ORDER :

1. The petitioners are all daughters of Sri Yallappa B. Patil, who was the sole plaintiff in O.S. No. 418/2019. Sri Yallappa B. Patil had filed O.S. No. 418/2019 seeking a declaration to declare him as the absolute owner of suit property in R.S. No. 99/1 measuring 4 acres, by virtue of a registered Will dated 04.09.2018 executed by his daughter Smt. Sumithra. It was contended that Smt. Sumithra who had executed a registered Will dated 04.09.2018 bequeathing her rights in respect of the land in question in favour of her father, died subsequent to the execution of the Will. On the strength of the registered Will, Sri Yallappa B. Patil sought for such a declaration at the hands of the Principal Senior Civil Judge, Gokak.

2. However, during the course of the suit, the sole plaintiff Sri Yallappa B. Patil died on 09.02.2020. Therefore the petitioners herein filed I.A. No. 2 under Order 22 Rule 3 of CPC with a prayer to permit them as legal representatives of the deceased plaintiff Sri Yallappa B. Patil to be brought on record. The said application has been dismissed by the trial court on the ground that Smt. Sumithra acquired the property under the alleged Will towards her maintenance in the suit filed by her and the beneficiary under the Will left behind Smt. Sumithra also died without proving the Will and therefore it was held that the legal representatives of Sri Yallappa B. Patil have no locustandi to prosecute the suit.

3. Learned counsel would drawn the attention of this Court to a judgment of the Hon’ble Supreme Court in the case of Jaladi Suguna (Dead) through LRs. vs. Satya Sai Central Trust, AIR 2008 SC 2866. Learned counsel would submit that the Hon’ble Apex Court has held that having regard to provisions contained in Rules 4 and 5 of Order 22 they are mandatory. It was held that Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to hear the appeal, nor can it implead all persons claiming to be the legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. It was held that the Court cannot postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The code clearly provides that where a question arises as to whether any persons is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. It was also held that though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, nevertheless, Rule 4 read with Rule 11 make it clear the appeal can be heard only after the legal representatives are brought on record.

4. Having heard the learned counsels and on perusing the petition papers, this Court finds that in the present set of factual matrix, wherein the sole plaintiff died during the course of the suit and when application is made by his legal representatives seeking to come on record as legal representatives of the plaintiff, what the trial court was required to first consider is whether the right to sue survives, as provided in Rule 1 of Order 22. Rule 1 of Order 22 provides that the death of plaintiff/defendant shall not cause to suit to abate if the right to sue survives. Therefore, the trial court was required to consider as to whether the right to sue survives on the legal representatives of the deceased sole plaintiff. In this regard, it would be profitable to notice the following judgments of the Hon’ble Apex Court:

(i) Melepurath Sankunni Ezhuthassan vs. Thekittil Geopalankutty Nair, (1986) 1 SCC 118

(ii) M. Veerappa vs. Evelyn Sequeira and Others, (1988) 1 SCC 556

(iii) Prabhakara Adiga vs. Gowri and Others, (2017) 4 SCC 97

5. In Melepurath Sankunni Ezhuthassan (supra), while noticing Rule 1 of Order 22, it was held, if the right to sue does not survive the