Karnataka High Court
Sri. Ramesh S/O. Vasant Desai vs Shri. Pradeep Vasant Desai on 5 September, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5 t h DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.76420/2013 (GM-CPC)
BETWEEN:
Sri Ramesh S/o. Vasant Desai,
Age: 60 years, Occ: Trade,
R/o. R.S.No.33/B, Yeranal,
P.B. Road, Nippani,
Tq: Chikodi,
District : Belgaum. ... PETITIONER
(By Sri R.M. Kulkarni, Adv.)
AND:
1. Shri Pradeep Vasant Desai,
Age: 52 years, Occ: Agril. & Trade,
R/o. 1244, Dallalpet, P.B.No.30,
Near Basaveshwar Police Station,
Nippani - 591 237,
Tq: Chikkodi,
District : Belgaum.
Smt. Ushadevi
W/o. Vasant Desai,
Since deceased by L.Rs.
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2. Shri Mahaveer Pradeep Desai,
Age: 27 years, Occ: Trade and Agriculture,
R/o. 1244, Dallalpet, P.B.No.30,
Near Basaveshwar Police Station,
Nippani - 591 237,
Tq: Chikkodi,
District : Belgaum.
3. Sri Raj Ramesh Desai,
Age: 25 years, Occ: Education,
R/o. R.S.No.33/B, Yernal,
Near P.B. Road, Nippani,
Tq. Chikkodi.
4. Smt. Surekha,
W/o. Shripal Kittur,
Age: 50 years, Occ: Household work,
R/o. Near Post Office,
Manik Nagar, Nippani,
Tq. Chikkodi.
... RESPONDENTS
(By Sri M.G. Naganuri, Adv. for R1 & R2;
Sri D.V. Pattar, Adv. for R3;
R4 served but unrepresented)
This writ petition is filed under Articles 226 &
227 of Constitution of India praying to quash the
order dated 11.10.2012 on I.A.No.8 in
O.S.No.17/2006 on the file of Senior Civil Judge,
Chikkodi in allowing the application, produced as
per Annexure-A.
This writ petition coming on for preliminary
hearing in 'B' group this day, the Court made the
following:
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ORDER
This writ petition arises from an order dated 11.10.2012 allowing I.A.No.8, passed in O.S.No.17/2006 by the Senior Civil Judge, Chikkodi.
2. One Vasant Rajaram Desai, the propositus, died on 08.12.1994, leaving behind his wife Smt. Ushadevi, two sons namely Ramesh Vasanth Desai and Pradeep Vasanth Desai and a daughter Surekha. Pradeep Vasanth Desai, along with his mother - Smt. Ushadevi, filed on 31.01.2006, O.S.No.17/2006, in the Court of Civil Judge (Sr.Dn.), Chikkodi, against Ramesh Vasanth Desai, his son Raj Ramesh Desai and Smt. Surekha wife of Shripal Kittur (defendants 1 to 3 respectively), to pass a decree for partition and separate possession claiming 2/3rd share in the plaint schedule properties. Defendant No.1 and his son, filed separate written statements. Based on the pleadings, the Trial Court raised the issues. Smt. Ushadevi died on 23.09.2011. I.A.No.8 was filed on 18.10.2011 by the plaintiff No.1 and his son Mahaveer Pradeep Desai, under Order 22 Rule 3 r/w S.151 of CPC, to 4 permit them to come on record as legal representatives of deceased plaintiff No.2 - Smt. Ushadevi, on the ground that during her lifetime, she executed her last Will and testament on 25.10.2010, bequeathing her right, title and interest in the suit properties in their favour and that the same is a registered document. I.A.No.8 was contested by the defendant No.1. He denied the allegation that the deceased plaintiff No.2 Ushadevi having executed a Will and contended that Mahaveer Pradeep Desai being neither legal heir nor legal representative of Ushadevi, is not entitled to be added as a party, as the legal representative of deceased plaintiff No.2. It was further stated that the legal representatives of deceased i.e., plaintiff No.2-Smt. Ushadevi, being already on record as plaintiff No.1, defendant Nos.1 and 3, the application is not maintainable. Alternatively, it was stated that unless and until the alleged Will is proved, Mahaveer Pradeep Desai, cannot be termed as legal representative of deceased Smt. Ushadevi and cannot be permitted to come on record.
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3. After considering the record and the rival contentions, Trial Court has held that the suit has not abated, as the natural heirs of the deceased plaintiff No.2 i.e., plaintiff No.1, defendants Nos.1 and 3 are already on record and the claim of plaintiff No.1 to come on record as legal representative of deceased plaintiff No.1 is not acceptable, since, himself and defendant Nos.1 and 3 are the natural heirs of deceased plaintiff No.2 and hence, he cannot be arraigned as plaintiff No.2(b), as alleged legatee under the Will alleged to have been executed by deceased plaintiff No.2. However, it observed that the plaintiff No.1 can claim in the suit that he is the natural heir of deceased plaintiff No.2 and also alleged legatee under the Will alleged to have been executed by deceased plaintiff No.2, in dual capacity. It has held that Mahaveer Pradeep Desai, can only be impleaded as alleged legatee under the Will and that he will have to prove the said Will in separate proceedings. Mahaveer Pradeep Desai was permitted to come on record as plaintiff No.2(a) on the ground that the cause of action to sue survives along with plaintiff No.1, on the strength of the alleged Will executed by plaintiff No.2. 6 I.A.No.8 was allowed accordingly. Assailing the said order, this writ petition has been filed by the defendant No.1.
