Madras High Court
Periasamy, Perumayee And Selvi (Minor) ... vs Allimuthu, Nallammal And Gurumoorthy on 24 June, 2005
Equivalent citations: (2005)3MLJ425
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This revision is preferred against the order made in I.A.No.858/2002 in O.S.No.710/1996, dated 29.7.2003, on the file of the Addl. District Munsif, Namakkal, allowing the petition under Section 5 of the Limitation Act on payment of cost of Rs. 1000/- and condoning the delay in filing the petition to set aside abatement and the application to implead Legal Representatives of deceased Kaliammal. The Defendants are the Revision Petitioners.
2. Plaintiffs filed the suit for partition of the suit property and to allot 3/5th share to the Plaintiffs. The Plaintiffs and the Defendants are related as under:-
Marappa Gounder died on 2.7.1987 = Kaliammal (P-1) died on 28.11.2000 | |
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Periasamy-D-1 Allimuthu Nallammal Perumayee-D-2
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Minor Selvi Gurumurthy
D-3 Proposed Legal Representative
3. Case of the Plaintiff is that Marappa Gounder died intestate on 2.7.1987. The Plaintiffs and the Defendants 1 and 2 are the Legal Representatives of the deceased Marappa Gounder. The second Defendant is only entitled to a share in the family properties. While so, the second Defendant had executed a Settlement Deed in favour of his minor daughter - D-3, on 18.3.1996. The second Defendant has no right to execute the Settlement Deed regarding the undivided properties. Even during the life time of Marappa Gounder, he has filed O.S. No. 577/1998 against the first Defendant for declaration of his title to his self acquired properties. After the death of Marappa Gounder, Plaintiffs and Defendants 1 and 2 are in joint possession of the suit properties. Since the first Defendant is not cooperating for amicable settlement, the Plaintiffs have filed the suit for partition and separate possession to divide the suit property into five equal shares and to allot three shares to them.
4. D-3 has filed the Written Statement contending that the suit property and other properties were purchased from out of the income of the joint family. According to D-3, D-3 and her mother had been chased away from the family house and that they have taken shelter in their maternal grand mother's house. D-3 and her mother and D-1 are entitled to 2/15th share each.
5. I.A. No. 858/2002 :-
During the pendency of the suit, the first Plaintiff - Kaliammal died on 28.11.2000. The application to implead the Legal Representatives ought to have been filed within ninety days. But there was delay in filing the application to implead the Legal Representatives of deceased first Plaintiff - Kaliammal. This application was filed to condone the delay in filing the application to implead the Legal Representatives of deceased Kaliammal and also to set aside the abatement. The third Respondent Gurumurthy claimed that his paternal grandmother/first Plaintiff Kaliammal had executed the Will in his favour, bequeathing her share in the suit property. According to the third Respondent, the share of Kaliammal devolved on him and that he has to be impleaded as a party and third Respondent filed this application I.A. No. 858/2002 to condone the delay of 96 days in filing the application.
6. The application was resisted denying the execution of the Will. The Defendants allege that the Petitioner Gurumurthy is not the Legal Representative of Kaliammal and that he has to establish the genuineness of Will only by filing separate suit and that no relief could be granted to him by impleading him in the suit.
7. To explain the delay the third Respondent examined himself as PW-1 did not produce the Will. Upon consideration of the evidence and contentions of both parties, the learned District Munsif found that the genuineness of the Will could be gone into only at the time of trial. The learned District Munsif was of the view that the scope of enquiry in the application is limited in finding out whether sufficient cause is shown for the delay and whether the abatement is to be set aside. On those findings, the trial Court allowed the application under Section 5 of the Limitation Act condoning the delay of 96 days.
8. Aggrieved over the order of allowing the petition and condoning the delay, the Revision Petitioners/ Defendants have preferred this revision. The learned counsel for the Revision Petitioners has contended that on the basis of the Will (which is not produced), the third Respondent cannot be impleaded as a Legal Representative of the deceased first Plaintiff. Attacking the Will and reason for non production of the Will, the learned counsel has submitted that the trial Court erred in allowing the application and condoning the delay.
9. Refuting the arguments, the learned counsel for the Respondents/Plaintiffs contended that by proper exercise of discretion, when delay has been condoned, there cannot be any valid objection for the same. The learned counsel has further contended that when the trial Court has observed that the validity of the Will could be gone into at a later stage, it is not open to the Revision Petitioners to raise objections and that there is no reason calling for interference in the impugned order.
10. In condoning the delay in filing the application to implead the Legal Representatives, whether there is any improper exercise of discretion warranting interference in the revisional jurisdiction is the only point that arises for consideration in this revision.
11. Kaliammal died on 28.11.2000. The application ought to have been filed within ninety days from the date of death of the party. But the Application was filed on 2.8.2001 with a delay of 96 days. The third Respondent/ Petitioner has explained that as he had gone on duty he could not file the application in time. In the affidavit, no reasons are stated for the delay in filing the application. Of course, it may be stated that the third Respondent ought to have been more careful in filing the application. The omission to adopt such care need not be used as a ground in refusing to condone the delay. In every pending case, while impleading the Legal Representatives, in one way or other, there occurs some lapse on the part of the litigant concerned in filing the application to implead the Legal Representatives. But that alone is not enough to turn down the plea to implead the Legal Representative. When there is no inordinate delay, opportunity is to be afforded to bring on record the Legal Representatives.
12. The main point of the Revision Petitioner is that when father - second Petitioner is alive, grand son of Kaliammal cannot be brought on record. It is the further contention that when the Will in question was not produced, the third Respondent cannot be impleaded as Legal Representative of deceased Kaliammal. True, when PW-1 was examined, Will was not produced. But in I.A. No. 858/2002, the application to condone the delay, the scope of enquiry is very limited to find out whether there was sufficient cause for filing the application with delay and whether the delay has been properly explained. At that stage, the genuineness or otherwise of the Will was not before the Court. Hence the contention attacking the impugned order, on the ground of non-production of Will and proving his genuineness does not merit acceptance.
13. The lower Court has satisfied itself and exercised this discretion in condoning the delay in filing he application to implead the Legal Representatives. When the Court below had exercised its discretion, the revisional Court will not lightly interfere. The impugned order does not suffer from any material irregularity or serious error warranting interference. This revision has no merits and is bound to fail.
14. Therefore, the order made in I.A. No. 858/2002 in O.S. No. 710/1996, dated 29.7.2003, by the Additional District Munsif, Namakkal, is confirmed and this revision is dismissed. Consequently, CMP is also dismissed. In the circumstances of the case, there is no order as to costs.