Karnataka High Court
Smt. Sharadamma vs M S Gopala Reddy on 15 December, 2021
Bench: K.S.Mudagal
M.F.A.No.4316/2021
1 C/W M.F.A.No.4132/2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.4316/2021 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.4132/2021 (CPC)
M.F.A.NO.4316/2021:
BETWEEN:
1. SMT SHARADAMMA
W/O SRINIVASA REDDY
AGED ABOUT 55 YEARS
R/AT AIMAREDDYHALLI VILLAGE
KASABA HOBLI
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT - 563 125
2. ANJANEYA REDDY
S/O NEELAKANTA REDDY
AGED ABOUT 16 YEARS
MINOR REPRESENTED BY
NATURAL MOTHER AND GUARDIAN
SMT SHYAMALAMMA
W/O NEELAKANTA REDDY
AGED ABOUT 47 YEARS
3. RANGANATHA REDDY
S/O RAMA REDDY
AGED 7 YEARS
MINOR REPRESENTED BY NATURAL
MOTHER AND GUARDIAN
SMT SAVITHRAMMA
W/O RAMA REDDY
AGED ABOUT 46 YEARS
M.F.A.No.4316/2021
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APPELLANT NOS.2 AND 3 ARE
R/OF CHINTAMANI TOWN
CHIKKABALLAPURA DISTRICT - 563 125
...APPELLANTS
(BY SRI H.V.RAMACHANDRA RAO, ADVOCATE)
M.F.A.NO.4132/2021:
BETWEEN:
1. DHEERAJ
S/O BABU REDDY
AGED ABOUT 15 YEARS
MINOR BY GUARDIAN AND NATURAL
MOTHER SMT. ANITA,
W/O BABU REDDY
AGED ABOUT 42 YEARS
2. KUM.SANJANA
D/O BABU REDDY
AGED ABOUT 18 YEARS
BOTH APPELLANTS ARE R/OF
MALAPALLI VILLAGE
CHINTAMANI - 563 125
...APPELLANTS
(BY SRI H.V.RAMACHANDRA RAO, ADVOCATE)
AND:
1. M.S. GOPALA REDDY
S/O SRINVASA REDDY
AGED ABOUT 37 YEARS
R/OF MALAPPALLI VILLAGE
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT - 563 125
2. M.S.RAJESH
STATED TO BE ADOPTED SON OF
DODDAPPODU
AGED ABOUT 37 YEARS
R/AT MALAPPALLI VILLAGE
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT - 563 125
M.F.A.No.4316/2021
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3. G.VENKATAREDDY
S/O LATE DODDAREDDY'S GOPALAREDDY
SINCE DEAD BY LRS
3(A) SMT DEVAMMA
W/O LATE G.VENKATAREDDY
AGED ABOUT 75 YEARS
3(B) SMT SAVITHRAMMA
W/O LATE G.VENKATAREDDY
AGED ABOUT 55 YEARS
3(C) SMT LAKSHMIDEVAMMA
SINCE DEAD BY HER LRS
3(C)(A)SMT ANITHA
AGED ABOUT 42 YEARS
3(C)(B)BABU B
AGED ABOUT 43 YEARS
3(C)(C)ANIL
AGED ABOUT 38 YEARS
3(C)(D)PRABHU
AGED ABOUT 36 YEARS
ALL ARE R/AT MALAPALLI VILLAGE
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT - 563 125
4. DODDAPPODU
SINCE DEAD BY LRS
4(A) NARAYANAMMA
W/O LATE DODDA APPODU
R/AT MALAPPALLI VILLAGE
CHINTAMANI TALUK 563 125
5. G. SRIRAMAREDDY
SINCE DEAD BY LRS
5(A) MUNIYAMMA
W/O LATE SRIRAMAREDDY
AGED ABOUT 61 YEARS
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5(B) SMT M.S.LAKSHMI
D/O LATE SRIRAMAREDDY
AGED ABOUT 38 YEARS
5(C) SMT M.S.NAGAMANI
D/O LATE SRIRAMA REDDY
AGED ABOUT 41 YEARS
5(D) M.S.ERAPPAREDDY
S/O LATE SRIRAMAREDDY
ALL ARE R/AT N.R. EXTENSION
CHINTAMANI TOWN - 563 125
6. G. SRINIVASAREDDY
S/O LATE DODDAREDDY'S GOPALAREDDY
AGED ABOUT 64 YEARS
R/AT MALAPPALLI VILLAGE
CHINTAMANI TOWN - 563 125
7. CHIKKAVENKATAMMA
W/O VEERAPPAREDDY
R/AT IMAREDDIHALLI VILLAGE
CHINTAMANI TALUK - 563 125
8. BACHAPPA
SINCE DEAD BY HIS LRS
8(A) VENKATAREDDY
S/O LATE BACHAPPA
AGED ABOUT 78 YEARS
8(B) VENKATESH
S/O LATE BACHAPPA
AGED ABOUT 73 YEARS
8(C) SUMAN
S/O LATE BACHAPPA
AGED ABOUT 33 YEARS
8(D) NARAYANASWAMY
SINCE DEAD BY LRS
