w w w . L a w y e r S e r v i c e s . i n



Kamalwati Gupta v/s Kanwari Lal Jain

    Civil Second Appeal No. 552 of 2009

    Decided On, 21 July 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ

    For the Appellant: G.P. Sharma, Counsel. For the Respondent: R.K. Agarwal, Senior Advocate with Alok Chaturvedi, Counsel.



Judgment Text

1. This second appeal was originally filed by plaintiff Smt. Kamalwati Gupta, who was landlord of the respondent, against judgment and decree passed by learned Additional District judge No.2, Jaipur City, Jaipur, reversing the judgment and decree of the Additional Civil Judge (Senior Division), whereby the suit for eviction filed by plaintiff-appellant was decreed on the ground of personal bona-fide necessity. During the pendency of appeal, the sole appellant died on 01.05.2010. An application under Order 22 Rule 3 of the CPC was moved by her counsel for impleadment of partnership firm M/s. Hotel Sweet Dream, of which the appellant was a partner with 33% share with her two sons as shareholders of half each of the remaining. The appellant executed a will on 12.02.2003 bequeathing the disputed shop, let out to defendant-respondent, in favour of the firm M/s Hotel Sweet Dream. The application was therefore made for substitution of original appellant by the said firm. Application was opposed by defendant-respondent and this court by order dated 27.01.2011, as per consent given by the parties, disposed of the application allowing said firm to argue the appeal on behalf of appellant, subject to legal objections to be raised by respondent including that the said firm is not legal representative of the decreased appellant. When the appeal was taken up for admission, an objection was raised by the counsel appearing for defendant-respondent as to maintainability of the appeal by said firm contending that it cannot be considered a legal representative of deceased-appellant.

2. The Supreme Court in Jalai Suguna (deceased) through L.Rs. v. Satya Sai Central Trust and Others , (2008) 8 SCC 521, held that when an application for bringing on record legal representatives of deceased is filed, the court should consider and decide such question first and until such decision, the persons claiming to be legal representatives have no right to represent the estate of the deceased nor prosecute or defend the case. Decision of this objection has thus become necessary before the matter is taken up for arguments on admission in view of Jalai Suguna, supr

Please Login To View The Full Judgment!

a, wherein the Supreme Court held that the court cannot postpone the decision of such question for being decided along with the appeal on merits, for that would leave the estate of the deceased unrepresented which, as held in that case, would amount to hearing of an appeal against a dead person, which was clearly impermissible in law and the judgment rendered therein was held to be nullity and inoperative. It is therefore that the matter has been heard on such objection.

3. Shri R.K. Agarwal, learned Senior Advocate, appearing on behalf of the defendant-respondent, argued that appellant has died leaving behind a will executed by her, wherein no one has been nominated as executor, therefore, even if there is no necessity of obtaining probate in the State of Rajasthan according to Section 211 of the Indian Succession Act, 1925, (for short, 'the Act of 1925'), letters of administration under Section 213, has to be necessarily obtained. It was argued that had the appellant died intestate, the property would have devolved upon her legal heirs as per the personal law i.e. Hindu Succession Act and in that event, possibly they could straightaway substitute the original appellant Smt. Kamalwati to prosecute the present appeal, to which course the defendant-respondent is not having any objection even now. However, if they want the firm to substitute the deceased-appellant as appellant on the strength of will, this can be done only within the four-corners of law according to provisions contained in the Indian Succession Act, 1925. On this point, Shri R.K. Agarwal, learned Senior Advocate, relied on a decision of the Supreme Court in FGP Limited v. Saleh Hooseini Doctor and another, (2009) 10 SCC 223, and argued that the Supreme Court in that case has drawn a fine distinction between Sections 211 and 213 of the Act of 1925. It was argued that if someone is nominated to act as executor and he accepts such office, the property vests in him and the executor derives his title from the will and becomes the representative of deceased even without obtaining probate. Grant of probate does not put any title on the executor. It just makes his title certain. However, under Section 213 of the Act of 1925, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will. Vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. Section 213 enjoins that rights under the will by an executor or a legatee cannot be established unless probate or letters of administration are obtained. This proposition of law has been laid down by the Supreme Court in the context of term "legal representative" as defined in Section 2(11) of the CPC. The appellant firm cannot therefore be treated as legal representative.

