Allowed

Yesodara v. Pathmakshi

Kerala HC27 Sept 2022OP(C)/389/2021

Case brief

AI extract

What is this about?

This original petition under Article 227 challenged an order allowing sister-defendants to be impleaded as additional plaintiffs in a deceased plaintiff's suit. The High Court held that the lower court illegally postponed the necessary enquiry to determine legal representative status and set aside the order.

What did the court decide?

Ext P4 order set aside; lower court directed to decide legal representative status and dispose of application by 30.11.2022.

Yesodara Vs Pathmakshi — Civil Procedure and Limitation | Kerala HC (2022)

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OP(C) No.389 of 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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TUESDAY, THE 27TH DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944

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OP(C) NO. 389 OF 2021

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AGAINST THE ORDER/JUDGMENT IN IA 3/2020 IN OS 315/2017 OF PRINCIPAL

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MUNSIFF,ALAPPUZHA

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PETITIONER/S:

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YESODARA,AGED 70 YEARS,D/O. LATE KARUNAKARAN, ALISSERIL HOUSE,
PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688004.
BY ADVS.
K.S.HARIHARAPUTHRAN
BHANU THILAK

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RESPONDENT/S:

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1 PATHMAKSHI,W/O. BHASKARAN, KODIVEEDU, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004.

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2 PADMAJAKSHI,W/O. BRAHMANADAN, PANDARTHURUTHU, AMBALASSERI HOUSE, CHERIYAZHIKKAL P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690 518.

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3 JAYAMOHAN,S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004.

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4 SIVANKUNJU,S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004.

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5 ANITHA VENU,W/O. VENU, KATTAMADOM HOUSE, VALIYAZHIKKAL, KAYANKULAM FROM S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004.

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6 OMANA,W/O. HARIHARAN, UNNEERAMPARAMBIL, VYKKOM, KOTTAYAM DISTRICT FROM S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004.

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7 INDIRA,W/O. SUBRAMANIAN, POONKAVIL, KATTILKADAVU P.O., KARUNAGAPPALLY P.O.-690 518.

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8 UMA,W/O. RAJAN, PUTHENPURAYIL, THOTTAPPALLY P.O., PURAKKAD VILLAGE, ALAPPUZHA DISTRICT-688 561.

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9 VASANTHAKUMARI,W/O. LATE JAYAPRAKASH, S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA.

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10 KRISHNAPRAKASH,S/O. LATE JAYAPRAKASH, S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004.

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11 GAYATHRI,D/O. JAYAPRAKASH, PAVIZHAM PARAMBIL, PUTHETHURA P.O., KOLLAM DISTRICT, FROM S/O. KARUNAKARAN, ALISSERIL HOUSE, PUNNAPRA MURI, PUNNAPRA VILLAGE, PUNNAPRA P.O., ALAPPUZHA-688 004. BY ADVS. SMT.C.G.BINDU - R1 AND R2 SMT.AJITHA C.G. - R1 AND R2

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON THE

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SAME DAY DELIVERED THE FOLLOWING:

OP(C) No.389 of 2021

C.S DIAS,J.

--------------------------OP(C) No.389 of 2021

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-----------------------------

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Dated this the 27^th day of September, 2022.

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JUDGMENT

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Aggrieved by Ext P4 order passed in IA No.3/2020 in OS No.315/2017 of the Court of the Principal Munsiff, Alappuzha, the first defendant in the suit has filed the original petition under Article 227 of the Constitution of India. The respondents 1 and 2 are the petitioners in the application and respondents 3 to 11 are the defendants 2 to 10 in the suit.

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The relevant facts, in a nutshell, for the determination of the original petition are: Late Balakrishnan had through his guardian filed the above suit against the petitioner and respondents 3 to 7, for a decree of partition. The suit is resisted by the petitioner and respondents 3 to 11. Pending the suit, Balakrishnan died on 27.5.2020. The respondents 1 and 2 filed Ext P2

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OP(C) No.389 of 2021

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application, to implead them as additional plaintiffs 2 and 3. The application was also resisted by the petitioner and respondents 3 to 11 by filing Ext P3 written objection. The court below, by the impugned Ext P4 order, allowed Ext P2 application. Ext P4 is manifestly illegal, improper and irregular. Hence the original petition.

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Heard; Sri. K.S Hariharaputhran, the learned counsel appearing for the petitioner and Smt.C.G Bindu, the learned counsel appearing for the respondents 1 and 2. Service is complete on the others.

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The point is whether there is any error or illegality in Ext P4 order.

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Late Balakrishnan had filed Ext P1 plaint for partition of the plaint schedule property. The suit is resisted by the petitioner and respondents 3 to 11. Pending the suit, Balakrishnan died on 27/5/2020. The respondents 1 and 2, claiming to be the sisters of Balakrishnan, filed Ext P2 application to get themselves

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OP(C) No.389 of 2021

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impleaded as additional plaintiffs 2 and 3. The petitioner and respondents 3 to 11 filed Ext P3 written objection, inter alia, contending that the respondents 1 and 2 are not the legal heirs of the deceased and are not entitled to inherit the property of the deceased Balakrishnan. Therefore, the application may be dismissed.

