Karnataka High Court

Siddamma W/O Lingappa Desai, vs Ningappa S/O Basavantarao Desai on 15 January, 2021

Author: N.S.Sanjay Gowda

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

 DATED THIS THE 15 T H DAY OF JANUARY, 2021

                           BEFORE

THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA

          WRIT PETITION NO.102471/2016
     & WRIT PETITION NO.102618/2016 (GM-CPC)


BETWEEN:

1.     Siddamma W/o.Lingappa Desai,
       Age 74 years, Occ: Household,
       R/o.: Kalkeri, Tq.: Mundargi,
       Now at Virapur, Tq.: Yalburga.

2.     Gouravva W/o. Shivanagouda Patil,
       Age 54 years, Occ: Household,
       R/o.: Virapur, Tq.: Yalburga.
                                             ... PETITIONERS

(BY SHRI M.M. PATIL, ADVOCATE)

AND:

1.     Ningappa S/o. Basavantarao Desai,
       R/o.: Kalkeri, Tq.: Mundargi,
       Since deceased by his L.Rs.

       1a.   Smt. Hanamawwa W/o. Ningappa @ Lingaraj Desai,
             Age 64 years, Occ: Household work,
             R/o.: Kalkeri, Tq.: Mundaragi.
                                 -2-




     1b.   Smt. Neelawwa @ Pushpavati
           W/o.Hanamappa Rati, Age 44 years,
           Occ: Household work, R/o.: Kalkeri,
           Now at Byalawadagi, Tq.: Mundargi.

     1c.   Smt. Ningawwa D/o. Ningappa @ Lingaraj Desai,
           Age 39 years, Occ: Household work,
           R/o.: Kalkeri, Tq.: Mundargi.

     1d.   Sri. Ningappa S/o. Ningappa @ Lingaraj Desai,
           Age 34 years, Occ: Household work,
           R/o.: Kalkeri, Tq.: Mundargi.

2.   Smt. Gangamma W/o. Irappa Hasgal
     @ Gangamma D/o.Lingappa Desai,
     Age 50 years, Occ: Household work,
     R/o.: KKoppal (Palled Oni), Tq. & Dist.: Koppal.

3.   Smt. Anasuya W/o.Gavisniddappa Hasgal,
     Age 48 years, Occ: Household work,
     R/o.: Channamma Circle, Palled Oni,
     Koppal, Tq. & Dist.: Koppal.

4.   Smt.Laxmawwa W/o. Ningappa Palled,
     Age 42 years, Occ: Household work,
     R/o.: Hirebaganhal, Tq. & Dist.: Koppal.
                                                ... RESPONDENTS
(BY SHRI I.C.PATIL, MR.ANGADI & SHRI R.V.BURJI, ADV. FOR
R1A TO R1D; R2, R3 AND R4 ARE SERVED)


     These writ petitions are filed under Articles 226
and 227 of the Constitution of India, praying to quash
the impugned order dated 20.01.2016, passed by the
Addl. District Judge, Gadag in R.A.No.76/2010 on
I.A.No.2 and 6 vide annexure-K and etc.,
                                    -3-




      These writ petitions having been heard and
reserved for orders on 06.01.2021 and coming on for
pronouncement of orders, this day, the Court made the
following:

                              ORDER

1. Siddamma, wife of Ningappa Desai (the

first petitioner) and Gouravva, daughter of

Ningappa Desai (the second petitioner) filed a suit

seeking for partition and separate possession

against Ningappa i.e., their husband and father

respectively.

2. The said suit after contest ended in a

decree wherein it was held that the petitioners-

plaintiffs were entitled to 1/3 r d share in all the suit

properties.

3. Ningappa, the sole defendant i.e., the

husband and father of the plaintiffs, preferred an

appeal in R.A.No.76/2010. However, during the

pendency of the appeal, he passed away and this

resulted in an application being filed by one

Hanamawwa and Neelawwa under Order XXII Rule 3

of CPC to come on record as the legal

representatives of Ningappa.

4. The applicants therein contended that

Ningappa died on 11.10.2011 leaving behind him

the applicants as his legal heirs. This application

was strenuously contested by the plaintiffs by

contending that Ningappa had admitted in his

written statement his relationship with the plaintiffs

and therefore, it could not be permissible for the

applicants to contend that they were the wife and

daughter of Ningappa.

