Allowed

Malladi Venkata Bhaskaramma [died] v. Madhira Manikyamba

Telangana HC17 Jul 2013CRP/4625/2010

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition, setting aside the lower court's order rejecting the petitioner's request to be added as a legal representative plaintiff. Relying on Suresh Kumar Bansal, the court held that the genuineness of a Will need not be conclusively proven to grant impleadment, though the dispute remains open for determination during the trial.

What did the court decide?

The impugned order is set aside. The petitioner shall be added as the 2nd plaintiff, and the suit must be heard and decided within six months.

Malladi Venkata Bhaskaramma [died] Vs Madhira… — Succession and Inheritance | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

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Civil Revision Petition No.4625 of 2010

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ORDER:

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This CRP, under Article 227 of the Constitution of India, is filed by the 2^nd petitioner in I.A.No.572 of 2008 in O.S.No.118 of 2004 aggrieved by the order passed by the Senior Civil Judge, Tanuku, dated 16.07.2010.

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I.A.No.572 of 2008 was filed by the 2^nd petitioner under Order 22 Rule 3 r/w. Section 151 CPC and Rule 28 of the Civil Rules Practice praying that the 2^nd petitioner be added as the 2^nd plaintiff in the main suit as a legal representative of the deceased-sole plaintiff; and to amend the plaint by adding para.4-A in the plaint as stated in the petition.

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In the order under revision the Court below noted the contention of the 2^nd petitioner that she was the absolute owner of the suit schedule property by virtue of the Will dated 15.09.1993 executed by the 1^st plaintiff in her favour; the said Will came into force on the death of the 1^st plaintiff; and she was, therefore, entitled to be added as a party to the suit, and to proceed with the suit. The Court below also noted that the respondents had disputed the legality and the genuineness of the Will based on which the 2^nd petitioner had set up her claim over the plaint schedule property.

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The Court below held that, unless and until the legality and the genuineness of the Will was established by examining any other witnesses, it could not be said that the 2^nd petitioner was entitled to be arrayed as a party to the suit and to proceed with the suit.

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Sri M.V.Durga Prasad, Learned Counsel for the petitioner, would draw attention of this Court to the averments in the plaint filed, in

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O.S.No.118 of 2004, by the original plaintiff to contend that the 1^st plaintiff had herself referred to the subject Will in the plaint; the genuineness of the Will could not, therefore, be in doubt; even otherwise determination of the question as to who was the legal representative of the deceased plaintiff, under Order 22 Rule 5 CPC, is only to bring the legal representatives on record for the limited purpose of filing the Suit; an order, permitting the 2^nd petitioner to be arrayed as the plaintiff in the Suit, would not operate as res judicata; and the interse disputes between the rival legal representatives would be independently tried and decided in the Suit.

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Both Sri V.L.G.K.Murthy and Sri Merchand Noori, Learned Counsel appearing on behalf of the respondents, would submit that the order of the Court below did not suffer from any infirmity, and did not necessitate interference; the 2^nd petitioner could not be arrayed as the sole plaintiff unless the genuineness of the Will was determined in the first instance; and, if this Court were to permit the 2^nd petitioner to come on record as the sole plaintiff in O.S.No.118 of 2004, the Court below should be directed to hear the suit, which relates to the year 2004, with utmost expedition and within a specified time frame.

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In Suresh Kumar Bansal v. Krishna Bansal^[1] , the Supreme Court observed:-

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“….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.

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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

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suits, the suits would be delayed, by which only the tenants will be benefited.

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In order to shorten the litigation and to consider the rival claims of the parties, in our view, the 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.

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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.”

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In its judgment aforementioned the Supreme Court observed that, in order to shorten the litigation and to consider the rival claims of the parties, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who were claiming on the basis of the Will of the deceased plaintiff, so that all the legal representatives can represent the estate of the deceased for the ultimate benefit of the real legal representatives and, if this process is followed, this would also avoid delay in disposal of the Suit.

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It is evident, therefore, that even in cases where the genuineness of the Will is in dispute, a person, claiming to be the legatee under the Will, is also entitled to come on record as a party to the Suit. In the present case, as the sole plaintiff in the Suit is no more, the Court below erred in rejecting the petitioner’s request that she be brought on record as a plaintiff in the Suit. The genuineness or otherwise of the Will cannot be said to have been conclusively determined only because the petitioner is arrayed as the plaintiff in the Suit. The question regarding the genuineness or otherwise of the Will is left open to be examined by the Court when the Suit in O.S.No.118 of 2004 is finally heard.

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The Order, under revision, is set aside and the 2^nd petitioner shall be arrayed as the 2^nd plaintiff in the Suit. As the suit relates to the year 2004, the Court below is requested to hear and decide the Suit at the earliest, in

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any event not later than six months from the date of receipt of a copy of this order.

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The Civil Revision Petition is disposed of accordingly. The miscellaneous petitions pending, if any, shall also stand disposed of. There shall be no order as to costs.

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_______________________________ (RAMESH RANGANATHAN, J) Date:17.07.2013. cs

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[1] (2010) 2 SCC 162

Malladi Venkata Bhaskaramma [died] v. Madhira Manikyamba

Case brief

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Malladi Venkata Bhaskaramma [died] v. Madhira Manikyamba

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