Madras High Court
Santha Sathiyanesan vs R.C.Sathiyanesan (Died) on 6 July, 2017
C.R.P.(MD).Nos.1702 & 1703 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 13.10.2023 Delivered on: 18.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.R.P.(MD)Nos.1702 & 1703 of 2017
and
C.M.P.(MD)Nos. 9311 to 9313 of 2017
1.Santha Sathiyanesan
2.D.I.Sathiyanesan .. Petitioners / Respondents 1 &2/
Defendants 1 & 2
Vs.
R.C.Sathiyanesan (died)
1.Beula Mohan
2.Gheena Ravi ... Respondents 1 &2/ Petitioners 2,3/
LRs of Plaintiff
3.The Sub Registrar,
Sub Registrar Office,
Chokkikulam,
Madurai District. ... 3rd Respondents /3rd respondents /
3rd defendant
Prayer:- Civil Revision Petitions filed under Article 227 of the
Constitution of India, against the fair and decretal order, dated 06.07.2017,
passed in I.A.Nos.894 & 895 of 2015, in O.S.No.118 of 2012, on the file
of the District Munsif Court, Madurai Taluk.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD).Nos.1702 & 1703 of 2017
(In both C.R.Ps)
For Petitioners : Ms.J.Anandhavalli
For Respondents : Mr.M.Saravanan for R1 & R2
: Mr.A.Baskaran,
Additional Government Pleader for R3
COMMON ORDER
These Revisions are against the orders passed by the trial Court allowing the I.A.Nos.894 and 895 of 2015, seeking to set aside the abatement of the suit for non substitution of the legal heir of the deceased / plaintiff and under Order XXII Rule 3 read with Section 151 C.P.C to implead the petitioners therein as legal heirs of the deceased / plaintiff in the suit.
2. The brief facts resulting in the filing of the present Revision petitions are as here under:
The plaintiff had originally filed the suit seeking a declaration that the settlement deed executed by the first defendant, his wife in favour of the second defendant, his son, on 28.09.2005 was null and void and for a consequential permanent injunction to restrain the defendants from executing further documents in favour of third parties. It is the case of the 2/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 plaintiff that he had purchased the suit property on 17.08.1983 and on 11.09.1997, he executed a Will in favour of the first defendant, ie., his wife. The plaintiff had left home and was not there for more than 7 years and presuming that he was not alive, the first defendant claiming to be the owner of the suit property and deriving right, title and interest under the Will dated 11.09.1997, executed by the plaintiff, chose to settle the property on her son, the second defendant. Subsequently, the plaintiff returned home and on coming to know that his wife had executed a settlement deed in favour their son, the plaintiff cancelled the Will executed in favour of his wife on 04.05.2011 and thereafter, filed the suit in O.S.No.118 of 2012 for the reliefs, which have been set out hereinabove.
3. Pending the suit, on 20.11.2012, the plaintiff executed a Will in favour of his daughters, who are the petitioners in I.A.Nos.894 and 895 of 2015, filed to restore the suit, seeking to implead themselves as plaintiffs 2 and 3 and to set aside the abatement. The applications came to be allowed by the trial Court as against which the present revision petitions have been filed.
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4. The grounds of challenge to the said orders passed by the trial Court are that the cause of action did not survive the death of the plaintiff to enable the daughters to implead themselves and prosecute the suit; the claim of the daughters is based on an alleged Will, which was executed subsequent to the institution of the suit; the genuineness of the Will relied on by the daughters cannot be gone into in the present suit, as it is entirely a different cause of action and finally that the daughters cannot step into the shoes of the plaintiff and prosecute the suit.
5. I have heard Ms.J.Anandhavalli, learned counsel for the petitioners, Mr.M.Saravanan, learned counsel for the respondents 1 and 2 and Mr.Baskaran, learned Additional Government Pleader appearing for the third respondent, in both the revision petitions. I have also perused the records and the impugned order passed by the trial Court as well as the notes of submissions filed by the learned counsel for the revision petitioners as well as the respondents 1 and 2.
6. The sum and substance of the arguments of the learned 4/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 counsel for the revision petitioners is that the daughters are seeking to implead themselves claiming under the Will of their father and therefore, the original cause of action in the suit cannot survive to the benefit of the daughters and therefore, they cannot be permitted to be impleaded in the suit. The learned counsel for the petitioners would state that Order IX Rule 9 C.P.C can be invoked only by the plaintiff and admittedly, when the daughters were not even parties to the suit, application invoking Order IX Rule 9 C.P.C was not available in law, he would also contend that Order XXII Rule 9 C.P.C would not also not be available to the daughters, since the wife and sons of the deceased plaintiff were already parties to the suit and therefore, there was no question of any abatement in the first place. Moreover, the learned counsel for the petitioners would contend that since the cause of action does not survive, daughters of the plaintiff cannot maintain the applications. Further, she would contend that even if the cause of action survives, then the defendants would be the legal heirs of the plaintiffs and the suit cannot be proceeded on the original cause of action on which the suit was filed by the plaintiff. Further, the learned counsel for the revision petitioners would also submit that the suit was dismissed for default and not as abated and therefore, both the I.As filed by 5/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 the daughters were not maintainable in law. She would also bring it to my notice that pursuant to the trial Court allowing the said applications in I.A.Nos.894 and 895 of 2015, the daughters have also filed an application in I.A.No.576 of 2017, seeking amendment of the plaint and such conduct would clearly demonstrate that the daughters were not in a position to prosecute the suit on the basis of the original cause of action and only to get over the same, they have chosen to take out an amendment application.
