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2017 DIGILAW 892 (MAD)

Ponnaya @ Pavayee (died) v. Rakkiya Gounder

2017-04-04

S.VAIDYANATHAN

body2017
JUDGMENT : S. Vaidyanathan, J. 1. Earlier, the Appellant/Plaintiff (since deceased) filed Suit in O.S. No. 53 of 2008 before the District Munsif Court, Thiruchengode, for Permanent Injunction restraining the Respondents herein/Defendants from interfering with the peaceful possession of the Suit property. The said Suit was dismissed by the Trial Court on 28.10.2009, against which, the Plaintiff preferred First Appeal in A.S. No. 46 of 2009 before the Sub-Court, Thiruchengode, which was also dismissed by the First Appellate Court on 30.3.2010, against which, the present Second Appeal is preferred by the Appellant/Plaintiff (since deceased pending Second Appeal). 2. Pending Second Appeal, since the sole Appellant/Plaintiff died, C.M.P. Nos. 2482 to 2484 of 2017 have been filed to condone the delay of 972 days in seeking to set aside the abatement caused due to the death of the sole Appellant, to set aside the said abatement and to bring on record the Legal Representative of the deceased sole Appellant based on Will, dated 31.1.2013 stated to have been executed by the deceased Appellant in favour of the proposed Appellant, who is claiming to be the adopted son of the deceased Appellant. 3. The locus of a person, who is sought to be brought on record as a Legal Representative of the deceased is itself in question and unless and until the same is decided, these Petitions cannot be entertained at this stage. The issue with regard to these Petitions revolves around Order 22, Rules 5 & 10, C.P.C. 4. According to the learned Counsel for the Petitioner, a Legal Representative of a deceased person, has got every right to proceed with the Suit and by the leave of the Court, it could be continued by ordering impleadment/substitution of any person upon whom such interest has come on devolution. It is submitted that a narrow interpretation of the words in the said Rules, cannot be given and the words "assignment, creation or devolution of any interest" in Order 22, Rule 10, C.P.C. would include the right created/devolved upon a person based on a Will. That being the case, the Petitioner herein is entitled to proceed with the Suit. It is further contended that since the Petitioner has got a right to proceed, he is entitled to be heard and there is no need for him to file a Petition to condone the delay in seeking to set aside the abatement. That being the case, the Petitioner herein is entitled to proceed with the Suit. It is further contended that since the Petitioner has got a right to proceed, he is entitled to be heard and there is no need for him to file a Petition to condone the delay in seeking to set aside the abatement. But however, by way of abundant caution, the Petitioner has filed the present Petitions. Order 22, Rules 1 to 9, C.P.C. deals with those cases/persons, who have got a right to proceed with the matter based on Class-I or Class-II heir under the Hindu Succession Act. As far as Rule 10 Order 22, C.P.C. is concerned, it is independent of the other provisions mentioned under Order 22 and this gives an independent right for persons like the Petitioner, who have got the benefits under the Will or any other document. Hence, learned Counsel for the Petitioner submitted that the Petitioner being the proposed Appellant is entitled to be impleaded/substituted as a party to the Second Appeal and hence, these Petitions may be allowed. 5. In response to the above submissions, learned Counsel for the Respondents contended that the entire Rule under Order 22, C.P.C. will have to be read harmoniously and conjointly. According to the learned Counsel for the Respondents, if there is any issue as to whether a person is a Legal Representative or not, of the deceased person, who is a party to the Civil proceedings, such issue has got to be determined by the Trial Court by letting in evidence and after a finding is rendered by the appropriate Court, this Court, is entitled to proceed with the matter in Second Appeal only after a finding is rendered along with the reasons there for and this Court can take the same into consideration for determining the questions of law involved in the Second Appeal. 6. For the sake of convenience, Order 22, Rules 5 & 10, C.P.C. are extracted hereunder: "Order 22: Death, marriage and insolvency of parties. 6. For the sake of convenience, Order 22, Rules 5 & 10, C.P.C. are extracted hereunder: "Order 22: Death, marriage and insolvency of parties. Rule 5: Determination of question as to Legal Representative.- Where a question arises as to whether any person is or is not the Legal Representative of a deceased Plaintiff or a deceased Defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any Subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question. Rule 10. Procedure in case of assignment before final order in Suit.- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a Suit, the Suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a Decree pending an Appeal therefrom shall be deemed to be an interest entitling the person, who procured such attachment to the benefit of sub-rule (1)." 7. A conjoint reading of Order 22, Rules 5 & 10, C.P.C. makes it very clear that the ingredients under Rule 5, are entirely different from the ingredients mentioned in Rule 10 therein. The word "person" mentioned in Rule 10 is the person not covered in any of the Rules 1 to 9, whereas Rule 5 mandates that a finding should be rendered by the Trial Court with regard to the locus-standi of the person to get himself or herself impleaded/substituted to further litigate in the subject matter. 8. The Madhya Pradesh High Court, in the decision reported in Sarmishta Devi Surve and Others vs. Lal Saheb Surve and others, AIR 1996 MP 13 , has held that the decision taken under Order 22, Rule 5, C.P.C. is only for a limited purpose and it is not a final determination of the question with regard to the genuineness of the Will and the requirements of obtaining probate or resorting to such other remedies which are available to the person claiming under the Will, have to be resorted to. 9. 9. In yet another decision reported in Vijayalakshmi Jayaram vs. M.R. Parasuram and Others, AIR 1995 AP 351 , the Andhra Pradesh High Court held that a finding rendered under Order 22, Rule 5, C.P.C. is only for the purpose of bringing the Legal Representatives on record for conducting those Legal proceedings only and the said finding will not operate as res-judicata and the inter-se dispute between the rival Legal Representatives, has to be independently tried and decided in separate proceedings. 10. In another decision reported in Kalu Ram S/o Shri Ganga Ram vs. Charan Singh and Another, AIR 1994 Raj. 31 , the Rajasthan High Court has held that persons other than Legal Heir can also be Legal Representative and even an intermiddler with the estate of the deceased can also be allowed to represent the estate for the purpose of pending proceedings before Court. It was further held that the decision as to who is the Legal Representative for the purpose of proceedings, is necessarily limited for the purpose of carrying on the proceedings and cannot have the effect of conferring any right of heirship to the estate of the deceased. The decision on this issue also does not operate res judicata on the question of heirship in subsequent proceedings. Therefore, the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not a Legal Representative for the purpose of proceedings before the Court. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of 7is'' has sufficient interest in carrying on litigation. It was further held that where an objection as to bring L.R. on record was taken on the ground that the Applicant has not acquired any right through the alleged Will as it is not valid, it cannot be said that the Applicant had no interest in the litigation to represent the estate of the deceased. 11. Further, this Court, in the decision reported in Koneridoss vs. N. Subbiah Naidu and Others, AIR 1975 Mad 124 , held that the decision taken under Order 22, Rule 5, C.P.C. will not operate as res judicata in the subsequent Suit. 11. Further, this Court, in the decision reported in Koneridoss vs. N. Subbiah Naidu and Others, AIR 1975 Mad 124 , held that the decision taken under Order 22, Rule 5, C.P.C. will not operate as res judicata in the subsequent Suit. Further, the question as to whether a person should be admitted as the Legal Representative of a party to continue the Suit, cannot be regarded as one of the questions arising in the Suit itself and it is only a matter collateral to the Suit. 12. In another decision, this Court in the case of Muniappa Nada and Others vs. K.V. Doraipandi Nadar and Another, AIR 1988 Mad. 117 , has held that any decision rendered in Order 22, Rule 5, C.P.C. though held after examination of Witnesses, is nevertheless summary in character and not an appealable Order. Further, the question whether a person can be permitted to be brought on record as the Legal Representative of a deceased person for the purpose of continuing the proceedings already begun, is a matter collateral to the Suit and any adjudication arrived at in the course of such an enquiry, cannot operate as res-judicata. 