VARADARAJAN vs. KANAKAVALLI AND ORS.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5673 OF 2009

J U D G M E N T HEMANT GUPTA, J. th 1. The order dated 27 November, 2007 passed by the High Court of Judicature at Madras in revision petition under Section 115 of the 1 Code of Civil Procedure, 1908 is the subject matter of challenge in the present appeal. 2. The revision petition is directed against an order passed by the th Executing Court on 19 September, 2005 wherein the possession of the suit property in pursuance of a decree passed in favour of one Umadevi was ordered to be given to the present appellant as the legal representative of Umadevi. Signature Not Verified Digitally signed by CHARANJEET KAUR Date: 2020.01.22 17:40:01 IST Reason: 3. Umadevi filed a suit for partition and separate possession in 1 for short, ‘Code’ 1 respect of the suit property as the successor-in-interest of one Manicka Naicker, her husband. Prior to Umadevi, he had earlier married one Valliammal and had a child one Munisamy Naicker. Manicka Naicker died in the year 1971. Umadevi filed a suit for partition claiming half share in the suit property against Manicka th Naicker. This suit was decreed on 7 April, 1989 and such decree had attained finality. It was in 1999 that Umadevi sought execution nd of the decree passed but she died on 22 July, 1999. The appellant who is the son of Umadevi’s younger sister filed an application to execute the decree as her legal representative on th the basis of a Will dated 16 July, 1999 (Ex.P/1). The said th application was allowed by the Executing Court on 29 March, 2004. 4. The appellant filed an application under Order XXI Rule 35 of the Code for eviction of the respondent and to deliver vacant possession of the premises. In response to such petition, the respondent asserted that the Will is forged and that the son of a sister is not a legal heir as per Section 15 of the Hindu Succession Act, 1956. The learned Executing Court decided the application on th 19 September, 2005. It found that the Will was attested by PW-2 Ayeeyappa who had signed it as one of the attesting witnesses and PW-3 Mohan had scribed the Will. The respondent examined Senthilnathan as RW-1 and Krishnan as RW-2. The learned Executing Court held that the appellant as legal representative of the deceased Umadevi is entitled to execute the decree. The 2 Executing Court held as under: “11. …Further in OS No. 30 of 1982 a judgment and decree was granted in favour of Umadevi on 7.4.1989. Either the deceased Munusamy or his son the said Senthilnathan had not filed any appeal as against the decree. But the said Umadevi had filed an Execution petition duly signed by her. Further, the said Umadevi, before her death, i.e. 6 days earlier to her death, she had executed the Ex.P-1 Will. This court finds that her actions in filing the execution petition and the Will are accepted to be correct, even by the respondents. Further this court finds that since the said Munusamy, who is the son of the first wife of her husband, did not give her food, cloth and shelter and did not take care on her, the deceased Umadevi had gone to the house of her younger sister and stayed along with her and since her health condition got deteriorated, she had executed a Will in favour of the son of her younger sister namely Varadarajan and these facts are found to be true.” 5. The said order was challenged by the judgment debtor by way of a revision under Section 115 of the Code. It may be noticed that no one else other than the appellant had come forward to continue the execution of the decree as the legal representative of Umadevi. 6. The High Court held that the Executing Court is the competent and proper Court to determine the validity of the Will as well as the legatee under a Will can be construed as a legal representative and come on record to seek execution of the decree. However, the High Court found that the execution of the Will was surrounded by suspicious circumstances. It may be noticed that the High Court in revisional jurisdiction has interfered with the findings of fact recorded by the Executing Court in respect of execution of Will arrived at after considering the evidence led by the parties. The 3 High Court found that as per the appellant, the decree holder, Umadevi, was driven out of her house by her step son Munisamy Naicker and was staying with her sister for nearly 20 years but the execution of the Will at the last moment is a suspicious circumstance. The High Court returned the following findings: “19. In view of all the above facts which were established by way of evidence, this Court is of the view that the propounder on whom the allegation casts upon to dispel the suspicious circumstances surrounded the execution of the will. Further, the Court below has not given satisfactory reasons while coming to the conclusion that the will was proved. In the absence of satisfactory evidence, I am unable to ascertain as to whether the will was executed by the testatrix. Therefore, when once it is held that the very execution of the will has not been proved and it is not genuine, consequently, the legatee under the said will cannot become a legal representative to come on record in order to maintain the execution petition in the place of the decree holder, i.e. the testatrix.” 7. We find that the order of the High Court is not sustainable in law. The appellant claims to be the legal representative of Umadevi on the basis of the Will executed by her. He has produced an attesting witness and the scribe of the Will. The witnesses have deposed the execution of the Will by Umadevi in favour of the appellant who is the son of her sister. No one else has come forward to seek execution of decree as the legal representative of the deceased decree holder. It is Umadevi who has filed the execution petition but after her death, the appellant has filed an application to continue with the execution. In the absence of any rival claimant claiming to be the legal representative of the deceased decree 4 holder, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Order XXII Rule 5 of the Code, the jurisdiction to determine who is a legal heir is summary in nature. 8. We may state that Order XXII of the Code is applicable to the pending proceedings in a suit. But the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII. This Court in a judgment 2 reported as V. Uthirapathi v. Ashrab & Ors. held that the normal principle arising in a suit — before the decree is passed — that the legal representatives are to be brought on record within a particular period is not applicable to cases of death of the decree- holder or the judgment-debtor in execution proceedings. This Court held as under:- “11. Order 22 Rule 12 of the Code of Civil Procedure reads as follows: “Order 22 Rule 12: Application of order to proceedings.—Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.”

