Smt Lakkamma Vs Smt. Rayakka

SMT. KAMALAMMA W/O GIRIYAPPA AGED ABOUT 45 YEARS RESIDENT OF NARASAMBHUDHI, AGALI POST MADAKASHIRA TALUK ANANAHAPURA DISTRICT ANDHRA PRADESH STATE-515 301

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SMT. RAMAKKA W/O DASAPPA AGED ABOUT 58 YEARS RESIDENTS OF PHALARA VILLAGE GUDIBANDE MANDAL MADAKASHIRA TALUK ANANTHAPURA DISTRICT ANDHRA PRADESH STATE-515 271

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(IMPLEADED VIDE ORDER DATED 03.03.2025)

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SMT. JAYAMMA W/O NAGARAJ AGED ABOUT 53 YEARS RESIDENT OF MADUDI VILLAGE AGALI MANDAL, SREE SATHYA SAI DISTRICT ANDHRA PRADES STATE - 515 311

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(VIDE ORDER DATED 23.05.2023 APPLICATION I.A NO.1/2022 AGAINST RESPONDENT NO.6 IS DISMISSED)

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HC-KAR

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SMT. BHAGYAMMA W/O ERANNA AGED ABOUT 50 YEARS RESIDENT OF GOUNIPALLY VILLAGE MADAKASIRA MANDAL SREE SATHYA SAI DISTRICT ANCHRA PRADESH STATE-515 301

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(VIDE ORDER DATED 09.01.2024, APPLICATION I.A. NO.1/2022 AGAINST RESPONDENT NO.7 IS DISMISSED)

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SMT. SAROJAMMA W/O RAMANJANEYULU AGED ABOUTY 47 YEARS RESIDENT OF GOWDANAHALLI MADAKASIRA TALUK ANANTHAPRUA DISTRICT ANDHRA PRADESH STATE-515 301

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SMT. VIDYA W/O NAGENDRA AGED ABOUT 22 YEARS RESIDENT OF MAGENAHALLI MIDIGESHI HOBLI MADHUGIRI TALUK TUMKUR DISTRICT-572 133

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(RESPONDENT NOS.5, 8 AND 9 ARE IMPLEADED VIDE ORDER DATED 03.03.2025)

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…RESPONDENTS

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(BY SRI. K. SURYA PRAKASH RAO, ADVOCATE FOR R1 TO R4 & LRs OF RESPONDENTS; R5, R8 & R9 ARE SERVED AND UNREPRESENTED; VIDE ORDER DATED 23.05.2023 APPLICATION IN RESPECT OF R6 IS DISMISSED;

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VIDE ORDER DATED 09.01.2024 APPLICATION IN RESPECT OF R7 IS DISMISSED)

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HC-KAR

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(k) OF CPC, AGAINST THE ORDER DATED 16.11.2011 PASSED ON IA NO.2 IN O.A.NO.166/2008 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-V, MADHUGIRI, DISMISSING IA NO.2 FILED UNDER ORDER 22 RULE 3 OF CPC FOR IMPLEADING THE APPLICANT THEREIN AS LR OF THE DECEASED.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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The appellant/applicant has assailed the order dated 16.11.2011 passed on IA No.II by the Fast Track Court-V at Madhugiri, rejecting the application so filed by the applicant and ordered that the appeal stood abated.

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It is the case of the appellant before the Appellate Court in Regular Appeal No.166/2008 on the file of Fast Track Court-V, Madhugiri that, she being the applicant filed an application under Order 22 Rule 3 of CPC, to come on record as the legal representative of the appellant by name Lakshmidevamma, who died during the pendency of the appeal.

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It is stated in the application that, the appellant Lakshmidevamma died on 18.09.2008, leaving behind the applicant as sole legal heir. It is stated that, the appellant during her lifetime executed a Will dated 30.08.2001 and 27.10.2005 bequeathing her properties. It was the last Will of the appellant. It was applicant, who performed last rites of the deceased Lakshmidevamma. She had filed an application under Order 22 Rule 3 of CPC, to come on record as legal representative of the appellant.

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Before the Appellate Court, the said application was resisted by the respondent by filing detailed objections. It is contended that, the said Lakshmidevamma has no right to execute the Will or not to bequeath the suit property as her whims and fancies. The suit schedule property was the joint family property of herself and respondent. It is contended that, during the lifetime of Lakshmidevamma, she never whispered anything about the alleged Will. It is stated in the crossexamination in O.S.No.65/2003 that she was not aware of the

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applicant and her parenthood relationship etc,. Thus, it is contended that, with an ulterior motive to knock out properties

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of the respondent, now the applicant wants to come on record

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as a legatee under the Will. No rights have been devolved on the applicant to come on record. Thus, it is prayed by the respondent to dismiss the application.

