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A.G. Ramiah Pillai and ors. Vs. Adikesavalu - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 101 of 1952
Judge
Reported inAIR1953Mad869; (1953)IIMLJ88
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 3
AppellantA.G. Ramiah Pillai and ors.
RespondentAdikesavalu
Appellant AdvocateT.R. Srinivasa Ayyangar, ;K.S. Desikan and ;K. Raman, Advs.
Respondent AdvocateT.S. Kuppuswami Ayyar, Adv.
DispositionAppeal dismissed
Cases ReferredSubramania v. Venkatachalam
Excerpt:
.....entitlement to apply under order 22 rule 3 two conditions must be satisfied - first applicant is legal representative of deceased plaintiff - second right to sue survived on to him. - - the plaintiff was the widow of one veerasami pillai, who died leaving his last will and testament dated 10-8-1938. under the said will he directed his widow the plaintiff to take and enjoy absolutely all the moveable properties including the jewels and cash. as regards the immoveable properties, she was after his lifetime to enjoy the same without any power of disposal and only receive the income therefrom. the plaint is based on the said will dated 10-8-1938 whereby the plaintiff claimed to be entitled to enjoy the properties during her lifetime, which were afterwards to be taken by the..........in i. a. no. 297 of 1951 under order 22, rule 3, c. p. c. to bring himself on record as the legal representative of the deceased plaintiff. the first court rejected his application. but, in appeal, the learned district judge of east tanjore reversed the decision of the first court and directed that he be brought on record as the legal representative. the present appeal is by the defendants respondents to that i. a.2. the question that arises for determination in this appeal is whether in the circumstances audikesavalu pillai, the respondent, could be said to be the legal representative of the deceased plaintiff manickathammal and whether the right to sue has survived to him so as to entitle him to be brought on record as the legal representative and continue the suit. the term.....
Judgment:

Krishnaswami Nayudu, J.

1. This appeal is against the order of the District Judge of East Tanjore allowing the application of the respondent to bring himself on record as the legal representative of the deceased plaintiff and remanding the suit for disposal according to law. The plaintiff was the widow of one Veerasami Pillai, who died leaving his last Will and testament dated 10-8-1938. Under the said will he directed his widow the plaintiff to take and enjoy absolutely all the moveable properties including the jewels and cash. As regards the immoveable properties, she was after his lifetime to enjoy the same without any power of disposal and only receive the income therefrom. The further direction in the will is that the immoveable properties and any moveable property left out of the properties given absolutely to the plaintiff shall be taken absolutely after her lifetime by Audikesavalu Pillai, the respondent, who is the son of the sister of the deceased. After the death of the testator, the plaintiff instituted O. S. No. 255 of 1950 on the file of the District Munsif's Court of Negapatam, the defendants in that suit being persons who have got into possession of one of the houses that were dealt with under the Will, for a decree for possession of the house and for mesne profits. The plaint is based on the said will dated 10-8-1938 whereby the plaintiff claimed to be entitled to enjoy the properties during her lifetime, which were afterwards to be taken by the respondent. The defendants claimed that they were entitled to the property under a later will of Veeraswami of 1942 and the question therefore that was really to be decided in the suit was whether the later will was true and valid. Pending the suit, the plaintiff died and Audikesavalu Pillai, who is entitled to the vested remainder, applied in I. A. No. 297 of 1951 under Order 22, Rule 3, C. P. C. to bring himself on record as the legal representative of the deceased plaintiff. The first Court rejected his application. But, in appeal, the learned District Judge of East Tanjore reversed the decision of the first Court and directed that he be brought on record as the legal representative. The present appeal is by the defendants respondents to that I. A.

