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2014 Supreme(Mad) 2378
High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
Lakshmi Narayanan @ Hari
Versus
Thulasimani & Others
C.R.P. (PD) No. 4724 of 2011 & M.P. No. 1 of 2011
Decided On : 08-08-2014
For the Petitioner:N. Manokaran, Advocate.
For the Respondents: R1, A.K. Kumarasamy, R2 to R4, No Appearance.
A legatee under a will who intends to represent the estate of the deceased testator is a legal representative and entitled to be impleaded as a party plaintiff without the need to prove the will at the stage of impleadment.
Headnote:
Impleadment - Civil Revision Petition - Order 22 Rule 3 C.P.C. - Order 1 Rule 10(2) C.P.C. - Section 2(11) C.P.C. - Suresh Kumar Bansal vs. Krishna Bansal, 2010 (2) SCC 162 - Jaladi Suguna vs. Satya Sai Central Trust, 2008 (8) SCC 521
Fact of the Case:
The petitioner sought to be impleaded as a party plaintiff in a suit for permanent injunction after the death of the first plaintiff, based on a will executed by the deceased first plaintiff in favor of the petitioner. The court below rejected the application on the ground that the petitioner cannot be impleaded before proving the will.
Finding of the Court:
The court found that the petitioner, as the beneficiary under the will, is entitled to be impleaded as a party plaintiff in the suit without the need to prove the will at the stage of impleadment. The court allowed the civil revision petition and directed the trial court to take up the suit and dispose of the same on merits and in accordance with the law within a period of three months.
Issues: The main issue was whether the petitioner is entitled to be impleaded as a party plaintiff in the suit based on the will executed by the deceased first plaintiff.
Ratio Decidendi: The court held that the petitioner, as the beneficiary under the will, is a legal representative and entitled to be impleaded as a party plaintiff without the need to prove the will at the stage of impleadment. The court also emphasized that no prejudice would be caused to the defendants if the petitioner is added as the third plaintiff, as the suit itself is for bare injunction.
Final Decision: The civil revision petition was allowed, and the order made in I.A. No. 1194 of 2007 was allowed. The trial court was directed to take up the suit and dispose of the same on merits and in accordance with the law within a period of three months from the date of receipt of a copy of this order.
K. RAVICHANDRABAABU, J.
1. The civil revision petition is filed against the order made in I.A. No. 1194 of 2007 in O.S. No. 843 of 2004 dated 22.01.2008 on the file of the Principal District Munsif, Erode in dismissing the application filed by the petitioner to implead him as party plaintiff in the above said suit.
2. Following are the short facts that arise for consideration in this civil revision petition:
One Muthusamy along with the fourth respondent herein filed the said suit in O.S. No. 843 of 2004 on the file of the Sub Court, Erode against the respondents 1 to 3 herein as defendants seeking for the relief of permanent injunction restraining the defendants and their men and agents from interfering with the plaintiffs' peaceful possession and enjoyment of the suit properties; encumbering the same in favour of the third parties and collecting the rent from the tenants of the plaintiffs under the guise of the settlee of the suit properties in any other manner. The said Muthusamy is the father of the second plaintiff, who is the fourth respondent herein. After filing the said suit, the first plaintiff viz. Muthusamy died on 29.03.2004. It is stated that during the life time of the first plaintiff, he has executed a registered will dated 16.10.2003 bequeathing his properties to his grandson viz. the petitioner herein, who is none other than the son of the second plaintiff. Thus, it is contended that after the death of the said Muthusamy, the petitioner herein became the absolute owner of the properties bequeathed under the will. Therefore, I.A. No. 1194 of 2007 was filed by the second plaintiff along with the petitioner under Order 22 Rule 3 C.P.C. for impleading the petitioner herein as party third plaintiff in the said suit. The said application was resisted by the defendants by contending that before proving the validity of the will said to have been executed by the deceased first plaintiff in favour of the petitioner, he cannot be impleaded as party plaintiff.
3. The court below dismissed the said application by holding that the petitioner can be impleaded as party plaintiff only after the genuineness of the said will is proved and that the application for impleadment was not filed immediately after the death of the first plaintiff. After the said order, the petitioner himself filed another I.A. No. 728 of 2009 seeking for impleading himself as the third plaintiff in the said suit under Order 1 Rule 10(2) C.P.C. The said I.A. was dismissed by the trial court on 01.09.2009 on the ground that the same is barred by res judicata in view of the fact that the earlier application filed in I.A. No. 1194 of 2007 was already dismissed and the said order has become final. Challenging the said order made in I.A. No. 728 of 2009 dated 01.09.2009, the petitioner filed CRP (NPD) No. 2522 of 2011 before this Court. By an order dated 10.08.2011, the said civil revision petition was dismissed on the ground that the earlier application filed for impleading the petitioner was rejected and therefore, the subsequent application was barred by res judicata. However, this Court, while dismissing the said civil revision petition, has also observed that the order made in the said civil revision petition will not in any way prejudice the case of the petitioner in the event he moved the appropriate forum. Consequent upon the dismissal of the above C.R.P. (NPD) No. 2522 of 2011, the petitioner has filed the present civil revision petition challenging the order made in I.A. No. 1194 of 2007 dated 22.01.2008.
4. In this civil revision petition, notice of motion was ordered on 20.01.2012 also by granting interim stay for a period of two weeks. Thereafter, the matter was posted only on 16.07.2014 for further hearing before me.
5. Mr. N. Manokaran, learned counsel appearing for the petitioner submitted as follows:
The petitioner will come within the definition of legal representative as defined under section 2 (11) of C.P.C. since he is the b
