R.Manohari v. Arumuga Gounder

In the High Court of Judicature at MadrasDated :: 16.02.2008CoramThe Honourable Mr.Justice M.VENUGOPALCivil Revision Petition No.549 of 2004- - - -1. R.Manohari2. M.Sasikala3. K.Renuka Devi... Petitioners/Plaintiffs 2 to 4 vArumuga Gounder ... Respondent/Defendant Civil revision petition filed under Article 227 of the Constitutionof India praying to set aside the fair and decretal orders dated03.04.2003 made in I.A.Nos.1115 of 2002 in O.S.No.101 of 1999 on thefile of the learned District Munsif, Pollachi.For petitioners:Miss A.Sathiya Bama for Mr.T.R.RajaramanFor respondent: Mr.R.Mubarak Basha - - -O R D E R The civil revision petitioners are plaintiffs 2 to 4 in O.S.No.101of 1999 on the file of the learned District Munsif, Pollachi. OneMarimuthuammal filed the said suit against the defendant/respondent forbare injunction restraining the defendant and his men from cutting downor removing the standing and felled trees and causing damages to thesuit properties in any manner and for costs.2. After the filing of the suit O.S.No.101 of 1999, the saidMarimuthammal died on 04.01.2002 and hence, plaintiffs 2 to 4 filedI.A.No.1115 of 2002 in O.S.No.101 of 1999 under Order 22 Rule 3 CPCpraying to implead themselves as plaintiffs 2 to 4 in the above saidsuit.3. The revision petitioners/plaintiffs 2 to 4 claim that as persettlement deed dated 05.08.1972 and the Will dated 04.11.1988, executedby the deceased Marimuthammal, the original plaintiff, the suit propertybelongs to them. https://hcservices.ecourts.gov.in/hcservices/

4.The petitioners' claim is resisted by the respondent/defendant onthe ground that the suit property was under litigation in O.S.No.333 of1948 before the learned Subordinate Judge, Coimbatore between thedeceased original plaintiff Marimuthammal, her husband MuthukumarasamyGounder, S.P.Balasubramnai Gounder, the mother of the deceasedMarimuthammal and others; and that there was a compromise entered intobetween the parties therein and the suit was decreed as per thecompromise in the year 1952, in and by which, the deceased plaintiffMarimuthammal, her husband Muthukumarasamy became entitled to theproperty, having equal half right in the property.5.It is the specific stand of the respondent/defendant that thedeceased plaintiff Marimuthammal acquired half right in the suitproperties with a limited right as per the judgment decree in O.S.No.333of 1948 and, therefore, she cannot encumber or alienate the property andthat the property shall devolve upon her male issues, if any, and incase if there are no male issues, the property shall devolve upon thefemale, and if there are no female issues, after the death of Marimuthammal, the property shall go to the personsaccording to law. 6. The pith and substance of the stand of the respondent is that thedeceased plaintiff Marimuthammal has no right whatsoever either tosettle 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 thelower Court is that the settlement deed must be a sham and nominaldocument and the same cannot be relied upon. A categorical stand is alsotaken inter-alia in the counter that the property as per Hindu Lawshall devolve upon the heirs of deceased Marimuthammal, through herhusband and that one S.P.Balasubramania counter who is the only brotherof the husband of the deceased Marimuthamal is the absolute owner of theproperty and that the petitioners have no locus to project theapplication. 7. According to learned counsel for the respondent/defendant thatOrder XXIII Rule 3 of Code of Civil Procedure applies to bring the legalrepresentative of the deceased to come on record and that the saidprovision will not apply to the petitioners.8. Learned counsel for the revision petitioners urges that as perthe Will and Settlement deed, the petitioners have become the absoluteowners of the property and, therefore, they have right to get themselvesimpleaded as plaintiffs.9. Learned District Munsif, Pollachi, has passed orders inI.A.No.1115 of 2002 on03.04.2003 inter alia, observing that a rivalclaimant, claims to be legal heir of the deceased as per compromisedecree in O.S.No.333 of 1948 and both claim to get themselves as https://hcservices.ecourts.gov.in/hcservices/ plaintiffs and coming to the conclusion that the rights of the partiescan be decided only after an enquiry in I.A.No.1220 of 2002 andresultantly dismissed the I.A.No.1115 of 2002 for the present withoutprejudice to the filing of a fresh application, if I.A.No.1220 of 2002is decided in their favour.10. Admittedly, I.A.No.1220 of 202 has been filed by theapplicant/proposed party S.P.Balasubramania Gounder before the lowerCourt in which, the deceased plaintiff Marimuthamaml arrayed as firstrespondent and the defendant in the suit O.S.No.101 of 1999 and ArumugaGounder arrayed as the second respondent. It appears that the saidI.A.No.1220 of 2002 is pending, wherein the proposed party has prayedfor impleading himself as second plaintiff and to permit him toprosecute the original suit.11. Order XXII Rule 3 CPC speaks of procedure in case of death ofone of the several plaintiffs or of sole plaintiff, which runs asfollows:" (1) Where one of two or more plaintiffs dies and theright to sue does not survive to the surviving