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 RS 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.

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

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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.

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 L.Rs. /vs./

Satya Sai Central Trust & Ors. – 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

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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.

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

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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.

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5.

In

MELEPURATH

SANKUNNI

EZHUTHASSAN (supra), while noticing Rule 1 of Order

22, it was held,