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To substantiate the assertions made in the application, the applicant examined 3 witnesses i.e., herself as PW.1 and another as PW.2 and PW.3, who are attesting witnesses to the will. Got marked Exs.P1 and P2 in support of assertions made in the application. The respondent has not led any evidence to substantiate the objections so filed to the application.

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Learned Appellate Court, having heard the arguments of both the sides, raised the point for consideration and answered the same in the negative and ultimately dismissed the said application so filed by the applicant, Lakkamma and observed that the appeal stood abated. This is how, now the appellant/applicant is before this Court challenging the impugned order dated 16.11.2011.

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The record of this appeal also reveals that respondent died during the pendency of this appeal and her

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legal representatives are brought on record in the shape of respondent Nos.1 to 9. Accordingly, cause-title came to be amended.

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Trial Court records is secured.

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Heard the arguments of learned counsel for the

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appellant and learned counsel for the respondents on this application.

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It is admitted fact between both the sides that, there was an appeal filed by the appellant Lakshmidevamma D/o Yerrobanna @ Yarranna, being aggrieved by the judgment so passed in O.S.No.65/2003. It is also an admitted fact that during the pendency of the appeal in R.A.NO.166/2008, original appellant Lakshmidevamma died. After her demise, the present applicant by name Lakkamma filed an application in the shape of I.A No.II under Order 22 Rule 3 of CPC, to come on record as a legatee under the Will, alleged to have been executed by the deceased appellant on 30.08.2001 and 27.10.2005. It is stated in the application that during the pendency of the appeal, the appellant died on 18.09.2008 and as the appellant had executed the Will in favour of the

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applicant, the applicant wants to come on record as the legatee under the Will to prosecute the appeal. This application was contested by the respondents and denied entire assertions made in the application. The learned Appellate Court believing the objections of the respondents has dismissed the application.

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Learned counsel for the appellant further submits that, the scope of Order 22 Rule 10 is very much limited. As per this provision, it is the procedure in case of assignment before final order in the suit, it applies to appeal also. He submits that, just to prosecute the appeal; applicant wants to come on record as a legatee under the Will. To substantiate the execution of the said Will, applicant has examined two witnesses and even applicant has also entered the witness box. He further submits that, as the scope of enquiry is very much limited, learned Appellate Court ought not to have dismissed the application and would have permitted the applicant to come on record to prosecute the appeal as a legatee under the Will.

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He is fair enough to submit that, even the applicant is under obligation to prove the genuineness of the Will during the

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course of the trial. Therefore, as a limited question is involved with regard to the devolution of the interest in the scheduled property in question, the learned Appellate Court ought not have dismissed the application. In addition to the grounds urged in the appeal memo, he prays to allow this appeal and set aside the impugned order.

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As against this submission, learned counsel for the respondents, with all vehemence submits that, it is not at all proved that this applicant is the relative of the appellant, so also he submits that this applicant is stranger to the family of the respondents. If that is so, there was no occasion for the deceased appellant to execute any Will. Even the evidence spoken to by the witnesses deposed ignorance with regard to the relationship. He would further submit that, in the year 2012, a suit is filed on the file of the Civil Judge Pavagada in O.S.No.83/2012 seeking partition and separate possession of the scheduled properties. In the said suit, the present appellant is also party. If at all the applicant has any rights in the property, she can very well agitate her grievance in the said suit. Therefore, this appeal does not survive for

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consideration in view of the pendency of O.S.No.83/2012. In addition to the objections filed to the application, so also the reasons assigned by the Appellate Court, he submits that this appeal is liable to be dismissed.

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Having heard the arguments of both counsels and on perusal of the materials placed on record, the only point that would arise for my consideration is:

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"Whether the impugned order dated 16.11.2011 passed in R.A.No.166/2008 by the Fast Track Court-V at Madhugiri is not sustainable in the eyes of law?"

