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2015 Supreme(Mad) 1417
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
PUSHPA SATHYANARAYANA, J.
Vinoraj - Appellant
Versus
Udhayakumar & Others - Respondents
C.R.P.NPD (MD) Nos. 553 of 2004 & 716 of 2004
Decided On: 23-03-2015
For the Petitioner:C. Godwin, Advocate.
For the Respondents:R2 to R4, R6 to R13, K. Sreekumaran Nair, Advocate, R1 & R5, No Appearance.
Headnote:
Limitation Act - Section 5 - Civil Procedure Code - Sub-rule (2) (a) - Rule 4 – A - Order XXII – Condo nation of delay – Claim of compensation - Revision petitioner had filed under Section 5 of Limitation Act and for imp leading himself as second plaintiff in suit - Original plaintiff died and she had no issues - She had executed a Will in favor of revision petitioner bequeathing all her properties in his favor - He was not aware of Will and pendency of suit at that time - Immediately after he got knowledge of suit he had filed an application to impaled him as second plaintiff with a delay of days in setting aside abatement caused due to death of original plaintiff - Said applications were contested by respondent first of all as not maintainable – Secondly it was contended that petitioner is not legal heir of original plaintiff - Will which was relied upon by petitioner was opposed by respondents as not valid and genuine - There is no necessity for original plaintiff to execute a Will when she has got no legal heirs of her own - Respondents also denied signature in recitals of Will – Held, There is no dispute that Barcoo died after coming into force of latest amendments in Code of Civil Procedure - Even order making as legal representative of deceased was passed after these amendments - It is case that he has no interest in estate of deceased - It is however not pointed out by him as to who are real legal representatives of deceased - Will a copy whereof as referred to above has been produced apparently appears to have been executed during month of December and registered on January - Claimants on basis of said Will have not taken any step as contended in application to obtain any probate or letters of administration of Will - Even a mutation on that basis has not been entered - As such it cannot be reasonably presumed that they may interested in estate of deceased - Accordingly it can be inferred that there is no other real legal representative of deceased - Consequently Court are of view that provisions of aforesaid Rule 4 - A of Order XXII can be applied to facts of case - Under circumstances it is evident that deceased has no real legal representative and appeal can proceed in absence of person representing estate - It is further held that appeal has not abated - Court are also of view that no notice is required to be given to any person under sub-rule (2) (a) of Rule 4 - A of Order XXII of Code of Civil Procedure as no reasonable basis exists for same - In above said case even though there was a Will claimants therein had not taken any step for obtaining probate or letters of administration of same – Therefore an inference was drawn on that there is no other real legal representative of deceased - But in this case revision petitioner has established himself to be nephew of deceased and to substantiate same he has produced Will - No doubt Will has to be proved in manner known to law – However such exercise can be taken during trial of suit - Revision petitioner can be determined by Court as legal representative as per Order 22 Rule 5 of Code of Civil Procedure - In said circumstances as held in decision above there is no abatement of appeal - Hence delay application is not necessary - In such circumstances I.As filed by revision petitioners are allowed and order passed are set aside - Civil Revision Petitions are allowed
1. The revision petitioner in both the revisions is the proposed second plaintiff in the suit in O.S.No.451 of 1995 which was filed for partition.
2. The revision petitioner had filed I.A.No.478 of 2003 under Section 5 of the Limitation Act and I.A.No.480 of 2003 for impleading himself as the second plaintiff in the suit.
3. The original plaintiff viz., Lilly Bai died on 28/3/2003 and she had no issues. She had executed a Will in favour of the revision petitioner bequeathing all her properties in his favour. He was not aware of the Will and the pendency of the suit at that time. Immediately, after he got the knowledge of the suit, he had filed an application to implead him as the second plaintiff with a delay of 65 days in setting aside the abatement caused due to the death of the original plaintiff.
4. The said applications were contested by the respondent first of all as not maintainable. Secondly, it was contended that the petitioner is not the legal heir of the original plaintiff. The Will which was relied upon by the petitioner was opposed by the respondents as not valid and genuine. There is no necessity for the original plaintiff to execute a Will when she has got no legal heirs of her own. The respondents also denied the signature in the recitals of the Will.
5. The respondents also alleged that the Will was created by the petitioner for the purpose of the case. Hence prayed for the dismissal of both the applications.
6. The trial Court which tried the applications dismissed the same. Aggrieved by the order of dismissal, the above Civil Revision Petitions have been filed.
7. The question that has to be decided is whether the delay can be condoned and whether the revision petitioner is a legal representative of the deceased original plaintiff.
8. On the side of the petitioner, P.Ws.1 to 3 were examined and on the side of the respondents, R.W.1 was examined.
9. The revision petitioner claims his right through the Will executed by the original plaintiff in his favour bequeathing an extent of 25 cents of land in S.No.251 in Painkulam Village, Vilavancode Taluk and the same is marked as Ex.P.1. The original plaintiff/testatrix died on 28/3/2003 and the Will was executed on 12/6/2002.
10. The petitioner examined himself as P.W.1 and stated that he was not present when the Will was executed by the testator. The petitioner also admitted that he had no knowledge about the registration of the Will. The petitioner was also not aware of the pendency of the suit.
11. P.W.2 is one Rajamani who claim to know the original plaintiff for the last 35 years. He also had deposed that he had seen the signature of the plaintiff made in the Will. It was deposed by P.W.2 that it was prepared by an Advocate, who was presented at the time of execution of the Will and he had also signed the Will as a witness. At the time of execution of the Will, P.W.2 was studying in Chennai staying with his sister.
12. P.W.3 is one John Isaac, who is an Advocate by profession. He is the one who had prepared the Will and he vouched for the execution of the Will by stating that he was present when the testatrix affixed her signature in the Will and P.W.2 also put his signature on the Will. He had also admitted that the Will was executed in the residence of the original plaintiff.
13. Though the above facts were denied by the respondents, they had not produced any other evidence to disprove the Will. The suit is filed for partition and the genuineness of the Will can also be gone into only at the time of trial of the suit. The respondents contended that the revision petitioner is a total stranger to the deceased original plaintiff and he cannot continue the suit as the legal heir of the deceased original plaintiff.
14. Admittedly, the original plaintiff did not have issues and there are no other immediate legal heir surviving her to continue with the suit. The revision petitioner is only seeking permission to implead him in the suit to continue the cause of action
