Karnataka High Court
Smt Lakkamma vs Smt. Rayakka on 1 July, 2025
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MFA No. 11675 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 11675 OF 2011 (CPC)
BETWEEN:
SMT. LAKKAMMA
W/O LAKSHMINARASAPPA
AGED ABOUT 48 YEARS
RESIDENT OF KANNAMEDI VILLAGE
KASABA HOBLI, PAVAGADA TALUK
TUMKUR DISTRICT-561 202
...APPELLANT
(BY SRI. G. RAVISHANKAR, ADVOCATE)
AND:
SMT. RAYAKKA
D/O YERROBANNA @ YERRANNA
SINCE DEAD BY L.R
Digitally signed
by SHAKAMBARI
Location: High SMT. NINGAMMA
Court of W/O SONNAPPA
Karnataka
SINCE DEAD BY LR's
1. SANNAPPA
S/O LATE KUMATAPPA
AGED ABOUT 75 YEARS
2. JAYARAMA
S/O SANNAPPA
AGED ABOUT 50 YEARS
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MFA No. 11675 of 2011
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3. RAMA
S/O SANNAPPA
AGED ABOUT 48 YEARS
ALL ARE AGRICULTURISTS
RESIDENTS OF PHALARAM VILLAGE
GUDIBANDE MANDAL
MADAKASHIRA TALUK
ANANAHAPURA DISTRICT
ANDHRA PRADESH STATE-515 271
4. SMT. KAMALAMMA
W/O GIRIYAPPA
AGED ABOUT 45 YEARS
RESIDENT OF NARASAMBHUDHI, AGALI POST
MADAKASHIRA TALUK
ANANAHAPURA DISTRICT
ANDHRA PRADESH STATE-515 301
5. SMT. RAMAKKA
W/O DASAPPA
AGED ABOUT 58 YEARS
RESIDENTS OF PHALARA VILLAGE
GUDIBANDE MANDAL
MADAKASHIRA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH STATE-515 271
(IMPLEADED VIDE ORDER DATED 03.03.2025)
6. SMT. JAYAMMA
W/O NAGARAJ
AGED ABOUT 53 YEARS
RESIDENT OF MADUDI VILLAGE
AGALI MANDAL, SREE SATHYA SAI DISTRICT
ANDHRA PRADES STATE - 515 311
(VIDE ORDER DATED 23.05.2023
APPLICATION I.A NO.1/2022 AGAINST
RESPONDENT NO.6 IS DISMISSED)
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MFA No. 11675 of 2011
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7. SMT. BHAGYAMMA
W/O ERANNA
AGED ABOUT 50 YEARS
RESIDENT OF GOUNIPALLY VILLAGE
MADAKASIRA MANDAL
SREE SATHYA SAI DISTRICT
ANCHRA PRADESH STATE-515 301
(VIDE ORDER DATED 09.01.2024,
APPLICATION I.A. NO.1/2022 AGAINST
RESPONDENT NO.7 IS DISMISSED)
8. SMT. SAROJAMMA
W/O RAMANJANEYULU
AGED ABOUTY 47 YEARS
RESIDENT OF GOWDANAHALLI
MADAKASIRA TALUK
ANANTHAPRUA DISTRICT
ANDHRA PRADESH STATE-515 301
9. SMT. VIDYA
W/O NAGENDRA
AGED ABOUT 22 YEARS
RESIDENT OF MAGENAHALLI
MIDIGESHI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT-572 133
(RESPONDENT NOS.5, 8 AND 9 ARE IMPLEADED
VIDE ORDER DATED 03.03.2025)
...RESPONDENTS
(BY SRI. K. SURYA PRAKASH RAO, ADVOCATE FOR R1 TO R4 &
LRs OF RESPONDENTS;
R5, R8 & R9 ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED 23.05.2023 APPLICATION IN RESPECT
OF R6 IS DISMISSED;
VIDE ORDER DATED 09.01.2024 APPLICATION IN RESPECT
OF R7 IS DISMISSED)
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MFA No. 11675 of 2011
HC-KAR
THIS MFA IS FILED UNDER ORDER 43 RULE 1(k) OF CPC,
AGAINST THE ORDER DATED 16.11.2011 PASSED ON IA NO.2
IN O.A.NO.166/2008 ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT-V, MADHUGIRI, DISMISSING IA NO.2
FILED UNDER ORDER 22 RULE 3 OF CPC FOR IMPLEADING THE
APPLICANT THEREIN AS LR OF THE DECEASED.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
The appellant/applicant has assailed the order dated
16.11.2011 passed on IA No.II by the Fast Track Court-V at
Madhugiri, rejecting the application so filed by the applicant
and ordered that the appeal stood abated.
2. It is the case of the appellant before the Appellate
Court in Regular Appeal No.166/2008 on the file of Fast Track
Court-V, Madhugiri that, she being the applicant filed an
application under Order 22 Rule 3 of CPC, to come on record as
the legal representative of the appellant by name
Lakshmidevamma, who died during the pendency of the
appeal.
