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Case Number

C.R.P No. 976 of 1988.

Attorney(S)

M/s. K. Chandramouli and S. Viswanathan for the Petr.
M/s. T.R Rajagopalan, T.R Rajaraman and V. Ramesh for the Respt.

Judges

Ratnam, J.

Acts

Rent Control) Act (hereinafter referred to as the Act),
rule 25 of the Rules

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The dispute arises from proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act concerning a building belonging to the trust "Ammalu Ammal Kattalai." The trustee of the trust, P.S. Ramaswami Chettiar, died on 3-12-1982. The second respondent (tenant) was ordered by the Rent Controller to deposit rents payable in respect of the building.

The petitioner is the brother's son of the deceased trustee and claims to have been appointed trustee under a Will dated 21-6-1982 (Ex.R1). The first respondent is the adopted son of the deceased trustee and applied in I.A. 65 of 1983 in R.C.O.P. 22 of 1962 for being brought on record as the deceased's legal representative. The petitioner opposed that application on the ground of the Will appointing him trustee.

The Rent Controller (District Munsif) found the Will to be true and valid, held that the adopted son could not succeed as legal representative in relation to the trust, and dismissed I.A. 65 of 1983. The first respondent appealed by filing R.C.A. 9 of 1985 before the Appellate Authority (Subordinate Judge), Nagapattinam. The Appellate Authority accepted that the Will was true but concluded that the trusteeship was hereditary and that the first respondent, as adopted son, could not be deprived of hereditary trusteeship; it allowed the appeal and directed the withdrawal of rents in deposit. The petitioner filed this civil revision petition challenging the correctness of the Appellate Authority's order.

Legal Issues Presented

Whether the application by the first respondent under Order 22 Rule 4 C.P.C. (I.A. 65 of 1983) was maintainable in proceedings under the Act and whether it was time-barred under Rule 25 of the Rules framed under the Act.
Whether the Will (Ex.R1) executed by deceased P.S. Ramaswami Chettiar had been established.
Whether the Appellate Authority was competent to entertain an appeal against the Rent Controller's refusal to bring the first respondent on record as legal representative (i.e., whether such an order was appealable).
Whether the trusteeship in the trust is hereditary so as to override a valid appointment of a successor trustee under the Will (i.e., the proper effect of clauses of the Will, particularly clauses 1, 3, 4 and 7).
Whether an adjudication in proceedings for recording legal representatives operates as res judicata on the substantive question of succession or trusteeship, or whether such adjudication is collateral and limited to facilitating further prosecution of the proceedings.

Arguments of the Parties

Petitioner's Arguments

The first respondent's application purportedly under O. 22, R. 4 C.P.C. was not maintainable in proceedings under the Act and, in any event, was filed beyond the time prescribed by Rule 25 of the Rules under the Act.
The Rent Controller correctly found the Will (Ex.R1) to be true and valid and therefore the petitioner had been validly appointed trustee and recorded on the proceedings as the legal representative of the deceased.
The refusal of the Rent Controller to bring the first respondent on record as legal representative was merely procedural and did not adjudicate any substantive right, so an appeal against that refusal was incompetent.
The first respondent should litigate claims to trusteeship, properties and income in a separate suit rather than in the course of proceedings under the Act.

First Respondent's Arguments

The first respondent contended that the petitioner had already been brought on record as the legal representative and that his application was only to be brought on record as an additional legal representative; therefore Rule 25 did not apply and the application was in time and entertainable.
The first respondent challenged the establishment of the Will, contending that execution by the testator had not been proved and that the conclusions of the lower authorities upholding the Will were erroneous.
The first respondent argued that the Rent Controller's refusal to bring him on record decided that he was not entitled to receive the rents in deposit, which would make the appeal maintainable.
The first respondent submitted that the decision as to who is the legal representative in respect of the Trust and its properties might be treated as finally decided in the present proceedings, so that a separate suit would be unnecessary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ammanamma v. Ramireddi, A.I.R. 1978 A.P. 410	Relied on by the first respondent (precise principle not detailed in the opinion).	The Court held this decision would be of no assistance to the first respondent in the facts of the present case.
Vedachala Gramani v. Sivasankari Ammal, 61 L.W. 589 = A.I.R. 1949 Mad. 274	Relied on by the first respondent (precise principle not detailed in the opinion).	The Court held this decision would be of no assistance to the first respondent in the facts of the present case.
Lakshmiammal v. V. K. Sivasubramaniam	Principle that an order bringing or declining to bring on record a legal representative in proceedings under the Act is procedural and does not affect the rights of parties; such an order is not appealable.	The Court applied this principle to conclude that the appeal before the Appellate Authority was not maintainable because the Rent Controller's order was procedural and did not adjudicate substantive rights.
Muniappa Nadar (deceased) v. Doraipandi Nadar	Principle that any adjudication in the course of proceedings for recording legal representatives is collateral to the main controversy and does not operate as res judicata on substantive rights.	The Court applied this principle to hold that refusal to recognise a legal representative does not decide the substantive question of trusteeship, and that the first respondent must pursue his claims to trusteeship and properties in an appropriate suit.