7. Finally, the learned counsel for the petitioners would conclude her submissions stating that the daughters, though being legal heirs of the deceased did not file the applications on the basis of being legal heirs, but chose to approach the Court only based on the alleged Will executed by the plaintiff, their father, on 20.11.2012 and in such circumstances, the trial Court committed serious error in entertaining both the applications.
8. In support of her contention, she would also rely on the judgment of Patna High Court in the case of Mahindra Singh V. Chander Singh reported in AIR-1957-Pat-79 and judgment of the Hon'ble Supreme Court in the case of Ambalika Padhi V. Radhakrishna Padhi reported in 6/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 1992-1-SCC-667 and another judgment of this Court in the case of V.O.Duraisamy Mudaliar V. Parijathammal (died) reported in 2016-2- MWN-Civil-397.
9. Per contra, the learned counsel for the respondents 1 and 2 would submit that the defendants, namely, wife and son, had played fraud on the plaintiff, the husband of the first defendant and father of the second defendant by approaching the revenue authorities and obtaining a Death Certificate for the plaintiff, knowing fully well that he was alive and living with them and as if he was not heard of for more than 7 years and in the process, brought about the settlement deed, drawing strength from the Will executed by the plaintiff in favour of his wife, the first defendant. The plaintiff had challenged the said settlement deed in the suit on the ground that when he was alive, his wife cannot get any iota of right, title in the subject property, that too, claiming under the Will executed by the plaintiff. It is the further case of the plaintiff as seen in the plaint that his wife and son colluded to knock away the suit property, even during the life time of the plaintiff and the plaintiff himself came to know about the fraud played by the defendants only when he attempted to mortgage the suit 7/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 property and immediately, he has taken steps to cancel the Will executed by him in favour of his wife, besides also approaching the Court, seeking cancellation of the settlement deed executed by the first defendant in favour of the second defendant on the ground that it was null and void and not binding on the plaintiff, along with consequential relief of permanent injunction restraining the defendants 1 and 2 from executing any document in favour of any other person and for mandatory injunction to the third defendant, namely, the jurisdictional Sub-Registrar, to cancel the entry pertaining to the settlement deed.
10. The learned counsel for the respondents 1 and 2 would state that the relationship between the parties is not disputed by the defendants and the revision petitions have been filed only to prolong the litigation and as a legatee the daughters are well within their rights, to implead themselves in the suit, and continue the suit filed by the father. He would also submit that applications by a legal heir, who is not a party, is very well maintainable under Order IX Rule 9 C.P.C and insofar as the objection with regard to setting aside the abetment application being not maintainable, he would submit that it is only a technical objection 8/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 taken by the defendants and would therefore, pray for dismissal of the revision petitions as the trial Court has applied its mind and rightly allowed both the Applications.
11. Having heard for the parties and also on going through the written notes of submissions as well as the authorities on which reliance is placed by the learned counsel for the petitioners, I proceed to adjudicate the core issue which is required to be answered.
12. The relationship between the parties is not in dispute. The plaintiff, who originally filed the suit is the father of the petitioners in I.A.Nos.894 and 895 of 2015. The first defendant is wife and the second defendant is the son of the plaintiff. It is the specific case of the plaintiff that though he executed a Will in favour of his wife on 11.09.1997, the Will never took effect as the plaintiff was alive and the defendants, according the plaintiff, played fraud and misrepresented to the revenue authorities as if the plaintiff is not heard for more than 7 years and under such pretext, they obtained a Death Certificate for the plaintiff and gave 9/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 effect to the Will dated 11.09.1997. The wife / the first defendant executed a settlement deed in favour of their son- second defendant on 28.09.2005. It is the settlement deed, which is under challenge in the suit. It is an another matter that after filing of the suit, the plaintiff has chosen to execute a Will dated 20.11.2012, bequeathing the suit property to his daughters, who are the respondents 1 and 2 herein, after cancelling the Will, dated 11.09.1997, by a deed of cancellation on 04.05.2011. Pending the said suit and after execution of Will dated 20.11.2012, the plaintiff died. Both the counsel are unable to assert before this Court as to whether the suit came to be dismissed for default or on the ground that it had abated. However, from the affidavit filed in support of I.A.Nos.894 and 895 of 2015, it is seen that the respondents 1 and 2 have mentioned in the affidavit that the suit was dismissed for default on 22.08.2014, for non appearance of the plaintiff. It is the specific case of the respondents 1 and 2 that the father had executed the subsequent Will in their favour and left the original Will with his Advocate and the respondents 1 and 2, who were living in Chennai and Bangalore respectively, never knew about the same until after the first death anniversary of their father, when they met their father's counsel.
