Madras High Court
Vijaya vs Annalakshmi on 9 February, 2023
CRP(MD)No.73 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.73 of 2023
and
CMP(MD)No.348 of 2023
1.Vijaya
2.Elizebeth
3.Senniammal @ Esther
4.Sekar : Petitioners
Vs.
M.Perumathal (Died)
1.Annalakshmi
2.Muthuremalingam : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India to call for the records relating to the fair and decreetal order dated
13.09.2022 passed by the learned Subordinate Judge, Sivakasi, Virudhunagar
District, in I.A.No.1 of 2021 in I.A.No.310 of 2016 in O.S.No.4 of 2014 and set
aside the same.
1/10
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CRP(MD)No.73 of 2023
For Petitioners : Mr.K.Vinayagan
*****
ORDER
The petitioners before this Court are the defendants in the suit in O.S.No.4
of 2014 pending before the Sub Court, Sivakasi. The suit was filed by one
M.Perumathal seeking partition. The preliminary decree in the suit was passed on
20.06.2016 and thereafter, the plaintiff filed I.A.No.310 of 2016 for final decree.
Pending that application, the plaintiff died on 17.01.2021 and the first respondent
herein filed an interlocutory application in I.A.No.1 of 2021 under Order 1 Rule
10(2) CPC to add her as a legal representative of the deceased plaintiff, based on a
Will. The trial Court, by order dated 13.09.2022, allowed this interlocutory
application and aggrieved over the same, the petitioners / defendants have filed the
present revision petition.
2.According to the petitioners, the first respondent is not the legal heir of the
deceased M.Perumathal and no legal heir certificate of the sole plaintiff was
produced. Since there are no Class I legal heirs, the petitioners have to be treated
as Class II legal heirs of the sole plaintiff.
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CRP(MD)No.73 of 2023
3.Learned Counsel for the petitioners contended that the first respondent
cannot be impleaded, based on a Will, without probating the same.
4.Order XXII Rule 3 CPC deals with the procedure in case of death of one
of several plaintiffs or of sole plaintiff. For better appreciation, the same is
extracted as under:-
“3. (1) Where one of two or more plaintiffs dies and the right to
sue does not survive to the surviving plaintiff or plaintiffs alone, or a
sole plaintiff or sole surviving plaintiff dies and the right to the sue
survives, the Court, on an application made in that behalf, shall cause
the legal representative of the deceased plaintiff to be made a party and
shall proceed with the suit.
(2) Where within the time limited by law no application is made
under sub-rule (1), the suit shall abate so far as the deceased plaintiff is
concerned, and, on the application of the defendant, the Court may
award to him the costs which he may have incurred in defending the
suit, to be recovered from the estate of the deceased plaintiff.”
5.The sole plaintiff, M.Perumathal, died on 17.01.2021. Therefore, the legal
representative of M.Perumathal has to be made as a party to proceed further. The
first respondent herein propounded a registered Will dated 25.03.2019 executed by
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CRP(MD)No.73 of 2023
the sole plaintiff in her favour. She also examined one of the attestors of the Will
as PW2. No doubt, a legatee under a Will is a legal representative of the deceased
under Order XXII Rule 3 CPC. But, the question to be decided is whether
probating of the Will is essential in impleading the legatee i.e., the first respondent
herein.
6.In this regard, the High Court of Andhra Pradesh in Tynala Musalayya v.
