R. KRSNA MURTII versus R. R. JAGADESAN
[2022] 7 S.C.R. 490, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
490
SUPREME COURT REPORTS
[2022] 7 S.C.R.
R. KRSNA MURTII
v.
R. R. JAGADESAN
JULY 21, 2022
(Civil Appeal No. 4832 of 2022)
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908 – Legal representative –
Substitution of – Appellant was the power of attorney holder of his
mother who filed a suit – Suit was being prosecuted by the appellant
as the power agent – Appellant’s mother (plaintiff) expired –
Appellant sought his substitution in the suit as a legal representative
– The said application was dismissed by the trial Court after taking
into consideration that there were other legal heirs of the deceased
and without impleading them, the appellant was not entitled to
proceed further – High Court dismissed the revision petition filed
against the order of trial Court – On appeal, held: The appellant is
admittedly the son of the deceased plaintiff, thus his entitlement,
whether by way of testamentary succession or non-testamentary
succession, as being legal heir to deceased cannot be denied – If
any inquiry was required to be made, it could have been made
u/Or.XXII, r.5 of CPC by the trial Court, but the application made
by the appellant could not have been dismissed altogether –
Impugned orders set aside and application restored for
reconsideration by the trial Court.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4832
of 2022.
From the Judgment and Order dated 26.05.2021 of the High Court
of Judicature at Madras in CRP (PD) No. 1158 of 2021.
Petitioner-in-person.
G. Balaji, Adv. for the Respondent.
[2022] 7 S.C.R. 490
490
A
B
C
D
E
F
G
H
491
The Order of the Court was passed by
DINESH MAHESHWARI, J.
1. Leave granted.
2. We have heard the appellant appearing in person and the learned
counsel appearing for the sole respondent.
3. Shorn of unnecessary details, the relevant aspects of the present
matter are that the appellant herein had been the power of attorney
holder of his mother, who had filed the subject suit for declaration and
perpetual injunction and alternatively, for declaration and recovery of
possession against the respondent. The suit was being prosecuted by
the appellant as the power agent of the plaintiff. The said plaintiff, mother
of the appellant, expired on 10.01.2020. Thereafter, the appellant moved
an application, being I.A. No. 1 of 2020, seeking his substitution as
legal representative of the deceased plaintiff with the assertion that the
plaintiff, his mother, had executed a Will dated 13.06.2016 in his favour
with respect to all her estate and the said Will was registered with the
Sub-Registrar Office, Perambalur.
4. This application was considered by the learned Sub-ordinate
Judge, Perambalur in the order dated 29.03.2021, wherein the submissions
on behalf of the defendant-respondent were taken into consideration
that the appellant was not the only legal heir of the deceased plaintiff;
and that the deceased had another son and one daughter and without
impleading them, the appellant was not entitled to proceed further. The
learned Trial Judge was of the view that from
the Will itself, existence of
other son and daughter of the deceased plaintiff was evident; and that
the execution and attestation were not the questions to be decided at the
given stage.
5. Having regard to the factum of existence of other legal heirs of
the deceased plaintiff, the learned Trial Judge straightway came to the
conclusion that the application I.A. No. 1 of 2020 moved by the appellant
for substitution was required to be dismissed and ordered accordingly.
6. The appellant preferred a revision petition before the High Court
against the order aforesaid. The High Court proceeded to dismiss the
said revision petition on the consideration that the petitioner i.e., the present
appellant, ought to have taken steps for impleading the other legal heirs
R. KRSNA MURTII v. R. R. JAGADESAN
A
B
C
D
E
F
G
H
492
SUPREME COURT REPORTS
[2022] 7 S.C.R.
of the late plaintiff either as co-plaintiffs or as defendants to enforce his
right over the property in question.
7. The order aforesaid has been questioned by the appellant before
us, inter alia, with the submission that the Trial Court and High Court
were not justified in rejecting the prayer made by the appellant for his
own substitution as the legal representative of deceased plaintiff and in
any case, the application could not have been rejected on the grounds
taken and on the reasons assigned by the learned Trial Judge and
approved by the High Court.
8. Learned counsel for the respondent has attempted his best to
support the orders impugned, again and essentially with the submissions
that at the given stage and in view of the factual aspects involved, other
legal heirs of the deceased plaintiff could not have been left out from
being impleaded as her legal representatives in the subject suit.
9. Having examined the matter in its totality and having given
thoughtful consideration to the rival submissions, we are unable to approve
the orders impugned.
10. Leaving aside any other aspect of the matter, it is but apparent
that the appellant is admittedly the son of the deceased plaintiff. Thus,
his entitlement, whether by way of testamentary succession or non-
testamentary succession, as being the legal heir of the deceased plaintiff
cannot be denied. That being the position, the application made by him
for
substituting himself as the legal representative of the deceased plaintiff
could not have been declined by the Trial Court.
11. In this regard too, it would be relevant to point out that if any
inquiry was required to be made, the Trial Court could have adopted
the course envisaged by Rule 5 of Order XXII of the Code of Civil
Procedure, 1908 but, in any case, the application made by the appellant
could not have been dismissed altogether.
12. That being the position, we set aside the orders impugned and
restore the said application for re-consideration by the Trial Court in
accordance with law.
13. The appeal is allowed in the above terms. No order as to
costs.
Ankit Gyan
Appeal allowed.
(Assisted by : Aarsh Choudhary, LCRA)