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3. It is stated in the application that, the appellant
Lakshmidevamma died on 18.09.2008, leaving behind the
applicant as sole legal heir. It is stated that, the appellant
during her lifetime executed a Will dated 30.08.2001 and
27.10.2005 bequeathing her properties. It was the last Will of
the appellant. It was applicant, who performed last rites of the
deceased Lakshmidevamma. She had filed an application
under Order 22 Rule 3 of CPC, to come on record as legal
representative of the appellant.
4. Before the Appellate Court, the said application was
resisted by the respondent by filing detailed objections. It is
contended that, the said Lakshmidevamma has no right to
execute the Will or not to bequeath the suit property as her
whims and fancies. The suit schedule property was the joint
family property of herself and respondent. It is contended that,
during the lifetime of Lakshmidevamma, she never whispered
anything about the alleged Will. It is stated in the cross-
examination in O.S.No.65/2003 that she was not aware of the
applicant and her parenthood relationship etc,. Thus, it is
contended that, with an ulterior motive to knock out properties
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of the respondent, now the applicant wants to come on record
as a legatee under the Will. No rights have been devolved on
the applicant to come on record. Thus, it is prayed by the
respondent to dismiss the application.
5. To substantiate the assertions made in the
application, the applicant examined 3 witnesses i.e., herself as
PW.1 and another as PW.2 and PW.3, who are attesting
witnesses to the will. Got marked Exs.P1 and P2 in support of
assertions made in the application. The respondent has not led
any evidence to substantiate the objections so filed to the
application.
6. Learned Appellate Court, having heard the
arguments of both the sides, raised the point for consideration
and answered the same in the negative and ultimately
dismissed the said application so filed by the applicant,
Lakkamma and observed that the appeal stood abated. This is
how, now the appellant/applicant is before this Court
challenging the impugned order dated 16.11.2011.
7. The record of this appeal also reveals that
respondent died during the pendency of this appeal and her
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legal representatives are brought on record in the shape of
respondent Nos.1 to 9. Accordingly, cause-title came to be
amended.
8. Trial Court records is secured.
9. Heard the arguments of learned counsel for the
appellant and learned counsel for the respondents on this
application.
10. It is admitted fact between both the sides that,
there was an appeal filed by the appellant Lakshmidevamma
D/o Yerrobanna @ Yarranna, being aggrieved by the judgment
so passed in O.S.No.65/2003. It is also an admitted fact that
during the pendency of the appeal in R.A.NO.166/2008, original
appellant Lakshmidevamma died. After her demise, the
present applicant by name Lakkamma filed an application in the
shape of I.A No.II under Order 22 Rule 3 of CPC, to come on
record as a legatee under the Will, alleged to have been
executed by the deceased appellant on 30.08.2001 and
27.10.2005. It is stated in the application that during the
pendency of the appeal, the appellant died on 18.09.2008 and
as the appellant had executed the Will in favour of the
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applicant, the applicant wants to come on record as the legatee
under the Will to prosecute the appeal. This application was
contested by the respondents and denied entire assertions
made in the application. The learned Appellate Court believing
the objections of the respondents has dismissed the
application.
11. Learned counsel for the appellant further submits
that, the scope of Order 22 Rule 10 is very much limited. As
per this provision, it is the procedure in case of assignment
before final order in the suit, it applies to appeal also. He
submits that, just to prosecute the appeal; applicant wants to
come on record as a legatee under the Will. To substantiate
the execution of the said Will, applicant has examined two
witnesses and even applicant has also entered the witness box.
He further submits that, as the scope of enquiry is very much
limited, learned Appellate Court ought not to have dismissed
the application and would have permitted the applicant to come
on record to prosecute the appeal as a legatee under the Will.
He is fair enough to submit that, even the applicant is under
obligation to prove the genuineness of the Will during the
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course of the trial. Therefore, as a limited question is involved
with regard to the devolution of the interest in the scheduled
property in question, the learned Appellate Court ought not
have dismissed the application. In addition to the grounds
urged in the appeal memo, he prays to allow this appeal and
set aside the impugned order.
12. As against this submission, learned counsel for the
respondents, with all vehemence submits that, it is not at all
proved that this applicant is the relative of the appellant, so
also he submits that this applicant is stranger to the family of
the respondents. If that is so, there was no occasion for the
deceased appellant to execute any Will. Even the evidence
spoken to by the witnesses deposed ignorance with regard to
the relationship. He would further submit that, in the year
2012, a suit is filed on the file of the Civil Judge Pavagada in
O.S.No.83/2012 seeking partition and separate possession of
the scheduled properties. In the said suit, the present
appellant is also party. If at all the applicant has any rights in
the property, she can very well agitate her grievance in the
said suit. Therefore, this appeal does not survive for
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consideration in view of the pendency of O.S.No.83/2012. In
addition to the objections filed to the application, so also the
reasons assigned by the Appellate Court, he submits that this
appeal is liable to be dismissed.
13. Having heard the arguments of both counsels and
on perusal of the materials placed on record, the only point that
would arise for my consideration is:
1. "Whether the impugned order dated
16.11.2011 passed in R.A.No.166/2008 by the
Fast Track Court-V at Madhugiri is not
sustainable in the eyes of law?"
