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2007 Supreme(P&H) 1867

2008(2) LAW HERALD (P&H) (DB) 1121
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M.S. Bedi
The Hon’ble Mr. Justice J.S. Khehar
C.M. No. 128 of 2007 in L.P.A. No, 702 of 1996 in Probate No.3 of 1992
Basant Kaur
v.
General Public
{Decided on 16/10/2007}

Advocates:
For the Applicant:Mr. R.K. Battas, Advocate.
For the Respondents No.2 and 5:Mr. Manmohan Singh, Sr. Advocate with Mr. M.P. Gupta, Advocate.
For the Respondent No.6.:Mr. M.L. Sarin, Senior Advocate with Mr. Vivek Sood, Advocate.
For the Respondent:Mr. R.K. Chopra, Senior Advocate with Ms. Maninder, Advocate.

IMPORTANT POINT
Appeal--Right of appeal is a vested right--Cannot be taken away except by an express enactment or intendment.
Probate proceedings--Applicant is beneficiary under the will--Applicant has already been impleaded as an heir of deceased--Applicant is permitted to be transposed as appellant in his individual capacity

Headnote:(A) Succession Law--Probate proceedings--Maintainability of Letters Patent appeal--First appeal is maintainable under clause X of the Letters Patent, against an order passed by the Ld. Single Bench in probate proceedings--Succession Act, 1925, Sections 295, 299--Letters Patent Rules, Clauses X--Punjab and Haryana High Court Rules and Orders, Volume 5. (Para 9)
       (B) Succession Law--Probate proceedings--Regulation of proceedings--Letters patent appeal--Legal representatives of--Applicability of CPC--Held; Interalia-
       (i) Proceedings in probate proceedings will be regulated by the provisions of the Code of Civil Procedure.
       (ii) As the Letters Patent Appeal has been held to be maintainable, the provisions of appeal as provided in Code of Civil Procedure will also be applicable to the proceedings in appeal.
       (iii) For the purpose of impleading of the legal representative of deceased litigating party, the definition the term legal representative under Section 2 (11) of the Code of Civil Procedure and the provisions of Order 22 Rule 4 of the Code of Civil Procedure would also apply--Civil Procedure Code, 1908, Order 22, Rule 4, Section 2(11)--Letters Patent Rules, Clause X--Punjab and Haryana High Court Rules and Orders, Volume 5, Chapter 9, Part B, Rule 27. (Para 10)
       (C) Sucession Law--Probate proceedings--Application for transposing as co-appellant--Applicant is beneficiary under the Will--Applicant has already been impleaded as an heir of deceased--Applicant wants to transpose himself as an appellant in his individual capacity in place of deceased--The Executor has not opted to file appeal--Held; Applicant has got a right to contest and protect his right--Applicant is permitted to be transposed as appellant in his individual capacity--Succession Act, 1925, Section 299--Civil Procedure Code, 1908, Order 23, Rule 1 A read with Order 1, Rule 10 CPC.
        (Paras 20 & 21)
       (D) Letters Patent--Letters patent is not an enactment but a charter of the High Court--Letters Patent Rules, Clause X --Punjab and Haryana High Court Rules and Orders, Volume 5. (Para 6)
       (E) Appeal--Right of appeal is a vested right--Cannot be taken away except by an express enactment or intendment--Right of appeal is not a mere of procedure--It is a substantive right--Civil Procedure Code, 1908. (Para 8)
       (F) Civil Procedure--Right of applicant to be impleaded as Legal Representative--Probate proceedings--Prospective purchaser--If a legal representative of a deceased is already on the record in another capacity, the appeal does not abate even though no application is made to bring them on record--Civil Procedure Code, 1908, Section 2(11). (Para 14)
       (G) Land and Property Law--Agreement to sell--Agreement is not a concluded contract--It does not, of itself, create any interest in or charge on such property--Transfer of Property Act, 1882. (Para 15)

JUDGMENT

M.M.S. Bedi, J.:-Counsel for the applicant and the counsel for the respondents agreed that the rights of applicant- Harmohan Singh Paul who claims himself to be the only legal representative of the appellant Basant Kaur need to be determined before the final adjudication of main appeal. It is averred in the application that the appellant Basant Kaur w/o Ran Singh died on September 19, 2001 during the pendency of the appeal, leaving behind the following natural heirs, namely,

i) Manmohan Singh, son

ii) Sukhdial Singh, son

iii) Jagdev Singh, son and

iv) Harminder Kaur, daughter.

