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2001 DIGILAW 534 (AP)

J. Manikyam Chetty (died) v. J. Padmanabha Chetty

2001-06-04

B.S.A.SWAMY

body2001
B. S. A. SWAMY, J. ( 1 ) AGGRIEVED by the order of the Junior civil Judge, Chittoor, passed in LA. No. 475/99 in O. S. No. 39/94, dated 20-7-2000, dismissing the application filed by the petitioner seeking permission to come on record as the legal heir of the plaintiff on the basis of a registered Will executed by the deceased plaintiff, the present revision petition is filed. ( 2 ) I have gone through the order under challenge. The Junior Civil Judge dismissed the application on the ground that the petitioner is not the legal heir of the deceased plaintiff as she had two daughters and one son but they did not choose to come forward to get themselves impleaded as party respondents in the above suit. The learned Judge also extracted Order 22 rule 3 of CPC without giving any reasons as to how the application is not maintainable. ( 3 ) THE learned Counsel appearing for the respondent relying on a judgment of the supreme Court in T. V. Narayana vs. Venkata subbamma1 vehemently contended that unless the petitioner obtained probate he cannot get himself impleaded as party to the pending proceedings. I have gone through the judgment of the Supreme court. Their Lordships were considering the question whether the legatee who lost the original Will is entitled to adduce secondary evidence to prove the alleged will. Their Lordships observed that whatever rights that were accrued to late venkata Subabamma will accrue to the person who comes on record as her legal representative. At this stage, their lordships observed thus:"mere suit for injunction cannot be converted into a suit for probation of a will whereat the Will is to be proved. If the Will is to be proved according to law, it has to be by way of probate in the Court having competency and jurisdiction according to the procedure provided under the Indian Succession act. That procedure cannot be converted in a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant. " ( 4 ) ADMITTEDLY, the Trial Court did not dismiss the application on the ground that the application to get the petitioner himself impleaded was filed without obtaining probate as required under Succession Act. " ( 4 ) ADMITTEDLY, the Trial Court did not dismiss the application on the ground that the application to get the petitioner himself impleaded was filed without obtaining probate as required under Succession Act. Be that as it may this Court in Musalayya vs. Mohanraj and others2 having surveyed the entire case law passed the following order:"the Court below was seized of the matter with regard to the petition for bringing on legal representatives and at the stage of passing orders for bringing on record the legal representatives, it is not necessary that the probate of the Will should be produced. The procedure of bringing on record legal representative is for the continuance of the litigation on behalf of the deceased person and if the insistence upon production of the probate is made at this stage, the suit is likely to be abated, as there will be delay in granting probate of the Will or letters of administration. The object of Sec. 213 or Sec. 214 is to reinforce the right under the Will by the production of unimpeachable evidence viz. , letters of administration or probate of the will granted by the Court. " ( 5 ) AT the same time, in the penultimate para of the judgment, His Lordship observed that when the legal representative seeks to claim right under the Will, production of the probate of the Will is essential. In the event of the legal representative choosing to assert his right as the sole surviving heir, the question of production of the probate of the Will (sic. does not) arise. In other words, this Court has taken the view that when there are more than one legal representative, the burden lies on the legatee to claim exclusive rights over the property under the Will. That can be done only by way of production of the probate of the Will. ( 6 ) IN the light of the above decision, I hold that the order of the Court below is erroneous and it cannot be sustained in law. ( 7 ) ACCORDINGLY, the CRP is allowed by setting aside the impugned order and I. A. No. 475/99 in O. S. No. 39/94 on the file of the II Addl. Junior Civil Judge, Chittoor, is allowed. The Court below is directed to restore the suit and proceed with the disposal of the suit in accordance with law.