REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8271 OF 2009 (Arising out of SLP©No.7687 of 2006)

Suresh Kumar Bansal             …Appellant

VERSUS

Krishna Bansal & Anr.                      …Respondents

J U D G M E N T

TARUN CHATTERJEE,J.

1.  Leave granted.

2. This appeal by special leave arises from the judgment  

and  order  dated  18th of  January,  2006  of  the  High  

Court of Madhya Pradesh at Gwalior in Writ Petition  

No.261  of  2006  dismissing  the  writ  petition  and  

affirming  the  order  dated  17th of  November,  2005  

passed by the 8th Civil Judge, Class I, Gwalior in Civil  

Suit No. 40-A/2004.   

3.  One  Shri  Mohanlal  Bansal  (since  deceased)  as  a  

plaintiff had instituted a suit for eviction and recovery  

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of  arrears  of  rent  against  one  Shri  Bhogiram (since  

deceased)  in  respect  of  a  shop  room  situated  at  

Kampoo,  Lashkar,  Gwalior,  M.P.  (in  short  the  ‘suit  

premises’).  During  the  pendency  of  the  suit,  the  

plaintiff  had  expired  on  20th of  June,  1989  and  

thereafter his widow, the respondent No.1 herein, filed  

an application  for  substitution  as  an heir  and legal  

representative  of  the  deceased  in  the  pending  suit.  

The  appellant  herein,  the  brother  of  the  deceased  

plaintiff  also  filed  an  application  for  

substitution/impleadment  as  heir  and  legal  

representative  of  the  deceased  plaintiff  claiming  the  

suit  premises  on  the  allegation  that  the  deceased  

plaintiff had executed a Will  in his favour on 11th of  

June, 1989. The learned Civil Judge by an order dated  

22nd of February, 1991 had allowed the application for  

substitution/impleadment  filed  by  the  widow  of  the  

deceased plaintiff,  namely,  the  respondent  No.1  and  

rejected the application for substitution/impleadment  

filed by the appellant on the ground that the Will of the  

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deceased plaintiff did not seem to have been executed  

by him and, therefore, the appellant was not entitled  

to be substituted/impleaded in the suit for eviction as  

he  was  not  the  legal  representative  of  the  deceased  

plaintiff.

4. Feeling aggrieved by the aforesaid order of the learned  

Civil  Judge,  a  revisional  application was filed in the  

Court  of  the  IVth  Additional  Judge  to  the  Court  of  

District  Judge,  Gwalior  (in  short,  “the  Additional  

Judge”) and the Additional Judge, by his order dated  

11th of  November,  1991,  set  aside  the  order  of  the  

learned  Civil  Judge  to  the  extent  it  held  that  the  

appellant  was  not  the  legal  representative  of  the  

deceased  plaintiff  and  thereafter  remanded  the  case  

back  to  the  Civil  Judge  for  fresh  decision  of  the  

application for substitution/impleadment filed at the  

instance of the appellant. Again, the Civil Judge by his  

order  dated  17th of  November,  2005  decided  the  

application for substitution/impleadment filed by the  

appellant  and  rejected  the  same  observing  that  the  

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execution of the Will  by the testator i.e.  the original  

plaintiff  on  the  basis  of  which  

substitution/impleadment  was  sought  for,  seemed  

suspicious.  This  time,  the  appellant  herein,  feeling  

aggrieved by the order of the learned Civil Judge, filed  

a  writ  application  in  the  High  Court  of  Madhya  

Pradesh  at  Gwalior  which  came  to  be  registered  as  

W.P.No.261 of 2006. By the impugned judgment of the  

High Court, the writ petition filed by the appellant for  

his substitution/impleadment in the suit for eviction  

was  also  rejected affirming  the  order  of  the  learned  

Civil  Judge  rejecting  the  application  for  

substitution/impleadment  of  the  appellant  holding  

inter alia that there was no ground to interfere with the  

order of  the Civil  Judge in the exercise of  its power  

under Article 227 of the Constitution.  The High Court  

held that the summary enquiry was conducted only to  

find  out  whether  the  appellant  was  entitled  to  

participate in the proceeding as a legal representative  

of  the  deceased  plaintiff  and  in  the  said  limited  

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enquiry,  finding  was  arrived  at  by  the  learned  Civil  

Judge  that  the  execution  of  the  Will  seemed  to  be  

suspicious and such finding of the learned Civil Judge  

would only be treated as the decision on the question  

whether the appellant should be impleaded as a party  

in the eviction suit.

