VARADARAJAN versus KANAKAVALLI & ORS.
[2020] 1 S.C.R. 132, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
132
SUPREME COURT REPORTS
[2020] 1 S.C.R.
VARADARAJAN
v.
KANAKAVALLI & ORS.
(Civil Appeal No. 5673 of 2009)
JANUARY 22, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908 – Or. XXII, r.5 and s.115 –
Wife filed suit inter alia for partition in respect of the suit property as
the successor-in-interest of her husband – Husband had a son from
his earlier marriage – Suit decreed – She sought execution of the
decree but, died soon thereafter – Appellant, the son of deceased’s
younger sister filed application to execute the decree as her legal
representative on the basis of a Will – Allowed – Appellant sought
eviction of the respondent and for delivery of vacant possession of
the premises – Executing Court held that the appellant as legal
representative of the deceased is entitled to execute the decree –
High Court in revision found that the execution of the Will was
surrounded by suspicious circumstances and thus, held that the
appellant cannot become a legal representative to come on record
in order to maintain the execution petition – On appeal, held:
Appellant is the sole claimant to the estate of the deceased on the
basis of Will – Witnesses deposed the execution of the Will in favour
of the appellant – No one else came forward to seek execution of
decree as the legal representative of the deceased decree holder –
In the absence of any rival claim, the High Court was not justified
in setting aside the order of the Executing Court, when
in terms of
Or.XXII, r.5, the jurisdiction to determine who is a legal heir is
summary in nature – Or. XXII is applicable to the pending
proceedings in a suit – But the conflicting claims of legal
representatives can be decided in execution proceedings in view of
the principles of r.5 of Or.XXII – Further, in addition to the nature
of proceedings to implead the legal representative to execute the
decree, none of the tests laid down in s.115 were satisfied by the
High Court so as to set aside the order passed by the Executing
Court – High Court in revision jurisdiction interfered with the order
   [2020] 1 S.C.R. 132
132
A
B
C
D
E
F
G
H
133
passed by the Executing Court as if it was acting as the first court
of appeal – Mere fact that it had different view on the same facts
would not confer jurisdiction to interfere with an order passed by
the Executing Court – Order passed by the High Court is set aside
and that of the Executing Court is restored.
Code of Civil Procedure, 1908 – s.115 – Revision –
Jurisdiction of High Court – Discussed.
Allowing the appeal, the Court
HELD: The order of the High Court is not sustainable in
law. The appellant claims to be the legal representative of the
deceased decree holder on the basis of the Will executed by her.
He has produced an attesting witness and the scribe of the Will.
The witnesses have deposed the execution of the Will by her in
favour of the appellant who is the son of her sister. No one else
has come forward to seek execution of decree as the legal
representative of the deceased decree holder. It is the deceased
decree holder who filed the execution petition but after her death,
the appellant filed an application to continue with the execution.
In the absence of any rival claimant claiming to be the legal
representative of the deceased decree holder, the High Court
was not justified in setting aside the order of the Executing Court,
when in terms of Order XXII Rule 5 of the Code, the jurisdiction
to determine who is a legal heir is summary in nature. Order
XXII of the Code is applicable to the pending proceedings in a
suit. But the conflicting
claims of legal representatives can be
decided in execution proceedings in view of the principles of Rule
5 of Order XXII. [Paras 7, 8] [137-E-H]
V. Uthirapathi v. Ashrab & Ors. (1998) 3 SCC 148 :
[1998] 1 SCR  937 ; Daya Ram & Ors. v. Shyam Sundari
& Ors. AIR 1965 SC 1049 : [1965] SCR 231 ; Dashrath
Rao Kate v. Brij Mohan Srivastava (2010) 1 SCC
277 : [2009] 15 SCR 643 ; Jaladi Suguna (Deceased)
through LRs. v. Satya Sai Central Trust & Ors. (2008) 8
SCC 521 : [2008] 7 SCR 734 ; Suresh Kumar Bansal
v. Krishna Bansal & Anr. (2010) 2 SCC 162 : [2009]
16  SCR 419 – relied on.
VARADARAJAN v. KANAKAVALLI & ORS.
A
B
C
D
E
F
G
H
134
SUPREME COURT REPORTS
[2020] 1 S.C.R.
Kadir v. Muthukrishna Ayyar ILR 26 MAD 230 ;
Mohinder Kaur & Anr. v. Piara Singh & Ors. AIR 1981
P&H 130 – referred to.
1.2 The appellant is the sole claimant to the estate of the
deceased on the basis of Will.  The Executing Court has found
that the appellant is the legal representative of the deceased
competent to execute the decree.  In view of the said fact, the
appellant as the legal representative is entitled to execute the
decree and to take it to its logical end. In addition to the nature
of proceedings to implead the legal representative to execute
the decree, it is found that none of the tests laid down in Section
115 of the Code were satisfied by the High Court so as to set
aside the order passed by the Executing Court. The High Court
in exercise of revision jurisdiction has interfered with the order
passed by the Executing Court as if it was acting as the first court
of appeal. An order passed by a subordinate court can be interfered
with only if it exercises its jurisdiction, not vested in it by law or
has failed to exercise its jurisdiction so vested or has acted in
exercise of jurisdiction illegally or with material irregularity. The
mere fact that the High Court had a different view on the same
facts would not confer jurisdiction to interfere with an order passed
by the Executing Court.  Consequently, the order passed by the
High Court is set aside and that of the Executing Court is
restored.  [Paras
14, 15] [143-E-G; 144-A]
Case Law Reference
[1998] 1 SCR  937
relied on
Para 8
[1965]  SCR  231
relied on
Para 9
ILR 26 MAD. 230
referred to
Para 9
AIR 1981 P&H 130
referred to
Para 10
[2009] 15 SCR 643
relied on
Para 11
[2008] 7 SCR 734
relied on
Para 12
[2009] 16 SCR 419
relied on
Para 13
A
B
C
D
E
F
G
H
135
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5673
of 2009.
From the Judgment and Order dated  27.11.2007 of the High Court
of Madras in Civil Revision Petition (NPD) No. 1859 of 2005.
C. Paramasivam, A.S. Vairawan, Rakesh K. Sharma, Hardik
Gautam, Advs. for the Appellant.
Rohit Dutta, Shubhangi Sangal, Chira Ranjan Addy, Advs. for the
Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The order dated 27th November, 2007 passed by the High Court
of Judicature at Madras in revision petition under Section 115 of the
Code of Civil Procedure, 19081 is the subject matter of challenge in the
present appeal.
2. The revision petition is directed against an order passed by the
Executing Court on 19th September, 2005 wherein the possession of the
suit property in pursuance of a decree passed in favour of one Umadevi
was ordered to be given to the present appellant as the legal representative
of Umadevi.
3. Umadevi filed a suit for partition and separate possession in
respect of the suit property as the successor-in-interest of one Manicka
Naicker, her husband.  Prior to Umadevi, he had earlier married one
Valliammal and had a child one Munisamy Naicker.  Manicka Naicker
died in the year 1971.  Umadevi filed a suit for partition claiming half
share in the suit property against Manicka Naicker.  This suit was
decreed on 7th April, 1989 and such decree had attained finality.  It was
in 1999 that Umadevi sought execution of the decree passed
but she
died on 22nd July, 1999.  The appellant who is the son of Umadevi’s
younger sister filed an application to execute the decree as her legal
representative on the basis of a Will dated 16th July, 1999 (Ex.P/1). The
said application was allowed by the Executing Court on 29th March,
2004.
4. The appellant filed an application under Order XXI Rule 35 of
the Code for eviction of the respondent and to deliver vacant possession
1 for short, ‘Code’
VARADARAJAN v. KANAKAVALLI & ORS.
A
B
C
D
E
F
G
H
136
SUPREME COURT REPORTS
[2020] 1 S.C.R.
of the premises.  In response to such petition, the respondent asserted
that the Will is forged and that the son of a sister is not a legal heir as per
Section 15 of the Hindu Succession Act, 1956.  The learned Executing
Court decided the application on 19th September, 2005. It found that the
Will was attested by PW-2 Ayeeyappa who had signed it as one of the
attesting witnesses and PW-3 Mohan had scribed the Will. The respondent
examined Senthilnathan as RW-1 and Krishnan as RW-2. The learned
Executing Court held that the appellant as legal representative of the
deceased Umadevi is entitled to execute the decree.  The Executing
Court held as under:
“11.  …Further in OS No. 30 of 1982 a judgment and decree was
granted in favour of Umadevi on 7.4.1989.  Either the deceased
Munusamy or his son the said Senthilnathan had not filed any
appeal as against the decree.  But the said Umadevi had filed an
Execution petition duly signed by her.  Further, the said Umadevi,
before her death, i.e. 6 days earlier to her death, she had executed
the Ex.P-1 Will.  This court finds that her actions in filing the
execution petition and the Will are accepted to be correct, even
by the respondents.  Further this court finds that since the said
Munusamy, who is the son of the first wife of her husband, did not
give her food, cloth and shelter and did not take care on her, the
deceased Umadevi had gone to the house of her younger sister
and
stayed along with her and since her health condition got
deteriorated, she had executed a Will in favour of the son of her
younger sister namely Varadarajan and these facts are found to
be true.”
5. The said order was challenged by the judgment debtor by way
of a revision under Section 115 of the Code.  It may be noticed that no
one else other than the appellant had come forward to continue the
execution of the decree as the legal representative of Umadevi.
6. The High Court held that the Executing Court is the competent
and proper Court to determine the validity of the Will as well as the
legatee under a Will can be construed as a legal representative and
come on record to seek execution of the decree.  However, the High
Court found that the execution of the Will was surrounded by suspicious
circumstances.  It may be noticed that the High Court in revisional
jurisdiction has interfered with the findings of fact recorded by the
A
B
C
D
E
F
G
H
137
Executing Court in respect of execution of Will arrived at after considering
the evidence led by the parties.  The High Court found that as per the
appellant, the decree holder, Umadevi, was driven out of her house by
her step son Munisamy Naicker and was staying with her sister for
nearly 20 years but the execution of the Will at the last moment is a
suspicious circumstance.  The High Court returned the following findings:
“19.  In view of all the above facts which were established by
way of evidence, this Court is of the view that the propounder on
whom the allegation casts upon to dispel the suspicious
circumstances surrounded the execution of the will.  Further, the
Court below has not given satisfactory reasons while coming to
the conclusion that the will was proved.  In the absence of
satisfactory evidence, I am unable to ascertain as to whether the
will was executed by the testatrix.  Therefore, when once it is
held that the very execution of the will has not been proved and it
is not genuine, consequently, the legatee under the said will cannot
become a legal representative to come on record in order to
maintain the execution petition in the place of the decree holder,
i.e. the testatrix.”
7. We find that the order of the High Court is not sustainable in
law. The appellant claims to be the legal representative of Umadevi on
the basis of the Will executed by her.  He has produced an attesting
witness and the scribe of the Will.  The witnesses have
deposed the
execution of the Will by Umadevi in favour of the appellant who is the
son of her sister.  No one else has come forward to seek execution of
decree as the legal representative of the deceased decree holder.  It is
Umadevi who has filed the execution petition but after her death, the
appellant has filed an application to continue with the execution.  In the
absence of any rival claimant claiming to be the legal representative of
the deceased decree holder, the High Court was not justified in setting
aside the order of the Executing Court, when in terms of Order XXII
Rule 5 of the Code, the jurisdiction to determine who is a legal heir is
summary in nature.
8. We may state that Order XXII of the Code is applicable to the
pending proceedings in a suit.  But the conflicting claims of legal
representatives can be decided in execution proceedings in view of the
principles of Rule 5 of Order XXII. This Court in a judgment reported as
VARADARAJAN v. KANAKAVALLI & ORS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
138
SUPREME COURT REPORTS
[2020] 1 S.C.R.