Court's Reasoning and Analysis

The Court's analysis proceeded in a sequence addressing proof of the Will, procedural limitations under the Rules framed under the Act, the nature of the Rent Controller's order, and the proper forum for determination of trusteeship rights:

Execution of the Will (Ex.R1): The Court examined the oral evidence of the attesting witnesses (R.Ws. 3 and 2). Their testimony established that the testator took them to the scribe, the Will was written as per the testator's instructions, the testator signed in their presence, and they attested in presence of each other and the testator. Cross-examination did not discredit their testimony. The Will had also been registered by the testator on 26-8-1982 (Ex.R2). On this basis, the Court upheld the findings of the authorities below that Ex.R1 had been established as the Will executed by the deceased.
Applicability of O.22 R.4 C.P.C. and Rule 25 of the Rules under the Act: The Court observed that O.22 R.4 C.P.C. had not been made applicable to proceedings under the Act, and Rule 25 was framed to require an application for making the legal representative of a deceased person party to be preferred within one month from the date of death or the date of knowledge of the death. Because the first respondent was the adopted son, he necessarily knew of the death on 3-12-1982 and the application filed on 6-9-1983 was long beyond the one-month period in Rule 25. The first respondent's contention that he sought to be added only as an additional legal representative was rejected, because his claim was to be brought on record in his own independent right as the adopted son.
Appellate Authority's treatment of trusteeship as hereditary: The Court scrutinised clauses of the Will (notably clauses 1, 3, 4 and 7). Clause 7 exercised the testator's power of appointment to name the petitioner as trustee, and clause 4 gave reasons for not appointing the adopted son—specifically that the adopted son had not attended to trust affairs and concentrated on his business. The Appellate Authority had proceeded on the single consideration that trusteeship was hereditary and that an adopted son could not be deprived of that right, but had overlooked the express clauses in the Will whereby the testator appointed the petitioner instead. The Court concluded that the Appellate Authority erred in treating the trusteeship as necessarily hereditary in the face of a valid exercise of appointment by the testator.
Nature and effect of refusal to bring a legal representative on record: The Court reaffirmed the principle (from Lakshmiammal and related authorities) that an order bringing or declining to bring a legal representative on record in proceedings under the Act is procedural and intended to assist further prosecution of the proceedings; it does not affect substantive rights or liabilities and consequently is not appealable. Applying this, the Court found the appeal before the Appellate Authority to be not maintainable.
Collateral nature of adjudication in recording legal representatives: The Court cited and applied the principle (as in Muniappa Nadar) that enquiries under rules for recording legal representatives are collateral and do not operate as res judicata on the substantive issue of succession or trusteeship. The Court therefore concluded that the first respondent should pursue claims to trusteeship, property and income in an appropriately framed suit rather than in the course of these Rent Control proceedings.

Holding and Implications

Holding: The civil revision petition is allowed. The order of the Appellate Authority (Subordinate Judge), Nagapattinam in R.C.A. 9 of 1985 is set aside and the order of the Rent Controller (District Munsif), Nagapattinam (which dismissed I.A. 65 of 1983) is restored. Each party is directed to bear his costs.

Implications:

The Court affirmed the Rent Controller's finding that the Will (Ex.R1) was duly executed and registered and justified recording the petitioner as the legal representative/trustee for the purpose of the ongoing Rent Control proceedings.
The Court held the first respondent's application to be time-barred under Rule 25 and found that O.22 R.4 C.P.C. was not applicable to the proceedings under the Act; accordingly the application could not have been entertained.
The Court held that the Appellate Authority erred by treating the trusteeship as necessarily hereditary and by ignoring the express terms of the Will that appointed the petitioner as trustee; accordingly, the Appellate Authority's allowance of the appeal was erroneous and has been set aside.
The Court determined that an order about bringing a legal representative on record is procedural and not appealable, and that any adjudication in such proceedings is collateral and does not operate as res judicata on substantive questions of trusteeship. The first respondent must therefore pursue substantive claims to trusteeship and income in a separate suit.
No broader precedent beyond the application of the cited principles to these facts is announced; the direct effect is to restore the Rent Controller's order and require the first respondent to litigate substantive claims in ordinary civil proceedings if he wishes to challenge trusteeship or rights to the trust's properties and income.

