S.Sampathkumar & Anr vs Valliammal & Ors

This Civil Revision Petition has been filed against the order dated 17.10.2014 passed in I.A.No.773 of 2013 in O.S.No.24 of 2008 on the file

of the District Munsif Court, Palani.

Learned counsel for the petitioner would submit that O.S.No.24 of 2008 on the file of the District Munsif Court, Palani was filed by one

M.N.Mayilsamy Gounder and pending suit, he died. The petitioners herein on the basis of a registered will dated 15.10.2010 executed by the said

M.N.Mayilsamy Gounder filed a petition to implead themselves as legal heirs of the deceased plaintiff/M.N.Mayilsamy Gounder in the above suit.

The Trial Court disposed of the said petition by order dated 17.10.2014 directing the petitioners to implead themselves in the above suit along with

other leal heirs of deceased plaintiff. Aggrieved by the said order, the petitioners have filed this revision petition.

It is further submitted that the deceased plaintiff/M.N.Mayilsamy Gounder is the father of the 2nd petitioner and maternal grandfather of the 1st

petitioner and the suit was filed by the said M.N.Mayilsamy Gounder for the relief of declaration that the settlement deed dated 08.03.2007

executed by the 2nd defendant in favour of the 1st defendant is not valid and for consequential permanent injunction restraining the defendants from

utilizing the income generated from the suit property for the purposes other than pooja related activities to the Samadhi of Muthusamy Gounder

located in the suit property. The registered will was executed by the said M.N.Mayilsamy Gounder in favour of the petitioners and 1st petitioner''s

father. In respect of the civil cases conducted by M.N.Mayilsamy Gounder, he nominated the petitioners and 1st petitioner''s father to conduct the

same either singly or jointly after his death and after his death, the petitioners filed the above I.A to implead themselves as legal heirs of the

deceased plaintiff in the suit based on the abovesaid will. The learned Judge by impugned order dated 17.10.2014 has passed an order allowing

the application holding that other legal heirs of the deceased plaintiff/M.N.Mayilsamy Gounder also have to be impleaded.

Adding further, learned counsel for the petitioner would submit that the 3rd respondent resisted the application of the petitioners on the ground

that other heirs of the deceased plaintiff are necessary parties to the suit, however, the Trial Court holding that genuineness of the will executed by

the deceased plaintiff can be determined only after trial, allowed the impleading petition directing the petitioners to implead the other legal heirs of

the deceased plaintiff which is not correct as the will is a registered will and there is a specific recital in the will as to who has to proceed with the

case after the death of M.N.Mayilsamy Gounder. In support of his contention, learned counsel for the petitioner relied upon the judgment of this

Court reported in 1988 L.W 303 Margabandhu Chettiar vs. V.Pattammal.

Learned counsel for the petitioner would also contend that the finding of the learned Judge that genuineness of the will can be determined only at

the stage of the trial is erroneous on account of the mandate contained under Order 22 Rule 5 CPC which states that where a question arises as to

whether is or is not the legal heir of the deceased plaintiff or deceased defendant, such question shall be determined by the court and the learned

Judge without discharging his duty of determining the question as to who is the legal heir of the deceased plaintiff has directed to implead the other

legal heirs which is erroneous and therefore the learned counsel prayed for setting aside the impugned order and consequently to direct the Trial

Court to determine the question whether the petitioners can be deemed as legal representatives of deceased plaintiff in O.S.No.24/2008 in

accordance with law.

Heard the learned counsel for the petitioner and 3rd respondent. Despite service of notice, respondents 1 and 2 have not chosen to appear

either in person or through pleader.

Perusal of the records shows that the plaintiff in O.S.No.24/2008 has executed a registered will. In the recitals of the will, the deceased plaintiff

has stated that the suit properties shown in A schedule of the will shall vest with the 1st petitioner i.e., his grandson and the 2nd petitioner, his

daughter shall conduct O.S.No.24/2008 after his demise. It is also useful to extract below Order 22 Rule 5 CPC:-

''''Where 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.''''

The usage of the word ''shall'' in the above provision shows that it is mandatory on the part of Courts to determine such issues. Perusal of the

judgment reported in 1988 L.W 303 also shows that under Order 22 Rule 5 CPC, where 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 and for that purpose, the

court must take evidence and then decide for itself who has got the better claim. If the court fails to follow this procedure, the High Court will

interfere in revision.

As per the above judgment, the learned Judge ought to have decided as to who is the legal heir of the deceased plaintiff before allowing

impleading petition and directing to implead all other legal representatives of the deceased plaintiff. The petitioners had produced the above

registered will executed by the deceased plaintiff/M.N.Mayilsamy Gounder. When the recitals of the will are very clear to the effect that that the

suit properties shown in A schedule of the will shall vest with the 1st petitioner i.e., his grandson and the 2nd petitioner, his daughter shall conduct

O.S.No.24/2008 after his demise, it is for the court to decide the question as to who is the legal heir and who is the legal heir who got better claim.

The judgment cited by the learned counsel for the petitioner squarely applies to this case, by which, a question as to who is the legal representative

has to be decided first and therefore, in view of the provision under Order 22 Rule 5 CPC and the judgment referred to above, I am inclined to

interfere with the impugned order passed by the learned Judge.

Accordingly, the order dated 17.10.2014 passed in I.A.No.773 of 2013 in O.S.No.24 of 2008 on the file of the District Munsif Court, Palani,

is set aside and I.A.No.773 of 2013 in O.S.No.24 of 2008 is remanded to the Trial Court. The learned District Munsif Court, Palani, is directed

to determine the question whether the petitioners can be deemed as legal representatives of the deceased plaintiff in O.S.No. 24/2008 within a

period of eight weeks from the date of receipt of a copy of this order.

With the above direction, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.