1 A.No.2171 of 2011 in C.S.No.925 of 2010 S.TAMILVANAN J. 1. M.V.Krishna Rao (Deceased) .... Deceased / sole plaintiff 2. Murugesan ... Applicant vs 1. K.Shivakumar 2. Meena Shivakumar .... Respondents 1 and 2 / Defendants 1 and 2 3. Seetharajakumari 4. M.B.V.Sathya Sai Prasad 5. M.Suriyanarayanamurthy 6. M.Bagya Suryalakshmi 7. M.B.L.Ragaventhra Swamy 8. M.Uma Mageswari .. Respondents 3 to 8 / Defendants 3 to 8 (Respondents 3 to 8 impleaded as LRs of Late M.V.Krishna Rao, as per order, dated 05.09.2014 on Memo in A.No.2171 of 2011 in C.S.No.925 of 2010) For Applicant : Mr.R.Ravi For Respondents : Mr.M.V.Venkataseshan for R1 and R2 Mr.N.Jothi for Mr.N.Srinivasulu for R3 to R8 ORDER The application in A.No.2171 of 2011 in C.S.No.925 of 2010 has been filed under Order XIV Rule 8 of High Court Original Side Rules read with Order XXII Rule 3 of Code of Civil Procedure, to bring 2 Murugesan, the applicant herein, on record as legal representative of the deceased / plaintiff, M.V.Krishna Rao in the suit in C.S.No.925 of 2010, based on an unprobated Will, dated 24.12.2009. 2. The suit in C.S.No.925 of 2010 was filed by the deceased M.V.Krishna Rao against the defendants therein, seeking a decree (a) declaring that the registered sale deed, Document, bearing Reg.No.976 of 2010 on the file of the Sub-Registrar Officer, Kodambakkam, executed by the plaintiff in favour of the defendants 1 and 2 as null and void and not binding on the plaintiff or any person, claiming right through them and cancel the same; (b) for permanent injunction restraining the defendants from alienating or in any manner encumbering the plaint schedule property and for costs. 3. While the suit was pending, Krishna Rao died. Pursuant to an unprobated registered Will, said to have been executed by M.V.Krishna Rao, the applicant in A.No.2171 of 2011 filed the application to implead him as plaintiff in the suit as legal heir of Krishna Rao. It is not in dispute that as per order, dated 19.10.2011, the application was allowed by the learned Single Judge (Vinod Kumar Sharma, J) and accordingly, the applicant was impleaded as plaintiff in 3 the said suit, as legal heir of deceased Krishna Rao. Aggrieved by which, the respondents 1 and 2 / defendants, preferred O.S.A.No.23 of 2012. 4. Having considered the facts and circumstances and the arguments advanced by both the learned counsel, a Division Bench of this Court, by order, dated 20.11.2013, while setting aside the order passed by the learned Single Judge of this Court, remitted back the matter for fresh consideration. The said order reads as follows : "Therefore, on a consideration of the facts of the case and in the light of the decisions of the Honourable Apex Court referred to supra, we are of the view that the order of the learned single Judge is liable to be set aside, so as to enable all the parties to agitate their case once over again before the learned single Judge. While passing this order, we also reiterate the fact narrated earlier that the appellants have raised a specific contention regarding the availability of the impleaded respondents and in such view of the matter, we also permit them to raise all their contentions before the learned single Judge. Since we are setting aside the order of the learned single Judge by remitting the Application in A.No.2171 of 2011 4 in C.S.No.925 of 2010 to be heard once over again leaving all the issues open, the findings rendered by the learned single Judge both on the questions of fact and law, are hereby set aside. Accordingly, the Original Side Appeal is allowed and consequently, Application No.2171 of 2011 in C.S.No.925 of 2010 is directed to be restored on the file of the learned single Judge to decide the case on merits and in accordance with law. We request the learned single Judge to decide the application expeditiously, preferably within a period of two months from the date of the receipt of a copy of this order. No costs." 5. In view of the matter being remitted back to this Court, this application is heard and being disposed of on merits. 6. The application in A.No.2171 of 2011 has been filed by the applicant, Murugesan, s/o. A.L.Solai Alagu Servai, seeking an order to bring him as legal representative of the deceased, sole plaintiff, M.V.Krishna Rao in the suit in C.S.No.925 of 2010 and permit him to prosecute the suit laid down by the deceased, as his legal heir, based on an unprobated Will. 5 7. The third respondent, M/s. Seetha Rajakumari is the widow of late M.V.Krishna Rao and respondents 4 to 8 are sons and daughters of late M.V.Krishna Rao. The said respondents raised their objection and they pleaded that they should only be arrayed as legal heirs of the deceased, M.V.Krishna Rao and not the applicant, based on the unprobated Will. 8. Mr.R.Ravi, learned counsel appearing for the applicant submits that the applicant had friendship with the deceased, Krishna Rao and provided the basic needs and Krishna Rao had not been with the respondents 3 to 8, though they were wife and children of the deceased for the past twenty years. Hence, according to the applicant, out of love and affection and trust on him, the deceased plaintiff had executed a registered Will on 24.12.2009, bequeathing the entire house property in favour of the applicant at Akbarabad Street, which is the subject matter of the suit. The said Krishna Rao died on 21.12.2010. Hence, by virtue of the said Will, the applicant claims to be the legal representative of the deceased plaintiff. 