IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 SA.NO. 175 OF 2000(D) --------------------- AS.43/1999 OF PRL.SUB COURT,THRISSUR OS.149/1994 OF M.C.,WADAKKANCHERRY .................... APPELLANT(S) - DEFENDANTS 1 & 2 - APPELLANTS 1 & 2: ------------------------------------------------------------------------- 1. JANAKI AMMA, D/O. KODAKKADATH KUNJIKAVU AMMA KANJIRASSERY DESOM, MULLOORKKARA VILLAGE, TALAPPILLY TALUK, TRICHUR DISTRICT. 2. RAGHAVAN NAIR, S/O. VADAKKE EZHUTHACHAN VEETTIL KUNJUKUTTY AMMA, KANJIRASSERY DESOM, MULLOORKKARA VILLAGE, DO. DO. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S) - NO PART/ RESPONDENT (IMPLEADED): ----------------------------------------------------------------------- BHASKARAN NAIR, PENSIONER, S/O. ATTI AMMA, KODAKKADATH HOUSE, KANJIRASSERY DESOM, MULLOOR VILLAGE, P.O.IRUNILAMKODE - 680 583 TALAPPILLY TALUK, TRICHUR DISTRICT. ADV. SRI.M.K.DILEEP KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.175 of 2000 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of February, 2009 J U D G M E N T ---------------------- This Second Appeal came up for hearing on 6.2.2009. On that day, I heard learned counsel for the appellants. Since there was no representation for the respondent, appeal was posted for disposal to this day. There is no representation for the respondent today also. 2. The substantial question of law raised for a decision in the Second Appeal is whether the first appellate court was correct in impleading the respondent on the strength of a Will without conducting an enquiry as contemplated under Order XXII Rule 5 of the Code of Civil Procedure (for short, “the Code”) and passing a decree based on such impleadment. 3. Short facts necessary for consideration of the appeal are: First appellant is the only child of the original plaintiff. Second appellant is her husband. Original plaintiff sued the appellants for recovery of possession of the plaint schedule property - 83 cents in Sy. No.527 of Mulloorkkara Village. According to the original plaintiff, she got that property by verumpattom arrangement and later purchased the Jenmom right of the said property as per Ext.A1, document No.939/1967 dated 28.10.1967 executed by one Prabavathy S.A. No.175 of 2000 -: 2 :- Kunjamma. She claimed that appellants ousted her from the property and took forcible possession. She therefore sued for recovery of possession of the property on the strength of the title claimed by her. Appellants contended that one Sankaran Nair got leasehold right over the said property from one Subramanya Iyer on Ist Medom 1120 M.E. on agreement to pay rent at the rate of 112 paras of paddy and 180 shieves of straw. After the death of Sankaran Nair, first appellant acquired right and possession of the said property. Learned Munsiff granted a decree in favour of the original plaintiff. Appellants challenged that judgment and decree in A.S. No.43 of 1999. While so, counsel for the original plaintiff (sole respondent in that appeal) filed a statement in the first appellate court on 6.8.1996 stating that the original plaintiff (sole respondent in that appeal) died on 3.8.1996 after bequeathing her right in the property in favour of Bhaskaran Nair, (respondent in the Second Appeal) as per a registered Will No.11/95 of SRO, Chelakkara. In view of that statement, appellants filed I.A. No.2759 of 1996 to implead the said Bhaskaran Nair as additional second respondent in the first appeal but specifically challenging the genuineness and validity of the Will. Notice on that application was issued to the respondent herein who entered appearance in the first S.A. No.175 of 2000 -: 3 :- appellate court on 11.4.1997 and as per order passed on the same day I.A. No.2759 of 1996 was allowed. The present respondent was impleaded as additional second respondent in the first appeal. Later, learned Sub Judge confirmed the judgment and decree passed by the trial court. It is that judgment and decree of the first appellate court which are under challenge in this Second Appeal. 4. Learned counsel for the appellants contended that the procedure adopted by the learned Sub Judge is wrong and contrary to the provisions of Order XXII, Rule 5 of the Code inasmuch as though the appellants had specifically challenged the genuineness and validity of the Will said to be executed in favour of the present respondent, learned Sub Judge did not conduct any enquiry as contemplated under Order XXII Rule 5 of the Code. Learned counsel placed reliance on the decisions in Travancore-Cochin Kali Pachi v. Ramalekshmi (AIR 1953 TRV-CO. 158), Kunchikavu v. Kesavan Nayar (1959 KLT 659), Kalu Ram v. Charan Singh (AIR 1994 Rajasthan 31), Mary Joyce Poonacha v. K.T. Plantations Pvt. Ltd. (1996 AIHC 1590), K.Sankarappa v. K.G. Gangadharaiah (AIR 2001 Kart. 203), Bhimappa R.A. v. S.A. No.175 of 2000 -: 4 :- Shrikant Maruthi Mirajakar & Ors. (ILR 2004 KAR. 5047) and Bhero Prasad v. State of M.P. & Ors. (AIR 2007 (NOC) 1589 (Madh. Pra.) in support of his contention. 5. Order XXII Rule 5 of the Code C.P.C. reads as under: “5. Determination of question as to legal representative:- 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 evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question”. The said provision as well as the decisions relied on by the learned counsel say that it is mandatory that when any question arises as to whether any person is or is not the legal representative of a deceased S.A. No.175 of 2000 -: 5 :- plaintiff or a defendant, such question shall be determined by the court. In this case respondent herein claimed right over the suit property as per the Will referred to in the statement filed by the counsel for the original plaintiff in the first appellate court. He is not a legal heir of the original plaintiff. Learned counsel for the appellants submitted that first appellant is the only legal heir of the original plaintiff and in the absence of the alleged Will the suit property would devolve on the first appellant. Therefore the crucial question for consideration is whether the present respondent is entitled to inherit the suit property on the strength of the Will referred to above. Only after finding that the Will set up by the present respondent is valid and genuine, the first appellate court could have proceeded further in the appeal. To that extent illegality has been committed by the first appellate Court. Learned counsel submitted that the disputed Will was not even produced in Court. 6. It is true that the order of impleadment dated 11.4.1997 in I.A. No.2759 of 1996 is not separately challenged. But, since that order formed the basis of ultimate judgment and decree passed by the first appellate court, correctness of that order can be challenged in this Second Appeal by virtue of Section 105 of the Code. Paragraph 8 of the appeal memorandum states that the first appellate S.A. No.175 of 2000 -: 6 :- court, without holding any enquiry as contemplated under Order XXII, Rule 5 of the Code impleaded the present respondent as a party to the appeal. Since the order of impleadment is found to be illegal, the said order and the judgment and decree passed by the first appellate court cannot be sustained and are liable to be set aside. I do so. 7. No other point arises for consideration. Resultantly appeal is allowed. Order dated 11.4.1997 in I.A. No.2759 of 1996 and the judgment and decree in A.S.No.43 of 1999 passed by the first appellate court are set aside and the case is remanded to the first appellate court. The first appellate court shall dispose of the appeal as provided under law after holding enquiry as contemplated under Order XXII Rule 5 of the Code. Parties are directed to appear before the Principal Sub Court, Thrissur on 28.3.2009. No costs. Civil Miscellaneous Application Nos.470 and 2543 of 2000 shall sand dismissed. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.175 of 2000 -: 7 :- THOMAS P.JOSEPH, J. =================== S.A. NO.175 OF 2000 =================== J U D G M E N T 10TH FEBRUARY, 2009