the factual aspects as indicated hereinabove are undisputed as well as the fact that substitution application preferred in terms of Order 22 Rule 3 of the Code by revisionist at the first appellate stage was allowed by means of order dated 28.04.2007 and remains unchallenged. The basic purpose of allowing substitution application under Order 22 of the Code is for continuation of suit proceedings in order to arrive at an adjudication without abatement of the proceedings.

19. By means of impugned order, the aforesaid application has been rejected primarily on the ground that the right and title of original appellant, Ms. Jhutika Chatterjee has already been determined and revisionists would only step into her shoes without any independent adjudication of their title.

20. It is evident that the application preferred by revisionists is under provisions of Order 22 Rule 3 (1) and Order 22 Rule 11 read Order 22 Rule 5 with Section 151 CPC.

21. Order 22 Rule 3 prescribes procedure in case of death of one of several plaintiffs or of sole plaintiff with Order 22 Rule 11 merely indicating that provisions of Order 22 would be applicable upon appellate proceedings as well. The provisions of Order 22 Rule 5 of the Code pertains to determination of question as to legal representative.

22. It is noticeable that earlier application for substitution preferred by revisionists under Order 22 Rule 3 (1) of the Code has already been allowed by means of order dated 28.07.2007 and as such the present application can be deemed only for the purpose of Order 22 Rule 5 of the Code read with Section 151 CPC.

23. The provisions of Order 22 Rule 5 of the Code are as follows:- "5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]"

24. The aforesaid provisions of Order 22 Rule 5 of the Code are applicable where a question arises as to whether any person is or is not the Legal Representative of the deceased plaintiff or a deceased defendant. The proviso thereto indicates that once such a question arises, it is the discretion of appellate Court to direct any sub-ordinate Court to try the question and return the records together with evidence whereafter the appellate Court may take the same into consideration in determining the question.

25. Thus, it is evident that for purposes of applicability of Order 22 Rule 5 of the Code, the question as to whether any person is or is not the legal representative of the deceased is primarily to be required to be brought into play.

26. In the considered opinion of this Court, the provisions of Order 22 Rule 5 of the Code would be particularly inapplicable once the substitution application has already been allowed on

28.07.2007 due to which no question remained with regard to continuation of appellate proceedings at the instance of revisionists as legal representatives of the deceased appellant. This is moreso since there is no one else setting up their case as legal representatives of the sole appellant.

27. So far as judgments relied upon by learned counsel for revisionists are concerned, judgment of Mahendra Kumar (supra) clearly is inapplicable for the very facts since there the aspect of legal representative of the deceased was contested with two claimants having filed separate applications whereas in the present case, there is no dispute with regard to right being claimed by revisionists as legal representative of the deceased.

28. In the case of Siraj Mani (supra), it has been held that the definition of legal representative as indicated in Section 2 (11) of the Code is very wide and would include a person who seeks to represent the state of a deceased person. However, the said judgment also enunciates that substitution does not make the legal representative an heir to the property of deceased and that provisions of Order 22 Rule 5 of the Code must be limited to the purpose of carrying on the suit and cannot have the effect of conferring any right or ownership to property.

29. The case of Muiappa Nadar (supra) relied upon by learned counsel for revisionists also is on the proposition that inquiry and adjudication under Order 22 Rule 5 of the Code is only for limited purpose of enabling the legal representative to carry on the suit but will not have effect of conferring rights on the property in favour of the legatee of the will. It has also been held that the inquiry under Order 22 Rule 5 of the Code is summary in character and would not operate as res judicata in subsequent proceedings when a question arises with regard to succession of deceased.

30. From a perusal of the aforesaid judgments, thus, it is evident that enunciation of law therein is clearly against the submissions made by learned counsel for revisionists. The aforesaid judgments are an exposition for the proposition that provisions of Order 22 Rule 5 of the Code are only for the purposes of continuation of suit proceedings so that they may not abate and do not confer any right or title over the property in question for such separate suit proceedings are required to be filed by the legal representatives.

31. The judgments relied upon by learned counsel for opposite parties are also on the same aspect as has been held particularly by Supreme Court in the case of Swami Vedvyasanand Ji Maharaj (Supra) and in Dashrath Rao Kate (supra).

32. In view of aforesaid discussions, this Court does not find any occasion to interfere with order impugned.

33. The revision, therefore, being devoid of merit is dismissed. Parties to bear their own cost. Order Date :- 19.2.2025 Satish SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench