IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(C).No. 833 of 2011(O) ----------------------------------- [OS.NO.1060/2006 OF I ADDITIONAL SUB COURT, THRISSUR] .................... PETITIONER: ------------------- LEENA MATHEW, W/O.MEKKATTUKULAM SAJU, CHEMMANNOOR DESOM & VILLAGE, TALAPPILLY TALUK. BY ADVS. SRI.SANTHEEP ANKARATH, SRI.SUMODH MADHAVAN NAIR. RESPONDENT: ---------------------- JOSEPH, S/O.CHERUVATHOORU CHERAPPAN, THEKKEPPURAM DESOM, KUNNAMKULAM VILLAGE, PIN-680 503, TALAPPILLY TALUK. BY ADVS. SRI.GIBI.C.GEORGE, SMT.LATHA SUSAN CHERIAN. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.833/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 1060/2006 DTD. 16/10/2006 FILED BEFORE SUB COURT, THRISSUR. EXT.P.2: COPY OF THE APPLICATION IN I.A. NO. 8516/2010 DTD. 19/09/2010 IN O.S. NO. 1060/2006 FILED BEFORE SUB COURT, THRISSUR. EXT.P.3: COPY OF THE COUNTER TO EXT.P.2. FILED BY THE PETITIONER DTD. 21/10/2010. EXT.P.4: COPY OF THE ORDER DTD. 08/11/2010 IN I.A. NO. 8516/2010 IN O.S. NO. 1060/2006 PASSED BY ADDITIONAL SUB JUDGE, THRISSUR. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.833 of 2011 --------------------------------------- Dated this 08th day of November, 2011 JUDGMENT Ext.P4, order dated 08.11.2010 on I.A.No.8516 of 2010 in O.S.No.1060 of 2006 of the Court of learned Sub Judge, Thrissur is under challenge. That is an order passed by the learned Sub Judge on an application filed by the respondent for impleadment on the strength of a Will allegedly executed by the deceased plaintiff in respect of her properties. 2. The deceased plaintiff sued for a declaration that a sale deed executed by her in favour of petitioner is sham, not acted upon and for consequential reliefs. Pending suit, the original plaintiff died. Thereon respondent sought impleadment by Ext.P2, application dated 19.09.2010 claiming that the original plaintiff who died on 20.08.2010 had executed the Will (document No.228 of 2006) in question in his favour on 23.11.2006 and on the strength of the said Will respondent is entitled to get impleaded as additional plaintiff and continue with the suit. Petitioner filed Ext.P3, objection disputing execution of the Will. Learned Sub Judge passed Ext.P4, order that there must be somebody to proceed with the suit and hence Ext.P2, O.P(C).No.833 of 2011 -: 2 :- application is allowed. Learned Sub Judge also observed that petitioner could take up all his contentions by filing written statement (including genuineness of the Will, obviously). 3. Learned counsel for petitioner has placed reliance on the decisions in Kunchikavu Vs. Kesavan Nayar (1959 KLT 659), Kanhiya Singh Santok Singh and Ors. Vs. Kartar Singh ((2009)5 SCC 155), Dashrath Rao Kate Vs. Brij Mohan Srivastava 2009(4) KLT SN 78 (Case. No.73) and Suresh Kumar Bansal Vs. Krishna Bansal and Anr. ((2010) 2 SCC 162) to contend that in view of Rule 5 of Order XXII of the Code of Civil Procedure (for short, "the Code”) learned Sub Judge, when there is dispute whether respondent is a legal representative of the deceased plaintiff or not, could not have allowed impleadment without conducting an enquiry as to whether the respondent is the legal representative of the deceased plaintiff, ie. by conducting an enquiry as to the due execution and attestation of the Will in question. 4. I have heard learned counsel for respondent as well. Learned counsel submitted that after impleadment of the second respondent, learned Sub Judge has posted the case for trial where correctness or otherwise of the Will in question could be decided. O.P(C).No.833 of 2011 -: 3 :- 5. In view of Rule 5 of Order XXII of the Code and decisions cited supra, I am persuaded to accept the contention raised by the petitioner. As per the said Rule when the question arises as to whether any person is or is not a legal representative of a deceased plaintiff or deceased defendant, such question shall be determined by the Court. In other words, when respondent claimed to be a legal representative of the deceased plaintiff on the strength of Will No.228 of 2006 dated 23.11.2006 execution of which is disputed by petitioner, learned Sub Judge ought to have conducted the enquiry contemplated under Rule 5 of Order XXII of the Code before arriving at a decision whether respondent, on his claim as legal representative of deceased plaintiff could be impleaded as a party. What is the consequence of the finding that learned Sub Judge may reach as regards due execution and attestation of the Will in question in the enquiry on Ext.P2, application, in the suit so far as it relates to petitioner and respondent is a matter not required to be decided at this stage. 5. In the view of what I have stated above, Ext.P4, order cannot be sustained and is liable to be set aside. Resultantly this original petition is allowed. Ext.P4, order is set aside and Ext.P2, application is remitted to the Court of O.P(C).No.833 of 2011 -: 4 :- learned Sub Judge to conduct the enquiry contemplated under Rule 5 of Order XXII of the Code and based on that enquiry decide whether respondent in his claim as legal representative of deceased plaintiff is entitled to be impleaded in the suit as additional plaintiff. (THOMAS P. JOSEPH, JUDGE) Sbna/-