IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.34432 OF 2014 (GM-CPC) BETWEEN:
Sri. Basavaraju S/o Siddappa, Aged about 66 years, R/o Belagihally, Handanakere Hobli, Chikkanayakanahalli Taluk, Tumakuru District – 572 214. …PETITIONER (By Sri. Shashidhar Belagumba, Advocate) AND:
1. Sri. Shivanna S/o Giriyappa, Since dead by LR’s 1(a). Sri. Jayanna S/o Shivanna, Aged about 45 years, 1(b). Sri. Mahesh S/o Shivanna, Aged about 42 years, 1(c). Sri. Dinesh S/o Shivanna, Aged about 20 years, All are R/o Thagachegatta, Handanakere Hobli, Chikkanayakanahalli Taluk, Tumakuru District-572 214. ... RESPONDENTS (By Sri. K. Srihari, Advocate for R-1(a) to R1(c) are served and unrepresented) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order passed by the Principal Civil Judge & JMFC., at Chikkanayakanahalli dated 25.06.2014 passed on I.A.No.4/2013 under Order 22 Rule 3 R/w U/o 151 CPC in O.S.No.579/2002 vide Annexure-A.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:
O R D E R The petitioner, claiming to be a legatee under the registered Will dated 10.10.2005, has filed this writ petition against the order dated 25.06.2014, on I.A.No.4 made in O.S.No.579/2002 dismissing the application filed by the petitioner/applicant under Order XXII Rule 3 read with Section 151 of Code of Civil Procedure.
2. It is the case of the petitioner that plaintiff- Ningamma claiming to be the mother-in-law of petitioner/applicant, filed a suit in O.S.No.579/2002 for declaration of title and for permanent injunction in respect of suit schedule properties, more fully described in the schedule, contending that after the death of her husband Marulappa, she succeeded to the suit schedule properties and the defendants have no right, title or interest over the suit schedule property.
3. The defendants have not filed written statement.
4. During the pendency of the original suit, the plaintiff-Ningamma died on 07.12.2013. Therefore, the present petitioner, who is the applicant before the trial Court has filed an application under Order XXII Rule 3 read with Section 151 of Code of Civil Procedure to implead him as the legal representative/legatee of the plaintiff to proceed with the suit on the basis of registered Will dated 10.10.2005.
5. The said application was opposed by the defendants. The trial Court, considering the application, by the impugned order dated 25.06.2014, dismissed the application mainly on the ground that the claim of the petitioner/applicant to implead as a party to the suit does not arise since the cause of action does not survive to the applicant and if at all he has any right over the property based on the Will, he is at liberty to file an independent suit but not in the suit of present nature by filing an application is not maintainable. Hence, the present writ petition is filed.
6. I have heard learned counsel for both parties to the lis.
7. Sri. Shashidhar Belagumba, learned counsel for the petitioner has contended that the impuned order passed by the trial Court rejecting the application filed under Order XXII Rule 3 read with Section 151 of Code of Civil Procedure is erroneous and contrary to the material on record. Learned counsel further contended that when the registered Will is not disputed by the defendants nor filed any written statement to the main suit, the trial Court ought to have allowed the application filed by the petitioner/applicant based on the registered Will to come on record as a legal representative of deceased plaintiff and ought to have permitted to proceed with the suit. Learned counsel contended that filing a separate suit on the basis of Will as observed by the Trial Court would not arise. Therefore, he sought to quash the impugned order by allowing the present writ petition.
8. In support of his contention, learned counsel for petitioner relied upon the decision reported in (2010) 2 SUPREME COURT CASES 162 - SURESH KUMAR BANSAL Vs. KRISHNA BANSAL AND ANOTHER, wherein the Hon’ble Supreme Court has held that a person claiming under registered Will is a legal representative within the meaning of Section 2(11) of Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the Will on the basis of which substitution is sought for, is a suspicious one or the parties must send the case back to the Probate Court for a decision whether the Will was genuine or not.
9. Per contra, Sri. Srihari K., learned counsel for respondent Nos.1(a) to 1(c) sought to justify the impugned order and fairly submits that since the defendant has not filed any written statement/objections, the petitioner, claiming to be a legatee under the registered Will, is subject to proof of the Will in the present suit and hence, petitioner/applicant may be permitted to come on record. The said submission is placed on record.
10. Having heard learned counsel for both the parties to the lis, it is not in dispute that original plaintiff had filed a suit for declaration and for permanent injunction in respect of the suit schedule properties claiming through her husband and she is in possession and enjoyment of the suit properties as a lawful owner.
11. The defendants have not filed written statement. After the death of original plaintiff, an application under Order XXII Rule 3 read with Section 151 of Code of Civil Procedure came to be filed by the petitioner/applicant claiming to be a legal representative under registered Will dated 10.10.2005. The trial Court ought to have allowed the application and permitted the applicant to come on record subject to proof of the Will. The same has not been done and the trial Court has proceeded on a wrong presumption that he is claiming independent right under the Will in respect of the properties bequeathed and he is at liberty to file separate suit. When he is claiming under the Will in respect of the properties as a legatee, the trial Court ought to have allowed the application for impleadment subject to proof of Will in the pending proceedings between the parties and the same has not been done.
12. The Hon’ble Supreme Court, while considering the provisions of Order XXII Rule 3 of Code of Civil Procedure in the matter of eviction in Suresh Kumar Bansal’s case (supra), has held in para No.19, 21, 24, 25 and 26 as under:
“19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different Courts or to institute different proceedings touching on different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
24. In view of the aforesaid discussions and in view of the decision in Jaladi Suguna, we are also of the view that in an eviction proceeding, when a legatee under a will intends to represent the interest of the estate of the deceased testator, he will be a legal representative within the meaning of Section2(11) of the Code of Civil Procedure, for which it is not necessary in an eviction suit to decide whether the will on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the Probate Court for a decision whether the will was genuine or not.
25. For the reasons aforesaid, we are of the view that the High Court as well as the trial court had acted illegally and with material irregularity in the exercise of their jurisdiction in not impleading not only the natural heirs and legal representatives of the deceased plaintiff but also the appellant who is claiming his impleadment on the basis of an alleged will of the deceased plaintiffs.
26. Accordingly, the impugned order of the High Court is set aside and the application for impleadment filed by the appellant is allowed. For this reason, the eviction proceeding shall be carried on not only by the natural heirs of the deceased plaintiff, but also the appellant who claims to be a legal representative of the deceased plaintiff on the basis of a will alleged to have been executed by the deceased plaintiffs.”
13. In view of the aforesaid reasons, the impugned order passed by the trial Court cannot be sustained in law. For the reasons stated above, the writ petition is allowed. The impugned order dated 25.06.2014 on I.A.No.4 made in O.S.No.579/2002 on the file of the Prl. Civil Judge & JMFC at Chikkanayakanahally is hereby quashed.
The application filed by the petitioner in I.A.No.4 Order XXII Rule 3 read with Section 151 of Code of Civil Procedure is allowed subject to the condition that the petitioner/applicant has to prove the registered Will dated 10.10.2005 and proceed with the suit in accordance with law.
Ordered accordingly.
SD/- JUDGE BMC