Madras High Court

P.Parameshwari vs Subbathal (Died) on 8 November, 2024

                                                                C.R.P.Nos.3893, 3032 and 3031 of 2024

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 08.11.2024

                                                     CORAM :
                                  THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
                                          C.R.P.Nos.3893, 3032 and 3031 of 2024
                                       and CMP Nos.21323, 16309 and 16317 of 2024

                     C.R.P.No.3893 of 2024

                     1.P.Parameshwari
                     2.P.Maheshwaran
                     3.P.Hariharan                                          ... Petitioners
                                                         -Vs-
                     Subbathal (Died)
                     1.Poovathal
                     Santhammal (Died)
                     2.K.Palanisamy
                     3.K.Selvaraj
                     Sivaraju (Died)
                     4.G.Sasikumar
                     5.S.Maheswari
                     6.Minor S.Bharath Prnao
                       Rep.by mother S.Maheswari
                     7.Minor S.Tharun Pranao
                       Rep.by mother S.Maheswari
                     8.M.Palanathal
                     9.R.Kamalathal
                     10.P.Sornathal
                     11.V.Saraswathi
                     12.V.Selvakumar                                               ... Respondents

                     PRAYER : Civil Revision Petition under Article 227 of the Constitution of India
                     to set aside the fair and final order dated 17.04.2024 made in I.A.No.131 of
                     2024 in O.S.No.110 of 1997 on the file of the Additional District Munsif Court
                     (FAC) Tiruppur.

                                  For Petitioners   :   Mr.N.S.Suganthan
                                  For Respondents   :   Mr.R.Sunil Kumar - for RR 1 to 7
                                                        Mrs.Chitra Sampath, Senior Counsel
                                                        for Mr.T.S.Baskaran - for RR 8 to 10
                                                        Mr.R.Sivaprakasam - for RR 11 and 12

https://www.mhc.tn.gov.in/judis


                     Page 1 of 28
                                                                C.R.P.Nos.3893, 3032 and 3031 of 2024

                     C.R.P.Nos.3031 and 3032 of 2024

                     1.Saraswathi
                     2.Selvakumar                                           ...   Petitioners

                                                        -Vs-

                     1.Poovathal
                     Santhammal (Died)
                     2.K.Palanisamy
                     3.K.Selvaraj
                     Sivaraju (Died)
                     4.G.Sasikumar
                     5.S.Maheswari
                     6.Minor S.Bharath Prnao
                       Rep.by mother S.Maheswari
                     7.Minor S.Tharun Pranao
                       Rep.by mother S.Maheswari
                     Rasappa Gounder (Died)
                     8.M.Palanathal
                     9.R.Kamalathal
                     P.Sornathal (Died)
                     10.Eswaran                                             ...   Respondents


                     PRAYER in C.R.P.No.3031 of 2024 : Civil Revision Petition under Article
                     227 of the Constitution of India to set aside the proceedings / adjudication
                     dated 16.07.2024 permitting the filing of written statement of D-7 and
                     additional written statement of D-2, D-3 and D-4 passed by the Additional
                     District Munsif at Tiruppur in O.S.No.110/1997.
                     PRAYER in C.R.P.No.3032 of 2024 : Civil Revision Petition under Article
                     227 of the Constitution of India to set aside the proceedings / adjudication
                     dated 18.07.2924 permitting the filing of written statement of D-7 and
                     additional written statement of D-2, D-3 and D-4 passed by the Additional
                     District Munsif at Tiruppur in O.S.No.110/1997.


                                  For Petitioners   :   Mr.R.Sivaprakasam
                                  For Respondents   :   Mr.R.Sunil Kumar - for RR 1 to 7
                                                        Mrs.Chitra Sampath, Senior Counsel
                                                        for Mr.T.S.Baskaran - for RR 8 to 10
https://www.mhc.tn.gov.in/judis


                     Page 2 of 28
                                                                      C.R.P.Nos.3893, 3032 and 3031 of 2024



                                                         COMMON ORDER

This is a truly unfortunate case. The litigation has been languishing for

the past 27 years and that too, at the level of trial. The parties have been

litigating only on the peripheries without being in a position to find the result

of the litigation.

2. For the sake of convenience, the parties will be referred to as per

their rank in the suit.

3. This is a suit for partition. Originally, one Sornathal filed O.S.No.392

of 2006 on the file of Additional District Munsif, Tiruppur seeking for partition

and separate possession. That suit was dismissed as withdrawn, constraining

her sister one Subbathal to present this suit for the very same relief.

