Karedla Parthasaradhi Appellant(s) Versus Gangula Ramanamma (D) Through L.Rs. & Ors : Supreme Court - HINDU SUCCESSION ACT, 1956
Supreme Court of India
CIVIL APPEAL No. 3872 OF 2009 Judgment Date: Dec 04, 2014
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3872 OF 2009
Karedla Parthasaradhi Appellant(s)
Versus
Gangula Ramanamma (D)
Through L.Rs. & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the plaintiff against the judgment and
decree dated 19.12.2008 passed by the High Court of Judicature, Andhra
Pradesh at Hyderabad in Appeal Suit No. 1842 of 1996 which in turn
arises out of judgment and decree dated 15.03.1996 passed by the IInd
Additional Subordinate Judge, Vijayawada, in O.S. No. 15 of 1985.
2. By impugned judgment, the learned Single Judge of the High Court
allowed the first appeal filed by defendant no. 1 (respondent no. 1
herein), reversed the judgment and decree of the trial court, which
had decreed plaintiff's suit for ejectment against defendant no. 1 in
relation to the suit house and in consequence dismissed the
plaintiff's suit.
3. So the question that arises for consideration in this appeal is
whether the High Court was justified in allowing the first appeal
filed by defendant no. 1 thereby justified in dismissing plaintiff's
suit filed for ejectment against defendant no. 1 in relation to the
suit house?
4. In order to appreciate the controversy involved in this appeal,
it is necessary to state the relevant facts in brief infra.
5. The dispute relates to house bearing No. RS 233/1 situated in an
area called "Gunadala" within the Municipal Corporation limits of
Vijayawada, bearing door No.2/172 (Old Assessment No.225), new
No.37687 (described in detail in the schedule attached to the plaint)
(hereinafter referred to as "the suit house").
6. One Karedla Satyanarayna purchased the suit house by registered
sale deed dated 15.12.1975 from one Smt. Abdul Amina Bee and her
sister. At the time of purchase, there was only a tiled house.
Subsequently he reconstructed the suit house. He died intestate on
19.12.1983. On his death, the plaintiff (appellant herein), who is
real brother of late Karedla Satyanarayna, claimed that the suit house
has devolved upon him along with his sister (defendant no. 2) in equal
share being Class II (II) (3) (4) heirs as specified in the Schedule
appended to the Hindu Succession Act, 1956 (in short "the Act").
However, the plaintiff could not get possession of the suit house
because he noticed that defendant no. 1 was claiming herself to be in
its possession and declined to vacate the same when demanded by the
plaintiff. The plaintiff also noticed that defendant no. 1 had been
asserting her ownership rights over the suit house after the death of
Satyanarayana as his wife. Therefore, on 20.10.1984, the plaintiff
served a legal notice to defendant no. 1 calling upon her to vacate
the suit house and handover its possession to the plaintiff.
7. Since defendant no.1 did not vacate the suit house despite
service of notice to her, the plaintiff filed a suit for eviction
against defendant no. 1 (respondent no. 1 herein) in the Court of IInd
Additional Subordinate Judge, Vijayawada. The suit was founded on the
allegations inter alia that on the death of K. Satyanarayana, the suit
house devolved upon the plaintiff being his brother as provided under
Section 8 read with Class II (II) (3) of the Act. It was alleged that
defendant no.1 was employed by K. Satynarayana to cook his food. It
was alleged that since K. Satyanarayana was a bachelor, he had allowed
defendant no. 1 to stay in the suit house as its caretaker and also
because he used to be mostly on tour to various places being an active
member of the Viswa Hindu Parishad. It was alleged that defendant no.
