IN THE HIGH COURT OF MADHYA PRADESH

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AT INDORE

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BEFORE

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HON'BLE SHRI JUSTICE ALOK AWASTHI

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MISC. PETITION No. 5657 of 2018

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FAKIRCHAND S/O LATE DHURJI NAI DECEASED THRU. LRS SMT.

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SUNDRBAI AND OTHERS

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Versus

RAMCHANDRA S/O LATE NATHAJI NAI DECEASED THRU. LRS

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SMT. SAMPATBAI AND OTHERS

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Appearance:

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Shri A. K. Chitale, learned Senior Counsel assisted by Shri Sandeep

Kochatta, learned counsel for the petitioners.

Shri Sukh Lal Gwaliory, learned counsel for the LRs. of respondent

No.1.

Shri A. K. Sethi, learned Senior Counsel assisted by Shri Harish Joshi,

learned counsel for respondents No.2 & 3.

RESERVED ON : 10.12.2025

DELIVERED ON : 10.02.2026

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ORDER

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The petitioners before this Court have filed the present petition under

Article 227 of the Constitution of India being anguished by the order dated

30.06.2017 passed by the I

st

Additional District Judge, Ratlam, whereby

Miscellaneous Appeal No.01/2015 filed under Order XLIII Rule 1(k) of the

Code of Civil Procedure, 1908 has been dismissed and judgment and decree

passed by the I

st

Civil Judge, Class - I, Ratlam in Civil Suit No.114-A/1994

1 MP-5657-2018NEUTRAL CITATION NO. 2026:MPHC-IND:4173

has been affirmed.

02. Draped in brevity, the relevant facts are that predecessor of

present petitioners Shankarlal filed a civil suit for partition joint family

property and the agricultural land bearing Khata No.358, Survey Nos.191,

464 and 466 admeasuring 7.320 hectare against his brother Ramchandra,

mother Smt. Nathi Bai and another pre-deceased brother Dhuraji through his

legal heirs on 05.10.1982.

03. During the pendency of the civil suit and after a lapse of ten

years, Shankarlal (original plaintiff) died on 19.12.1992. It is an admitted

position that Shankarlal was unmarried and died issueless. He was being

looked after by his nephew Fakirchand. During the life time, Shankarlal

executed a Will in favour of Fakirchand on 05.03.1994. By the said will, the

original plaintiff bequeathed all his properties including the land in question

to Fakirchand. Therefore, on the basis of said bequest, an application under

Order XXII Rules 3 & 9 of the CPC along with an application under Section

5 of the Limitation Act for substitution of name of the petitioners' ancestor

Fakirchand in place of original plaintiff was filed on 07.05.1993. An

application under Order XXII Rule 10 was also filed on the same day.

04. The aforesaid applications came up for consideration on

16.02.1995. Since no one marked presence of behalf of the original plaintiff,

the suit was dismissed for want of prosecution. Thereafter, Fakirchand

submitted an application under Order IX Rule 9 of the CPC for restoration of

the civil suit. The defendants opposed the said application and prayed for

rejection of the same.

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05. Vide order dated 08.07.1996, the learned trial Court has rejected

the application by holding that the said application is not maintainable by not

interfering with the earlier order.

06. Being aggrieved by the aforesaid order, Fakirchand filed a

miscellaneous civil appeal under order XLVIII Rule 1 of the CPC before the

Court of IVth Additional District Judge, Ratlam which came to be rejected

vide order dated 18.03.2002.

07. Feeling aggrieved by the order dated 18.03.2002, a civil revision

was preferred before this Court i.e. Civil Revision No.528 of 2022, which

came to be allowed vide order dated 20.07.2005 by setting aside the orders

passed by the Courts below. It was further directed to the trial Court to

decide the partition suit in accordance with law.

08. In pursuant to the aforesaid order, the matter again came up for

consideration before the learned trial Court and the same was partially

allowed vide order dated 15.05.2006. Being aggrieved, the respondents /

defendants approached this Court by way of petition under Article 227 of the

Constitution of India i.e. Writ Petition No.4563 of 2006 which came to be

allowed by observing thus:-

''8. The impugned order is accordingly not liable to be sustained,

it is, therefore, set aside. As a consequence, the petition is allowed

and the impugned order is set aside. The trial court is directed to

decide the question whether Fakirchand is a legal representative of

Shankarlal on the strength of the will alleged to have been

executed by Shankarlal on 05.03.1984. Let the inquiry to this

effect be held in accordance with law, preferably within a period

of three months from the date of production of this order by the

trial court and depending upon the outcome of of the inquiry,

appropriate orders permitting Fakirchand to become the plaintiff

3 MP-5657-2018NEUTRAL CITATION NO. 2026:MPHC-IND:4173

be passed. Record of the case requisitioned by this Court be

forthwith sent back to the concerned trial court to enable him to

decide the issue as directed above. Parties to appear before the

trial court on 27.11.2006. Depending upon the outcome of the

inquiry, if occasion arises, the suit be then disposed of within 6

months because it is one of the old pending in court since 1982.''