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13. Though it is also mentioned in the affidavit that an application has been taken out simultaneously for condonation of delay of 245 days in filing the restoration application, from the records, I am unable to see whether any such application was taken up by the trial Court and allowed, to take up the present application in I.A.No.894 of 2015.
14. In I.A.No.895 of 2015, it is the specific contention of the respondents 1 and 2 that their father had executed a Will in their favour bequeathing the suit property to them by Will, dated 20.11.2012 and therefore, they have to be substituted in his place in order to proceed with the suit and as the application was not filed in time, the suit had abated and therefore, the application for setting aside the abatement had become necessary.
15. The said applications were resisted by the revision petitioners, who filed a detailed counter affidavit, admitting the fact that the respondents 1 and 2 were living in Chennai and Bangalore and protesting on the ground that the cause of action did not survive for the 11/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 respondents 1 and 2, ie., the daughters and according to the revision petitioners, the respondents 1 and 2 were very much aware of the settlement deed executed by the first defendant in favour of the second defendant and that the cause of action was not available to the respondents 1 and 2 at the time of filing of the suit and therefore, the respondents 1 and 2 cannot be impleaded, when the cause of action for the respondents 1 and 2 could at best arise only on the execution of the Will, dated 20.11.2012, in their favour.
16. The trial Court allowed the said applications finding that the authorities relied on by the revision petitioners were actually in favour of the respondents 1 and 2. At the outset, I would like to clear one very common misconception. The terms "legal heirs" and "legal representatives" are used very loosely and interchangeably, without realizing their importance relevance and consequences. The term "legal heir" is not defined under the Code of Civil Procedure. It is only the term "legal representative" that is defined under Section 2 (11) of the Code of Civil Procedure, which reads as follows:-
2(11):"legal representative" means a person who in law represents the estate of a deceased person, and 12/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 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;
Even in the present case, both the revision petitioners as well as the respondents 1 and 2 have interchangeably used the terms "legal heirs" and "legal representatives".
17. Order XXII C.P.C., which deals with death, marriage and insolvency or parties refers only to legal representatives and not legal heirs. Ordinarily, the term "legal heir" is used or referable only when it relates to the laws of succession. However, as already stated, it is only "legal representative" which is referred to in the C.P.C and not "legal heir". The distinction between these two terms would have a certain bearing on the facts of the present case. Admittedly, the respondents 1 and 2 have filed an application Order XXII Rule 9 C.P.C. The same is usefully extracted here under:
Order 22 Rule 9 CPC : Effect of abatement or 13/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 dismissal. (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of section 5 of the Indian Limitation Act, 1877 shall apply to applications under sub-
rule (2).
Explanation- Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.
18. Admittedly, though the respondents 1 and 2 are the daughters of the plaintiff, their applications to the Court is only to implead them in the capacity of their being legal representatives of the plaintiff. It may be a different aspect altogether that the defendants 1 and 2 are the legal heirs of the deceased plaintiff along with the respondents 1 and 2, being the 14/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 daughters, who are also legal heirs of the deceased plaintiff. However, on a conjoint reading of Section 2 (11) and Order XXII Rule 3 C.P.C., it is clear that the persons claiming to be legal representatives of the deceased plaintiff are also entitled to make an application under Order XXII Rule 9 C.P.C. Here, the daughters are claiming only as legal representatives having become entitled to estate of their father. Therefore, it cannot be said that the respondents 1 and 2, are not entitled to maintain the application under Order XXII Rule 9 C.P.C.. With regard to the contention of the learned counsel for the petitioners that the respondents 1 and 2 have to prove the Will in their favour before becoming entitled to prosecute the suit, I am unable to accept the said argument for the simple reason that the language employed in Order XXII Rule 9 (2) C.P.C., entitles even a person claiming to be a legal representative of the deceased, to apply for an order to set aside the abatement or dismissal of the suit and the only requirement was to show sufficient cause as to how the said legal representative was prevented from continuing the suit. Moreover, Order XXII Rule 9(1) C.P.C makes it abundantly clear that when a suit is dismissed under Order XXII C.P.C., no fresh suit can be brought under the same cause of action. Here, admittedly, the plaintiff approached the Court to set aside the 15/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 settlement deed executed by his wife in favour of their son on the strength of a Will that had not even taken effect. Admittedly the suit has been dismissed, whether on the ground of default or as abated. Therefore, challenge to the settlement deed automatically goes with the dismissal of the suit. The respondents 1 and 2 are admittedly legal representatives within the definition of Section 2(11) C.P.C and they are entitled to step into the shoes of their father, the plaintiff and prosecute the suit. It cannot be said that the cause of action available for the plaintiff and the cause of action available for the respondents 1 and 2 is entirely different, when the respondents 1 and 2 only stepped into the shoes of the suit their father and they are well within their rights to challenge the settlement deed executed by the mother in favour of the brother. If the revision petitioners challenge the truth and genuineness of the Will under which the respondents 1 and 2 claim to the legal representatives, it is always open to them to attack the genuineness of the Will, in the course of trial. In fact, Order XXII Rule 5 C.P.C., sufficiently protects their interest and the same is extracted here under:
"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 16/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.
