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2012 DIGILAW 1772 (MAD)

. v. .

2012-04-04

V.PERIYA KARUPPIAH

body2012
Judgment : V. PERIYA KARUPPIAH, J. 1. The above six petitions have been filed for the following reliefs:- a) condone the delay of 477 days in filing the petition to set aside the order dated 25.08.2010 and restore the second appeal (in CMP.No.181 of 2012)' b) set aside the order dated 25.08.2010 dismissing the above second appeal as abated and restore the second appeal to file (in CMP.No.202 of 2012); c) condone the delay of 2048 days in filing the petition to set aside the abatement caused due to death of the 1st appellant (in CMP.No.203 of 2012); d) set aside the abatement caused due to the death of 1st appellant (in CMP.No.204 of 2012); e) implead the petitioner as 2nd appellant as a legal representative of the deceased 1st appellant (in CMP.No.205 of 2012); and f) stay the operation of the judgment and decree dated 21.03.2012 made in O.S.No.75 of 1995 Sub Court, Ranipettai and confirmed by the judgment and decree dated 11.02.2003 made in A.S.No.35 of 2002 on the file of the Principal District Judge, Vellore pending disposal of the S.A.No.253 of 2005 (in CMP.No.206 of 2012). 2. Heard Mr. K.V.Subramanian, learned counsel appearing on behalf of M/s. K.V.Subramanian Associates, for the petitioner and Mr. C.Ramesh, learned counsel for the respondent in all the six applications. 3. The learned counsel for the petitioner would submit in his argument that the appeal was filed by the sole appellant who, was the first defendant before the trial court and the said petitioner was recorded as the legal representative of the deceased second defendant during the pendency of the first appeal. He would further submit in his arguments that the sole appellant had questioned the judgment and decree passed by the first appellate court made in A.S.No.35 of 2002 dated 11.02.2003 and the respondent was also served and they entered appearance and the appeal was pending before this Court. He would further submit that in the meanwhile, the sole appellant died and the appeal was posted for taking steps to implead the legal representatives of the deceased sole appellant and since no steps were taken, the appeal was dismissed as abated by this Court. He would further submit that in the meanwhile, the sole appellant died and the appeal was posted for taking steps to implead the legal representatives of the deceased sole appellant and since no steps were taken, the appeal was dismissed as abated by this Court. He would further submit that the petitioner herein is a temple namely Arulmigu Lakshmi Narashima Swamy Thirukkoil, represented by the Assistant Commissioner / Executive Office, Sholinghur, Vellore District to implead itself as the second appellant since the sole appellant had executed a registered Will dated 12.08.2002 bequeathing the schedule property in favour of Arulmigu Lakshmi Narashima Swamy Thirukkoil deity. He would further submit that the said property was duly taken possession by the petitioner temple and since there was no knowledge about the pendency of the appeal before this Court, the petitioner temple did not take any steps to implead itself as an appellant in the Second Appeal. He would further submit that the Commissioner of HR & CE came to know about the pendency of the Second Appeal on 14.02.2012 when the respondent attempted to take forcible possession by using court officers of the executing court. He would also submit that the petitioner came to know about the Second Appeal before this Court, which was dismissed for abatement only thereafter and immediately the petitioner had taken steps to implead itself as second appellant in the appeal and the temple / petitioner had filed applications to set aside the order of dismissal of the appeal as abated and an application to condone the delay of 477 days in filing the petition to set aside and restore the second appeal. He would also submit that the petitioner had also filed an application to condone the delay of 2048 days caused in setting aside the abatement caused due to the death of the sole appellant and also an application to set aside the abatement for the said cause of action and also to implead the petitioner as second appellant as legal representative of the deceased sole/first appellant. He would also submit that the deceased appellant left no other legal heirs, but bequeathed the suit property in favour of Arulmigu Lakshmi Narashima Swamy Thirukoil deity through the registered Will dated 12.08.2002 and therefore, the application filed by the petitioner may be ordered and the petitioner be given a chance to prosecute the appeal as legal representative of the deceased appellant pursuant to the Will dated 12.08.2002. 