V. Uthirapathi v. Ashrab & Ors.2  held that the normal principle arising
in a suit — before the decree is passed — that the legal representatives
are to be brought on record within a particular period is not applicable to
cases of death of the decree-holder or the judgment-debtor in execution
proceedings. This Court held as under:-
“11.  Order 22 Rule 12 of the Code of Civil Procedure reads as
follows:
“Order 22 Rule 12: Application of order to proceedings.—
Nothing in Rules 3, 4 and 8 shall apply to proceedings in
execution of a decree or order.”
12. In other words, the normal principle arising in a suit — before
the decree is passed — that the legal representatives are to be
brought on record within a particular period and if not, the suit
could abate, — is not applicable to cases of death of the decree-
holder or the judgment-debtor in execution proceedings.
13.  In Venkatachalam Chetti v. Ramaswami Servai [ILR (1932)
55 Mad 352 : AIR 1932 Mad 73 (FB)] a Full Bench of the Madras
High Court has held that this rule enacts that the penalty of
abatement shall not attach to execution proceedings. Mulla’s
Commentary on CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refers
to a large number of judgments of the High Courts and says:
“Rule 12 engrafts an exemption which provides that where a
party to an execution proceedings dies during its pendency,
provisions as to abatement do not apply. The Rule is, therefore,
for the benefit
of the decree-holder, for his heirs need not take
steps for substitution under Rule 2 but may apply immediately
or at any time while the proceeding is pending, to carry on the
proceeding or they may file a fresh execution application.”
(emphasis supplied)
14. In our opinion, the above statement of law in Mulla’s
Commentary on CPC, correctly represents the legal position
relating to the procedure to be adopted by the parties in execution
proceedings and as to the powers of the civil court.”
2 (1998) 3 SCC 148
A
B
C
D
E
F
G
H
139
9. The legal representatives are impleaded for the purpose of a
suit alone as held by this Court in Daya Ram & Ors. v. Shyam Sundari
& Ors.3 wherein it was held that impleaded legal representatives
sufficiently represent the estate of the deceased and the decision obtained
with them on record will bind not merely those impleaded but the entire
estate, including those not brought on record.  This Court approved the
judgment of the Madras High Court in Kadir v. Muthukrishna Ayyar4.
10. The Full Bench of the Punjab & Haryana High Court in a
judgment reported as Mohinder Kaur & Anr. v. Piara Singh & Ors.5
examined the question as to whether a decision under Order XXII Rule
5 of the Code would act as res judicata in a subsequent suit between
the same parties or persons claiming through them.  The Court held as
under:
“5.  So far as the first argument of Mr. Bindra, noticed above is
concerned, we find that in addition to the judgments of the Lahore
High Court and of this Court, referred to in the earlier part of this
judgment, he is supported by a string of judgments of other High
Courts as well wherein it has repeatedly been held on varied
reasons, that, a decision under Order 22, Rule 5, Civil Procedure
Code, would not operate as res judicata in a subsequent suit
between the same parties or persons claiming through them
wherein the question of succession or heirship to the deceased
party in the earlier proceedings is directly raised. Some of these
reasons are
as follows:—
(i) Such a decision is not on an issue arising in the suit itself, but is
really a matter collateral to the suit and has to be decided before
the suit itself can be proceeded with. The decision does not lead
to the determination of any issue in the suit.
(ii) The legal representative is appointed for orderly conduct of
the suit only. Such a decision could not take away, for all times to
come, the rights of a rightful heir of the deceased in all matters.
(iii) The decision is the result of a summary enquiry against which
no appeal has been provided for.
3 AIR 1965 SC 1049
4 ILR 26 MAD. 230
5 AIR 1981 P&H 130
VARADARAJAN v. KANAKAVALLI & ORS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
140
SUPREME COURT REPORTS
[2020] 1 S.C.R.