1 had neither any ownership nor any tenancy rights over the suit
house. It was further alleged that even as a servant, she had no right
to remain in the occupation of the suit house and in any event, after
K. Satyanarayana's death, the so-called contract of employment between
her and K. Satyanaryana having come to an end, her permissive
possession in the suit house had become unauthorized and was that of
the trespasser qua its real owner - the plaintiff. The plaintiff,
therefore, claimed a decree for possession of the suit house and
damages at the rate of Rs.1000/- per month for its wrongful use from
defendant no 1. The plaintiff also arrayed his sister as proforma
defendant no. 2 without claiming any relief against her.
8. In answer to the plaint, defendant no. 1 filed her written
statement. While denying the plaintiff's case, it was alleged that
she was legally married wife of K. Satyanarayana and was living with
him since decades in the suit house. It was alleged that after
Satynarayana's death, she became the sole owner of the suit house by
virtue of law of inheritance being a class-I heir i.e., wife. It was
alleged that she invested her own money in renovation of the suit
house, got her name mutated in the Municipal records as its owner and
paid municipal taxes. It was thus contended that her possession over
the suit house is on the strength of the ownership and hence cannot be
disturbed.
9. The trial court framed the following issues on the basis of
aforesaid pleadings:
"1. Whether defendant No.1 is legally married wife of Late
Satyanaryana?
2. Whether the plaintiff and 2nd defendant are entitled for
possession of suit schedule property?
3. To what relief?
Additional issue dated 4.2.1992.
1. Whether the plaintiff has preferred title by adverse
possession?"
10. The parties adduced evidence. By judgment and decree dated
15.03.1996, the trial court decreed the suit holding that the suit
house belonged to K. Satyanaryana as its sole owner; that K.
Satyanarayana died intestate; that the plaintiff was Satyanarayana's
brother; that the plaintiff inherited the suit house as its owner as
provided under Section 8 read with Clause (II) (II) (3) of the
Schedule appended to the Act; that defendant no. 1 was working as cook
for K. Satyanaryana during his life time and being his servant,
neither acquired nor inherited any right, title and interest and nor
did acquire any possessory rights in the suit house after the death of
K. Satyanaryana. With these findings, the decree for eviction was
passed against defendant no. 1 in relation to the suit house.
11. Feeling aggrieved by the said judgment, defendant no. 1 filed
first appeal before the High Court. During the pendency of first
appeal, on 09.06.2000, defendant no. 1 Gangula Ramanamma (appellant in
first appeal), died. On 09.09.2000, K Sanjiva Rao (respondent no.1
herein) filed an application being CMP No.17902 of 2000 under Order
XXII Rule 4 read with Section 151 of the Code of Civil Procedure,
1908, (hereinafter referred to as 'the CPC' ) and prayed that his name
be substituted in place of deceased appellant. It was alleged that he
is the adopted son of the deceased defendant no. 1 (appellant) and
secondly, defendant no. 1 has also executed one Will on 02.01.1984 in
his favour bequeathing the suit house to him. He, therefore, claimed
that he, being the legal representative of defendant no.1, either as
her adopted son or/and as her legatee on the strength of the Will
dated 02.01.1984, he has a right to prosecute the appeal and continue
the lis on merits. The plaintiff (who was respondent in the appeal
before the High Court) opposed the application. However, the High
Court, by order dated 09.10.2000 allowed the application and permitted
K Sanjiva Rao to become the appellant and prosecute the appeal on
merits. The order dated 09.10.2000 reads as under:
"Petition under Order 22 Rule 4 r/w Section 151 of the CPC
praying that in the circumstances stated in the affidavit filed
herewith, the High Court will be pleased to bring the
petitioner/proposed appellant No.2 herein as the 2nd appellant
in the above A.S. No. 1842/96 and all connected proceedings to
represent the estate left by the deceased appellant Smt.
Ramanamma.
This petition coming on for hearing upon perusing the petition
and the affidavit filed in support thereof Sri V.S.R.
Anjaneyulu, Advocate for the petitioner and Sri O. Manohar Reddy
for Sri G. Vivekananad, Advocate for the respondent.
