Legal representatives must prove entitlement based on wills; mere claims without proof are insufficient.

O R D E R

This review petition is filed against the order dated

08.08.2024 passed by this Court in I.A. No.4 of 2018 in R.F.A. No.439 of 2013 whereby the 2^nd respondent herein/2^nd appellant was impleaded as the legal representative of the deceased appellant. The review petitioners were defendants 1 and 2 in O.S.No. 54 of 2012 on the files of the Sub Court, Kannur.

2. The suit was filed by one K.K Somasundaran for recovery of possession and for permanent prohibitory injunction. The learned Sub Judge dismissed the suit by judgment dated 17.08.2012. Against the judgment and decree, the plaintiff preferred the above R.F.A and during the pendency of the appeal, he expired on

05.07.2017.

3. Sri.Sreekumar, the 2^nd respondent herein, who was not party to the appeal, preferred I.A. No. 4 of 2018 in the appeal stating that the sole appellant K.K.Somasundaran died leaving behind his wife and three children and that Somasundaran had executed a registered Will bequeathing the plaint schedule property to him and since the plaint schedule property devolved on him, he may be impleaded as supplemental 2^nd appellant and be permitted to continue to appeal as the legal representative of the deceased appellant. The said application was filed along with I.A.No.5 of 2018 to set aside the abatement caused due to the death of the appellant.

Both applications were allowed as per order dated 08.08.2024.

4. The review petitioners state that the copy of the impleading petition was not served on them and they were under the bona fide impression that the person sought to be impleaded is the legal representative of the deceased appellant. However, it was later disclosed that the person sought to be impleaded is claiming rights on the strength of the Will alleged to have been executed by the deceased appellant and that so long as the Will is not proved, he is not entitled to succeed as the legal representative of the deceased appellant.

5. When the appeal came up for consideration on

23.06.2025, this Court recorded the submissions of the learned counsel on both sides that the deceased appellant was survived by his wife and three children at the time when the impleading petition was filed. The learned counsel for respondents 1 and 2/ review petitioners submitted that the additional 2^nd appellant is not the legal representative of the deceased appellant and he is intending to file a review petition to review the order in I.A.No. 4 of 2018. This Court directed the learned counsel for the appellants to serve a copy of I.A. Nos.4 of 2018 and 2 of 2024 (application to implead the legal heirs of the 4^th respondent in the appeal) to the learned counsel for respondents 1 and 2. Accordingly, this review petition is filed seeking to review the order dated 08.08.2024.

6. It is contended by the review petitioners that the additional 2^nd appellant is claiming rights over the plaint schedule property on the strength of a Will alleged to have been executed by the deceased appellant and since the Will has not been proved, he is not entitled to succeed as the legal representative of the deceased appellant and therefore, there is an error apparent on the face of the order resulting in miscarriage of justice and prejudice to the review petitioners.

7. The review petition is filed along with C.M.Appl. No.1 of

2025 to condone the delay of 303 days in filing the review petition.

8. Heard Sri.V.R.Kesava Kaimal, the learned counsel for the review petitioners, Smt.M.A.Zohra, the learned counsel for the 2^nd respondent/2^nd appellant and Sri.M.Muhammed Shafi, the learned counsel for additional respondents 8 to 11 in the appeal.

9. It is contended by Sri.Kaimal that though I.A.No.4 of

2018 was filed on 27.10.2017, the defect in filing the application was cured only on 02.04.2018. C.M.Appl.No.1 of 2018 filed for condoning the delay in re-presenting I.A.No.4 of 2018 was allowed by this Court on 09.04.2018. Sri.Kaimal, referring to Order 22 Rule 10A of the Code of Civil Procedure (the CPC) submits that