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D. Padmaraja Setty and ors. Vs. Gyanachandrappa and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 380 and 707 of 1968
Judge
Reported inAIR1970Kant87; AIR1970Mys87; ILR1969KAR730
ActsHindu Succession Act, 1956 - Sections 15 and 21; Code of Civil Procedure (CPC), 1908 - Order 22, Rules 4 and 5; Limitation Act - Schedule - Article 177
AppellantD. Padmaraja Setty and ors.
RespondentGyanachandrappa and ors.
Appellant AdvocateH.S. Shankaranarayana, Adv. in C.R.P. No. 707 of 1968 and ;M.R. Narasimha Murthy, Adv.
Respondent AdvocateH.S. Shankaranarayana, Adv. in C.R.P. No. 380 of 1968, ;T. Rangaswamy Iyengar, Adv. for R.J. Babu, Adv. and ;K.V. Anantharamiah, Adv.
Excerpt:
.....the evidence both oral and documentary before concluding that the claimant suffered from fractures of the 6th, 7th and 8th ribs in the accident that occurred. thus it goes without saying that disability cannot be believed and is unacceptable. compensation of rs. 1,49,000/- awarded by tribunal was reduced to rs. 20,000/- with interest at 8 & p.a. - both padmavathamma as well as her foster daughterjanawa were murdered on the game night. the discussion of the evidence also leaves no room for doubt that the evidence was worthy of acceptance, especially in view of the weak cross-examination on behalf of the petitioner and total absence of evidence adduced by them. narasimha murthy has placed strong reliance on a decision of the calcutta high court reported in manindra kumar v......had brought up her brother's daughter janawa as her foster daughter.2. during the pendency of the suit, padmavathamma died. both padmavathamma as well as her foster daughterjanawa were murdered on the game night.3. the plaintiff filed i. a. no. vi forbringing on record his brothers because himself and his said brothers were the nearest intestate heirs of padmavathamma under section 15 of the hindu succession act. janawa's parents filed i. a. no. vii to come on record as legal representatives of deceased padmavathamma, on the ground that padmavathamma had left a registered will bequeathing all her estate in favour of jannavva and that after the death of janawa they were the persons entitled to the estate as the nearest heirs to janawa.4. the will was a registered one and the same was.....
Judgment:
ORDER

1. The property In suit, out ofwhich these Revision Petitions arise, belonged to two brothers Dasarath and Tukkappa. The former died first. After the death of Tukappa also, leaving only his widow Padmavathamma, one of the sons of Padmavathamma filed a suit for partition and delivery to him of a half share in the property. Padmavathamma had brought up her brother's daughter Janawa as her foster daughter.

2. During the pendency of the suit, Padmavathamma died. Both Padmavathamma as well as her foster daughterJanawa were murdered on the game night.

3. The plaintiff filed I. A. No. VI forbringing on record his brothers because himself and his said brothers were the nearest intestate heirs of Padmavathamma under Section 15 of the Hindu Succession Act. Janawa's parents filed I. A. No. VII to come on record as legal representatives of deceased Padmavathamma, on the ground that Padmavathamma had left a registered will bequeathing all her estate in favour of Jannavva and that after the death of Janawa they were the persons entitled to the estate as the nearest heirs to Janawa.

4. The will was a registered one and the same was proved by the evidence of the scribe, an attestor and another. The evidence was accepted by the trial Court as satisfactorily establishing the truth and validity of the will. In view of the circumstances attending the murder of the two ladies making it difficult to ascertain as a fact which of them died first, the Court has drawn the presumption under Section 21 of Hindu Succession Act to the effect that the younger survived the elder.

5. On these findings, I. A. No. VII was allowed and I. A. No. VI dismissed.

6. Hence these two Revision Petitions by the brothers of the plaintiffs were sought to be brought on record in I. A. No. VI.

7. So far as the genuineness of the will itself is concerned, the matter is concluded by a finding of fact recorded by the trial Court in favour of the view that the will was true and valid. The Trial Court after discussing the evidence adduced on behalf of the propounders, accepted the same and upheld the truth and validity of the will. The discussion of the evidence also leaves no room for doubt that the evidence was worthy of acceptance, especially in view of the weak cross-examination on behalf of the petitioner and total absence of evidence adduced by them.

8. It appears to me that the argument cannot be accepted. The correct position is not that the parents of Janawa wanted to come on record as legal representatives of Janawa but as persons now representing the estate of deceased Padmavathamma having acquired that estate as heirs of Janawa who, as legatee under the will of Padmavathamma, had already acquired it before her death. Their title to come on record is traceable directly to the death of Padmavathamma who was a party to the suit. The fact that in normal circumstances Janawa should have been imp leaded as a legal representative does not make it impossible for some other persons to come on record should she die before being brought on record as legal repre-sentative of Padmavathamma in the Original Suit.

9. Mr. Narasimha Murthy has placed strong reliance on a decision of the Calcutta High Court reported in Manindra Kumar v. Santi Rani, : AIR1951Cal518 . Actually the decision does not support his contention. The facts of that case were that on the death of one Surrender Nath, the defendant in that suit, his three sons Sudhansu, Himanshu and Biranshu, were sought to be brought on record as legal representatives. But before the application could be disposed of, Biranshu died whereupon another application was made to bring on record Santi Rani, the widow of deceased Biranshu. The trial Court rejected the second application and made the strange order of substituting in the place of Surendra Nath not only his living sons but also the deceased son Biranshu. The Calcutta High Court pointed out that the substance of the matter was that the second application should have been regarded, not as an independent application to bring on record the legal representative of Biranshu, but as one for amendment of the original application for substitution of the heirs of Surendra by putting in the name of Santi Rani instead of Biranshu. They rejected the contention that the death of Biranshu, before he was brought on record as a party, resulted in any abatement of the suit and also the contention that Article 177 of the Limitation Act applied to such a case. The ultimate order of the Calcutta High Court was to set aside the refusal of the trial Judge to implead Shanti Rani, the widow of Biranshu, and to direct substitution in the place of the original defendant Nuren'dra Nath, of his two sons Sudhansu and Himansu and also Santi Rani, the widow of the third son Biranshu.

10. Actually, therefore, the decisions of the Calcutta High Court supports the view that in the circumstances of the case, where the immediate heirs or successors of a deceased party dies before being brought on record as a legal representative, the next set of persons on whom the estate devolves answers the description of legal representatives because they would, in then existing circumstances, represent in law the estate of the original deceased party.

11. I see therefore no illegality in the order made by the trial Court directing the impleading of the parents of Janawa as now representing the estate of the deceased Pandmayathamma, the party defendant in the suit.

12. Both the Revision Petitions are therefore, dismissed.

13. Revision petitions dismissed.


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