This Court made the following order:
"Ordered"
12. The appeal was accordingly heard on merits by the High Court.
13. By impugned judgment, the learned Single Judge of the High
Court allowed the first appeal filed by defendant no.1 which as stated
above was being prosecuted by K. Sanjiva Rao and while reversing the
judgment and decree of the trial court dismissed the plaintiff's suit.
It was held that the plaintiff was the brother of late K.
Satyanarayana and that K. Satyanarayana died intestate. The High
Court, however, disagreed with the finding of the trial court on the
issue of defendant no.1's (Ms. Gangula Ramanamma) status. The High
Court reversed the finding on this issue and held that defendant no.1
was legally married wife of late K. Satyanarayana. As a result of
reversal of this finding, the High Court further held that defendant
no.1, inherited the suit house after the death of K. Satyanarayana as
class-I heir being his wife to the exclusion of plaintiff and
defendant no. 2 because both were class II heirs being brother and
sister of late K. Satyanarayana and thus had no right to succeed the
estate of late K. Satyanarayana. With these findings, the High Court
allowed the first appeal and in consequence dismissed the plaintiff's
suit giving rise to filing of this appeal by the plaintiff.
14. Shri Pramod Swarup, learned senior counsel appearing for the
appellant (plaintiff) while assailing the legality and correctness of
the impugned judgment mainly raised five contentions. In the first
place, he contended that the High Court erred in allowing defendant
no.1's appeal thereby erred in dismissing plaintiff's suit. According
to him, there was neither any basis and nor reason for such reversal.
Secondly, he contended that well reasoned finding recorded by the
trial court on the question as to whether defendant no.1 was legally
married wife of Late K. Satyanarayana or not, should not have been
reversed by the High Court for want of any cogent evidence. According
to him, a finding of trial court on this issue holding that she was
not his legally married wife, was just, legal and proper and hence it
should have been upheld. Thirdly, he contended that when admittedly
plaintiff was the real brother of late K. Satyanarayana then he was
entitled to inherit the suit house as per provisions of Section 8 read
with class II (II) (3) of the Schedule appended to the Act on the
death of late K. Satyanarayana. Fourthly, he contended that in any
event, due to subsequent event which came into existence during
pendency of the appeal viz. death of defendant no.1 on 09.06.2000, the
suit house devolved upon the plaintiff because there was no class-I
heir in the family of K. Satyanarayana who could succeed to his estate
after him except the plaintiff being the nearest class II heir as
brother and hence he should have been held entitled to succeed the
suit house as its owner and lastly, he urged that the High Court
erred in allowing the application filed by K. Sanjiva Rao (respondent
no.1 herein) under Order XXII Rule 4 of the CPC. According to him,
the order allowing the application was passed without following the
procedure prescribed in Order XXII Rule 5 proviso and more importantly
without recording any finding as to whether K. Sanjiva Rao was the
legal representative of defendant no.1 and if so, in what capacity
i.e., adopted son of defendant no.1 or legatee on the strength of Will
dated 02.01.1984 alleged to be executed by defendant no.1 in his
favour. Learned counsel pointed out that it was necessary for the High
Court to have remanded the case to the trial court as provided in
proviso to Rule 5 of Order XXII for holding an inquiry to determine
the status of K. Sanjiva Rao qua deceased defendant no.1 and then
depending upon the finding, he should have been allowed to become the
appellant and prosecute the appeal. Learned counsel, therefore, urged
that in the absence of any finding on this material issue, the
impugned judgment is also not legally sustainable and hence liable to
be set aside.
15. Learned counsel for respondent no.1 (K. Sanjiva Rao) supported
the impugned judgment and contended that no case is made out to
interfere in the impugned judgment, which deserves to be upheld by
dismissing the appeal.
16. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to uphold one finding of
the High Court on merits and remand the case for holding an inquiry on
limited specific questions to enable this Court to finally decide the
appeal in the light of findings so recorded on the questions framed
infra for inquiry.
