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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 25^TH DAY OF SEPTEMBER, 2021

BEFORE

THE HON’BLE MR.JUSTICE R. NATARAJ

W. P. No.201536/2021 (GM-CPC)

BETWEEN:

SMT. SURAYYA @ SURAYYA BEGUM

W/O KHASIM @ KHASIM SAB MOMIN

AGE:46 YEARS, OCC: HOUSEHOLD

R/O HEEREBENUR TQ:INDI

DIST: VIJAYAPURA-584 601.

... PETITIONER

(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)

AND

JAINUDDIIN

S/O MOHAMMED HANEEF MOMIN

AGE:52 YEARS, OCC: AGRICULTURE

R/O CHIKKAMANOOR

TQ: AKALKOT

DIST: SOLAPUR

MAHARASTRA STATE-413 001.

… RESPONDENT

(BY SRI D.P. AMBEKAR, ADVOCATE FOR SRI SACHIN M.

MAHAJAN, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN

APPROPRIATE WRIT, MORE SO IN THE NATURE OF

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CERTIORARI AND GRANT THE FOLLOWING RELIEFS (i)

QUASH THE ORDER DATED 03.07.2021 PASSED IN O.S.

NO.494/2015 ON THE FILE OF THE ADDL. CIVIL JUDGE,

INDI, AS PER ANNEXURE-E.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE

FOLLOWING:

ORDER

This writ petition is filed by the defendant in O.S.

No.494/2015 pending trial on the file of the learned

Additional Civil Judge and JMFC., Indi, challenging the

Order dated 03.07.2021 passed on I.A. No.VI by which

the Trial Court allowed the said application and permitted

the plaintiff No.1(a) to come on record as the legal

representative of the deceased plaintiff.

2.

A suit for partition and separate possession

was filed. During the pendency of the suit, the plaintiff

died and the respondent herein filed an application under

Order XXII Rules 3 of the Civil Procedure Code (for short,

‘CPC’) to come on record as the legal representative of the

plaintiff. The respondent claimed to be a legatee of the

deceased plaintiff and alleged that the deceased plaintiff

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had executed a Will dated 06.11.2018 bequeathing his half

share in the suit schedule properties.

3.

The defendant contested the application and

disputed the execution of the Will by the deceased. The

Trial Court without conducting an enquiry as contemplated

under Order XXII Rule 5 of the CPC allowed the application

and permitted the respondent herein to come on record as

the legal representative of the deceased plaintiff.

4.

Being aggrieved by the aforesaid order, the

present writ petition is filed.

5.

The

learned

counsel

for

the

petitioner

submitted that when there was a dispute regarding the

person who is entitled to represent the estate, then it was

incumbent upon the Trial Court to conduct an enquiry as

contemplated under Order XXII Rule 5 of the CPC. He

submitted that there is no escape for the Trial Court from

adopting this procedure and it cannot postpone the

determination as to who can represent the estate of the

deceased plaintiff. He also contended that this being a

threshold

requirement

of

permitting

the

legal

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representative to come on record, the Trial Court could not

have considered it lightly.

6.

Per contra, the learned counsel for the

respondent submitted that the Will proposed by the

respondent was registered in accordance with law and also

that it complied with all the requirements of Section 63 of

the Indian Succession Act, 1925. He also contended that

he was in possession of the original Will. Therefore, this

was sufficient enough for the Trial Court to hold that the

respondent represented the estate of the deceased.

7.

Order XXII Rule 5 of the Code of Civil

Procedure reads as under:

"5. Determination of question as to

legal representative:-Where a question arises

as to whether any person is or is not the legal

representative of a deceased plaintiff or a

deceased defendant, such question shall be

determined by the Court:

Provided that where such question

arises before an Appellate Court, that Court

may, before determining the question, direct

any subordinate Court to try the quest