Trial Courts Must Conduct Summary Inquiry Under O.22 R.5 CPC To Ascertain Legal Heirs In Disputes: Jharkhand High Court

The Jharkhand High Court in a judgment delivered recently emphasised the mandatory nature of conducting a summary inquiry under Order 22 Rule 5 of the Civil Procedure Code (CPC) when disputes arise regarding the legal heirs of a deceased plaintiff or defendant.

Justice Subhash Chand, presiding over the case, held: “Where there is dispute in regards to legal heirs of deceased plaintiff or defendant the trial court should adopt summary inquiry under Order 22 Rule 5 of the Civil Procedure Code as to who is the legal heir from the rival claimants. It is mandatory for the court to determine the legal heir taking into consideration the right to sue or be sued is surviving."Where there is dispute in regards to legal heirs of deceased plaintiff or defendant the trial court should adopt summary inquiry under Order 22 Rule 5 of the Civil Procedure Code as to who is the legal heir from the rival claimants. It is mandatory for the court to determine the legal heir taking into consideration the right to sue or be sued is surviving.”

The above ruling came in a civil miscellaneous petition preferred on behalf of the petitioner against the order passed by the trial court in a title suit whereby the trial court allowed the petition filed by the intervenor - Dhruo Dubey - under Order XXII Rule 10 read with Section 151 of C.P.C. to be substituted as the legal heir of the original plaintiff, Ram Dulari Devi.

The petitioner contended that the trial court had failed to consider key facts, including that the will allegedly executed by the deceased was not annexed with the substitution petition, and that Ram Dulari Devi had left behind natural legal heirs, namely her four daughters and the legal heirs of her deceased daughter.

The Court, in its judgement, reiterated that it is a settled law that if any legal heirs of a party in suit comes to be substituted on the basis of will as plaintiff/appellant in a suit, for the same, there is no requirement of probate. “But claiming to be the legal heir on the basis of the will Dhruo Shankar Dubey has not filed the will along with the petition for substitution as plaintiff,” the Court added.

The Court further said, “The very application of Dhruo Shankar Dubey is under Order 22 Rule 10 of C.P.C. and same is under the wrong provision, still it is not fatal because the caption of the application is not material, rather it is the subject matter of the application. From the basis of the same, the intention of the applicant and relief sought is to be gathered.”

The Court pointed out that after the death of sole plaintiff, if the natural legal heirs left by the deceased plaintiff also come forward to be substituted as plaintiff in the suit and Dhruo Dubey who was Opposite Party, who had already moved the application to be substituted as a plaintiff on the basis of the will.

“It is incumbent upon the Court below in view of the settled legal proposition of law that both the natural legal heirs and Dhruo Shankar Dubey who is claiming on the basis of the will should be impleaded as party in the suit,” the Court said.

The High Court, observed that the trial court had failed to consider these crucial facts and, as a result, passed an order based on a “perverse finding.” The Court stated, “the learned Court below has not taken into consideration while allowing the application of Dhruo Shankar Dubey, this very material fact that deceased had also left the natural legal heirs, four daughters and the legal heirs of fifth daughter as well...”

The Court directed the lower court to reconsider the substitution application, allowing Dhruo Shankar Dubey to file the will if not already done, and to take into account whether the natural legal heirs of Ram Dulari Devi would come forward to be substituted as plaintiffs.

The court pointed out that the trial court had ignored the fact that the deceased had left behind natural legal heirs, and had failed to conduct a proper inquiry regarding the rival claims of legal heirs.

The High Court set aside the trial court's order and directed the learned trial court to reconsider the substitution application afresh, giving Dhruo Shankar Dubey an opportunity to file the will if it had not already been submitted, and to take into account whether the natural legal heirs of the deceased had come forward to be substituted as plaintiffs. If they did not, the court was instructed to note this fact while disposing of the substitution application.

Case Title: Diwakar Chandra Pandey vs Dhruo Shankar Dubey @ Dhruv Shankar Dubey

LL Citation: 2024 LiveLaw (Jha) 192

Click Here To Read Judgement