4. For the sake of ready understanding, the genealogical tree is given

below.

Ramasamy Gounder −−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−↓−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− ↓ ↓ ↓ ↓ ↓ Subbathal Rasappa Gounder Palanathal Sornathal Velusamy −−−−−−−−−↓−−−−− ↓ ↓ Saraswathi Selvakumar

https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

5. The dispute relates to the properties that were left behind by

Ramasamy Gounder. There is no dispute that Ramasamy Gounder had two

sons and three daughters. The plaintiff, pleading that Ramasamy Gounder

had died intestate and his wife having predeceased, the plaintiff and the

defendants 1 to 4 have 1/6th share individually and defendants 5 and 6 are

entitled to 1/6th share in common. Defendants 5 and 6 are the legal heirs of

one Velusamy, deceased son of Ramasamy Gounder.

6. The plea of defendants 5 and 6 is that Ramasamy Gounder had

executed a "WILL" in favour of Velusamy bequeathing all the properties that

he possessed in favour of the said Velusamy. They added that Velusamy died

in the year 1992 and even during his lifetime, on the strength of the "WILL",

he had alienated the properties which are the subject matter of the suit in

favour of several third parties. Defendants 2 to 4 viz., the siblings of the

plaintiff had no objection for the suit being decreed as prayed for. In fact

they filed a memo submitting to the decree. The first defendant Rasappa

Gounder did not contest the suit and remained exparte. So too was the

situation with respect to the defendants 2 to 4. They initially remained

exparte. Thereafter the exparte decree was set aside and then they filed a

memo stating that they are submitting to the decree. The contest was only

at the instance of the defendants 5 and 6.

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C.R.P.Nos.3893, 3032 and 3031 of 2024

7. Issues were framed and the parties went for trial. As the

relationship between the parties was admitted and since the "WILL" was

projected by the defendants 5 and 6 to defeat the claim of the plaintiff, the

learned trial Judge called upon the defendants 5 and 6 to depose first and

thereafter directed the plaintiff to tender evidence. It is not in dispute that

the said defendants tendered evidence by examining D.W.1 to D.W.4. Of

whom, D.W.2 and D.W.3 are the attesting witnesses and D.W.4 is said to be

a purchaser of the property. The defendants marked Exs.B1 to B17.

8. Having completed their side of evidence, it was now the turn of the

plaintiff. The original plaintiff Subbathal entered the witness box and filed her

proof affidavit. Thereafter, she went to meet her maker. Therefore, her

evidence was eschewed. Her son Palanichamy deposed as P.W.1. Another

person was also examined as P.W.2. The plaintiff's evidence were closed and

the matter was posted for arguments.

9. I have to narrate another circumstance which intervenes. The

plaintiff Subbathal wanted to introduce two documents in I.A.Nos.646 of

2010. Those two documents are said to be photostat copies of the notice

issued by Sornathal (4th defendant) to Saraswathi and Selvakumar

(defendants 5 and 6) and the alleged reply notice issued by defendants 5 and

6 to Sornathal. She pleaded that those two documents had been filed as

plaint documents in O.S.No.362 of 1994 filed by Sornathal for partition. https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

10. Learned District Munsif at Tiruppur was pleased to allow the

application on 29.02.2012. Aggrieved by the same, the defendants 5 and 6

moved this Court by way of a revision in C.R.P.(PD) No.1707 of 2012. The

said revision came to be allowed on 28.03.2019 holding that, as the plaintiff

had not complied with the requirements of Section 65 of the Indian Evidence

Act, she is not entitled to let in evidence on those documents. Thereafter, the

matter came back before the Trial Court.

11. Yet again, the parties were constrained to approach this Court by

way of C.R.P.No.504 of 2024. The said revision was at the instance of the

4th defendant Sornathal, who had filed an application in I.A.No.640 of 2023

seeking to re-open the case and to adduce evidence on behalf of defendants

2 to 4. The defendants 5 and 6 stoutly opposed the application stating that

as the fourth defendant had not filed any written statement, her plea to re-

open and recall is untenable. The learned Additional District Munsif at

Tiruppur, to whom the suit stood transferred by lapse of time accepted the

plea of the defendants 5 and 6 and rejected the petition. The revision

challenging the order passed in I.A.No.640 of 2023 came to be dismissed on

05.03.2024 holding that, as the petitioner had not filed any written statement

in the suit nor having raised any specific plea, she is not entitled to let in any

oral or documentary evidence. Soon after the dismissal of the revision,

Sornathal passed away. This gave rise to the present round of litigation. https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

12. There is no dispute that the 7th defendant is the legal heir of

Sornathal. An application was filed to implead him as the legal representative

in I.A.No.367 of 2024. This application was allowed and the amended plaint

copy was filed by the plaintiff on 16.07.2024. On that date, the learned

District Munsif adjourned the matter for the written statement of the 7th

defendant and also for additional written statement of defendants 2 to 6.

