Application For Substitution Of Legal Heirs Upon Plaintiff's Death Can't Be Rejected Without Examining Whether 'Right To Sue' Survives: Karnataka HC

A single judge bench of Justice R. Devdas thus set aside the order dated 02.03.2020, by which the trial court dismissed the application filed by Shobha and other daughters of deceased Yallappa B.Patil seeking permission to be brought on record as legal representatives.

The bench said,

"The Trial Court could not have rejected the application without considering the fact as to whether the right to sue survives on the legal representatives of the deceased plaintiff."

The original plaintiff had filed a suit for being declared the absolute owner of suit property, by virtue of a registered Will dated 04.09.2018 executed by his daughter Sumithra. It was contended that Sumithra who had executed a registered Will dated 04.09.2018 bequeathing her rights in respect of the land in question in favour of her father, died subsequent to the execution of the Will. However, during the course of the suit, the sole plaintiff Sri Yallappa B.Patil died on 09.02.2020.

The trial court rejected the application of the petitioners on the ground that Sumithra acquired the property under the alleged Will towards her maintenance in the suit filed by her and the beneficiary under the Will left behind Sumithra also died without proving the Will and therefore it was held that the legal representatives of Yallappa B.Patil have no locus standi to prosecute the suit.

The petitioner's counsel argued that the Code of Civil Procedure clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. Order 22 Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, nevertheless, Rule 4 read with Rule 11 make it clear the appeal can be heard only after the legal representatives are brought on record.

Findings:

The bench noted Rule 1 of Order 22 provides that the death of plaintiff/defendant shall not cause a suit to abate if the right to sue survives. Therefore, the trial court was required to consider whether the right to sue survives on the legal representatives of the deceased sole plaintiff.

Referring to Supreme Court's judgment in Prabhakara Adiga v. Gowri & Ors., the Court observed, "In the light of the said principles of law laid down by the Hon'ble Apex Court, it is clear that the Trial Court could not have rejected the application filed at the hands of the legal representatives of the sole deceased plaintiff."

In Prabhakara Adiga the Top Court had held that when the right litigated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives.

In this light, the High Court held,

"The plaintiff had filed a suit seeking a declaration that as legatee under the Will dated 04.09.2018, he would get all the rights to enjoy the property bequeathed under the Will. It is another matter that it is sought to be contended at the hands of the defendant that Sumithra herself had been given only to right to maintenance and therefore she could not have further bequeathed the said right in favour of Sri Yallappa B.Patil. These are all questions that are required to be considered by the Trial Court in a full fledged trial."

It added, "The impugned order dated 02.03.2020 passed by the trial court on I.A.No.2, rejecting the same and thereafter proceeding to hold that the suit itself stands abated by virtue of the death of the sole plaintiff, cannot be sustained."

Accordingly the court restored the suit and it remanded the matter back to the trial court for considering the application filed by the petitioners.

Case Title: SHOBHA & Others v. KAREWWA & others

Case No: WRIT PETITION NO. 146130 OF 2020

Citation: 2022 LiveLaw (Kar) 274

Date of Order: 12TH DAY OF JULY, 2022

Appearance: Advocate SHRIHARSH A NEELOPANT for petitioners; Advocate SHIVARAJ S.BALLOLI, ADVOCATE FOR R1 AND R2

Click Here To Read/Download Order