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2014 DIGILAW 2506 (MAD)

Lakshmi Narayanan @ Hari v. Thulasimani

2014-08-08

K.RAVICHANDRA BAABU

body2014
JUDGMENT K. RAVICHANDRABAABU, J. 1. The civil revision petition is filed against the order made in I.A. No. 1194 of 2007 in O.S. No. 843 of 2004 dated 22.01.2008 on the file of the Principal District Munsif, Erode in dismissing the application filed by the petitioner to implead him as party plaintiff in the above said suit. 2. Following are the short facts that arise for consideration in this civil revision petition: One Muthusamy along with the fourth respondent herein filed the said suit in O.S. No. 843 of 2004 on the file of the Sub Court, Erode against the respondents 1 to 3 herein as defendants seeking for the relief of permanent injunction restraining the defendants and their men and agents from interfering with the plaintiffs' peaceful possession and enjoyment of the suit properties; encumbering the same in favour of the third parties and collecting the rent from the tenants of the plaintiffs under the guise of the settlee of the suit properties in any other manner. The said Muthusamy is the father of the second plaintiff, who is the fourth respondent herein. After filing the said suit, the first plaintiff viz. Muthusamy died on 29.03.2004. It is stated that during the life time of the first plaintiff, he has executed a registered will dated 16.10.2003 bequeathing his properties to his grandson viz. the petitioner herein, who is none other than the son of the second plaintiff. Thus, it is contended that after the death of the said Muthusamy, the petitioner herein became the absolute owner of the properties bequeathed under the will. Therefore, I.A. No. 1194 of 2007 was filed by the second plaintiff along with the petitioner under Order 22 Rule 3 C.P.C. for impleading the petitioner herein as party third plaintiff in the said suit. The said application was resisted by the defendants by contending that before proving the validity of the will said to have been executed by the deceased first plaintiff in favour of the petitioner, he cannot be impleaded as party plaintiff. 3. The court below dismissed the said application by holding that the petitioner can be impleaded as party plaintiff only after the genuineness of the said will is proved and that the application for impleadment was not filed immediately after the death of the first plaintiff. 3. The court below dismissed the said application by holding that the petitioner can be impleaded as party plaintiff only after the genuineness of the said will is proved and that the application for impleadment was not filed immediately after the death of the first plaintiff. After the said order, the petitioner himself filed another I.A. No. 728 of 2009 seeking for impleading himself as the third plaintiff in the said suit under Order 1 Rule 10(2) C.P.C. The said I.A. was dismissed by the trial court on 01.09.2009 on the ground that the same is barred by res judicata in view of the fact that the earlier application filed in I.A. No. 1194 of 2007 was already dismissed and the said order has become final. Challenging the said order made in I.A. No. 728 of 2009 dated 01.09.2009, the petitioner filed CRP (NPD) No. 2522 of 2011 before this Court. By an order dated 10.08.2011, the said civil revision petition was dismissed on the ground that the earlier application filed for impleading the petitioner was rejected and therefore, the subsequent application was barred by res judicata. However, this Court, while dismissing the said civil revision petition, has also observed that the order made in the said civil revision petition will not in any way prejudice the case of the petitioner in the event he moved the appropriate forum. Consequent upon the dismissal of the above C.R.P. (NPD) No. 2522 of 2011, the petitioner has filed the present civil revision petition challenging the order made in I.A. No. 1194 of 2007 dated 22.01.2008. 4. In this civil revision petition, notice of motion was ordered on 20.01.2012 also by granting interim stay for a period of two weeks. Thereafter, the matter was posted only on 16.07.2014 for further hearing before me. 5. Mr. N. Manokaran, learned counsel appearing for the petitioner submitted as follows: The petitioner will come within the definition of legal representative as defined under section 2 (11) of C.P.C. since he is the beneficiary of will executed by the deceased first plaintiff in respect of the suit property. In support of such submission, Jaladi Suguna vs. Satya Sai Central Trust, 2008 (8) SCC 521 , is relied on. Even to become a party in the said suit, the petitioner need not prove the will. In support of such submission, Jaladi Suguna vs. Satya Sai Central Trust, 2008 (8) SCC 521 , is relied on. Even to become a party in the said suit, the petitioner need not prove the will. The onus of proving the will would arise only during the course of trial of the suit and therefore, the court below was not justified in rejecting the application on that ground. In support of such submission, Suresh Kumar Bansal vs. Krishna Bansal, 2010 (2) SCC 162 , is relied on. If the petitioner is able to prove the will, he will get the relief, otherwise his case will be rejected. Since I.A. No. 728 of 2009 was rejected not on merits but on the ground of res judicata, there is no bar in considering the present civil revision petition arising out of the order made in I.A. No. 1194 of 2007. 6. Per contra, Mr. A.K. Kumarasamy, learned counsel appearing for the first respondent submitted as follows: The suit is for a bare injunction and therefore, the petitioner can always file another suit which is not prevented under law. Therefore, by not impleading the petitioner as a party plaintiff in the present suit, no prejudice is caused. The will was not at all produced before the court on both occasions. 7. To the said submission of the learned counsel appearing for the first respondent, Mr. N. Manokaran, learned counsel for the petitioner submitted by way of reply that the respondents have not made any objections regarding non production of the will before the court below on both occasions and the Court has also not given such objection as the reason for rejecting the application. Therefore, the said contention cannot be raised now. He further submitted that the petitioner is ready to produce the will at any time before the Court. 