09. Thereafter, the learned trial Court vide order dated 24.11.2007

rejected the application for substitution of name of Fakirchand in place of

name of original plaintiff vide order dated 24.11.2007. Consequently, the suit

was also dismissed for want of legal representative of original plaintiff

Shankarlal.

10. Being anguished by the aforesaid order, Fakirchand approached

the District Judge by way of an application under Order XLIII Rule 1(k) of

the CPC on 01.01.2010 and the same was registered as Miscellaneous

Appeal No.1/2015. During the pendency of the appeal, Fakirchand died on

02.10.2011. The petitioners, being the legal representatives of the deceased

submitted an application under XXII Rule 3 of the CPC for substitution of

their names and the same was allowed by permitting to substitute the names

of petitioners in appeal memo. Thereafter, the matter was adjourned for more

than 20 years and the matter was reserved for judgment on 30.06.2017. Vide

judgment dated 30.06.2017, the learned District Judge has dismissed the

appeal.

11. Being aggrieved by the aforesaid judgment, the petitioners again

approached this Court by way of Civil Revision No.112 of 2017 which was

disposed of vide order dated 24.10.2018 by permitting the petition to file a

writ petition as civil revision was not maintainable. Hence, present

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miscellaneous petition.

12. The first submission of the learned Senior Counsel for the

petitioners is regarding 'Application for Transposition of name of Fakirchand

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as plaintiff in place of original plaintiff Shankar'

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and it is being submitted

that the Apex Court in the case of Dwarika Prasad v/s Nirmala

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reported in

(2010) 2 SCC 107

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has held that in a suit for partition of the joint properties,

every defendant is also in the capacity of the plaintiff and would be entitled

to decree in his favour, if it is established that he has a share in the properties.

Therefore, the suit for partition of the joint properties filed by the late father

of respondent No.1 could not have been dismissed as withdrawn without

notice to another brother, who was also entitled to a share in the properties.

Further in the case of Azgar Barid v/s Nazambi reported in (2022) 5 SCC

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334

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, it has been held that in a suit for partition, the position of the plaintiff

and the defendant can be interchangeable. Each party adopts the same

position with the other parties. It is further held that so long as the suit is

pending, a defendant can ask the Court to transpose him as a plaintiff and a

plaintiff can ask for being transposed as a defendant.

13. The second argument of learned Senior Counsel for the

petitioners is regarding 'Will required to be proved in only a summary

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enquiry'

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and 'Will duly proved by Examining attesting witness but held

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suspicious due to non-examination of advocate'

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. To elaborate the aforesaid

submissions, learned Senior Counsel has taken the prop of the judgment

delivered in the case of Ram Bai Padmakar v/s Runmini Bai reported in

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(2003) 8 SCC 537

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, in which the Apex Court has held thus:-

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''9. The learned District Judge has observed that Smt. Yamunabai was

very old when she executed the Will and she was hard of hearing and was

unable to walk. He further observed that Chhaya Dighe who typed the

Will and one Shri Tiwari, Advocate, who was present at the time of

preparation and execution of the Will, were not examined and these facts

together created a doubt regarding the authenticity of the Will. As

discussed earlier, in view of Section 63 of Indian Succession Act the

proviso to Section 68 of the Evidence Act, the requirement of law would

be fully satisfied if only one of the attesting witness is examined to prove

the Will. That this had been done in the present case by examining PW2

Raghunath Govind Sogale cannot be disputed. No infirmity of any kind

had been found in the testimony of this witness. Chhaya Dighe merely

typed the Will and she is not an attesting witness nor it is anybody's case

that Smt. Yamunabai had put her thumb impression on the Will in her

presence, therefore, her examination as a witness was wholly redundant.

The mere non examination of the Advocate who was present at the time of

preparation or registration of the Will cannot, by itself, be a ground to

discard the same. The fact that Smt. Yamunabai was hard of hearing or

that she was unable to walk does not lead to an inference that her mental

faculties had been impaired or that she did not understand the contents of

the document which she was executing. It is important to note that Smt.

