Andhra HC (Pre-Telangana)
Akkarayoyina Apparao vs Korad Ammoru & Ors. on 17 November, 1997
Equivalent citations: 1998(2)ALD296, 1998(2)ALT303
ORDER
1. The judgment and decree of I Additional District Judge, Visakhapalnam in A.S.No.20 of 1990 dated 14-7-1995 confirming the judgment and decree passed on 25-7-1989 by the Principal Subordinate Judge, VisakhapatnaminO.S.No.35 of 1982 are in challenge in this second appeal.
2. The appellant claims to be the plaintiff in the suit having been brought on record on the death of the original plaintiff Komda Appamma whereas the respondents are the defendants in the suit. The suit was filed for partition and separate possession of the alleged one-half or 1/12th share of the plaintiff in plaint 'A' and 'B' schedule properties. The suit for partition was resisted by the defendants. The following issues were tried by the trial Court.
" 1. Whether the Gangulu died in the year 1955 as pleaded by the plaintiff on or after the year 1957, as pleaded by the defendants ?
2. Whether the plaint A and B schedules properties are correct?
3. Whether the 1st defendant contracted the debts, a list of which is given in the written statement and whether they are binding on the plaintiff and the defendants?
4. To what share is the plaintiff entitled?
5. Whether the suit schedule properties have been over valued?
6. To what relief?"
3. After the trial, the learned Principal Subordinate Judge held that the plaintiffs husband died in the year 1957, that the schedule 'A' and 'B' properties were correctly stated, that the debts contracted by the first defendant after the death of her husband does not bind the plaintiff, the valuation of the suit property was correct, the first plaintiff did not execute the will Ex.A1 willingly and voluntarily and in sound disposing state of mind, that the will dated 13-6-1984 is not true and valid and not binding on the defendants and consequently dismissed the suit
4. The oral evidence in the trial comprises of the testimony of the present appellant as PW1 and PWs 2 to 4 and that of the first defendant as DW1. The documentary evidence comprises of Ex.A1, the will for the plaintiff and Exs.B1 to B3 for the defendants. The matter was taken up in appeal by the present appellant before the learned District Judge, who confirmed the findings recorded by the learned Principal Subordinate Judge and dismissed the appeal.
5. The main ground in the appeal raising the substantial question of law and canvassed on behalf of the appellant by the learned Counsel for the appellant is that instead of holding that there is no plea or averment in the plaint in regard to the will between the principal plaintiff and the present appellant, impleaded as plaintiff No.2, and without adverting to the evidence in the case in support of the will, the learned District Judge has given a finding in the negative and against the appellant and that is sufficient to vitiate the judgment. The learned advocate for the respondents submits that there is no reason to interfere with the judgment and decree of the courts below as they are findings of facts and no question of substantial in nature arises to be considered in this second appeal.
6. It is a surprise that the Courts below have dealt with the matter in a manner not known in law. The principal plaintiff, Korada Appamma claimed a share in the suit schedule properties. Due to certain reasons the present appellant was impleaded as the second plaintiff by allowing the application in I.A.No-91 of 1985 based upon will Ex,A1. The learned District Judge has come to the conclusion that the appellant could not maintain the appeal as there was no averment in the plaint in regard to the will and the proof of the same except his coming on record as the legal representative of the plaintiff. However, the learned Sub Judge has gone into the proof or otherwise of the will Ex.A.1 against the present appellant. Therefore, there is a basic divergence of the legal method adopted by the learned District Judge while dealing with the matter. In the first place, bringing the appellant as the legal representative of the plaintiff was against law as the right to property under the will comes under Succession Act and not representing the estate of the deceased to make a person legal representative within Section 2(11) of C.P.C. When rightly or wrongly the appellant was brought on record as the second plaintiff and except the will nothing was put in evidence and considered, the learned District Judge went tangential to the said situation and gave a finding to dismiss the appeal.
7. Therefore, the substantial questions of law which arise in this second appeal are -whether the appellant could have been brought on record as the legal representative of the deceased principal plaintiff and whether the rights of the appellant under the will could have been adjudicated in the capacity of the legal representative, without reference to the right of the principal plaintiff, which is said to have been accrued to the appellant by virtue of the will which has to be independently established. On these questions of law, the law is square and bare that no person can come on record as a party called plaintiff or defendant calling himself or herself as a legal representative under Order 22, Rule 3 C.P.C. because a legal representative is a person who represents the estate of the deceased by inheritance or succession or who intermeddles with the estate of the deceased but not a transferee whose status is governed by law like Transfer of property or personal law. The appellant can never be the legal representative of the deceased principal plaintiff as he claimed the property by virtue of the will Ex. A1 said to have been executed by the principal plaintiff. As a transferee, he was to establish the will through the principal plaintiff by proper pleas and then prove the same. The learned Sub Judge himself went beyond thejurisdiction in dealing with the right of theappellant in the capacity of a legal representative but not as a transferee under the will and holding the will against him. That not only prejudices the appellant but also the respondents. Presuming that the principal plaintiff left no legal representatives, the suit is abated by virtue of Order 22 Rule 1 of C.P.C. When the right to sue does not survive if the appellant was not the legal representative of the deceased and when no legal representative was brought on record within the stipulated time, the suit should be taken as having been abated without determining the rights of the parties. Fundamentally, the learned Sub-Judge committed a legal blunder in allowing the L.R. application of the appellant, which might have been made bonafide or on wrong understanding of the legal position. The learned District Judge adopted it and committed another legal blunder by saying that the appellant cannot pursue the appeal as there was no averment in the plaint regarding the will except coming on record as a legal representative and there is no proof produced during the trial in support of the Will. It is pertinent to note here that a transferee of the property has an independent right to be established in a properly framed litigation as against the persons who are going to be affected, however, subject to establishing the right and title of the transferor. The two Courts below have misdirected the parties which not only resulted in error of law committed by the learned Judges but also a serious legal infirmity in determining the rights of the parties without applying the proper principles of law.
8. Since setting aside the judgment of the Courts below and remanding the matter will not solve the matter, under the circumstances stated above, this Court is obliged to set aside the judgments of the Courts below and hold the suit as abated leaving open the rights of the appellant to be established in a properly framed suit based upon the will, if so advised, which will be disposed by the Court below according to law. It is made clear that no finding recorded in the suit is confirmed which shall operate as res judicata in-so-far as the appellant is concerned.
9. The second appeal is accordingly allowed in the terms stated above. In the peculiar circumstances of the case, there shall be no order as to costs.