4. The learned counsel for the respondent would submit in his argument that the claim of the petitioner cannot be accepted, since the reasons stated for by the petitioner cannot be accepted and no explanation has been offered for condoning the delay caused in filing application to set aside the order of dismissal as well as in taking steps to implead the petitioner as legal representative of the deceased appellant. He would further submit that the petitioner being a public body cannot say that he was not aware of the Second Appeal nor the proceedings in respect of the suit property and he came to know only on 14.02.2012 when the court officers came to the spot for executing the decree, cannot be true. He would further submit that the judgment of the Hon'ble Apex Court reported in 2012 (2) CTC 240 (Office of the Chief Post Master General and others vs. Living Media India Ltd., and another) would lay down the latest law that the unavoidable administrative difficulties in preferring the appeal with the delay of 437 days cannot be condoned as the State had sufficient machineries to pursue the matter in time. He would also submit in his arguments that the third party or stranger to the cause of action could not be added to a proceedings so as to convert a suit of a different character. He would also cite a judgment of the Hon'ble Apex Court reported in 2008 (5) MLJ 424 SC (Bharat Karasondas Takkar ..vs.. Kiran Construction Co., and others) in support of his argument. He would further submit in his arguments that the petitioner has claimed right to the property by virtue of a registered Will said to have been executed by the deceased appellant and even if it is true, the time limit for getting the benefit of Will would be three years as per the judgment of the Hon'ble Apex Court reported in 2008 (2) CTC 850 (Kunvarjeet Sigh Khandpur ..vs.. Kirandeep Kaur and others). He would further submit in his arguments that the reasons stated by the petitioner would not satisfy the court to condone the delay of 477 days in filing the application to set aside the order of dismissal for abatement and 2048 days in setting aside the abatement caused due to the death of the sole appellant. Therefore, he would request the Court to dismiss all the applications as not maintainable. 5. I have given anxious thoughts to the arguments advanced on either side. 6. The Second Appeal was filed by the appellant, who was the first defendant before the trial court. The second defendant in the suit was his wife and she died during the pendency of the appeal before the first appellate court and therefore, the appellant herein was recorded as the sole legal representative of the deceased second defendant. Admittedly, both the defendants had no issues to succeed their properties in the absence of any Will. According to the submission of the learned counsel for the petitioner that the appellant (first defendant) had executed a registered Will on 12.08.2002 bequeathing his properties in favour of Arulmigu Lakshmi Narashima Swamy Thirukkoil deity, Sholinghur. The Will has been produced by the petitioner in support of his argument. 7. On a careful perusal of the Will produced in the form of typed set, I could see that the Will was executed by the sole appellant Mr. K.Narasimhan, S/o. late Ranga Iyyer, in favour of Arulmigu Lakshmi Narashima Swamy Thirukkoil deity, Sholinghur and the Assistant Commissioner / Executive Officer has to act on behalf of the deity and to do the 'kattalai' as referred to in the said Will. No doubt, the said will, if true, would come into operation after the death of the appellant. The Second Appeal was dismissed as abated on 25.08.2010, since the appellant was dead on 16.02.2006. The reason put forth by the petitioner would be that the petitioner was in possession of the suit property and the court officers came to the spot on 14.02.2012 to execute the decree after the dismissal of the Second Appeal as abated and then only he came to know about the dismissal of the Second Appeal and other orders passed against the appellant. 8. 8. As per the definition of Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Therefore, if really the Will is found to be true, the petitioner will be entitled to be impleaded as legal representative of the deceased appellant in order to prosecute the appeal. No doubt, the judgment of the Hon'ble Apex Court as stated by the respondent that the Government is also liable to explain the delay caused therein and the mere saying that there was an administrative delay would not suffice to condone the delay caused. As far as this case is concerned, no such administrative delay was put forth by the petitioner, but the petitioner stated that it came to know about the proceedings pending before this Court in the Second Appeal only when the officers of the executing court came to the suit property to execute the decree. Therefore, I could see that the reasons as stated in the case discussed by the Hon'ble Apex Court are on different facts. Moreover, the petitioner is a deity represented by its officer, viz., Assistant Commissioner / Executive Officer of the temple and the status of the petitioner would be equivalent to that of a minor who is under a legal disability. Merely because the pendency of the proceedings are not known to the officers of the temple and on the suspicion that they would have known about the pendency of the proceedings much earlier, the beneficiary, namely, the deity should not suffer. 