2. The question that arises for determination in this appeal is whether in the circumstances Audikesavalu Pillai, the respondent, could be said to be the legal representative of the deceased plaintiff Manickathammal and whether the right to sue has survived to him so as to entitle him to be brought on record as the legal representative and continue the suit. The term 'legal representative' is defined in Section 2 (11) as meaning a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Here, the deceased person's estate was only a life estate under the Will, which ceased on her death and there is therefore no question of an estate of the plaintiff, which requires to be recovered possession of and in any event, the respondent being only her husband's sister's son cannot represent the estate of Manickathammal. He does not, therefore, come within the earlier part of the definition. But, there can be no doubt that under the terms of the Will, the estate which was sought to be recovered in the suit, devolved on the respondent after the death of the plaintiff. Even though he is a person on whom the estate in which Manickathammal claimed a life interest had devolved yet unless the suit was instituted by the plaintiff in a representative character, the respondent cannot be held to be her legal representative. It is well established that a suit instituted by a Hindu widow or other limited owner seeking to recover the estate of the husband or the deceased male holder is a representative suit and such suit could be continued by the presumptive reversioner who can bring himself on record, since the estate after the death of the widow or the limited owner devolved on the reversioner as the nearest heir of the deceased: vide -- 'Ramaswami v. Pedamuuayya', AIR 1916 Mad 611 (A). That a reversioner is a legal representative, within the meaning of Section 365, old Civil P. C. of a Hindu heiress who instituted a suit for recovery of property belonging to her deceased husband and died during the pendencv of the suit, has been held in -- 'Premmovi Choudrani v. Peronath Dhur', 23 Cal 636 (B).

3. In order to bring himself under the definition of the term 'legal representative' under the Code, the respondent) not being the person in law, who represents the estate of the deceased person, namely, Manickathammal should satisfy that the suit instituted by Manickathammal was in a representative character; since the estate under the terms of the Will devolves on the respondent after the death of Manickathammal. A suit by a Hindu widow or a female limited owner has been considered to be a suit in a representative character. A sole life estate holder's position under a Will is different from that of a Hindu widow's estate. By the terms qf the will, after the death of the testator, the person who would be entitled to possession of the estate is the widow, and there being no executor appointed under the Will, the person who will be entitled to possession must be deemed to be the person that represents the estate, since during her lifetime no other person could claim to be entitled to be in possession of the estate other than herself and as such for all practical purposes she is the person that should be held to represent the estate of the deceased. Further, just as a reversioner is not a person on whom the estate of the deceased female limited owner devolves, but he succeeds to the estate as the heir of the last male holder, similarly, the vested remainderman, the respondent here, does not claim through the life estate holder but claims it under the terms of the will from the deceased by reason of the bequest in his favour under the will. In so far as representation of the estate of a deceased person is concerned there is no difference between a widow, who succeeds to her husband's estate, or the sole life estate holder, who becomes entitled to possession of the property under the Will of the testator, here, her husband. Both the widow and the life estate holder are the only persons entitled to immediate possession and enjoyment of the estate and on both the duty of preserving the estate is cast except in the case of a widow subject to such powers of alienation as are possessed by her for any legal necessity, and in the case of a life estate holder subject to her being entitled to the absolute income of the property the benefit of which would enure ultimately to the reversioner or the remainderman. In the present case, there being no executor appointed under the Will, there can be no doubt that Manickathammal is the only person entitled to represent the estate and the suit instituted by her for recovery of possession is a suit which must be deemed to have been instituted in a representative character. In -- 'Madhayarayudu v. Subbamnia', AIR 1917 Mad 979 (C) it was observed that under the enlarged definition of 'legal representative' to be found in the Civil Procedure Code cf 1908, a person in possession of the estate belonging to the deceased is competent to represent the deceased defendant. The interest of the respondent also is represented by the plaintiff in the suit as the securing of the property, which involves the establishment of the will under which she claims, is necessary for protecting the respondent's interest as well.

