IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.29729-29730/2018(GM-CPC) BETWEEN:
1. VENUGOPAL @ VENUGOPALREDDY, AGED ABOUT 56 YEARS, S/O LATE ANNAYAPPA, RESIDENT OF NO.200, VIII CROSS, BELLANDUR, BENGALURU-560103.
2. MANJULA, AGED ABOUT 53 YEARS, W/O VENUGOPAL, RESIDENT OF NO.200, VIII CROSS, BELLANDUR, BENGALURU-560103 3. SHARADAMMA AGED ABOUT 57 YEARS, W/O LATE VENKATASWAMY REDDY, RESIDENT OF NO.42, AMBALIPURA VILLAGE, SARJAPURA ROAD, BENGALURU-560102.
4. V. PADMA AGED ABOUT 39 YEARS, D/O LATE VENKATASWAMY REDDY, RESIDENT OF NO.42, AMBALIPURA VILLAGE, SARJAPURA ROAD, BENGALURU-560102.
5. SRI. DARSHAN RAJ S/O GOVINDEGOWDA M L AGED ABOUT 18 YEARS, R/AT NO.397/E, AMBALIPURA, SARJAPURA ROAD, BENGALURU-560102 (BY SRI D. R. RAVISHANKAR, ADVOCATE) AND:
1. SMT. AKKAYAMMA, WIFE OF LATE ANNAYAPPA @ ANNAYYA REDDY, AGED ABOUT 87 YEARS, R/AT NO.381, BELLANDUR VILLAGE, BANGALORE-560103 SINCE DECEASED BY HER LRS ... PETITIONERS 1(a) SMT. HANUMAKKA, W/O LATE RAMAREDDY, AGED ABOUT 70 YEARS, R/AT NO.381, BELLANDUR VILLAGE, BANGALORE-560103 1(b) ANANTHA @ R ANANTHARAMA REDDY AGED ABOUT 50 YEARS, S/O LATE RAMA REDDY, C/O NANJAPPA REDDY, R/AT NO.1, I BLOCK (EAST) BYRASANDRA-560052.
1(c) BABUREDDY AGED ABOUT 45 YEARS, S/O RAMA REDDY, R/AT BALLANDUR, VARTHUR HOBLI, BENGALURU-560056.
1(d) DHANALAKSHMI AGED ABOUT 40 YEARS, D/O LATE RAMA REDDY, W/O GURUMURTHY HALANAYAKANAHALLI VILLAGE, CARMELRAM COLLEGE POST, BENGALURU-560035.
... RESPONDENTS (BY SRI ARUN A GADAG, ADVOCATE FOR SRI SHRIDHARA K, ADVOCATE FOR R1(a) TO R1(d)) …… THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11.09.2015 AT ANNEXURE-D PASSED ON THE IA NO.5 IN O.S.NO.4485/2014 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant Nos.1 to 5 filed the present writ petitions against the Order dated 11.09.2015 allowing I.A.No.5 filed by the impleading applicants under Order XXII Rule 3 of Code of Civil Procedure and Order dated 19.02.2018 allowing I.A.No.8 filed under Order VI Rule 17 of Code of Civil Procedure for amendment, made in O.S.No.4485/2014 on the file of the VII Addl. City Civil and Sessions Judge, Bengaluru, (CCH-19).
2. The original plaintiffs filed suit for declaration that the plaintiffs are the absolute owners by title and possession and enjoyment of suit schedule properties, for cancellation of gift deeds, for permanent injunction to restrain the defendants from alienating/encumbering the suit schedule properties in favour of third parties, etc., as set out in detail in the prayer to the suit, raising various contentions.
3. The defendants filed written statement, denied the plaint averments and contended that they are in possession of the suit schedule properties based on the registered gift deeds said to have been executed by the plaintiffs. During pendency of the suit, first plaintiff died on 22.04.2015. Therefore, the applicants filed an application under Order XXII Rule 3 of Code of Civil Procedure to come on record as plaintiff Nos.1(a) to 1(d) on the ground that they are the legatees under the registered Will dated 23.10.2014 and also they are the legal representatives of the first plaintiff. The said application was not opposed by any of the parties, including defendant Nos.2 and 3.
4. The Trial Court, by the order dated 11.09.2015, allowed the application. In view of the allowing the application to come on record as legal representatives of the deceased first plaintiff, they filed an application under Order VI Rule 17 of Code of Civil Procedure for amendment of the pleadings and to add an additional prayer to the effect that plaintiff No.1(a) is the daughter and first defendant is the son of deceased plaintiff. Plaintiff Nos.1(b) to (d) are the children of plaintiff No.1(a) and grand children of deceased first plaintiff; plaintiff during her life time had executed a Will dated 23.10.2014; the plaintiff had bequeathed her 1/12th share in the judgment and decree passed in O.S.No. 4830/2000 and also bequeathed suit schedule ‘A’ and ‘B’ properties shown as item No.6 in the registered Will in favour of plaintiff Nos.1(a) to (d) etc., and to add a prayer for declaration that the plaintiffs are the absolute owners in lawful possession and enjoyment of the suit schedule properties as per the terms of the registered Will dated 23.10.2014 and for declaration that the sale agreement dated 26.03.2014 said to have been executed by the second defendant in favour of fifth defendant is a void document and the same is not valid and binding on the plaintiffs.
