Andhra Pradesh High Court - Amravati
Burramukku Sumathi, vs Burramukku Sankara Reddy Died on 4 November, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.1037 of 2021
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, is directed against the order, dated 04.08.2021, passed in I.A.No.851 of 2019 in O.S.No.174 of 2011 on the file of the Court of XII Additional District Judge, Vijayawada, filed under Order XXII Rule 2 and Section 151 CPC praying to record that the petitioners are the only legal representatives of the deceased 6th respondent/defendant.
2. Heard Sri K.S. Bala Sai Teja, learned counsel representing Sri G.Ramachandra Reddy, learned counsel for the revision petitioners/plaintiffs and Mrs. K.V. Vani, learned counsel for respondents/defendant Nos.1, 3, 4 & 5.
3. The facts, in brief, are that the plaintiffs filed suit in O.S.No.174 of 2011 seeking partition of plaint schedule properties into five equal shares and for allotment of two such shares to the 1 st plaintiff, one such share to the plaintiffs 2 & 3 and the 1st defendant. The 2nd defendant is added, as he is the purchaser of one of the schedule properties. The defendants 3 & 4 are the children of the 1st defendant through the 5th defendant. The 6th defendant is added as legal representative of the 1st defendant, who 2 BSB, J C.R.P.No.1037 of 2021 died on 06.08.2019 during the pendency of the lis. During her life time, the plaintiffs looked after her well and she resided along with them. The 6th defendant was added in the suit consequent on the death of the 1st defendant, in the capacity of mother of the 1 st defendant, for the purpose of representing the contentions of the 1 st defendant as his legal representative. Thus, the 6 th defendant was only a legal representative of the 1st defendant in the suit and therefore, the rights and liabilities of the legal representatives cannot be adjudicated. During the life time of the 1st defendant, he executed a sale deed in favour of the 2nd defendant in respect of part of one of the item of the plaint schedule property as well as the 1st defendant also executed a registered gift deed in favour of the 3rd defendant in respect of one of the items of the plaint schedule property. As such, defendants 2 & 3 are the legal representatives of the 1st defendant to represent the contentions of the 1st defendant. The 6th defendant on her appearance, assailed with the plaintiffs and after her death, the contentions of the 1st defendant are being continued by defendants 2 & 3 only as the 6th defendant assailed with the plaintiffs.
4. Legal representative of a deceased original party should be added only to the extent of continuance of the contention of the deceased party but not to raise the rights and liabilities of the legal representative of the deceased party. As such, the mother of the 3 BSB, J C.R.P.No.1037 of 2021 2nd plaintiff, being legally wedded wife and the 2 nd plaintiff and his brother being the legitimate children of the 1st defendant are the only legal representatives of the deceased 1st defendant. Therefore, the other children of the 6th defendant shall not be the legal representatives of the 1st defendant to continue his contentions and they cannot be added as legal representatives of the deceased 6th defendant. The other children of the 6th defendant, 1st defendant and deceased 6th defendant have partitioned their interest under exhibit A1. As such, the other children of the 6th defendant cannot be legal representative to the contentions of the 1st defendant. Hence, the present petition to record that the plaintiffs are the only legal representatives of the deceased 6th defendant in the above suit.
5. The 2nd defendant filed counter denying the averments made by the plaintiffs and contending that if the plaintiffs successfully prove that the 1st defendant died intestate, his mother 6th defendant also acquires share in the properties of the 1 st defendant and as such, acquiring share under the succession has nothing to do with previous partition between 6th defendant and her children. As such, when the 6th defendant who is a co-sharer as per the pleadings of plaintiffs died intestate, her legal heirs are certainly necessary parties to the proceedings. The evidence available on record shows that the 6th defendant was having four sons and daughters. The 1 st 4 BSB, J C.R.P.No.1037 of 2021 plaintiff is also a grand-daughter of the 6th defendant. In the light of the available evidence on record, such legal heirs of the 6th defendant become proper and necessary parties to the above proceedings and adjudicate the claim of partition of plaint schedule properties. As such, the petition filed by the petitioners on self assumptions and presumptions is not maintainable and the petition is liable to be dismissed.