5. It is this order of the High Court that was challenged  

by the appellant in this Court by way of a special leave  

petition  which  on  grant  of  leave  was  heard  in  the  

presence of the learned counsel for the parties.

6. During the pendency of this appeal in this Court, more  

precisely on 27th of October, 2007, the original tenant,  

the respondent No.2 herein, had expired and his heirs  

and legal representatives were brought on record.

7. Before us, the only question that has to be gone into is  

whether  the  appellant,  on  the  death  of  the  original  

plaintiff,  namely,  Mohanlal,  was  entitled  to  be  

impleaded/substituted  in  the  suit  for  eviction  along  

with the natural heirs and legal representatives of the  

deceased,  namely,  respondent  No.1  and  others.  

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Ms.Indu Malhotra,  learned  senior  counsel  appearing  

on  behalf  of  the  appellant  submitted  that  since  a  

separate  probate  proceeding  has  already  been  

instituted by the appellant for grant of probate in the  

competent  Court  of  Law which is  now pending,  the  

only  course  open  to  the  court  was  to  substitute  or  

implead the appellant in the eviction proceeding along  

with  natural  heirs  and  legal  representatives  of  the  

deceased plaintiff, that is to say, the entire proceeding  

should be carried on not only by the natural heirs and  

legal representatives of the deceased plaintiff but also  

by  the  appellant  subject  to  grant  of  probate  by  a  

competent court of law. In support of this contention,  

Ms.Malhotra,  learned  senior  counsel  appearing  on  

behalf of the appellant had drawn our attention to a  

decision of this Court in the case of Jalai Suguna vs.  

Satya  Sai  Central  Trust  [2008  (8)  SCC  521].  

Ms.Malhotra  also  submitted  that  in  a  proceeding  

under Order XXII Rule 5 of the Code, it was not open  

to the court to consider genuineness of the Will alleged  

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to have been executed by the testator and come to a  

finding that the Will was suspicious and, therefore, the  

appellant  could  not  be  substituted/impleaded  as  a  

legal representative of the deceased plaintiff.   

8. This submission of the learned senior counsel for the  

appellant was hotly contested by the learned counsel  

for the respondent. According to the learned counsel  

for  the  respondent,  the  question  of  

impleading/substituting  the appellant on the basis of  

the Will alleged to have been executed by the original  

plaintiff in respect of the suit premises could not arise  

at all, as according to him, in the impugned order, it  

was found by the High Court as well as by the Civil  

Judge that the Will seemed to be suspicious.

9. Having heard the learned counsel for the parties and  

after going through the impugned order as well as the  

application  for  substitution  of  the  appellant  on  the  

basis of the Will alleged to have been executed by the  

deceased  plaintiff,  we  are  of  the  view  that  the  

impugned  order  of  the  High  Court  is  liable  to  be  

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interfered  with  and  the  application  for  impleadment  

filed at the instance of the appellant on the basis of  

the Will alleged to have been executed by the deceased  

plaintiff  must be allowed and the appellant must be  

impleaded in the suit along with the natural heirs and  

legal representatives of the deceased plaintiff, subject  

to grant of probate by a competent court of law.  It is  

true that in the impugned order, the High Court has  

made it clear that the finding regarding genuineness of  

the Will was made only for the purpose of deciding the  

application for impleadment filed at the instance of the  

appellant.  But,  in  our  view,  if  at  this  stage,  the  

appellant is not permitted to be impleaded and in the  

event an order of eviction is passed ultimately against  

the tenant/respondent, the tenants will be evicted by  

the  natural  heirs  and  legal  representatives  of  the  

deceased plaintiff who thereby shall take possession of  

the suit premises, but if ultimately the probate of the  

alleged Will of the deceased plaintiff is granted by the  

competent  court  of  law,  the  suit  property  would  

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devolve on the appellant but not on the natural heirs  