The dispute in the present appeal pertains to the Will of Dr. Ran Singh. By virtue of the said Will, he had bequeathed House No.322, Sector 9 D, Chandigarh upon Sukhdial Singh, his son and Harminder Kaur Sandhu, his daughter, besides bequeathing life interest in favour of Basant Kaur. Sukhdial Singh, Harminder Kaur and Basant Kaur entered into an agreement of sale dated February 12, 1993 with applicant-Harmohan Singh Paul for Rs.27 lacs and received Rs.5 lacs as earnest money, which was paid to all the above said three persons by way of bank drafts. It is asserted that the right to sue survives inasmuch as the question of validity of the Will of Dr. Ran Singh is still open.

2. The applicant-Harmohan Singh Paul is the assignee of the beneficiaries of the Will and he as such claims to have a right to the property. If the probate finally succeeds, he will be liable for payment of balance amount and would be entitled to the house in question. As such the applicant claims to be the sole legal representative within the meaning of Section 2 (11) of the Code of Civil Procedure and to be entitled to carry on the litigation, as well as, to pursue the instant L.P.A. The estate of Basant Kaur in a way devolves upon the applicant by way of agreement of sale which entitles him to claim the property in dispute for his relief under the agreement. He has prayed for being impleaded as the legal representative of the deceased/appellant, as the sole legal representative of Basant Kaur.

3. Notice of this application was given to the respondents. Although no formal reply has been filed to the application but the application for appointment of the legal representative of Basant Kaur has been seriously opposed by Mr.Manmohan Singh, learned Senior counsel appearing for respondents No.2 and 5 i.e. Manmohan Singh Grewal and Jagdev Singh Grewal on the following grounds:-

i) The application under Order 22 Rule 3 CPC is not maintainable as the provisions of Civil Procedure Code are not applicable in an appeal arising out of probate petition decided by a Single Bench of this Court;

ii) In the probate proceedings, the present appeal is not maintainable, as the provisions of Indian Succession Act, 1925, (for short ‘the Act’) are applicable and as per Section 211 of the Act, the executor of a deceased person is his legal representative for all purposes as the property of the deceased person vests in him. In the present case the executor had filed the probate proceedings but after the finalisation of the said proceedings he had opted not to file an appeal whereas only one of the heirs of the deceased has opted to file the present appeal. After the death of the appellant, only the executor is entitled to persue the appeal, otherwise the appeal would abate.

iii) The agreement of sale alleged to have been executed by the beneficiaries under the Will in favour of applicant will not confer any right, title or interest for the reason that it is only the executor of the Will who has the power and authority to dispose of the property of the deceased as under Section 307 of the Act he is the only legal representative of the deceased for all purposes.

4. Sh.R.K. Battas, learned counsel for the applicant has contended that the provisions of Code of Civil Procedure arc applicable to the proceedings of appeal in a probate in view of the fact that Section 268 of the Act provides that proceedings be

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Judicial Analysis

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2007 Supreme(P&H) 1867

2008(2) LAW HERALD (P&H) (DB) 1121IN THE HIGH COURT OF PUNJAB AND HARYANA (DIVISION BENCH)BeforeThe Hon’ble Mr. Justice M.M.S. BediThe Hon’ble Mr. Justice J.S. KheharC.M. No. 128 of 2007 in L.P.A. No, 702 of 1996 in Probate No.3 of 1992 Basant Kaur v.General Public {Decided on 16/10/2007}

Cases Referred (5)

Judicial Analysis

2008(2) LAW HERALD (P&H) (DB) 1121
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M.S. Bedi
The Hon’ble Mr. Justice J.S. Khehar
C.M. No. 128 of 2007 in L.P.A. No, 702 of 1996 in Probate No.3 of 1992
Basant Kaur
v.
General Public
{Decided on 16/10/2007}