Shanmugam (dead), Muniammal, Sugumar and Sasikumar vs Kumaresan and Others

K.K. Sasidharan, J.—This Revision Petition is directed against the order dated 05.01.2009 in I.A. No. 12135/2008 in O.S. No. 4625/2001 on the file of the VII Assistant City Civil Court, Chennai whereby and whereunder the Application preferred by the Revision Petitioners for impleading them as Legal Representatives of the deceased First Plaintiff was dismissed. The Suit in O.S. No. 4625/2001 was preferred by Thiru. Shanmugam, husband of the First Petitioner and father of the other two Petitioners. The Suit was one for injunction in respect of plaint schedule property.

In the said Suit, the First Respondent claimed reversionary right. The Trial Court as per Judgment and Decree dated 04.07.2006 accepted the contention of the First Respondent and dismissed the Suit.

The Judgment and Decree in O.S. No. 4625/2001 was taken up in First Appeal by the Plaintiff-Shanmugam and the Appeal was registered as A.S. No. 676/2006 on the file of the I Additional City Civil Court, Chennai. In the meantime, the Appellant/Plaintiff died on 26.12.2006. Since the Petitioners are the Legal Representatives of the deceased Appellant, they filed an application in C.M.P. Nos. 844/2007 and 1326/2007 for being impleaded as Legal Representatives of the deceased Appellant after setting aside the abatement. The Appeal was later transferred to the V Fast Track Court, Chennai.

The Applications in C.M.P. Nos. 844/2007 and 1326/2007 were sent back to the Trial Court as per Proviso to Order 22, Rule 5 to decide the issue regarding the claim of Legal Representatives.

The Applications were renumbered as I.A. Nos. 12136/2008 and 12135/2008 respectively in O.S. No. 4625/2007 on the file of the VII Assistant City Civil Court, Chennai.

The Applications were considered by the Court below and the Application were dismissed on the ground that the Petitioners are not the legal heirs of the deceased. It is the said order which is impugned in the Revision Petition.

The provisions of Order 22, Rules 1 and 3, C.P.C. are intended to take care of the contingency arising on account of the death of the sole Plaintiff or sole Defendant or any of the Plaintiffs or Defendants during the pendency of the Suit. Order 22, Rule 1 clearly provides that "the death of a Plaintiff or Defendant shall not cause abatement of the Suit if the right to sue survives". Continuance of the suit after the death of one of the Plaintiffs or Defendants is dealt with under Order 22, Rule 2, C.P.C. Similarly, Rules 3 and 4 provides for impleading the Legal Representatives in the event of the death of sole Plaintiff or Defendant as well as several Plaintiffs or several Defendants respectively. Order 22, Rule 11 provides that the provisions regarding impleading in Suit would also apply to Appeals.

While considering an Application under Order 22, Rule 2 C.P.C, there is no question of considering the capacity of the surviving Plaintiff or Defendant to represent the deceased Plaintiff or Defendant as the case may be. The Court was concerned only about the factum of survival of the cause of action and if it was found that cause of action survives the Court would be obliged to make an entry to that effect so as to enable the Court to continue with the! Suit. Therefore, there is no question of abatement of the Suit in cases covered by Rule 2.

Order 22, Rule 3 requires an Application for impleading the Legal Representatives of the deceased Plaintiff or Defendant as a party to the Suit. In case there was no such Application, the Suit abates against the Plaintiff or Defendant. Similar is the case under Rule 4 which provides for impleading the Legal Representatives of the deceased Defendant.

Order 21, Rule 4(4) is an exception to the rule regarding impleading the Legal Representatives and for the purpose of continuing with the Suit.

The Petitioners have filed an Application under Order 22, Rule 3 read with Rule 11. The said provision clearly indicates as to how the Legal Representatives have to come on record to represent the estate of the deceased Plaintiff.

The term Legal Representative is not synonymous with the word "legal heir". Section 2(11) defines the Legal Representative thus:

(11) "Legal Representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles 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 definition "Legal Representative" as contained in Section 2(11) shows that a Legal Representative need not be a legal heir. It is in inclusive definition. Legal Representative may or may not be a legal heir. Therefore, a Legal Representative is one who represents the estate of the deceased.