6. The respondents 3 to 5 filed separate counter opposing the petition and contending that the suit is filed for partition and for declaration. In a suit for partition and declaration after the death of any party therein, all the legal representatives of the deceased party have to be added as per the Hindu Succession Act. After the death of the 1st defendant, Burramukku Mandamma was added as per the provisions of the Hindu Succession Act as his legal representative even though his last and final Will is executed by 1 st defendant in favour of defendants 3 to 5. Burramukku Mangamma died on 06.08.2019 intestate. As per Hindu Succession Act, the following persons are the legal representatives of Burramukku Mangamma:- (i) Burramukku Venkata Subbamma; (ii) Burramukku Sambi Reddy; (iii) Burramukku Venkatappa Reddy;
(iv) Burramukku Rami Reddy; (v) Burramukku Siva Prakash Reddy;
(vi) Burramukku Siva Rajesh Kumar Reddy; (vii) Burramukku Harshitha; (viii) Burramukku Pawan Sai Chandrasekhar Reddy; 5
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(ix) Gummadi Aparna; (x) Vuyyuru Samrajyamma; and,
(xi) Guntaka Anjamma. After the death of Burramukku Mangamma, all the above eleven persons are necessary and proper parties as legal representatives of the deceased Burramukku Mangamma, irrespective of their shares, interest etc. Which party supported the other parties and other contentious issues will be decided during the course of trial in the main suit and it cannot be decided at the interlocutory stage. The plaintiffs intentionally not added the eleven persons as legal representatives of deceased Burramukku Mangamma. Hence, the petition is liable to be dismissed.
7. Basing on the above pleadings, the trial Court partly allowed the petition holding that the petitioners/plaintiffs are at liberty to take necessary steps to bring all the legal representatives of the deceased 6th defendant on record besides the legal representatives who were already on record.
8. Hence, the aggrieved plaintiffs preferred this revision petition raising mainly the following grounds:-
(i) The 6th defendant was added as legal representative of deceased 1st defendant. The 6th defendant died. As such, the Court has to determine who are competent to continue the contentions of the 1st defendant only. But not adding either legal representatives or legal heirs of the 6th defendant, as the 6th defendant has no individual locus standi in the claim of the plaintiffs;6
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(ii) The plaintiffs contend that they are entitled to four shares in the plaint schedule properties and the 1st defendant one share, whereas the 1st defendant contended that the plaintiffs are not entitled for partition of plaint schedule properties and he is only the absolute owner;
(iii) The defendants 3 & 4 contend that they being the issues of the 1st defendant through his concubine, i.e., the 5th defendant are entitled to share in case of partition. After the st death of the 1 defendant, it is the contention of the defendants 3 to 5 that the 1st defendant executed Will bequeathing the entire plaint schedule properties and as such, the plaintiffs are not entitled for any share;
(iv) After the death of the 1st defendant, defendants 3 to 5, who propounded the Will alleged to have been executed by the 1st defendant, took the contentions of the 1st defendant and continuing the suit;
(v) As the defendants 3 to 5 did not file petition under Order XXII Rule 5 CPC, the plaintiffs filed the petition and added the 6th defendant as legal representative of the deceased 1st defendant;
(vi) As the 6th defendant contended in support of the plaintiffs, the plaintiffs are the only legal representatives to the contentions of the 6th defendant and as such, the plaintiffs are competent and entitled to represent her;
(vii) The trial Court cannot jump to the conclusion as to allotment of shares even prior to ascertaining the shares of plaintiffs and adjudicating their claim;
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(viii) As the 6th defendant contends in support of the plaintiffs, suit cannot be abated against the 6th defendant;
(ix) The order of the trial Court is untenable and is liable to be set aside.
9. The very prayer sought in the petition filed by the petitioners is to recognize them, as they are the only legal representatives of the deceased defendant No.6 is obviously not a sustainable relief, since even as per the petitioners, the 6th respondent has left some other legal heirs who also fall within the category of 'legal representative'. At the most, petitioners could have said that the deceased has left behind other legal heirs who are entitled to come on record, but the petitioners may be permitted to represent the interests of respondent No.6 as her legal representative, but not as the 'only legal representatives' of the deceased.
