Andhra Pradesh High Court - Amravati
Mandala Pedasamrajyam vs Mandala Chinnasamrajyam on 9 February, 2024
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.M.A.Nos.464 of 2019, C.R.P.Nos. 3145 OF 2019,
314 OF 2022 and 326 of 2022
COMMON JUDGMENT/ ORDER:
C.M.A.No. 464 of 2019 has been filed by the Appellants/
Plaintiffs, aggrieved by the Order dated 05.07.2019 passed in
I.A.No.1774 of 2017 in O.S.No. 238 of 2011 on the file of the
Court of the IV Additional District Judge, Guntur, (in short 'the
court below') which has been filed under Order IX, rule 9 of
C.P.C seeking to set aside the default dismissal order dated
31.03.2017 and restore the suit.
C.R.P.No. 3145 OF 2019 has been filed, aggrieved by the
order passed by the Court below dated 05.07.2019 in I.A.No.
1771 of 2017 in O.S.No. 238 of 2011, which has been filed
under Section 5 of Limitation Act to condone the delay of 178
days in filing the application to set aside the abatement and
receive the same.
C.R.P.No. 314 OF 2022 has been filed, aggrieved by the
order passed by the Court below dated 05.07.2019 in I.A.No.
1772 of 2017 in O.S.No. 238 of 2011, which has been filed
under Order XXII, rule 5, 6 and 9 of C.P.C to set aside the
abatement to the suit in non-filing the legal heirs petition in
respect of the deceased 1st plaintiff within time.
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CMA.No.464 of 2019 and batch
C.R.P.No. 326 OF 2022 has been filed, aggrieved by the
order passed by the Court below dated 05.07.2019 in I.A.No.
1773 of 2017 in O.S.No. 238 of 2011, which has been filed
under Order 22, Rule 3 and 28 of C.P.C to implead him as 2nd
plaintiff being the legal representative of deceased 1st plaintiff in
the suit and permit to him to amend the plaint.
2. Since the facts and issue involved in all the Civil
Miscellaneous Appeal and Civil Revision Petitions, I find it
expedient to decide these matters by a Common Judgment/
Order.
3. For the sake of convenience, C.R.P.No.326 of 2022 is
taken into consideration as a leading case.
4. The 2nd petitioner is the proposed 2nd plaintiff, being
the legal heir of the deceased 1st plaintiff before the court below
has filed the applications referred supra, contended that he is
the legal heir of the deceased 1st plaintiff. The deceased 1st
plaintiff by name Peda Sambrajyamma executed a Registered
Will dated 27.01.2010 bequeathing plaint schedule properties in
favour of the 2nd appellant herein i.e proposed 2nd plaintiff. By
virtue of said Will, he is entitled to come on record being the
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legal representative of deceased 1st plaintiff, since the suit is
filed for partition of the plaint schedule properties into two
equal shares and for allotment of one such share to the
deceased plaintiff.
5. The court below, after hearing submissions on both
sides dismissed the applications holding that the petitioner is
the husband of daughter of brother of the said Sambrajyam,
except himself, he has not narrated about the other legal heirs
of the deceased 1st plaintiff, except stating that he is the sole
legal heir of the said Sambrajyam. Further he is claiming the
property under the Will as legatee. Therefore the petitioner
cannot continue the suit as legal representative and it is left
open for the petitioner to file separate suit. As there are no legal
representatives, the suit gets abated and as already the suit is
dismissed as abated. Assailing the same, the present C.M.A and
C.R.Ps batch came to be filed.
6. Heard Mr. P. Vijaya Kiran, learned Counsel for the
Appellants/ Petitioners and Mr. B. Siva Kesava Reddy, learned
Counsel for the Respondents/ Respondents.
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CMA.No.464 of 2019 and batch
7. During hearing learned counsel for the appellants/
petitioners would contend that the court below ignoring the well
settled principles vehemently dismissed the applications filed by
the appellants/ petitioners, without appreciation of the facts
and circumstances of the case, which is quite contrary to the
provisions of under Order 22 of C.P.C and erroneously held that
the 2nd appellant/ petitioner cannot come on record as the legal
representative of the deceased 1st plaintiff. Further the court
below failed to see that there is actually no delay as the 2nd
appellant/ petitioner has filed an application under Order 1,
rule 10 of C.P.C vide C.F.R.No.448 of 2016 already, which was
returned with some queries raised by the office, later it was
represented. Ignoring the said facts, the court below dismissed
all the applications at once is highly illegal and arbitrary. Hence
the impugned orders of the court below are liable to be set
aside.
8. Whereas, learned counsel for the respondents
vehemently opposed to allow the C.M.A and C.R.Ps, as the court
below rightly observed that the 2nd petitioner is not a legal heir
of the deceased 1st plaintiff and further observed that the 2nd
petitioner has not shown the other legal heirs of the deceased
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CMA.No.464 of 2019 and batch
1st plaintiff, except claiming that the he is entitled to come on
record by virtue of alleged Will, which is untenable either in law
or on facts. Therefore, the court below rightly dismissed the
applications on merits. Hence, the 2nd petitioner is not entitled
to claim any reliefs in these matters and that the same are liable
to be dismissed.
9. Perused the record.
10. During the course of hearing, learned counsel for the
2nd appellant/ petitioner relied on a decision of the Hon'ble Apex
Court in "Mahendra Kumar v. Lalchand and Another"1,
wherein it was held as follows:
"7. Undisputedly, the appellant is a legal heir of his
mother Rambhabai. Therefore, his right to sue survives and
appellant was entitled to be substituted as legal
representative of deceased Rambhabai. However, the
question would be, whether Rambhabai has executed Will
dated 20th August, 1980, in favour of respondent No.2,
Shrikrishna, and if so, by not joining him whether the appeal
would abate? Respondent No.2 has not obtained probate,
hence considering the procedure prescribed under the above-
quoted Order XXII, Rule 5, there is no question of abatement
of appeal. It was for the respondent No.2, Shrikrishna
Chourasia, who claims that Will has been executed by the
deceased Rambhabai in his favour to file proper application
to be joined as party respondent by contending that he is
legal representative as the estate has devolved upon him on
AIR 2001 SC 807
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the basis of the Will. On such application being filed, the
Court was required to determine it under Order XXII, Rule 5.
This legal provision was completely overlooked by the High
Court and on this ground the impugned judgment and order
is not sustainable'.
11. Here in the instant case, the 2nd appellant/ petitioner
claiming that he is the legal representative of the deceased 1st
plaintiff and by virtue of the Will, said to have been executed by
the 1st plaintiff, he is entitled to come on record, which is
disputed by the respondents 2 and 3 in their counter before the
court below and it is the contention of the respondents that the
2nd petitioner is not the legal heir of the deceased 1st plaintiff
and if he wants to come as legal heir, he can agitate his claim in
a separate suit by establishing his right under the alleged Will.
12. It is further contention of the respondents that the
2nd appellant/ petitioner has not approached the court below
with proper documentary evidence and there is no proper
explanation in the affidavit how he is entitled to come on record
and also why the delay occurred. There is no cogent reasons in
his affidavit and also the case law relied by the 2nd appellant is
not at all applicable to the facts of the case. Hence the C.M.A
and also C.R.Ps batch is liable to be dismissed.
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13. No doubt, it is a settled law, when there is a dispute
with regard to legal representatives of the deceased, they ought
to have agitated the same before the competent court of law to
declare them as legal representatives of the deceased, then only
the right of the parties will be effected and looked into. Whereas
in the instant case, the 2nd appellant/ petitioner is the husband
of daughter of brother of the deceased 1st petitioner and he is
claiming that by virtue of alleged Will dated 27.01.2010 he
intends to come on record as 2nd plaintiff in the suit. Such an
attempt is bad in law, moreover, the decision relied by the 2nd
appellant/ petitioner is not at all applicable to the facts of the
case. In the said case, there is no dispute with regard to
relationship. Therefore the right to sue survives and entitled to
be substituted as legal representative of deceased.
14. Whereas in the instant case, there is a dispute with
regard to legal representative of the deceased 1st plaintiff and
that the 2nd appellant cannot straight away claim the relief,
without clarification or without declaring him as legal
representative of the deceased by a competent court of law.
Hence the case law submitted by the learned counsel for the
appellants is not at all applicable to the present case.
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15. Under the aforementioned circumstances, this Court
opined that there is no impropriety or irregularity committed by
the court below in the impugned orders and that interference of
this Court is unwarranted. It is made clear that if at all the 2nd
petitioner is having any grievance; he can file a suit before the
competent court of law for redressal of his grievance in
accordance with law, if so advised. In view of the said scenario,
the 2nd appellant/ petitioner is not entitled to claim any relief in
these matters and the same are deserves to be dismissed.
16. With the above discussion and observations, the
above Civil Miscellaneous Application and Civil Revision
Petitions batch are hereby dismissed by a Common Judge/
Order. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any,
pending shall stand closed.
________________________________
Dr.JUSTICE K. MANMADHA RAO
Date 09.02.2024.
KK
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CMA.No.464 of 2019 and batch
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.M.A.Nos.464 of 2019, C.R.P.Nos. 3145 OF 2019,
314 OF 2022 and 326 of 2022
Date: 09.02.2024.
KK