Aggrieved by the said order of the learned District Munsif, the defendants 5

and 6 are before this Court in C.R.P.No.3031 of 2024.

13. Feeling aggrievedd at the 7th defendant being permitted to file a

written statement, a memo came to be filed by the defendants 5 and 6

stating that as Sornathal had remained exparte, there is no question of her

legal heir viz., the 7th defendant filing a written statement. This memo of

objections came to be rejected by the learned Additional District Munsif by an

order dated 18.07.2024. Hence, the revision in C.R.P.No.3032 of 2024.

14. As is expected in a proceeding which is pending for nearly three

decades and more, the 1st defendant also passed away pending the litigation.

His son had predeceased him. Therefore, his daughter-in-law and two

grandchildren filed an application in I.A.No.131 of 2024 seeking to implead

themselves as legal representatives of the deceased 1st defendant. This was

opposed by the defendants 5 and 6 on the ground that an application under

Order XXII Rule 4 ought to have been filed and since the plaintiff had filed an https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

application to exempt her from impleading the legal representatives of the

deceased 1st defendant and that having been allowed, an application at the

instance of the legal representative is not maintainable. The learned Trial

Judge found favour with the plea and dismissed I.A.No.131 of 2024. Hence

the revision in C.R.P.No.3813 of 2024.

15. As all the three revisions arise out of the same proceedings, I

clubbed the matters by an order dated 26.09.2024 and listed them for

hearing today.

16. I heard Mr.R.Sivaprakasam for the civil revision petitioners in

C.R.P.Nos.3031 of 2024 and 3032 of 2024 , Mr.N.S.Suganthan for the civil

revision petitioner in C.R.P.No.3893 of 2024, Mr.Sunil Kumar for respondents

1 to 7, who are the legal heirs of the plaintiffs and Mrs.Chitra Sampath, Senior

Counsel for respondents 8 to 10.

17. Mr.Sivaprakasam pleads that since the 4th defendant had remained

exparte and had not filed her written statement, her legal representative, the

7th defendant is not entitled to file a written statement. As an alternative

plea, he pleads that the 4th defendant, even as early as in 2010, had filed a

memo submitting to the decree and therefore there is no necessity for the 7th

defendant to file a written statement at all. He states that this position is no

longer res integra and relies upon the judgments in https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

(a) Muhammed Naina Maraccair and Others -vs- Ummanaikani

Ammal and Others (AIR 1930 Madras 593)

(b) Kizhiakalathil Puthan Veetil Thavazhi Karnavan -vs- Manikat

Variath Ukkali Varissiar's son Sankunni and Others (AIR

1935 Madras 52).

(d) Ramgopal and Others -vs- Khivraj and Others (AIR 1998

Rajasthan 98).

18. Per contra, Mrs.Chitra Sampath, learned Senior Counsel relies upon

a judgment of the Supreme Court in Abdul Razak (Dead) through LRs and

Others -vs- Mangesh Rajaram Wagle and others [ (2010) 2 S.C.C.432 ] to

plead that the newly impleaded defendant is entitled to file a written

statement and the only bar is that the said defendant cannot take a plea

independent of that urged by the deceased defendant. Supporting this plea,

Mr.N.S.Suganthan cites a decision of the Bombay High Court in Gopaldas &

Co. -Vs- Gopaldas Corporation (AIR Online 2020 Bom 3075).

19. Mr.N.S.Suganthan appearing for the civil revision petitioners in

C.R.P.No.3893 of 2024 urges that his client's petition to implead themselves

as the legal representatives of the deceased 1st defendant was dismissed on

https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

the ground that the plaintiff had been granted exemption under Order XXII

Rule 4(4) of the Code of Civil Procedure (CPC). He argues that the said order

does not prevent the legal representatives to file an application to come on

record.