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8(D)(I)SHANTHAMMA
W/O LATE NARAYANASWAMY
AGED ABOUT 53 YEARS
8(D)(II)MANJULA
D/O LATE NARAYANASWAMY
AGED ABOUT 41 YEARS
8(D)(III)VINOD
S/O LATE NARAYANASWAMY
AGED ABOUT 38 YEARS
8(D)(IV)SHASHIKUMAR
S/O LATE NARAYANASWAMY
AGED ABOUT 24 YEARS
8(D)(V)SANTOSH
S/O LATE NARAYANASWAMY
AGED ABOUT 27 YEARS
LRS 8(D)(I) TO 8(D)(V) ARE
R/OF GOPALLI VILLAGE
NANDIGANAHALLI POST
MURUGAMALLA HOBLI
CHINTAMANI TALUK - 563 125
8(E) LAKSHMANA REDDY
S/O LATE BACHAPPA
AGED ABOUT 68 YEARS
R/AT ANJANI EXTENSION
CHINTAMANI TOWN - 563 125
9. D.K. SHANKARAREDDY
S/O LATE D.KRISHNAREDDY
AGED ABOUT 68 YEARS
R/AT DODDAPALLI VILLAGE
RONUR HOBLI
SRINIVASPUR TALUK - 563 155
10. MRS. LATHA
D/O SRINVASAREDDY
W/O VIJAYKUMAR
AGED ABOUT 50 YEARS
R/AT NO.6, 2ND CROSS
SEENAPPA LAYOUT
M.F.A.No.4316/2021
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HENNUR VILLAGE
KALYANA NAGARA POST
BANGALORE - 560 043
11. M.S. VIJAYALAKSHMI
D/O SRINIVASAREDDY
W/O RAMESH YELLAPPA
AGED ABOUT 47 YEARS
R/AT 98, KENDRIYA VIHAR
YELAHANKA, BANGALORE - 560 064
12. M.S. LAKSHMISHREE
D/O SRINVASAREDDY
W/O RAM J
AGED ABOUT 40 YEARS
NO.17163, FAIRLIC ROAD
SAN DIEDGO, CALIFORNIA
USA - 22434. ...RESPONDENTS
(COMMON)
(BY SRI K.S.RAMESH , ADVOCATE FOR C/R1 & 2;
VIDE ORDER DATED 08.12.2021, NOTICE TO R3 TO
R12 IS DISPENSED WITH)
THESE MFAs ARE FILED UNDER ORDER 43 RULE 1(l)
OF CPC PRAYING TO SET ASIDE THE ORDER DATED
14.06.2021 PASSED ON I.A.NOS.16 & 17 IN
R.A.NO.121/2012 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA,
SITTING AT CHINTAMANI.
THESE MFAs COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arise out of common order
dated 14.06.2021 on I.A.Nos.16 and 17 in
R.A.No.121/2012 passed by II Additional District and
Sessions Judge, Chikkaballapura, sitting at Chintamani.
M.F.A.No.4316/2021
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2. By the impugned orders, the First Appellate
Court has rejected the applications of the appellants
under Order XXII Rule 10 of CPC to come on record as
legal representatives of deceased Lakshmana Reddy
namely respondent No.2 in R.A.No.121/2012.
3. One Gopala Reddy had five sons by name
Srinivasa Reddy, Lakshmana Reddy, Venkata Reddy,
Doddappodu, Srirama Reddy and one daughter by name
Chikkavenkatamma. Sriramareddy filed O.S.No.1/1970
before Civil Judge, Chintamani against his father Gopala
Reddy and other brothers for partition and separate
possession of his share. The suit was contested by
Venkata Reddy and Lakshmana Reddy on the ground
that they had separated from the family taking some of
the subject matters of O.S.No.1/1970, in 1962 itself,
therefore, they were not partible.
4. The Court partly decreed O.S.No.1/1970
and dismissed the suit with regard to which
Lakshmanareddy and Venkatareddy clamed independent
rights. Against that judgment, Sriramareddy filed RFA
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No.155/1978 before this Court. On enhancement of
pecuniary jurisdiction of the District Court, RFA
No.155/1978 was transferred to District Court, Kolar
and renumbered as R.A.No.19/1990. In
R.A.No.19/1990, the parties entered into a compromise.