13. The Himachal Pradesh High Court, in the decision reported in Suraj Mani and Another vs. Kishori Lal, AIR 1976 HP 74 , held that the definition of 'Legal Representative' in Section 2(11) of CPC is very wide and it will include a person, who seeks to represent the estate of a deceased person on the basis of a Will said to be executed by the deceased in his favour and the estate will be sufficiently represented by such a person. It is further held that where the Legal Representative of a deceased Plaintiff is brought on record, the decision to do so under Order 22, Rule 5, C.P.C. must be limited to the purpose of carrying on the Suit and cannot have the effect of conferring any right to heirship or to property. It is further held that where the Legal Representative of a deceased Plaintiff is brought on record, the decision to do so under Order 22, Rule 5, C.P.C. must be limited to the purpose of carrying on the Suit and cannot have the effect of conferring any right to heirship or to property. An order under Order 22, Rule 5, C.P.C. involves a summary enquiry as to who should be substituted in the place of the deceased party in a pending proceeding and such a decision does not operate as res judicata, and therefore, when a substitution is made on the finding that the Will is valid, that finding cannot operate as res-judicata where that very question needs to be decided later on, in order to resolve the controversy in the Suit on its merits. 14. Lastly, in the decision of the Punjab and Haryana High Court, reported in Mangat and Another vs. Surja, AIR 1979 P & H 194, it was held that a Legal Representative is one, who is to represent the estate of the deceased for the limited purpose of carrying on the Suit and may not essentially be his heir; an enquiry in the matter of determination of a Legal Representative under Order 22, Rule 5, C.P.C. is by and large summary and the Order of determination under Order 22, Rule 5, C.P.C. is not res judicata between the parties. It was further held that the Court is bound to determine whether any person is a Legal Representative or not, but the word 'determine' is not to be equated with 'decide'. 15. This Court finds much force in the contentions of the learned Counsel for the Respondents. Unless and until the issue with regard to the determination of Legal Representative of a deceased person, has gone into by the Trial Court, this Court cannot adjudicate any of the Petitions filed by the proposed Appellant, as his right to file the Petitions itself is the moot question to be decided. In fact, there is an issue with regard to the legality of the adoption of the proposed Appellant by the deceased Appellant, apart from his locus-standi to be impleaded/substituted in the place of the deceased Appellant, apart from the validity of the Will, dated 31.1.2013. 16. In fact, there is an issue with regard to the legality of the adoption of the proposed Appellant by the deceased Appellant, apart from his locus-standi to be impleaded/substituted in the place of the deceased Appellant, apart from the validity of the Will, dated 31.1.2013. 16. Hence, this Court directs the Trial Court to decide the question as to whether the proposed Appellant, who is stated to be a Legal Representative of the deceased Appellant, based on the said Will, is entitled to be brought on record in this case as the Second Appellant, and the veracity of the said Will, as also the legality of the adoption of the proposed Appellant herein by the deceased Appellant, will have to be decided by the Trial Court, after hearing the proposed Appellant herein and the Respondents in these C.M.Ps. 17. Till the said question is decided by the Trial Court, these Petitions will stand frozen and the Trial Court is directed to decide the said question within four months from 2.6.2017 on receipt of the records from this Court along with this Order copy. 18. The Trial Court shall decide the said question either based on Order 22, Rule 5, C.P.C. or based on Order 22, Rule 10, C.P.C. even though both the provisions have got to be read conjointly and harmoniously, for the purpose of pronouncing the verdict regarding the bringing on record the Legal Representative of the deceased sole Appellant herein, and more particularly, when there are no other Legal Heirs under Class-I or Class-II of the Hindu Succession Act, in the case on hand, like the proposed Appellant herein, and depending upon the Order that may be passed by the Trial Court, the proposed Appellant will have a right of Appeal in terms of Order 43, Rule 1 (1) of CPC or a Revision Petition, as the case may be. 19. The Registry is directed to send back the records to the Trial Court before the end of this month, along with this order copy, to enable the Trial Court to decide the said question, and the Trial Court shall pronounce its verdict and thereafter send back the records with its decision, to this Court on or before 13.10.2017. 20. Post these C.M.Ps. along with Second Appeal on 20.10.2017, along with the Order of the Trial Court to be pronounced based on the above question.