17. Coming first to the main question as to whether the High Court
was justified in holding that defendant no.1 (Gangula Ramanamma )was
legally married wife of late K. Satyanarayana, we are of the
considered opinion that the High Court was justified in holding so.
In other words, the reversal of finding of the trial court by the High
Court on this issue is justified.
18. The question as to in which circumstances, the Court can draw
presumption as to the legality of marriage was succinctly explained by
Mulla in his book- Hindu Law, 17th Edition in Article 438, page 664
under the heading - "Presumption as to legality of marriage" - in
following words:
"438. Presumption as to legality of marriage - Where it is
proved that a marriage was performed in fact, the court will
presume that it is valid in law, and that the necessary
ceremonies have been performed. A Hindu marriage is recognized
as a valid marriage in English law.
Presumption as to marriage and legitimacy - There is an
extremely strong presumption in favour of the validity of a
marriage and the legitimacy of its offspring if from the time of
the alleged marriage the parties are recognized by all persons
concerned as man and wife and are so described in important
documents and on important occasions. The like presumption
applies to the question whether the formal requisites of a valid
marriage ceremony were satisfied. Similarly the fact that a
woman was living under the control and protection of a man who
generally lived with her and acknowledged her children raises a
strong presumption that she is the wife of that man. However,
this presumption may be rebutted by proof of facts showing that
no marriage could have taken place."
19. The question arose before this Court in Thakur Gokal Chand vs.
Parvin Kumari @ Usha Rani, AIR 1952 SC 231, as to whether on
facts/evidence, the Court could record a finding about the existence
of lawful marriage between the parties and, if so, what should be the
principle to be applied while deciding such question. Learned Judge -
Fazal Ali J, speaking for the Bench examined this question in the
context of Section 50 of the Indian Evidence Act, 1872 and other
relevant provisions of law and laid down the following principle of
law for determination of such question:
"It seems to us that the question as to how far the evidence of
those particular witnesses is relevant under section 50 is
academic, because it is well-settled that continuous
cohabitation for a number of years may raise the presumption of
marriage. In the present case, it seems clear that the
plaintiff and Ram Piari lived and were treated as husband and
wife for a number of years, and, in the absence of any material
pointing to the contrary conclusion, a presumption might have
been drawn that they were lawfully married. But the
presumption which may be drawn from long cohabitation is
rebuttable, and if there are circumstances which weaken or
destroy that presumption, the court cannot ignore them"
20. In recent time, this Court in Madan Mohan Singh & Ors. vs. Rajni
Kant & Anr. (2010) 9 SCC 209, relying upon the aforesaid principle of
law, reiterated the same principle in following words:
"24. The courts have consistently held that the law presumes in
favour of marriage and against concubinage, when a man and woman
have cohabited continuously for a number of years. However, such
presumption can be rebutted by leading unimpeachable evidence.
(Vide Mohabbat Ali Khan v. Mohd. Ibrahim Khan, AIR 1929 PC 135,
Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, S.P.S.
Balasubramanyam v. Suruttayan, (1994) 1 SCC 460, Ranganath
Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni, (1996) 7
SCC 681 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy,
(2005) 2 SCC 244)"
21. Coming now to the facts of this case, we consider it apposite to
reproduce the finding of the High Court on this issue in verbatim,
which is contained in paras 26 to 30 in the judgment:
"26. When the first defendant asserted that she is the legally
wedded wife of late Satyanarayana, we have to examine the
material placed by her to establish the said fact. It is an
undisputed fact that the first defendant lived with late
Satyanarayana. The first defendant claims that their marriage
took place at Rajahmundry about 30 years ago. They lived at
Rajahmundry for about 10 years. During their wedlock, she
became pregnant twice and those pregnancies were got abort at
the instance of her husband. Ultimately, she got her sister's
son adopted during the lifetime of late Satyanarayana. Later,
they shifted to Rajahmundry, constructed the house and performed
the house warming ceremony. Her name was included in the voters
list as the wife of late Satyanarayana. She also stated that
the deceased being the Pracharak of Viswa Hindu Parishad, he
took all care to see that no photographs are taken either for
the marriage or house warming ceremony or any other occasion.
