Madan Lal Butail Vs Pyare Lal Gupta and Others

@JUDGMENTTAG-ORDER

S.N. Phukan, C.J.@mdashThis revision petition is directed against the order dated 28-11-1994 passed by Sub-Judge 1st Class, Court No. 111. Shimla, in case No. 54/6 of 1988, allowing the objection filed on behalf of the objector and dismissing the execution petition filed by the petitioner decree-holder. The objection was filed u/s 214 of the Indian Succession Act, 1925 read with Sections 48.50.5l and Order 21. Rules 10 and 97 to 101 of the Civil Procedure Code.

2. Briefly staled, the facts are as follows :

Late Roshan Lal, father of the objector filed an eviction petition against Sh. Piare Lal respondent herein, which was allowed by the Renl Controller vide order daled 2-6-1980. Roshan Lal died on 14-12-1984. He married twice. Shri Madan Lal the present petitioner is the son by his first wife. He died leaving behind his seeond wife Smt. Kaushalya, one son Sh. Anil Butail and one daughter Dr. Nirupama Rohtagi.

3. Sh. Madan Lal filed the execution petition, which is registered as ease No. 54-6 of 1988. In the said execution petition, he alone filed the "petition and the present objection was filed by Dr. Nirupama Rohtagi and Sh. Anil Butail, daughter and son of late Roshan Lal, which was allowed by the impugned order, as stated above. It may be stated that Madan Lal claimed that a Will was executed by late Roshan Lal a copy of which is available in the records of case No. 9610 of 1987 before Sub-Judge (3Z), Shimla. In the said Will, he mentioned that his wife Smt. Kaushlya Devi deserted him in Oct. 1965 and never joined him. It was also staled that he provided all the opportunities to his son Sh. Anil Butial and daughter Dr. Nirupama Rohtagi to receive highly expensive education and they have settled in U.S. A. but he could not give similar privilege to his son Sh. Madan Lal who has settled in Shimla. Therefore, he debarred his second wife from claiming his properly. For this will, there is a dispute between the legal heirs of late Roshan Lal and the said Civil Suit is pending.

4. Heard learned counsel for the parties.

5. According to the learned trial Court Shri Piare Lal was not in possession of the properly in question, therefore, it implies that he had handed over the possession to the objectors and the objectors in turn had created tenancy in respect of" the suit property in favour of Shri Jagdish Lal through their attorney Smt. C. Kanta Sadhu. It was also held that Sh. Madan Lal decree-holder, who Tiled the execution petition, has not produced the Will and the objectors are also legal heirs of late Roshan Lal and as co-owners, they arc to be held to be in possession of the suit property in question. Il was also held that the possession of the objectors as co-owners cannot be held to be unlawful against Sh. Madan Lal, decree-holder and their possession cannot be allowed to be disturbed,

6. There is no dispute that Madan Lal is one of the legal heirs of late Sh. Roshan Lal. Therefore, he cannot be deprived as co-owner with the objectors, even if the Will was not produced. About the Will a Civil Suit is pending and is not necessary to express any opinion. However, in the event Madan Lal succeeds, he will be the full owner of the suit properly to the exclusion of other legal heirs.

7. From the perusal of the record. I find that Smt. Kakushalya Devi, second wife of late Roshan Lal. filed a similar objection, which was registered as case No. 96/10 of 1987, which was dismissed by order dated 6-10-1988 by the learned Sub-Judge 1st Class (3). Shimla and the said order was marked as Ex. DHL This order has elaborately dealt with all the aspects of the mailer. The Court held that execution of the decree by Madan Lal, who is admittedly one of the legal heirs of the estate of Roshan Lal along with other legal heirs will be for the benefit of the Estate and it will not confer any exclusive title over Madan Lal regarding the suit property and will also not exclude the other legal heirs from claiming any interest in the suit property. Therefore, mainly on this ground the objection filed by the second wife of late Roshan Lal was dismissed.

8. Il has been urged that the present petition has been filed by the son and daughter mainly u/s 124 of the Indian Succession Act. From the personal of the impugned order. I find that the questions raised were similar with the earlier order, passes and therefore, the learned court below erred in law in passing the impugned order 28-11-1994 ignoring the earlier order .

9. From the record of this case. 1 find that Smt. Kaushalyaa Devi Civil Suit No. 43 of 1986. pending before this Court filed an application, which was registered as OMP No. 268/86. Ex. DH 2. is the order dated 5-8-1987 passed in the said application. From the order. 1 find that Smt. Kaushlya Devi filed the application under Order 40,, Rule 1 read with Section 151 C.P.C. praying for appointment of Receiver during the pendency of the suit. Learned single Judge refused to disturb the status quo and rejected the application on the ground that if Smt. Kaushlaya Devi plaintiff succeeds, the suit properly would be ultimately partitioned and she along with her son and daughter -- defendants 2 and 3 would get their dues. Regarding prayer of rendition of accounts of joint properties, :it was held the learned single Judge that in ease she succeeds, she would be entitled to obtain a decree for recovery of such amount as would be payable to her by Madan Lal defendant No. 1. This position was not considered at all by the learned executing court while passing the impugned order.

10. The attention of'' this court has also been drawn to the Rent Note Ex. OW 3. which is available in the record of case No. 54/6 of 1988. In this Rent Note Sh. Madan Lal. who is admittedly a co-sharer even if the Will is in his favour is not taken into consideration as it is sub-judice is not a party therefore, this Rent Note cannot Create a valid tenancy.

11. Reliance has ''been placed on a dccison of'' Gujarat High Court in Representatives of Harmanbhai Lallubhai Lalitbhai Gordhanbhai @ Karchiya Vs. Maganbhai Mathurabhai Patel and Others, But this decision is not applicable to the case in hand as the ratio decided is that iris not necessary for the legal representatives of the deceased decree-holder to obtain probate or letter of administration or succession certificate for continuing the execution proceedings but it is necessary to initiate execution proceedings in the case in hand. This point cannot be considered as the subject mutter of the Will is sub-judice and the claim of Shri Madan Lal can be that of a co-owner only.

12. In a decision of this Court in Smt. Ram Murti Devi and Others Vs. Ralla Ram Tulsi Ram and Another, similar view was expressed regarding continuance of an execution proceeding after the death of the decree-holder by his legal representative.

13. In Akula Rangappa (Died by L.Rs.) Akula Satyamaiah and Others Vs. Narayana Swamy, the view taken is on the same line as the view taken by this Court as well as Gujarat High Court. For the reasons stated in respect of the ratio laid down by the Gujarat High court, these two decisions are also not applicable tot he case in hand.

14. For the reasons stated above, the impugned order is quahsed and the learned executing Court is directed to proceed with the execution proceedings.