4. Learned Senior Counsel, Shri R.K. Agarwal, also relied on judgment of the Supreme Court in Crystal Developers v. Asha Lata Ghosh , (2005) 9 SCC 375, and argued that in the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated valid because an executor is creature of the will whereas an administrator derives his authority only from the date of the grant of letters of administration in his favour by the court.

5. Lastly, Shri R.K. Agarwal, learned Senior Advocate, relied on Section 236 of the Act of 1925, and argued that according to this provision, letters of administration cannot be granted to any association of individuals unless it is a company. Referring to certain observations of the Supreme Court in Commissioner of Income Tax, Madras and Another v. S.V. Angidi Chettiar, AIR 1962 SC 970, he argued that since a partnership firm has been held to be an association of individuals, it cannot substitute the original appellant because no letters of administration can possibly be issued in its favour and therefore it cannot be in law considered as legal representative of the appellant. This appeal be therefore dismissed as having abated.

6. Per contra, Shri G.P. Sharma, learned counsel for appellant, argued that objection raised by the respondent is wholly untenable because this second appeal, arises out of an eviction proceedings and was originally filed by the landlord and now the firm will merely substitute the original appellant Smt. Kamalwati as landlord of the respondent, who is a tenant. This is not a title dispute and there is no dispute inter-se amongst legal heirs of deceased appellant or members of partnership firm. The kind of objection that has been raised by defendant-respondent is not available to a tenant to be raised in eviction proceedings. It is argued that a firm can always be a 'legal representative' because it is a legal person. Learned counsel referred to definition of 'legal representative' given in Section 2(11) of the CPC and argued that according to that provision a legal representative 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. Since title of the disputed shop devolved upon the partnership firm, which is a legal person, there can be no objection to its substituting the original appellant.

7. Shri G.P. Sharma, learned counsel for the appellant, argued that while legal heirs are included within the broader term of legal representative but all legal representatives need not be legal heirs of a deceased. In this connection, learned counsel, while relying on judgment of the Supreme Court in Andhra Bank Limited v. R. Srinivasan and Others , AIR 1962 SC 232, has argued that even a legatee, who obtains a part of estate of deceased under a will, can be said to represent his/her estate and is therefore a legal representative under Section 2(11) of the CPC. Learned counsel has also relied on a constitution bench judgment of the Supreme Court in the same report viz. Commissioner of Income Tax, Madras and Another v. S.V. Angidi Chettiar, supra, and argued that a firm is manifestly a body of individuals and would therefore fall within definition of 'person' contained in Section 2(a) read with Section 3(42) of the General Clauses Act. Learned counsel, for this proposition of law, also relied on judgment of Supreme Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique , AIR 1989 SC 1589, and argued that definition of legal representative given in Section 2(11) of the CPC is inclusive in character and its scope is wide.

8. Shri G.P. Sharma, learned counsel for appellant, also relied on judgment of the Supreme Court in Suresh Kumar Bansal v. Krishna Bansal and Another , AIR 2010 SC 344, and argued that the Supreme Court in that case held that a legatee under a will, who intends to represent estate of a deceased testator, being an intermeddler with the estate of deceased testator, will be a legal representative within the meaning of Section 2(11) of the CPC for which it is not necessary in an eviction suit to decide whether a will on the basis of which substitution is sought for, is a suspicious one or that parties must be relegated to probate court for a decision whether the will was genuine or not. Learned counsel also relied on a judgment of the Supreme Court in Dashrath Rao Kate v. Brij Mohan Srivastava , AIR 2010 SC 897, for the same proposition of law. Learned counsel for appellant, Shri G.P. Sharma, further argued that enquiry under order 22 Rule 5 of the CPC is only of a summary nature and findings therein can not amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against a legatee. In that case too, tenant raised an objection that plaintiff-appellant, in spite of his being brought on record as legal representative of deceased owner on the basis of will, should be required to lead more evidence to prove the will in order to prove that he had become owner on the basis of testamentary succession of concerned house. It was held that a tenant could not have challenged the will at all.

