Now coming to the judgments of the Apex Court (supra), in the
case of Jaladi Suguna's case (supra), the facts were that the Plaintiff Suguna
died during the pendency of the Appeal which was filed against the decree
which was in her favour. Two applications for being brought on record as heirs
were filed, one by her husband who claimed to be the sole heir, and the other
application which was filed by her nieces and nephews, who claimed on the
basis of a Will executed by Suguna in their favour. The High Court of Andhra
Pradesh directed the Trial Court under the proviso to Rule 5 of Order XXII of
the Code of Civil Procedure to try the said question and submit its findings.
The Trial Court accordingly held an enquiry and submitted a report to the High
Court. However, the High Court did not proceed to determine the said issue as
ig
to who was the legal representative of the said Suguna but proceeded to hear
the main Appeal and decided the same. It is in the said context that the Apex
Court held that the High Court should have decided the said issue firm before
deciding the Appeal, as by not deciding the issue, the Appeal has been
proceeded with against a dead person. However, what is relevant to note in the
context of the present Petition is that there were a competing claims in the said
case.
In the case of M/s. Kanhiya Singh Santok Singh (supra) the facts
were that a decree was passed in favour of the landlord i.e. Kartar Singh on the
ground of bonafide requirement, the said decree was passed at the Appellate
stage as the Trial Court had dismissed the suit in question. Against the said
decree the Defendant tenant Santok Singh had filed a Second Appeal in the
High Court. Pending the Second Appeal, the said Santok Singh died. The sons
of the said Santok Singh namely Man Mohan Singh and Jaswant Singh filed an
application for being brought on record as Appellants as according to them
they were ordinarily carrying on business along with their father as the
members of his family. The Respondent landlord filed a reply opposing the said
application, and prayed that the Appeal be dismissed as abated. The Lower
Appellate Court rejected the application by the sons. The objection of the
Respondent landlord was on the touchstone of the definition of “tenant” under
Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act,
ig
1950, as it was the case of the landlord that the sons of Santok Singh had
separated in view of the partition having taken place by way of family
settlement, the Applicants did not come within the category of a tenant. It is in
the said context that the Apex Court held that the High Court ought to have
conducted an enquiry under Order XXII Rule 5 of the Code of Civil Procedure
as to whether the Applicants could substitute the said Santok Singh. The said
enquiry was required to be conducted as the landlord had disputed the
entitlement of the sons of Santok Singh to be brought on record in view of the
definition of “tenant” in the Reajasthan Premises (Control of Rent & Eviction)
Act, 1950.
It is in the fact situation of the cases before the Apex Court, that
the Apex Court held that an inquiry under Rule 5 of Order XXII of the Code of
Civil Procedure would be necessary. However, such is not the case in the instant
matter as there are no competing claims and the issue is sought to be raised by
the Defendant Nos.2 and 3 by only making a bald statement that the
Defendant Nos.4(a) to 4(c) are not the heirs of the original Plaintiff. Hence in
by the Trial Court could not be faulted with.
so far as the instant matter is concerned, the enquiry to the extent carried out
In so far as the Applicant Mrs. Francesca Agatha Von Geyer is
concerned, it is required to be noted that the suit in question has been filed by
her as the Power of Attorney holder of the Plaintiff in the year 1999. As
contended by Shri Denzill D'mello, the learned counsel appearing on behalf of
the Respondent Nos.1 to 3 herein, she is not a stranger but is related both to
the Plaintiff and the original Defendant No.1 and now the Defendant Nos. 1(a)
to 1(c). The Applicant is the wife of Arnold who is the cousin of the original
Plaintiff. Hence it cannot be said that the proceedings are being conducted by a
stranger or that she is not entitled to file the application for bringing the heirs
of the Plaintiff on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Mumtaz Iqbal Shaikh
versus
Alain Lousi Philip Cousin1
Citation;2013(3) ALL M R 884
R. M. SAVANT, J.
22nd March 2013
Citation; 2013 (3) ALL M R 884
Rule, with the consent of the learned counsel appearing for the
parties made returnable forthwith and heard.
2
The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 12/02/2013 passed by
the learned Judge, City Civil Court, Greater Mumbai, by which order the
application being Chamber Summons No.954 of 2012 for bringing the heirs of
the original Plaintiff by transposing the Defendant Nos.4(a) to 4(c) as
Plaintiffs came to be allowed.
The issue therefore which arises in the above Petition is as regards
2 of 19
the entitlement of the Defendant Nos.4(a) to 4(c) to be transposed as
Plaintiffs.
4
The suit in question was originally filed in this Court and was
numbered as L.C. Suit No.1948 of 1999. On the pecuniary jurisdiction of the
City Civil Court, Greater Mumbai being enhanced, the said suit came to be
transferred to the City Civil Court, Greater Mumbai and is now numbered as
S.C. Suit No.8446 of 1999. The said suit has been filed for seeking declaration
that the original Plaintiff and the Defendant No.4 are the owners of onehalf
undivided share in the property known as Victoria Terrace comprising of Flat
Nos. 2, 4 and 6 with the proportionate common areas together with one half
undivided share in the land on which the said building is standing. The
original Plaintiff also sought a declaration that the Agreement for Sale dated
3/7/1969 allegedly executed by the Plaintiff in favour of the Defendant No.1,
the Deed of Confirmation dated 23/10/1996 executed by the Defendant No.1
in her own favour and the Indenture dated 1/11/1996 executed by the
Defendant No.1 in favour of the Defendant Nos.2 and 3 are null and void and
liable to be set aside. The original Plaintiff has also sought a declaration that
the transfer of tenancy in respect of flat No.4 in Victoria Terrace by the
Defendant No.1 to Defendant No.3 is null and void and she is entitled to
possession of the said flat No.4. The original Plaintiff has also sought certain
consequential reliefs like mense profit and rendering of accounts etc.
In the said suit, the Plaintiff filed an application for injunction and
5
for appointment of receiver by way of Notice of Motion . Whilst adjudicating
upon the said Notice of Motion, a learned Single Judge of this Court
(A.P
.Shah.J. as His Lordship then was) has recorded a finding in respect of the
genuineness of the said Agreement for Sale dated 3/7/1969. The learned
Judge has expressed serious doubts about execution of the said Agreement for
are interalia the following :
The request of the Defendant No.1 for a Power of
(i)
Sale. The reasons recorded for the same, as can be seen from the said order,
Attorney to be executed in her favour was turned down
by the original Plaintiff Monica alias Mona Grace
Cousin;
(ii)
The Defendant No.1 had addressed a letter to the
Plaintiff that her share is not put up for disposal;
(iii)
That for a period of 15 years during which
correspondence was exchanged between the parties
there was not a whisper by the Defendant No.1 in
respect of the alleged Agreement dated 3/7/1969.
