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Kerala High Court

P.K. Manoharan vs Somasundaram (Died) on 8 January, 2026

Author: Murali Purushothaman

Bench: Murali Purushothaman

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

   THURSDAY, THE 8TH DAY OF JANUARY 2026 / 18TH POUSHA, 1947

                      RP NO. 862 OF 2025

AGAINST THE ORDER DATED 08.08.2024 IN I.A. NO.4 OF 2018 IN RFA

            NO.439 OF 2013 OF HIGH COURT OF KERALA

REVIEW PETITIONERS/RESPONDENTS 1 & 2/ RESPONDENTS 1 & 2:

    1     P.K. MANOHARAN
          AGED 68 YEARS, S/O. LATE BALAKRISHNAN NAIR,
          RAJESHWARI BHAVAN, AZHIKODE,
          KANNUR DISTRICT, PIN - 670009

    2     AMARJITH
          AGED 26 YEARS, S/O. P.K. MANOHARAN, RAJESHWARI
          BHAVAN, AZHIKODE, KANNUR DISTRICT, PIN - 670009.

          BY ADVS.
          SRI.V.R.KESAVA KAIMAL
          SMT.C.S.RAJANI
RESPONDENTS/PETITIONER/APPELLANT AND SUPPLEMENTAL 2ND
APPELLANT/RESPONDENTS 3 TO 5:

    1     SOMASUNDARAM (DIED)
          S/O.KUNHIKANDA, KORATTIYIL HOUSE,
          VALAPPAD POST, VALAPPAD AMSOM, DESOM,
          CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680001

    2     SREEKUMAR
          AGED 67 YEARS, S/O. K.G. VASUDEVAN,
          KUTTILAKKADAVU, PERINJANAM,
          THRISSUR DISTRICT, PIN - 680686

    3     P.K. KAMALA
          W/O. BALAKRISHNAN NAIR, RAJESHWARI BHAVAN,
          AZHIKODE, KANNUR DISTRICT, PIN - 670009

    4     P.K. KRISHNAKUMARI,
          D/O. BALAKRISHNAN NAIR, RAJESHWARI BHAVAN,
          AZHIKODE, KANNUR DISTRICT, PIN - 670009
                                                        2026:KER:767
RP NO. 862 OF 2025
                                 ..2..
    5       P.K. SREELATHA
            D/O. BALAKRISHNAN NAIR, RAJESHWARI BHAVAN,
            AZHIKODE, KANNUR DISTRICT, PIN - 670009

            BY ADV SRI.K.MOHANAKANNAN


     THIS    REVIEW   PETITION   HAVING   BEEN   FINALLY   HEARD   ON
05.01.2026, THE COURT ON 08.01.2026 DELIVERED THE FOLLOWING:
                                                        2026:KER:767
RP NO. 862 OF 2025
                                ..3..

                              ORDER

This review petition is filed against the order dated

08.08.2024 passed by this Court in I.A. No.4 of 2018 in R.F.A.

No.439 of 2013 whereby the 2nd respondent herein/2nd appellant was

impleaded as the legal representative of the deceased appellant. The

review petitioners were defendants 1 and 2 in O.S.No. 54 of 2012 on

the files of the Sub Court, Kannur.

2. The suit was filed by one K.K Somasundaran for recovery

of possession and for permanent prohibitory injunction. The learned

Sub Judge dismissed the suit by judgment dated 17.08.2012.

Against the judgment and decree, the plaintiff preferred the above

R.F.A and during the pendency of the appeal, he expired on

05.07.2017.

3. Sri.Sreekumar, the 2nd respondent herein, who was not

party to the appeal, preferred I.A. No. 4 of 2018 in the appeal

stating that the sole appellant K.K.Somasundaran died leaving

behind his wife and three children and that Somasundaran had

executed a registered Will bequeathing the plaint schedule property

to him and since the plaint schedule property devolved on him, he 2026:KER:767 RP NO. 862 OF 2025 ..4..

may be impleaded as supplemental 2 nd appellant and be permitted to

continue to appeal as the legal representative of the deceased

appellant. The said application was filed along with I.A.No.5 of 2018

to set aside the abatement caused due to the death of the appellant.

