Krishnakumar v. N. Govardhana Naidu

ORDER Natarajan, J.

1. The question for consideration in this revision petition is whether the order of the Subordinate Judge, Tirupattur, in I.A. No. 521 of 1972 in O.S. 41 of 1968, on the file of his Court holding that the revision petitioner is not the legal representative of the deceased second defendant is a sustainable order or not.

2. Respondents 1 and 2 herein who were arrayed as the plaintiff and first defendant in the suit are brothers and are the grandsons of the deceased second defendant through her daughter. The first respondent as plaintiff filed the suit for partition and separate possession of his one-fourth share in the A schedule property and half share in the B schedule property. It is not disputed that the first defendant is entitled to the remaining half share in the B schedule property and one-fourth share in the A schedule property. It is also the common case of parties that the second defendant was solely entitled to the remaining half share of the A schedule property in pursuance of a registered will executed by her sister Balambal on 2-6-1928. She was made a party to the suit inasmuch as she was in joint possession of the A schedule property along with the plaintiff and the first defendant.

3. After the trial of the suit was over and the suit was posted for judgment, the second defendant died on 21-2-1971. Preliminary decree in the partition suit was nevertheless passed on 27-2-1971. Thereafter the plaintiff filed I.A. 521 of 1972 under Order 22. Rule 4. Civil P. C. praying that his minor son the petitioner in this revision petition be impleaded as the legal representative of the deceased second defendant. The case set up by the plaintiff in the affidavit filed in support of the application is that on 19-1-1971, the second defendant executed a registered will Ex. A-1 bequeathing her half share in the A schedule property to the revision petitioner and as such the revision petitioner was entitled to be brought on record as the legal representative of the deceased second defendant. The application was vehemently opposed by the first defendant on the ground that the will, despite its registration, was brought about by fraud, undue influence and coercion and that as such the revision petitioner ought not to be given recognition as the legal representative of the second defendant and brought on record.

4. On account of the rival contentions Of the parties about the legality and validity of the will, the learned Subordinate Judge proceeded to record detailed evidence on both parties in support of their respective contention and ultimately he held for several reasons set out by him in his order that the will on which reliance was placed to get recognition of the petitioner as the legal representative of the deceased second defendant must have been brought about by either fraud or undue influence and therefore the revision petitioner cannot be recognised as the legal representative of the deceased: second defendant and brought on record. Aggrieved by this order, the revision petitioner has come forward with this revision.

5. I am afraid that the learned Subordinate Judge has completely misconstrued the purport and object of Order 22. Rule 3 and Rule 4 and the scope of the enquiry that has- to be conducted as contemplated under Order 22, Rule 5, C.P. Code, when there are rival claimants for petting recognition of the Court as the legal re-presentative of a decease plaintiff or defendant in a pending action. Order 22. Rule 5 reads as follows:

"When 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........"

It is needless to say that though a duty is cast by Rule 5 of Order 22 on the Court to determine who is the legal representative of a deceased plaintiff or deceased defendant, there need not be a comprehensive and exhaustive enquiry to determine the person who could be properly designated the legal representative of a deceased party in a Pending action, for the simple reason that any decision so rendered by a Court in pursuance of an enquiry under Order 22, Rule 5. Civil P. C. has its inherent limitations. The recognition of a rival contender as the legal representative of a deceased party in a pending action is only to facilitate the early disposal of the pending action. Any recognition of right given by a Court in such a proceeding will not confer rights on the recognised representative in the estate or property of the deceased person, nor will such a finding operate as res judicata in subsequent proceedings. The very fact that no appeal is provided from an order passed under Order 22, Rule 5. Civil P.C., will go to show that the order cannot be characterised as one 'finally decided by a Court' as contemplated in Section 11, Civil P. C."

6. Therefore, all that is recruired of a Court before which there is a contest as to who is the proper legal representative of a deceased plaintiff or defendant is to find out as to who has got a prima facie claim to represent the estate of the deceased and to confer on him the status of the legal representative of the deceased party.