In so far as the Deed of Confirmation is concerned, the learned
Judge has posed a question as to how the Plaintiff can confer title on herself
by signing a Deed of Confirmation in her own favour. The learned Judge,
therefore, allowed the said Notice of Motion and appointed the Court Receiver,
High Court, Bombay as a Receiver of the property pending the suit. The
Receiver still continues to be in possession of the property.
ig
The Defendant No.4 i.e. Alan Cousin died on 17/7/2010, as a
consequence of which a Chamber Summons was filed by the Applicant i.e. the
Power of Attorney Holder of the original Plaintiff for bringing his heirs on
record. The said Chamber Summons No.1309 of 2010 came to be allowed by a
learned Single Judge of this Court by order dated 22/12/2010. It is an
undisputed position that the said order was not carried further and therefore
the order allowing the heirs of the Defendant No.4 i.e. the Defendant Nos.4(a)
to 4(c) to be brought on record has become final.
Thereafter the Plaintiff i.e. Marie Lousie Arlene Cousin died on
15/5/2012. This has resulted in the Applicant i.e. her Power of Attorney
Holder Mrs. Francesca Agatha Von Geyer filing an application for bringing her
heirs on record in the matter of substituting the Plaintiff by Defendant Nos.4(a)
and 4(c). This was by way of the present Chamber Summons No.954 of 2012.
To the affidavit in support of the said Chamber Summons a death certificate of
the said Marie Cousin was annexed. The said Chamber Summons was filed on
the basis of the Power of Attorney which has been executed by the Defendant
Nos.4(a) to 4(c) in favour of the Applicant which is dated 1/6/2012. The said
Chamber Summons was founded on the fact that the Defendant Nos.4(a) to
4(c) are the only heirs of the original Plaintiff and since the right to sue
survives to them, they are required to be brought on record.
ig
To the said Chamber Summons, the Defendants have also
filed their replies and the opposition to bring the Defendant Nos.4(a) to 4(c)
on record is on the ground that though it is claimed that there is a Will in
favour of the Defendant Nos.4(a) to 4(c), no probate of the said Will has been
obtained or even the Will produced. It is further averred that the Defendant
Nos.4(a) and 4(c) have failed to establish that they are the heirs and legal
representatives of the deceased Plaintiff. The Defendants questioned the Power
of Attorney executed by the Defendant Nos.4(a) to 4(c) in favour of the
Applicant on the ground that there was no rubber stamp of the notary and the
number of the notary registration was not affixed and therefore according to
the Defendants the said Power of Attorney was suspicious. It was the case of
the Defendants that under Order XXII Rule 5 of the Code of Civil Procedure the
Court is required to adjudicate upon the issue as to who are the legal
representatives of the Plaintiff in the event an objection is raised in that regard.
lgc
In answer to the said objection, it was the case of the Applicant
that the Power Attorney Holder bears the seal of the notary and that the
Defendant Nos.4(a) and 4(c) are the only legal representatives of the Plaintiff.
It was further the contention of the Applicant that under the Indian Succession
Act, the heirs of the deceased who dies intestate are entitled to succeed to his
property and therefore to represent the estate of the Plaintiff, the heirs of the
ig
Plaintiffs are required to be brought on record in the suit.
8
The Trial Court considered the said Chamber summons and by the
impugned order has allowed the same. The gist of reasoning of the Trial Court
as can be seen is that the claim of the Applicant that the Defendant Nos.4(a) to
4(c) being the heir of the original Plaintiff is not challenged by any third party
who in turn claims to be the heirs of the deceased Plaintiff. The Trial Court on
a perusal of the Power of Attorney also observed that the said Power of
Attorney is executed in the U.K. and bears the seal of the notary and in view of
the presumption which arises under Section 85 of the Indian Evidence Act, a
presumption would arise that the Power of Attorney has been executed before
the notary. The Trial Court therefore reached a conclusion that the Applicant
was therefore entitled to file the application in question and since the estate of
the Plaintiff was required to be represented by the Defendant Nos.4(a) to 4(c)
they were required to transposed as Plaintiffs in place of the original Plaintiff.
As indicated above, it is the said order dated 12/2/2013 which is impugned in
lgc
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the present Petition.
Heard the learned counsel for the parties. On behalf of the
9
Petitioners the principal contention of Shri Rajesh Shah the learned counsel
appearing for the Petitioners is that in case of dispute as to who are the legal
representatives of a party it is incumbent upon the Trial Court to conduct an
inquiry as contemplated by Rule 5 of Order XXII of the Code of Civil Procedure.
The learned counsel for the Petitioners would contend that without such
inquiry the Chamber Summons for transposing the Defendant Nos.4(a) to 4(c)
could not have been allowed.
To buttress the said contention, the learned counsel for the
Petitioners sought to rely upon the judgments of the Apex Court reported in
AIR 2008 SC 2866 in the matter of Jaladi Suguna (Dead) through L.Rs. V
Satya Sai Central Trust & ors. and the judgment reported in AIR 2009 SC
1600 in the matter of M/s. Kanhiya Singh Santok Singh & ors v/s. Kartar
Singh. The said judgments according the learned counsel for the Petitioners
lay down the course of action which the Trial Court is required to follow in the
event there is a dispute as to who is the heir or heirs of a particular party. The
learned counsel would contend that though the Applicant relies upon the Will
of the Plaintiff in favour of the Defendant Nos. 4(a) to 4(c), no such Will has
been produced. The learned counsel for the Petitioners would contend that
allowing the said Chamber Summons filed by the Applicant, who is the Power
of Attorney Holder, would result in continuing the litigation by proxy. The
learned counsel for the Petitioners would contend that nobody has seen or
knows the where abouts of the the Defendant Nos.4(a) to 4(c) which includes
the heirs of the Defendant No.1.
The learned counsel appearing for the Defendant Nos.1(a) to 1(c)
10
ig
i.e. the Respondent Nos.4, 5 and 6 herein Ms.Sheetal Kumar would also
support the contention of the Shri Rajesh Shah on the entitlement of the
Defendant Nos.4(a) to 4(c) for being transposed as Plaintiffs. The learned
counsel Ms. Sheetal Kumar also urged that the Defendant Nos. 1(a) to 1(c)
have not heard anything about the Defendant Nos.4(a) to 4(c). The learned
counsel for the said purpose also sought to rely upon the deposition of Arnold
recorded in the companion suit.