(iv) The concepts of legal representative and heirship of a deceased
party are entirely different. In order to constitute one as a legal
representative, it is unnecessary that he should have a beneficial
interest in the estate. The executors and administrators are legal
representatives though they may have no beneficial interest.
Trespasser into the property of the deceased claiming title in himself
independently of the deceased will not be a legal representative.
On the other hand the heirs on whom beneficial interest devolved
under the law whether statute or other, governing the parties will
be legal representatives.
xx
xx
xx
9.  We are, therefore, of the opinion that in essence a decision
under Order 22, Rule 5, Civil Procedure Code, is only directed to
answers an orderly conduct of the proceedings with a view to
avoid the delay in the final decision of the suit till the persons
claiming to be the representatives of the deceased party get the
question of succession settled through a different suit and such a
decision does not put an end to the litigation in that regard. It also
does not determine any of the issues in controversy in the suit.
Besides this it is obvious that such a proceeding is of a very
summary nature against the result of which no appeal is provided
for. The grant of an opportunity to lead some sort of evidence in
support of the claim of being a legal representative of the deceased
party would not
in any manner change the nature of the
proceedings. In the instant case the brevity of the order
(reproduced above) with which the report submitted by the trial
Court after enquiry into the matter was accepted, is a clear pointer
to the fact that the proceedings resorted to were treated to be of
a very summary nature. It is thus manifest that the Civil Procedure
Code proceeds upon the view of not imparting any finality to the
determination of the question of succession or heirship of the
deceased party.”
11. The judgment in Mohinder Kaur was referred to and approved
by this Court in a judgment reported as Dashrath Rao Kate v. Brij
Mohan Srivastava6.  In the said case, the High Court came to the
conclusion that since the inquiry under Order XXII Rule 5 of the Code
6 (2010) 1 SCC 277
A
B
C
D
E
F
G
H
141
was of a summary nature, it was limited only to the determination of the
right of the appellant therein to be impleaded as the legal representative.
This Court in the said case held as under:
“21.  As a legal position, it cannot be disputed that normally, an
enquiry under Order 22 Rule 5 CPC is of a summary nature and
findings therein cannot amount to res judicata, however, that legal
position is true only in respect of those parties, who set up a rival
claim against the legatee. For example, here, there were two other
persons, they being Ramesh and Arun Kate, who were joined in
the civil revision as the legal representatives of Sukhiabai. The
finding on the will in the order dated 9-9-1997 passed by the trial
court could not become final as against them or for that matter,
anybody else, claiming a rival title to the property vis-à-vis the
appellant herein, and therefore, to that extent the observations of
the High Court are correct. However, it could not be expected
that when the question regarding the will was gone into in a detailed
enquiry, where the evidence was recorded not only of the appellant,
but also of the attesting witness of the will and where these
witnesses were thoroughly cross-examined and where the
defendant also examined himself and tried to prove that the will
was a false document and it was held that he had utterly failed in
proving that the document was false, particularly because the
document was fully proved by the appellant and
his attesting
witness, it would be futile to expect the witness to lead that
evidence again in the main suit.
xx
xx
xx
25.  Dr. Kailash Chand, learned counsel appearing for the
respondent, also relied on ruling in Vijayalakshmi Jayaram v. M.R.
Parasuram [AIR 1995 AP 351] . It is correctly held by the Andhra
Pradesh High Court that Order 22 Rule 5 is only for the purpose
of bringing legal representatives on record for conducting of
proceedings in which they are to be brought on record and it does
not operate as res judicata. However, the High Court further
correctly reiterated the legal position that the inter se dispute
between the rival legal representatives has to be independently
tried and decided in separate proceedings. Here, there was no
VARADARAJAN v. KANAKAVALLI & ORS.
[HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
142
SUPREME COURT REPORTS
[2020] 1 S.C.R.
question of any rivalry between the legal representatives or
anybody claiming any rival title against the appellant-plaintiff.