19. The learned counsel for the revision petitioners would submit that it was always open to the respondents 1 and 2, to file a fresh suit and work out their remedies. Unfortunately, I am unable to accept the said submission of the learned counsel for the revision petitioners, The core issue in the suit revolves around the factum of the execution of the settlement deed, based on a Will that never came to effect as the executant of the Will was very much alive. That being the position driving the defendants to another round of litigation will not subserve the cause of justice. Rules and procedures are always meant to be only to aid and be a handmaid of justice and not intended to destroy or defeat the cause of justice. Objecting to the application on technical/ hyper technical ground 17/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 and driving the parties to multiply litigation will not in any way serve the interest of the parties themselves, leave alone justice. The Courts have always endeavoured to do substantial justice, ignoring technical objections raised by one of the parties to the litigation. This is one classic case, where the Court has to necessarily ensure the lis is put to end. Admittedly, all the parties are before this Court and the dispute amongst themselves can be adjudicated in an effective manner and allowing the respondents 1 and 2 to implead themselves as plaintiffs 2 and 3 will only avoid further multiplicity of proceedings and at the same time, give a platform to all the parties to work out their respective contentions before the Court and get the same adjudicated after a full-fledged trial. Insofar as the decisions relied on by the learned counsel for the revision petitioners, in the case of V.O.Duraisamy Mudaliar's case, it is the case, where the suit was one for injunction and the subsequent purchaser wanted to implead himself and therefore, this Court held that the cause of action was not available to the subsequent purchaser, to continue the suit. In fact, in para - 8 of the said order, this Court held "Further, if the suit is for declaration of title for the entire 4 items of the suit property, the respondent herein can step into the shoes of the deceased party as her valuable right is involved and hence, 18/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 her impleadment is necessary and mandatory. But in the instant case, the suit is only for bare injunction and the respondent/proposed party has purchased the first item of the suit scheduled property only after the filing of the suit". So, the contention raised by the learned counsel for the revision petitioners that the "there is no cause of action to adjudicate" is not acceptable.
20. In Ambalika Padhi's case, the Hon'ble Supreme Court held that when the substituted and transposed plaintiffs were claiming under the original plaintiff and continuing the suit, it cannot be said that their cause of action is different from the cause of action of the original plaintiff, merely because, they are claiming to be legal representatives under settlement under Will. Therefore, the ratio laid down by the petitioners, it actually detrimental to the case of the revision petitioners.
21. In Mahindra Singh's case, the learned Single Judge of the Patna High Court has held, by referring to common law, that "the plaintiff's suit is primarily to establish his personal right to an office which would entitle him to possession of the property in question, on his 19/21 https://www.mhc.tn.gov.in/judis C.R.P.(MD).Nos.1702 & 1703 of 2017 death, either during the pendency of the suit or during the pendency of the appeal, the right to sue would not survive, and the suit will, therefore, abate. Likewise, where the plaintiff's suit is of a personal character, in which the rights claimed by him are Intimately connected with his individuality, on his death, the right to sue would not survive, and the suit will therefore, abate." I do not find even this decision coming to the rescue of the decision.
22. For all the above reasons, I do not find any infirmity in the order of the trial Court in allowing I.A.Nos.894 and 895 of 2015. Both the Civil Revision Petitions fail and accordingly dismissed.
23. Considering the suit is of the year 2012, I direct the trial Court to dispose of the suit as expeditiously as possible and at any rate on or before 30.04.2024. There shall be no order as to costs.
Consequently,connected miscellaneous petitions are closed.
Internet : Yes 18.10.2023
Index:Yes/No
Neutral Citation:Yes/No
Ls
20/21
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).Nos.1702 & 1703 of 2017
P.B.BALAJI,J.
Ls
To
1. The District Munsif Court,
Madurai Taluk.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Pre-delivery order in
C.R.P.(MD)Nos.1702 & 1703 of 2017
18.10.2023
21/21
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