9. Lastly learned counsel also relied on the judgment of this court in Sultan Singh v. Brijraj Singh , 1997 (1) WLC (Raj.) 368, and argued that in so far as State of Rajasthan is concerned, it has been held in that judgment on the basis of authoritative pronouncement of earlier division bench judgment in Mst. Jatav v. Ram Swarup , 1960 RLW 685, that obtaining probate of a will in the State of Rajasthan is not necessary. It is therefore, prayed that the objection raised by the appellant may be rejected.

10. I have given my anxious and thoughtful consideration to rival submissions and respectfully studied the cited precedents.

11. There can be no manner of doubt that definition of legal representatives as given in Section 2(11) of the CPC is an inclusive definition as held by the Supreme Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, supra. Its scope is wide and it is not confined to legal heirs only, it instead stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons, who represent the estate even without title either as executors or administrators in possession of the estate of a deceased. This proposition has been further reiterated by the Supreme Court in Chiranjilal Shrilal Goenka v. Jasjit Singh and others , (1993) 2 SCC 507, wherein the Supreme Court held that term "legal representative" is almost always held to be synonymous with term "personal representative". The term is inclusive of not only the heirs but also intermeddlers of the estate of the deceased as well as a person, who in law represents the estate of the deceased. It is not necessarily confined to heirs alone. The executor, administrators, assigns or persons acquiring interest by devolution under Order 22 Rule 10 or legatee under a will, are legal representatives. Under the personal law of Hindu Succession Act also, not only that class one heirs under Section 8 read with Schedule of the Act but also the executor of the will of the deceased testator are legal representatives within the meaning of Section 2(11) of the CPC.

12. It is trite law that tenant of a testator cannot be said to have any caveatable interest envisaged under Section 283 and 284 of the Indian Succession Act against any of her legal heirs including the firm. Reference in this connection may be made to the judgment of the Supreme Court in Krishna Kumar Birla v. Rajendra Singh Lodha , (2008) 4 SCC 300, wherein it has been held that a tenant occupying a premise belonging to a testator, does not have any caveatable interest. Therefore, even a legatee under a will, upon whom the title of certain property of the testator devolves, is also entitled to represent his estate in the capacity of legal representative under Section 2(11) of the CPC, be it an individual or a legal person.

13. Contention of respondent that since the applicant firm has not obtained letters of administration and till that is obtained, it cannot be considered a legal representative and pursue this appeal, is noticed to be only rejected because such objection is not available to a tenant, who is wholly stranger, therefore incompetent to set up a rival claim against a legatee or any other legal heir of the testator.

14. The Supreme Court in Dashrath Rao Kate v. Brij Mohan Srivastava, supra, was considering a similar objection by the tenant that the will was a false document in which a summary enquiry was held under Order 22 Rule 5 of the CPC and legal representatives of the deceased on the basis of a will were brought on record and eviction suit was decreed by the trial court. The High Court, in appeal, accepted the plea of tenant holding that the substituted plaintiff should have led more evidence to prove the will in order to prove that he had become owner on the basis of testamentary succession of the concerned house. The High Court took the view that since the inquiry under Order 22 Rule 5 CPC was of the summary nature and was limited only to the determination of the right of the appellant to be impleaded as the legal representatives, any finding given in that inquiry would not be binding on the defendant at the final stage of the suit and the plaintiff would have to again prove the will in order to establish his ownership vis-a-vis tenanted premises. Reversing that judgment, the Supreme Court held that in so far as eviction suit was concerned, the question regarding legatee's right to represent was closed, since there was no challenge by anybody to his status as a legatee and this issue could not be decided in those proceedings because tenant could not have at all challenged the will and that he was utter outsider so he did not have a right to claim any rival interest against plaintiff. Being an outsider, he had no interest in the property as owner. The appeal of the landlord was allowed with costs of Rs.25,000/-.

15. Similar objection of tenant was rejected by the Supreme Court in Suresh Kumar Bansal v. Krishna Bansal, supra, holding that it is not necessary in an eviction suit to decide whether the will on the basis of which substitution is sought for is suspicious one or that parties should be relegated to the probate court for a decision whether the will was genuine or not.

