Andhra HC (Pre-Telangana)
G.N. Kishore Reddy vs R. Venugopal Rao And Ors. on 27 April, 2004
Equivalent citations: AIR2004AP498, 2004(3)ALD683, 2004(4)ALT178, AIR 2004 ANDHRA PRADESH 498, (2004) 20 ALLINDCAS 443 (AP), 2004 (20) ALLINDCAS 443, (2005) 1 CIVILCOURTC 173, (2004) 3 ANDHLD 683, (2004) 4 ICC 436, (2004) 4 ANDH LT 178
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. These two C.R.Ps. are filed against the common order dated 15-9-2003 passed by the Court of DC Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad in I.A. Nos.257 of 2001 and 212 of 2003 in O.S. No. 279 of 1999. Hence, they are disposed of through a common order:
2. Parties in both the revisions are identical.
3. The petitioner filed O.S. No. 279 of 1999 in the Trial Court for the relief of declaration to the effect that the sale deed executed by the 4th respondent, (who is since dead), in favour of Respondents 1 to 3, is illegal and unenforceable in law. The petitioner is son of late G.V. Satyananaraana Reddy. The 4th respondent his stepmother. Respondent No. 5 is his maternal uncle. It is his case that there is a settlement between himself, Respondent No. 4 and Respondent No. 5, in which the suit schedule property was settled upon him and contrary to the same, the 4th respondent has executed the sale deed in question.
4. The evidence of Respondent No. 4 was recorded out of turn on account of her failing health. She narrated the circumstances under which the settlement came into existence, it was revoked thereafter, and those leading to the execution of the sale deed. She died some time thereafter. Petitioner filed I.A. No. 257 of 2001 under Order 22, Rule 5 read with Section 151 of the Code of Civil Procedure (C.P.C.) praying the Trial Court to decide as to who shall be the legal heir of the deceased Respondent No. 4.
5. I.A. No. 212 of 2003 was filed by Respondents 6 and 7 herein to get themselves impleaded as Defendants 6 and 7. According to them, the 4th respondent executed a will bequeathing the suit schedule property and certain other items, in their favour and on the death of the 4th respondent, the said properties devolved upon them. Through a common order, the Trial Court held that the petitioner is the natural legal heir of the deceased 4th respondent. It was further held that since the interests of the petitioner were adverse to those of the deceased 4th respondent, and since is said to have executed a will, in respect of the suit schedule property, Respondents 6 and 7 shall be the legal representatives of the deceased 4th respondent for the purpose of the suit. The petitioner challenges the orders of the Trial Court.
6. Sri M.R.K. Choudhary, learned Senior Counsel appearing for the petitioner submits that once the Trial Court held that the petitioner is the natural legal heir of the deceased 4th respondent, the petitioner alone ought to have been permitted to represent the 4th respondent and there does not exist any legal basis to maintain a distinction between the legal heir and legal representative.
7. He contends that the claim of Respondents 6 and 7 can be recognized and taken into account, only when their rights under the alleged will are established by a Court of competent jurisdiction. He asserts that the validity or otherwise of the will cannot be the subject-matter of the present suit. It is his case that the Respondents 6 and 7 cannot be impleaded as defendants in the suit, much less, be permitted to represent the estate of the deceased 4th respondent.
8. Sri B. Prakash Reddy, learned Additional Advocate-General appearing for respondents submits that since the interests of the petitioner were adverse to those of the deceased 4th respondent, he cannot be permitted to act as legal representative. He submits that being a 'legal heir' is different from being recognised as 'legal representative' and that the latter would invariably depend on the unity of interests. He also contends that the enforceability of the will has certainly to be gone into in the present suit itself, since it relates to the suite schedule property.
9. The petitioner filed the suit for the relief of declaration that the sale deed executed by the 4th respondent in favour of Respondents 1 to 3 in respect of the suit schedule property is null and void and unenforceable in law. In other words, he challenged the right and competence of the 4th respondent in executing the sale deed. His dispute with Respondents 1 to 3 is only incidental. The petitioner based his rights on a settlement to which, himself, and Respondents 4 and 5 are parties. The question as to whether the settlement deed can be said to be in force and if so, the effect thereof, needs to be considered in the suit. The trial of the suit commenced and the evidence of 4th respondent was recorded. She opposed the claim of the petitioner. Shortly thereafter she died.
