Kerala High Court
Govindan Nair vs Janaki Amma on 6 February, 2001
ORDER K.A. Mohamed Shafi, J.
1. C.R.P. No. 767/97 if filed against the order in I.A. 2858/95 in O.S. 263/92 of the Subordinate Judge's Court, Ottappalam. C.R.P. No. 774/97 is directed against the order in I.A. 311/96 in O.S. 314//93 of the same court. C.R.P. No. 779/97 is filed challenging the order in I.A. 2860/95 in O.S. 115/93 of the same court. Since the above C.R.Ps. are preferred against the common order passed by the lower court in the above I.As. and the contention raised in all the three C.R.Ps. are identical, they are heard and disposed of by this common order.
2. O.S. 263/92 is filed by the plaintiffs for declaration and consequential injunction in respect of the plaint schedule property. O.S. 115/93 is filed by the very same plaintiffs against the same defendants for permanent injunction and damages, O.S. 314/93 is filed by the 4th defendant in O.S. 263/92 seeking partition and separate possession of the plaint schedule property. During the pendency of the suits Kunhukutty Amma, the 1st plaintiff in O.S. 263/92 and O.S. 115/93 and the 1st defendant in O.S. 314/93 passed away. Thereafter the 2nd plaintiff in O.S. 263/92 and O.S. 115/93 filed I.A. Nos. 2858/95 & 2860/95 respectively to record himself and his brother Ramankutty Nair as the only legal representatives of the deceased Kunhukutty Amma on the strength of a Will alleged to have been executed by her in their favour. Those petitions were opposed by the sister Janaki Amma who is one of the defendants in the suits. The plaintiff in O.S. 314/93 filed I.A. 311/96 in that suit to implead the three children of deceased Kunhukutty Amma as the legal representatives in the suit. All the three petitions were tried jointly by the lower court and as per the impugned common order the lower court dismissed I.A. 2858/95 in O.S. 263/92, 2860/95 in O.S. 115/93 and allowed I.A. 311/96 in O.S. 314/93 impleading all the three children of Kunhukutty Amma as the legal representatives, finding the Will alleged to have been executed by Kunhukutty Amma bequeathing the properties in favour of the petitioner and his brother in those I.As. is not genuine. Hence these revisions are perferred before this Court against those orders.
3. Ext. A1 is the Will alleged to have been executed by deceased Kunhukutty Amma in favour of the petitioner and his brother on 28.8.1984. The revision petitioner examined the brother of the testator as PW1 and the Sub Registrar who registered the Will as PW2. The petitioner also produced Exts. A2 and A3. The lower court found that the evidence adduced by the petitioner is insufficient to dispel the suspicious circumstances in the execution of the Will and therefore the Will cannot be accepted as genuine and as such refused to record the petitioner and his brother as the legal representatives of their mother deceased Kunhukutty Amma on the strength of Ext. A1 Will.
4. The counsel for the revision petitioner vehemently submitted that in order to record the legal representatives of a deceased party in a suit under O. XXII R.5 of the C.P.C. only a summary enquiry is warranted and some evidence is sufficient to record the legal representatives of the deceased plaintiff or the defendant. According to him, the lower court simply magnified some of the circumstances brought out in evidence and found the Will is not genuine. He submitted that the petitioner could have adduced better evidence if the trial court found that the evidence adduced by him was insufficient to prove the genuineness of the Will. He further submitted that only on flimsy and untenable grounds the lower court found that the signature of Kunhukutty Amma found in Ext. A1 Will is not only genuine without sending the signature and thumb impression found in the document for comparison by an expert. He has also submitted that the evidentiary value of the Sub Registrar's evidence is not at all considered by the lower court.
5. The counsel for the revision petitioner has further submitted that the suspicious circumstances pointed out by the lower court in this case Ext. A1 Will are not at all suspicious circumstances in the light of the judgments of the Supreme Court in Satya Pal v. Panchubala Dasi (AIR 1985 SCC 500) and Rabindra Nath Mukherjee v. Panchanan Banerjee (1995) 4 SCC 459. Therefore, the counsel for the petitioner vehemently submitted that the order passed by the lower court finding against the genuineness of Ext. A1 will should be set aside and the petitioner and his brother should be recorded as the legal representatives of their mother deceased Kunhukutty Amma as per Ext. A1 Will or the matter may be remanded to the trial court for fresh disposal giving opportunity to the petitioner to adduce further evidence.
6. The counsel for the contesting respondents vehemently opposed these C.R.Ps. and submitted that the above C.R.Ps. are not sustainable under law. He submitted that the question of legal representatives of a deceased plaintiff or defendant in a suit should be decided then and there and cannot be relegated to some subsequent proceedings. He has also submitted that the genuineness of the Will has to be determined in the probate proceedings and the order passed under O. XXII R.5 of C.P.C. impleading or rejecting to implead a person as legal representative of the deceased on the basis of the Will will not be final decision on the question of genuineness of the Will. He has further submitted that the execution of the Will is a question of fact and that a question of law amenable to revision under S. 115 of the C.P.C. He has submitted that in a revision under S.115 if the C.P.C. this Court cannot reappraise the evidence and enter a finding against the finding already entered by the trial court. Thereafter the counsel for the contesting respondents submitted that the above revisions are liable to be dismissed on all these grounds.
