The procedure for impleading legal representatives of a deceased defendant is governed by Order XXII, Rule 4 of CPC, and the Trial Court erred in allowing the Plaintiff's Petition under Order VI, Rule 17 of CPC instead.

C.R.P.No.1205 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 19.06.2023

Delivered on 22.12.2023

CORAM:

THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA

KURUP

C.R.P.No.1205 of 2021

and C.M.P.No.9313 of 2021

G.Jothi @ Sironmani

...Petitioner/2^nd Defendant

K.Ganapathy (1^st Defendant died)

-Vs-

1.P.Raman

...Respondent/Plaintiff

2.Pattathu Rani

...Respondent/3^rd Defendant

Prayer:- Petition filed under Article 227 of the Constitution of India, to set

aside the fair and decretal order dated 11.12.2019 made in I.A.No.410 of

2018 in O.S.No.55 of 2015 on the file of the learned Subordinate Judge,

Rasipuram.

For Petitioner

: Mr.S.Vinoth Kumar

for Mr.G.Arul Murugan

For R1

: Mr.V.Vidyesh

1/16

https://www.mhc.tn.gov.in/judis

C.R.P.No.1205 of 2021

for M/s.K.Ashwini Devi

For R2

: No appearance

O R D E R

This Civil Revision Petition is filed by the 2^nd Defendant in

O.S.No.55 of 2015 pending before the learned Subordinate Judge,

Rasipuram, who is the Revision Petitioner herein.

2.Brief facts which are relevant to decide this Civil Revision Petition

are as follows:-

a) O.S.No.55 of 2015 had been filed by the Plaintiff against his brother

as the 1^st Defendant. The 2^nd Defendant was the wife of the 1^st

Defendant. There is also a 3^rd Defendant.

b) The suit was filed for relief of partition of the properties mentioned in

the schedule of the plaint and also for declaration that a settlement

deed executed by the mother of the 1^st Defendant in favour of the 1^st

Defendant and a subsequent settlement deed executed by the 1^st

Defendant in favour of the 2^nd Defendant are null and void and not

binding on the Plaintiff.

c) Pending the suit, the 1^st Defendant died. The 2^nd Defendant as wife of

2/16

https://www.mhc.tn.gov.in/judis

C.R.P.No.1205 of 2021

the 1^st Defendant, as a legal heir filed a memo stating that there is a

son who also has to be impleaded as a party. The memo was

recorded by the learned Subordinate Judge, Rasipuram. The Plaintiff,

instead of filing a Petition to implead the son of the 1^st Defendant as

a Defendant in the suit, had ignored the son who was mentioned in

the memo and had filed only an Amendment Petition to amend the

plaint by including the word (1^st Defendant died). The 2^nd Defendant

being his wife was already on record. The Petition in I.A.No.410 of

2018 in O.S.No.55 of 2015 filed by the Plaintiff under Order VI,

Rule 17 of CPC, seeking to record the death of the 1^st Defendant and

to recognize the 2^nd Defendant as his legal heir was resisted by the 2^nd

Defendant stating the reasons mentioned in the memo. Therefore,an

enquiry was conducted.

d) In the enquiry, two witnesses were examined in support of the 2^nd

Defendant as R.W.1 and R.W.2. R.W.1 was Thiru.Ponnusamy, a

neighbour and R.W.2 was Thiru.Rajasekaran, they were subjected to

cross-examination. In the cross-examination, they did not know the

names of the parents of the 2^nd Defendant. Both the witnesses had

stated that the 2^nd Defendant has a son by name G.Sujith Kumar.

3/16

https://www.mhc.tn.gov.in/judis

C.R.P.No.1205 of 2021

They were confronted with the details of the date of marriage of the

2^nd Defendant with the 1^st Defendant. Those witnesses, R.W.1 and

R.W.2, had gone to the parents house of the 2^nd Defendant, whether

they were aware of the 2^nd Defendant and they had claimed

ignorance of those details.

e) In the light of that enquiry, the learned Subordinate Judge,

Rasipuram, had allowed the Petition in I.A.No.410 of 2018 in

O.S.No.55 of 2015, under Order VI, Rule 17 of CPC, thereby

permitting the Plaintiff to amend the plaint to include the words (1^st

Defendant died) and to include the words 2^nd Defendant wife of 1^st

Defendant was already on record.

f) Against the order allowing amendment, the above Civil Revision

Petition had been filed by the 2^nd Defendant, seeking to include her

son, G.Sujith Kumar also as Defendant in the suit.