Chandralekha vs B V Sujatha on 11 December, 2009

[Cites 4, Cited by 2]

Karnataka High Court

Chandralekha vs B V Sujatha on 11 December, 2009

Equivalent citations: AIR 2010 KARNATAKA 104, 2010 (2) AIR KANT HCR 232, 2010 (2) AIR KAR R 232, (2010) ILR (KANT) 2564, (2010) 2 HINDULR 364, (2010) 4 ICC 304, (2010) 1 KCCR 302, (2010) 4 CIVLJ 588

Bench: Aravind Kumar

IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 11TH DAY OF DECEMBER;.V_2~0:C9_

BEFORE

THE I-ION'BLE MR. JUSTICE  E' "

WRIT PETITION N0. 19é'5V9}':2(§07{G1&I;CiV'€'.)"«ii _

BETWEEN

Chandralekha  _  _  
W/o.A.V.Gopa1a Krishn_étShétt§'w,.' "  _
Aged 53 Years,    .  
R/013.1-I.Road,   '
Arsikere~ 573.. }Q3"_.'-- 1

    .. 2     Petitioner
{By Sri.K.E'.NaTgeridfa, FQI? M/s Nag Assts.}

AND 

1. B.V.Sujatha,V"f_I'~_' _% 
W / 0 . D'iw_aI-r.arV"G1Ipta.,A E'
Age.d 56  vS.1\E-Péilya,
Banga].ore. 

 2,"Gay%tIm,fI~v ..

..W/o.,G.I..K.S-aj."rIath

" . Aged 54éjye}Ears,
I3_a1a§vi:'m-to Traders, Ibrahim
Sahe§:>_ Road,

 _ _Bar1ga1o}:e-- 1.

   'iifasannakumar,

 S/0.B.S.Vishwanatha Setty,
' Aged 53 years,
No.691, 7111 Main Road.



31" Phase, J. P.Nagar,
Bangalore.

. D.P.Geetha.

W/0.D.S.Prasannakumar.
Aged 49 years.

No.17, 2nd Main K.E.B. Layout,
B.T.M. 18' Phase,
Banga10re--29.

. B.V.Satyamurthy.

S/o.1ate B.S.Vishwanatha. Settyg. " -- ._
Aged about 48 years' V?  
N0.691. 7"' Mair}. 3"' PhElSfV3u';'.,V'
J.P.Nagar,   '
Banga10re--7 8.

. Ashok Kumar,  .

S/0. 1ate.B.s..jV':shvg{a1iat1§.a _S11f'e1;¢;y',.  2
Aged 46 ye_ars;;j.~a»I\I0.. I'4G9."'2"d' Croiss-,---~='
Banasha'1i1:"a.1fi;~-~13} Ph'a__sve._. _   ' '

BafIga1()I   .  A *  A   "

. A.V.Gdpa1eJ:fis_1ﬁia 

Aged 68 years, 
Sjfo. Late.Ve'11katas.ubba Setty,

'' A  - _ 'R/o.1afmea:B.H.R¢'ac1.
A  'Arsi-kvere:=.5"73_ 103.

". .  'jliiizfxxar, Maj or,

 .. Vﬁangalore.

S./0..A.'J,G0pa1akrishna Shetty.
R/oﬂjanganagar,

Respondents

my Sri.Suresh D.Deshpande, Adv. For 12- 1 to R-6. R.}\/Ianjurxath Prabhu, Adv. For R-7 to R-8) This Writ Petition pra3n'ng to quash the impugned order passed by the Prl.CiVil Judge (Jr.Dn.], at Arsikere in OS.N0.82/O7 Dt.23.10.2007 on IA. For bringing legal representatives as per Ann~E and pass such other°--order or direction. ' "

This petition having been heard and re_s'e--rveld oztder, coming on for pronouncement of order t_hiS_"_'d.ay;e:"th€- lC'01;f'f._ made the following: A ' ORDER' ' it i The petitioner is dated 23-10-2007 passed in the Principal Civil Judge (Jr.dn), Arasikere! for bringing the legal representatiV_eS plaintiff on record and directingllllthe.:5petiti'one'1*t:he1'ei_ri""to be arrayed as the third defendaiit ~ V

