2014 Supreme(SC) 860

SUPREME COURT OF INDIA
M.Y. EQBAL, ABHAY MANOHAR SAPRE, JJ.
Karedla Parthasaradhi – Appellants
Versus
Gangula Ramanamma (D) Through L.Rs. & Ors. – Respondents
CIVIL APPEAL No. 3872 OF 2009
Decided On : 04-12-2014

IMPORTANT POINTS
Law always presumes in favour of marriage being valid unless rebutted.
When defendant dies during pendency of appeal, proper course in event of an application for legal representation is to remand the matter to trial court under Order XXII rule 5, proviso for recording a finding and then proceed.
Supreme Court can remand the matter to high Court who in turn would remand it to trial court in terms of Order XXII Rule 5, Proviso and decide the appeal in light of finding of trial court. Alternatively Supreme Court could directly remand the case to trial court under Proviso to Order XXII Rule 5 r/w Order XLI Rule 25 and decide the appeal on receipt of finding of the trial court.

Headnote:(a) Hindu Law – Presumption as to legality of marriage – High Court in exercise of its power u/s 96, Code of Civil Procedure, 1908 – Appreciating evidence in detail – Coming to conclusion that defendant no. 1 was legally wedded wife of late K. Satyanarayana – No infirmity. (Para 22, 23)

       AIR 1952 SC 231; (2010) 9 SCC 209 – Relied upon

       (b) Code of Civil Procedure, 1908 – Order XXII Rule 4 and 5 – Legal representation – High Court allowing application for legal representation without following procedure under rule 5 – Not proper – Questions whether K. Sanjiva Rao (respondent no.1) was the legal representative of deceased defendant no.1; if so, in what capacity- adopted son or legatee could be decided only by trial court – High Court could not have allowed the application nor decided the case on merits without a decision on aforesaid questions – Further, High Court simply allowing the application without recording a finding as to whether any right in the suit property was devolved in favour of K. Sanjiva Rao (respondent no.1) after the death of defendant no. 1 and if so, in what capacity – This finding alone would have enabled K. Sanjiva Rao to become appellant and prosecute the appeal on merits – Question of representation by K. Sanjiva Rao assuming significance because it has been held that defendant no. 1 was wife of K. Satyanarayana and K. Sanjiva Rao was not natural son of the couple – Defendant no. 1 dying during pendency of appeal it is necessary to record a finding as to who is her legal representative – Impugned order not sustainable. (Para 28, 29, 30)

       (2008) 8 SCC 521 – Relied upon

       (c) Code of Civil Procedure, 1908 – Order XXII Rule 5, Proviso r/w Order XLI Rule 25 – Question of legal representative – Matter could be remanded to high Court who in turn remand it to trial court in terms of Order XXII Rule 5, Proviso and decide the appeal in light of finding of trial court – Alternatively Supreme Court could directly remand the case to trial court under Proviso to Order XXII Rule 5 r/w Order XLI Rule 25 and decide the appeal on receipt of finding of the trial court – Second option exercised. (Para 31, 32, 33)

       Facts of the case:

       One Karedla Satyanarayna purchased the suit house from one Smt. Abdul Amina Bee and her sister. At the time of purchase, there was only a tiled house. Subsequently he reconstructed the suit house. He died intestate on 19.12.1983.

       On his death, the plaintiff (appellant herein), who is real brother of late Karedla Satyanarayna, claimed that the suit house has devolved upon him along with his sister (defendant no. 2) in equal share being Class II (II) (3) (4) heirs as specified in the Schedule appended to the Hindu Succession Act, 1956.

       However, the plaintiff could not get possession of the suit house because he noticed that defendant no. 1 was claiming herself to be in its possession and declined to vacate the same when demanded by the plaintiff. The plaintiff also noticed that defendant no. 1 had been asserting her ownership rights over the suit house after the death of Satyanarayana as his wife.

       The plaintiff filed a suit for eviction against defendant no. 1 (respondent no. 1 herein).

       The decree for eviction was passed against defendant no. 1 in relation to the suit house.

       Defendant no. 1 filed first appeal before the High Court. During the pendency of first appeal defendant no. 1 Gangula Ramanamma (appellant in first appeal), died. On 09.09.2000, K Sanjiva Rao (respondent no.1 herein) filed an application being and prayed that his name be substituted in place of deceased appellant. It was alleged that he is the adopted son of the deceased defendant no. 1 (appellant) and secondly, defendant no. 1 has also executed one Will on 02.01.1984 in his favour bequeathing the suit house to him.

       High Court allowed the application and permitted K Sanjiva Rao to become the appellant and prosecute the appeal on merits.

       The learned Single Judge of the High Court allowed the first appeal filed by defendant no.1 and being prosecuted by K. Sanjiva Rao and while reversing the judgment and decree of the trial court dismissed the plaintiff’s suit.

       Finding of the Court:

       High Court erred in allowing the LR petition without following procedure in proviso to Order XXII rule 5.

       Result: Matter remanded to trial court.