2001 (1) TMI 1020 - HC - Indian Laws

Summary

Issues:
1. Application under Order 22 Rule 10 of CPC to bring on record respondents in a suit for partition.
2. Application under Order 22 Rule 9 of CPC to set aside the abatement of the suit.

Analysis:
Issue 1: The Civil Revision Petition was filed against I. A. Nos. 25 and 26 in O. S. No. 189/85 for partition. The applications were filed to bring respondents as trustees of a Trust created by a will on record and to set aside the abatement of the suit. The Trial Court allowed both applications, leading to the appeal. The petitioner argued that without proof of the will and probate, respondents cannot be added as they are strangers to the will. The Trial Court relied on the will and Trust deed to allow the applications.

Issue 2: The petitioner contended that adding respondents as trustees under the will would alter the character of the suit for partition. The respondents argued that Order 22 Rule 5 allows for defending the suit to prevent its dismissal. The Court considered the submissions and held that the Trial Court's order should not be interfered with. It cited the definition of legal representative under Section 2(11) of CPC, stating that any intermeddler can be a legal representative.

Further Analysis: The Court discussed the provisions of Order 22 Rule 5 and emphasized that the decision regarding legal representation is to be determined by the Court. It highlighted that the decision under Order 22 Rule 5 is not conclusive and does not operate as res judicata. The Court referenced previous cases to support its stance that the order under Order 22 Rules 4 and 5 can only be questioned if no enquiry is held. The judgment clarified that the enquiry under Order 22 Rule 5 does not conclusively establish the right or title to property or determine a person as an heir of the deceased.

Conclusion: The Court affirmed the Trial Court's decision to add respondents as legal representatives for the purpose of continuing the suit, emphasizing that the petitioner can still challenge the will or the respondents' right to claim under it. The Civil Revision Petition was dismissed, upholding the Trial Court's order and allowing for further scrutiny of the will and the respondents' claims.