In support of her contention, DW-2, the neighbour at Vijayawada,
was examined, who stated that the deceased Satyanarayana was the
husband of the first defendant. They resided in the said house
to the knowledge of one and all as wife and husband. The
deceased used to take the first defendant to some camps along
with him. D-1 also looked after the construction work of the
house. D-1 and late Satyanarayana sat as wife and husband for
performing pooja at the time of house warming ceremony. The
plaintiff and the second defendant did not attend the said
function. He finally said that D-1 is the wife of late
Satyanarayana, but not his maidservant. In the cross-
examination also, he stated that he heard that Satyanarayana and
D-1 married at the temple near their house even prior to the
shifting of their residence to his locality and as they have no
issues, they brought up one boy by name Sanjeeva Rao. Though
the plaintiff cross-examined DWs 1 and 2, he could not elicit
any favourable information in support of his contention that the
first defendant lived in the house of late Satyanarayana only as
a cook, but not in any capacity. Ex. X-1 is a Kalpatharuvu
deposit receipt of Andhra Bank, Vijayawada. DW-1, an officer
of the Andhra Bank, deposed that the deceased Satyanarayana and
the first defendant kept an amount of Rs.42,650/- in
Kalpatharuvu fixed deposit. Satyanarayana wrote letters to the
bank informing that after maturity, the amount may be paid
either to him or to the first defendant. The application was
signed by both of them at the time of depositing the amount.
But, he does not know their relationship. In the fixed deposit
receipt, the first defendant was described as K. Ramanamma, but
not as G. Ramanamma, which is her parents' surname. Had the
first defendant lived in the house of late Satyanarayana as a
cook, he would not have allowed her to join him in making the
deposit and he would not have written letters to the bank asking
them to pay the amount to her after its maturity. This is also
one of the strong circumstances to draw an inference that the
first defendant was the wife of late Satyanarayana. After
maturity, D-1 withdrew the amount as per the authorization given
by the deceased Satyanarayana. In the voters lists covered by
Exs. B-42 and 44, the name of D-1 was shown as the wife of late
Satyanarayana. Had she not been the wife of Satyanarayana, he
would have definitely raised an objection not to designate her
as his wife, therefore, this is also one of the strong
circumstances to establish that the first defendant is the wife
of the deceased Satyanarayana. In 1983, the deceased was 53
years old and the first defendant was 32 years old. Though
there is difference of age of 20 years between them, on account
of long association and continuous living in the same house, the
deceased might have developed affection towards the first
defendant and married her as wife. For sake of society, he
might have taken precautions to indicate that he remained as a
bachelor. The postman of the locality was examined as DW-5, who
stated that he saw the first defendant in the house of the
deceased from 1980, but he does not know the relationship and
the first defendant used to receive letters in her name to the
said address. Ex. B-46 is one of such letters addressed by late
Satyanarayana, wherein the address of the first defendant is
described as K. Ramanamma indicating his surname. In the said
letter, the deceased described the first defendant as
Chiranjeevi Ramanamma and mentioned that she has to take care of
the domestic needs and perform karthika Monday festival without
caring for the expenditure and also advised to instruct Sanjeeva
Rao (their foster son) to study well. The manner in which the
letter was written is also reflecting the affection of the
deceased towards the first defendant. Had the first defendant
was not his wife, the deceased would not have mentioned her name
as K. Ramanamma instead of her parents' surname as Gangula
Ramanamma.
27. In the letter addressed to the bank covered by Ex. X-2, the
deceased described the first defendant as Smt. K. Ramanamma,
which is also an indication that he is treating her as his wife
for all practical purposes except describing her as his wife.
