Hi Anand,
Thank you for your insight! Your time is very much appreciated.
Yes, in my situation, I am the eldest son i.e. a very competent representative/legal heir of the deceased, my father.
However, the applicant/enemy who is trying to usurp my rights on the basis of a suspicious 'will', as narrated in the very impugned 'will', is not exactly a beneficiary neither a legatee. I presume, a legatee is one who acquires a benefit, a property, money or the like.
Whereas therein, contents of the 'will' bestow the role of an executor, if at all it is to be allowed, which I am certainly against, me being the deceased's eldest son. My father had purportedly wished that this applicant be allowed to replace him on his demise and carry on litigations that would be pending. Now, I see that as a duty and responsibility but not a legacy!
The applicant/enemy is trying to come on the board of a 'final decree proceeding' FDP, execution that has stalled midway due to my father's death. Now a final decree execution is not exactly a litigation I would think. It is something final which shall certainly go to the next in kin or heir! Making matters worse, the applicant has preferred an application U/Order-22, Rule 10, CPC, which talks of an 'assignment' preventing abatement.
I would think that the question of an abatement would not arise in final decree execution proceedings because, there is no lis anymore or any right to sue that would abate. The contentions are past abatement since they have attained the form of a final decree, after due adjudication.
So, I hold the application as totally unwanted.
Moreover, an 'assignment' would be a devolution of some benefit, a contract or a transaction, the deceased is bound by even after his death. The testator's wish that he be replaced by someone, to carry on litigation and contest suits, would, in my opinion, not exactly be called an 'assignment'.
Or, can it be?
Please note that the said 'will' was purportedly registered during the pendency of the execution proceedings. Now, instead of the one who has been appointed to carry on litigation, someone upon whom my father has bestowed benefits or any interest, that he wished, the applicant/enemy only make certain is fulfilled, would be a competent person to apply praying to come on board in the FDP.
Now, why would someone who has no beneficiary right or devolution of an interest in the FDP's subject-matter i.e. properties, try to come on board?
Instead, would he not be right to, in fact, approach the judgment-debtor and advice him to fulfill the decree in the interests of the ones, that the deceased had wished, should benefit! ?
In the light of such actual facts, does it not make the application U/Order- 22, Rule-10, CPC, preferred by my enemy, absurd, unwanted and infructuous?
Lets take this further ..... your thoughts and insights on this......
P.S.- On the contrary, me being the eldest son of the deceased, have preferred an application U/Section- 146, CPC, to continue the FD proceedings in my capacity as the next kin, legal heir of the deceased.
