Case: Varadaranjan vs. Kanakavalli
Case no.: Civil Appeal no. 5673/2009
Judgment by: J. Hemant Gupta
Order 22 Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to a suspension or termination of proceedings do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding. In India abatement of proceedings is governed by Order XXII of the Code of Civil Procedure. Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives provided that the cause of action remains the same in the revived suit.
In this case, Umadevi filed a suit for partition and separate possession in respect of the suit property as the successor-in-interest of her deceased husband. The suit was decreed on 7th April 1989 and in 1999 that Umadevi sought execution of the decree passed but she died on 22nd July 1999. The appellant who is the son of Umadevi’s younger sister applied to execute the decree as her legal representative based on a Will dated 16th July 1999 which was allowed by the Executing Court on 29th March 2004. Thereafter the appellant applied Order XXI Rule 35 (execution of a decree of immovable property) of the Code for eviction of the respondent and to deliver vacant possession of the premises.
To this, the respondents raised a question on the genuinity of the will. They said that the Will is forged and that the son of a sister is not a legal heir as per Section 15 of the Hindu Succession Act, 1956. The appellant presented 2 witnesses who were the attesting witness and scribe of the will who had deposed the execution of the Will.
The Executing Court held that the appellant as a legal representative of the deceased Umadevi is entitled to execute the decree on the point that the son of the first wife of her husband did not give her food, cloth, and shelter and did not take care of her, the deceased Umadevi had gone to the house of her younger sister and stayed along with her and since her health condition got deteriorated, she had executed a Will in favor of the son of her younger sister namely Varadarajan and these facts are found to be true.
This order was challenged by the judgment debtor by way of a revision under Section 115 of the Code. High Court found that the execution of the Will was surrounded by suspicious circumstances. High Court was of the view that as per the appellant, the decree-holder, Umadevi, was driven out of her house by her stepson and was staying with her younger sister for nearly 20 years but the execution of the Will at the last moment is a suspicious circumstance.
High Court held that the execution of the Will has not been proved and it is not genuine, consequently, the legatee under the said will cannot become a legal representative in order to maintain the execution petition in the place of the decree-holder, i.e. the testatrix. This order of the review petition by the High Court is challenged in this case.
SC in determining the genuinity of the Will and legal representative held that-
- The appellant claimed to be the legal representative of Umadevi based on the Will executed by her. He has produced an attesting witness and the scribe of the Will who have duly deposed the execution of the Will by Umadevi in favor of the appellant.
- The appellant was the only claimant of the property as per the Will of the deceased and no rival claimant was claiming to be the legal representative of the deceased decree-holder.
- Order of the HC was held to be unjustifiable because it was not under Order XXII Rule 5 of the Code.
- Order XXII of the Code applies to the pending proceedings in a suit. But the conflicting claims of legal representatives can be decided in execution proceedings given in the principles of Rule 5 of Order XXII.
- Since the appellant is the sole claimant to the estate of the deceased based on Will and the Executing Court has also found that the appellant is the legal representative of the deceased and is competent to execute the decree. As per the said fact, the appellant is the legal representative and is entitled to execute the decree and to take it to its logical end.
Edited by Vartika Gajendra Singh
Approved & Published – Sakshi Raje