20. This revision too is opposed by Mr.Sivaprakasam. Relying upon a

judgment of this Court in V.Veerannan & Another -vs- Varadarajan and

Others [2017(2) Madras Weekly Notes (Civil) Page 12], he says that the ratio

that flows out of this judgment is that, if exemption is granted under Order

XXII Rule 4(4) of CPC, the legal representatives are not entitled to file an

application to come on record.

21. I have carefully considered the submissions of all the learned

counsels. I am dividing this judgment into two parts, the first part dealing

with C.R.P.Nos.3031 of 2024 and 3032 of 2024 and the later part dealing with

C.R.P.No.3893 of 2024.

22. Even at the outset, I have to remind myself that the proceeding I

am dealing with, is a suit for partition. In a suit for partition, it is trite that

every party is treated either as plaintiff or as the defendant. This is because,

though the plaintiff might have launched the litigation, during the course of

the proceedings if the defendant who has a share in the property feels his

interest is being jeopardised by the plaintiff in either withdrawing the suit or https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

in the manner in which the suit is being conducted, he can always transpose

himself and continue the said proceedings as a plaintiff. I shall now deal with

the issue by remembering this fundamental principle of law in mind.

23. The narration of the aforesaid facts go to show that the plaintiff

had originally succeeded in obtaining an exparte preliminary decree for

partition. Subsequently, the defendants took out an application to set aside

the exparte decree and the said exparte decree was set aside on 22.12.2008.

This was on the basis of the application filed by the defendants 5 and 6 in

I.A.No.178 of 2006. Being a suit for partition, the first proviso to Order IX

Rule 13 of CPC operated and therefore, the decree could not have been set

aside only as against the defendants 5 and 6 and had to be set aside against

all. The 4th defendant took out a similar application in I.A.No.197 of 2005.

24. The exparte decree having been set aside, the suit was restored on

to its original position. Thereafter, the 4th defendant had filed a memo

submitting to the decree on 07.02.2010. It is not in dispute that the 4 th

defendant passed away in May 2024. Thereafter, the plaintiff took out an

application in I.A.No.367 of 2024 to bring on record her son one Eswaran as

the legal representative of the deceased 4th defendant. This application was

allowed on 28.06.2004. The plaintiff carried out the amendment and also

filed the amended plaint copy. It is here that the cause of action for the first

revision arises. The learned Judge passed the following order on 16.07.2024. https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

“ Written statement of 7th defendant and additional written

statement of defendants 2 to 6. Call on 18.07.2024. No further

adjournment.”

25. Taking note of the fact that the 7th defendant has been given an

opportunity to file a written statement, the defendants 5 and 6 filed a memo

stating the aforesaid grounds opposing the opportunity granted to the 7th

defendant to file a written statement. The learned Judge rejected this memo

and received the written statement filed by the 7th defendant.

Mr.Sivaprakasam, relying upon the authorities referred to supra pleads that,

as the 4th defendant had submitted to a decree, her legal representative is not

entitled to file a written statement. Therefore, necessarily I have to refer to

the authorities cited by him, in order to see whether those judgments laid

down the proposition as pleaded by Mr.Sivaprakasam.

26. The first of the judgment of Wallace, J. in Muhammed Naina

Maraccair and Others -vs- Ummanaikani Ammal and Others (AIR 1930

Madras 593). That was a case where the legal representative sought to

project a new case than what was projected by the deceased defendant. This

plea was nipped by this Court by holding that, as a legal representative he is

not entitled to plead any independent right or claim against the plaintiff. The

Court held that he has to confine himself to the four corners of the pleadings https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

as had been originally pleaded by the deceased defendant. This judgment

merely follows the fundamental principle of civil law that a legal

representative cannot take a plea different than that had been urged by the

deceased defendant. It is not far to see why this principle was developed.

The plaintiff presents a suit as against the defendant pleading a specific case.

The defendant would have filed written statement denying or accepting the

case. If on his/her death, the legal representative is permitted to raise a new

plea claiming a new or different right, then the plaintiff will have to fight a

litigation on pleas which he had never originally presented opposing the

plaint. Mid way through the litigation, a plaintiff cannot be called upon to

start a new front which he never contemplated when he presented the plaint.