2. Facts leading,_to~.-the filing of this Writ Petition are as V A 2 ' ..... V' V Vi"'Srnt;1l.r1riapurnamma W/o late B.S.VishWanatha ﬁled in O.S.No.82 / 2007 on the file of the Civil l"=~v.___WJudge" .{;li'.Dn), Arasikere for the relief of declaration and :"lirijuri*ction against Sri.A.V. Gopalakrishna Shetty and his Sri.A.G.Anil Kurnar. During the pendency of the suit, plaintiff Smt.Annapurna:mma expired on 10-7-2007. An application under Order 22 rule 3 CFC came_4vto-..4'be_ filed which interlocutory application was number-ed'as--',1'i';A.if-3o.rII. The said application was accompanied byhan' of_or1e Sri.B.V.Sathyamurthy S/o BZES.V?isi-iwaiiathshetty.0"9.and."' ' Smt.B.V.Annapurna:mma. said.a£ﬁdayrit:._:it'*was stated that names of' "heirs of iate Smt.B .V.Annapurnamrna ;_has in the application at S1.No.1 tog?' daughter of Smt. I was acting contrary to that othderhfiegal heirs of late Smt. accordingiy it was prayed that Smt.:A.GfChandraieltha0"'is to be brought on record as .,.»d.efendant and other «legal heirs be brought on record as the I'--pia;intifts~..representing the estate of the deceased since the right survives on them. The said fact had also been .Tsta_ted the appiication I.A.No.II. To this application °0Vb'j'e'c'tions was filed by Smt.A.G.Chandra1ekha contending "that she cannot be brought on record as defendant mereiy because there is divergence of interest between herself and other legal representatives and the scope of application to bring the legal representatives on record she sought for dismissal of the application ' ll"

3. The Court below on considevra.tioi1--l,:_'of_p rivaf.__ contentions came to the conc.l1_;sion'--.that if the i.e., Chandralekha was shoudngany against other L.Rs she can defendant and the same would not_talr.e of the petitioner in getting and suit properties and accordingly by its order dated 23-10- __§4§' It is thislﬂorder which is now assailed in the present fjvrit,llpetition:'contending that said order is opposed to the 22 rule 3 and the petitioner sought for

-V setting. asvidefof the said order in allowing the application for V' V' l"..:tbriI1g_ing"the legal representatives of the deceased plaintiff on record in O.S.No.82/2007 and allowing writ petitioner being arrayed as 3"? defendant.

5. I have heard Sri.K.R.Nagendra, for M/s Nag Associates for D.Deshpande, Advocate for resj:ondents,'v-"I11. to and Sri.R.Manjunath Prabhu for retsinondents-

6. Sri.K.R.Nagendra wc.§u1d'VAs§w._i;;rr1it.that"scope of Order 22 Rule 3 is Very 1irnited:f'_nanf1Ve3Ly dispute between the legal repre:se1:;it'atiVes cannoVtA.be7g'or1e into while bringing the on record and hence the order of the "in allowing I.A.Ii by directing respondents" herein to be brought on record as the dﬂiegai" on death Srnt.B.V.Annapuranarnma by plaintiff is erroneous and by ordering the _ petiti.one'r'he-rein to be brought on record as third defendant ;;iraye*d in I.A.No.ii is contrary to Order 22 Rule 3 and 'thu's":seeks for quashing of the order dated 23--10~2007. : .2'".% '7. Per contra Sri.Suresh D.Deshpande, learned counsel appearing for respondents l to 6 would that the petitioner herein is the wife of first mother of defendant No. 2. The__.sui_t' had"

rnother~in--law against the son--in:¥%.law_'_'s~i'nce~_h'e_:elainied?right "

in the suit schedule propert§f~~..andA."ajs V..p'etitio*ner being the wife of defendant;i-l'»?o.;"pl--. and defendant No.2 was acting contralgg of deceased B.V.Annapurnanirna and supporting defendants'; Court below was justified in passing 'the order ngowlimpulgned in this writ petition.

