Impleading the appellant as a legal representative would change the nature of the suit:Delhi High Court.
CASE TITTLE:K JEEVAN RITA MURTHY .V. SARABJIT SINGH (SINCE DECEASED) & ANR.
CASE NO: FAO(OS) 67/2024 & C.M.Nos.27890-27894/2024
ORDER ON:10th May, 2024
QUORUM:J.MS.MANMEET, J.PRITAM SINGH ARORA
FACTS OF THE CASE:
The Present appeal in question has been filed challenging the impugned judgement Dated 15th January, 2024 passed by the learned Single Judge, Wherein an application was filed by the appellant for Substitution as a legal representative of the deceased defendant which was dismissed. The appellant further challenged the order passed by the learned Single Judge which was also dismissed, latee the review petition was filed by the appellant Challenging the order was also dismissed. Hence present appeal.
LEGAL PROVISIONS:
Section 213 of the Indian Succession Act, 1925:talks about as to when the Right as executor or legatee be established, i.e No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
CONTENTIONS OF APPELLEANT:
Learned counsel appearing for appellant submits that the learned Single Judge had Erred in allowing the application filed by Mr. Ved Vyas on behalf of the alleged legal heirs for substitution as legal Representatives of the deceased defendant without there being any proof of the same. The counsel further submitted, that the learned Single Judge erred in dismissing IA filed by the appellant seeking substitution as a legal Representative of the deceased defendant by failing to consider that firstly, The apellant had already filed Test Case seeking Letters of Administration in her favour on the basis of the Will executed by the Deceased defendant and secondly, that the appellant had been living in the Suit property with deceased defendant since prior to his death and has Continued to live.
COURTS ANALYSIS AND JUDGEMENT:
The court on being perused the paper book, the Court opined that the Subject suit has been filed by the respondent /plaintiff for recovery of Possession of the suit property claiming himself to be the owner of the suit Property by virtue of documents including a will dated 15th March, 1982, Executed by the deceased defendant. On the other hand, the court observed that the appellant is claiming to have become the Owner of the suit property on the basis of an unregistered will dated 08th November, 2021 executed in her favour by the deceased defendant. Thus, The court observed that the appellant is claiming substitution as a legal representative of the Deceased defendant as his legatee on the basis of a will whose genuineness is Yet to be established and proved. (Re: Section 213 of the Indian Succession Act, 1925).This Court is in agreement with the view of the learned Single Judge That impleading the appellant as a legal representative of the deceased Defendant would change the nature of the suit from a suit for possession to a suit for determination of title inter se the appellant and deceased defendant’s Alleged legal heirs under Class-II, which would exceed the scope of the Subject suit. Consequently, the court dismissed the present appeal along with the applications.
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judgement reviewed by:Sowmya.R