In fact, it is on this premise that Walsh, J. in Kizhiakalathil Puthan Veetil

Thavazhi Karnavan -vs- Manikat Variath Ukkali Varissiar's son Sankunni

and Others (AIR 1935 Madras 52) held that a legal representative, if

permitted to depart, vary, or contradict from the original stand of the person

for whom he has entered appearance as legal representative, then there will

be no end to the litigation.

27. Mr.Sivaprakasam heavily relies upon the judgment in Arijit Mittra

-Vs- Goutam Mitte (AIR 2008 Calcutta 273) to plead that an impleaded

defendant cannot and should not be permitted to file a fresh written

statement. On the basis of this judgment, he argues that a legal

representative cannot present a written statement at all. https://www.mhc.tn.gov.in/judis Though the head

C.R.P.Nos.3893, 3032 and 3031 of 2024

note seems to indicate as to what Mr.Sivaprakasam argues, a careful perusal

of the judgment shows the head note has not captured the view of the

learned Judge in a correct perspective. That was a case where the newly

impleaded defendant (called as substituted defendant as per the practice in

the Calcutta High court), had attempted to raise a plea that subsequent

events had arisen, which he is entitled to bring to the notice of the Court by

way of a fresh written statement. The legal representative further argued

that he is not bound by the written statement that had been filed by his

predecessor on whose behalf he has been impleaded as a legal

representative. This very unique plea of the newly impleaded party was

rejected by the learned Judge in Para 9 of the order. He pointed out the

distinction between Order XXII of the Code and Order I Rule 10 of the Code.

The distinction being, if a party is impleaded under Order XXII of the Code,

he is bound by the defence that has been raised by the person who had

initially filed his written statement. If he is impleaded under Order I Rule 10

of the Code, then he is not even impleaded in the capacity as a legal

representative, but in his individual capacity. In case of the former, the

learned Judge adopted the reasoning of Wallace, J. and that of Walsh, J.

cited above and held that a legal representative cannot exceed the written

statement originally filed by the deceased defendant. The learned Judge

further pointed out that, if a person had been newly impleaded, as he has

been brought on record as a fresh party, he can file an independent written

statement. Hence, this judgment too does not lay down the proposition https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

urged by Mr.Sivaprakasam.

28. The next judgment relied upon by Mr.Sivaprakasam is the view of

the Rajasthan High Court in Ramgopal and Others -vs- Khivraj and Others

(AIR 1998 Rajasthan 98). A learned Single Judge in that case adopted the

reasoning in Kizhiakalathil Puthan Veetil Thavazhi Karnavan -vs- Manikat

Variath Ukkali Varissiar's son Sankunni and Others (AIR 1935 Madras 52)

and held in Para 7, that a legal representative substituted in the place of a

deceased defendant cannot set up a new case.

29. I have absolutely no quarrel with Mr.Sivaprakasam that a

defendant who is brought on record as a legal representative cannot exceed

the pleas taken by the person on whose behalf he has been impleaded. Yet,

I am not able to travel the distance, which Mr.Sivaprakasam wants me to do,

to hold that the said defendant is not entitled to file a written statement at all.

It is one thing to say that a newly impleaded defendant is bound by the plea

taken by his predecessor and entirely another to plead that he is not entitled

to file a written statement at all.

30. The Code permits a legal representative to file a written statement,

but directs that his written statement must be confined to the capacity in

which he is brought on record. This is clear from a mere perusal of Order

XXII Rule 4(2) of the Code, which declares that any person who is brought on

record https://www.mhc.tn.gov.in/judis in terms of Order XXII Rule 4(1) of the Code can take a defence

C.R.P.Nos.3893, 3032 and 3031 of 2024

appropriate to his character as a legal representative of the deceased

defendant. The very fact that the CPC under Order XXII Rule 4(2) states that

a substituted defendant is entitled to make a defence shows that the Code

permits the said defendant to file a written statement. Such written

statement should be circumscribed by the capacity in which he is brought on

record. At this juncture, I have to hold that the view taken by Menon, J. in

Gopaldas & Co. -Vs- Gopaldas Corporation (AIR Online 2020 Bom 3075)

cited supra directly applies to the facts of the present case.

31. A combined reading of the aforesaid authorities with Order XXII

Rule 4(2) of CPC only leads me to the conclusion that the plea of

Mr.Sivaprakasam that a newly impleaded party is not entitled to file any

defence does not require any acceptance at the hands of this Court.