8. Heard the learned counsels appearing on either side and perused the materials placed before this Court. 9. The issue involved in this civil revision petition is as to whether the petitioner is entitled to be impleaded as party plaintiff in the suit filed for bare injunction, based on the will said to have been executed by the deceased first plaintiff in favour of the petitioner in respect of the suit properties. 10. It is not in dispute that the parties to the proceedings are closely related with each other. 10. It is not in dispute that the parties to the proceedings are closely related with each other. Originally, the father and son filed the suit against the other relatives. It is stated that even before filing the said suit, the first plaintiff executed a registered will on 16.10.2003 bequeathing his properties in favour of his grandson viz. the petitioner herein. 11. Needless to say that the right of the petitioner over the suit properties would come into force only after the death of the first plaintiff. During the pendency of the said suit, the first plaintiff died on 23.09.2004. Consequent upon the death of the first plaintiff and based on the said will said to have been executed by the first plaintiff, the petitioner sought to be impleaded as party plaintiff in the said suit by filing I.A. No. 1194 of 2007. The said application was rejected only on the ground that the petitioner cannot be impleaded before proving the said will. In my considered view, for impleading as party plaintiff in the place of the deceased first plaintiff, the requirement for proving the will before such impleadment does not arise. 12. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court in, Suresh Kumar Bansal vs. Krishna Bansal, 2010 (2) SCC 162 at paragraph No.17, which is extracted hereunder: 17. That apart, since the question of genuineness of the will cannot be conclusively gone into by the court in a proceeding for substitution in a pending eviction suit and in view of the fact that an application was made at the instance of the appellant for impleadment as a legal representative of the deceased on the basis of the will which is yet to be probated, in our view, the best course open to the court is to allow impleadment of the appellant in the eviction proceeding, thereby permitting him to proceed with the eviction suit along with natural heirs and legal representatives of the deceased plaintiff but in case the decree is to be passed for eviction of the tenant from the suit premises such eviction decree shall be subject to the grant of probate of the will alleged to have been executed by the deceased plaintiff. 13. 13. It is also to be seen that the petitioner being the beneficiary under the will in respect of the suit property is certainly to be considered as legal representative as defined under section 2(11) C.P.C. which reads as follows: 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. 14. A legatee under a will who intends to represent the deceased testator is an intermeddler and therefore, is a legal representative. The decision of the Hon'ble Supreme Court in Jaladi Suguna vs. Satya Sai Central Trust, 2008 (8) SCC 521 , more particularly, the observation made at paragraph No. 12 of the said decision is relevant to be quoted at this juncture: 12. Legal representative according to its definition in Section 2(11) CPC, 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. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative. 15. Therefore, it cannot be disputed that the petitioner is not a legal representative of the deceased first plaintiff. No doubt, it is contended by the learned counsel for the respondents that the will was not produced before the Court. As rightly pointed out by the learned counsel for the petitioner, the court below has not rejected the application on the ground that the petitioner has not produced the will before the court. It is also seen that no such argument was advanced by the defendants before the court below. Therefore, it appears that there was no serious dispute about the existence of the will. The court below rejected the application only on the reason that the petitioner cannot be impleaded before proving the said will. In view of the categorical decision of the Hon'ble Supreme Court made in Suresh kumar Bansal's case (cited supra), the question of proving the will at the stage of impleadment does not arise. The court below rejected the application only on the reason that the petitioner cannot be impleaded before proving the said will. In view of the categorical decision of the Hon'ble Supreme Court made in Suresh kumar Bansal's case (cited supra), the question of proving the will at the stage of impleadment does not arise. Further, it is to be seen that no prejudice would be caused to the defendants if the petitioner is added as the third plaintiff, since the suit itself is for bare injunction. The petitioner, even in the absence of his impleadment as party plaintiff in the present suit, is always entitled to file another suit for bare injunction. Certainly, the respondents cannot prevent the petitioner from doing so. Therefore, in order to avoid the multiplicity of the proceedings, it is better that the petitioner is allowed to be impleaded as party plaintiff in the present suit itself so that the parties to the suit can agitate before the court below by placing the materials in support of their respective pleadings for the court to arrive at a just and proper conclusion. It is also to be noted that this court while dismissing the earlier C.R.P. NPD No. 2522 of 200 has given liberty to the petitioner to move appropriate forum. Accordingly, the present civil revision petition is filed by the petitioner which in my considered view is maintainable. 16. Considering all these facts and circumstances, I am of the view that the petitioner is entitled to succeed in this civil revision petition. Accordingly, the civil revision petition is allowed and consequently, the order made in I.A. No. 1194 of 2007 is allowed. Needless to say that the petitioner during the trial of the suit has to place the said will before the court and prove the same in the manner known to law. Since the suit is of the year 2004, the trial court is directed to take up the suit and dispose of the same on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order. No costs. The connected miscellaneous petition is closed.