Boffa (MD) 05 July 2014

Section 146, cpc 1908

Allow me the privilege to post a question about a peculiar situation in an 'Execution Proceeding'.

A father is the Decree-Holder. Though, he is not on good terms with his son. Taking undue advantage of such a situation, third parties not connected to the family in anyway, have coerced the said father into selling all the joint family properties, without leaving anything for the other coparceners, including the said son. Father is the karta of the HUF in question. Therefore, a 'suit for partition' was instituted by the son, during his father's lifetime, and the third party purchasers of the HUF properties were also arrayed as defendants. The father and the said defendants are being represented by the same single lawyer. Contentious but true!

The said father had also instituted a 'final decree proceeding' FDP (Execution Proceedings) and the lawyer supra had been hired to represent him. Since, the FDP has HUF properties involved, the son had applied to have himself impleaded, but his application was dismissed observing that, after the father's death is when such right would arise in his (son's) favour.

During the pendency of the 'execution proceedings', the father passed away. The son filed an application U/Section- 146 of the CPC, 1908. This was vehemently opposed by the same lawyer supra, who represents the third party purchasers of the HUF properties in the partition suit above and the deceased father.

Now, this lawyer opposes the replacement of the son upon his father's death, in the FDP proceedings. Further, he tries to apply U/Order: 22, CPC, 1908, and implead one of the third party purchasers as a legatee based on a purported 'will' made by the deceased father.

The said 'will', let alone original, is only a copy and has not been probated in any manner whatsoever. Further, the contents of the 'will' state that the father has chosen to leave behind 5 percent of the FDP (Execution Proceedings) to the said lawyer supra, as his legal fees.

PLEASE NOTE, THE SAID 'WILL' WAS REGISTERED DURING THE PENDENCY OF THE 'SUIT FOR PARTITION'. THE SAID 'WILL' NAMES THE LAWYER REPRESENTING THE DECEASED FATHER AS A BENEFICIARY OF THE FDP. THIS LAWYER TRIES TO OPPOSE THE REPLACEMENT OF THE DECEASED FATHER BY HIS OWN SON U/SEC: 146, CPC, 1908, ON THE BASIS OF A COPY OF THE WILL WHICH HAS NOT EVEN BEEN PROBATED, IN ANY MANNER WHATSOEVER. ADD TO THIS THE PURPORTED 'WILL'' MADE DURING THE PARTITION SUIT'S PENDENCY NAMES THE SAID LAWYER AS ONE OF THE BENEFICIARIES AND ALSO ONE OF THE THIRD PARTY PURCHASERS OF THE HUF PROPERTIES. PLEASE NOTE THAT THE SON, WHO IS FIGHTING HIS FATHER AND THE THIRD PARTY PURCHASERS OF THE HUF PROPERTIES, IS HIS LEGITIMATE SON AND HIS OWN BLOOD.

**IS THE 'WILL' VALID? IF YES, DOES IT NOT HAVE TO BE PROBATED AFTER DUE NOTICES TO THE HEIRS?**

**NOW, IS THE CONDUCT OF THE SAID LAWYER SUPRA PERMISSIBLE?**

**CAN A 'WILL' WHICH HAS NOT BEEN PROBATED BE ADMITTED, BY THE VERY LAWYER NAMED IN THE 'WILL', IT HAVING BEEN MADE DURING THE PENDENCY OF A SUIT IN WHICH THE SAME LAWYER IS INVOLVED'?**

IS IT NOT A BLATANT AND DEPLORABLE CONDUCT BY THE LAWYER?

SHOULD THIS BE COMPLAINED TO THE BAR COUNCIL UNDER THE VIOLATION OF CODE OF CONDUCT?

I find these questions are very weighty from a legal point of view, which require an in-depth understanding of the laws and procedure, to be answered. Hence I chose this forum.

All help is much appreciated!

Reply Follow

3 Replies

T. Kalaiselvan, Advocate (Advocate) 06 July 2014

You are absolutely right that the Will, especially under the present circumstances is suspicious and under cloud, hence should have been properly probated by the concerned court of law without which it can be argued that the Will document is false and fabricated with criminal motive to grab the property. In my opinion, the suit was not properly challenged in the pre-decree stage itself because, the Kartha of HUF is only a manager to maintain the HUF property, the coparceners have right for partition and separate possession of their respective shares in the property, without knowing the facts of the case, I shall restrain from giving further opinions to that.

The present situation needs a prudent lawyer to argue the points and observations rightly raised by you.

Boffa (MD) 06 July 2014

Thank You for your insight, Mr. Kalaiselvam Sir,

The opposite lawyer's name is mentioned in the 'will', that was registered by the karta during the pendency of the 'suit for partition'. Moreover, the testator father has willed that 5% of a 'final decree execution proceedings' of which he is the decree-holder, also be given to the lawyer in question as his fees.

Does the mention of the lawyer's name in the 'will' not make it void?

Can this be reported to the 'bar council' as a violation of the code?

Does the mention of 5% of the decreed money to be paid as his 'fees', absolve him of having any pecuniary interest?

Can the said lawyer continue to represent the father in the 'execution proceedings'? Can the son terminate him?

I know these are a lot of queries. However, this particular case seems to be getting very intriguing!

Well, of course Sir, but the lawyers in mofussil areas of our country lack the drive!!! ... except the few, who I am certain will earn themselves a great name considering the level of competence!!

T. Kalaiselvan, Advocate (Advocate) 06 July 2014

Does the mention of the lawyer's name in the 'will' not make it void?

The will should be challenged when presented before the court as evidence because Will without a probate loses its validity especially under the situations where it is found to have been executed under suspicious circumstances.It cannot be said that a Will cannot be executed on a third person's name(advocate).

Can this be reported to the 'bar council' as a violation of the code?

You can make a complaint against the advocate if he is found to have done any fraud against the client or have indulged in unfair trade practice.

Does the mention of 5% of the decreed money to be paid as his 'fees', absolve him of having any pecuniary interest?

Without seeing the contents mentioning the said percentage and its circumstances, no comments can be made.

Can the said lawyer continue to represent the father in the 'execution proceedings'? Can the son terminate him?

Since the petitioner (the father) is no more, his successor can always choose and engage another lawyer,they do not have to get a NOC too from the previous lawyer.

Related Threads

Start a New Discussion Unreplied Threads

Popular Discussion