11
Per contra, Shri D’Mello the learned counsel appearing for the
Applicant would seek to rely upon the order passed in the Notice of Motion
filed for appointment of the Receiver and would contend that at the stage of
considering the application for appointment of Receiver, this Court has
recorded a finding as regards the falsity of the case of the Defendant No.1 and
has expressed serious reservations about the genuineness of the Agreement for
Sale dated 3/7/1969. The learned counsel would contend that the Power of
Attorney Holder i.e. the Applicant is not a stranger but she is the wife of Arnold
who is the cousin of the original Plaintiff, and therefore, the Applicant is also
related to the original Plaintiff and the Defendant No.1(a) to 1(c). The learned
counsel would contend that the question of conducting an inquiry would arise
only if there are rival claims, however, in the instant case, except the denial by
the third parties i.e. the Defendants 2 and 3, which denial is also without
mentioning any other heirs of the Plaintiff, an issue is sought to be raised. The
learned counsel for the Applicant would distinguish the facts of the present
case with the facts before the Apex Court in the two judgments cited (supra).
The learned counsel would contend that the scope of the inquiry in the present
case would be limited and to the extent as carried out by the Trial Court. The
learned counsel would contend that ultimately the endeavour is to see that the
estate of the deceased is represented. The learned counsel would contend that
since the Defendant Nos.2 and 3 have not questioned the order allowing the
Defendant Nos.4(a) to 4(c) being brought on record as the heirs of the
Defendant No.4, the said Defendants now cannot question the transposing of
the said Defendant Nos.4(a) to 4(c) as Plaintiffs and, as the Plaintiff and the
Defendant No.4 were brother and sister. The learned counsel would lastly
contend that assuming that there is no Will, the Defendant Nos.4(a) to 4(c) are
entitled to be brought on record as the heirs of the Plaintiff having regard to
Section 45 of the Indian Succession Act.
Having heard the learned counsel for the parties, I have bestowed
my anxious consideration to the rival contentions. At the out set it is required
to be noted that the relief sought in the suit is a declaration which the Plaintiff
sought that she and the Defendant No.4 are the joint owners of the onehalf
undivided share in the property known as Victoria Terrace. As adverted to
herein above, this Court has recorded findings at the stage of considering the
application for appointment of Court Receiver, which findings are revolving
ig
around the falsity of the case of the Defendant No.1 as regards execution of the
Agreement for Sale dated 3/7/1969. A learned Single Judge of this Court has
also expressed serious doubts about the genuineness of the document, and
expressed surprise about the fact that the Defendant No.1 by executing the
Deed of Confirmation has sought to bestow title upon herself. The learned
Single Judge of this Court, as mentioned herein above, deemed it fit to appoint
the Court Receiver who is still in possession of the property in question.
13
One of the defining aspect as it were which has a bearing in the
context of the relief sought in the Chamber Summons is the order dated
22/12/2010 passed in Chamber Summons No.1309 of 2010 thereby allowing
the Defendant Nos.4(a) to 4(c) to be brought on record as the heirs of the
Defendant No.4. The said Defendant Nos.4(a) to 4(c) are the children of the
Defendant No.4 and they have been brought on record pursuant to the said
order dated 22/12/2010. Significantly the said order was not challenged by
any of the Defendants by carrying the matter higher, and therefore, as
contended by the learned counsel appearing on behalf of the Applicant the said
order has become final. The consequence of the said order have to be borne in
mind considering the fact that the Defendant No.4 was the brother of the
Plaintiff.
Now coming to the contention of the learned counsel appearing
14
for the Petitioners Shri Rajesh Shah that the Trial Court ought to have
conducted an inquiry in view of the dispute raised by the Petitioners i.e. the
Defendant Nos.2 and 3 as regards whether the Defendant Nos.4(a) to 4(c) are
the heirs of the original Plaintiff. It would therefore be opposite to reproduce
Rule 5 of Order XXII :
“Rule 5
Determination of question as to legal
representative Where a question arises as to whether
any person is or is not the legal representative of a
deceased plaintiff or a deceased defendant, such
question shall be determined by the Court :
Provided that where such question arises before
an Appellate Court, that Court may, before determining
the question, direct any subordinate Court to try the
question and to return the records together with
evidence, if any recorded at such trial, its findings and
reasons therefor, and the Appellate Court may take the
same into consideration in determining the question.]”
Reading of the said Rule postulates that where a question arises as to whether
any person is or is not the legal representative of a deceased plaintiff or a
deceased defendant, such question shall be determined by the Court . The said
Rule therefore postulates an inquiry when there is a dispute as to who is the
legal representative. In the instant case, as can be seen, except Defendant
Nos.4(a) to 4(c), nobody has come forward to claim that he or she is the legal
representative of the original Plaintiff. Pertinently it is only the Defendant
Nos.2 and 3 who are the beneficiaries of the alleged Agreement for Sale dated
3/7/1969 and the subsequent Sale Deed dated 1111996 executed by the
Defendant No.1 who have taken an objection and have denied that the
Defendant Nos.4(a) to 4(c) are the heirs of the original Plaintiff. However, it is
not their case that there are any other heir or heirs of the original Plaintiff
who have a better right than the Defendant Nos.4(a) to 4(c). Hence
considering the nature of the objection, the inquiry was limited to the extent
whether the application made by the Applicant was in order, and whether the
Applicant could represent the estate of the deceased. As indicated above there
are no competing or rival claims between heirs for being brought on record.
The Trial Court as can be seen from the impugned order has gone into the
aspect of legality and validity of the Power of Attorney executed by the
Defendant Nos.4(a) to 4(c) in favour of the Applicant and in the light of there
being no competing claim came to a conclusion that the Defendant Nos.4(a) to
4(c) are required to be brought on record as the heirs of the original Plaintiff.
Since the order passed in the Chamber Summons No.1309 of 2010 dated
22/10/2012 being not taken exception to by the Defendants, it is questionable
whether the Defendants can now take exception to the said Defendant
Nos.4(a) to 4(c) being transposed as the Plaintiff considering the fact that the
original Defendant No.4 was the brother of the Plaintiff and the suit in
question has been filed for a declaration that the Plaintiff and the Defendant
No.4 have one half undivided share in the property known as Victoria Terrace
comprising of Flat Nos. 2, 4 and 6 with the proportionate common areas
together with a one half undivided share in the land in which the building is
ig
standing.