Therefore, there was no question of the appellant-plaintiff proving
the will all over again in the same suit.
26.  The other judgment relied upon is the Full Bench judgment of
the Punjab and Haryana High Court in Mohinder Kaur v. Piara
Singh [AIR 1931 P&H 130] . The same view was reiterated. As
we have already pointed out, there is no question of finding fault
with the view expressed. However, in the peculiar facts and
circumstances of this case, there will be no question of non-suiting
the appellant-plaintiff, particularly because in the same suit, there
would be no question of repeating the evidence, particularly when
he had asserted that he had become owner on the basis of the will
(Ext. P-1).”
12. In another judgment reported as Jaladi Suguna (Deceased)
through LRs. v. Satya Sai Central Trust & Ors.7, this Court held that
the determination as to who is the legal representative under Order XXII
Rule 5 of the Code is for the limited purpose of representation of the
estate of the deceased and for adjudication of that case.  This Court
held as under:
“15.  Filing an application to bring the legal representatives on
record, does not amount to bringing the legal representatives on
record. When an LR application is filed, the court should consider
it and decide whether the persons named therein
as the legal
representatives, should be brought on record to represent the estate
of the deceased. Until such decision by the court, the persons
claiming to be the legal representatives have no right to represent
the estate of the deceased, nor prosecute or defend the case. If
there is a dispute as to who is the legal representative, a decision
should be rendered on such dispute. Only when the question of
legal representative is determined by the court and such legal
representative is brought on record, can it be said that the estate
of the deceased is represented. The determination as to who is
the legal representative under Order 22 Rule 5 will of course be
for the limited purpose of representation of the estate of the
7 (2008) 8 SCC 521
A
B
C
D
E
F
G
H
143
deceased, for adjudication of that case. Such determination for
such limited purpose will not confer on the person held to be the
legal representative, any right to the property which is the subject-
matter of the suit, vis-à-vis other rival claimants to the estate of
the deceased.”
(emphasis supplied)
 13. In another judgment reported as Suresh Kumar Bansal v.
Krishna Bansal & Anr.8, this Court held as under:
“20.  It is now well settled that determination of the question as to
who is the legal representative of the deceased plaintiff or
defendant under Order 22 Rule 5 of the Code of Civil Procedure
is only for the purpose of bringing legal representatives on record
for the conducting of those legal proceedings only and does not
operate as res judicata and the inter se dispute between the rival
legal representatives has to be independently tried and decided in
probate proceedings. If this is allowed to be carried on for a
decision of an eviction suit or other allied suits, the suits would be
delayed, by which only the tenants will be benefited.”
14. In view of the aforesaid judgments, we find that the appellant
is the sole claimant to the estate of the deceased on the basis of Will.
The Executing Court has found that the appellant is the legal representative
of the deceased competent to execute the decree.  In view of the said
fact, the appellant as the legal representative is entitled to execute the
decree and to take it to its logical end.
15. In
addition to the nature of proceedings to implead the legal
representative to execute the decree, we find that none of the tests laid
down in Section 115 of the Code were satisfied by the High Court so as
to set aside the order passed by the Executing Court.  The High Court in
exercise of revision jurisdiction has interfered with the order passed by
the Executing Court as if it was acting as the first court of appeal.  An
order passed by a subordinate court can be interfered with only if it
exercises its jurisdiction, not vested in it by law or has failed to exercise
its jurisdiction so vested or has acted in exercise of jurisdiction illegally
or with material irregularity.  The mere fact that the High Court had a
8 (2010) 2 SCC 162
VARADARAJAN v. KANAKAVALLI & ORS.
[HEMANT GUPTA, J.]

A
B
C
D
E
F
G
H
144
SUPREME COURT REPORTS
[2020] 1 S.C.R.
different view on the same facts would not confer jurisdiction to interfere
with an order passed by the Executing Court.  Consequently, the order
passed by the High Court is set aside and that of the Executing Court is
restored. The appeal is allowed.
Divya Pandey
Appeal allowed.