8. 'f'h_e arises for consideration in this V. g_ wrligpetition is'wi'.r.,_1_1__i_gn a narrow compass narnelyzz 1 :v'«'fWhether the Court below was justified in d'ire'etiIfg'/'ordering the petitioner to be brought on as the third defendant by allowing l.A.1I?'' " or _ "Whether petitioner herein had to be A brought on record in O.S.No.82/2007 as one of the plaintiffs." "

E'

9. In order to appreciate the contentions the learned counsel appearing for the parties--,§V_:'..it necessary to extract the relevant proVis~i'o_ns'*V of Procedure Code and Hindu "

Order 22 Rule 3 of CPC andiSpectionA"'15__ of-~Succession Act. V i V Section 2 (11) o'f'CI'C"

'~2.Definit_i*ons. there is anything repugnant subject context.

means a person 'ii1VV].afWre.presents the estate of a deceased it'«pe'rson,_'and-~,_':_A"inc1udes any person who interrnedcllesdwith the estate of the deceased .'\)"V'h€VI_'__€__»a party sues or is sued in a iirepresentatives character the person on whom .es.tate devolves on the death of the party so , or sued;"

' * order xxn Rule 3 of CPC ORDER XXII 9 DEATH, MARRIAGE AND INSOLVENCY OF PARTIES l. XXXX 2 XXXX

3. Procedure in case of death of _ several plaintiffs or of sole plaintifa:7.g_?[1.)=W"nere' one of two or more plaintiffsmdies and right to sue does not survive to the su'rviV<ing< plaintiff«'or". plaintiffs alone, or a sole plaintiff-or'isol'e sliiijitrpitrg plaintiff dies and the right to the sue sforviv*es;=-4 tl'1,eV.,p Court, on an app1icatio_n":nade'in that shall --. ' cause the legal repres'en't.g1tive"'of'the 'deceased plaintiff to be made a p_art_y-an.d shall .p_roceed with the suit. V (2) Where by law no application' is 1f_nade'g,underV_ sub.--rule(l) the suit shall _S:)_ "as the' 'deceased plaintiff is coneernetiyf-.. "A the application of the defendant, Courtwnlay award to him the costs which he n1_ay..haV"_e incurred in the defending the , suit, to ._bereeo'=.;ered from the estate of the estate ~ ' of the deeeVas_eg1, plaintiff.

" 15 of the Hindu Succession Act:

rules of succession in the case of female Hindu. -- [1] The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,

(a) firstly, upon the sons and daughter (including the children of any predeceased son or daughter) and the husband;

(bl secondly, upon the heirs of the husband; (1 . .

(b) (C) {d} (2) 10 thirdly, upon the mother and father; fourthly, upon the heirs of the father; and lastly, upon the heirs of the mother. Notwithstanding anything contain it . section (1)- "

{a}

(b) ~ theACethe'r§:.;hei'rs*referred'to in sub--section (1) in any property inherited" ..

from her father or mother shall dew:-lye,' absence of any son,o_r daughter of the v'dece1'as"ed'a (including the childreftof any preédecweaeed' sonr ' or daughter) not upon' other .heir:s referred to in sub-sectiontl) int.-thev--or'der specified' therein, but upon the heirs of ~f._'athcr; and any Aypropertyf inheri:ted"'~ jay female Hindu from _ laiel"-.ph1;;._sband .or..vi'from'i:.her father--in--laW shall dev'oVlve',g inlfthe' ..abs'e--nee of any son or daug'htei'= th-e}r_:1e~ceased (including the children of pre--decease.d"son§ or daughter) not upon the Vorder"specified. therein, but upon the heirs _ pofthc hu sban.d;--'f pp p "