An issue was also sought to be raised as regards the status of the
original Plaintiff at the time of her death, as according to the learned counsel
appearing for the Petitioners herein Shri Rajesh Shah it is no where mentioned
as to whether the Plaintiff died a spinster or whether she was married. In the
present Petition, an affidavit has been filed on behalf of the Respondent Nos. 1
to 3 i.e. the Defendant Nos.4(a) to 4(c). An affidavit in rejoinder has been filed
by the Petitioners disputing the averments made in the affidavit of the
Respondent Nos. 1 to 3.
In Paragraph No.2 of the affidavit of the Respondent Nos.1 to 3, it
has been stated that the original Plaintiff Marie Louise Monica Arlene Cousin
who expired on 17th May, 2012 was a spinster. It has further been stated in
Paragraph No.6 that the Respondent Nos.4 to 6 being the 1 st cousins of the
original Plaintiff are fully aware that she was never married and that she had
only 1 sibling i.e. her brother Alan (the original Defendant No.4). In the said
context the death certificate of the original Plaintiff can also be perused.
Though undoubtedly the death certificate can only be said to be an evidence of
the death of a particular person. The said death certificate also indicates that
the original Plaintiff has died a spinster as her maiden name appears in the
said certificate and in the column of marital status there is a blank appearing
and a line is put across in the said box. Hence there is a substance in the
contention of the learned counsel appearing on behalf of the Respondent
Nos.1, 2 and 3 that assuming that there is no Will in favour of the Defendant
Nos.4(a) to 4(c) they are entitled to be brought on record as the heirs of the
original Plaintiff having regard to Section 45 of the Indian Succession Act.
Though large number of prejudicial facts were sought to be stated by either
side, in my view, it is not necessary to go into the said aspect as the controversy
in the present Petition is limited only to the issue as to whether the Defendant
Nos.4(a) to 4(c) are entitled to be brought on record as the heirs of the original
Plaintiff and for their transposition as such.
Now coming to the judgments of the Apex Court (supra), in the
case of Jaladi Suguna's case (supra), the facts were that the Plaintiff Suguna
died during the pendency of the Appeal which was filed against the decree
which was in her favour. Two applications for being brought on record as heirs
were filed, one by her husband who claimed to be the sole heir, and the other
application which was filed by her nieces and nephews, who claimed on the
basis of a Will executed by Suguna in their favour. The High Court of Andhra
Pradesh directed the Trial Court under the proviso to Rule 5 of Order XXII of
the Code of Civil Procedure to try the said question and submit its findings.
The Trial Court accordingly held an enquiry and submitted a report to the High
Court. However, the High Court did not proceed to determine the said issue as
ig
to who was the legal representative of the said Suguna but proceeded to hear
the main Appeal and decided the same. It is in the said context that the Apex
Court held that the High Court should have decided the said issue firm before
deciding the Appeal, as by not deciding the issue, the Appeal has been
proceeded with against a dead person. However, what is relevant to note in the
context of the present Petition is that there were a competing claims in the said
case.
In the case of M/s. Kanhiya Singh Santok Singh (supra) the facts
were that a decree was passed in favour of the landlord i.e. Kartar Singh on the
ground of bonafide requirement, the said decree was passed at the Appellate
stage as the Trial Court had dismissed the suit in question. Against the said
decree the Defendant tenant Santok Singh had filed a Second Appeal in the
High Court. Pending the Second Appeal, the said Santok Singh died. The sons
of the said Santok Singh namely Man Mohan Singh and Jaswant Singh filed an
application for being brought on record as Appellants as according to them
they were ordinarily carrying on business along with their father as the
members of his family. The Respondent landlord filed a reply opposing the said
application, and prayed that the Appeal be dismissed as abated. The Lower
Appellate Court rejected the application by the sons. The objection of the
Respondent landlord was on the touchstone of the definition of “tenant” under
Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act,
ig
1950, as it was the case of the landlord that the sons of Santok Singh had
separated in view of the partition having taken place by way of family
settlement, the Applicants did not come within the category of a tenant. It is in
the said context that the Apex Court held that the High Court ought to have
conducted an enquiry under Order XXII Rule 5 of the Code of Civil Procedure
as to whether the Applicants could substitute the said Santok Singh. The said
enquiry was required to be conducted as the landlord had disputed the
entitlement of the sons of Santok Singh to be brought on record in view of the
definition of “tenant” in the Reajasthan Premises (Control of Rent & Eviction)
Act, 1950.
It is in the fact situation of the cases before the Apex Court, that
the Apex Court held that an inquiry under Rule 5 of Order XXII of the Code of
Civil Procedure would be necessary. However, such is not the case in the instant
matter as there are no competing claims and the issue is sought to be raised by
the Defendant Nos.2 and 3 by only making a bald statement that the
Defendant Nos.4(a) to 4(c) are not the heirs of the original Plaintiff. Hence in
by the Trial Court could not be faulted with.
so far as the instant matter is concerned, the enquiry to the extent carried out
In so far as the Applicant Mrs. Francesca Agatha Von Geyer is
concerned, it is required to be noted that the suit in question has been filed by
her as the Power of Attorney holder of the Plaintiff in the year 1999. As
contended by Shri Denzill D'mello, the learned counsel appearing on behalf of
the Respondent Nos.1 to 3 herein, she is not a stranger but is related both to
the Plaintiff and the original Defendant No.1 and now the Defendant Nos. 1(a)
to 1(c). The Applicant is the wife of Arnold who is the cousin of the original
Plaintiff. Hence it cannot be said that the proceedings are being conducted by a
stranger or that she is not entitled to file the application for bringing the heirs
of the Plaintiff on record.
17
In my view, therefore, the view taken by the Trial Court in
allowing the Application being Chamber Summons No.954 of 2012 cannot be
taken exception to. There is no error of jurisdiction or any other illegality
committed by the Trial Court in allowing the said Chamber Summons. No case
for interference is, therefore, made out. The above Writ Petition to accordingly
stand dismissed. Rule discharged with no order as to costs.