VCS/RR.

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Sakthivel v. R.S Govindan And Another

1. This civil revision petition has been preferred against the order of the Appellate authority (Subordinate Judge), Nagapattinam in R.C.A 9 of 1985, reversing the order passed in I.A 65 of 1983 in R.C.O.P 22 of 1962, passed by the Rent Controller (District Munsif), Nagapattinam. Briefly stated, the facts giving rise to the civil revision petition are as follows: The second respondent herein is a tenant in occupation of a building which belongs to a trust ‘Ammalu Ammal Kattalai’ whose trustee was one P.S Rama-swami Chettiar, who died on 3-12-1982. He filed R.C.O.P 22 of 1962 on the file of the Rent Controller, Nagapattinam, praying for the relief of deposit of rents in respect of the building in his occupation and it is not now in dispute that an order was passed directing the second respondent herein to deposit the rents due and payable by him in respect of the building in his occupation. The petitioner herein is the brother's son and the first respondent is the adopted son of deceased P.S Ramaswami Chettiar. In I.A 65 of 1983 in R.C.O.P 22 of 1962, the first respondent prayed that as the adopted son of deceased P.S Ramaswami Chettiar, he should be brought on record as his legal representative. This application was opposed by the petitioner on the ground that deceased P.S Ramaswami Chettiar executed a will on 21-6-1982 in and by which he had appointed the petitioner as the trustee after him and, therefore, the first respondent cannot, even as the adopted son, claim to be brought on record as the legal representative of deceased P.S Ramaswami Chettiar. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller held that the will under which the petitioner claimed to have been appointed as the trustee of the Trust was true and valid and that even though the first respondent herein happened to be the adopted son of deceased P.S Ramaswami Chettiar, he could not succeed as the legal representative of deceased P.S Ramaswami Chettiar, in relation to the trust. On this conclusion, I.A 65 of 1983 was dismissed. Aggrieved by this, the first respondent herein preferred R.C.A 9 of 1985 before the Appellate Authority (Subordinate Judge), Nagapattinam. The Appellate Authority, while accepting that the will under which the petitioner claimed to have been appointed as a trustee of the Trust was true, however, took the view that as the first respondent has been adopted by deceased P.S Ramaswami Chettiar, even in 1962, he could not validly appoint a trustee for administering and managing the Trust and its properties and, therefore, the first respondent, as a hereditary trustee, would be entitled to recover the rents from the building belonging to the Trust. On the aforesaid conclusions, the Appellate Authority allowed the appeal and ordered the application filed by the first respondent and further directed him to withdraw the rents in deposit. It is the correctness of this order that is challenged in this civil revision petition.

2. Learned counsel for the petitioner first contended that the application filed by the first respondent herein in I.A 65 of 1983 purporting to be under O. 22, R. 4. C.P.C was not maintainable and that application was also filed beyond the time prescribed in rule 25 of the Rules framed under the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act), and could not have been entertained. On the other hand, learned counsel for the first respondent submitted that the petitioner had already been brought on record as the legal representative of deceased P.S Ramaswami Chettiar and the application filed by the first respondent was only for bringing him on record as an additional legal representative and, therefore, there was no question of filing the application in accordance with R. 25 and as such the application was in time and entertainable.

3. There is no dispute that the first respondent is the adopted son of deceased P.S Ramaswami Chettiar. In so far as the Will Ex.B1 dated 21-6-1982 stated to have been executed by deceased P.S Ramaswami Chettiar is concerned, learned counsel for the first respondent contended that its execution by the testator had not been established and that the conclusion of the authorities below contra is erroneous. In this connection, it has to be noticed that the Will had been attested by R.Ws 3 and 2 in that order. A careful perusal of their evidence clearly establishes that deceased P.S Ramaswami Chettiar desired to make provision for the management of the Trust properties in a Will and had taken them to the house of the scribe one S. Narayanaswami, and there the will had been written after the details thereof had been furnished by the testator. Their further evidence clearly establishes that the testator signed the will in the presence of R.Ws 3 and 2, and they had also signed as attestors in the presence of each other as well as the testator. Nothing has been elicited in the course of cross examination of R.Ws 3 and 2 to discredit their testimony regarding the execution of the will by deceased P.S Ramaswami Chettiar and the attestation thereof by them. Apart from it, the will had been registered by P.S Ramaswami Chettiar, himself on 26-8-1982, before he died on 3-12-1982, as could be seen from Ex.R2 Thus, the evidence of R.Ws 3 and 2 clearly establish the execution of the Will by deceased P.S Ramaswami Chettiar, and the authorities below were, therefore, right in concluding that Ex.R1 had been established to be the Will executed by deceased P.S Ramaswami Chettiar. The contention of the learned counsel for the first respondent that (he conclusion of the authorities below in this regard is erroneous has to be rejected.