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The court below, after appreciating Exts P2 and P3, allowed Ext P2 application, by impleading the respondents 1 and 2 as additional plaintiffs 2 and 3, in the light of Order 22 of the Code of Civil Procedure (in short ‘Code’). However, the court below has observed that, if there are some other persons legally entitled to represent or succeed the interest of the deceased, the same can be decided at a later stage.

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Order 22 Rule 3 (1) of the Code reads as follows:

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3. "Procedure in case of death of one of several

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plaintiff or of sole plaintiff"

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(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 surviving plaintiff dies

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OP(C) No.389 of 2021

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and the right to the 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.

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Who is the legal representative is defined under

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Sec.2(11) of the Code, which is extracted below:

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(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 deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

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Order 22 Rule 5 of the Code lays down the procedure to be followed in deciding who is a legal representative. It is profitable to extract Order 22 Rule 5, which reads as follows:

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5. "Determination of question as to legal representative"

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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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OP(C) No.389 of 2021

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In the case at hand, undisputedly, Balakrishnan was unmarried and issueless. The respondents 1 and 2 claim to be his sisters. Accordingly, invoking Order 22 Rule 3 of the Code, the respondents 1 and 2 filed Ext P2 application. The petitioner and the respondents 3 to 11 resisted Ext P2 application through Ext P3 objection, inter alia, contending that the respondents 1 and 2 are not the legal heirs of the deceased.

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Undisputedly, the court below, without conducting any enquiry whether the respondents 1 and 2 are the legal representatives of the deceased, passed the impugned order postponing the enquiry as contemplated under Order 22 Rule 5 of the Code to a later date, especially when the petitioner and respondents 3 to 11 have raised a dispute contending that the respondents 1 and 2 are not the legal heirs of the deceased.

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The terminologies ‘legal representative’ and ‘legal heir’, though look and sound deceptively similar,

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OP(C) No.389 of 2021

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they are not under law. The terminology ‘legal representative’ is defined under Sec.2(11) of the Code and has a wider connotation. Whereas, the term legal heir is a person who is defined in the laws of succession of a deceased person(s).

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Notwithstanding the fact that the petitioner and respondents 3 to 11 have alleged that the respondents 1 and 2 are not the legal heirs of the deceased, it was obligatory on the part of the court below to have decided whether the respondents 1 and 2 are the legal representatives of the deceased plaintiff, so as to permit them to continue to prosecute the suit, as provided under Order 22 Rule 5 of the Code.

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The above legal position is no longer res integra, in view of the law laid down by this Court in Kunchikavu vs.Kesavan Nayar [1959 KHC 150] and Kalliani Amma vs.Madhavi Amma [1964 KHC 8].

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OP(C) No.389 of 2021

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In the above factual and legal background, the postponement of enquiry by the court below to a later date is improper and irregular. The court below, keeping in mind the provisions under Order 22 Rules 3 and 5 of the Code and the definition under Sec.2(11) of the Code, ought to have decided whether or not the respondents 1 and 2 are the legal representatives of the deceased Balakrishnan, and only then permitted them to continue to prosecute the suit. Hence, I hold that Ext P4 order is erroneous and unsustainable in law, is liable to be interfered by this Court under Article 227 of the Constitution of India.

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In the result, I allow the original petition in the following manner:

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(i) Ext P4 order is set aside.

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(ii) The court below is directed to reconsider

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Ext P2 application, after adverting to the observations made above and Ext P3 written

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OP(C) No.389 of 2021

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objection filed by the petitioner and respondents 3 to 11, and decide whether the respondents 1 and 2 are the ‘legal representatives’ of the deceased.

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(iii) As the suit is of the year 2017, the court below shall make every endeavour to consider and dispose of Ext P2 application, in accordance with law, as expeditiously as possible, at any rate on or before 30.11.2022.

sd/-

sks/27.9.2022

C.S.DIAS, JUDGE

OP(C) No.389 of 2021

APPENDIX OF OP(C) 389/2021

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PETITIONER EXHIBITS
EXHIBIT P1TRUE COPY OF THE PLAINT IN O.S.315/2017
DATED 9.3.2017 ON THE FILES OF THE
MUNSIFF'S COURT, ALAPPUZHA.
EXHIBIT P2TRUE COPY OF THE I.A.3/2020 DATED
10.6.2020 IN O.S.315/2017 OF THE MUNSIFF'S
COURT, ALAPPUZHA.
EXHIBIT P3TRUE COPY OF THE OBJECTIONS DATED 1.7.2020
IN I.A.3/2020 DATED 10.6.2020 IN O.S
315/2017 OF THE MUNSIFF'S COURT,
ALAPPUZHA.
EXHIBIT P4TRUE COPY OF THE ORDER DATED 17.8.2020 IN
I.A.3/2020 IN O.S.315/2017 ON THE FILES OF
THE MUNSIFF COURT ALAPPUZHA.

Yesodara v. Pathmakshi

Case brief

What is this about?

What did the court decide?

Yesodara v. Pathmakshi

Case brief

What is this about?

What did the court decide?

What the court decided

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