J. Mohanraj [AIR 1982 AP 410], has held as follows:-
“5. The decisions cited may be considered: The Supreme Court
in Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471, held that in a
suit between the parties regarding the claim for a property, the party
who asserts right under a Will has to necessarily produce the probate or
letters of administration for establishing the right. The production of the
probate of the Will is essential for establishing the right but it cannot be
considered as a condition precedent or the essential requisite for
continuance of the litigation as such as the legal representative of the
deceased. In K. Laxminarayan v. Gopalaswami, AIR 1963 Andh Pra
438, the creditor who filed the suit died during the pendency of the suit
and his legal representatives were brought on record under O. 22,
C.P.C. It was held that it is obligatory upon the legal representatives to
produce the Succession Certificate and unless the Succession Certificate
is produced the decree cannot be passed in favour of the legal
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CRP(MD)No.73 of 2023
representatives and the time should be give to the legal representatives
to obtain succession certificate in relation to the debt in question and as
the opportunity was not given by the Court below, the matter was
remitted to the lower Court with a direction to give due notice to the
legal representatives to enable them to produce the succession
certificate and decide the issue in the suit depending upon the
production or otherwise. This case clearly demonstrates that the
continuance of the suit as such is not precluded by S. 213 or S. 214 of
the Act but it is only at the point of time when the legal representative
establishes his right, the production of succession certificate is
imperative. In K. Apparao v. J. Venkanna, (1969) 2 Andh WR 479, in an
execution petition filed by the son of the deceased father claiming right
under the Will the Court below directed the legal representative to file
the succession certificate. The Division Bench of this Court held that the
execution of the decree cannot proceed unless the person is entitled to
succession and the succession certificate is produced as provided under
S. 214(1)(b) of the Act and upheld the direction of the Court below.
While affirming the view of the Court below the Division Bench again
granted four months time from the date of the judgment for filing the
succession certificate as directed by the Court below. The principle that
can be deduced from this case also is that the disposal of the petition for
bringing on record legal representatives need not be stalled and the
time can be given by the Court to produce the succession certificate.
The decision in Alamelammal v. Suryaprakasaroya Mudaliar,
(1915) ILR 38 Mad 988 : (AIR 1916 Mad 512(2)) is concerned with the
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CRP(MD)No.73 of 2023
issue whether the mere production of the Will by the executor in the case
is sufficient and in this context it is held that the production of the
probate or letters of administration is essential and the production of
the Will as such is not sufficient. In Mahabir Das v. Udit Narain, AIR
1938 Pat 613, it was held that no rights whatsoever can be founded
upon the Will in the absence of probate of the Will.
In Narasayyamma v. Andhra Bank Ltd., AIR 1960 Andh Pra 273,
the Division Bench of this Court held that S. 213 is not concerned with
the vesting of the property of the deceased person in the executor and
the vesting does not arise from the probate and the title is derived from
the Will only. The grant of probate does not confer any title on the
executor and can be relied upon in proof of the title. Sections 213 and
214 are not concerned with the continuance of the litigation by the legal
representatives. There is no bar or impediment for the persons to bring
on record as legal representatives or for the executor to come on record
as the person representing the estate, but at the time when the right is
sought to be established under the Will the production should be
insisted upon by the Court and even in a situation where the probate
could not be obtained immediately the time can be given for the
production of the probate of the Will. The Court below was seized of the
matter with regard to the petition for bringing on legal representatives
and at the stage of passing orders for bringing on record the legal
representatives, it is not necessary that the probate of the Will should be
produced. The procedure of bringing on record legal representatives is
for the continuance of the litigation on behalf of the deceased person
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CRP(MD)No.73 of 2023
and if the insistence upon production of the probate is made at this
stage, the suit is likely to be abated as there will be delay in granting
probate of the Will or letters of administration. The object of Section
213 or Sec. 214 is to reinforce the right under the Will by the production
of unimpeachable evidence viz., letters of administration or probate of
the Will granted by the Court.”
7.In view of the above ratio, the production of the probate or letters of
administration is an essential condition to claim the rights of the sole plaintiff in
this case; and examining one of the attestors will not amount to proving the Will,
as the veracity of the witnesses is not tested by way of any cross examination. But,
at the same time, the impleading petition need not be stalled for probate or
production of letters of administration. Based on this Will, the first respondent
qualifies as a legal representative for the purpose of this impleading petition and
the Court may proceed further to pass a final decree based on the same. But this
right of the first respondent is subject to the probate or production of letters of
administration, until which the decree shall not be executed. Since the petitioners
are claiming that the Will is a forged one, the same shall also be decided in the
proceedings to be initiated by the first respondent for obtaining probate or the
letters of administration.
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CRP(MD)No.73 of 2023
8.The petitioners have also contended that the first respondent cannot be
impleaded, as the disputed Will is barred by Section 52 of the Transfer of Property
Act, inasmuch as it was executed during the pendency of the proceedings. This
contention is also of no merit, in view of the decision in Devaki Thiyagarajan v.
Ahamed & Ors [2015 (4) CTC 293], wherein, it was held that the Court has ample
powers under Order 1 Rule 10 CPC to implead the transferee pendente lite at any
stage which is necessary for the complete adjudication of the issue. Moreover, a
Will comes into force only upon the death of the testator and the first respondent
herein wanted to get herself impleaded only on the capacity of a legal
representative based on the Will.
In view of the foregoing reasonings and discussions, this Court is not
inclined to entertain this civil revision petition and the same is accordingly,
dismissed. No costs. Consequently, connected miscellaneous petition stands
closed.
Index : Yes / No 09.02.2023
gk
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CRP(MD)No.73 of 2023
To
The Subordinate Judge,
Sivakasi, Virudhunagar District.
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CRP(MD)No.73 of 2023
B.PUGALENDHI, J.
gk
CRP(MD)No.73 of 2023
09.02.2023
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