Yamunabai personally came to the office of the Sub-Registrar and her

death took place after a considerable period i.e. 3 years and 9 months after

the execution of the Will. No evidence has been adduced by the

defendants to show that at the time of the execution of the Will she had

been suffering from any such ailment which had impaired her mental

faculties to such an extent that she was unable to understand the real

nature of the document which she was executing. We are, therefore,

clearly of the opinion that the finding recorded by the learned District

Judge, which has been affirmed by the High Court in second appeal, is not

based upon a correct application of legal principles governing the proof

and acceptance of Will and the same is completely perverse. The aforesaid

finding is accordingly set aside. The finding recorded by the trial Court

that Will is genuine is hereby restored.''

14. The third argument of learned Senior Counsel for the petitioners

is regarding 'Only summary enquiry regarding will required at the time of

bringing legal representatives on record and for this purpose, reliance has

been placed upon a judgment delivered in the case of Dashrath Rao Kate v/s

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Brijmohan Srivastav

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reported in (2010) 1 SCC 277

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, in which it has been held

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thus:-

''21. As a legal position, it cannot be disputed that normally, an enquiry under

Order 22 Rule 5 CPC is of a summary nature and findings therein cannot

amount to res judicata, however, that legal position is true only in respect of

those parties, who set up a rival claim against the legatee. For example, here,

there were two other persons, they being Ramesh and Arun Kate, who were

joined in the civil revision as the legal representatives of Sukhiabai. The

finding on the will in the order dated 9-9-1997 passed by the trial court could

not become final as against them or for that matter, anybody else, claiming a

rival title to the property vis-à-vis the appellant herein, and therefore, to that

extent the observations of the High Court are correct. However, it could not be

expected that when the question regarding the will was gone into in a detailed

enquiry, where the evidence was recorded not only of the appellant, but also of

the attesting witness of the will and where these witnesses were thoroughly

cross-examined and where the defendant also examined himself and tried to

prove that the will was a false document and it was held that he had utterly

failed in proving that the document was false, particularly because the

document was fully proved by the appellant and his attesting witness, it would

be futile to expect the witness to lead that evidence again in the main suit.

XXX XXX XXX

25. Dr. Kailash Chand, learned counsel appearing for the respondent, also

relied on ruling in Vijayalakshmi Jayaram v. M.R. Parasuram [AIR 1995 AP

351] . It is correctly held by the Andhra Pradesh High Court that Order 22 Rule

5 is only for the purpose of bringing legal representatives on record for

conducting of proceedings in which they are to be brought on record and it

does not operate as res judicata. However, the High Court further correctly

reiterated the legal position that the inter se dispute between the rival legal

representatives has to be independently tried and decided in separate

proceedings. Here, there was no question of any rivalry between the legal

representatives or anybody claiming any rival title against the appellant-

plaintiff. Therefore, there was no question of the appellant-plaintiff proving the

will all over again in the same suit.

26. The other judgment relied upon is the Full Bench judgment of the Punjab

and Haryana High Court in Mohinder Kaur v. Piara Singh [AIR 1931 P&H

130]. The same view was reiterated. As we have already pointed out, there is

no question of finding fault with the view expressed. However, in the peculiar

facts and circumstances of this case, there will be no question of non-suiting

the appellant-plaintiff, particularly because in the same suit, there would be no

question of repeating the evidence, particularly when he had asserted that he

had become owner on the basis of the will (Ext. P-1).''

15. Reliance has also been placed upon a judgment delivered in the

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case of Suryakant Gupta v/s Rajaram Gupta reported in 1998 (1) JLJ 307

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, in

which it has been held thus:-

''13. A legal representative is a person who, in law, represents

the estate of the deceased person. In certain cases, this has to be

determined by examining the will executed by the deceased who

was a party to the suit. The persons who are natural heirs can also

claim to be the legal representative by succession to the property

and consequently, can challenge the will. Such applications can be

decided only by determining prima facie, who are legal

representatives. A detailed inquiry may not be called for because

the determination whether the person is a legal representative or

not by virtue of a will is likely to impinge upon the merits of the

case. In reality, this question can only be decided by the trial Court

by trying the case on merits. It is also well established that there

can be no piece-meal trial. For this reason, this Court is of the

view that the safest course would have been to permit the

applicant to bring all the legal representatives on record including

the wife and the two daughters of the deceased Rajaram Gupta,

apart from his sons. In case, the Plaintiff succeeds to prove his will

at the stage of trial, he would definitely got the share of Rajaram

Gupta by virtue of the will and all other legal consequences shall

ensue thereafter. By adopting the aforesaid course all the legal

representatives of late Rajaram Gupta shall have an opportunity to

contest the case on merits during the course of the trial. No harm

shall be done to the applicant by not permitting him to raise the

points involved in this revision because there is no substantial

injury to the applicant nor the impugned order occasion failure of

justice in any manner and the applicant does not suffer any

irreparable injury.''