9. Learned counsel for the applicant further argued that in view of the Will executed by late Krishna Rao, the applicant is entitled 6 to be impleaded as plaintiff in the suit as legal representative of the deceased. 10. Per contra, Mr.N.Jothi, learned counsel appearing for the respondents 3 to 8 strenuously argued that the applicant, Murugesan has no locus standi to seek an order to implead him as legal heir, merely by producing an alleged Will, which has not been probated. According to the learned counsel for the respondents 3 to 8, if a Will is not probated, it has no evidenciary value. Hence, on the circumstances, the applicant is not entitled to seek an order, as a matter of right, to implead him as legal heir of the deceased Krishna Rao, leaving the natural legal heirs of the deceased. 11. Mr.N.Jothi, learned counsel appearing for the respondents 3 to 8 further argued that it is not in dispute that the applicant is not the natural legal heirs of the deceased plaintiff and till date, he has not even made any attempt to probate the Will, as required under law and accordingly, as per Section 57 of the Indian Succession Act read with Section 213 of the Indian Succession Act, 1925, this application filed by the applicant is not at all maintainable. 7 12. Learned counsel appearing for the applicant submits that as per Section 2(11) of Civil Procedure Code and also under the General Clause Act, the term legal representative includes, even an inter meddler of an estate and Section 211 of Indian Succession Act, 1925, envisages an executor or administrator has to be construed as legal representative of the estate of deceased for all purposes. Section 213 of Indian Succession Act, 1925, states that no right as executor or legatee can be established in any Court of Justice, unless a court of competent Jurisdiction in India has granted probate of the Will under which the right is claimed. As legatee under the Will, the applicant, Murugesan wants to implead himself as legal representative of the deceased, Krishna Rao. According to him, there is no bar created either under Section 211 or 213 of Indian Succession Act, 1925, to implead him as plaintiff, in the capacity of Legal Representative to prosecute the suit laid by the testator deceased plaintiff. Therefore, a conjoint reading of Section 211 and 213 would not make it mandatory to obtain probate or letters of administration for any legatee to represent the estate of deceased testator in a suit to be continued as laid by testator or even initiated afresh. 8 13. However, learned counsel appearing for the respondents 3 to 8 referred to the definition of the term, Administrator, which is available in Section 2(a) of the Indian Succession Act, 1925 and argued that the applicant is not entitled to be impleaded as legal heir of the deceased, as per the Section referred to above, which reads as follows : "Administrator means a person appointed by competent authority to administer the estate of a deceased person when there is no executor." The other alternative to qualify as "Legal Representative" within the meaning of Section 211 of CPC is that of the "Executor". The term "Executor" is so defined under Section 2(c) of the Indian Succession Act, which reads thus : "Executor" means a person to whom the execution of the last Will of deceased person is, by the Testator's Appointment, confided." 14. It is not in dispute that the term 'Executor' could be applicable to a person who is nominated or appointed as "Executor" as per the arrangements made in the Will by the Testator himself. There should be obligations to be performed by the Executor as per the Will, in such capacity, he will be in a position to perform those specified 9 duties under the Will. The reading of the certified copy of the Will produced by L.Murugesan, the applicant herein could easily indicate that no such obligation is given to him, as per the Will, to treat him as executor. Hence, he is not entitled to claim himself to be the Executor of the Will of late. M.V.Krishna Rao. 15. Learned counsel appearing for the respondents 3 to 8 submits that as per law, the validity of the Will claimed by L.Murugesan could not be tested in the present suit. The present suit was filed by late Krishna Rao, only to adjudicate upon the claim made therin on the point that whether the alleged sale deed claims to have been acquired by the defendants 1 and 2 is valid or not. In the above circumstances, the said L.Murugesan was neither a necessary party nor a proper party for deciding the suit. Only after the death of Krishna Rao, the applicant / third party, filed application, seeking permission to prosecute the suit, as plaintiff, based on an unprobated Will as against the respondents 3 to 8, natural legal heirs of the said deceased. 16. In Hem Nolini Jodah (since deceased) and her legal rep, v. Isolyne Sarojsbashini Bose and others reported in AIR 1962 SC 1471, the Hon'ble Supreme Court has held as follows : 10 "The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of justice, unless probate or letters of administration have been obtained of the Will under which the right is claimed, and therefore, it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary, in order to establish his right to establish the right of some legatee or executor from whom he might have derived title he cannot do so unless the Will under which the right as a legatee or executor is claimed, has resulted in the grant of a probate or letters of administration." 