ORDER
Krishna Moorthy, J.
1.The Second Defendant is the Revision Petitioner. The first respondent – plaintiff filed O.S.No. 122/92 on the file of the Civil Judge’s Court, Bangalore, originally against two defendants for declaration that the Sale Deed dated 16.2.1992 executed by the first defendant in favour Of the plaintiff-Company is valid and binding on her and for permanent Injunction restraining the defendants from transferring the schedule property to anybody else and also for a permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. The second defendant is impleaded by making allegations against her that she is misusing her position as Private Secretary of the defendant.
2. The first defendant denied execution of the document and also pleaded that the plaintiff has played fraud and no consideration has passed. During the pendency of the Suit, the third defendant got himself impleaded and filed his statement and also a reply statement to the written statement of the first defendant.
3. The Plaintiff tried to get the alleged Sale Deed dated 16.2.1992 registered before the jurisdictional Sub-Registrar. The Sub-Registrar issued an endorsement on 30.7.1992 refusing registration under Rule 171 (vii) of the Karnataka Registration Rules. The plaintiff preferred an appeal before the District Registrar under Section 72 of the Registration Act. Defendants 1 and 2 herein, filed an application before the District Registrar to dismiss the appeal as the matter is pending before the Civil Court in this Suit and especially, in view of denial of execution of the alleged agreements, sale deed etc., by the first defendant. That application was rejected by the District Registrar, against which, defendants 1 and 2 herein, approached this Court in W.P.No. 26677/93. That Writ Petition was dismissed on 23.9.1993 and the Writ Appeal No. 2667/93 filed by the defendants 1 and 2 also came to be dismissed on 22.6.1994.
4. In the meanwhile, the first defendant died on 9.3.1994. The second defendant preferred an Appeal before the Supreme Court in S.L.P.No. 20021/94 and the Appeal was allowed in January, 1995, staying further proceedings before the District Registrar and directed the Trial Court to dispose of the Suit within a period of one year.
5. Accordingly, the Suit was being proceeded with. As stated earlier, the first defendant died on 9.3.1994. On 8.6.1994, the second defendant filed a Memo to the effect that the first defendant died on 9.3.1994 and also prayed for recording her as the legal representative of the first defendant on the basis of two Wills said to have been executed by the first defendant in her favour on 26.8.1993 and another Will dated 4.3.1994 bequeathing all her properties, movables and immovables to her. The plaintiff also filed an application under Order 22 Rule 4A of the Code of Civil Procedure for an order to the effect that the first defendant has not left any legal representatives and prayed for such a declaration and for a prayer to proceed with the suit. Inspite of the fact that the first defendant died and no decision was taken on the question as to whether the first defendant has any legal representatives or not, the Suit was being proceeded with inspite of the objections filed by the second defendant that it cannot be proceeded with on the death of the first defendant. According to the second defendant, the main relief that is claimed is for a declaration as against the first defendant, and without determining that question, the Suit could not be proceeded with. Accordingly, on 24.11.1995, when the case was posted for evidence of the plaintiff, the second defendant again filed a Memo requesting the Court to decide the question as to who js the legal representative of the first defendant to represent her estate.
6. On 27.11.1995, the Court passed an order to the following effect:
“In view of the fact that the second defendant is already on record and claiming substantial interest in this proceedings, this case is directed to be proceeded with further evidence”.
It is this order that is challenged by the second defendant in this Revision Petition.
7. It is also to be mentioned that, on 8.12.1995, the third defendant filed a Memo stating that the deceased Devika Rani Roerich, during her life time, had duly executed a Will on 7.7.1990 which was duly registered. Under that Will, the third defendant and one Mr. Jude Devdas are the legatees and that they have filed a Probate Application in respect of that Will and Codicil before this Court. They further contended that this defendant has got substantial interest and has locus standi to participate in the proceedings in the case, in the ends of Justice and Equity.