At this stage the learned counsel appearing on behalf of the
18
Petitioners seeks continuation of the stay which was initially granted on
12/2/2013 by the Trial Court and which is to continue till 25/3/2013 by virtue
of the order passed by this Court on 21/3/2013. In the facts and
circumstances of the present case, the said stay is continued for a period of
[R.M.SAVANT, J]
Print Page
case of Jaladi Suguna's case (supra), the facts were that the Plaintiff Suguna
died during the pendency of the Appeal which was filed against the decree
which was in her favour. Two applications for being brought on record as heirs
were filed, one by her husband who claimed to be the sole heir, and the other
application which was filed by her nieces and nephews, who claimed on the
basis of a Will executed by Suguna in their favour. The High Court of Andhra
Pradesh directed the Trial Court under the proviso to Rule 5 of Order XXII of
the Code of Civil Procedure to try the said question and submit its findings.
The Trial Court accordingly held an enquiry and submitted a report to the High
Court. However, the High Court did not proceed to determine the said issue as
ig
to who was the legal representative of the said Suguna but proceeded to hear
the main Appeal and decided the same. It is in the said context that the Apex
Court held that the High Court should have decided the said issue firm before
deciding the Appeal, as by not deciding the issue, the Appeal has been
proceeded with against a dead person. However, what is relevant to note in the
context of the present Petition is that there were a competing claims in the said
case.
In the case of M/s. Kanhiya Singh Santok Singh (supra) the facts
were that a decree was passed in favour of the landlord i.e. Kartar Singh on the
ground of bonafide requirement, the said decree was passed at the Appellate
stage as the Trial Court had dismissed the suit in question. Against the said
decree the Defendant tenant Santok Singh had filed a Second Appeal in the
High Court. Pending the Second Appeal, the said Santok Singh died. The sons
of the said Santok Singh namely Man Mohan Singh and Jaswant Singh filed an
application for being brought on record as Appellants as according to them
they were ordinarily carrying on business along with their father as the
members of his family. The Respondent landlord filed a reply opposing the said
application, and prayed that the Appeal be dismissed as abated. The Lower
Appellate Court rejected the application by the sons. The objection of the
Respondent landlord was on the touchstone of the definition of “tenant” under
Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act,
ig
1950, as it was the case of the landlord that the sons of Santok Singh had
separated in view of the partition having taken place by way of family
settlement, the Applicants did not come within the category of a tenant. It is in
the said context that the Apex Court held that the High Court ought to have
conducted an enquiry under Order XXII Rule 5 of the Code of Civil Procedure
as to whether the Applicants could substitute the said Santok Singh. The said
enquiry was required to be conducted as the landlord had disputed the
entitlement of the sons of Santok Singh to be brought on record in view of the
definition of “tenant” in the Reajasthan Premises (Control of Rent & Eviction)
Act, 1950.
It is in the fact situation of the cases before the Apex Court, that
the Apex Court held that an inquiry under Rule 5 of Order XXII of the Code of
Civil Procedure would be necessary. However, such is not the case in the instant
matter as there are no competing claims and the issue is sought to be raised by
the Defendant Nos.2 and 3 by only making a bald statement that the
Defendant Nos.4(a) to 4(c) are not the heirs of the original Plaintiff. Hence in
by the Trial Court could not be faulted with.
so far as the instant matter is concerned, the enquiry to the extent carried out
In so far as the Applicant Mrs. Francesca Agatha Von Geyer is
concerned, it is required to be noted that the suit in question has been filed by
her as the Power of Attorney holder of the Plaintiff in the year 1999. As
contended by Shri Denzill D'mello, the learned counsel appearing on behalf of
the Respondent Nos.1 to 3 herein, she is not a stranger but is related both to
the Plaintiff and the original Defendant No.1 and now the Defendant Nos. 1(a)
to 1(c). The Applicant is the wife of Arnold who is the cousin of the original
Plaintiff. Hence it cannot be said that the proceedings are being conducted by a
stranger or that she is not entitled to file the application for bringing the heirs
of the Plaintiff on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Mumtaz Iqbal Shaikh
versus
Alain Lousi Philip Cousin1
Citation;2013(3) ALL M R 884
R. M. SAVANT, J.
22nd March 2013
Citation; 2013 (3) ALL M R 884
Rule, with the consent of the learned counsel appearing for the
parties made returnable forthwith and heard.
2
The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 12/02/2013 passed by
the learned Judge, City Civil Court, Greater Mumbai, by which order the
application being Chamber Summons No.954 of 2012 for bringing the heirs of
the original Plaintiff by transposing the Defendant Nos.4(a) to 4(c) as
Plaintiffs came to be allowed.
The issue therefore which arises in the above Petition is as regards
2 of 19
the entitlement of the Defendant Nos.4(a) to 4(c) to be transposed as
Plaintiffs.
4
The suit in question was originally filed in this Court and was
numbered as L.C. Suit No.1948 of 1999. On the pecuniary jurisdiction of the
City Civil Court, Greater Mumbai being enhanced, the said suit came to be
transferred to the City Civil Court, Greater Mumbai and is now numbered as
S.C. Suit No.8446 of 1999. The said suit has been filed for seeking declaration
that the original Plaintiff and the Defendant No.4 are the owners of onehalf
undivided share in the property known as Victoria Terrace comprising of Flat
Nos. 2, 4 and 6 with the proportionate common areas together with one half
undivided share in the land on which the said building is standing. The
original Plaintiff also sought a declaration that the Agreement for Sale dated
3/7/1969 allegedly executed by the Plaintiff in favour of the Defendant No.1,
the Deed of Confirmation dated 23/10/1996 executed by the Defendant No.1
in her own favour and the Indenture dated 1/11/1996 executed by the
Defendant No.1 in favour of the Defendant Nos.2 and 3 are null and void and
liable to be set aside. The original Plaintiff has also sought a declaration that
the transfer of tenancy in respect of flat No.4 in Victoria Terrace by the
Defendant No.1 to Defendant No.3 is null and void and she is entitled to
possession of the said flat No.4. The original Plaintiff has also sought certain
consequential reliefs like mense profit and rendering of accounts etc.
In the said suit, the Plaintiff filed an application for injunction and
5
for appointment of receiver by way of Notice of Motion . Whilst adjudicating
upon the said Notice of Motion, a learned Single Judge of this Court
(A.P
.Shah.J. as His Lordship then was) has recorded a finding in respect of the
genuineness of the said Agreement for Sale dated 3/7/1969. The learned
Judge has expressed serious doubts about execution of the said Agreement for
are interalia the following :
The request of the Defendant No.1 for a Power of
(i)
Sale. The reasons recorded for the same, as can be seen from the said order,
Attorney to be executed in her favour was turned down
by the original Plaintiff Monica alias Mona Grace
Cousin;
(ii)
The Defendant No.1 had addressed a letter to the
Plaintiff that her share is not put up for disposal;
(iii)
That for a period of 15 years during which
correspondence was exchanged between the parties
there was not a whisper by the Defendant No.1 in
respect of the alleged Agreement dated 3/7/1969.
