Kerala High Court
Dharmapriya Financing Company(P) Ltd vs Chinnu on 9 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936
OP(C).No. 685 of 2011 (O)
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AGAINST THE ORDER IN I.A.NO.187/11 IN OS 899/2009 of
PRL.MUNSIFF'S COURT,IRINJALAKUDA.
PETITIONER(S)/PETITIONER:
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DHARMAPRIYA FINANCING COMPANY(P) LTD.,
IRINJALAKUDA, REPRESENTED BY ITS
MANAGING DIRECTOR,
VISWAMBHARAN, S/O.MUKKULAM KARUPPAN,
PULLUR VILLAGE AND MADATHIKARA DESOM,
MUKUNDAPURAM TALUK.
BY ADV. SRI.T.N.MANOJ
RESPONDENT(S):
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1. CHINNU, W/O GURUVILASOM VEETIL KUMARAN,
MUNDROOR POST, ANJOOR VILLAGE & DESOM,
THRISSUR TALUK.
2. SURESH S/O KUMARAN, DO. DO. DO.
RR-R2 BY ADV. SRI.RENJITH THAMPAN (SR.)
RR-R2 BY ADV. SRI.V.M.KRISHNAKUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
05-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Nan/
OP(C).No. 685 of 2011
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 - TRUE COPY OF THE PLAINT IN O.S.NO.899/2009.
EXT.P2 - TRUE COPY OF THE WRITTEN STATEMENT BY THE 1ST
DEFENDANT.
EXT.P3 - TRUE COPY OF THE INFORMATION FROM THE VILLAGE
OFFICER.
EXT.P4 - TRUE COPY OF PETITION I.A.NO.187/2011.
EXT.P5 - TRUE COPY OF THE OBJECTION FILED TO THE SAID
PETITION.
EXT.P6 - TRUE COPY OF THE ORDER DATED 9/2/2011 IN
I.A.NO.187/2011.
//true copy//
P.S. to Judge
K. HARILAL, J.
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O.P. (C) No. 685 of 2011-O
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Dated this the 5th day of August, 2014
JUDGMENT
The petitioner is the plaintiff in O.S.No.899/09 on the files of the Principal Munsiff's Court, Irinjalakuda, as well as the petitioner in I.A.No.187/11 filed therein. The above suit was filed seeking a decree of realisation of an amount of `61,841/- with interest and cost from the respondents. The case of the plaintiff is that the son of the 1st defendant, who is the brother of the 2nd defendant Sri. Renadev, has availed a loan for an amount of `65,000/- for the purpose of purchasing an autorikshaw under a hypothecation agreement with two other persons, as guarantors, agreeing to repay the loan amount in 36 monthly instalments. O.P. (C) No. 685 of 2011 -: 2 :- Thereafter, the said Renadev defaulted payment of instalments and he died consequently on 3/3/2009. Feeling aggrieved, the petitioner filed the above suit. According to the information gathered by the plaintiff, respondents 1 and 2 herein are the legal representatives representing the estate of the deceased.
2. The respondents 1 and 2 filed a written statement denying the right to realise the said amount from them. Moreover, the 1st respondent contended that she is neither a legal heir; nor a legal representative of the deceased, so also, she is not the mother of the deceased Renadev. Therefore, a decree cannot be passed against them, allowing the plaintiff to realise the amount claimed. In view of the contentions in the written statement, in order to ascertain the owners and possessors of the property belonged to the deceased Renadev. Before the attachment before judgment, the petitioner filed an O.P. (C) No. 685 of 2011 -: 3 :- application before the Village Officer seeking information with regard to the right and ownership of the property under attachment. The Village Officer, by virtue of the letter dated 2/8/2010, informed the petitioner that the property tax is being remitted by the 1st defendant; but records are not available with the village office. In the above context, the plaintiff filed an application under Order XI Rule 1 of the Code of Civil Procedure seeking leave of the court to deliver interrogatories in writing for the examination of the defendants.