Recording the compromise, a decree was passed
accordingly and R.A.No.19/1990 was disposed of.
5. Respondent No.1 S/o Srinivasareddy and
respondent No.2 claiming to be adopted son of
Doddappodu filed O.S.No.57/1999 before Senior Civil
Judge, Chintamani claiming that the compromise
entered into in R.A.No.19/1990 was out come of fraud
played by Venkatareddy and Lakshmanareddy and the
said compromise does not bind them. That suit came to
be dismissed on 14.06.2012.
6. Against the said judgment and decree,
respondent Nos.1 and 2 preferred R.A.No.121/2012
before the II Additional District and Sessions Judge,
Chikkaballapura sitting at Chintamani. In that appeal,
Venkatareddy was the first respondent and Lakshmana
M.F.A.No.4316/2021
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Reddy was the second respondent. Pending the appeal,
Lakshmana Reddy died on 02.11.2019 and
Venkatareddy died on 27.12.2015.
claiming that Lakshmanareddy had executed two
separate Wills dated 11.12.2017 in favour of the
aforesaid appellants and they sought to come on record
as legal representatives of deceased respondent No.2-
Lakshmanareddy. The present respondent Nos.1 and 2
contested those applications disputing the execution of
the Wills etc. The First Appellate Court without holding
an enquiry as required under Order XXII Rule 5 of CPC
heard the parties on the applications and by the
impugned order rejected the said applications.
8. The First Appellate Court held that what was
to be decided in the appeal was whether the judgment
and decree in O.S.No.57/1999 was outcome of fraud
and for that purpose, the present appellants are not
necessary parties. The First Appellate Court further
held that impleading the appellants in R.A.No.121/2012
M.F.A.No.4316/2021
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unnecessarily widens the scope of the appeal and
complicates the question involved in the case. The First
Appellate Court further held that whether the applicants
are legatees and whether Lakshmanareddy had
executed Will need not be gone into the case.
9. The appellants claimed to be the legal
representatives of deceased Lakshmanareddy who was
respondent No.2 in R.A.No.121/2012.
10. Section 2 (11) of CPC defines legal
representative as a person who in law represents the
estate of a deceased person and includes any person
who intermeddles with the estate of the deceased.
11. Order XXII Rule 10 of CPC which deals with
procedure in case of assignments before final order in
the suit states that in the case of an assignment or
transfer of any interest in the subject matter of the suit,
during the pendency of the suit, proceedings shall be
continued against such assignee on whom the interest
of the deceased party has devolved.
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12. Order XXII Rule 4 of CPC provides for
impleading of legal representative of the deceased
defendant which applies to the respondents in appeal
also in case cause of action survives against such legal
representatives.
13. This Court in K.Shankarappa Vs.
K.G.Gangadharaiah1 held that the legatees under a
Will becomes intermeddles of the estate of the deceased
party and therefore, they come within the definition of
legal representatives.
14. When the execution of Will is disputed, what
shall be the procedure to implead the legatees of the
alleged Will is the question. For that, Order XXII Rule 5
provides the procedure which reads as follows:
"5.Determination of question as to
legal representative.-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:
AIR 2001 KAR 203
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Provided that where such question arises
before an Appellate Court, that Court may,
before determining the question, direct any
subordinate Court to try the question and
to return the records together with
evidence, if any recorded at such trial, its
findings and reasons therefore, and the
Appellate Court may take the same into
consideration in determining the question."
[Emphasis supplied]
15. In view of Order XXII Rule 5 of CPC, when
execution of the Will is disputed, the Court shall hold an
enquiry as contemplated under Order XXII Rule 5 of
CPC. For that purpose, the Appellate Court may either
itself record evidence and record the findings or remit
the records to the trial Court for the purpose of
recording evidence and finding on that. But the
Appellate Court cannot reject the application summarily
without holding any enquiry or recording the finding.
Therefore, the impugned order is liable to be set aside.
The appeals are allowed.
16. The impugned order dated 14.06.2021 on
I.A.Nos.16 and 17 passed by II Additional District &
M.F.A.No.4316/2021
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Sessions Judge, Chikkaballapura, sitting at Chintamani
is hereby set aside.
The matters are remitted to the First Appellate
Court to reconsider the applications in accordance with
Order XXII Rules 5 and 10 of CPC.
Since original proceedings are of the year 1999,
the First Appellate Court shall do the aforesaid exercise
as expeditiously as possible at any rate within six
months from the date of receipt of copy of this order.
Both parties shall co-operate for disposal of the
applications.
In view of disposal of main matters, pending I.As.
stood disposed of.
Sd/-
JUDGE
pgg