5. The said application was opposed by defendant Nos.1 and 2 and contended that the application is frivolous application filed only to harass the defendants and the proposed amendment sought will putforth entirely a new case. The same is not permissible and liable to be rejected and contended that the Will is fabricated by plaintiffs only with an intention to deprive the legitimate rights of the defendants over suit schedule properties. The application filed after commencement of the Trial at a belated stage is not maintainable. The Trial Court considering the application and objections, by the impugned Order dated 19.02.2018 allowed the application for amendment with non-reasoned order. Hence, these writ petitions are filed.
6. Sri D.R.Ravishankar, learned counsel for the petitioners/defendants 1 to 3, contended that the impugned Order passed by the Trial Court allowing the application filed by the plaintiffs under Order XXII Rule 3 of the Code of Civil Procedure as well as application filed under Order VI Rule 17 of Code of Civil Procedure for amendment of the plaint, is erroneous and contrary to the material on record. He further contended that during pendency of the suit, the first plaintiff died. The plaintiff Nos.1(a) to (d) are his legal representatives. Mere filing the application to bring the legal representatives on record does not amount to bringing legal representatives on record. The Court should consider and decide whether the persons claiming therein should be brought on record to represent the estate of the deceased.
7. He further contended that admittedly, in the present case, the Trial Court has neither assigned any reasons nor recorded any findings and there is no consideration and decision made by the Trial Court. Therefore, the order cannot be sustained. He further contended that when the very legal representatives claiming under the Will is in dispute, the question of amendment would not arise. The Trial Court proceeded to allow the application for amendment only on the ground that the amendment will not change the nature of the suit nor give raise to fresh cause of action and in order to avoid multiplicity of proceedings, the application came to be allowed. He would further contend that when the very application filed is defective, unless and until the applicants succeed in the said application, there could not be any amendment. Therefore, he sought to allow the writ petition.
8. In support of his contentions, learned counsel relied upon the judgment of the Apex Court in the case of Jaladi Suguna (deceased) through LRs vs.Satya Sai Central Trust and others reported in (2008)8 SCC 521 and stressed on paragraphs 12 and 15.
9. Per contra, Sri Arun A Gadag, learned counsel for Sri Shridhara K, learned counsel for respondent Nos.1(a) to 1(d) and respondent No.2 sought to justify the impugned order and contended that when the application filed by the applicants after the death of first plaintiff, nobody filed objections including the natural heirs of the first plaintiff and defendants 2 and 3 who are claiming possession and title under registered gift deed. In the absence of any objection, the Trial Court is justified in allowing the application. Once the application is allowed permitting the applicants to come on record, naturally the amendment application also allowed and the Trial Court is therefore, justified in passing the impugned order, he sought to dismiss the writ petitions.
10. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiffs filed suit for declaration claiming that they are the owners in possession of the suit schedule properties and sought to cancel certain gift deeds, etc. During pendency of the suit, the first plaintiff died on 22.04.2015. The applicants filed an application under order XXII Rule 3 of Code of Civil Procedure to come on record as plaintiff Nos.1(a) to 1(d). It is not in dispute that neither the natural heirs nor the contesting defendants have filed objections to the said application. The Trial Court, based on the application proceeded to pass the impugned Order dated 11.09.2015 allowing the application.
11. In the impugned Order, the learned Judge has not assigned any reasons as to why the application came to be allowed and the order passed by the Trial Court is not a speaking order. Mere filing of an application to bring the legal representatives of the deceased first plaintiff does not amount to bringing the legal representatives on record. When an application is filed by any person, it is the duty of the Court to consider it and decide whether the person named therein as legal representative should be brought on record to represent the estate of the deceased until such a decision is made by the Court. The person claiming to be legal representatives have no right to represent the estate of the deceased nor to prosecute and defend the case.
Admittedly, in the present case, no such finding is recorded by the Trial Court, may be on the assumption that other side have not filed objections to the application. But ultimately, it is the duty of the Court to satisfy and consider whether the person claiming under the application is entitled to represent the estate of the deceased and prosecute and defend the case. In the absence of said finding the impugned order cannot be sustained.
12. Insofar as allowing the application for amendment, when the order passed by the Trial Court allowing the application itself is erroneous and quashed by this Court as stated supra, the very amendment of the facts and for declaration the plaintiffs are the owners in possession and enjoyment of the suit schedule property in terms of registered Will dated 23.10.2014 cannot also be sustained. Though while allowing the amendment application the Trial Court passed a detailed order and proceeded on the ground that the impleading applicants are already brought on record to avoid multiplicity of proceedings the amendment is necessary and appropriate. When the very case filed for bringing the legal representatives based on Will this court has quashed on the ground that it is not a speaking order. Consequently, the order on amendment application is also liable to be quashed and matter requires reconsideration by the Trial Court in respect of I.A.Nos.5 and 8.
*13. Learned counsel for the petitioners as well as the respondents fairly submit that the matters require reconsideration by the trial Court on I.A. No.5 first and thereafter I.A.No.8. The said submissions are placed on record.
14. In view of the aforesaid reasons, Writ Petitions are disposed of. The impugned orders are hereby quashed. The matters are remanded to the Trial Court to reconsider *Replaced and Retyped page No.13 and 14 vide Court order dated 1.7.2019 I.A.No.5 first and thereafter I.A. No.8 and pass appropriate orders in accordance with law. The trial Court is also directed to decide the suit expeditiously subject to cooperation of the parties, in accordance with law.
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JUDGE kcm *Replaced and Retyped page No.13 and 14 vide Court order dated 1.7.2019