10. Learned counsel for the revision petitioners submitted that in the absence of some of the legal representatives representing the interests of the deceased in the estate, the cause does not abate and consequently, the suit does not get abated even if all the legal heirs are not brought on record. He further contended that 'legal heirs' are different from 'legal representatives' and it is sufficient even if some of the legal representatives take forward the interests of the deceased in the estate. In this regard, learned counsel for the petitioners relied on the following decisions:- 8
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(i) G.N.Kishore Reddy v. R. Venugopal Rao 1
(ii) Jaladi Suguna (Dead) through L.Rs v. Satya Sai Central Trust and others2
(iii) Raman Kumar and others v. Narain Dev and Others3
(iv) Dokala Buchiraju v. Dokala Bangaramma (died) by L.R4
(v) Ponnurui Venkata Sai Sivananda Prabhu v. Popuri Sunitha and others5
(vi) Juguna Bai and another v. Sardar Surjeet Singh and others6
(vii) Kambhamettu Jaya Bharathi v. Khaja Abdul Moin Baig (died) Per L.Rs and others7
(viii) State of Haryana v. Gurcharan Singh and others8
(ix) Newanness @ Mewajannessa v. Shaikh Mohamad and others9
(x) Dasari Durgamma and Another v. Dasari Gangisetti and others10
11. In G.N. Kishore Reddy (1 supra), it was held at paragraph Nos.15 & 23 as follows:
"15. Before an enquiry into the application under Rule 5, Order 22 is undertaken, a clear distinction needs to be maintained 1 2004 (3) ALD 683 2 AIR 2008 SUPREME COURT 2866 3 AIR 2019 HIMACHAL PRADESH 70 4 1999 (1) ALD 676 5 2012 (6) ALD 744 6 2008 (2) ALD 837 7 (2004) 4 ALT 622 8 (2004) 12 Supreme Court Cases 540 9 1995 Supp (2) Supreme Court Cases 529 10 1998 (2) ALD 492 9 BSB, J C.R.P.No.1037 of 2021 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.
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 10 BSB, J C.R.P.No.1037 of 2021 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."
(ii) In Raman Kumar and others (3rd supra), it was held at paragraph No.13 as follows:
"13. Even otherwise an order determining in an inquiry under this Rule that a person is a legal representative is confined to the proceedings to enable the claimant to proceed with or continue the suit or appeal as the case may be. It does not confer or recognize heir ship. The fact that the order mentions a person to be a legal representative does not confer on an intermeddler any right, title or interest in the deceased's estate. It only empowers him to continue the suit or appeal as the case may be."
(iii) In Kambhamettu Jaya Bharathi (7th supra), at paragraph No.7, it was held as follows:
"7. .......since the estate of the plaintiff is duly represented by his sons even after the death of his wife, the appeal does not abate even if some other legal representatives are there and they were not brought on record."
(iv) In Dasari Durgamma and Another (10 supra), it was held at paragraph Nos. 9 to 11 as follows:
"9. From the above it is clear that both the petitioner namely Dasari Durgamma and Dake Narayanamma were given half share in the plaint schedule properties in the suit for partition. Therefore, both of them are entitled to a joint possession of the plaint schedule properties, which was allotted to them on partition. Therefore, on the death of the first plaintiff the second 11 BSB, J C.R.P.No.1037 of 2021 plaintiff is entitled to continue the proceeding as legal representative as the cause of action survive to her and in her own capacity also she is entitled to continue the proceeding.
10. Further, under Order 22 Rule 2 C.P.C. where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.
11. From a reading of Order 22 Rule 2 C.P.C. it is clear that if the right to sue survives to the surviving plaintiff, an entry to that effect is to be made on the record. Admittedly, in this case, the right to sue survives to the second plaintiff and therefore an entry has to be made to that effect in the record. If one of the appellants is on record, he is entitled to continue the proceeding."
12. He contended that merely because the petitioners are recognized as legal representatives, it does not confer any heir ship on them. It merely empowers them to continue the suit. He further submitted that the deceased was already impleaded as a legal representative of the deceased 1st defendant since she is his mother and if at all, her legal heirs are so permitted to come on record, there would be no end to implead parties one after the other, which may go unending, and thereby, the purpose of filing the suit would be defeated. He further submitted that since interest 12 BSB, J C.R.P.No.1037 of 2021 of the deceased is duly represented by the other parties on record, it is not necessary to bring in all her legal heirs.