and legal representative of the deceased.  Therefore, in  

the event of grant of probate in favour of the appellant,  

he  has  to  take  legal  proceeding  against  the  natural  

heirs and legal representatives of the deceased plaintiff  

for  recovery of  possession of  the suit  premises from  

them which would involve not only huge expenses but  

also considerable time would be spent to get the suit  

premises  recovered from the natural  heirs  and legal  

representatives of the deceased plaintiff. On the other  

hand,  if  the  appellant  is  allowed  to  carry  on  the  

eviction petition along with the natural heirs and legal  

representatives of the deceased plaintiff, in that case  

decree can be passed for eviction of the tenant when  

the appellant  shall  not be entitled to get  possession  

from the tenants in respect of the suit premises until  

the probate in question is granted and produced before  

the Court. Therefore, ultimately if the court grants a  

decree for eviction of the tenant/respondent from the  

suit premises, such decree shall be passed subject to  

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production  of  probate  by  the  appellant.  That  apart,  

since the question of genuineness of the will cannot be  

conclusively gone into by the court in a proceeding for  

substitution in a pending eviction suit and in view of  

the fact that an application was made at the instance  

of  the  appellant  for  impleadment  as  a  legal  

representative of the deceased on the basis of the Will  

which is yet to be probated, in our view, best course  

open  to  the  court  is  to  allow  impleadment  of  the  

appellant  in  the  eviction  proceeding,  thereby  

permitting him to proceed with the eviction suit along  

with  natural  heirs  and  legal  representatives  of  the  

deceased  plaintiff,  but  in  case  the  decree  is  to  be  

passed  for  eviction  of  the  tenant  from  the  suit  

premises such eviction decree shall be subject to the  

grant  of  probate  of  the  Will  alleged  to  have  been  

executed by the deceased plaintiff. At the same time, it  

is clear that in case the Will of the deceased plaintiff is  

found not to be genuine and probate is not granted,  

the court shall proceed to grant the eviction decree in  

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favour of the respondent no.1 and not in favour of the  

appellant. It is well settled that in the event, the Will is  

found to be genuine and probate is granted, only the  

appellant would be entitled to get an order of eviction  

of  the  tenants/respondents  from  the  suit  premises  

excluding  the  claim  of  the  natural  heirs  and  legal  

representatives of the deceased plaintiff.  The Code of  

Civil Procedure enjoins various provisions only for the  

purpose of avoiding multiplicity of proceedings and for  

adjudicating  of  related  disputes  in  the  same  

proceedings, the parties cannot be driven to different  

Courts  or  to  institute  different  proceedings  touching  

on different facets of the same major issue.  Such a  

course  of  action  will  result  in  conflicting  judgments  

and instead of resolving the disputes, they would end  

up in creation of confusion and conflict.  It is now well  

settled that determination of the question as to who is  

the  legal  representatives  of  the  deceased  plaintiff  or  

defendant under Order XXII Rule 5 of the Code of Civil  

Procedure  is  only  for  the  purposes  of  bringing  legal  

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representatives on record for the conducting of those  

legal  proceedings  only  and  does  not  operate  as  res  

judicata  and  the  inter  se  dispute  between  the  rival  

legal representatives has to be independently tried and  

decided in probate proceedings.  If this is allowed to be  

carried on for a decision of an eviction suit or other  

allied suits, the suits would be delayed, by which only  

the tenants will be benefited.  In order to shorten the  

litigation  and  to  consider  the  rival  claims  of  the  

parties, in our view, the proper course to follow is to  

bring  all  the  heirs  and  legal  representatives  of  the  

deceased  plaintiff  on  record  including  the  legal  

representatives who are claiming on the basis of the  

Will  of  the  deceased  plaintiff  so  that  all  the  legal  

representatives namely, the appellant and the natural  

heirs and legal representatives of the deceased plaintiff  

can  represent  the  estate  of  the  deceased  for  the  

ultimate  benefit  of  the  real  legal  representatives.   If  

this process is followed, this would also avoid delay in  

disposal of the suit.  In view of our discussions made  

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hereinabove,  we  are,  therefore,  of  the  view  that  the  