7. In Goor Bachan Singh v.Gian Singh, AIR 1922 Lah 175 it was held that the Court is not bound to make a lengthy and elaborate enquiry into the question whether the proposed legal representative was the legitimate son of the deceased party. The Court further observed as follows-

"For the purposes of Order 22, Rule 5. Civil P. C., it is sufficient for us to find that Gian Singh has succeeded in forcing recognition of his status upon Mst. Gurdial Kaur and that he has intermeddled with Ratan Singh's estate and is actually in possession of a portion of it. We accordingly direct Gian Singh be brought upon the record as the legal representative of Rattan Singh"

In Maung Po Mya v. Ma Gyan Bon, AIR 1923 Rang 114, it was held as follows;

"The provision of Order 22 seem to be framed for the sole purpose of Providing for the continuance of litigation on a party dying or changing his legal character. If, under Rule 5 of the order a question is raised, at the proper time as to who is the legal representative or who are the legal representatives then for the purpose of the suit, and for that purpose only, the Court has to decide the point. The Court quite obviously cannot under the provisions of that Order, come to any binding decision as between the various claimants to the estate. All that it can decide is who is to represent the estate for the purpose of the suit. And once the Court has decided on that point, then the person the Court adds to the record as legal representative for the purpose of that suit, just as surely as if he were appointed for the purpose by a District Judge under the provisions of Section 38 of the Probate and Administration Act."

8. The Allahabad High Court also has taken the same view as in Beni Madho v. Sri Ram Chandraji. AIR 1937 All 192. It held as follows-

"So far as the two rival claimants are concerned, the question as to who was the legal representative of the deceased was not fully adjudicated upon and could be reagitated as between them. Therefore, that order was not a final adjudication of the right of the parties by the Court at all. All that was necessary was to bring on the record some person who was found to be legal representative of the deceased so that the case may be proceeded with and the rights of the opposite party finally determined"

9. As I have stated earlier, any decision rendered by a Court purporting to give its decision under Order 22, Rule 5. Civil P.C. will not operate as res iudicata. The same view has been taken in Parasotam Rao v. Janaki Bai. (1906) 28 All 109; Dukh Haran v. Dulhin Bihasa. and Md. Khan v. Jan Mohammed. AIR 1939 Lab 580.

10. In the instant case the learned Subordinate Judge failed to note that merely by giving recognition to the revision petitioner as the legal representative of the deceased second defendant, the revision petitioner will not be entitled to automatically proclaim that the will executed in his favour by the second defendant is a genuine and valid will and that it is unassailable. In the partition suit, the second defendant was added only as a formal party. No relief was asked for against her or in respect of her half share in the A schedule property and the preliminary decree reads that the plaintiff will be entitled to one fourth share in the A schedule property and a half share in the B schedule property. Inasmuch as there is a registered will in favour of the revision petitioner, the learned Subordinate Judge could well have held that prima facie the revision petitioner was entitled to represent the estate of the second defendant and be brought on record as the legal representative. The controversy between the parties about the legality and the validity of the will is to be thrashed out and determined in separate proceedings in that behalf and the mere recognition of the revision petitioner as legal representative of the deceased second defendant can never confer on him rights to enforce the will nor is the first defendant estopped from contending in appropriate proceedings that the will was brought about by fraud and undue influence or coercion and that it was not binding on him. It is no doubt true that a Court has to make an enquiry when there are rival claimants to get recognition as legal representative of a deceased plaintiff or defendant and determine the question judicially. But such enquiry need be lengthy only where the circumstances and the facts of the case warrant the same. The order of the Subordinate Judge is therefore clearly unsustainable.

11. The learned counsel for the second defendant however placed reliance On a decision of this Court in Nagappa v. Karuppiah, AIR 1925 Mad 456. in support of his contention that when a question arises for determination under Order 22, Rule 5, Civil P.C., whether a person is or is not the legal representative of a deceased plaintiff or defendant, the question ought to be determined by the Court unambiguously and for that purpose the Court must take evidence and then decide for itself as to who has got the better claim. The Court further held that if the trial Court failed to follow the procedure the High Court was entitled to interfere, in the matter in exercise of its revisional] powers. The authority relied on by the learned counsel can have no application to the facts of this case. That was a case where a managing member of a Hindu joint family instituted the suit and the suit itself referred to joint family estate. It was really a suit in a representative character for all the members of the family. It was in such circumstances that the controversy arose as to who among the rival claimants was entitled to step into shoes of the deceased plaintiff. In the instant case no such complications arise. As I have already stated above, the suit was not directed against the property of the deceased or against her personally. She was only a formal party to the suit. The controversy was between the plaintiff and the first defendant and their respective shares in the suit properties.

12. In the result, the revision petition is allowed and the order of the Subordinate Judge is set aside. I.A. No. 521 of 1973 filed by the plaintiff to implead the revision petitioner herein as legal representative of the second: defendant will stand allowed. If such an order is not passed, it may well be that a stalemate may arise and no final decree can be passed in the suit without anybody being brought on record as legal representative of the deceased second defendant. There will be no order as to costs.