In so far as the Deed of Confirmation is concerned, the learned
Judge has posed a question as to how the Plaintiff can confer title on herself
by signing a Deed of Confirmation in her own favour. The learned Judge,
therefore, allowed the said Notice of Motion and appointed the Court Receiver,
High Court, Bombay as a Receiver of the property pending the suit. The
Receiver still continues to be in possession of the property.
ig
The Defendant No.4 i.e. Alan Cousin died on 17/7/2010, as a
consequence of which a Chamber Summons was filed by the Applicant i.e. the
Power of Attorney Holder of the original Plaintiff for bringing his heirs on
record. The said Chamber Summons No.1309 of 2010 came to be allowed by a
learned Single Judge of this Court by order dated 22/12/2010. It is an
undisputed position that the said order was not carried further and therefore
the order allowing the heirs of the Defendant No.4 i.e. the Defendant Nos.4(a)
to 4(c) to be brought on record has become final.
Thereafter the Plaintiff i.e. Marie Lousie Arlene Cousin died on
15/5/2012. This has resulted in the Applicant i.e. her Power of Attorney
Holder Mrs. Francesca Agatha Von Geyer filing an application for bringing her
heirs on record in the matter of substituting the Plaintiff by Defendant Nos.4(a)
and 4(c). This was by way of the present Chamber Summons No.954 of 2012.
To the affidavit in support of the said Chamber Summons a death certificate of
the said Marie Cousin was annexed. The said Chamber Summons was filed on
the basis of the Power of Attorney which has been executed by the Defendant
Nos.4(a) to 4(c) in favour of the Applicant which is dated 1/6/2012. The said
Chamber Summons was founded on the fact that the Defendant Nos.4(a) to
4(c) are the only heirs of the original Plaintiff and since the right to sue
survives to them, they are required to be brought on record.
ig
To the said Chamber Summons, the Defendants have also
filed their replies and the opposition to bring the Defendant Nos.4(a) to 4(c)
on record is on the ground that though it is claimed that there is a Will in
favour of the Defendant Nos.4(a) to 4(c), no probate of the said Will has been
obtained or even the Will produced. It is further averred that the Defendant
Nos.4(a) and 4(c) have failed to establish that they are the heirs and legal
representatives of the deceased Plaintiff. The Defendants questioned the Power
of Attorney executed by the Defendant Nos.4(a) to 4(c) in favour of the
Applicant on the ground that there was no rubber stamp of the notary and the
number of the notary registration was not affixed and therefore according to
the Defendants the said Power of Attorney was suspicious. It was the case of
the Defendants that under Order XXII Rule 5 of the Code of Civil Procedure the
Court is required to adjudicate upon the issue as to who are the legal
representatives of the Plaintiff in the event an objection is raised in that regard.
lgc
In answer to the said objection, it was the case of the Applicant
that the Power Attorney Holder bears the seal of the notary and that the
Defendant Nos.4(a) and 4(c) are the only legal representatives of the Plaintiff.
It was further the contention of the Applicant that under the Indian Succession
Act, the heirs of the deceased who dies intestate are entitled to succeed to his
property and therefore to represent the estate of the Plaintiff, the heirs of the
ig
Plaintiffs are required to be brought on record in the suit.
8
The Trial Court considered the said Chamber summons and by the
impugned order has allowed the same. The gist of reasoning of the Trial Court
as can be seen is that the claim of the Applicant that the Defendant Nos.4(a) to
4(c) being the heir of the original Plaintiff is not challenged by any third party
who in turn claims to be the heirs of the deceased Plaintiff. The Trial Court on
a perusal of the Power of Attorney also observed that the said Power of
Attorney is executed in the U.K. and bears the seal of the notary and in view of
the presumption which arises under Section 85 of the Indian Evidence Act, a
presumption would arise that the Power of Attorney has been executed before
the notary. The Trial Court therefore reached a conclusion that the Applicant
was therefore entitled to file the application in question and since the estate of
the Plaintiff was required to be represented by the Defendant Nos.4(a) to 4(c)
they were required to transposed as Plaintiffs in place of the original Plaintiff.
As indicated above, it is the said order dated 12/2/2013 which is impugned in
lgc
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the present Petition.
Heard the learned counsel for the parties. On behalf of the
9
Petitioners the principal contention of Shri Rajesh Shah the learned counsel
appearing for the Petitioners is that in case of dispute as to who are the legal
representatives of a party it is incumbent upon the Trial Court to conduct an
inquiry as contemplated by Rule 5 of Order XXII of the Code of Civil Procedure.
The learned counsel for the Petitioners would contend that without such
inquiry the Chamber Summons for transposing the Defendant Nos.4(a) to 4(c)
could not have been allowed.
To buttress the said contention, the learned counsel for the
Petitioners sought to rely upon the judgments of the Apex Court reported in
AIR 2008 SC 2866 in the matter of Jaladi Suguna (Dead) through L.Rs. V
Satya Sai Central Trust & ors. and the judgment reported in AIR 2009 SC
1600 in the matter of M/s. Kanhiya Singh Santok Singh & ors v/s. Kartar
Singh. The said judgments according the learned counsel for the Petitioners
lay down the course of action which the Trial Court is required to follow in the
event there is a dispute as to who is the heir or heirs of a particular party. The
learned counsel would contend that though the Applicant relies upon the Will
of the Plaintiff in favour of the Defendant Nos. 4(a) to 4(c), no such Will has
been produced. The learned counsel for the Petitioners would contend that
allowing the said Chamber Summons filed by the Applicant, who is the Power
of Attorney Holder, would result in continuing the litigation by proxy. The
learned counsel for the Petitioners would contend that nobody has seen or
knows the where abouts of the the Defendant Nos.4(a) to 4(c) which includes
the heirs of the Defendant No.1.
The learned counsel appearing for the Defendant Nos.1(a) to 1(c)
10
ig
i.e. the Respondent Nos.4, 5 and 6 herein Ms.Sheetal Kumar would also
support the contention of the Shri Rajesh Shah on the entitlement of the
Defendant Nos.4(a) to 4(c) for being transposed as Plaintiffs. The learned
counsel Ms. Sheetal Kumar also urged that the Defendant Nos. 1(a) to 1(c)
have not heard anything about the Defendant Nos.4(a) to 4(c). The learned
counsel for the said purpose also sought to rely upon the deposition of Arnold
recorded in the companion suit.