13. On the other hand, learned counsel for the respondents 1, 3, 4 & 5 contended that unless all legal heirs are brought on record, their shares of interest cannot be protected and that the trial Court has rightly gave liberty to the petitioner to file a petition afresh to bring all the legal representatives of the deceased and therefore, the impugned order does not require any interference.
14. In this regard, learned counsel placed reliance on the following decisions:-
(i) In Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique 11 , it was held at paragraph Nos.4 & 5 as follows:
4. After hearing learned Counsel for the parties, we are of opinion that the learned Judicial Commissioner committed serious error of law in setting aside the order of the trial Judge.
"Legal representative" as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, 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. The definition is inclusive in character and its scope is wide, it is not 11 1989 2 APLJ 54 13 BSB, J C.R.P.No.1037 of 2021 confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate ever without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased.
5. In Daya Ram v. Shyam Sundari [1965] 1SCR 231, this Court recognized the principle of representation of the estate by some heirs, where the defendant died during the pendency of the suit to enforce claim against him and all the heirs are not brought on record within time. This Court held that if after bona fide inquiry, some, but not all the heirs, of a deceased defendant, are brought on record the heirs so brought on record represent the entire estate of the deceased and the decision of the Court in the absence of fraud or collusion binds even those who are not brought on record as well as those who are impleaded as legal representatives of the deceased defendant In N. K. Mohd. Sulaiman v. N. C. Mohd. Ismail [1966]1 SCR 937, this Court rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim, if all the heirs of the deceased were not impleaded in the suit and a decree was obtained, and in execution the property was sold, the auction purchaser could have title only to the extent of the interest of the heirs who were impleaded, and he could have no title to the interest of those heirs who had not been impleaded to the suit The Court held, that those who were impleaded as party to the suit in place of the deceased defendant represented the entire estate as they had share in the property and since 14 BSB, J C.R.P.No.1037 of 2021 they had been brought on record the decree was binding on the entire estate."
The decisions in Andhra Bank Ltd. V. R. Srinivasan 12 and Chiranjilal Shrilal Goenka (deceased) through L.Rs v. Jasjit Singh and others 13 are referred to explain what the term 'legal representative' under Section 2(1) CPC would mean, which is as follows:.
'Section 2(11) provides, inter alia, that a 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.'
8. In Black's Law Dictionary the meaning of the word 'Legal Representative' is: The term in its broadest sense means one who stands in place of, and represents the interests of another. A person who overseas the legal affairs of another. Examples include the executors or administrator or an estate and a court appointed guardian of a minor or incompetent person.
9. Term "legal representative", which is almost always held to be synonymous with term "personal representative", means in accident cases, member of family entitled to benefits under wrongful death statute."
15. In none of the decisions relied on by the petitioners, it was said that there is no need to bring in all legal representatives on record. What is stated therein is that if some of the representatives 12 1963 1 Andh WR (SC) 14 13 1993 (2) SCR 454 15 BSB, J C.R.P.No.1037 of 2021 are on record, the suit/appeal does not get abated so long as the interest of the deceased is duly represented.
16. In Mohd. Hussain (Dead) by LRs and Ors. vs. Occhavlal and Ors.14, at paragraph No.9, it was held as follows:
"From a bare reading of the aforesaid observation of this Court in the abovementioned decision, it is clear that ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this Court culled out some important exceptions:
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii) The court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record."
Thus, it is also pertinent to note that unless legal representatives are not deliberately and fraudulently brought on record, the cause survives.
14 AIR 2008 SC 1462 16 BSB, J C.R.P.No.1037 of 2021
17. In this case, since the petitioners are aware of the other legal representatives of the deceased, if they are not brought on record, it cannot be treated as a bona fide omission.
18. On the other hand, Order XXII Rules 5 & 6 requires all the legal representatives to be brought on record for effective adjudication and to avoid multiplicity of proceedings. Therefore, this Court does not see any reason to interfere with the impugned order.
19. Accordingly, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_________________ B.S BHANUMATHI, J 04th November, 2022 RAR