4. Thus, it is seen that the petitioner claims to have been appointed as a trustee under the Will of deceased P.S Ramaswami Chettiar, while the first respondent has projected his rights as the legal representative of the deceased as an adopted son. There is no dispute that on the strength of the Will executed by late P.S Ramaswami Chettiar, the petitioner had already been recorded as his legal representative. It is the first respondent who is now seeking to come on record as the legal representative of deceased P.S Ramaswami Chettiar not along with the petitioner, but in his own independent right as an adopted son. Under those circumstances, it is provided under R. 25 of the Rules framed under the Act, that an application for making the legal representative of a deceased person party to a proceeding under the Act shall be preferred within one month from the date of the death of the person concerned or the date of having knowedge of the death of the person concerned. It was not disputed before this Court that the proceeding taken in R.C.O.P 22 of 1962 continues to remain on the file of the Rent Controller, Nagapattinam and the rents are being deposited. In view of that, if the first respondent was desirous of bringing on record himself as the legal representative, he should have filed the application within one month from the date of death of P.S Ramaswami Chettiar on 3-12-1982, or thedate of his having knowledge of the death of the person. In this case, the two dates cannot be different, for, the first respondent is none other than the adopted son of deceased P.S Ramaswami Chettiar and, therefore, on the same day, namely, 3-12-1982, the first respondent had known about the death of his adoptive father P.S Ramaswami Chettiar. Neither under the provisions of the Act nor the Rule thereunder, O. 22 R. 4. C.P.C, has been made applicable to proceedings under the Act, Presumably in view of its non-applicability, R. 25 had been framed to the effect that the application should be filed within thirty days. Learned counsel for the petitioner is certainly well founded in his contention that the application should have been laid by the first respondent within one month from 3-12-1982 and having been filed only on 6-9-1983, long after the time limit provided for under R. 25, the application could not have been entertained. The contention of the learned counsel for the first respondent that the adopted son was merely trying to come on record as an additional legal representative is without force. His claim is that as the adopted son, he is the only person entitled to be brought on record as the legal representative of deceased P.S Ramaswami Chettiar and not any other. Therefore, the contention of the learned counsel for the first respondent that R. 25 would not be applicable is without force. The decisions in Ammanamma v. Ramireddi A.I.R 1978 A.P 410., and Vedachala Gramani v. Sivasankari Ammal 61 L.W 589=A.I.R 1949 Mad. 274., relied on would also be of no assistance to the first respondent. It has, therefore, to be held that the application filed by the first respondent under O. 22 R. 4 C.P.C was not maintainable and otherwise could not also have been entertained as it has been filed beyond the time limit prescribed in R. 25 of the Rules referred to earlier.

5. Learned counsel for the petitioner next contended that by the refusal of the Rent Controller to bring on record the first respondent as a legal representative of deceased P.S Ramaswami Chettiar there was no adjudication of any rights of his in relation to the Trust and its properties, and, therefore, the appeal preferred before the Appellate authority was incompetent. Reliance in this connection was also placed on the decision in Lakshmiamma v. Sivasubramaniam. On the other hand, learned counsel for the first respondent submitted that the refusal of the Rent Controller to bring on record the first respondent as the legal representative of deceased P.S Ramaswami Chettiar decided that the first respondent was not entitled to receive the rents in deposit and that would enable the first respondent to maintain the appeal before the Appellate Authority.