11
Per contra, Shri D’Mello the learned counsel appearing for the
Applicant would seek to rely upon the order passed in the Notice of Motion
filed for appointment of the Receiver and would contend that at the stage of
considering the application for appointment of Receiver, this Court has
recorded a finding as regards the falsity of the case of the Defendant No.1 and
has expressed serious reservations about the genuineness of the Agreement for
Sale dated 3/7/1969. The learned counsel would contend that the Power of
Attorney Holder i.e. the Applicant is not a stranger but she is the wife of Arnold
who is the cousin of the original Plaintiff, and therefore, the Applicant is also
related to the original Plaintiff and the Defendant No.1(a) to 1(c). The learned
counsel would contend that the question of conducting an inquiry would arise
only if there are rival claims, however, in the instant case, except the denial by
the third parties i.e. the Defendants 2 and 3, which denial is also without
mentioning any other heirs of the Plaintiff, an issue is sought to be raised. The
learned counsel for the Applicant would distinguish the facts of the present
case with the facts before the Apex Court in the two judgments cited (supra).
The learned counsel would contend that the scope of the inquiry in the present
case would be limited and to the extent as carried out by the Trial Court. The
learned counsel would contend that ultimately the endeavour is to see that the
estate of the deceased is represented. The learned counsel would contend that
since the Defendant Nos.2 and 3 have not questioned the order allowing the
Defendant Nos.4(a) to 4(c) being brought on record as the heirs of the
Defendant No.4, the said Defendants now cannot question the transposing of
the said Defendant Nos.4(a) to 4(c) as Plaintiffs and, as the Plaintiff and the
Defendant No.4 were brother and sister. The learned counsel would lastly
contend that assuming that there is no Will, the Defendant Nos.4(a) to 4(c) are
entitled to be brought on record as the heirs of the Plaintiff having regard to
Section 45 of the Indian Succession Act.
Having heard the learned counsel for the parties, I have bestowed
my anxious consideration to the rival contentions. At the out set it is required
to be noted that the relief sought in the suit is a declaration which the Plaintiff
sought that she and the Defendant No.4 are the joint owners of the onehalf
undivided share in the property known as Victoria Terrace. As adverted to
herein above, this Court has recorded findings at the stage of considering the
application for appointment of Court Receiver, which findings are revolving
ig
around the falsity of the case of the Defendant No.1 as regards execution of the
Agreement for Sale dated 3/7/1969. A learned Single Judge of this Court has
also expressed serious doubts about the genuineness of the document, and
expressed surprise about the fact that the Defendant No.1 by executing the
Deed of Confirmation has sought to bestow title upon herself. The learned
Single Judge of this Court, as mentioned herein above, deemed it fit to appoint
the Court Receiver who is still in possession of the property in question.
13
One of the defining aspect as it were which has a bearing in the
context of the relief sought in the Chamber Summons is the order dated
22/12/2010 passed in Chamber Summons No.1309 of 2010 thereby allowing
the Defendant Nos.4(a) to 4(c) to be brought on record as the heirs of the
Defendant No.4. The said Defendant Nos.4(a) to 4(c) are the children of the
Defendant No.4 and they have been brought on record pursuant to the said
order dated 22/12/2010. Significantly the said order was not challenged by
any of the Defendants by carrying the matter higher, and therefore, as
contended by the learned counsel appearing on behalf of the Applicant the said
order has become final. The consequence of the said order have to be borne in
mind considering the fact that the Defendant No.4 was the brother of the
Plaintiff.
Now coming to the contention of the learned counsel appearing
14
for the Petitioners Shri Rajesh Shah that the Trial Court ought to have
conducted an inquiry in view of the dispute raised by the Petitioners i.e. the
Defendant Nos.2 and 3 as regards whether the Defendant Nos.4(a) to 4(c) are
the heirs of the original Plaintiff. It would therefore be opposite to reproduce
Rule 5 of Order XXII :
“Rule 5
Determination of question as to legal
representative Where a question arises as to whether
any person is or is not the legal representative of a
deceased plaintiff or a deceased defendant, such
question shall be determined by the Court :
Provided that where such question arises before
an Appellate Court, that Court may, before determining
the question, direct any subordinate Court to try the
question and to return the records together with
evidence, if any recorded at such trial, its findings and
reasons therefor, and the Appellate Court may take the
same into consideration in determining the question.]”
Reading of the said Rule postulates that where a question arises as to whether
any person is or is not the legal representative of a deceased plaintiff or a
deceased defendant, such question shall be determined by the Court . The said
Rule therefore postulates an inquiry when there is a dispute as to who is the
legal representative. In the instant case, as can be seen, except Defendant
Nos.4(a) to 4(c), nobody has come forward to claim that he or she is the legal
representative of the original Plaintiff. Pertinently it is only the Defendant
Nos.2 and 3 who are the beneficiaries of the alleged Agreement for Sale dated
3/7/1969 and the subsequent Sale Deed dated 1111996 executed by the
Defendant No.1 who have taken an objection and have denied that the
Defendant Nos.4(a) to 4(c) are the heirs of the original Plaintiff. However, it is
not their case that there are any other heir or heirs of the original Plaintiff
who have a better right than the Defendant Nos.4(a) to 4(c). Hence
considering the nature of the objection, the inquiry was limited to the extent
whether the application made by the Applicant was in order, and whether the
Applicant could represent the estate of the deceased. As indicated above there
are no competing or rival claims between heirs for being brought on record.
The Trial Court as can be seen from the impugned order has gone into the
aspect of legality and validity of the Power of Attorney executed by the
Defendant Nos.4(a) to 4(c) in favour of the Applicant and in the light of there
being no competing claim came to a conclusion that the Defendant Nos.4(a) to
4(c) are required to be brought on record as the heirs of the original Plaintiff.
Since the order passed in the Chamber Summons No.1309 of 2010 dated
22/10/2012 being not taken exception to by the Defendants, it is questionable
whether the Defendants can now take exception to the said Defendant
Nos.4(a) to 4(c) being transposed as the Plaintiff considering the fact that the
original Defendant No.4 was the brother of the Plaintiff and the suit in
question has been filed for a declaration that the Plaintiff and the Defendant
No.4 have one half undivided share in the property known as Victoria Terrace
comprising of Flat Nos. 2, 4 and 6 with the proportionate common areas
together with a one half undivided share in the land in which the building is
ig
standing.
