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Smt. Rajo v. Smt. Maya And Others - WRIT - C No. 5378 of 2006 [2006] RD-AH 2175 (27 January 2006)


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Court No. 23

Civil Misc. Writ Petition No. 5378 of 2006

Smt. Rajo Vs.  Smt. Maya and others



Heard learned counsel for the petitioner.

It is contended that in a suit for specific performance of contract being Original Suit No. 841 of 1998, the sole defendant Smt. Pyari had died and in an application under Order XXII Rule 4 C.P.C. the plaintiff sought substitution of Smt. Pyari by three persons, namely, the petitioner and the respondents No.2 and 3 Azad Masih and Shamsad Masih. On the service of the notice, the petitioner contested the substitution application and filed her objections along with counter affidavit stating that Azad Masih and Shamsad Masih were not actually the persons who were the legal representatives of the deceased. It was only the petitioner, by virtue of a will dated 10.3.1997, who had become entitled to inherit the entire property in suit and she should alone be brought at the place of the deceased as her legal representative. It was further stated that Azad Masih and Shamsad Masih were the step-sons of the deceased and in a suit relating to the same subject matter involved in the present suit it has been settled by the court through a decree dated 6.5.1995 that the deceased Smt. Pyari was alone entitled to the property and these people had no title therein. On the basis of the aforesaid, the learned counsel for the petitioner has tried to emphasise that these Azad Masih and Shamsad Masih were not entitled to succeed to the estate left behind by the deceased, Smt. Pyari and as such they were not her legal representatives. It is only the petitioner Smt. Rajo, in whose favour the sale has been executed, should be incorporated by way of substitution at the place of the deceased.

These submissions of the learned counsel do not appear to be wholly convincing because it is admitted that Azad Masih and Shamsad Masih happen to be the step-sons of the deceased Smt. Pyari. The status of step-sons altogether cannot be negatived so far as their right to the property left by the deceased is concerned. Accordingly if the court below has allowed the substitution application as a whole also directing incorporation of the names of the aforesaid two persons at the place of the deceased, there does not appear any illegality as such because the entitlement to the property is not decided by an order passed on the substitution application. As such this petition on the face of if do not have any strength as to warrant an interference in the orders impugned.

The petition, having no force, is hereby dismissed.

These observations as given above are relevant only for the purpose of substitution petition which has already been disposed of by the orders challenged in this petition.




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