14. Evidently the applicant filed an application under
Order 22 Rule 3 of CPC before the Appellate Court, to come on
record as a legal heir of the original deceased appellant. The
applicant claimed his right in the property by virtue of the Will.
The applicant would have invoked the provisions of Order 22
Rule 10 of CPC and not Order 22 Rule 3 of CPC. Mere quoting a
wrong provision of law would not defeat the right of the plaintiff
to seek such an order. If the provisions of Order 22 Rule 10 is
scrupulously perused, the provisions of this order is based upon
the principles that, the trial of a suit or an appeal cannot be
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terminated merely because interest of a party on the subject
matter of the suit has devolved upon another during the
pendency of the suit. Such a suit may be continued against the
person acquiring interested with the leave of the Court. By
filing interim application No.II, the applicant has sought the
leave of the Court to prosecute the appeal based upon the so
called Will alleged to have been executed by the original
appellant. So the term devolution so stated in Order 22 Rule
10 of CPC, is not the same as referred to a definition of the
legal representative as defined in Section 2(11) of CPC. It only
means "devolution of the interest of the person, who instituted
the suit". If the transfer of the property take place may be by
way of gift or execution of the Will, it is a case of the devolution
of interest and there is no question of any abatement on the
death of the original appellant. Therefore, the relative scope of
Order 22 Rule 10 of CPC is in the case of assignment, creation
or devolution of interest during the pendency of the suit. The
Hon'ble Apex Court in catena of judgments has held that, this
provision is independent of the provision of Order 22 Rule 10 of
CPC. Rule 10 refers to "devolution of any interest" during the
pendency of the suit. In such a case, the Court can grant leave
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to prosecute the suit against the person to or upon whom such
interest has been devolved. Therefore, the relative scope of
Order 22 Rule 10 of CPC is very much wide and whether right
to continue the suit upon whom the interest has devolved
during the pendency of the suit have been come up for
consideration before the Hon'ble Apex Court in various
judgments, especially in case of M/S ABK TRADERS V.
KERALA STATE CIVIL SUP. CORPORATION LTD., reported
in 2013 (15) SCC 217. Therefore, now the respondents
cannot contend that the applicant has no locus.
15. Even it is held by the Hon'ble Apex Court as noted
by the Appellate Court in its impugned order that, when
application is filed under Order 22 Rule 10 of CPC no detailed
enquiry at the stage of granting leave is contemplated. It is so
stated in the judgments of the Hon'ble Apex Court reported in
AMITH KUMAR SHAW AND ANOTHER V. FARIDAA
KHATOON AND ANOTHER reported in 2005 (3) KCCR 1834.
That means, any person who includes a person who
intermediates with the estate of the deceased party in a suit
can be his legal representative for the purpose of continuation
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of the suit. Evidently appeal is the continuation of the suit.
The learned Appellate Court has not appreciated the position of
law as well as the other aspect of the case and simply has
opined that the Will is a created one. At the time of deciding
such application, no such findings are warranted. By observing
so, the learned Trial Court has dismissed the application. In
my considered view, the very rejection of the application is
incorrect and requires to be interfered by this Court. If the
applicant comes on record as a legal representative of the
original appellant based upon the Will, the ultimate burden is
on the appellant to prove the genuineness of the said Will and
again it requires detailed enquiry.
16. PWs.2 and 3 have stated about their presence when
the said Will was executed. For the purpose of deciding said
application, such evidence is very much sufficient. Even the
evidence of PWs.1 to 3 is not rebutted by the respondents by
adducing any evidence. Therefore, the impugned order
requires interference by this Court. Consequentially, the
application so filed by the applicant in the shape of I.A.No.II in
R.A.No.166/2008 pending on the file of then Fast Track Court-V
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at Madhugiri deserves to be allowed and the impugned order is
liable to be set aside. The applicant be permitted to come on
record as the legatee under the Will and it is for the appellant
to prove the genuineness of the Will so stated in her
application. In view of the above, I record my findings on the
above point in the affirmative.
17. Resultantly, I pass the following:
ORDER
(i) The Miscellaneous First Appeal is allowed.
(ii) The impugned order dated 16.11.2011 passed
by the then Presiding Officer; Fast Track Court-
V at Madhugiri in R.A.No.166/2008 is hereby
set aside.
(iii) The application i.e., I.A.No.II filed under Order
22 Rule 3 of CPC be read as Order 22 Rule 10
of CPC is allowed.
(iv) The applicant is permitted to come on record
as legatee under the Will to prosecute the
appeal.
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(v) The order of dismissal of appeal as abated is
set aside.
(vi) The R.A.No.166/2008 is restored to its own
file.
(vii) As the appeal is of the year 2008, the
Appellate Court is requested to dispose of the
appeal expeditiously with all its promptitude.
It is submitted by the learned counsel for both parties that,
now there is an establishment of the District Court at Madhugiri
and the so called Fast Track Court is already closed. Therefore,
this appeal may be heard by the Additional District and
Sessions Judge, Tumkur sitting at Madhugiri.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
AM