The X that the applicants 1 to 7 as in Iih§N'o';lVI [Writ Petitioner and Respondents 1 admittedly class-I heirs of deceased of Smt. BL It would be necessary to understand the interse 'etrelationship between the parties to the suit. The suit has {'15 11 been filed by Srnt.B.V.Annapurnarrim.a W[ o late Vishwanatha Shetty against her son--in--law whc_xi.s:'-«als.o her brother and her grand son for the relief of injunction as per the p1aint.~av_erm'_ents is at Annexure 'B'. It is contended.' 'A property was purchased 1933 and was in her posysessionihhands...'enjoyment and she had executed a generai by }§.tto_rney in favour of her first defendant on of Sy.No.38/2 and by virtue he is attempting to sell the properties ' sold certain properties in favor;-r--.oAf sgmvith sole intention of cheating plaintiff and has for declaration and injunction. V the pendency of the said suit the plaintiff expi-redfon :l0--7--2007 and hence an application came to be one of the L.Rs of the plaintiff namely her son by .' B.V.Sathyarnurthy. It was contended in the said ""applicatio:n by specifying names of all the legal 12 representatives and the first Legal representative namely Smt.A.G.Chandralekha was acting contrary to theVV_i*n4:te.rest of the deceased plaintiff and as such sought i--.b:ei.ng arrayed as third defendant and other__Leg§-all 're'pres'entatjVges' be brought on record as plaintiffsiﬂ'This. "

opposed by Smt.A.G.Chandfra.].Vekha that cannot be deprived go-fghergtirighpt-. tot_pf¢se§:.;.tef the suit as plaintiff. However, it does not dispute the contention.ggjsediziginlthie under it was contended " (other than Chandralekha) that of interest between one hand and other Legal representatives of B.°%f.ZXnnapurnamma on other hand. The folllowing citations would be of relevance for r__.C"onsid.'e"ring"thecontentions of the parties:

L' 1), 3.927 Madras 1071:

Govindaswamy Vs. Annamalai "If one of the legal representatives does not choose to be brought on the record as the €, ,4... .

ii) 13 representative of a deceased plaintiff his share in the suit dopes not thereby abate. legal representative is brought on the doubt the suit would abate, but where representatives come on. the baths;

contend that some otherjpersons are'V:not=;lega1*-_ .. representative even though" theirv'leontent.ioni rriay be found to be that the whole of the...suitp..or' lportiono-f the suit abate in favour oflthe A.%i.i2";:crli92*z Laiiore 94' ~ i'Mc-;,'*Has'san'Xzs;"lingyat Hussain A' .ff_W.e have to look into the provisions of Civil P.C. read with 12.1 1 of the Qrd,er;~.--"Now, when a party dies, then, in order that the suit or the appeal may proceed, it ._is-..neeessary that his legal representatives should 'be-'~.brought on the record within the prescribed of limitation. The question is about the of representative."

the These meaning expression "Legal words mean the representation before the court of the plenary interest of the deceased party. Sometimes that interest may be represented by a single 14 individual, but it may also be represented by number of persons as the case may be. But there should be a complete representatior1_:"ouf the interests of the deceased person_;.."_y=jhe'ther through a single individual or thI'o_ugl_1 of persons, so that there bewpartial. representation of that -i the expression representatiiree'.;:Mrneans and includes on perso*n:as w.«:n,das. persons according the 'whole interest of the deceased'lllpers_ofa.i. is supported by at least three.._reportedldcaseys'lof the Allahabad Highgcjgu;-"t, ':Gha..rnandi La} Vs. Amir ~ .Be§urfi;:.;{V1}:.Haidar»1%1dssain Vs. Abdul Ahad (2); . Faza1'Mjuih»a'1n:n:ad'Khan Vs. Habibullah Khan (3). it notedllthat this View is not opposed to * Vs. theiliatv as down in the cases of Abdul Shahab--ud--Din (4) and Mallapragada Vs. Lingam Viraragava (5). In this View of the case we ﬁnd that the full and Complete interest and Ahmad Hassan, deceased was not represented in appeal before the Court in that the name of Mt. Saida Begum, his daughter, is not included in the array of appellants. If she was unwilling to appear as a 15 party appellant it was open to the two legal representative, who appear as appeilhants, to implead her as a respondent. not been done." % [Emphasis supplied) it 43 Calcutta Pg.No. 1088 Haﬁjul Hoque and ..t5rs.._Plaintiffs;Appellants, Vs. Altap Hossain _*'Mo1l-a_ and ors. " Defendants, Respondentsﬁ-. '-- 1 ' cipiziiprocegiiﬁe iigaaefaiclti. 1908), 0:222, rr.3, p 1 E'.--AE:':%:pV:ﬁa,l, aegfelriaaht m Death of defendant "cf soprie of the heirs in appeal --

