ORDER
1. In this revision, the
plaintiffs 3 to 12 challenge the-orders in IA No. 36 of 1998 in OS No. 19 of 1994 on the file of the Junior Civil Judge, Pargi, Ranga Reddy District allowing an application filed by the respondent No.2 herein purporting to be under Order 22, Rule 3 and Order 1, Rule 10 of the Code of Civil procedure to come on record as the plaintiff No.2, being the legal representative of the petitioner No. 1.
2. In the suit filed seeking partition of the properties and separate possession, the plaintiff, Khasim Bee, the grand mother of the proposed party, died on 27-12-1997 bequeathing the properties under a registered will deed dated 24-10-1994 to the respondent No.2. On her death, the respondent No.2 who being a minor, represented through the father and natural guardian sought to come on record as a legatee. This application was opposed denying the execution and correctness of the will and also stating that the deceased plaintiff had no right or interest in the suit properties to effect any disposition. Further, it was stated that being a legatee, she cannot come on record as legal representative under Order 22, Rule 3 and the provisions under Order I, Rule 10 of the Code have no application.
3. The lower Court rejected these objections relying on the decision in M. Anjaiah v. K. Venkateshwarlu, and allowed her to come on record.
4. Assailing these orders, Sri Ravinder Reddy, Counsel for the petitioners, strenuously contended that the respondent, who is claiming as a legatee under a will does not fall under the definition of a legal representative and cannot come on record under Order 22, Rule 3 and he placed strong reliance on the decision in Akkarayoyina Appa Rao v. Korad Ammoru and others, .
5. In reply, Sri S.C. Rangappa, Counsel appearing for the respondent, sought to sustain the orders by contending that the provisions under Order 1, Rule 10 are wide enough to allow even a legatee to come on record.
6. Before considering the question as to the applicability of the provisions for a legatee under a will to come on record, it necessitates to refer to the following provisions of the Code of Civil Procedure.
“Section 2(11). “legal representative” means 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 sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
Order XXI, Rule 23: (1) Where the person to whom notice is issued under Rule 22 does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.
(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit”.
“Order 1, Rule 10. (1) Where a suit has been instituted in the name of the
wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any oilier person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties-(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any parry improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Where defendant added, plaint to be amended-(4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877) Section 22, the proceedings as against any person added as defendant shall be
deemed to have begun only on the service of the summons.”
6. In Appa Rao’s case (supra), a case where in a suit for partition, after the death of the plaintiff, the plaintiff No.2 was brought on record as legal representative, being a legatee under a will and it was held that the legatee cannot come under the definition of a legal representative and that the provisions of Order 22, Rule 3 of the Code have no application. Further, there being no pleading or evidence in proof of the will, the suit was held to be abated as no application was filed within the prescribed period. However, in this case, the question as to applicability of the provisions of Order 1, Rule 10 of the Code did not come up for consideration.
7. In M. Anjaiah v. K Venkateswarlu, (supra), a Division Bench of this Court while considering both the provisions held:
“(1) Where any of the parties to a suit/appeal dies during the pendency of the suit/appeal, steps to bring his legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure.
(2) Where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 22 and the suit/ appeal has abated and/or where the attempt to have the order of abatement set aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order 1, Rule 10 CPC for impleading the legal representatives of the deceased party by circumventing the provisions of Order 22.
(3) An application under Order 1, Rule 10 CPC to implead a necessary party (including a legal representative of a deceased party to the suit/ appeal which has abated due to not bringing on record the legal representatives of the deceased party) can be filed in a suit/appeal to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit provided the proposed party has an independent right or obligation de hors his position as legal representative of the deceased defendant.
(4) An administration/partition suit does not abate as a whole due to not bringing on record the legal representative of a deceased party (co-sharer/co-owner) as each party is in the position of the plaintiff and the heir of the deceased co-sharer-co-owner is a necessary party to the suit, he can come on record on his application under Order I, Rule 10 CPC.”
8. In P. Murugesa Reddy v. A. Subbamma, , a learned single Judge of this Court held:
“The crucial test for the addition or otherwise of a particular party as defendant or plaintiff is whether the presence of such party is necessary or atleast proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject matter. It was also held that the intendment and object of this provision is to invest the Court with ample power and jurisdiction to strike out the name of any party improperly joined or to add any person who ought to have been joined or whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In other
words, the jurisdiction is vested in the Court to add a party, provided his presence is necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit.