32. I now go to the second point of Mr.Sivaprakasam that the

deceased 4th defendant had submitted to the decree by filing a memo before

the trial Court on 07.02.2010 and therefore the 7th defendant is not entitled to

file a written statement. He states, when a party has submitted to the decree

there is no necessity for the defendant to take a defence at all. This corollary

submission requires a probe. What is the effect of a defendant filing a submit

decree memo in a partition suit ? It means that the defendant not only

concedes to the claim of the plaintiff, but also requests the Court that the suit

may be decreed and her share in the property may also be declared. It is yet https://www.mhc.tn.gov.in/judis

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another thing that the Court might not order the share unless and until the

said defendant pays a separate Court fee claiming the relief. The non-

payment of Court fee does not mean that the defendant who filed a submit

decree memo is not entitled to a share. The 4th defendant, by filing a memo

in the present suit, had conceded to the 1/6th share of the plaintiff and at the

same time, pleaded that she is also entitled to 1/6th share. This implies that

she has denied the exclusive right of claim by the defendants 5 and 6.

33. A perusal of the written statement filed by the 7th defendant shows

that he has not taken any new plea for me to reject the written statement. In

Para 3 of the written statement, he specifically states that as Sornathal, his

mother, is entitled to one share out of the six shares, the same may be

allotted to him. He has actually clarified by way of Paras 4 and 5 that the

plea of exclusive title as claimed by the defendants 5 and 6 is not acceptable

to him.

34. I am not in a position to understand as to how this written

statement filed by the 7th defendant resiles or militates against the position

taken by the deceased 4th defendant. The 4th defendant too wanted a share

and submitted to the decree. As pointed out above, the "submit to decree"

implied that she has denied the claim of exclusive right of defendants 5 and

6. Therefore, I am not in a position to agree with the plea of

Mr.Sivaprakasam that the written statement filed by the 7th defendant runs https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

contrary to the submit decree memo filed by the 4th defendant.

35. When this was pointed out by me, Mr.Sivaprakasam took a plea

that, what could not be done by the plaintiff is indirectly being done by the 7th

defendant. He relies upon the judgment of this Court in C.R.P.No.1707 of

2012 dated 28.03.2019. The argument, being that the plaintiff wanted to

introduce, two lawyer's notices dated 19.05.1994 and 22.05.1994 and that

having been rejected by this Court, it is not open to the 7th defendant to file

the same.

36. Looking at the order of Mr.Justice N.Sathish Kumar, it becomes

clear the learned Judge did not reject the documents as pleaded by

Mr.Sivaprakasam and holding that they are non-existent. The learned Judge

had rejected those documents on the ground that the plaintiff had not laid

the foundation as required under Section 65 of the Indian Evidence Act. In

case the learned Judge had held that the documents are non-existent and are

acts of fabrication, then perhaps it would have been open to Mr.Sivaprakasam

to plead that the 7th defendant is not entitled to produce the same.

37. The 7th defendant is the son of the plaintiff in O.S.No.362 of 1994.

Two documents annexed to the written statement were filed as documents in

the said suit. I pointed out to Mr.Sivaprakasam that the exchange of notices

were between the deceased Sornathal and defendants 5 and 6, and it is

flummoxing as to how Subbathal the plaintiff could have produced the said https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

documents. This is because she is not a party to the said transaction.

However, the same cannot be said against the 7th defendant. The 7th

defendant, being the son of the plaintiff in O.S.No.362 of 1994, is certainly

entitled to produce the documents produced by his mother in the said suit.

38. Further more, I have come to the conclusion that a newly

impleaded defendant is entitled to file written statement as long as they do

not run contrary to his status as a legal representative. It is here that I have

to refer to Order VIII Rule 1A of the Civil Procedure Code. The said provision

casts a duty on the defendant to produce documents which are in his

possession in a list annexed to the statement. The Code calls upon him to

produce his documents when he files his written statement. What has been

done in the present case by the 7th defendant is only discharging the duty

cast upon him under the said provision. I should hasten to add that I am not

going to give any finding on the genuineness or relevancy of those

documents. The aforesaid discussion is only confined to the right of the

defendant in order to produce the documents. I am entering this caveat

because I do not want to foreclose the right of the defendants 5 and 6 to

plead that the notice dated 19.05.1994 and the reply notice dated 24.05.1994

are acts of fabrication.