13. In Venkatachalam Chetti v. Ramaswami Servai [ILR (1932) 55 Mad 352 : AIR 1932 Mad 73 (FB)] a Full Bench of the Madras High Court has held that this rule enacts that the penalty of abatement shall not attach to 2 (1998) 3 SCC 148 5 execution proceedings. Mulla's Commentary on CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refers to a large number of judgments of the High Courts and says: “Rule 12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution under Rule 2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application.” (emphasis supplied)

9. The legal representatives are impleaded for the purpose of a suit alone as held by this Court in Daya Ram & Ors. v. Shyam 3 Sundari & Ors. wherein it was held that impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire estate, including those not brought on record. This Court approved the judgment of the Madras High

10. The Full Bench of the Punjab & Haryana High Court in a judgment 5 reported as Mohinder Kaur & Anr. v. Piara Singh & Ors. examined the question as to whether a decision under Order XXII Rule 5 of the Code would act as res judicata in a subsequent suit 3 AIR 1965 SC 1049 4 ILR 26 MAD. 230 5 AIR 1981 P&H 130 6 between the same parties or persons claiming through them. The Court held as under: “5. So far as the first argument of Mr. Bindra, noticed above is concerned, we find that in addition to the judgments of the Lahore High Court and of this Court, referred to in the earlier part of this judgment, he is supported by a string of judgments of other High Courts as well wherein it has repeatedly been held on varied reasons, that, a decision under Order 22, Rule 5, Civil Procedure Code, would not operate as res judicata in a subsequent suit between the same parties or persons claiming through them wherein the question of succession or heirship to the deceased party in the earlier proceedings is directly raised. Some of these reasons are as follows:— (i) Such a decision is not on an issue arising in the suit itself, but is really a matter collateral to the suit and has to be decided before the suit itself can be proceeded with. The decision does not lead to the determination of any issue in the suit. (ii) The legal representative is appointed for orderly conduct of the suit only. Such a decision could not take away, for all times to come, the rights of a rightful heir of the deceased in all matters. (iii) The decision is the result of a summary enquiry against which no appeal has been provided for. (iv) The concepts of legal representative and heirship of a deceased party are entirely different. In order to constitute one as a legal representative, it is unnecessary that he should have a beneficial interest in the estate. The executors and administrators are legal representatives though they may have no beneficial interest. Trespasser into the property of the deceased claiming title in himself independently of the deceased will not be a legal representative. On the other hand the heirs on whom beneficial interest devolved under the law whether statute or other, governing the parties will be legal representatives. xx xx xx 9. We are, therefore, of the opinion that in essence a 7

11. The judgment in Mohinder Kaur was referred to and approved by this Court in a judgment reported as Dashrath Rao Kate v. Brij 6 Mohan Srivastava . In the said case, the High Court came to the conclusion that since the inquiry under Order XXII Rule 5 of the Code was of a summary nature, it was limited only to the determination of the right of the appellant therein to be impleaded as the legal representative. This Court in the said case held as under:

6 (2010) 1 SCC 277 8

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12. In another judgment reported as Jaladi Suguna (Deceased) 7 through LRs. v. Satya Sai Central Trust & Ors. , this Court held that the d etermination as to who is the legal representative under Order XXII Rule 5 of the Code is for the limited purpose of representation of the estate of the deceased and for adjudication of that case. This Court held as under:

(emphasis supplied) 7 (2008) 8 SCC 521 10 13. In another judgment reported as Suresh Kumar Bansal v. 8 Krishna Bansal & Anr. , this Court held as under:

14. In view of the aforesaid judgments, we find that the appellant is the sole claimant to the estate of the deceased on the basis of Will. The Executing Court has found that the appellant is the legal representative of the deceased competent to execute the decree. In view of the said fact, the appellant as the legal representative is entitled to execute the decree and to take it to its logical end. 15. In addition to the nature of proceedings to implead the legal representative to execute the decree, we find that none of the tests laid down in Section 115 of the Code were satisfied by the High Court so as to set aside the order passed by the Executing Court. The High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as the first court of appeal. An order passed by a subordinate court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or has 8 (2010) 2 SCC 162 11 acted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. Consequently, the order passed by the High Court is set aside and that of the Executing Court is restored. The appeal is allowed. .............................................J. (L. NAGESWARA RAO) .............................................J. (HEMANT GUPTA) NEW DELHI; JANUARY 22, 2020. 12