Since the petitioner is claiming the property under the will executed by the grand-father and also under the will executed by the grand-mother, he has a direct interest in the suit schedule property. The presence of the petitioner is necessary, in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit. Since the claim of the petitioner is under two wills, he has a direct interest in the suit schedule property and he is necessary party, and therefore, the principal Subordinate Judge ought to have impleaded him as a party to the suit.
Even as a legal representative of grand mother, the petitioner is claiming under the two wills executed by her, he is entitled to come on record. In order to avoid multiplicity of the proceedings, it is necessary that the petitioner should be added as a party in the suit”.
9. Similarly, in another decision in Pulikutla Papanna v. Pulikuntla Gangulamma, , a learned single Judge of this Court held:
“Failure to bring parties as legal representatives of deceased on record-does not preclude the plaintiff from bringing them on record as defendants on a different ground, for instance, as persons in possession of property.”
10. Earlier, in K. Ramayya v. C. Chennarayappa, 1974 (1) An.WR 149, another learned single Judge of this Court held:
“It is well settled that in a partition suit, all persons interested in the properties are necessary parties and the rights of the parties as well as the shares to which they would be entitled can only be determined in the presence of all persons interested in the properties. In a partition suit amongst co-sharers, where one of the parties dies, the legal representatives of the deceased co-sharer can always be brought on record in exercise of the power of the Court under Order 1, Rule 10, Civil Procedure Code, even when the provisions of Order 22, CPC, are not invoked.”
11. In Mahomedally v. Safiabai, AIR 1940 PC 215, in a suit for administration
by a Mohammadan, it was held:
“It is open to the Judge in his discretion under Order I, Rule 10 to add as a party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties.”
12. In Andhra Bank Limited v. Srinivasan, , while considering the definition of legal representative in Section 2(11) of the Code, the Supreme Court held:
“Estate does not mean the whole of the estate-even a legatee who obtains only a part of the estate of the deceased under a will can be said to represent his estate and is therefore a legal representative.”
13. On this case, the contrary view taken by the Madras High Court in Natesa Sastrigal v. Alamelu Achi, , was overruled. Even though in this case, partially the Counsel conceded that a universal legatee would be a legal representative, but the Court proceeded to consider the definition under Section 2(11) and categorically held:
“The whole object of widening the scope of the expression “legal representative” which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview. Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddle with a part of the estate are legal representatives. Besides, if such a construction is accepted it would be so easy for the estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution of making several legacies to different persons by his will. Besides, as a matter of construction, if different intermeddlers can represent the estate, different legatees can likewise represent it. In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the clause “a person who in law represents the estate of a deceased person” must include different legatees under the will. There is no justification for holding that the “estate” in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of Section 2(11) is against Mr. Sastri ‘s argument, apart from the fact that considerations of logic and common sense are equally against it.”
14. In Dinamoni Chaudhurani v. Elahadut Khan and others, CWN Vol. VIII 843, interpreting the expression “legal representative”, as contained in Section 234 of the Code of Civil Procedure, 1882, it was held that the said term is not limited to administrators, executors and heirs and it was held to include any person who in law represents the estate of a deceased
judgment debtor. Later, the said definition has undergone a substantial change by incorporating Section 2(11) in the Code of 1908. In L. Sreenivasulu v. D. Muniratnam, , it was held that a universal donee being the legal representative of the donor takes the estate of the donor subject to his liabilities under Section 128 of the Transfer of Property Act. In Natesa Sastri v. Sundaram Chettiar, (supra), while considering the provisions of Section 50 of CPC, it was held that even if the property is in possession of the legatee, the execution creditor has ample rights to seize the property in the said execution so as to bind even the legatees. Thus, looking from any angle, a legatee falls within the definition of a legal representative as define under Section 2(11) of the Code. The expression is couched in such a wider meaning to show that vvhoever intermeddles with the estate of the deceased falls within the said definition. Any person intermeddling cannot be equated to nor can be, brought within the narrow meaning of a person who in the normal course is the heir simplicter.
15. The decision of the Apex Court and other decisions referred to above were not brought to the notice of the learned Judge when Appa Rao’s case (supra) was decided, which distinguished the case of a succession under a will. In view of the binding nature of the decision of the Apex Court and the view taken in the other decisions consistently, I am of the opinion that the decision in Appa Rao ‘s case (supra), does not depict the true legal position.
16. Thus, the respondent No.2 as a legatee comes within the definition of a legal representative. Further, the application having been filed within the prescribed period, has rightly been allowed by the Court below. There are no merits in the revision and the same is dismissed. No costs.