Andhra Pradesh High Court - Amravati
Papolu Veera Raghavaiahdied vs Malineni Subba Rao on 10 October, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.2204 of 2019
and
CIVIL REVISION PETITION No.2393 of 2019
COMMON ORDER:
Invoking Article 227 of the Constitution of India these two Civil Revision Petitions are filed. In C.R.P.No.2204 of 2019 the revision petitioners call in question the order dated 03.07.2019 of learned Principal Junior Civil Judge, Ongole in I.A.No.1241 of 2019 in O.S.No.698 of 2008. In C.R.P.No.2393 of 2019 the sole revision petitioner calls in question the order dated 19.06.2019 of learned Principal Junior Civil Judge, Ongole in I.A.No.1036 of 2019 in O.S.No.81 of 2008.
2. Sri M.R.S.Srinivas, the learned counsel for revision petitioners and Ms. P.Rachana, the learned counsel representing Sri Kolluri Arjun Chowdary, the learned counsel for respondent submitted arguments.
3. Sri M.Subba Rao filed O.S.No.81 of 2008 as against Sri P.Veera Raghavaiah seeking for declaration that plaintiff is the absolute owner of the plaint schedule property and for consequential permanent injunction restraining the defendant from interfering with possession and enjoyment over the said 2 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 property and for costs and such other reliefs. The defendant therein Sri P.Veera Raghavaiah filed O.S.No.698 of 2008 as against Sri M.Subba Rao seeking for permanent injunction. Both the suits were before learned Principal Junior Civil Judge, Ongole. Both the suits were consolidated and common evidence was recorded and both the suits were coming up for arguments. It was at that stage Sri P.Veera Raghavaiah died. In O.S.No.81 of 2008 the plaintiff therein Sri M.Subba Rao then filed I.A.No.1036 of 2019 under Order XXII Rule 4 C.P.C. seeking impleadment of his wife and children as legal representatives. After due hearing that application was allowed. That order of the learned trial Court is challenged now in the revision. In O.S.No.698 of 2008 one son of late Sri P.Veera Raghavaiah filed an application under Order XXII Rule 4 C.P.C seeking for his impleadment as legal representative and bring him on record as second plaintiff. That application was dismissed by the learned trial Court stating that all the legal heirs of deceased sole plaintiff were to be brought on record and the applicant was at liberty to move a fresh application to bring all the legal heirs of the deceased as legal representatives. That is under challenge now in this revision.
3
Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019
4. Sri P.Narendra Babu is son of late Sri P.Veera Raghavaiah. In both the revisions he is one of the revision petitioners. His claim is that his father executed a registered Will dated 19.05.2018 whereunder he bequeathed the suit schedule property and other properties in his favour and subsequently mentioned in the Will that in the event of his death the legatee should prosecute the suits pending before the Court. The opposite party Sri M.Subba Rao did not challenge the existence and validity of the Will and did not challenge the relationship between the testator and the legatee. His only challenge was that deceased left other legal heirs and they should also be brought on record. That view of Sri M.Subba Rao was accepted by the trial Court. Therefore, in the injunction suit when the legatee alone sought his impleadment as legal representative the trial Court declined to do so. In the declaration suit at the behest of Sri M.Subba Rao when all the legal representatives were invited to the enquiry the learned trial Court was satisfied that all of them were legal representatives and therefore, allowed that application. That order is challenged not only by the legatee under the Will but also by all the other legal heirs in the revision. The reason for all of them 4 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 to come over to the revisional Court is that in I.A.No.1036 of 2019 in O.S.No.81 of 2008 filed by Sri M.Subba Rao the legatee filed a counter claiming that he alone should be impleaded as legal representative. The wife and other children of late Sri P.Veera Raghavaiah filed a memo adopting the counter of the legatee. That indicates that rest of the legal heirs recognized the legatee as the sole representative to represent the estate of late Sri P.Veera Raghavaiah in the suits. It is in the context of above undisputed facts, these revisions came up for hearing.
5. Learned counsel for revision petitioners submit that legal heir is different from legal representative and a legatee under a Will is a legal representative within the definition of Section 2(11) C.P.C. and once there is a registered Will the legatee alone need be impleaded as legal representative.
6. As against it, learned counsel for respondent submits that the estate of the deceased shall be represented properly and all the legal heirs are legal representatives and the view taken by the trial Court cannot be objected to. Without there being averments in petition or counter and without there being a contention raised before the trial Court a further question is 5 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 debated here in this Court as to whether the Will propounded by Sri P.Narendra Babu, son of late Sri P.Veera Raghavaiah is to be proved in the application for impleadment of legal representative or is to be decided in the suit.
7. Where orders of the trial Court cause miscarriage of justice or where the orders of the trial Court are against the established procedure, revisional Court is entitled to interfere.
Section 2(11) C.P.C. defines legal representative as under:
"2(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."
