R. KRSNA MURTII VERSUS R. R. JAGADESAN

R. KRSNA MURTII VERSUS R. R. JAGADESAN

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4832 OF 2022

[Arising out of SLP (C) No. 13332 OF 2021]

R. KRSNA MURTII APPELLANT(S)

 VERSUS

R. R. JAGADESAN RESPONDENT(S)

O R D E R

DINESH MAHESHWARI, J.

Leave granted.

We have heard the appellant appearing in person and the

learned counsel appearing for the sole respondent.

Shorn of unnecessary details, the relevant aspects of the

present matter are that the appellant herein had been the power

of attorney holder of his mother, who had filed the subject suit

for declaration and perpetual injunction and alternatively, for

declaration and recovery of possession against the respondent.

The suit was being prosecuted by the appellant as the power agent

of the plaintiff. The said plaintiff, mother of the appellant,

expired on 10.01.2020. Thereafter, the appellant moved an

application, being I.A. No. 1 of 2020, seeking his substitution

as legal representative of the deceased plaintiff with the

assertion that the plaintiff, his mother, had executed a Will

dated 13.06.2016 in his favour with respect to all her estate and

the said Will was registered with the Sub-Registrar Office,

Perambalur.

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This application was considered by the learned Sub-ordinate

Judge, Perambalur in the order dated 29.03.2021, wherein the

submissions on behalf of the defendant-respondent were taken into

consideration that the appellant was not the only legal heir of

the deceased plaintiff; and that the deceased had another son and

one daughter and without impleading them, the appellant was not

entitled to proceed further. The learned Trial Judge was of the

view that from the Will itself, existence of other son and

daughter of the deceased plaintiff was evident; and that the

execution and attestation were not the questions to be decided at

the given stage.

Having regard to the factum of existence of other legal

heirs of the deceased plaintiff, the learned Trial Judge

straightway came to the conclusion that the application I.A. No.

1 of 2020 moved by the appellant for substitution was required to

be dismissed and ordered accordingly.

The appellant preferred a revision petition before the High

Court against the order aforesaid. The High Court proceeded to

dismiss the said revision petition on the consideration that the

petitioner i.e., the present appellant, ought to have taken steps

for impleading the other legal heirs of the late plaintiff either

as co-plaintiffs or as defendants to enforce his right over the

property in question.

The order aforesaid has been questioned by the appellant

before us, inter alia, with the submission that the Trial Court

and High Court were not justified in rejecting the prayer made by

the appellant for his own substitution as the legal

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representative of deceased plaintiff and in any case, the

application could not have been rejected on the grounds taken and

on the reasons assigned by the learned Trial Judge and approved

by the High Court.

Learned counsel for the respondent has attempted his best

to support the orders impugned, again and essentially with the

submissions that at the given stage and in view of the factual

aspects involved, other legal heirs of the deceased plaintiff

could not have been left out from being impleaded as her legal

representatives in the subject suit.

Having examined the matter in its totality and having given

thoughtful consideration to the rival submissions, we are unable

to approve the orders impugned.

Leaving aside any other aspect of the matter, it is but

apparent that the appellant is admittedly the son of the deceased

plaintiff. Thus, his entitlement, whether by way of testamentary

succession or non-testamentary succession, as being the legal

heir of the deceased plaintiff cannot be denied. That being the

position, the application made by him for substituting himself as

the legal representative of the deceased plaintiff could not have

been declined by the Trial Court.

In this regard too, it would be relevant to point out that

if any inquiry was required to be made, the Trial Court could

have adopted the course envisaged by Rule 5 of Order XXII of the

Code of Civil Procedure, 1908 but, in any case, the application

made by the appellant could not have been dismissed altogether.

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That being the position, we set aside the orders impugned

and restore the said application for re-consideration by the

Trial Court in accordance with law.

The appeal is allowed in the above terms. No order as to

costs.

……………………………………………….J

(DINESH MAHESHWARI)

……………………………………………….J

(ANIRUDDHA BOSE)

NEW DELHI;

JULY 21, 2022.

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ITEM NO.6 COURT NO.13 SECTION XII

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (C) No. 13332/2021

(Arising out of impugned final judgment and order dated 26-05-2021

in CRPPD No. 1158/2021 passed by the High Court of Judicature at

Madras)

R. KRSNA MURTII Petitioner(s)

 VERSUS

R. R. JAGADESAN Respondent(s)

(PETITIONER-IN-PERSON MATTER

IA No. 107513/2021 - EXEMPTION FROM FILING O.T.

IA No. 107511/2021 - PERMISSION TO APPEAR AND ARGUE IN PERSON)

Date : 21-07-2022 These matters were called on for hearing today.

CORAM :

 HON'BLE MR. JUSTICE DINESH MAHESHWARI

 HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Petitioner(s) Petitioner-in-person

For Respondent(s) Mr. G. Balaji, AOR

 UPON hearing the counsel the Court made the following

 O R D E R

Leave granted.

IA No. 107511/2021 by the petitioner seeking permission to

appear and argue in person is allowed.

The appeal is allowed in terms of the Signed Reportable Order.

No order as to costs.

All pending applications stand disposed of.

(SHRADDHA MISHRA) (RANJANA SHAILEY)

SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)

(Signed Reportable Order is placed on the file)