5. The Appellate Court by order dated

07.06.2013 allowed the application filed by

Hanamawwa and Neelawwa and permitted them to

come on record as legal heirs of Ningappa.

6. Thereafter, another application came to be

filed by one Gangamma under Order I Rule 10 of

the CPC requesting the Court to permit her and her

two younger sisters to be impleaded as respondent

Nos. 5 to 7. They also claimed that they were the

daughters of Ningappa. This application was also

strenuously contested by the plaintiffs.

7. By an order dated 06.08.2014, the

application filed by Gangamma was also allowed and

Gangamma and her two younger sisters were

permitted to be impleaded as respondents Nos.3 to

8. These two orders were challenged before

this Court in W.P.Nos.111443/2014 and

112166/2014. This Court by an order dated 16 t h

January 2015 set aside the orders passed on

I.A.Nos.II and VI and directed the Appellate Court

to follow the procedure as contemplated under

Order XXII Rule 5 of the CPC and determine the

question with regard to the legal heirs and

thereafter pass appropriate orders in accordance

with law.

9. Pursuant to the said order, the Appellate

Court, by the impugned order stated that it was

necessary to conduct an enquiry on I.A.Nos.II and

VI and posted the matter for conducting an enquiry.

10. The petitioners, claiming to be aggrieved

by this order, by which the Appellate Court decided

to hold an enquiry to determine as to who were the

legal representatives of the deceased appellant

Ningappa, have filed this writ petition.

11. The principal ground urged by the Learned

counsel for the petitioners is that when a question

arises as to whether any person is or not the legal

representative of a deceased-party in the Appellate

Court, the Appellate Court is bound to refer the

matter to a Court subordinate to it to try the

question and the subordinate court is thereafter

required to return the records together with the

evidence and it was only thereafter the Appellate

Court could venture to determine as who was the

legal representative of the appellant. In other

words, he contends that the Appellate Court had no

jurisdiction to embark upon an enquiry by itself to

determine the legal representative of the deceased-

appellant. In support of this contention, he relied

upon the judgment of the Apex Court rendered in

the case of KAREDLA PARTHASARADHI Vs.

GANGULA RAMANAMMA - AIR 2015 SC 891 .

12. I have considered the submissions of the

learned counsel and also perused the materials on

record.

13. At the outset, it is to be noticed that the

purpose and object of permitting the legal

representatives to come on record, in cases where

the right to sue survives, is to ensure that the

estate of the deceased is represented and the

proceedings do not abate by virtue of death of a

party. In other words, the person, who comes on

record as a legal representative of a deceased,

essentially prosecutes the litigation on behalf of the

deceased-party and he does not come on record to

set up any independent plea of his own.

14. The definition of the term legal

representative in Section 2 (12) of the Code of Civil

Procedure embodies this principle. Thus, any person

who is brought on record as the legal representative

of a deceased party in any suit is basically

representing the deceased and protecting the estate

of the deceased in the lis.

15. In fact, a person, who is brought on

record as a legal representative is permitted to take

up only that defence, which would be appropriate to

his character as a legal representative of the

deceased-party. In other words, the person who is

brought on record is not permitted to raise pleas

relating to his individual rights which are

independent of the rights of the deceased.

16. Keeping in view this legal position, in this

writ petition, it will have to be considered as to

whether the Appellate Court is bound to refer the

matter to subordinate Court to try the question as

- 10 -

to who is the legal representative of the deceased-

party.

17. Order XXII Rule 5 of the CPC, which is

relevant for the purpose of this case, reads as

under:

"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 this Court.

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 therefor, and the Appellate Court may take the same into consideration in determining the question.

KARNATAKA HIGH COURT AMENDMENT

Provided that an Appellate Court before determining such question may direct the Court of first instance or any other Court subordinate to it to take evidence thereon and to return the

- 11 -

evidence so taken together with its finding and reasons and may take such finding and reasons into consideration in determining the question."

18. As could be seen from the proviso added

to Order XXII Rule 5 of the CPC by the Karnataka

High Court amendment, an Appellate Court is given

the discretion to direct the Court of first instance or

any other Court subordinate to it to take evidence

thereon and to return the evidence so taken

together with its finding and reasons and the

Appellate Court is permitted to take such finding

and reasons into consideration for the purpose of

determining the question as to who is the legal

representative of a party who has passed away

during the pendency of the appeal. It is manifestly

clear from the above provision that the ultimate

question as to who is the legal representative of a

- 12 -

party, who has died during the pendency of the

appeal, rests solely on the Appellate Court and has

to be determined by the Appellate Court alone.

