R. Manohari, M. Sasikala and K. Renuka Devi vs Arumuga Gounder

M. Venugopal, J.—The civil revision petitioners are plaintiffs 2 to 4 in O.S. No. 101 of 1999 on the file of the learned District Munsif,

Pollachi. One Marimuthuammal filed the said suit against the defendant/respondent for bare injunction restraining the defendant and his men from

cutting down or removing the standing and felled trees and causing damages to the suit properties in any manner and for costs.

After the filing of the suit O.S. No. 101 of 1999, the said Marimuthammal died on 04.01.2002 and hence, plaintiffs 2 to 4 filed I.A. No. 1115

of 2002 in O.S. No. 101 of 1999 under Order 22 Rule 3 CPC praying to implead themselves as plaintiffs 2 to 4 in the above said suit.

The revision petitioners/plaintiffs 2 to 4 claim that as per settlement deed dated 05.08.1972 and the Will dated 04.11.1988, executed by the

deceased Marimuthammal, the original plaintiff, the suit property belongs to them.

The petitioners'' claim is resisted by the respondent/defendant on the ground that the suit property was under litigation in O.S. No. 333 of 1948

before the learned Subordinate Judge, Coimbatore between the deceased original plaintiff Marimuthammal, her husband Muthukumarasamy

Gounder, S.P. Balasubramnai Gounder, the mother of the deceased Marimuthammal and others; and that there was a compromise entered into

between the parties therein and the suit was decreed as per the compromise in the year 1952 in and by which, the deceased plaintiff

Marimuthammal, her husband Muthukumarasamy became entitled to the property, having equal half right in the property.

It is the specific stand of the respondent/defendant that the deceased plaintiff Marimuthammal acquired half right in the suit properties with a

limited right as per the judgment decree in O.S. No. 333 of 1948 and, therefore, she cannot encumber or alienate the property and that the

property shall devolve upon her male issues, if any, and in case if there are no male issues, the property shall devolve upon the female, and if there

are no female issues, after the death of Marimuthammal, the property shall go to the persons according to law.

The pith and substance of the stand of the respondent is that the deceased plaintiff Marimuthammal has no right whatsoever either to settle the

property or to execute a Will in respect of the property. The further plea taken in the counter in I.A. No. 1115 of 2002 before the lower Court is

that the settlement deed must be a sham and nominal document and the same cannot be relied upon. A categorical stand is also taken inter-alia in

the counter that the property as per Hindu Law shall devolve upon the heirs of deceased Marimuthammal, through her husband and that one S.P.

Balasubramania counter who is the only brother of the husband of the deceased Marimuthamal is the absolute owner of the property and that the

petitioners have no locus to project the application.

According to learned Counsel for the respondent/defendant that Order XXIII Rule 3 of CPC applies to bring the legal representative of the

deceased to come on record and that the said provision will not apply to the petitioners.

Learned Counsel for the revision petitioners urges that as per the Will and Settlement deed, the petitioners have become the absolute owners of

the property and, therefore, they have right to get themselves impleaded as plaintiffs.

Learned District Munsif, Pollachi, has passed orders in I.A. No. 1115 of 2002 on 03.04.2003 inter alia, observing that a rival claimant, claims

to be legal heir of the deceased as per compromise decree in O.S. No. 333 of 1948 and both claim to get themselves as plaintiffs and coming to

the conclusion that the rights of the parties can be decided only after an enquiry in I.A. No. 1220 of 2002 and resultantly dismissed the I.A. No.

1115 of 2002 for the present without prejudice to the filing of a fresh application, if I.A. No. 1220 of 2002 is decided in their favour.

Admittedly, I.A. No. 1220 of 202 has been filed by the applicant/proposed party S.P. Balasubramania Gounder before the lower Court in

which, the deceased plaintiff Marimuthamaml arrayed as first respondent and the defendant in the suit O.S. No. 101 of 1999 and Arumuga

Gounder arrayed as the second respondent. It appears that the said I.A. No. 1220 of 2002 is pending, wherein the proposed party has prayed for

impleading himself as second plaintiff and to permit him to prosecute the original suit.

Order XXII Rule 3 CPC speaks of procedure in case of death of one of the several plaintiffs or of sole plaintiff, which runs as follows:

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole

surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the

deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned,

and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered

from the estate of the deceased plaintiff.

Order XXII Rule 5 of CPC enjoins the Court to determine the issue of legal representative of a deceased plaintiff or a deceased defendant,

which runs 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 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.

(Proviso added by Act 104 of 1976)

Provided that an Appellate Court before determining it, may direct any lower Court to take evidence thereon and to return the evidence so taken

together with its finding and reasons and may take such finding and reasons into consideration in determining the question.

Further, it cannot be gain-said that Section 2(11) CPC refers ""legal representative"" means a person who in law represents the estate of a

deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative

character, the person on whom the estate devolves on the death of the party so suing or sued.

The order to be determined in an enquiry under Order XXII Rule 5 CPC only empowers the party to continue the suit or an appeal, as the

case may be, as per the decision reported in The Kalyanmal Mills Ltd. Vs. Volimohammed and Another, . To put it differently, the aim of

substitution is to allow an individual to continue the litigation to represent the estate of the deceased, in the considered opinion of this Court.

On going through the order of the lower Court passed in I.A. No. 1115 of 2002 dated 03.04.2003, this Court comes to the inevitable

conclusion that no determination has been made in regard to the issue of legal representative by the Court below. As a matter of fact, the

determination to be made to the issue of legal representative has not been adverted to by the Court below as per requirement of Order XXII Rule

5 CPC. Instead, the Lower Court has observed among other things that ""adding two rival claimants as plaintiffs cannot be done. Both have not

produced any evidence for their claim. Since their rights can be decided only after enquiry in I.A. No. 1220 of 2002, this petition is dismissed for

the present without prejudice to a fresh petition if I.A. No. 1220 of 2002 is decided in their favour."" In short the order passed in I.A. No. 1115 of

2002 dated 03.04.2003 is not a reasoned order.

In this connection it is not out of place to refer Rule 32 of Civil Rules of Practice which enjoins as follows:

Proof of facts by affidavit: Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules,

ordered by Court, be proved by affidavit but the Judge may in any case direct evidence to be given orally; and, thereupon the evidence shall be

recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the

judgment.

As far as the present case in I.A. No. 1115 of 2002 is concerned both parties have not adduced any oral or documentary evidence. It

transpires that both parties have not availed the method of letting in oral evidence as per Rule 32 of Civil Rules of Practice.

Inasmuch as the Court has not determined the issue of legal representative as per the requirement of Order XXII Rule 5 CPC, without going

into the merits of the matter, this Court is inclined to allow the civil revision petition to prevent aberration of justice and resultantly the order of the

Court below passed in I.A. No. 1115 of 2002 dated 03.04.2003 is set aside. The lower Court is directed to restore I.A. No. 1115 of 2002 to its

file giving liberty to both parties to adduce oral and documentary evidence in the manner known to law.

The Lower Court after restoring the I.A. No. 1115 of 2002 to its file must also take up the pending application I.A. No. 1220 of 2002 and

dispose of both the applications simultaneously, within a period of three weeks from the date of receipt of a copy of this order, uninfluenced by the

observation made by this Court in this civil revision petition.

With the above observations, the civil revision petition is allowed. No costs.