16. The Supreme Court in Jalai Suguna, supra, held that a legatee under a will, who intends to represent the estate of the deceased being intermeddler with the estate of the deceased, would be a legal representative. It was held that determination as to who is legal representative under order 22 Rule 5 of the CPC will of course be with the limited purpose of representation of the estate of the deceased, for adjudication of that case. Determination of such limited purpose will not confer on the person held to be legal representative, any right to the property which is the subject matter of the suit vis-a-vis other rival claimants to the estate of the deceased. The proprietary rights will have to be determined by way of separate suit.

17. There is another factor which needs to be mentioned which is that as per definition of Section 3(iii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which is in para materia with definition of the "landlord" as given in Section 2(c) of the Rajasthan Rent Control Act, 2001, a "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant. The suit for eviction thus would be maintainable by a landlord and landlord as per the scheme of the old Act as well as new Act need not necessarily be title holder of the let out premises. A somewhat similar issue arose before Division Bench of this Court in Bulaki Das v. Banshidhar Parwal and Others - WLC 2008 (4) 1, in which case a firm, which had three partners, was landlord, one of whom retired and thus there remained only two partners in the firm, Eventually the firm was dissolved and shop came to the share of third partner. The argument was raised by the tenant that it should be construed as a fresh tenancy from the date the third partner has taken over as owner of the let out premises and on that basis revision of rent as per provisions of Section 6(1)(b) of the Act of 2001, should take place. Considering that argument, the Division Bench of this Court, in Para 13, observed as under:-

"It would thus be evident from the definition of the landlord that the landlord need not necessarily be owner or title holder of the premises let out to the tenant. Apart from the fact that the point of time since when the tenant has been continuing in possession of the let out premises is material for deciding the question from where the tenancy commenced, the change in the composition of the firm and eventually, allocation of the shop to the share of respondent No.1 pursuant to retirement deed dated 1st May, 1993 would not make any difference in so far as the status of the appellant as tenant is concerned who has been continuing as tenant in the let out premises from the date of commencement of tenancy i.e. from 1st December, 1974. He was always and has always been under a legal obligation to make payment of the rent to the landlord, whether the firm having three partners or thereafter, two partners, and finally thereafter, only one of them individually, who stood retired from the firm, as landlord."The Supreme Court in E. Parashuraman v. V. Doraiswamy, (2006) 1 SCC 658, held that in an eviction proceeding under Karnataka Rent Control Act, 1961, at the instance of landlord against tenant, a landlord need not be the owner of the premises, therefore, the question, whether or not the landlord had failed to inherit absolute title of the suit premises, was irrelevant.

18. The Supreme Court in Binapanikar Chowdhury v. Sri Satyabrata Basu and Another, (2006) 10 SCC 442, held that in an eviction proceeding under Karnataka Rent Control Act, 1961, at the instance of landlord against tenant, a landlord need not be the owner of the premises, therefore, the question, whether or not the landlord had failed to inherit absolute title of the suit premises, was irrelevant.

19. The Supreme Court in Binapanikar Chowdhury v. Sri Satyabrata Basu and another, (2006) 10 SCC 442, held that where testator of the will himself had filed a suit seeking declaration and consequential relief and he dies during pendency of the suit, the executor or legatee under his will can come on record as legal representative of the deceased-plaintiff under Order 22 Rule 3 of the CPC and prosecute the suit. Section 213 of the Indian Succession Act does not come in the way of executor or a legatee being so substituted in place of deceased plaintiff, even though at the stage of such substitution, probate or letters of administration has not been granted by the competent court. Since that was a matter arising out of a suit for declaration of title, in respect of suit property and recovery of possession and injunction which the plaintiff claimed she never sold to the defendant, the Supreme Court directed that the trial court may proceed to hear and decide the suit. If the suit was dismissed, nothing further would be required, however if it was decreed, the trial court should make it clear that judgment and decree will come into effect only on the substituted-plaintiff obtaining and producing the probate of the will, and till such time the decree should not be given effect to. That arrangement may not be necessary in the present case in view of the fact that no rival claim has been set up by the defendant-respondent, who is a tenant and who, being a tenant, is stranger to title and cannot even otherwise set up any such claim.

20. In view of above, the objection raised by the respondent is overruled and is hereby rejected. The appeal be listed for admission.

Objections rejected.

O R