17. In G.Ganesan & 5 others v. P.Sundari & 2 others, reported in 2011-1-LW 639, a Division Bench of this Court has held as follows : "18... As held by the Full Bench of this Court in Ganshmdoss v. Gulab Bi Bai (cited supra), the bar contained in Section 213 of the Indian Succession Act is applicable even to a defendant in a suit. Therefore, we are of the firm view that the 11 purpose for which the Will of the year 1993 is sought to be proved by the respondents in evidence is only for the main purpose to establish that the said Will is the last Will which cancels the earlier Will and the said purpose is not merely collateral as it is sought to be made out by the respondents. Apart from that, in Commissioner v. Mohan Krishan Abrol (cited supra), the Hon'ble Supreme Court has held that even for such collateral purposes the unprobated Will cannot be used in a probate proceedings. .... 20. In our view, as we have already concluded, the unprobated Will is sought to be proved not for any collateral purpose but for the main purpose of proving that the said Will is the last free Will of the testator cancelling the earlier registered Will. For this main purpose, unless the said Will is probated, the same cannot be admitted in evidence." 18. It is not in dispute that the applicant produced a registered Will, said to have been executed by late M.V.Krishna Rao. It is well settled that a Will may be a registered or unregistered document, but it has to be established in the manner known to law. After the death of Krishna Rao, the Will could have been probated as the Will pertains to the original jurisdiction of this Court, and even in case of the Will 12 relating to other places, the same has to be established, since a third party is not entitled to claim as legal heir against the natural legal heirs of the deceased. Merely because the Will is a registered document, the Court cannot presume the genuineness and execution of the Will, unless the same is proved. The evidence available on record would clearly show that the Will has been registered at the Sub- Registrar Office, Kodambakkam, Chennai-24. Hence, getting probate of the Will is mandatory, to make any claim based on the Will, however, the Will was not yet probated. Hence, based on the Will, the applicant cannot claim to implead him as legal representative of the deceased Krishna Rao, when the respondents 3 to 8, who are wife and the children of the deceased, raising their objection to implead them as legal representative of the said deceased. 19. In the light of various decisions rendered by the Hon'ble Supreme Court and this Court, this Court is of the view that the respondents 3 to 8 could be impleaded as legal representative of the deceased, Krishna Rao, in the absence of establishing the Will, in the manner known to law. 13 20. Learned counsel appearing for the applicant further submitted that if the Court comes to a conclusion that the applicant has made his claim, based on the Will, yet to be probated, he may also be arrayed as legal representative of late Krishna Rao, along with respondents 3 to 8. It is obvious that there is conflict of interest between the parties, claiming to be legal heirs, hence, all of them cannot be arrayed as plaintiffs or petitioners, since there should be consensus between the plaintiffs and they cannot raise any inconsistent plea between themselves in their pleadings. As the application relates to implead the legal representatives and the respondents 1 and 2 are the defendants 1 and 2 in the suit, in deciding the application, the said defendant's role is limited. 21. A perusal of the pleadings of both the parties, would show that the applicant and the respondents 3 to 8 have different version, claiming to be the legal heirs of the deceased, contrary to each other. Hence, both the applicant and the respondents 3 to 8 cannot be permitted to be plaintiffs as legal heirs of the deceased in the suit, on account of their inconsistent plea. 14 22. As rightly contended by Mr.N.Jothi, learned counsel appearing for the respondents 3 to 8, based on the unprobated Will, since natural legal heirs of Krishna Rao are claiming right to be legal representatives of the deceased, the applicant cannot be permitted to prosecute the suit filed by the deceased, as his legal representative. However, to meet the ends of justice, the applicant be arrayed as one of the defendants in the suit and it is also made clear that he is entitled to raise his counter claim in the manner known to law. The respondents 3 to 8 are permitted to file consequential amendment petition in the plaint to amend the cause title suitably, for incorporating necessary amendments. 23. In the absence of the Will produced by the applicant, not being probated, the claim of the applicant to implead him as legal representative of the deceased, M.V.Krishna Rao is rejected at this stage, recognising the respondents 3 to 8 as natural legal heirs, entitled to be impleaded as legal representatives of the plaintiff, late Krishna Rao to prosecute the suit. Having considered the facts and circumstances, it is made clear that the applicant is ordered to be arrayed as one of the 15 defendants in the suit and it is open to him to raise counter claim, if any, in the manner known to law. The respondents 3 to 8 are at liberty to file suitable consequential amendment petition, to make necessary amendment in the plaint. The application is disposed of as stated above. No order as to costs. 05-12-2014 Index : Yes Internet : Yes tsvn 16 S.TAMILVANAN, J tsvn order in A.No.2171 of 2011 in C.S.No.925 of 2010 05-12-2014