6. The relief prayed for by the first respondent in I.A 65 of 1983 was only to bring him on record as the legal representative of deceased P.S Ramaswami Chettiar, and nothing more. That application did not purport to make any claim for the rents in deposit. The affidavit filed by the first respondent refers to another I.A No. 35 of 1983, for the purpose of payment out of the amounts in deposit. It is, therefore, obvious that the Rent Controller, while disposing of I.A No. 65 of. 1983, had merely held that the first respondent is not entitled to be brought on record as the legal representative. The filing of an application to bring on record the legal representative of a deceased party is only to assist the further prosecution of the proceedings and to regulate the procedure and does not in any manner affect any right or liability. In Lakshmiammal v. V. K. Sivasubramaniam. I had occasion to consider the identical question as well as the effect of an order either bringing or declining to bring on record a legal representative in a proceeding under the Act and it has been laid down that the order passed is merely procedural assisting the continuation of the proceedings without in any manner affecting the rights of parties and such an order not affecting the rights of parties would not be appealable. That principle would be applicable to this case, also, and, therefore, the appeal preferred by the first respondent before the Appellate Authority was not maintainable as well.

7. Lastly, learned counsel for the petitioner contended that the proper course would be for the first respondent to agitate his claims to the trusteeship as well as its properties and the income therefrom in a separate suit and not to project such rights in the course of proceedings under the Act. However, learned counsel for the first respondent submitted that the decision as to who is the legal representative of deceased P.S Ramaswami Chettiar in so far as the Trust and its properties are concerned might be treated as having been finally decided in the course of the present proceedings, and, therefore, no useful purpose would be served by relegating those matters to a separate suit.

8. From the order of the Appellate Authority, it is seen that it had been influenced by only one consideration, namely, that the trusteeship is hereditary and therefore, the first respondent herein, who is the adopted son of the last trustee, cannot be deprived of that right by the appointment of the petitioner herein as a trustee under the Will Ex.Rl In arriving at this conclusion, the Appellate Authority had not carefully bestowed its attention upon the provisions of the Wilt. Though from clauses 1 and 3 of the Will, it appears that prior to deceased P.S Ramaswami Chettiar, his father had been in management of the trust and its properties as trustee, it is seen from clause 7 that in the exercise of the power of appointment of a successor vested in the existing trustee, the testator had appointed the petitioner as trustee for the management and administration of the trust and its properties instead of the adopted son. It is further seen from clause 4 of the Will that the testator had given reasons as to why he was not inclined to appoint his adopted son as a trustee in respect of the Trust and its properties. The testator had categorically stated that the first respondent had not bestowed any attention in the affairs of the Trust and had been looking after only his business, and, therefore the testator did not desire to entrust the management of the Trust and its properties and its affairs to him. In other words, the testator, taking into account the paramount interest of the Trust and its properties and in the exercise of a power of appointment of a successor claimed by him to have been vested in him, has appointed the petitioner as the trustee in respect of the Trust. The Appellate Authority had completely overlooked these aspects, but had merely proceeded to consider the nature of the office of the trustee as a hereditary one and, therefore, the first respondent could not be deprived of the same. While doing so, it had ignored the clauses already referred to in the Will, which led the testator to appoint the petitioner instead of the first respondent as trustee, though the first respondent was his adopted son. Under those circumstances, the Appellate Authority was in error in assuming that the trusteeship in this Trust was hereditary and the first respondent cannot, as the adopted son, be denied the benefit of such hereditary trusteeship.

9. Now the question is, whether the refusal to recognise the first respondent as a trustee for the purpose of those proceedings would in any manner affect his rights as such (trustee, if otherwise he has such rights. Even Jin cases governed by O. 22 C.P.C, an enquiry [held under O. 22, R. 5 C.P.C, has been held jto be collateral to the suit and any adjudication in such an enquiry cannot operate as res judicata. In Muniappa Nadar (deceased) v. Doraipandi Nadar, I had occasion to consider this identical question and after referring to the several decisions of different courts on an aspect, it was held that any adjudication in the course of proceedings for recording legal representatives would not make the legal representatives heirs as such, but the finding should be construed as having been given only for the further prosecution of the proceedings and not as a decision on merits operating as res judicata. In view of the principles laid down in the decision referred jto above, the proper course for the first respondent would be to agitate all his claims in respect of the trusteeship and its properties as well as the income therefrom in an appropriately framed suit especially when the petitioner had already been brought on record for the purpose of these proceedings as the legal representative of deceased P.S Ramaswami Chettiar. Therefore, the last contention of the learned counsel for the petitioner is also well founded. For the aforesaid reasons, the civil revision petition is allowed and the order of the Appellate Authority is set aside and that of the Rent Controller will stand restored. Each party is directed to bear his costs.

VCS/RR.

Sakthivel v. R.S Govindan And Another

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

First Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sakthivel v. R.S Govindan And Another

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