8. Learned Counsel for the second defendant-Revision Petitioner contended that the main relief claimed in the suit is for a declaration that the Sale Deed dated 16.2.1992 executed by the first defendant in favour of the plaintiff Company is valid and binding on her and on her death on 9.3.1994, as her legal representatives are not impleaded, the Suit will abate. It is further contended by him that, under Order 22 Rule 5 of the Code of Civil Procedure, when there is a dispute in regard to the legal representative of a party to a Suit, the matter shall be decided by the Court before further proceeding with the Suit and unless and until that question is determined, the Suit cannot be proceeded with. It is further contended by him that the order dated 27.11.1995, allowing the Suit to be proceeded with, without deciding the question as to who is the legal representative of the first defendant, is not proper and without jurisdiction. On the other hand, it is contended by the learned Counsel for the First Respondent -Plaintiff that the suit had not abated as the second defendant is already in the party array and that the second defendant has not filed any application for impleading her, but has only filed a Memo to that effect stating that she is the legal representative. Learned Counsel for the 2nd Respondent/defendant No. 3 contended that the question as to who is the legal representative need not be considered at this stage and that both the defendants 2 and 3 may be recorded as the legal representative of the deceased first defendant as the matter can be finally decided only in the Probate Proceedings initiated by him in respect of the Will alleged to have been executed by the first defendant in 1990.
9. I heard the learned Counsel for the petitioner as also the respondents.
10. Though various Decisions were cited before me in regard to the procedure to be adopted on the death of a party, it is not necessary to refer to those Decisions as the position is well settled. The substantial relief claimed in this case is against the first defendant and if the legal representatives are not impleaded, the suit will abate. It is also well settled that, if the legal representatives or one of the legal representatives of the deceased party is already on record, even though it is in any other capacity, the suit will not abate. If there is dispute between the parties as to who is the legal representative of a deceased party, the Court shall decide that question under Order 22 Rule 5 of the Code of Civil Procedure before proceeding with the Suit.
(See: K.G. HUTCHAPPA AND ANR. v. SIDDALINGAMMA AND ORS.,1964 Mys. L.J. Supp. 729
and KUNCHIKAVU v. KESAVAN NAYAR, ). It is also well settled that the Court has to take a decision as to who is the legal representative of the deceased party and cannot shirk its responsibility by impleading all the parties who are claiming to be the legal representatives and leaving the matter to a separate suit.
11. In the light of the above principle, I feel that, in that case, as there is a dispute between the parties as to who is the legal representative of the deceased first defendant, the Court should have decided that question in the first instance under Order 22 Rule 5 of the Code of Civil Procedure. The plaintiff has filed an application under Order 22 Rule 4A of the Code of Civil Procedure for a declaration that the first defendant has not left any legal representatives. The second defendant has filed a Memo on 8.6.1994 to the effect that she has to be recorded as the legal representative of the first defendant being a legatee under the two Wills executed by her dated 26.8.1993 and 4.3.1994. After the impugned order is passed, the third defendant also filed a Memo to the effect that he is one of the legatees under a Will executed by the first defendant in the year 1990. Thus, there is dispute between the parties as to who is the legal representative of the first defendant. The provisions contained in Order 22 Rule 5 is mandatory to the effect that, where a question arises as to whether a person is or is not a legal representative of a deceased party, such question shall be determined by the Court. On a reading of the above provision, it is evident that there is a duty on the Court to decide the question as to who is the legal representative of the deceased party when there is a dispute between different claimants in regard to that matter. In that view of the matter, the lower Court should have decided that question before proceeding with the Suit rather than stating that the Suit can be proceeded with as the second defendant who is claiming substantial interest in the proceedings is already a party. The lower Court has not determined the question as to who is The legal representative as contemplated under Order 22 Rule 5 of the Code of Civil Procedure and accordingly, the lower Court was not justified in proceeding with the suit.
12. Though the learned Counsel for the first respondent-plaintiff contended that the second defendant has not filed any application to implead her as the legal representative, but has filed only a Memo to record her as the legal representative which is not sufficient compliance with the provisions of Order 22. I am not inclined to agree. If the second defendant is a legal representative of the first defendant, it is not necessary that she should file an application to record her as a legal representative, for, under Order 22 Rule 2, if the legal representative is already on the party array, it is enough if the Court causes an entry to that effect to be made on the record and the Suit can be proceeded with against the surviving defendant or defendants. It is enough if any of the parties bring to the notice of the Court that the legal representative is already on the party array and that he may be recorded as such. It is not necessary that an application should be filed to that effect and accordingly, I am of the view that the Memo filed by the second defendant to the effect that she is the legal representative of the first defendant is sufficient, if otherwise, she is the legal representative of the first defendant.