10. Two applications came to be filed as a result of the death of the 4th respondent. The petitioner filed application under Order 22, Rule 5 C.P.C. seeking a decision of the Court as to who, among the parties, shall be entitled to represent the 4th respondent. Respondents 6 and 7 filed application under Order 1, Rule 10 C.P.C. to get themselves impleaded as Defendants 6 and 7, based on a will said to have been executed by the 4th respondent. In his application, the petitioner did not claim that he be declared as the legal heir. In fact, he invited the decision of the Court in general terms. The prayer in the I.A. reads as under:
"The Hon'ble Court may be pleased to order for an enquiry as to who is the legal heir of Defendant No. 4 - late Smt. G.Manik Bai and to pass such other orders"
11. In fact, this prayer does not fit into Rule 5 of Order 22 C.P.C. The Rule provides for determination as to whether a person is or is not a legal representative of the deceased plaintiff or deceased defendant, in centra-distinction to "legal heir". The distinction between the term "legal representative" and "legal heir" is very vital, particularly in the context of pursuing the proceedings on behalf of a deceased party to the proceedings. However, omitting the discrepancy as to the prayer, the I.A. needs to be treated as the one under Order 22, Rule 5 C.P.C. Strictly speaking, the petitioner cannot have any grievance insofar as I.A. No. 257 of 2001 is concerned, since the Trial Court declared him as legal heir of deceased 4th respondent, as prayed for by him.
12. The Trial Court took the view that though the petitioner is the legal heir of the 4th respondent, he cannot be treated as her legal representative, in view of the conflict of interests between himself and the 4th respondent. Respondents 6 and 7 were before the Court through their application I.A.No. 212 of 2003 under Order 1, Rule 10 on the strength of a will. Since the Trial Court was of the view that the persons claiming under a will can genuinely represent the estate of the deceased, they were treated as legal representatives, apart from being impleaded as Defendants 6 and 7.
13. Order 22 of C.P.C. prescribes the procedure to be followed and steps to be taken in the event of death, marriage and insolvency of the parties to the proceedings before a Court. The effort under various provisions of this Order is to ensure that a party is not left un-represented on account of the subsequent developments such as death, marriage, persons being declared as insolvent etc. Rule 5 of Order 22 mandates that whenever any 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. The determination under Rule 5, 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. Separate proceedings have to be initiated for this purpose, unless those very questions and issues fall for consideration in that suit or other proceedings itself and all the affected persons are parties to it.
14. For instance, if a plaintiff or defendant is dead during the pendency of the proceedings, a near relative or a person claiming under a document or codicil can be permitted to represent the deceased. If, however, it emerges later that there are persons, who are legally entitled to represent, or to succeed the estate of the deceased, the determination of the Court under Rule 5 Order 22 cannot be treated as res judicata in subsequent proceedings. On the other hand, if all the persons claiming under the deceased are parties to the proceedings, in one form or the other, and issues are framed as regards such claims, the adjudication so undertaken cannot be brushed aside as irrelevant.
15. Before an enquiry into the application under Rule 5, Order 22 is undertaken, a clear distinction needs to be maintained between the concept of 'legal heir' on the one hand and that of the 'legal representative' on the other. The former is the result of operation of law of succession and other related personal laws. The existence of relationship of a particular kind between the deceased and such relations would automatically enable to be treated as legal heirs, without any further enquiry as to their willingness, conduct, acts, omissions etc. What needs to be established is the relationship. Legal representative, on the other hand, is a person who is entitled to represent the estate of the deceased, at least, in the proceedings in which the necessity arises. In most of the cases, the legal heirs themselves happen to be the legal, representatives. There are, however, certain exceptions to this. If the devolution of the property takes place otherwise man through succession, the legal heir cannot be treated as legal representative. This exception is once again subject to another limitation. A distinction has to be maintained, depending on whether the interests of the legal heirs are in any way conflict with those of the deceased. If no conflict as such arises and the legal heir is willing to abide by the acts or omissions of the deceased party, there cannot be any plausible objection for legal heir to be accorded permission to represent the deceased. Where, however, the interests are in conflict with each other, the law leans in favour of the third party-claimants to be treated as legal representatives, claiming through the deceased, in preference to the legal heirs of the deceased, whose interests are adverse in nature.
16. Reverting to the facts of the case, it is to be seen that the main relief claimed by the petitioner in the suit filed by him was mainly against the deceased 4th respondent. He specifically pleaded that the 4th respondent was not entitled to deviate from the terms of settlement and the sale deeds executed by her were not enforceable in law. The 4th respondent, on the other hand, pleaded that the settlement pleaded by the petitioner has since been cancelled, the property is her Stridhana, and that the petitioner does not have any claim, right or interest in the suit schedule property. Therefore, there exists a clear conflict of interests between the petitioner on the one hand, the Respondent No. 4, on the other. He is no doubt a natural legal heir, being the step-son of the deceased. However, he is not entitled to be treated as legal representative, in view of the conflict of interests.
17. If there was none to represent the 4th respondent, meaning thereby that no one had any claim over her estate, the burden would have fallen upon the Respondents 1 to 3 to defend themselves. Whether the suit ought to have abated on account of the death of 4th respondent, whether the Respondents 1 to 3 were entitled to sustain the sale deeds in their favour, or whether the petitioner could have been permitted to represent the estate of the 4th respondent, is reduced to hypothesis, with the filing of I.A.212 of 2003 by Respondents 6 and 7. Once it emerged that they are claiming under a will said to have been executed by the 4th respondent, Respondents 6 and 7 are legally entitled to represent her estate.