DW-6, an ex-corporator of Vijaywada Municipality deposed that
after the construction of house, the first defendant, her mother
and a boy name Sanjeeva Rao resided there along with late
Satyanarayana till his death. Late Satyanarayana and the first
defendant lived together. Their names find place in the voters
list. Late Satyanarayana and the first defendant used to take
treatment from him, as he was a Doctor and Satyanarayana himself
used to bring D-1 for treatment. In the cross-examination, DW-6
stated that the first defendant was residing in the house of
late Satyanarayana in the capacity of his wife. He knows the
said fact as both of them performed Satyanarayana Vratham at the
time of house warming ceremony. He asserted in the cross-
examination that late Satyanarayana and the first defendant are
the husband and wife and they brought up one Sanjeeva Rao, who
is no other than the sister's son of the first defendant. DW-7,
the fostered son of the defendant also, stated that the first
defendant is his fostered mother and late Satyanarayana was his
fostered father. He was brought up by both of them. No
relatives of Satyanarayana attended the function when
Satyanarayana Vratham was performed by late Satyanarayana and D-
1 at the time of house warming ceremony. He also performed the
obsequies of late Satyanarayana in the suit schedule premises.
28. The above evidence is also lending support to the
contention of the first defendant that she is the wife of late
Satyanarayana. A presumption can be drawn that a woman is the
wife of a man with whom she lived for a very long period and on
account of their long association and she can be recognised as
his wife. Various circumstances placed by the first defendant
by way of oral and documentary evidence also indicate that she
was recognised as the wife of late Satyanarayana, therefore, she
can be treated as wife of late Satyanarayana.
29. Though the plaintiff and the second defendant claimed that
they are the brother and sister of the deceased, they severed
connections with the deceased about four decades prior to the
filing of the suit and his whereabouts were also not known to
those persons. There was no exchange of visits and they never
helped and financed late Satyanarayana either for the
construction of the house or for any other purpose. Since there
is house in the name of the deceased, they entertained an idea
of claiming the same as legal heirs of the deceased
Satyanarayana.
30. On account of long association of the first defendant with
the deceased for more than 33 years and on account of the
conduct and affection shown by the deceased towards first
defendant, it can be said that she was married by him
surreptitiously pretending to be a bachelor to the outside world
and with a view to provide shelter to her, he constructed the
house and fostered her sister's son to be the successor to D-1.
The totality of the circumstances would indicate that D-1 was
the legally wedded wife of late Satyanarayana, therefore, she is
entitled to the house property being Class-I heir."
22. Mere perusal of the afore-quoted finding would go to show that
it is based on proper appreciation of evidence and being just, legal
and proper, it does not call for any interference by this Court under
Article 136 of the Constitution. That apart, the High Court while
exercising its first appellate jurisdiction under Section 96 of the
CPC had ample jurisdiction to appreciate the evidence independent to
that of the appreciation done by the trial court and come to its own
conclusion. Indeed, this being the well-settled principle of law laid
down by this Court in several decisions, no elaborate discussion is
necessary on this question.
23. We, therefore, find no good ground to reverse the finding though
assailed by the appellant and uphold the same and accordingly hold
that defendant no.1 (late Gangula Ramanamma) was legally married wife
of late K. Satyanarayana.
24. This takes us to the next question which is equally material in
the facts of this case as to whether the High Court was justified in
allowing the application filed by K. Sanjiva Rao (respondent no.1)
under Order XXII Rule 4 of the CPC thereby justified in permitting him
to become the appellant to prosecute the appeal as defendant no.1's
legal representative?
25. The question as to whether a particular person is a legal
representative of a deceased plaintiff or defendant is required to be
decided by the Court as per procedure prescribed in Order XXII Rule 5
of the CPC which reads as under:
"Order XXII Rule 5 - Determination of question as to legal
representative - Where a question arises as to whether any
person is or is not the legal representative of a deceased
plaintiff or a deceased defendant, such question shall be
determined by the Court:
Provided that where such question arises before an
Appellate Court, that Court may, before determining the
question, direct any subordinate Court to try the question and
to return the records together with evidence, if any recorded at
such trial, its findings and reasons therefor, and the Appellate
Court may take the same into consideration in determining the
question."