7. O. XXII R. 5 of the CPC reads as follows:
"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 deceased plaintiff or a deceased defendant, such question shall be determined by the Court;
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8. Therefore, it is clear that the court has to decide whether any person is or is not the legal representative of a deceased plaintiff or defendant under O. XXII R.5 of the CPC and that question cannot be relegated to subsequent proceedings.
9. In the decision in Kali Pachi v. Ramalekshmi (AIR 1953 Trav-Co. 158) a single Judge of the Travanocore-Cochin High Court has observed as follows:
"When a party to the suit dies and the question arises as to who is his legal representative that question has to be determined by the Court before further proceeding with the suit. The provision to that effect as contained in O. 22, R. 5, Civil P.C. is mandatory. The Court's final decision on that question is conclusive as between the parties to such a proceeding so far as the particular case is concerned. Such an order passed with notice to the parties concerned and after hearing them cannot be allowed to be questioned by any of them at any subsequent stage of the suit".
10. In the decision in Kunchikavu v. Kesavan Nayar (AIR 1960 Kerala 79) a Single Judge of this Court has followed the above decision of the Travancore-Cochin High Court and observed as follows:
"It is clear from the wording that when such a question arises the court must decide on it, and it is equally clear that the court must determine the question before proceeding any further with the suit".
11. It is settle that substitution of a person as the legal representative of the deceased plaintiff or defendant under O. XXII R. 5 of the C.P.C. will not operate as res judicata in the subsequent proceedings, since what is to be determined under O.XXII R.5 while recording the legal representatives of the deceased party to the proceeding is the party who got prima facie claim to represent the estate of the deceased and to confer hem the status of the legal representative of the deceased party and that order cannot be characterised as one finally decided by the court as contemplated under S. 11 of the C.P.C.
12. In the decision in Krishnakumar v. N.G. Naidu (AIR 1975 Madras 174) a single Judge of the Madras High Court has observed as follows:
"The recognition of a rival contender as the legal representative of a deceased party in a pending action is only to facilitate the early disposal of the pending action. Any recognition of right given by a Court in such a proceeding will not confer rights on the recognised representative in the estate or property of the deceased person, nor will such a finding operate as res judicata in subsequent proceedings. The very fact that no appeal is provided from an order passed under O. 22, R.5, Civil P.C., will got to show that the order cannot be characterised as one 'finally decided by a Court' as contemplated in S. 11, Civil P.C.
6. There, all that is required of a Court before which there is contest as to who is the proper legal representative of a deceased plaintiff or defendant is to find out as to who has got a prima facie claim to represent the estate of the deceased and to confer on him the status of the legal representative of the deceased party".
13. In the decision in Mohinder Kaur v. Piara Singh (AIR 1981 Punjab & Haryana 130) a Full Bench of the Punjab & Haryana High Court has observed as follows:
"9. We are, therefore, of the opinion that in essence a decision under O. 22, R.5, Civil Procedure Code, is only directed to answers an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for: The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings.....
10. In view of the above discussion we are clearly of the opinion that the answer to the above referred to question stated in opening part of the judgment has to be in the affirmative and we accordingly hold that in no case a decision under O. 22, R.5, Civil Procedure Code, would operate as res judicata between the same parties or their successors in interest or their privies, in a subsequent proceeding, even when the said parties had been provided an opportunity to contest the issue and lead the evidence thereon."
14. Therefore, it is clear that the finding entered by the lower court against the petitioner in the above application under O. 22 R. 5 will not operate as res judicata between the parties in any subsequent proceedings.
15. Eventhough the counsel for the petitioner vehemently submitted that the appreciation of the evidence on record with regard to the genuineness of the Will is incorrect, in the above revisions preferred under S. 115 of the C.P.C. unless and until it is established that the lower court committed any error of jurisdiction or has acted with material irregularity affecting the jurisdiction of the court, this Court cannot reappreciate the evidence and enter a different finding from what is entered by the lower court.
16. In the decision in Kempaiah v. Chikkaboramma (1998) 6 Scc 667) the Supreme Court has observed as follows:
"5. So far as the direction to regrant to Respondents 2 to 4 the lands in question is concerned, we are constrained to state that the High Court in its order virtually reappreciated the evidence placed before the authorities as if it was a first appeal not noticing that it was only a proceeding arising under S. 115 of the Code of Civil Procedure. The learned District Judge had referred to every piece of material placed before the Court in the shape of oral or documentary evidence and came to the conclusion as we have noticed earlier in the course of this order. Therefore, it was not open to the High Court at all to reappreciate the matter unless it could find that the District Judge had committed any error of jurisdiction or acted with material iregularity affecting his jurisdiction. No such contention has been recorded. On this ground alone, the order made by the High Court on this aspect of the matter will have to be set aside."
17. Apart from the contention that the lower court has not properly appreciated the evidence in arriving at the findings against the petitioner with regard to the execution and genuineness of Ext. A1 Will, no contention is raised that the lower court has acted with any irregularity affecting its jurisdiction. Therefore, it is clear that the contention raised by the petitioner that the orders passed by the lower court negativing the contentions raised by the petitioner under O.22, R.5 of CPC are not sustainable, is of no force.
Hence, these CRPs are dismissed. But the impugned orders passed by the lower court under O.22 R.5 in the above cases will not operate as res rejudicata against the petitioner in any subsequent proceedings between the same parties or a affect his claim in the probate proceedings with regard to the genuineness of the Will.