16. Learned Senior Counsel has also placed reliance upon a

judgment delivered in the cases of Jawaharlal v/s Saraswati Bai Babulal

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Joshi

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reported in AIR 1987 BOM. 277

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in which it has been as under:-

''6. Shri Lohia urged that such an enquiry is necessary in respect

of the categories mentioned in Rr. 1 to 9 of O. 212, Civil P. C.

before thelegal representatives are allowed to be brought on record

so that the suit can be continued when a party to the suit dies and

there is no reason why an exception should be made in the case of

person covered by R. 10 Now, R. 5 requires that where a question

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arises as to whether any person is or not a legal representative of a

deceased plaintiff or a deceased defendant, such question shall be

determined by the Court The opening words of Sub-r. (1) make it

clear that the cases covered by R. 10 are a class part the form

cases covered by Rules 1 to 9 and the option to continue the suit is

dependent upon the leave the of Court which the party does not

have an absolute right to ask for. Another difference as pointed

out in Mulls Commentary on Civil Procedure Code, Eleventh

Edition at page 720, lies in the consequences of not bringing the

assignee or transferee of record. The suit does not become

defective by an assignment pendente lite and the assignee is not

precluded form recovering the debt due. The trial of a suit cannot

be arrested merely by reason of the devolution of the interest of

the plaintiff. The successor in interest maywith the leave of the

Court continue may with the leave of the court continue the suit. If

the does not the original plaintiff may. The assignor does not by

reason of the assignment lose his right does not continue the

proceedings. The position does not obtain in respect of the

categories which are covered by Rr. 1 to 4 of PO. 22 Civil P. C.

Invies of this difference an full- scale enquiry about the existence

and validity of the assignment of devolution would not be

necessary at the stage of granting leave. It is expected that the

existence or otherwise or the rights or attacks or defences, which

may be open to other parties on merits should be gone into at the

stage of granting leave These have to be dealt with at a later stage

when the suit comes for trial.''

17. In view of the above, learned Senior Counsel has submitted that

the present miscellaneous be allowed and the impugned judgment be set

aside being unsustainable in the eyes of law.

18. Learned Senior Counsel appearing on behalf of respondents No.2

& 3 argued in support of the impugned judgment and it is submitted that

finding of fact arrived at by the Courts below cannot be disturbed under

Article 227 of the Constitution of India as held by the Apex Court in the case

of M/s Puri Investments v/s M/s Young Friends and Co. & Others

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reported in

2022 LiveLaw (SC) 279

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. It is further submitted that the original will was

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never produced before the Court below only the copy was filed. The

petitioners failed to establish the authenticity of the will. Hence, the present

miscellaneous petition is liable to be dismissed as re-appreciation of

evidence is not permissible.

19. Learned counsel for respondent No.1 borrowed the arguments

advanced by learned Senior Counsel and prayed for dismissal of the

miscellaneous petition.

20. I have heard learned counsel for the parties at length and perused

the record.

21. Paragraph - 11 of the impugned judgment passed by the learned

District Judge reveals that Mohammad Farooq Ansari (PW-2), in his cross-

examination stated that the name of the person who prepares a document is

written on the document, however, his name is not mentioned in the

document as the typist nor is 'drafted by Mr. Lashkari, Advocate' written on

it. He could not say whether Mr. Lashkari signed the document or not.

Advocate Ghanshyam Lashkari did not tell him to mention that he had

drafted the document, hence, he did not disclose about the information.

Further he has stated that Mr. Lashkari had registered many documents at the

Registrar's Office, hence, he does not know as to why this document is not

registered. Fakirchand stated that he was with Shankarlal, however,

this witness has stated that when he met with Shankarlal, no one was there.