26. This Court in Jaladi Suguna (deceased) through LRs. Vs. Satya
Sai Central Trust & Ors. , (2008) 8 SCC 521, had the occasion to
interpret Order XXII Rules 4 and 5 ibid, Justice R.V. Raveendran
speaking for the Bench after examining the object underlying in Order
XXII Rules 4 and 5, held as under:
"15. Filing an application to bring the legal representatives on
record, does not amount to bringing the legal representatives on
record. When an LR application is filed, the court should
consider it and decide whether the persons named therein as the
legal representatives, should be brought on record to represent
the estate of the deceased. Until such decision by the court,
the persons claiming to be the legal representatives have no
right to represent the estate of the deceased, nor prosecute or
defend the case. If there is a dispute as to who is the legal
representative, a decision should be rendered on such dispute.
Only when the question of legal representative is determined by
the court and such legal representative is brought on record,
can it be said that the estate of the deceased is represented.
The determination as to who is the legal representative under
Order 22 Rule 5 will of course be for the limited purpose of
representation of the estate of the deceased, for adjudication
of that case. Such determination for such limited purpose will
not confer on the person held to be the legal representative,
any right to the property which is the subject-matter of the
suit, vis--vis other rival claimants to the estate of the
deceased.
[pic]16. The provisions of Rules 4 and 5 of Order 22 are
mandatory. When a respondent in an appeal dies, the court cannot
simply say that it will hear all rival claimants to the estate
of the deceased respondent and proceed to dispose of the appeal.
Nor can it implead all persons claiming to be legal
representatives, as parties to the appeal without deciding who
will represent the estate of the deceased, and proceed to hear
the appeal on merits. The court cannot also postpone the
decision as to who is the legal representative of the deceased
respondent, for being decided along with the appeal on merits.
The Code 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. The Code also provides that where one of the respondents
dies and the right to sue does not survive against the surviving
respondents, the court shall, on an application made in that
behalf, cause the legal representatives of the deceased
respondent to be made parties, and then proceed with the case.
Though Rule 5 does not specifically provide that determination
of legal representative should precede the hearing of the appeal
on merits, Rule 4 read with Rule 11 makes it clear that the
appeal can be heard only after the legal representatives are
brought on record."
27. Keeping in view the abovesaid principle of law and applying the same
to the facts of this case, we are of the considered opinion, the High Court
committed an error of law when it proceeded to allow the application filed
by K. Sanjiva Rao (respondent no.1) under Order XXII Rule 4 ibid by its
order dated 19.12.2008, for more than one reason mentioned hereinbelow.
28. In the first place, the High Court should have remanded the case to
the trial court by taking recourse to the provision of Order XXII Rule 5
proviso for deciding the question as to whether K. Sanjiva Rao (respondent
no.1 herein) was the legal representative of deceased defendant no.1
(Gangula Ramanamma) and if so, in what capacity - adopted son or legatee on
the strength of Will dated 02.01.1984. Secondly, without first deciding
this material question, the High Court could not have either allowed the
application and nor it could have proceeded to decide the appeal on merits.
Thirdly, the High Court simply allowed the application without recording a
finding as to whether any right in the suit property was devolved in favour
of K. Sanjiva Rao (respondent no.1) after the death of defendant no. 1 and
if so, in what capacity. This finding alone would have enabled K. Sanjiva
Rao to become the appellant and prosecute the appeal on merits and lastly,
this was a case where inquiry into the question was necessary and it could
be done only by the trial court.