39. Now turning upon the second portion of the judgment viz., dealing

with C.R.P.No.3893 of 2024. The 1st defendant was set exparte. The plaintiff https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

took out an application in terms of Order XXII Rule 4 of the Code pleading

exemption from bringing the legal representatives on record. The learned

Judge, perhaps following the view of Justice M.Srinivasan in Elisa and

Others -vs- A.Doss (AIR 1992 Mad 159) passed an order exempting the

plaintiff from bringing on record the legal representatives of the deceased 1st

defendant Rasappa Gounder. The Court had come to know the death of

Rasappa Gounder on 12.02.2019. However, the memo was filed on

09.12.2022. Taking into consideration the fact that the 1st defendant had

remained exparte, the plaintiff filed an application in I.A.No.974 of 2022

pleading that the legal heirs of the deceased exparte defendant, Rasappa

Gounder need not be brought on record.

40. It is pertinent to point out that the defendants 5 and 6 who are

today contesting the death of Rasappa Gounder as having died in 2006, had

made an endorsement that they have no objection to the application being

allowed. The plaintiff in I.A.No.974 of 2022 had specifically pleaded that

Rasappa Gounder died on 12.12.2019. I am afraid, I cannot allow the clients

of Mr.Sivaprakasam to approbate and reprobate. When an application in

I.A.No.967 of 2022 was filed by the plaintiff that Rasappa Gounder had died

on 12.12.2019, the defendants 5 and 6 had accepted this factual position.

Today, in order to get the implead application dismissed, they would take an

unique plea that Rasappa Gounder died in the year 2006.

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C.R.P.Nos.3893, 3032 and 3031 of 2024

41. The Civil Revision petitioners are the daughter-in-law and

grandsons of the deceased Rasappa Gounder. They have pleaded that the

husband of the first petitioner and the father of the petitioners 2 and 3 viz.,

one Palanichamy had predeceased Ramasamy Gounder and that on the death

of Ramasamy Gounder, they succeeded to the estate. Hence, they filed an

application in I.A.No.131 of 2024 under Order I Rule 10(2) of CPC seeking to

implead themselves as parties to the suit. To this application, the 4th plaintiff

/ P.W.1 filed his counter. In the said counter, he admitted to the relationship

between the deceased Ramasamy Gounder and his cousin Palanichamy and

the petitioners. Insofar as the defendants 5 and 6, who were arrayed as

defendants 15 and 16 in the said application, they also filed an independent

counter. A careful perusal of the counter shows that they did not dispute the

relationship between Rasappa Gounder, Palanichamy and the civil revision

petitioners. They took two pleas viz., the first plea being legal heirship

certificate and the death certificate of Rasappa Gounder had not been

produced before the Court and therefore the petitioners are not entitled to be

brought on record. The second plea being, as exemption had been granted

under Order XXII Rule 4(4) to the plaintiff, the petitioners are not entitled to

come on record.

42. The learned Trial Judge, after hearing the arguments, had

accepted the pleas taken by the defendants 5 and 6, dismissed the petition. https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

Hence, I have to consider the effect of Order XXII Rule 4(4). I commenced

the judgment that this is a suit for partition, where the parties are specially

placed. By invoking Order XXII Rule 4(4), the plaintiff merely avoided the

unfortunate circumstance of her suit being dismissed as abated. This does

not mean that the doors of the Courts are firmly shut for the legal heirs to file

an application to come on record.

43. It is here I have to agree with Mr.Sivaprakasam that Order I Rule

10 is not an appropriate provision to be invoked for the purpose of bringing

the legal representative on record. Order XXII Rule 4 enables the plaintiff to

file an application to bring on record the legal representative of the deceased

defendant on record. The plaintiff filed a petition under Order XXII Rule 4(4)

and obtained an order of exemption. Therefore, I have to see whether any

other provision in the said chapter is available for the purpose of filing the

application at the instance of the legal representatives of the deceased

exparte defendant.

44. It is here I will have to refer to Order XXII Rule 10 of the Code. A

careful perusal of the wordings of Order XXII Rule 10 shows that it applies

when an application under Order XXII Rule 3 and Order XXII Rule 4 cannot be

filed. This is clear from the wordings found under Order XXII Rule 10, which

reads that “ in other cases of assignment, creation or devolution of any

interest during the pendency of a suit”. 'In other cases' implies that it https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

excludes Order XXII Rule 3 and 4. In terms of Order XXII Rule 4(1) which

reads that in case an application is made in this behalf, the Court shall cause

legal representatives to be made as parties. It also states that, in case an

application is not made in time, the suit will stand abated ie., if no application

is filed under Order XXII Rule 4(1), Order XXII Rule 4(3) comes into

operation. The plaintiff, in order to avoid the unpleasant situation or Order

XXII Rule 4(3) operating in her suit, invoked Order XXII Rule 4(4) of CPC. It

is common practice that the plaintiff takes out an application to bring on

record the legal representatives of the defendant. However, if the legal

representatives of the defendant want to come on record, they can certainly

do so as there is no bar under the Code.

