Supreme Court of India
R. KRSNA MURTII versus R. R. JAGADESAN on 21 July 2022
490
[2022] 7 S.C.R. 490
SUPREME COURT REPORTS
[2022] 7 S.C.R.
R. KRSNA MURTII
A
v.
R. R. JAGADESAN
JULY 21, 2022
B
(Civil Appeal No. 4832 of 2022)
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908 – Legal representative –Substitution of – Appellant was the power of attorney holder of hisCmother who filed a suit – Suit was being prosecuted by the appellantas the power agent – Appellant’s mother (plaintiff) expired –Appellant sought his substitution in the suit as a legal representative– The said application was dismissed by the trial Court after takinginto consideration that there were other legal heirs of the deceasedand without impleading them, the appellant was not entitled toDproceed further – High Court dismissed the revision petition filedagainst the order of trial Court – On appeal, held: The appellant isadmittedly the son of the deceased plaintiff, thus his entitlement,whether by way of testamentary succession or non-testamentarysuccession, as being legal heir to deceased cannot be denied – IfEany inquiry was required to be made, it could have been madeu/Or.XXII, r.5 of CPC by the trial Court, but the application madeby the appellant could not have been dismissed altogether –Impugned orders set aside and application restored forreconsideration by the trial Court.
FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 4832of 2022.
From the Judgment and Order dated 26.05.2021 of the High Courtof Judicature at Madras in CRP (PD) No. 1158 of 2021.
GPetitioner-in-person.
G. Balaji, Adv. for the Respondent.
H
The Order of the Court was passed by
DINESH MAHESHWARI, J.
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1. Leave granted.
2. We have heard the appellant appearing in person and the learnedcounsel appearing for the sole respondent.
3. Shorn of unnecessary details, the relevant aspects of the presentmatter are that the appellant herein had been the power of attorneyholder of his mother, who had filed the subject suit for declaration andperpetual injunction and alternatively, for declaration and recovery ofpossession against the respondent. The suit was being prosecuted bythe appellant as the power agent of the plaintiff. The said plaintiff, motherof the appellant, expired on 10.01.2020. Thereafter, the appellant movedan application, being I.A. No. 1 of 2020, seeking his substitution aslegal representative of the deceased plaintiff with the assertion that theplaintiff, his mother, had executed a Will dated 13.06.2016 in his favourwith respect to all her estate and the said Will was registered with theSub-Registrar Office, Perambalur.
4. This application was considered by the learned Sub-ordinateJudge, Perambalur in the order dated 29.03.2021, wherein the submissionson behalf of the defendant-respondent were taken into considerationthat the appellant was not the only legal heir of the deceased plaintiff;and that the deceased had another son and one daughter and withoutimpleading them, the appellant was not entitled to proceed further. Thelearned Trial Judge was of the view that from the Will itself, existence ofother son and daughter of the deceased plaintiff was evident; and thatthe execution and attestation were not the questions to be decided at thegiven stage.
5. Having regard to the factum of existence of other legal heirs ofthe deceased plaintiff, the learned Trial Judge straightway came to theconclusion that the application I.A. No. 1 of 2020 moved by the appellantfor substitution was required to be dismissed and ordered accordingly.
6. The appellant preferred a revision petition before the High Courtagainst the order aforesaid. The High Court proceeded to dismiss thesaid revision petition on the consideration that the petitioner i.e., the presentappellant, ought to have taken steps for impleading the other legal heirs A
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Aof the late plaintiff either as co-plaintiffs or as defendants to enforce hisright over the property in question.
7. The order aforesaid has been questioned by the appellant beforeus, inter alia, with the submission that the Trial Court and High Courtwere not justified in rejecting the prayer made by the appellant for hisBown substitution as the legal representative of deceased plaintiff and inany case, the application could not have been rejected on the groundstaken and on the reasons assigned by the learned Trial Judge andapproved by the High Court.
8. Learned counsel for the respondent has attempted his best toCsupport the orders impugned, again and essentially with the submissionsthat at the given stage and in view of the factual aspects involved, otherlegal heirs of the deceased plaintiff could not have been left out frombeing impleaded as her legal representatives in the subject suit.
9. Having examined the matter in its totality and having giventhoughtful consideration to the rival submissions, we are unable to approveDthe orders impugned.
10. Leaving aside any other aspect of the matter, it is but apparentthat the appellant is admittedly the son of the deceased plaintiff. Thus,his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiffEcannot be denied. That being the position, the application made by himfor substituting himself as the legal representative of the deceased plaintiffcould not have been declined by the Trial Court.
11. In this regard too, it would be relevant to point out that if anyinquiry was required to be made, the Trial Court could have adoptedFthe course envisaged by Rule 5 of Order XXII of the Code of CivilProcedure, 1908 but, in any case, the application made by the appellantcould not have been dismissed altogether.
12. That being the position, we set aside the orders impugned andrestore the said application for re-consideration by the Trial Court inGaccordance with law.
13. The appeal is allowed in the above terms. No order as tocosts.
Ankit GyanH(Assisted by : Aarsh Choudhary, LCRA)