High Court as well as the trial Court were not at all  

justified in rejecting the application for impleadment  

filed  at  the  instance  of  the  appellant  based  on  the  

alleged Will of the deceased plaintiff at this stage of the  

proceedings.   

10. Before parting with this judgment, it  is necessary to  

consider the decision of this Court in the case of Jalai  

Suguna  (deceased)  through  L.Rs.  v.  Satya  Sai  

Central Trust and Others,   [(  2008) 8 SCC 521] cited  

by  the  learned  senior  counsel  for  the  appellant.  In  

Jalai  Suguna (supra), this  Court  held  that  the  

intestate heir (husband) and the testamentary legatees  

(nieces  and  nephews),  seeking  impleadment  as  the  

heirs of the deceased respondent in an appeal have to  

be  brought  on  record  before  the  Court  can proceed  

further in the appeal. Furthermore, in that decision it  

was also held that a legatee under a Will, who intends  

to represent the estate of the deceased testator, being  

an  intermeddler  with  the  estate  of  the  deceased  

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testator, will be a legal representative. In view of the  

aforesaid  discussions  and  in  view  of  the  decision  

reported in Jalai Suguna (supra),  we are also of the  

view that  in  an eviction  proceeding,  when a  legatee  

under a Will  intends to represent the interest of the  

estate  of  the  deceased  testator,  he  will  be  a  legal  

representative within the meaning of Section 2(11) of  

Code of Civil Procedure, for which it is not necessary  

in an eviction suit to decide whether the Will on the  

basis  of  which  substitution  is  sought  for,  is  a  

suspicious one or that the parties must send the case  

back to the probate Court for a decision whether the  

Will was genuine or not.

11.For the reasons aforesaid, we are of the view that the  

High Court as well as the trial Court had acted illegally  

and with material irregularity in the exercise of their  

jurisdiction  in  not  impleading  not  only  the  natural  

heirs and legal representatives of the deceased plaintiff  

but  also  the  appellant  who  is  claiming  his  

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impleadment  on the basis  of  an alleged Will  of  the  

deceased plaintiff.   

12.Accordingly, the impugned order of the High Court is  

set aside and the application for impleadment filed by  

the appellant is allowed.  For this reason, the eviction  

proceeding shall be carried on not only by the natural  

heir  of  the deceased plaintiff,  but also the appellant  

who claims to be a legal representative of the deceased  

plaintiff  on the  basis  of  a  Will  alleged to have been  

executed by the deceased plaintiff.  

13.But we make it clear that in the event, the probate of  

the will of the deceased plaintiff is not granted on the  

ground of genuineness of the Will, it is needless to say  

that the natural heirs and legal representatives of the  

deceased  plaintiff  would  only  be  entitled  to  get  

possession  on  the  basis  of  inheritance  of  the  suit  

property on the death of the original plaintiff.   

14.However,  we  also  make  it  clear  that  the  appellant  

would  be  entitled  to  obtain  order  of  eviction  of  the  

tenants/respondents if the ground taken in the plaint  

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stand  proved,  but  such  decree  for  eviction  shall  be  

passed subject to grant of probate of the Will  of the  

deceased plaintiff in favour of the appellant.   

15.The appeal is allowed to the extent indicated above.  

There will be no order as to costs.  

………………………….J. [TARUN CHATTERJEE]

NEW DELHI:              ………………………….J. DECEMBER 14, 2009.              [DR.B. S. CHAUHAN]

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