An issue was also sought to be raised as regards the status of the
original Plaintiff at the time of her death, as according to the learned counsel
appearing for the Petitioners herein Shri Rajesh Shah it is no where mentioned
as to whether the Plaintiff died a spinster or whether she was married. In the
present Petition, an affidavit has been filed on behalf of the Respondent Nos. 1
to 3 i.e. the Defendant Nos.4(a) to 4(c). An affidavit in rejoinder has been filed
by the Petitioners disputing the averments made in the affidavit of the
Respondent Nos. 1 to 3.
In Paragraph No.2 of the affidavit of the Respondent Nos.1 to 3, it
has been stated that the original Plaintiff Marie Louise Monica Arlene Cousin
who expired on 17th May, 2012 was a spinster. It has further been stated in
Paragraph No.6 that the Respondent Nos.4 to 6 being the 1 st cousins of the
original Plaintiff are fully aware that she was never married and that she had
only 1 sibling i.e. her brother Alan (the original Defendant No.4). In the said
context the death certificate of the original Plaintiff can also be perused.
Though undoubtedly the death certificate can only be said to be an evidence of
the death of a particular person. The said death certificate also indicates that
the original Plaintiff has died a spinster as her maiden name appears in the
said certificate and in the column of marital status there is a blank appearing
and a line is put across in the said box. Hence there is a substance in the
contention of the learned counsel appearing on behalf of the Respondent
Nos.1, 2 and 3 that assuming that there is no Will in favour of the Defendant
Nos.4(a) to 4(c) they are entitled to be brought on record as the heirs of the
original Plaintiff having regard to Section 45 of the Indian Succession Act.
Though large number of prejudicial facts were sought to be stated by either
side, in my view, it is not necessary to go into the said aspect as the controversy
in the present Petition is limited only to the issue as to whether the Defendant
Nos.4(a) to 4(c) are entitled to be brought on record as the heirs of the original
Plaintiff and for their transposition as such.
Now coming to the judgments of the Apex Court (supra), in the
case of Jaladi Suguna's case (supra), the facts were that the Plaintiff Suguna
died during the pendency of the Appeal which was filed against the decree
which was in her favour. Two applications for being brought on record as heirs
were filed, one by her husband who claimed to be the sole heir, and the other
application which was filed by her nieces and nephews, who claimed on the
basis of a Will executed by Suguna in their favour. The High Court of Andhra
Pradesh directed the Trial Court under the proviso to Rule 5 of Order XXII of
the Code of Civil Procedure to try the said question and submit its findings.
The Trial Court accordingly held an enquiry and submitted a report to the High
Court. However, the High Court did not proceed to determine the said issue as
ig
to who was the legal representative of the said Suguna but proceeded to hear
the main Appeal and decided the same. It is in the said context that the Apex
Court held that the High Court should have decided the said issue firm before
deciding the Appeal, as by not deciding the issue, the Appeal has been
proceeded with against a dead person. However, what is relevant to note in the
context of the present Petition is that there were a competing claims in the said
case.
In the case of M/s. Kanhiya Singh Santok Singh (supra) the facts
were that a decree was passed in favour of the landlord i.e. Kartar Singh on the
ground of bonafide requirement, the said decree was passed at the Appellate
stage as the Trial Court had dismissed the suit in question. Against the said
decree the Defendant tenant Santok Singh had filed a Second Appeal in the
High Court. Pending the Second Appeal, the said Santok Singh died. The sons
of the said Santok Singh namely Man Mohan Singh and Jaswant Singh filed an
application for being brought on record as Appellants as according to them
they were ordinarily carrying on business along with their father as the
members of his family. The Respondent landlord filed a reply opposing the said
application, and prayed that the Appeal be dismissed as abated. The Lower
Appellate Court rejected the application by the sons. The objection of the
Respondent landlord was on the touchstone of the definition of “tenant” under
Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act,
ig
1950, as it was the case of the landlord that the sons of Santok Singh had
separated in view of the partition having taken place by way of family
settlement, the Applicants did not come within the category of a tenant. It is in
the said context that the Apex Court held that the High Court ought to have
conducted an enquiry under Order XXII Rule 5 of the Code of Civil Procedure
as to whether the Applicants could substitute the said Santok Singh. The said
enquiry was required to be conducted as the landlord had disputed the
entitlement of the sons of Santok Singh to be brought on record in view of the
definition of “tenant” in the Reajasthan Premises (Control of Rent & Eviction)
Act, 1950.
It is in the fact situation of the cases before the Apex Court, that
the Apex Court held that an inquiry under Rule 5 of Order XXII of the Code of
Civil Procedure would be necessary. However, such is not the case in the instant
matter as there are no competing claims and the issue is sought to be raised by
the Defendant Nos.2 and 3 by only making a bald statement that the
Defendant Nos.4(a) to 4(c) are not the heirs of the original Plaintiff. Hence in
by the Trial Court could not be faulted with.
so far as the instant matter is concerned, the enquiry to the extent carried out
In so far as the Applicant Mrs. Francesca Agatha Von Geyer is
concerned, it is required to be noted that the suit in question has been filed by
her as the Power of Attorney holder of the Plaintiff in the year 1999. As
contended by Shri Denzill D'mello, the learned counsel appearing on behalf of
the Respondent Nos.1 to 3 herein, she is not a stranger but is related both to
the Plaintiff and the original Defendant No.1 and now the Defendant Nos. 1(a)
to 1(c). The Applicant is the wife of Arnold who is the cousin of the original
Plaintiff. Hence it cannot be said that the proceedings are being conducted by a
stranger or that she is not entitled to file the application for bringing the heirs
of the Plaintiff on record.
17
In my view, therefore, the view taken by the Trial Court in
allowing the Application being Chamber Summons No.954 of 2012 cannot be
taken exception to. There is no error of jurisdiction or any other illegality
committed by the Trial Court in allowing the said Chamber Summons. No case
for interference is, therefore, made out. The above Writ Petition to accordingly
stand dismissed. Rule discharged with no order as to costs.
At this stage the learned counsel appearing on behalf of the
18
Petitioners seeks continuation of the stay which was initially granted on
12/2/2013 by the Trial Court and which is to continue till 25/3/2013 by virtue
of the order passed by this Court on 21/3/2013. In the facts and
circumstances of the present case, the said stay is continued for a period of
[R.M.SAVANT, J]
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