45. Mr.Sivaprakasam relies upon a judgment of this Court in

V.Veerannan & Another -vs- Varadarajan and Others [2017(2) Madras

Weekly Notes (Civil) Page 12] to urge that this Court has held that if

exemption is granted under Order XXII Rule 4(4) of CPC, an application is not

maintainable to implead the legal representatives.

46. I have carefully gone through the judgment. There are two

distinguishing features in the said judgment. First, that was a suit for

declaration and for injunction filed by the plaintiff and secondly, the Court did

not dismiss the application on the ground that the application is not

maintainable.

https://www.mhc.tn.gov.in/judis It had dismissed the said petition on the ground that the

C.R.P.Nos.3893, 3032 and 3031 of 2024

learned District Munsif, who allowed the application, had failed to consider the

scope of Order XXII Rule 4(4). In other words, the learned Judge had held

that since the learned District Munsif failed to consider the scope of the said

provisions, she ought not to have allowed the application. My reading of the

judgment certainly does not lead me to the conclusion that if exemption is

granted under Order XXII Rule 4(4), then the legal representatives of the

persons so exempted, are not entitled to file an application.

47. It is here that I will refer to the judgment of the Karnataka High

Court in Kenchappa Kallu Kurubar -vs- Balasaheb Kalagouda Patil and

Others (1988 SCC Online Kar 159). Mr.Justice Chandrakantharaj Urs had

held that, in a suit for partition, the mere fact that exemption had been

granted, does not mean the legal representatives cannot come on record. He

held that a person, whether he has filed a written statement or not, unless

and until his relationship with the person on whose death he enters

appearance is denied, he is entitled to file an application to come on record.

48. Applying this principle to the facts of the present case, the

relationship of Rasappa Gounder with the deceased Ramasamy Gounder is

not in dispute. Similarly, the relationship of the deceased legal

representatives of Palanichamy, the predeceased son of Ramasamy Gounder

with the civil revision petitioners is also not in dispute. In the event ,the suit

is decreed, then the civil revision petitioners will be entitled to 1/6th share in https://www.mhc.tn.gov.in/judis

C.R.P.Nos.3893, 3032 and 3031 of 2024

common that would have fallen to the share of Rasappa Gounder. Hence,

their presence as parties to the suit is essential. Since the judgment of the

Karnataka High Court having been delivered in a suit for partition, I will very

respectfully adopt the said judgment to the facts of the present case.

49. I also have to take note of the very reasonable submission that

was made by Mr.N.S.Suganthan that in case the civil revision petition is

allowed, the civil revision petitioners would only want to be impleaded as

parties to the suit and would remain in that capacity and would not seek for

reopening of evidence or file a written statement. In fact, Mr.Sivaprakasam

states that in case the civil revision petitioners are brought on record, his

clients would not have any objection, but they would seriously object if an

opportunity is granted to the civil revision petitioners to set up a new plea

that had not been set up by deceased Rasappa Gounder.

50. In the light of the above discussion, the following orders are

passed :

(1) C.R.P.Nos.3031 and 3032 of 2024 are dismissed. C.R.P.No.3893

of 2024 is allowed to the extent that the civil revision petitioners

will be brought on record only as the legal representatives of

the deceased Rasappa Gounder. I record this statement that as

they have waived their right to file written statement.

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C.R.P.Nos.3893, 3032 and 3031 of 2024

(2) Mr.Sunil Kumar, learned counsel appearing for the plaintiff

agrees that the plaintiff will file the amended plaint copy

impleading the civil revision petitioners in C.R.P.No.3893 of

2024 as parties on or before 15.11.2024.

(3) The chief examination and the marking of documents shall take

place on that very day. The defendants 5 and 6, in case they

are interested to cross examine the 7th defendant, shall do so

between 18.11.2024 to 22.11.2024.

(4) As the 7th defendant has already filed a written statement, his

proof affidavit shall be received by the learned Judge on