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2025 Supreme(Online)(MP) 6132
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
SHRI JUSTICE HIRDESH, J
PAWAN PATHAK – Appellant
Versus
NATHURAM – Respondent
MISC. PETITION No. 440 of 2025
For the Appellants/Petitioners: Shri Anil Kumar Shrivastava, Ms. Pratika Pathak, Shri Rajiv Raghuvanshi
For the Respondents: Shri Tara Chandra Narwariya, Shri Dhirendra Singh Chouhan, Shri Man Singh Jadon
A holder of a valid Will has the right to substitute in the place of the deceased in legal proceedings despite the presence of other heirs.
Headnote:(A) Civil Procedure Code, 1908 - Order 22 Rule 3 and Section 151 - Legal standing of heirs after demise of original plaintiff - Claimant's right to seek substitution based on a valid Will - The trial Court erred in rejecting the application solely on the basis of other heirs not being mentioned. (Paras 2, 10, 11)
(B) Legal principles on substitution of parties - The holder of a Will represents the estate of the deceased and unless fraud is shown, they may be brought on record without all heirs present. (Paras 8, 10)
Facts of the case:
The petitioner sought substitution in place of his deceased mother alleging that the Will granted him an entitlement to the disputed property. However, the trial Court dismissed his application citing the existence of other legal heirs.
Findings of Court:
The trial Court's rejection of the substitution application was found erroneous, necessitating the petitioner’s impleadment as plaintiff based on the Will.
Issues: The key issues were whether the petitioner, being a Class-I heir and holder of the Will, has a right to be substituted in the suit.
Ratio Decidendi: The Court asserted that the trial Court wrongly focused on the presence of other heirs while ignoring the valid Will that conferred rights upon the petitioner.
Result: Petition allowed; the trial Court directed to implement the petitioner as plaintiff and continue proceedings.
ORDER
The instant misc. petition under Article 227 of the Constitution of India, has been filed by petitioner against the order dated 08-01-2025 passed by 6th Civil Judge, Sr. Division, District Gwalior in RCSA No. 233 of 2021, whereby the application under Order 22 Rule 3 read with Section 151 of CPC moved on behalf of petitioner has been rejected.
(2) A few facts necessary for adjudication of present petition as narrated therein are that original plaintiff- Munni Devi (since deceased) filed Signature Not Verified Signed by: MAHENDRA a civil suit for declaration, partition and permanent injunction in respect of agricultural land in dispute bearing survey nos. 1105, 1561, 1563/1, 1563/2, 2035/1, 2035/2, 2224, 2226/1 and 2226/2 situated at Village Bilheti, Patwari Halka No.120, Tahsil and District Gwalior, inter alia pleading that being daughter of late Jagannath Prasad Mudgal having 1/3rd share in the disputed property, she is entitled for partition to get her 1/3rd share by metes and bounds. During her life time, Munni Devi executed a ''Will'' on 4th of May, 2024 in respect of all moveable and immovable properties in favour of her Late husband Shri Sitaram Pathak and children. Munni Devi expired on 12th of May, 2024. After death of Munni Devi, present petitioner being her son, filed an application under Order 22 Rule 3 read with Section 151 of CPC along with death certificate of Munni Devi, for substitution of his name in place of plaintiff Munni Devi, inter alia stating that ''Will'' was executed by plaintiff in his favour in respect of 1/3rd share of disputed property and, therefore, right to sure survives in his favour. The trial Court, vide impugned order, rejected application holding that in addition to petitioner, deceased- original plaintiff has having other legal heirs too, which are shown in the ''Will'' of plaintiff, whose names have not been mentioned in the application.
(3) Being dissatisfied with the impugned order, the present petition has been filed by petitioner on the ground that the order passed by learned Trial Court suffers from grave error of law being passed on basis of surmises and conjectures. If the impugned order is not set aside at this very stage, grave injustice will be caused to present petitioner. It is submitted that learned Trial Court has utterly lost sight of the fact that petitioner is also Class-I heir of Signature Not Verified Signed by: MAHENDRA deceased- original plaintiff and right to sue survives in his favour. The learned Trial Court has committed an error of law in dismissing petitioner's application without substituting him in place of deceased- original plaintiff by overlooking the contents of ''Will'' dated 4th of May, 2024 which was executed by plaintiff Munni Devi in her life time and has bequeathed her 1/3rd share in favour of petitioner. The application cannot be rejected only on the ground that other heirs of deceased have been left because after death of original plaintiff, petitioner became co-owner of property of plaintiff having a right to sue against defendants to the extent of his share which was left by his mother Munni Devi after her death. In support of his contention, reliance has been placed in the case of Shakuntla (Ms) vs. Shaturghan reported in (1993) 1 MPWN 99 and the decision of Hon'ble Apex Court in the case of Dolai Molliko and Others vs. Krushna Chandra Patnaik and Others reported in AIR 1967 SC 49, hence, it is prayed that the impugned order deserves to be set aside.
(4) On the other hand, learned Counsel for respondents by supporting the impugned order, opposed the contentions of petitioner and prayed dismissal of this petition.
(5) Heard learned Counsel for the parties.
(6) The observation made by Trial Court in its impugned order is reproduced as under:-
(7) On perusal of impugned order, it is found that the trial Court rejected the application of petitioner only on the ground that in addition to petitioner, other legal heirs of deceased- plaintiff do exist i