Both applications were allowed as per order dated 08.08.2024.

4. The review petitioners state that the copy of the

impleading petition was not served on them and they were under the

bona fide impression that the person sought to be impleaded is the

legal representative of the deceased appellant. However, it was later

disclosed that the person sought to be impleaded is claiming rights

on the strength of the Will alleged to have been executed by the

deceased appellant and that so long as the Will is not proved, he is

not entitled to succeed as the legal representative of the deceased

appellant.

5. When the appeal came up for consideration on

23.06.2025, this Court recorded the submissions of the learned

counsel on both sides that the deceased appellant was survived by

his wife and three children at the time when the impleading petition

was filed. The learned counsel for respondents 1 and 2/ review 2026:KER:767 RP NO. 862 OF 2025 ..5..

petitioners submitted that the additional 2 nd appellant is not the legal

representative of the deceased appellant and he is intending to file a

review petition to review the order in I.A.No. 4 of 2018. This Court

directed the learned counsel for the appellants to serve a copy of I.A.

Nos.4 of 2018 and 2 of 2024 (application to implead the legal heirs

of the 4th respondent in the appeal) to the learned counsel for

respondents 1 and 2. Accordingly, this review petition is filed seeking

to review the order dated 08.08.2024.

6. It is contended by the review petitioners that the

additional 2nd appellant is claiming rights over the plaint schedule

property on the strength of a Will alleged to have been executed by

the deceased appellant and since the Will has not been proved, he is

not entitled to succeed as the legal representative of the deceased

appellant and therefore, there is an error apparent on the face of the

order resulting in miscarriage of justice and prejudice to the review

petitioners.

7. The review petition is filed along with C.M.Appl. No.1 of

2025 to condone the delay of 303 days in filing the review petition.

8. Heard Sri.V.R.Kesava Kaimal, the learned counsel for the 2026:KER:767 RP NO. 862 OF 2025 ..6..

review petitioners, Smt.M.A.Zohra, the learned counsel for the 2 nd

respondent/2nd appellant and Sri.M.Muhammed Shafi, the learned

counsel for additional respondents 8 to 11 in the appeal.

9. It is contended by Sri.Kaimal that though I.A.No.4 of

2018 was filed on 27.10.2017, the defect in filing the application was

cured only on 02.04.2018. C.M.Appl.No.1 of 2018 filed for condoning

the delay in re-presenting I.A.No.4 of 2018 was allowed by this Court

on 09.04.2018. Sri.Kaimal, referring to Order 22 Rule 10A of the

Code of Civil Procedure (the CPC) submits that it is the duty of the

pleader to communicate to the Court the death of a party. I.A.No.4

of 2018 for impleading and I.A No.5 of 2018 for setting aside the

abatement were not brought to the notice of the Court on

10.07.2024 or on 31.07.2024 when the case was listed and were not

brought up for consideration till 08.08.2024. On 08.08.2024, the

applications were allowed. The petitioners were under the impression

that the additional appellant is the legal representative of the

deceased appellant. Sri.Kaimal would also submit that the additional

2nd appellant has filed the application for impleading as the legal

representative of the deceased appellant on the strength of a Will 2026:KER:767 RP NO. 862 OF 2025 ..7..

executed by the appellant and since he has not proved the Will by

adducing cogent evidence, he is not entitled to succeed as the legal

representative of the deceased appellant. Sri. Kaimal refers to

Section 68 of the Indian Evidence Act, 1872 which mandates that at

least one attesting witness to the Will has to be examined to prove

the Will and therefore, without doing so the genuinity of the Will is

not proved.

10. Smt. Zohra contended that the Will on the strength of

which the additional 2nd appellant had filed the application for

impleading as legal representative of the deceased appellant is a

registered Will and there cannot be any dispute regarding its

admissibility. In the affidavit filed in support of the said application,

the additional 2nd appellant had stated that the deceased appellant is

survived by wife and children. However, as per the Will, the plaint

schedule property has been bequeathed to the 2 nd appellant and the

subject property devolved on him and he is entitled to continue the

appeal as the legal representative of the deceased appellant.

