SRI RAJ RAJESHWARI PRASAD SINGH versus SH. SHASHI BHUSHAN PRASAD SINGH AND.ORS.

Citation: [1995] SUPP. 2 S.C.R. 500 · Decided: 03-08-1993 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Dismissed

Judgment (excerpt)

A 
SRI RAJ RAJESHWARI PRASAD SINGH· 
v. 
SH. SHASHI BHUSfIAN PRASAD SINGH AND.ORS. 
AUGUST 3, 1993 
B 
[K. RAMASWAMY AND K.S. PARIPOORNAN, JJ.) · 
'; 
Code of Civil Procedure, 1908 : 
Order 9 rule 13--0rder 22 Rules 4/ JO-Compromise decree entered 
C giving life. estate to a' widow-Enjoyed peaceful possession for life-Died 
intestate-Preliminary exparte decree became final as no attempt was made 
to set aside the same-Held: the widow did not acquire any right title or 
interesHlence there could be no devolution or interest by way of succession. 
The maternal grandmother of the appellant and "idow of one K filed 
D a suit for partition of Hindu joint family property. A compromise decree 
wa~ m3de ror ·maintenance, whereln a life estate for residenc~ in a poriion 
of the residential house was provided for her. Later, a title suit was filed 
in which she was. impleaded as one of the defendants. Since one of the 
issues could not be tried by the civil court, reference was made to the 
E Revenue Court and on receipt of its finding, mthout further notice to her, 
she was set exparte, the other contesting coparceners entered into three 
· compromises. A preliminary decree was passed thereon in which the rights 
secured by her in the earlier suit was not reiterated. 
In the final decree proceedings she had appeared and raised objec-
F 
lions stating that the life estate of right to residence should be preserved 
and separately demarcated. Accordingly it was earmarked and she con-
tinued to live therein and died in 1984. Thereafter her daughter K filed an 
application for her substitution as her mother's legal representative claim-
ing that the limited estate was enlarged into an absolute estate under 
G S.14(1) of the Hindu Succession Act, 1956. K also died and the appeUant 
had come on record as her legal representative. 
The courts below refused to reopen the case on the ground that after 
the knowledge of the ex-parte decree against the appellant's grandmother, 
she did not make an application under order 9 rule 13 CPC; that since 
H preliminary decree did not recognise her right and the same having 
500 
R.R.P. SINGH v. S.B.P. SINGH 
501 
become final, she did not acquire any share in the coparcenary property, A 
and therefore her daughter was not entitled to be substituted. The revision 
application was dismissed by the High Court. Hence this appeal. 
Dismissing the appeal, this Court 
HELD : 1. The preliminary decree declared in title suit N o.100 of1956 B 
merely the rights of those other than the appellant's grandmother. The only 
course, therefore, open to the partie~ at the first instance was to seek to set 
aside the preliminary ex-parte decree in Title Suit No. 100 of 1956 and have 
engrafted the compromise decree in Suit No. 106 of 1941 and to have made 
an application to pass final decree in that behalf. Admittedly, for over 20 C 
years no such attempt was made by filing an application under Order 9 Rule 
13, CPC. On the other hand, she filed a statement agreeing that she would 
be satisfied to maintain her life estate in a separate and demarcated portion 
of the house in which she was living and she be allowed to remain in 
possession and peaceful enjoyment for her life. Admittedly, she remained in 
possession till her death and also received maintenance in terms of the D 
compromise decree. There is no dispute that she died intestate. The prelimi-
nary ex-parte decree became final. Therefore, there is no scope to reopen the 
preliminary decree. (504-E-G] 
2. Though K was a Class I heir of her mother, no property or interest E 
in coparcenary was left behind. Neither K nor the appellant can seek to 
come on record as her legal representative. The appellant is not her legal 
heir. The question of devoluti6n of the interest in the property on K does 
not arise since her mother did not acquire any right, title or interest in the 
preliminary decree in Title Suit No. 100 of 1956 under Order 22 Rule 10. 
In consequence, K cannot be substituted as the legal representative of her F 
mother to represent her estate under Order 9 Rule 4, CPC. Under these 
circumstances, the question of substitution or devolution of interest by way 
of intestate succession upon K does not arise. Therefore, she cannot come 
on record either under Rule 4 or Rule 10, as the case may be, of Order 22, 
CPC. [504-H; 505-A-C] 
G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7462 of 
1995. 
From the Judgment and Order dated 12.5.94 of the Alla

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