9. The judgments of the Hon'ble Apex Court reported in 2005 (6) SCC 733 (Kasturi ..vs.. Iyyamperumal and others), AIR 2007 Supreme Court 1062 (Dhanalakshmi and others vs. P.Mohan and others) and AIR 2005 Supreme Court 2209 (Amit Kumar Shaw vs. Farida Khatoon) were relied upon by the petitioner for the principle that when there is a necessary party to be impleaded and any relief has been granted in the absence of such party, no effective decree could be passed thereby. It is quite clear from the judgments of the Hon'ble Apex Court referred above and also from the definition of the legal representative, even a legatee of a deceased person (party) could prosecute the appeal on behalf of the testator on the foot of a Will. 10. It has also been confirmed by the judgment of the Hon'ble Apex Court reported in 2010 (3) LW 101 (Suresh Kumar Bansal vs. Krishna Bansal and another) for the principle that the purpose of bringing legal representatives on record is only for conducting those legal proceedings and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings if the Will is contested. The relevant passage would be thus:- "9. .... It is true that in the impugned order, the High Court has made it clear that the finding regarding genuineness of the Will was made only for the purpose of deciding the application for impleadment filed at the instance of the appellant. But, in our view, if at this stage, the appellant is not permitted to be impleaded and in the event an order of eviction is passed ultimately against the tenant / respondent, the tenants will be evicted by the natural heirs and legal representatives of the deceased plaintiff who thereby shall take possession of the suit premises, but if ultimately the probate of the alleged Will of the deceased plaintiff is granted by the competent court of law, the suit property would devolve on the appellant but not on the natural heirs and legal representative of the deceased. Therefore, in the event of grant of probate in favour of the appellant, he has to take legal proceeding against the natural heirs and legal representatives of the deceased plaintiff for recovery of possession of the suit premises from them which would involve not only huge expenses, but also considerable time would be spent to get the suit premises recovered from the natural heirs and legal representatives of the deceased plaintiff. On the other hand, if the appellant is allowed to carry on the eviction petition along with the natural heirs and legal representatives of the deceased plaintiff, in that case decree can be passed for eviction of the tenant when the appellant shall not be entitled to get possession from the tenants in respect of the suit premises until the probate in question is granted and produced before the Court. Therefore, ultimately if the court grants a decree for eviction of the tenant / respondent from the suit premises, such decree shall be passed subject to production of probate by the appellant. ... " 11. On a careful perusal of the dicta laid down by the Hon'ble Apex Court in the earlier judgments, a legatee can be impleaded subject to the proof of Will either through probate or through separate finding, but the application for impleadment on the basis of the Will shall not be retained for the reason that the Will has to be proved. The deceased appellant has no legal heirs and the legatee under the Will dated 12.08.2002, if proved, would be the legal representative, who is necessarily to be permitted to prosecute the appeal on behalf of the deceased appellant. Therefore, it is quite clear that the petitioner can pursue as legal representative of the deceased appellant to apply for an impleadment. 12. As regards the condonation of delay, I have already considered that the petitioner was aware of the pendency of the proceedings only on 14.02.2012 and the petitioner being a deity equivalent to a minor shall not be deprived of being impleaded after setting aside the abatement and that too after condoning the delay. It is the judgment of this Court in various pronouncements that the deity which is equivalent to a minor was under a legal disability and therefore, the delay caused in preferring applications to set aside abatement as well as to set aside the order of dismissal should have been considered liberally. In view of the fact that the deity represented by the Assistant Commissioner / Executive Officer would not be aware of the Second Appeal proceedings prior to the approach of court officers for executing the decree on 14.02.2012 could held be true and acceptable. In view of the fact that the deity represented by the Assistant Commissioner / Executive Officer would not be aware of the Second Appeal proceedings prior to the approach of court officers for executing the decree on 14.02.2012 could held be true and acceptable. Therefore, the delay of 477 days in filing the application to set aside the order of dismissal for abatement as well as 2048 days delay in filing application to set aside the abatement caused due to the death of the appellant are necessarily to be condoned. When the delay is liable to be condoned, the abatement caused due to the death of the sole appellant is also liable to be set aside and the appellant be ordered to be impleaded as legal representative of the deceased appellant subject to the proof of Will. Therefore, I have no hesitation to hold that all the applications filed by the petitioner are liable to be allowed as sought for by him. Accordingly, all the applications are allowed. The status quo order passed by this Court shall continue till the disposal of the Second Appeal. 13. With the above observation, all the applications are allowed. No costs.