Smt.Zohra refers to the affidavit filed in I.A. No. 4 of 2025 by the

legal heirs of the deceased appellant wherein they have stated that 2026:KER:767 RP NO. 862 OF 2025 ..8..

they are not disputing the Will executed by the deceased appellant in

favour of the 2nd additional appellant and that they have no objection

in the 2nd appellant prosecuting the appeal as the legal

representative of the deceased appellant. She contends that, if the

legal heirs and successors in interest of the deceased appellant do

not dispute the execution of the Will, the petitioners cannot dispute

the Will and the Will need not be proved.

11. In reply to the said contention, Sri.Kaimal would submit

that even if there is no dispute, Section 68 of the Indian Evidence

Act, 1872 requires at least one attesting witness to the Will to prove

its execution in terms of Section 63(c) of the Indian Succession Act,

1925 and without satisfying that mandatory requirement, the 2 nd

appellant cannot claim to have succeeded to the plaint schedule

property by virtue of the Will. It is contended that without proving

the execution of the Will in terms of the mandatory legal

requirements, this Court ought not have allowed the application of

the 2nd appellant for impleadment as the legal representative of the

deceased appellant.

12. It will be apposite to refer to Section 68 of the Indian 2026:KER:767 RP NO. 862 OF 2025 ..9..

Evidence Act, 1872 and Section 63 of the Indian Succession Act,

1925. Section 68 of the Indian Evidence Act reads as follows:

68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

13. Section 63 of the Indian Succession Act reads as

follows:

63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

2026:KER:767 RP NO. 862 OF 2025 ..10..

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

As per the proviso to Section 68 of the Evidence Act, a Will has to be

proved even though not specifically denied. This Court, in Leela and

Others v. Vasu and Others [2018 (1) KHC 876] : ILR 2018 (1)

Ker. 868 : [2018 (2) KLT OnLine 2009], observed as follows:

"Law is clear that a document, other than a Will, required to be attested by law, shall be proved by examining at least one of the attesting witnesses, if there be a specific denial of its execution. But, when there is no specific denial, which expression is clearly understood in the legal parlance in terms of the provisions under the Code and the relevant precedents, no burden to prove it under Section 68 of the Evidence Act could be cast on the propounder. Only exception to the above proposition is a Will, which may have to be proved even though not specifically denied."

As per Order 22 Rule 5 of the CPC, where a question arises as to

whether any person is or not the legal representative of the

deceased plaintiff or a deceased defendant, such question shall be 2026:KER:767 RP NO. 862 OF 2025 ..11..

determined by the subordinate court. The Hon'ble Supreme Court, in

Jaladi Suguna (deceased) through LRs. v. Satya Sai Central

Trust and Others [(2008) 8 SCC 521], while considering the object

of Order 22 Rules 4 and 5, held as follows:

"15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the Court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the Court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the Court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under O.22 R.5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject - matter of the suit, vis - à - vis other rival claimants to the estate of the deceased.

16. The provisions of R.4 and R.5 of O.22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties 2026:KER:767 RP NO. 862 OF 2025 ..12..

to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The Court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. The Code also provides that where 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 representatives of the deceased respondent to be made parties, and then proceed with the case. Though R.5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, R.4 read with R.11 makes it clear that the appeal can be heard only after the legal representatives are brought on record."

The additional 2nd appellant is claiming to be the legal representative

of the deceased appellant in the capacity of legatee of a Will

executed by the deceased appellant. The law mandates that a Will

has to be proved even though not specifically denied. Therefore, the

review petition is allowed and the order dated 08.08.2024 is

reviewed and I.A.No.4 of 2018 is referred to the Sub Court, Kannur

to decide the question as to whether Sri.Sreekumar, the additional

2nd appellant is or not the legal representative of the deceased

appellant by conducting an enquiry. Such an exercise shall be 2026:KER:767 RP NO. 862 OF 2025 ..13..

completed within two months from the date of receipt of a copy of

this order. The parties shall appear before the Sub Court on

19.01.2026.