4. Order 22, Rule 3 provides that where the sole plaintiff dies and the right to sue survives the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. To entitle one to apply under Order 22, Rule 3, it is necessary that he should first establish that he is the legal representative of the deceased plaintiff and then satisfy that the right to sue has survived over to him, when alone he could be allowed to bring himself on record and continue the suit. In this case, there is no question that the right to sue does survive to the respondent, as the suit is one for possession based on a will under which both the widow and the respondent claim certain rights, the widow being entitled to possession during her lifetime, and after her death, the person who is entitled to possession would be the respondent and none else. The right to sue for possession has certainly survived to the respondent who has become entitled to possession after the death of the widow.

5. In -- 'Venkatanarayana Pillai v. Sub-bammal', AIR 1915 PC 124 (D), where a suit was brought to set aside an adoption and the suit was dismissed by both Courts in India and pending appeal to His Majesty in Council the plaintiff died, in an application by his grandson, as the sole surviving member of his grandfather's family, and also on his death the next reversionary heir to the estate, for an order that his name be substituted on the record for that of the appellant, it was held that the petitioner was entitled to the order asked for under Order 1, Rule 10, C. P. C. and that the contingent reversioner may be joined as plaintiff in the presumptive reversioner's suit, and, if so it follows that on his death the 'next presumable reversioner' is entitled to continue the suit begun by him. Their Lordships of the Privy Council however supported the right of the appellant to be brought on record not under Order 22, Rule 3, but under the provisions of Order 1, E. 10, C. P. C. which provides for the adding of the plaintiff. It was further observed:

'The two kinds of suits which the Indian law permits to be brought in the lifetime of a female owner by reversioners for a declaration that an adoption made by her is invalid, or an alienation effected by her is not binding against the inheritance (see Arts. 118 and 125 of Sch. I, Limitation Act, 9 of 1908), although they differ in character, will be found to be the same in both instances as regards the position of the plaintiffs so far as the point for decision is concerned; and the test of res judicata is irrelevant to the inquiry whether the contingent reversioner is entitled to continue the suit commenced by the presumptive reversioner. It is the common injury to the reversioners which entitles them to sue and the question is whether the 'right' to sue survives apart from any consideration whether or not the next presumable heir is the 'legal' representative of the deceased presumptive reversioner.'

It appears therefore to be sufficient if under Order 22, Rule 3, it is found that the right to sue survives to the applicant who desires to bring himself on record, though he may not strictly come within the definition of 'legal representative' under the Code. The question that requires to be decided in the suit is one whether the will of the deceased D/- 10-8-1938 has been superseded by the subsequent testamentary disposition of 1942. It is a question common to both the widow and the respondent and when that question was the issue in the suit, the right to sue has clearly survived to the respondent and that would be sufficient to entitle him to continue the suit.

6. That a person may be held to be a legal representative of a deceased plaintiff only for the purpose of continuing the suit and not for the purpose of representing the interest of the deceased plaintiff is the view of Ramesam J. in -- 'Subramania v. Venkatachalam, AIR 1929 Mad 524 (E). In that case the two plaintiffs were legatees under a Will which was refused to be registered by the Registrar. The first plaintiff alone filed the suit for registration of the will. He died. The second plaintiff, who applied to be brought on record was held entitled to continue the suit as one of the persons represented by the first plaintiff. Plaintiff 2 was therefore held to be legal representative only for the purpose of continuing the suit. But the question whether he is the legal representative of the first plaintiff in regard to his particular right was left in doubt.

7. In order therefore to entitle a person to bring himself on record as the legal representative or as a co-plaintiff to continue the suit, what he has primarily to establish is that the right to sue has survived to him, even though he may not be strictly the legal representative in the sense that he represents the estate of the deceased person. In this case, however, as the suit has been held to be instituted in a representative character as one not alone on behalf of the widow but even on behalf of the remainderman the respondent, and the right to sue has also survived to the respondent, the order of the learned District Judge bringing the respondent on record under the provisions of Order 22, Rule 3, C. P. C. is correct.

8. In the result the appeal Is dismissedwith costs.


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