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2021 DIGILAW 1010 (KAR)

Sharadamma W/o Srinivasa Reddy v. Dheeraj

2021-12-15

K.S.MUDAGAL

body2021
JUDGMENT : These two appeals arise out of common order dated 14.06.2021 on I.A.Nos.16 and 17 in R.A.No.121/2012 passed by II Additional District and Sessions Judge, Chikkaballapura, sitting at Chintamani. M.F.A.No.4316/2021 2. By the impugned orders, the First Appellate Court has rejected the applications of the appellants under Order XXII Rule 10 of CPC to come on record as legal representatives of deceased Lakshmana Reddy namely respondent No.2 in R.A.No.121/2012. 3. One Gopala Reddy had five sons by name Srinivasa Reddy, Lakshmana Reddy, Venkata Reddy, Doddappodu, Srirama Reddy and one daughter by name Chikkavenkatamma. Sriramareddy filed O.S.No.1/1970 before Civil Judge, Chintamani against his father Gopala Reddy and other brothers for partition and separate possession of his share. The suit was contested by Venkata Reddy and Lakshmana Reddy on the ground that they had separated from the family taking some of the subject matters of O.S.No.1/1970, in 1962 itself, therefore, they were not partible. 4. The Court partly decreed O.S.No.1/1970 and dismissed the suit with regard to which Lakshmanareddy and Venkatareddy clamed independent rights. Against that judgment, Sriramareddy filed RFA No.155/1978 before this Court. On enhancement of pecuniary jurisdiction of the District Court, RFA No.155/1978 was transferred to District Court, Kolar and renumbered as R.A.No.19/1990. In R.A.No.19/1990, the parties entered into a compromise. Recording the compromise, a decree was passed accordingly and R.A.No.19/1990 was disposed of. 5. Respondent No.1 S/o Srinivasareddy and respondent No.2 claiming to be adopted son of Doddappodu filed O.S.No.57/1999 before Senior Civil Judge, Chintamani claiming that the compromise entered into in R.A.No.19/1990 was out come of fraud played by Venkatareddy and Lakshmanareddy and the said compromise does not bind them. That suit came to be dismissed on 14.06.2012. 6. Against the said judgment and decree, respondent Nos.1 and 2 preferred R.A.No.121/2012 before the II Additional District and Sessions Judge, Chikkaballapura sitting at Chintamani. In that appeal, Venkatareddy was the first respondent and Lakshmana Reddy was the second respondent. Pending the appeal, Lakshmana Reddy died on 02.11.2019 and Venkatareddy died on 27.12.2015. 7. The appellants filed I.A.Nos.16 and 17 claiming that Lakshmanareddy had executed two separate Wills dated 11.12.2017 in favour of the aforesaid appellants and they sought to come on record as legal representatives of deceased respondent No.2- Lakshmanareddy. The present respondent Nos.1 and 2 contested those applications disputing the execution of the Wills etc. 7. The appellants filed I.A.Nos.16 and 17 claiming that Lakshmanareddy had executed two separate Wills dated 11.12.2017 in favour of the aforesaid appellants and they sought to come on record as legal representatives of deceased respondent No.2- Lakshmanareddy. The present respondent Nos.1 and 2 contested those applications disputing the execution of the Wills etc. The First Appellate Court without holding an enquiry as required under Order XXII Rule 5 of CPC heard the parties on the applications and by the impugned order rejected the said applications. 8. The First Appellate Court held that what was to be decided in the appeal was whether the judgment and decree in O.S.No.57/1999 was outcome of fraud and for that purpose, the present appellants are not necessary parties. The First Appellate Court further held that impleading the appellants in R.A.No.121/2012 unnecessarily widens the scope of the appeal and complicates the question involved in the case. The First Appellate Court further held that whether the applicants are legatees and whether Lakshmanareddy had executed Will need not be gone into the case. 9. The appellants claimed to be the legal representatives of deceased Lakshmanareddy who was respondent No.2 in R.A.No.121/2012. 10. Section 2 (11) of CPC defines legal representative as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. 11. Order XXII Rule 10 of CPC which deals with procedure in case of assignments before final order in the suit states that in the case of an assignment or transfer of any interest in the subject matter of the suit, during the pendency of the suit, proceedings shall be continued against such assignee on whom the interest of the deceased party has devolved. 12. Order XXII Rule 4 of CPC provides for impleading of legal representative of the deceased defendant which applies to the respondents in appeal also in case cause of action survives against such legal representatives. 13. This Court in K.Shankarappa Vs. K.G.Gangadharaiah, AIR 2001 KAR 203 held that the legatees under a Will becomes intermeddles of the estate of the deceased party and therefore, they come within the definition of legal representatives. 14. When the execution of Will is disputed, what shall be the procedure to implead the legatees of the alleged Will is the question. This Court in K.Shankarappa Vs. K.G.Gangadharaiah, AIR 2001 KAR 203 held that the legatees under a Will becomes intermeddles of the estate of the deceased party and therefore, they come within the definition of legal representatives. 14. When the execution of Will is disputed, what shall be the procedure to implead the legatees of the alleged Will is the question. For that, Order XXII Rule 5 provides the procedure which reads as follows: “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 therefore, and the Appellate Court may take the same into consideration in determining the question.” [Emphasis supplied] 15. In view of Order XXII Rule 5 of CPC, when execution of the Will is disputed, the Court shall hold an enquiry as contemplated under Order XXII Rule 5 of CPC. For that purpose, the Appellate Court may either itself record evidence and record the findings or remit the records to the trial Court for the purpose of recording evidence and finding on that. But the Appellate Court cannot reject the application summarily without holding any enquiry or recording the finding. Therefore, the impugned order is liable to be set aside. The appeals are allowed. 16. The impugned order dated 14.06.2021 on I.A.Nos.16 and 17 passed by II Additional District & Sessions Judge, Chikkaballapura, sitting at Chintamani is hereby set aside. The matters are remitted to the First Appellate Court to reconsider the applications in accordance with Order XXII Rules 5 and 10 of CPC. Since original proceedings are of the year 1999, the First Appellate Court shall do the aforesaid exercise as expeditiously as possible at any rate within six months from the date of receipt of copy of this order. Both parties shall co-operate for disposal of the applications. In view of disposal of main matters, pending I.As. stood disposed of.