13. The further question that arises for consideration is as to whether in the facts and circumstances of the case, the lower Court should be directed to conduct an enquiry into the matter or whether this Court itself can determine the same.
13(A). It is well settled that the enquiry contemplated under Order 22 Rule 5 is only summary in nature and an order under the Rule does not finally determine the rights of parties. An order under Order 22 Rule 5 will only enable a person to represent the estate in the Suit and to make the adjudication therein binding on the estate. The mere appointment of a person as a legal representative for the purpose of further prosecution of the Suit will not conclusively establish his right to the property. It is also clear that an order appointing a person as the legal representative for the Suit will not have the effect of deciding that he is the heir of the deceased party or that his title to the property is declared.
14. In the light of the above principles, it is clear that, only a summary decision has to be taken by the Court as to who is the legal representative of the first defendant and that instead of directing the Trial Court to conduct an enquiry, it is better that this Court itself decide that question as there is a direction by the Supreme Court in the S.L.P. referred to above to dispose of the suit within the time limit mentioned therein. Taking into account the facts and circumstances of the case, I feel that the second defendant has to be recorded as the legal representative of the first defendant. No doubt the second defendant as also the third defendant are claiming right to the property under the Will said to have been executed by the first defendant Madam Devika Rani, but the Will relied on by the second defendant is later in point of time. The second defendant is impleaded in the Suit on the allegation that she is interfering with the possession of the property. Under the definition of the Legal Representative, even an inter-meddler can be a representative. Moreover, the Special Leave Petition filed before the Supreme Court against the Writ Petition filed in this Court in regard to the registration proceedings of the very same Sale Deed, was filed by the second defendant after the death of the first defendant as representing the Estate. There was no demur by any of the parties in her representing the estate by filing the Special Leave Petition before the Supreme Court. The second defendant could have filed the Appeal only representing the estate. In that view of the matter, taking into account the fact that the Will claimed by her is later in point of time and that she represented the Estate in the Special Leave Petition before the Supreme Court, it is fit and proper that, she be recorded as the legal representative of the first defendant so far as these proceedings are concerned. Moreover, the third defendant in his Memo filed after the impugned order was passed, has not claimed that he be recorded as the legal representative of the first defendant, but has only stated that he has locus standi to participate in the proceedings. The controversy between the parties about the legality and validity of the Wills claimed by defendants 2 and 3 are to be determined in separate proceedings in that behalf and the mere recognition of the second defendant as the legal representative of the deceased first defendant cannot confer any right to enforce the Will nor is the third defendant precluded from contending in an appropriate proceedings that there was no such Will or that it was vitiated by any other circumstances. It is also clear that the recognition of the second defendant as the legal representative will not preclude the third defendant from proving the Will and enforcing the same in a separate proceedings if he is otherwise entitled to. The second defendant is recorded as the legal representative only for the purpose of this Suit to represent the Estate and nothing more. It is needless to state and to once again repeat that the recognition of the second defendant as the legal representative of the first defendant is only for the purpose of the Suit to represent the Estate and that, by that alone, no other legal right is conferred on her which will have to be determined in other proceedings if there is any dispute in regard to that between the parties. Accordingly, I feel that the second defendant has to be recorded as the legal representative of the first defendant and I do so.
15. I have already recorded the second defendant as the legal representative of the first defendant. She is already on party array and accordingly, all the proceedings taken in the Suit till now, will be binding on the Estate and there cannot be any defect or illegality in the proceedings taken in the Suit till now:
In the light of what is stated above, I allow this Civil Revision Petition and record the second defendant as the legal representative of the deceased first defendant (i.e., Madam Devika Rani Roerich). The lower Court is directed to make an appropriate entry to that effect in the proceedings and to further proceed with the suit, in accordance with law.