plaintiffor plaintiffs alone or a sole plaintiff or sole survivingplaintiff dies and the right to sue survives, the Court,on an application made in that behalf, shall cause thelegal representative of the deceased plaintiff to be madea party and shall proceed with the suit." (2)Where within the time limited by law no application ismade under sub-rule (1), the suit shall abate so far asthe deceased plaintiff is concerned, and, on theapplication of the defendant, the Court may award to himthe costs which he may have incurred in defending thesuit, to be recovered from the estate of the deceasedplaintiff."12. Order XXII Rule 5 of Code of Civil Procedure enjoins the Courtto determine the issue of legal representative of a deceased plaintiffor a deceased defendant, which runs as follows: "When a question arises as to whether any person is oris not the legal representative of a deceased plaintiff ora deceased defendant, such question shall be by theCourt:- Provided that where such question arises before anAppellate Court, that Court may, before determining thequestion, direct any subordinate Court to try the questionand 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 intoconsideration in determining the question. https://hcservices.ecourts.gov.in/hcservices/ (Proviso added by Act 104 of 1976)Provided that an Appellate Court before determiningit, may direct any lower Court to take evidence thereonand to return the evidence so taken together with itsfinding and reasons and may take such finding and reasonsinto consideration in determining the question."13. Further, it cannot be gain-said that Section 2(11) CPC refers"legal representative" means a person who in law represents the estateof a deceased person, and includes any person who inter-meddles with theestate of the deceased and where a party sues or is sued in arepresentative character, the person on whom the estate devolves on thedeath of the party so suing or sued.14.The order to be determined in an enquiry under Order XXII Rule5 CPC only empowers the party to continue the suit or an appeal, as thecase may be, as per the decision reported in AIR 1965 MP 72 (KalyammalMills Ltd. V Vali Mohammad). To put it differently, the aim ofsubstitution is to allow an individual to continue the litigation torepresent the estate of the deceased, in the considered opinion of thisCourt. 15. On going through the order of the lower Court passed inI.A.No.1115 of 2002 dated 03.04.2003, this Court comes to the inevitableconclusion that no determination has been made in regard to the issue oflegal representative by the Court below. As a matter of fact, thedetermination to be made to the issue of legal representative has notbeen adverted to by the Court below as per rquirement of Order XXII Rule5 CPC. Instead, the Lower Court has observed among other things that"adding two rival claimants as plaintiffs cannot be done. Both have notproduced any evidence for their claim. Since their rights can bedecided only after enquiry in I.A.Nol220 of 2002, this petition isdismissed for the present without prejudice to a fresh petition ifI.A.No.1220 of 2002 is decided in their favour." In short the orderpassed in I.A.No.1115 of 2002 dated 03.04.2003 is not a reasoned order.16.In this connection it is not out of place to refer Rule 32 ofCivil Rules of Practice which enjoins as follows:"Proof of facts by affidavit: Any fact required to beproved upon an interlocutory proceeding shall, unlessotherwise provided by these rules, ordered by Court, beproved by affidavit but the Judge may in any case directevidence to be given orally; and, thereupon the evidenceshall be recorded, and exhibits marked, in the same manneras in a suit and lists of the witnesses and exhibits shallbe prepared and annexed to the judgment."17.As far as the present case in I.A.No.1115 of 2002 is concernedboth parties have not adduced any oral or documentary evidence. It https://hcservices.ecourts.gov.in/hcservices/ transpires that both parties have not availed the method of letting inoral evidence as per Rule 32 of Civil Rules of Practice.18.Inasmuch as the Court has not determined the issue of legalrepresentative as per the requirement of Order XXII Rule 5 CPC, withoutgoing into the merits of the matter, this Court is inclined to allow thecivil revision petition to prevent aberration of justice andresultantly the order of the Court below passed in I.A.No.1115 of 2002dated 03.04.2003 is set aside. The lower Court is directed to restoreI.A.No.1115 of 2002 to its file giving liberty to both parties to adduceoral and documentary evidence in the manner known to law.19.The Lower Court after restoring the I.A.No.1115 of 2002 to itsfile must also take up the pending application I.A.No.1220 of 2002 anddispose of both the applications simultaneously, within a period ofthree weeks from the date of receipt of a copy of this order,uninfluenced by the observation made by this Court in this civilrevision petition. 20.With the above observations, the civil revision petition isallowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkvsgToThe District Munsif, Pollachi.+1cc to Mr.R.Mubarak Basha, Advocate Sr 8674+1cc to Mr.T.R.Rajaraman, Advocate Sr 8511VSV (CO)km/22.2. C.R.P.NPD No.549 of 2004