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Judgment
S. Natarajan, J.—The question for consideration in this revision petition is whether the order of the Subordinate Judge of Tirupattur in I.A.
No. 521 of 1972 in O.S. No. 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.
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
2nd defendant through her daughter. The first respondent as plaintiff filed the suit for partition and separate possession of his l/4th 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 1/4th 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 2nd June, 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.
After the trial of the suit was over and the suit was posted for judgment the. second defendant died on 21st February, 1971. Preliminary decree
in the partition suit was nevertheless passed on 27th February, 1971. Thereafter the plaintiff filed I.A. No. 521 of 1972 under Order 22, Rule 4 of
the Code of Civil Procedure, 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 19th January 1971 the
second defendant executed a registered will Exhibit 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 vehimently 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.
On account of the rival contention of the parties about the legality and validity of the will, the learned Subordinate Judge proceeded to record
detailed evidence of 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 set 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.
I am afraid that the learned Subordinate Judge has completely misconstrued the purport and the 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 of the Code of Civil Procedure, when there are rival
claimants for getting recognition of the Court as the legal representative of a deceased 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 a 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 of the Civil Procedure Code, 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 Procedure Code, will go to show that the order cannot be characterised as one ""finally decided by a Court"" as contemplated in
Section II, Civil Procedure Code.
Therefore, all that is required 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.
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 Procedure Code, it is sufficient for us to find that Gian Singh has succeeded in forcing recognition of
his status upon Mussamat Gurdial Kaur and that he has intermeddled with Rattan Singh''s estate and is actually in possession of a portion of it. We
accordingly direct that Gian Singh, be brought upon the record as the legal representative of Rattan Singh.
In Mating Pa Mya v. Ma Gyan Bon AIR 1923 Rang. 114. it was held as follows:
The provisions 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 purposes of the suit. And once the Court has decided on that point, then the person the Court adds to the record as
legal representative is the 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.
The Allahabad High Court also has taken the same view as in Beni Madho Rao and Others Vs. Sri Ram Chandraji Maharaj . 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.
As I have stated earlier, any decision rendered by a Court purporting to give its decision under Order 22, Rule 5 of the CPC will not operate
as res judicata. The same view has been taken in Parsotam Rao v. Janaki Bai ILR (1906) All. 109. Dukh Haran Tewary and Others Vs. Dulhin
Bihasa Kuer and Another, . and Mohammed Khan v. Jan Mohammed AIR 1939 Lah. 580.
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 1/4th 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 1st
defendant estopped from contending in appropriate proceedings that the will was brought about by fraud or 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.
The learned Counsel for the second respondent however placed reliance on a decision of this Court in T.S. Nagappa Nadar Vs. T.S.
Karuppiah Nadar and Another, in support of his contention that when a question arises for determination under Order 22, Rule 5 of the CPC
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 the
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.
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.