18. Learned Counsel for the petitioner relied upon several decisions in support of his contentions. Nawal Kishore Patel v. S.t. Indrapati Devi, JT 1991 (5) SC 212, deals with general proposition of law that the determination under Rule 5 of Order 22 C.P.C. cannot be treated as final, unless it was specifically put in issue. Mahendra Kumar v. Lalchand, , is to the effect that an appeal filed by the legal heir of the deceased party does not abate on the sole ground that legatee under a will was not brought on record. It was further observed that unless and until the rights under the will were established by a competent Court of jurisdiction, the other proceedings cannot be treated as abated on the sole ground that the legatee was not brought on record as legal representative. That question does not arise in the present case. In fact, the order under revision obviates the circumstances referred to in the judgment of the Hon'ble Supreme Court.
19. The learned Counsel also relied upon Annupam Pruthi v. Rajen Bal, . This case dealt with a situation where the legal representatives of a deceased party were brought on record under Order 22, Rule 5. Subsequently an application was filed by persons claiming under a will said to have been executed by the deceased, with a prayer to recall the earlier order passed under Order 22, Rule 5. The learned Single Judge of Jammu and Kashmir High Court refused to recall. The Division Bench of the High Court, however, took a different view and recalled the permission granted under Order 22, Rule 5. The Supreme Court reversed the judgment of the Division Bench and held that an order passed under Order 22, Rule 5 cannot be recalled at the instance of legatees claiming under a will. In the case on hand, such a situation does not exist. By the time the application under Order 22, Rule 5 was taken up, the natural legal heir, that is the petitioner, and the persons claiming under a will, namely Respondents 6 and 7, were before the Court and permission was granted to the latter. Suraj Mani v. Kishore Lal, AIR 1976 HP 76, relied upon by the learned Senior Counsel is to the effect that the order passed under Rule 5 of Order 22, involves summary enquiry, does not operate as res judicata and is limited to the purpose of carrying on suit without any right of heirship, etc. It is not demonstrated as to how the said principle is ignored in the case on hand.
20. The learned Senior Counsel relied on a judgment in Raj Kumar Alias Rajinder Singh v. Bimla Kumari, , in support of his contention that in a suit for declaration, the claims under a will cannot be permitted to be introduced or adjudicated upon. There is similarity in the facts relating that case and those in the present case. It was also a case where the suit was filed for declaration to the effect that the plaintiff was the owner of a portion of the suit schedule property. The declaration was sought against the mother of the plaintiff. A third part came forward with an application under Order 1, Rule 10 claiming that the father of the plaintiff executed a will in favour of the said third party. The Trial Court allowed the application. The learned Single Judge of the High Court set aside the order of the Trial Court and held that the issue that fell consideration in the suit was different from the one pleaded by the third party, and therefore an application filed for impleading a third party as defendant on the strength of a will would change the nature of the suit. It was held that a separate suit has to be filed to get adjudication of the rights under the will.
21. With great respect to the learned Judge, I am of the view that the said judgment does not represent correct position of law. In this regard reference may be made to the judgment of the Full Bench of the same High Court in Mohinder Kaur v. Piara Singh, . The purport of the same was explained by another Single Judge in S. Charanjit Singh v. Bharatinder Singh, , as under:
"A Full Bench of this Court in Mohinder Kaur v. Piara Singh, , has held that determination of the point as to who is the legal representative of the deceased plaintiff or defendant under Order 22, Rule 5 of the Civil P.C. is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicate and the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. In view of this the proper course to follow is to bring all the legal representatives on record so that they couchsafe the estate of the deceased for ultimate benefit of the real legal representatives. This would also avoict delay in disposal of the suit"
22. The attention of the learned Single Judge, who decided Rajkumar Alias Rajender Singh (supra), does not appear to have been invited to the judgment of the Full Bench in Mohinder Kaur's case (supra). When the effort under the various provisions of C.P.C. is to avoid multiplicity of proceedings, and for adjudication of the related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action would result in conflicting judgments and instead of resolving the disputes, they end up in creation, confusion and conflict.
23. What emerges out of the discussion in preceding paragraphs is that it is not necessary that in every case, a legal heir is entitled to be treated as legal representative also. The permission granted to represent the estate of a deceased party to a proceedings cannot be treated as a final adjudication on the rights, except where it is decided as a specific issue. All the claims relating to the property or subject-matter need to be dealt within the same proceedings, instead of the parties being required to institute parallel or tangent proceedings.
24. This Court does not find any basis to interfere with the order passed by the Trial Court in permitting the Respondents 6 and 7 to represent the estate of the deceased 4th respondent in preference to her legal heir - the petitioner herein, since the interests of the petitioner are in conflict with those of the 4th respondent. The revisions are accordingly dismissed. Inasmuch as the suit is of the year 1999, the Trial Court is directed to dispose of the same as early as possible, not later than four months from the date of receipt of a copy of this order. No costs.