Dharamvir vs Mela Ram - Pespondent

J.V. Gupta, A.C.J.—This petition is directed against the order of the trial Court dated September 15, 1987 whereby the application filed by Dharamvir claiming himself to be the legal representative of the deceased Shiv Ram was dismissed.

Shiv Ram filed a suit for mandatory injunction against his son Mela Ram. The suit was filed on February 2, 1980. During the pendency of the suit Shiv Ram died on June 4, 1984. He left behind two sons an the daughter. On his death, notice was sent to all the legal representatives to come forward and contest the suit. However, Dharamvir son of Roshan Lal, grandson of the deceased Shiv Ram, came forward and moved and application for being impleaded as a legal representative of the deceased on the strength of a Will executed in his favour. Defendant Mela Ram also claimed to be the sole owner of the suit property in view of the alleged Will in his favour executed by the deceased. By the impugned order the learned trial Court found that both the parties i.e. Dharamvir as well as Mela Ram had failed to prove the Wills executed in their favour and consequently it was held that since nobody is fit to be brought on record as legal heir, the suit filed by Shiv Ram Dass stands abated.

Learned counsel for the petitioner submitted that since dispute is between the brothers and the sisters it was a fit case where all the legal representatives of deceased Shiv Ram Dass should be brought on record so that there could be final adjudication of the dispute between the parties. On the other hand, learned counsel for the respondent submitted that the petitioner may file a separate suit to prove the Will in his favour and in case the suit is decreed he may get the present suit revived.

After hearing the learned counsel for the parties I am of the considered view that since the dispute is between the brothers and sisters, it is a fit case where all the legal heirs of the deceased Shiv Ram Dass be brought on the record and notice be sent to them and those who do not come forward to contest the suit, they may be added as defendants, whereas those who come forward to contest the suit as legal representatives of Shiv Ram Dass deceased, may be added as plaintiffs. After the said legal heirs are brought on the record, the Court will proceed with the suit and decide the same on merits so that there is a final adjudication of the controversy between the parties. The finding of the trial Court regarding the validity of the two Wills set up by Dharamvir and Mela Ram will be of consequence as fresh issues may be framed in the suit itself and the matter be decided afresh after the parties lead evidence. It is necessary because then the parties will be at liberty to challenge the findings in an appeal whereas the findings arrived at in the impugned order, are not appealable. Consequently, this petition succeeds, the impugned order is set aside and the case is sent back to the trial Court for impleading all the legal heirs of the deceased Shiv Ram in the suit and to proceed with the same as directed earlier. The parties have been directed to appear in the trial Court on May 28, 1990. Records of the case be sent back forthwith.