In Custodian of Branches of Banco National Ultramarino Vs. Nalini Bai Naique, , the Supreme Court examined the concept of Legal Representative within the meaning of Order 22, Rule 2, C.P.C. and observed thus:

"Legal Representative" as defined in CPC which was admittedly applicable to the proceedings in the Suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles 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 definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased.

The Honourable Supreme Court in Jaladi Suguna (deceased) through LRs. Vs. Satya Sai Central Trust and Others, made the legal position clear with respect to the definition "Legal Representative" thus:

"Legal Representative" according to its definition in Section 2(11) C.P.C, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Thus a legatee under a Will, who intends to represent the estate of the deceased Testator, being an intermeddler with the estate of the deceased, will be a Legal Representative.

When a Respondent in an Appeal dies, and the right to sue survives, the Legal Representatives of the deceased Respondent have to be brought on record before the Court can proceed further in the Appeal. Where the Respondent-Plaintiff who has succeeded in a Suit, dies during the pendency of the Appeal, any judgment rendered on hearing the Appeal filed by the Defendant, without bringing the Legal Representatives of the deceased Respondent-Plaintiff on record, will be a nullity.

In Jaladi Suguna (deceased) through LRs. Vs. Satya Sai Central Trust and Others, the Supreme Court explained the procedure with regard to impleading the Legal Representatives thus:

The provisions of Rules 4 and 5 of Order 22 are mandatory. When a Respondent in an Appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased Respondent and proceed to dispose of the Appeal. Nor can it implead all persons claiming to be Legal Representatives, as parties to the Appeal without deciding who will represent the estate of the deceased, and proceed to hear the Appeal on merits. The Court cannot also postpone the decision as to who is the Legal Representative of the deceased Respondent, for being decided along with the Appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the Legal Representative of a deceased Respondent, such question shall be determined by the Court. The Code also provides that where one of the Respondents dies and the right to sue does not survive against the surviving Respondents, the Court shall, on an Application made in that behalf, cause the Legal Representatives of the deceased Respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of Legal Representative should precede the hearing of the Appeal on merits, Rule 4 read with Rule 11 makes it clear that the Appeal can be heard only after the Legal Representatives are brought on record.

The sole Appellant in A.S. No. 676/2006 died during the pendency of the Appeal. Order 22, Rule 3(1) read with Rule 11 provides for impleading the Legal Representatives of the sole Appellant in case the right to sue survives. The Petitioners have claimed to be the legal heirs of the deceased Appellant and as the right to sue survives on them, they have invoked the provisions of Order 22, Rule 3(1) and filed the Applications to set aside the abatement and to implead them as Legal Representatives.

According to the Petitioner, the deceased Appellant married Chellammal during the subsistence of the marriage with the First Petitioner and in the said marriage, the second and third Petitioners were born. To substantiate their contention, they have produced the birth certificates of the children as well as Transfer Certificates issued by their school. All those certificates were marked on their side besides certain other documents to substantiate their claim.

The Respondents have contested the claim of the Petitioners on the ground that Birth Certificates of the Petitioners 2 and 3 were issued only after ten years after birth and that too by a municipality in whose jurisdiction children were not born. They have also raised other technical objections.

The learned Judge conducted a mini trial and arrived at a finding that the Petitioners are not the legal heirs and as such, they are not entitled to be impleaded as the Legal Representatives of the deceased Appellant.

The learned Trial Judge was more on the question of determining the legal heirs than to find out as to whether the Petitioners are the Legal Representatives of the deceased Appellant. The issue regarding the merits of the claim made by the deceased Appellant was a matter to be considered by the Appellate Court in A.S. No. 676/2006. The Trial Court was only called upon to decide the claim made by the Petitioners as the Legal Representatives of the deceased sole Appellant. The merits of the claim made in the Appeal has nothing to do with the Application to implead the Legal Representatives. The documents produced on the side of the Petitioners were sufficient to declare them as Legal Representatives. Therefore, the learned Trial Judge erred in rejecting the Application.

In the result, the order dated 05.01.2009 is set aside and consequently, LA. No. 12135/2008 is allowed. The Civil Revision Petition is allowed. No costs.