29. Indeed, this question, in our opinion, has assumed significance for
three reasons. Firstly, because K. Sanjiva Rao is not the natural son born
out of wedlock of defendant no.1 and late K. Satyanarayana and nor he had
any blood relations with late K. Satyanarayana. Secondly, due to death of
defendant no.1 during pendency of appeal, the question has arisen as to who
should succeed to her interest and thirdly, this Court having upheld the
finding of the High Court that defendant no.1 was the legally married wife
of late K. Satyanarayana Rao, it is now necessary to give effect to this
finding and the same is possible only when it is decided as to who is her
legal representative.
30. In the light of foregoing discussion and as rightly argued by the
learned senior counsel for the appellant, the order dated 09.10.2000
allowing the application filed by K. Sanjiva Rao under order XXII Rule 4 of
the CPC is not legally sustainable and hence deserves to be set aside.
31. Now in such situation arising in a case, we have two options. First,
to remand the case to the High Court which in turn will remand the case to
the trial court to decide the application filed by K. Sanjiva Rao under
Order XXII Rule 4 as provided in proviso to Order XXII Rule 5 of the CPC
and depending upon the inquiry report, will decide the appeal and second,
this Court should retain the session of this appeal to itself and remand
the case to the trial court as provided under Order XLI Rule 25 read with
Order XXII Rule 5 proviso for holding an inquiry and on receipt of the
finding, finally decide the appeal in the light of finding so recorded by
the trial court.
32. Having given our anxious consideration to this question, we are of
the considered view that second course suggested above seems to be more
appropriate. It is for the reason that firstly, retaining the session of
the appeal and inviting finding from the trial court would save time, avoid
incurring cost and curtail stages of litigation and secondly, the
litigation which is pending since 1985 would come to an end early and
lastly by taking such recourse, no prejudice of any nature would cause to
any parties because so far as other issues on merits are concerned, we have
already decided and lastly, the expression "Appellate Court" occurring in
Order XLI Rule 25 read with Order XXII Rule 5 proviso would not only
include the first Appellate Court, but also include second Appellate Court
and this Court once this Court grant the leave to file appeal to the
appellant. In such event, this Court being the last Appellate Court, can
always exercise the powers available under Order XLI Rule 25 read with
Order XXII Rule 5 proviso and specially when the High Court as first
Appellate Court failed to exercise such powers for proper determination of
rights of the parties.
33. In the light of foregoing discussion, though we have decided the
appeal on merits on some issues arising in the case but having regard to
the nature of controversy involved and now keeping in view the subsequent
event which have come into existence pending appeal and having a material
bearing over the rights of the parties in relation to the suit house, we
retain the session of this appeal and remand the case to the concerned
trial court i.e.,(Second Additional Subordinate Judge Vijayawada) for
holding an inquiry to enable this Court to pass appropriate orders on the
application filed by respondent no.1, K. Sanjiva Rao under Order XXII Rule
4 of the CPC (CMP No.17902 of 2000 in A.S. No.1842 of 1996).
34. The trial court will decide the question keeping in view the
provisions of Order XXII Rule 4 and 5 ibid and record a finding on the
questions (1) whether K. Sanjiva Rao is the adopted son of defendant no.1
and if so, how and on what basis, (2) whether defendant no.1 executed Will
dated 01.02.1984 in favour of K. Sanjiva Rao and if so, whether it is a
genuine Will as per law and (3) if Will dated 01.02.1984 is held as
genuine, whether bequeath of the suit property is made by such Will in
favour of K. Sanjiva Rao?
35. Let the inquiry be held by the trial court after affording an
opportunity to all parties concerned to file reply to application and
adduce evidence in addition to evidence already led in suit and reasoned
findings be returned to this Court within three months along with documents
and evidence led in the inquiry proceedings.
36. The Registry to remit the record of the trial court and that of the
High Court in relation to this case to the concerned trial court forthwith
to enable the trial court to hold the inquiry and submit the report as
directed within the time fixed.
37. Let the appeal be listed for hearing on receipt of finding from the
trial court.
..........................................J.
[M.Y. EQBAL]
..........................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 04, 2014
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