8. Order XXII Rule 5 C.P.C. provides for determination of question as to legal representative and it reads as mentioned below:
"Order XXII Rule 5. Determination of question as to legal representative:- 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."6
Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019
9. The above provisions make it clear that when a party to a suit dies his or her legal representative and not legal heir is to be impleaded. It is undisputed that late Sri P.Veera Raghavaiah died on 03.05.2019. He was survived by his wife and children. Thus, he had legal heirs to succeed to his estate. Among those many legal heirs one of his children by name Sri P.Narendra Babu propounded a registered Will dated 19.05.2018 whereunder the deceased made a bequest in his favour and also made a mention that legal proceedings are to be represented by him. The other legal heirs admitted this position. Thus, among the many legal heirs of late Sri P.Veera Raghavaiah there have been no competing claims. All of them had no objection to allow Sri P.Narendra Babu to join the litigation and prosecute the legal proceedings on behalf of the deceased P.Veera Raghavaiah. When there are no competing claims among legal heirs and when one of the legal heirs has been claiming the status of legal representative, there shall be no objection for the Court to allow the legatee to join the litigation and defend the estate of the deceased party to the suit. The view taken by the trial Court is that all the legal heirs should be impleaded to avoid multiplicity of litigation. That view is legally incorrect. Order XXII C.P.C. 7
Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 prescribes the procedure to be followed and steps to be taken in the event of death, marriage and insolvency of parties to the proceedings before a Court. The effort under various provisions of this order is to ensure that a party is not left unrepresented on account of the death, marriage etc. Rule 5 of Order XXII C.P.C. mandates that whenever a question arises as to whether any person is or is not a legal representative of a deceased party, such questions shall be determined by the Court in the very proceedings. That determination under Rule 5 of Order XXII C.P.C. is exclusively for the purpose of ensuring that the deceased is represented effectively by somebody or the other. Such a determination cannot be treated as final pronouncement as to the devolution of, or succession to the rights of the deceased. The concept of legal heir is the result of operation of law of succession and other related personal laws. The existence of a relationship of a particular kind to the deceased and such relations would automatically enable them to be treated as legal heirs. Legal representative on the other hand is a person who is entitled to represent the estate of the deceased in the proceedings in which the necessity arises. In most of the cases the legal heirs themselves happened to be the legal 8 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 representatives. There are, however, certain exceptions to this. If the devolution of the property takes place otherwise than through succession, the legal heir cannot be treated as legal representative. When the legal heirs are willing to abide by the actions of the legatee there cannot be any objection for the Court to permit the legatee to be impleaded as the legal representative vide G.N.Kishore Reddy v. R.Venugopal Rao 1.
10. A legatee under a Will who intends to represent the estate of the deceased testator is an intermeddler with the estate of the deceased and therefore, is a legal representative vide Jaladi Suguna v. Satya Sai Central Trust2. An enquiry under Order XXII Rule 5 C.P.C. is summary in nature. Normally the finding therein cannot operate as res judicata vide Dashrath Rao Kate v. Brij Mohan Srivastava3.
11. In the case at hand, among all the legal heirs of deceased there has been no dispute and in unison they claim that Sri P.Narendra Babu as a legatee of Sri P.Veera Raghavaiah be 1 2004 SCC Online AP 397 equivalent to 2004 (2) APLJ 277 2 (2008) 8 SCC 521 3 (2010) 1 SCC 277 9 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 brought on record to represent the estate of the deceased. Sri M.Subba Rao never disputed the blood relationship between the testator and the legatee and never disputed the validity of the Will so far as these interlocutory applications are concerned. In such circumstances, the view of the trial Court that all legal heirs should be brought on record to avoid multiplicity of litigation is a clear error of law occasioning failure of justice. The registered Will propounded and the consent of all the legal heirs and absence of any contest on the Will are sufficient enough for the trial Court to act upon that Will and recognize the legal representative and bring him on record and proceed with further proceedings of the suit. Proof or otherwise of the Will did not fall for consideration in the interlocutory applications that were entertained by the trial Court. However, in the event of Sri M.Subba Rao raising any question about proof of the Will it is for the trial Court to take a decision on that and proceed further with the suits. In the light of the above findings, the orders impugned in these two revisions cannot be sustained.
12. In the result, C.R.P.No.2204 of 2019 is allowed. The order dated 03.07.2019 of learned Principal Junior Civil Judge, 10 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 Ongole in I.A.No.1241 of 2019 in O.S.No.698 of 2008 is set aside. As a consequence, I.A.No.1241 of 2019 in O.S.No.698 of 2008 stands allowed. Therefore, Sri P.Narendra Babu is to be impleaded as the legal representative of late sole plaintiff Sri P.Veera Raghavaiah.
The order dated 19.06.2019 of learned Principal Junior Civil Judge, Ongole in I.A.No.1036 of 2019 in O.S.No.81 of 2008 is set aside to the extent of impleading other legal heirs of late Sri P.Veera Raghavaiah. The said order is sustained to the extent of impleading Sri P.Narendra Babu as legal representative of late Sri P.Veera Raghavaiah. C.R.P.No.2393 of 2019 is accordingly disposed of. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 10.10.2023 Ivd 11 Dr. VRKS, J C.R.P.No.2204 of 2019 & C.R.P.No.2393 of 2019 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.2204 of 2019 and CIVIL REVISION PETITION No.2393 of 2019 Date: 10.10.2023 Ivd