4. Sri R.M. Kulakarni, learned advocate for the petitioner contended that the execution of the Will dated 25.10.2010 by deceased plaintiff No.2 having been disputed, learned Trial Judge has committed illegality in permitting Mahaveer Pradeep Desai to come on record as the legatee, without proving the Will. Placing reliance on the decision in the case of Mary Joyce Poonacha Vs. K.T. Plantations Private Limited, Bangalore, ILR 1996 Kar 833, he contended that the Trial Court without determining the question, whether Mahaveer Pradeep Desai is or is not the legal representative of the deceased plaintiff No.2, has acted illegally and with material irregularity in allowing I.A.No.8.
5. Mr. M.G. Naganuri, learned advocate for the respondent Nos.1 and 2, on the other hand supported the view taken by the learned Trial Judge and sought upholding of the impugned order.
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6. Sri D.V. Pattar, learned advocate for respondent No.3 submitted that the writ petition record may be examined and the matter decided in accordance with law.
7. Perused the writ record. In view of the rival contentions, the question for consideration is, whether the Trial Court is justified in allowing the application filed by Mahaveer Pradeep Desai claiming to be legatee under the Will of deceased plaintiff No.2 and in permitting him to prove the Will separately?
8. Order 22 CPC deals with death of parties. Rules 1, 3 and 5 of Order 22 CPC have a bearing on the question and the relevant portions thereof are extracted below:-
"1. No abatement by party's death, if right to sue survives.- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
xxx xxx xxx
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole 8 surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
xxx xxx xxx
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."
9. Relationship of the parties, noticed supra, is not in dispute. The suit has been instituted to pass a decree of partition and separate possession. Though the plaintiff No.2 has passed away on 23.09.2011, there is no abatement of suit, since her three children are already on record as plaintiff No.1 and defendant Nos.1 and 3. Mahaveer Pradeep Desai, who claims to be a legatee under a registered Will dated 25.10.2010 of Ushadevi Vasanth 9 Desai, is none other than the son of plaintiff No.1 and the grandson of deceased plaintiff No.2. It is in the said factual background, Trial Court has held that Mahaveer Pradeep Desai, who made the claim as legatee of Ushadevi in I.A.No.8 has been directed to prove the Will separately. The impugned order makes it clear that the genuineness and lawful execution the Will dated 25.10.2010 is required to be established by the legatees separately. Such a course of action has been adopted to avoid delay in disposal of the suit and multiplicity of proceedings between the parties. Due execution of the Will by Smt. Ushadevi, as alleged by plaintiff No.1 and his son, can be the subject matter of an issue and can be decided by the Trial Court, which is competent to try and decide the issue. By merely permitting Mahaveer Pradeep Desai to come on record as legal representative of the deceased plaintiff No.2 and the suit for partition and separate possession being decided in the presence of natural heirs of deceased plaintiff No.2, the rights of the defendants would not be affected. Even otherwise, under the summary enquiry held under Rule 5 of Order 22 of CPC, the genuineness and lawful execution 10 of the Will cannot be conclusively gone into by the Court and in view of the said factual situation and in order to avoid multiplicity of trials, the Trial Court while allowing I.A.No.8 in part, has observed that Mahaveer Pradeep Desai and plaintiff No.1 have to prove the Will separately. The approach of the Trial Court, in permitting Mahaveer Pradeep Desai to come on record and proceed with the partition suit along with the natural heirs and legal representative of plaintiff No.2, unless the Will is proved, neither the plaintiff No.1 nor Mahaveer Pradeep Desai, the alleged legatee can be granted a decree based on the said Will. If the due execution and genuineness of the said Will is not established during the course of trial, only plaintiff No.1 would be entitled to the decree as per his share and not himself and his son i.e., on the basis of they being legatees under the said Will.
10. In the case of Suresh Kumar Bansal Vs. Krishna Bansal, AIR 2010 SC 344, in the matter of impleadment of legal representatives in an eviction petition wherein the plaintiff died during the pendency of the suit 11 and the widow of the deceased, who is the natural heir of the deceased and another claiming to be the legatee under the Will of deceased plaintiff sought impleadment, the legatees having not been permitted to come on record on the ground that the execution of the Will was suspicious, while holding that the same was improper and would lead to further litigations, it has been held as follows:
"9. ......... The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order XXII Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the 12 proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings."
In view of the above, the decision in the case of Mary Joyce Poonacha, noticed supra, being on a different factual background has no application, since there is no dispute with regard to relationship of the parties in the instant case. The ratio of the decision of the Apex Court, notice supra, squarely applies to the present situation.
In the result, the writ petition being devoid of merit is dismissed. However, the Trial Court is directed to raise an additional issue by placing burden of proof on the plaintiff No.1 and legal representatives of the deceased plaintiff No.2 Mr. Mahaveer Pradeep Desai, to prove the 13 genuineness and lawful execution of the Will dated 25.10.2010 of Smt. Ushadevi and try the same along with other issues, by keeping in view the observations made supra. The suit having been instituted on 31.01.2006, being at the stage of recording of the evidence, the Trial Court is directed to decide the suit expeditiously and within a period of one year from the next hearing date of the suit.
No costs.
SD/-
JUDGE Ksj/-