19. The Appellate Court in order to determine

this question has been given the discretion to direct

its subordinate Court to take evidence and record a

finding regarding the question as to who was the

legal representative of the deceased party. This

would not however lead to the inference that the

Appellate Court is itself precluded from embarking

upon an enquiry to determine that question.

20. It should be noticed that the Appellate

Court has the power to pass any decree or make

any order which ought to have been passed by the

Court of the first instance as envisaged under Order

XLI Rule 33 CPC. This is essentially because the

Appellate Court has all the powers that the Trial

- 13 -

Court possesses and the powers of the Appellate

Court cannot be curtailed or be made subject to a

proceeding of a subordinate court or a finding that

is to be recorded in any proceeding referred to a

subordinate Court by the Appellate Court.

21. To put it differently, the Appellate Court

would have same power as that of the trial Court in

the matter of consideration of the question as to

who is legal representative of a party who has died

during the pendency of the appeal.

22. The reliance placed upon by the learned

counsel on the judgment of the Hon'ble Apex Court

is misconceived. In the said decision, the Apex

Court has not held that in every case where the

question as to who is the legal representative of a

part who has died in the appeal has to be referred

by the Appellate Court to its subordinate court. All

- 14 -

that the Apex Court has said that the provisions of

Order XXII Rule 5 CPC is mandatory in the sense,

that the question as to who is the legal

representative of the deceased has to be

determined and cannot be deferred.

23. In fact in the case reported in JALADI

SUGUNA (DEAD) THROUGH L.RS. V. SATYA SAI

CENTRAL TRUST & OTHERS - AIR 2008 SC 2866 ,

the Apex Court in paragraph Nos.10 and 11 has

held as follows:

"10. Filing an application to bring the legal represe ntatives o n record, does not amount to bringing the legal representative s on record. When an LR applicatio n is filed, the court sho uld conside r it and decide whethe r the pe rsons named there in as the legal re presentatives, should be brought on record to represent the estate o f the deceased. Until such decisio n by the co urt, the pe rsons claiming to be the legal represe ntatives have no right to represent the estate of the dece ased, no r prosecute or de fend the case. If there is a dis pute as to who is the legal representative , a decision should be rende red on such dis pute . Only when the question of legal representative is determine d by

- 15 -

the court and such legal repre sentative is brought on record, it can be said that the estate of the deceased is re prese nted. The determination as to who is the le gal represe ntative under Order 22 Rule 5 will o f course be for the limite d purpose of represe ntatio n of the estate of the deceased, fo r adjudicatio n of that case. S uch dete rmination fo r such limite d purpose will not co nfer o n the person he ld to be the legal re prese ntative, any right to the pro pe rty which is the subject matte r of the suit, vis- à- vis o the r rival claimants to the estate of the dece ased.

11. The pro visions of Rules 4 and 5 of Orde r 22 are mandato ry. When a responde nt in an appeal dies , the Court canno t simply say that it will he ar all rival claimants to the estate of the deceased respo ndent and procee d to dis pose of the appe al. No r can it implead all persons claim ing to be legal re prese ntative s, as parties to the appeal without deciding who will re present the estate of the deceased, and pro ceed to hear the appe al o n merits. The court canno t also postpo ne the decision as to who is the legal represe ntative o f the de ceased res ponde nt, for being decided alo ng with the appe al on merits. The Code clearly provides that whe re a question arises as to whether any person is or is no t the legal re presentative of a decease d respondent, such question shall be de termine d by the court. The Code also provides that whe re one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal re prese ntatives o f the deceased respondent to be made parties , and then proceed with the case . Though Rule 5 does not specifically provide that dete rmination of legal represe ntative should prece de the hearing of the appe al on merits , Rule 4 re ad with Rule

- 16 -

11 makes it cle ar that the appeal can be heard only afte r the legal representatives are brought on reco rd."

24. It is thus clear that the mandate of the

law is that the determination of the question as to

who is the legal representative of the deceased

party in an appeal is to be decided as soon as an

application in that regard is made and the same

should not be deferred.

25. It is to be stated here that the discretion

granted to the Appellate Court to refer the matter

to the Court subordinate for taking evidence and to

record a finding as to who was the legal