3. The defendants filed objections contending that the interrogatories sought to be answered are not matters in question in the suit. After hearing both parties, the learned Munsiff accepted the defence set up by the defendants that the interrogatories sought to be answered are not matters in question in the suit and went on to dismiss the said petition. The legality and propriety of the findings in the order dismissing O.P. (C) No. 685 of 2011 -: 4 :- the above petition is under challenge in this original petition.
4. The learned counsel for the petitioner advanced arguments challenging the finding of the court below that the interrogatories sought to be answered are not matters in question in the suit. According to the learned counsel, the learned Munsiff failed to keep in mind the scope of Rule 2 of Order XI and Sec.2(11) of the Code of Civil Procedure. The learned Munsiff ought to have found that the interrogatories in the application are essential for the fair and proper disposal of the suit. The learned Munsiff has not decided which are the interrogatories deserve to be granted with leave and which are deserve to be dismissed. In short, without application of mind, the learned Munsiff dismissed the application in a perfunctory manner.
5. Per contra, the learned counsel for the respondents advanced arguments to justify the O.P. (C) No. 685 of 2011 -: 5 :- findings in the impugned order under challenge. According to the learned counsel, the 1st respondent is not the mother of the deceased Renadev and the 2nd respondent is not the brother of Renadev, as alleged in the Original Suit. The 1st respondent is neither a legal heir; nor a legal representative of the deceased Renadev. Similarly, the interrogatories in the application are not necessary for the proper disposal of the Original Suit.
6. Heard both sides. In view of the rival contentions, the question to be gone into consideration is whether the court below has failed to exercise the jurisdiction or exercised the jurisdiction illegally or with material irregularity.
7. Going by the impugned order, it is seen that the court below dismissed the application on a finding that the interrogatories in the application have no bearing on the material question involved in the Original Suit, as the cardinal question is whether the O.P. (C) No. 685 of 2011 -: 6 :- respondents 1 and 2 are the legal representatives of the deceased? As rightly found by the court below, the question to be considered is whether the respondents 1 and 2 are the legal representatives of the deceased. Going by the interrogatories, the relevant interrogatories are: (1) Whether the defendants 1 and 2 are in possession and enjoyment of 8 cents of property comprised in Sy.No.901/4? (2) Who is paying the tax for the said property? (3) Whether the respondents are in possession of the sale deeds of the above said property? In view of the questions to be considered, it is apposite and profitable to have a look at the definition of the "legal representatives" in Sec.2(11) of the CPC which reads as follows:
"2(11) '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 O.P. (C) No. 685 of 2011 -: 7 :- 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."
On an analysis of the definition, it could be seen that the term "legal representative" is wide and an inclusive one. A person who in law represents the estate of a deceased person or a person who intermeddles with the estate of the deceased or a person on whom the estate devolves on the death of the party so suing or sued, where a party sues or is sued in a representative capacity, also can be considered as a legal representative. The definition is inclusive in character and scope is wide. It is not confined to legal heirs only. Put it differently, a stranger to the deceased also can be a legal representative if the property possessed by the deceased devolved upon him by a testamentary or non-testamentary document. The legal heirs may be O.P. (C) No. 685 of 2011 -: 8 :- the legal representatives; but not always. The legal heirs are entitled to inherit the estate of the deceased. A legatee of the estate is a legal representative. So, even if the 1st defendant is not the mother of the deceased, she can be a legal representative if the properties belonged to the deceased devolved upon her.
8. The contention raised in the written statement is that she is not the mother of the deceased and the 2nd respondent is not the brother of late Renadev. In view of the denial of legal representativeship in the written statement and the contrary information obtained under the Right to Information Act stating that the 1st respondent is paying tax for the property which belonged to the deceased Renadev, I find that the interrogatories are material questions relating to the succession of the property after the death of the deceased Renadev. The finding of the court below that the purpose of interrogatories is to undergo a O.P. (C) No. 685 of 2011 -: 9 :- fishing enquiry is unsustainable in view of the matter in issue involved in the suit.
9. In the above view, I find that the finding of the court below that the interrogatories are not relating to material question is unsustainable and the impugned order is liable to be set aside and I do so. I.A.No.187/11 will stand allowed and the court below is directed to proceed with the case after getting answers to the interrogatories.
This original petition is accordingly allowed.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge