Maria Anthony Subash v. Rasammal

ORDER This Civil Revision Petition has been filed against the fair and decreetal order dated 08.08.2022, passed in I.A.No.2 of 2021 in A.S.No.23 of 2017, on the file of the Subordinate Court, Vallioor.

2.By the impugned order, the learned Subordinate Judge, Vallioor, has dismissed the application filed by the petitioner under Order XXII Rule 4 read with Section 151 of C.P.C., to implead the petitioner as the legal representative of the deceased second respondent in the Appeal Suit. Relevant portion of the impugned order reads as under:- ''14.mt;thwhd #o;epiyapy; ,e;j capy; rhrdj;ij ep&gpf;f Ntz;ba flikAk;> nghWg;Gk; ,e;j kDjhuUf;F Vw;gLfpwJ. capy; Mtzq;fis ep&gpf;Fk; epiyapy;> jhth nrhj;jpy; thjp Nfl;Ls;s tpsk;Gif ghpfhuk; Ml;Nrgpf;fg;gl;Ls;sJ. MfNt kDjhuH NfhhpAs;s chpik %yj;ij ,e;j Nky;KiwaPl;L tof;fpy; M[uhfp ep&gpf;f ,ayhJ vd;gjhYk;> ,e;j kDjhuH jhf;fy; nra;Js;s capy; Mtzq;fis GuNgl; nra;a Ntz;bAs;sjhy; Neubahf Mtzq;fis Vw;Wf; nfhz;L ,e;j kDjhuH Nfl;Ls;s ghpfhuk; mtUf;F toq;f ,ayhJ vd;gjhy;> ,e;j kDit mDkjpf;f ve;jtpjkhd Kfhe;jpuk; ,y;iy vd;Nw ,e;ePjpkd;wk; jPHkhdpf;fpwJ.

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3.The petitioner is the stranger to the proceedings initiated by the fourth respondent herein [Mantiram @ Santhi], in O.S.No.527 of 2004 before the Additional District Munsif Court, Vallioor. The said suit was filed by Mantiram @ Santhi [the fourth respondent herein] against the respondents 1 to 3, the legal heirs of Late. Muthuramalingam namely, the wife and two children and against her father 'Subbiah Pillai'. Originally, the said suit was filed by the fourth respondent for declaration against the respondents 1 to 3 herein [Defendants 1 to 3 in the suit] and for permanent injunction to restrain them from effecting further alienations. No relief was sought against her father. Later, the plaint was amended for a declaration and recovery of possession.

4.O.S.No.527 of 2004 was filed by the fourth respondent herein before the Additional District Munsif Court, Vallioor, on the premise that the fourth defendant Late.Subbiah Pillai had executed a Sale Deed, dated 12.07.1999, in favour of Muthuramalingam, registered as Document No.2047 of 2001, without the authority of the law.

5.The Trial Court decreed O.S.No.527 of 2004, by its judgment and decree on

14.09.2016. Aggrieved by the same, the legal heirs of the said Muthuramalingam namely, Rasammal and two minor children, who are now majors, filed A.S.No.23 of 2017, before the Sub-Court, Vallioor and the same is still pending before the Sub-Court, Vallioor. It is submitted that the fourth defendant in O.S.No.527 of 2004 Late.Subbiah Pillai [fourth respondent's father] had executed a registered Will dated

30.05.2014 registered as Document No.9 of 2014 in favour of the petitioner and thereafter another Will dated 31.07.2019 registered as Document No.85 of 2019, whereby the suit schedule property was bequeathed by Late.Subbiah Pillai in favour of the petitioner herein.

6.The fourth respondent's father Subbiah Pillai died on 11.08.2020. Therefore, the petitioner herein filed I.A.No.2 of 2021 in A.S.No.23 of 2017 to implead himself as a legal representative of Late.Subbiah Pillai. The first Appellate Court, namely, Sub-Court, Vallioor, rejected I.A.No.2 of 2021. It is submitted that the learned Sub Judge, Vallioor, had committed an error in rejecting I.A.No.2 of 2021, as the petitioner indeed is the legal representative of Late.Subbiah Pillai in the light of the definition ''legal representative'' in Section 2(11) of C.P.C., which reads as under:- ''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 the party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.''

7.That apart, it is submitted that the Trial Court had committed an error in decreeing the suit in favour of the fourth respondent/plaintiff, by its judgment and decree, dated 14.09.2016, in as much as the fourth respondent executed a sale deed in favour of her father on 18.06.1985 and that subsequently, her father Late.Subbiah Pillai sold the property to one V.Vinayagam on 24.04.1987 and that Late.Subbiah Pillai once again purchased the property on 12.03.1999. It is, therefore, submitted that the fourth defendant/father of the fourth respondent was entitled to bequeath the property and has bequeathed the property on 30.05.2014 and by another Will, dated

31.07.2019 and that in view of the death of the said Subbiah Pillai on 11.08.2020, the property would devolve on the petitioner as Legatee. It is, therefore, submitted that the first Appellate Court, namely, Sub-Court, Vallioor, has committed an error in rejecting the application for impleading the petitioner as a legal representative of the deceased fourth defendant in O.S.No.527 of 2004/fourth respondent in A.S.No.23 of 2017.

8.Defending the impugned order, the learned counsel for the fourth respondent submits that the dispute was between the plaintiff and the defendants in the suit in O.S.No.527 of 2004. The property in question belongs to the fourth respondent's paternal uncle [fourth defendant's elder brother] Narayanan and that by a registered settlement deed, the property was settled in favour of the fourth respondent/plaintiff and her younger sister Backiyalakshmi and the said Backialakshmi, in turn, had also executed a release deed, dated 20.09.1987, in favour of the fourth respondent herein/ plaintiff. Thus, the decree came to be passed by the Trial Court on 14.09.2016 decreeing the suit, affirms that the so-called sale deed executed by the fourth respondent's father Late.Subbiah Pillai [fourth defendant] on 12.07.1999 was a genuine document, but without the authority.

9.In this connection, the learned counsel for the fourth respondent has drawn the attention of this Court to the following passages from the judgment and decree of the Trial Court in O.S.No.527 of 2004. ''15. ... Mtzk; gjpT nra;j fhyj;jpy; Rg;igah gps;is ifnaOj;J kl;Lk; Nghl;bUf;fpwhH. ifNuif itf;f kWj;Jtpl;lhH.... vd;W rhl;rpak; mspj;Js;shH. ,e;epiyapy; rhl;rp rhd;whtzk; 3-ia Muha;e;j NghJ gp.th.rh.M.1 fpiua Mtzk; vOjpf; nfhLj;j Rg;igah Nuifapl kWf;fpwhH vd;w Fwpg;G cs;sJ. vdNt gp.th.rh.M.1

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10.It is submitted that the Trial Court has concluded that the fourth respondent's father [fourth defendant] Late.Subbiah Pillai had indeed executed a sale deed in favour of the said Muthuramalingam on 12.07.1999. However, the Court has also concluded that the fourth respondent's father Late.Subbiah Pillai had no authority to execute the sale deed.

11.That apart, the sale deed was held to be void in the light of Section 28(b) of the Registration Act, 1908, which reads as follows:-''28.Place for registering the documents relating to land.-

(b) any document registered outside the State of Tamil Nadu in contravention of the provisions of clause (a) shall be deemed to be null and void.''

12.It is submitted that the persons, who were aggrieved by the decision of the Trial Court, dated 14.09.2016, were only the legal representatives of Late.Muthuramalingam [respondents 1 to 3 herein]. It is submitted that the fourth respondent's father Late.Subbiah Pillai had not filed a further appeal against the judgment and decree, dated 14.09.2016. As a so-called legal representative of the fourth respondent's father, the petitioner cannot claim any right, which was not exercised by Late.Subbiah Pillai during his lifetime.

13.That apart, it is submitted that the Will, dated 30.05.2014, registered as Document No.9 of 2014, itself was inconceivable in the light of the earlier sale deed, dated 12.07.1999, from the deceased Subbiah Pillai's point of view as he had indeed executed the above said sale deed, which stands confirmed by the judgment and decree of the Trial Court. The subsequent Codicil, dated 31.07.2019, also cannot be countenanced and on the basis of the same, the petitioner cannot seek for impleading himself as a legal representative of the deceased Subbiah Pillai [fourth defendant/father of the fourth respondent herein].

14.In my view, the impugned order in I.A.No. 2 of 2021 in A.S.No.23 of 2017 does not call for any interference. It is a well reasoned order. In my view, the appellate court has rightly dismissed the above interlocutory application filed by the petitioner to implead himself as respondent in the above Appeal Suit.

15.The petitioner has to prove his rights over the property as a legal representative of late.Subbiah Pillai, father of the fourth respondent herein (O.S.No. 527 of 2004) in the manner known to law by proving that the will which is said to be executed by Late.Subbiah Pillai was genuine. It is only after establishing such a right, the petitioner can have a right of audience in the above Appeal suit filed by the respondents Nos 1-3 against respondent No 4.

16.As things stand today, even the Will that is said to have been executed on

30.05.2014 which followed by a Codicil dated 31.07.2019 cannot be acted upon, as the fourth defendant in the suit/second respondent in the above appeal, late Subbaih Pillai did not have a right to execute a Will. The petitioner has to file an independent suit to prove that the Will that was executed was valid. The petitioner will have to file an independent suit to declare the judgement and decree passed in O.S.No.527 of 2004 as null and void.

17.In view of the above, I do not find any reasons to interfere with the impugned order dated 08.08.2022, in I.A.No. 2 of 2021 in A.S.No.23 of 2017. Consequently, the present Civil Revision Petition is liable to be dismissed. Accordingly it is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes / No Index : Yes / No

08.06.2023 Internet : Yes / No smn2 To The Sub Judge, Vallioor. C.SARAVANAN

, J.

smn2 DATED : 08.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserving the Judgment Date of Pronouncing the Judgment 11.04.2023 08.06.2023 CORAM: THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)No.12894 of 2022 Maria Anthony Subash ... Petitioner vs. 1.Rasammal 2.Vanamamalai 3.Ponpandi 4.Manthiram @ Santhi ... Respondents Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 08.08.2022, made in I.A.No.2 of 2021 in A.S.No.23 of 2017, on the file Sub-Court, Vallioor. For Petitioner : Mr.S.C.Herold Singh For R1 to R3 : Mr.V.S.Risikesh For R4 : Mr.J.Barathan