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Evidently the applicant filed an application under Order 22 Rule 3 of CPC before the Appellate Court, to come on record as a legal heir of the original deceased appellant. The applicant claimed his right in the property by virtue of the Will. The applicant would have invoked the provisions of Order 22 Rule 10 of CPC and not Order 22 Rule 3 of CPC. Mere quoting a wrong provision of law would not defeat the right of the plaintiff to seek such an order. If the provisions of Order 22 Rule 10 is scrupulously perused, the provisions of this order is based upon the principles that, the trial of a suit or an appeal cannot be

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terminated merely because interest of a party on the subject matter of the suit has devolved upon another during the pendency of the suit. Such a suit may be continued against the person acquiring interested with the leave of the Court. By filing interim application No.II, the applicant has sought the leave of the Court to prosecute the appeal based upon the so called Will alleged to have been executed by the original appellant. So the term devolution so stated in Order 22 Rule 10 of CPC, is not the same as referred to a definition of the legal representative as defined in Section 2(11) of CPC. It only means "devolution of the interest of the person, who instituted the suit". If the transfer of the property take place may be by way of gift or execution of the Will, it is a case of the devolution of interest and there is no question of any abatement on the death of the original appellant. Therefore, the relative scope of Order 22 Rule 10 of CPC is in the case of assignment, creation or devolution of interest during the pendency of the suit. The Hon'ble Apex Court in catena of judgments has held that, this provision is independent of the provision of Order 22 Rule 10 of CPC. Rule 10 refers to “devolution of any interest” during the pendency of the suit. In such a case, the Court can grant leave

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to prosecute the suit against the person to or upon whom such interest has been devolved. Therefore, the relative scope of Order 22 Rule 10 of CPC is very much wide and whether right to continue the suit upon whom the interest has devolved during the pendency of the suit have been come up for consideration before the Hon'ble Apex Court in various judgments, especially in case of M/S ABK TRADERS V. KERALA STATE CIVIL SUP. CORPORATION LTD., reported in 2013 (15) SCC 217 . Therefore, now the respondents cannot contend that the applicant has no locus.

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Even it is held by the Hon'ble Apex Court as noted by the Appellate Court in its impugned order that, when application is filed under Order 22 Rule 10 of CPC no detailed enquiry at the stage of granting leave is contemplated. It is so stated in the judgments of the Hon'ble Apex Court reported in AMITH KUMAR SHAW AND ANOTHER V. FARIDAA KHATOON AND ANOTHER reported in 2005 (3) KCCR 1834. That means, any person who includes a person who intermediates with the estate of the deceased party in a suit can be his legal representative for the purpose of continuation

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of the suit. Evidently appeal is the continuation of the suit. The learned Appellate Court has not appreciated the position of law as well as the other aspect of the case and simply has opined that the Will is a created one. At the time of deciding such application, no such findings are warranted. By observing so, the learned Trial Court has dismissed the application. In my considered view, the very rejection of the application is incorrect and requires to be interfered by this Court. If the applicant comes on record as a legal representative of the original appellant based upon the Will, the ultimate burden is on the appellant to prove the genuineness of the said Will and again it requires detailed enquiry.

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PWs.2 and 3 have stated about their presence when

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the said Will was executed. For the purpose of deciding said application, such evidence is very much sufficient. Even the evidence of PWs.1 to 3 is not rebutted by the respondents by adducing any evidence. Therefore, the impugned order requires interference by this Court. Consequentially, the application so filed by the applicant in the shape of I.A.No.II in R.A.No.166/2008 pending on the file of then Fast Track Court-V

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at Madhugiri deserves to be allowed and the impugned order is liable to be set aside. The applicant be permitted to come on record as the legatee under the Will and it is for the appellant to prove the genuineness of the Will so stated in her application. In view of the above, I record my findings on the above point in the affirmative.

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Resultantly, I pass the following:

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ORDER

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(i) The Miscellaneous First Appeal is allowed.

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(ii) The impugned order dated 16.11.2011 passed by the then Presiding Officer; Fast Track CourtV at Madhugiri in R.A.No.166/2008 is hereby set aside.

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(iii) The application i.e., I.A.No.II filed under Order 22 Rule 3 of CPC be read as Order 22 Rule 10 of CPC is allowed.

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(iv) The applicant is permitted to come on record as legatee under the Will to prosecute the appeal.

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(v) The order of dismissal of appeal as abated is set aside.

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(vi) The R.A.No.166/2008 is restored to its own file.

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(vii) As the appeal is of the year 2008, the Appellate Court is requested to dispose of the appeal expeditiously with all its promptitude.

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It is submitted by the learned counsel for both parties that, now there is an establishment of the District Court at Madhugiri and the so called Fast Track Court is already closed. Therefore, this appeal may be heard by the Additional District and Sessions Judge, Tumkur sitting at Madhugiri.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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AM

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List No.: 1 Sl No.: 28

Smt Lakkamma v. Smt. Rayakka

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Smt Lakkamma v. Smt. Rayakka

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