Madras High Court

Patchana Sadayachiammal vs Chinnusami on 8 January, 2021

                                                                    C.R.P.(P.D).Nos.3262 and 3263 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 08.01.2021

                                                      CORAM:

                              THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                         C.R.P.(P.D).Nos.3262 and 3263 of 2015
                                                 and M.P.No.1 of 2015

                     Patchana Sadayachiammal                           ...Petitioner in
                                                                       both the C.R.P's.

                                                          Vs
                     1.Chinnusami
                     2.Kaliannan
                     3.Solla Thangarasu
                     4.Solla Ponnusamy
                     5.Kodukka Nallammal                               ...Respondents in
                                                                       both the C.R.P's.

                     Prayer in C.R.P.No.3262 of 2015: Civil Revision Petition filed under
                     Article 227 of the Constitution of India to set aside the fair and decretal
                     order of the learned Additional District Munsif, Namakkal dated 14.10.2014
                     in I.A.No.831 of 2012 in I.A.No.174 of 2012 in O.S.No.238 of 2004.


                     Prayer in C.R.P.No.3263 of 2015: Civil Revision Petition filed under
                     Article 227 of the Constitution of India to set aside the fair and decretal
                     order of the learned Additional District Munsif, Namakkal dated 14.10.2014
                     in I.A.No.174 of 2012 in O.S.No.238 of 2004.

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                                                                        C.R.P.(P.D).Nos.3262 and 3263 of 2015




                     In both the C.R.P's.
                                             For Petitioner      : Mr.T.M.Hariharan

                                             For Respondents     : Mr.C.Jagadish for R2
                                                                   No appearence for R1, R3 to R5


                                                COMMON ORDER

                                   The Civil Revision Petitions have been filed as against the

                                   (i) fair and decretal order of the learned Additional District

                     Munsif, Namakkal dated 14.10.2014 in I.A.No.831 of 2012 in I.A.No.174

                     of 2012 in O.S.No.238 of 2004.

                                   (ii) fair and decretal order of the learned Additional District

                     Munsif, Namakkal dated 14.10.2014 in I.A.No.174 of 2012 in O.S.No.238

                     of 2004.



                                   2.The petitioner in both the Civil Revision Petitions is the third

                     party in the suit in O.S.No.238 of 2004, filed by the 1st and 2nd respondent

                     herein, for the relief of partition.




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                                                                        C.R.P.(P.D).Nos.3262 and 3263 of 2015

                                   3.After commencement of trial, the 5th defendant was examined

                     as D.W.1.         When the evidence of defendants side was closed, the

                     respondents 1 and 2 filed a petition to recall the D.W.1 for further cross

                     examination. When the said petition was pending, it was reported that the

                     5th defendant was died. Thereafter, the petitioner filed a petition to implead

                     herself as the legal heir of the 5th defendant in I.A.No.583 of 2014 and the

                     same was allowed on 14.10.2014 and consequently the petitioner herein has

                     been impleaded as a 12th defendant in the suit. In the meanwhile, the

                     respondents 1 and 2 herein filed a petition in I.A.No.174 of 2012 to implead

                     the wife of the 5th defendant in the suit. When the said petition is pending,

                     the 1st proposed defendant viz., the 6th defendant in the suit filed counter

                     stating that she is the wife of the 5th defendant and they gave birth to one

                     Paneer Selvam. Therefore, again the 1st and 2nd respondent herein filed

                     another petition in I.A.No.831 of 2012 to implead the said Paneer Selvam as

                     one of the proposed defendant in the suit. Both the petitions were allowed

                     and they were impleaded as 6th and 7th defendants in the suit.

                                   4.The learned counsel for the petitioner in both the Civil Revision

                     Petitions would submit that she raised the categorical plea that the 6th


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                                                                      C.R.P.(P.D).Nos.3262 and 3263 of 2015

                     defendant had got customary divorce from the 5th deceased defendant and

                     never gave birth to the 7th defendant in the suit, through the 5th deceased

                     defendant. Further submitted that the 6th defendant, after divorce from the

                     5th deceased defendant got married with one Chellappan and gave birth to

                     one Chelladurai and not gave birth to the 7th defendant in the suit. When

                     the petitioner raised specific plea, it was not considered by the trial Court

                     and the same was allowed and the 6th and 7th defendants were impleaded as

                     a parties in the main suit. Further the trial Court has made an endorsement

                     that determination of legal heirship of 6th and 7th defendants can be

                     decided only at the time of trial by letting evidence. He also relied upon the

                     provisions of Order 22 Rule 5 in respect of determination of question as to

                     legal representative as follows:-

                                            "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:
                                            [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

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                                                                        C.R.P.(P.D).Nos.3262 and 3263 of 2015

                                   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.]"
                     Accordingly, when deciding the legal heirship, it shall be determined first

                     by the Court. In this regard he also relied upon the case of Jaladi Suguna

                     (deceased) through LR's Vs. Satya Sai Central Trust and Others reported

                     in 2008 8 SCC 521. Relevant paragraphs are extracted hereunder:-

                                             "B.Civil Procedure Code, 1908 - Or.22 Rr.4, 5 r/w
                                   R.11 and S.96 - Postponement of determination of LRs -
                                   High Court deciding first appeal on merits prior to
                                   determining the LRs of the deceased respondent-plaintiff -
                                   held, court cannot postpone determination of LRs for being
                                   decided along with merits.
                                             ............

............

G.Civil Procedure Code, 1908 - Or.22 Rr. 5, 3 & 4 and S. 2(11) - Impleadment of LRs in suit/appeal - Purpose - Held is for the limited purpose of adjudication of case and not for the purpose of determination of proprietary rights - Proprietary rights to be determined by way of separate suit.

............

...............

15.Filing an application to bring the legal

https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).Nos.3262 and 3263 of 2015

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 representative, 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 Order 22 Rule 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-a-vis other rival claimants to the estate of the deceased."

In the above cited Judgment, the Hon'ble Supreme Court has held that the

determination of as to who is the legal representative under Order 22 Rule 5

https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).Nos.3262 and 3263 of 2015

will of course be for the limited purpose of representation of the said

deceased for adjudication of that case. Such determination for such limited

purpose will not confer on the present legal heirs having any right to the

property. It is the subject matter of the suit. Accordingly, it cannot be

postponed for determination of legal heirship, it cannot be postponed to the

trial of the suit. In the case on hand though the trial Court impleaded the

6th and 7th defendants as legal heirs of 5th deceased defendant. In respect

of their legal heirship and their entitlement it has to be decided in the main

suit. Therefore, the orders passed by the trial Court are perverse, illegal and