V» '' 4_Whe're''as.fd»eeeree'' is "passed against a person who is vljthe in the suit and he prefers an appefalyl and after his death and during the "l'pendene}}f of the appeal, some only of his heirs substituted as appellants, the appeal abates. V A position may be different when the heirs who " are left out are unknown; if they are known the above rule applies but if some are unwilling to join as appellants, they must be made party respondents.

[Emphasis supplied).

_ Weeia_1§*.V_u Nd;_§s~ . «.('1sas;39) if M 19

vii) A.I.R. 1981 Orissa 63 Radhakrishna Padhi Vs. Bhajakrisha Paﬁda "9.We have already indicated the facts of a case like the present legal representative are cr:)11'ti_:n'iie_ 't.he4.__ suit on the basis of the clairn.V_flaidf"b,§.;'*the" .51-iigixial 'S if plaintiff. They are notentitledf"to.__plead.:toaithe contrary and obtain reliefs, whic_hVV':th_e*aplaintiffherself was not entitled to, i.e.V psubstitu.ted"«.1egal representatives are not entitled title of theirs contrary in the suit. In View of sugch granted to the plaintiffs place. Prejudice is bound to have defendants in asmuchas there has of title on the basis ef the _settlle'rne11t or the Will and yet the transposed representatives have got their rights declared A claim being laid. in View of the limitation scope of the continuation of the suit by if representative of a deceased plaintiff, the .learned Subordinate Judge was not justified in giving A' the decree to the present plaintiffs on the basis of the Settlement and the Will. We think it appropriate that the decree of the learned Subordinate Judge should be vacated and the legal representatives of the original 9' 2 20 plaintiff should be left to work out their own rights in independent suits. Similarly, the question Voiladoption should be left to be examined without by the findings in then present suit. allow the appeals, vacatewthep decree of the learned Subordinate ande..__disrniss -:

the suit filed by Urmilai Wernake e7§plici:tly'lclear that the claim laid by legal rep.re'se..ritative"of Urmila or the claim of ad.option"'are'-lelftopen tobe adjudicated as and when proceedings."

:.{EmphasAis_s'upplie'd')

13. Iii" t'l_1e§:iight «of,__;provisio'ns' of Civil Procedure Code above decisions enumerated herein abovetit is to to what is contemplated under order '22 'Rule 'v.ClJC"i,vhen sole plaintiff or sole surviving andthe right to sue survives on Class 1 Legal »vl*io;v\f_:..they can be brought on record. The action brought. by a deceased plaintiff devolves on them when accfuire that "Right to Sue" and it is this right which them with the power to continue the suit / appeal which ..._t'ne deceased plaintiff/Appellant possessed against the 22 not in dispute and when Chanciralekha in her objection statement does not dispute the fact of divergenclellof Vi€WS between her and other legal representatives,;"she;'.oar.not% be said to possess a "right to sue" or "rightjTtd"-§roseeute".f__A the claim of the plaintiff continues Athat if interpretation is to be givenV'it___vvo1il:1l'V't;eV Section 2(11] as also Qrcier

15. Hence, in not iind any error or illegality in the o1~as:l Court below and accordingly V The iwrit pietitiVo1'1.'«isAldisrnisseci. The order of the Coi1rt"beIovl7 cl"ateuCl~_23~ 1t):2t)O7 is affirmed. No order as to costs.'--t Sd/W JUDGE .e'sbI§I;*~

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