This reveals contradiction between the statements of Fakirchand and this

witness. When the will was typed, this witness, Mr. Lashkari and Shankarlal

were there. When the will was being typed, Mohanlal was working on his

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machine and he was called when the typing was completed. Further it has

been deposed that he does not know about the age written in the will nor

about the survey number and he does not have complete information. He has

deposed that in the will, there is difference between the thumb impression on

first and second page. In the cross-examination, he has admitted that upper

part of the thumb impression on the first page is broader and the thumb

impression on the last page is thicker.

22. Considering all the circumstances, the learned District Judge has

dismissed the applications filed by the petitioner by holding that the evidence

presented by the petitioners is not credible and the fact that Shankarlal

executed the will in favour of the Fakirchand on 05.03.1984 is not

acceptable. It has also been held that Fakirchand is not the legal

representative of Shankarlal.

23. This Court also does not find any ground to interference with the

finding of facts arrived at by the Courts below. Before this Court also, the

petitioners failed to establish that Shankarlal executed the will in favour of

Fakirchand on 05.03.1984. Hence, no case for interference is called for.

24. The Apex Court in the case of Shalini Shyam Shetty v/s

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Rajendra Shankar Patil

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reported in (2010) 8 SCC 329

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in paragraph 49 held

as under:-

"49. On an analysis of the aforesaid decisions of this Court, the

following principles on the exercise of High Court's jurisdiction under

Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a

petition under Article 227. The mode of exercise of power by High Court

under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ

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petition. The history of the conferment of writ jurisdiction on High Courts

is substantially different from the history of conferment of the power of

Superintendence on the High Courts under Article 227 and have been

discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of

superintendence under Article 227 of the Constitution, interfere with the

orders of tribunals or Courts inferior to it. Nor can it, in exercise of this

power, act as a Court of appeal over the orders of Court or tribunal

subordinate to it. In cases where an alternative statutory mode of redressal

has been provided, that would also operate as a restrain on the exercise of

this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its

power of superintendence have been repeatedly laid down by this Court. In

this regard the High Court must be guided by the principles laid down by

the Constitution Bench of this Court in Waryam Singh (supra) and the

principles in Waryam Singh (supra) have been repeatedly followed by

subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in

subsequent cases, the High Court in exercise of its jurisdiction of

superintendence can interfere in order only to keep the tribunals and

Courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts

by exercising jurisdiction which is vested in them and by not declining to

exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can

interfere in exercise of its power of superintendence when there has been a

patent perversity in the orders of tribunals and Courts subordinate to it or

where there has been a gross and manifest failure of justice or the basic

principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot

interfere to correct mere errors of law or fact or just because another view

than the one taken by the tribunals or Courts subordinate to it, is a possible

view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be

curtailed by any statute. It has been declared a part of the basic structure of

the Constitution by the Constitution Bench of this Court in the case of L.

Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC

261 and therefore abridgement by a Constitutional amendment is also

very doubtful.

(j) It may be true that a statutory amendment of a rather cognate

provision, like Section 115 of the Civil Procedure Code by the Civil

Procedure Code (Amendment) Act, 1999 does not and cannot cut down

the ambit of High Court's power under Article 227. At the same time, it

must be remembered that such statutory amendment does not

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(ALOK AWASTHI)

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JUDGE

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correspondingly expand the High Court's jurisdiction of superintendence

under Article 227.

(k) The power is discretionary and has to be exercised on equitable

principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the

High Court under Article 227, it transpires that the main object of this

Article is to keep strict administrative and judicial control by the High

Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to

maintain efficiency, smooth and orderly functioning of the entire

machinery of justice in such a way as it does not bring it into any

disrepute. The power of interference under this Article is to be kept to the

minimum to ensure that the wheel of justice does not come to a halt and

the fountain of justice remains pure and unpolluted in order to maintain

public confidence in the functioning of the tribunals and Courts

subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to

be exercised just for grant of relief in individual cases but should be

directed for promotion of public confidence in the administration of justice

in the larger public interest whereas Article 226 is meant for protection of

individual grievance. Therefore, the power under Article 227 may be

unfettered but its exercise is subject to high degree of judicial discipline

pointed out above.

(o) An improper and a frequent exercise of this power will be counter-

productive and will divest this extraordinary power of its strength and

vitality."

25. In light of the aforesaid judgment as no patent illegality has been

committed by the Courts below and the order passed by the Courts below

neither suffer from any jurisdictional error nor from any perversity, this

Court does not find any reason to interfere with the order passed Court

below.

26. Resultantly, Miscellaneous Petition stands dismissed. However,

liberty is reserved to the petitioners to file a fresh partition suit, if so advised.

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Ravi

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