Addepalli Hanumantharao vs Devarapalli Narayanamma and others

This revision is filed by the third plaintiff in OS. 51/72 on the file of the Principal Subordinate Judge, Ongole questioning the impugned orders dated 20-2-1995 passed in IA 39 of 1995 allowing the said petition thereby striking off the evidence of PWs.1 to 7 and Exs.A1 to A31 from the record.

The above said suit was originally filed by one Venkata Narasimha Murthy, who was the sole plaintiff for setting aside certain sale-deeds said to have been executed by his General Power of Attorney Holder relating to some of his properties. During the pendency of the said suit, the sole plaintiff died on 25-3-1978. Thereupon one T. Sankaraiah and one D. Venkata Swami, who do not belong to the family of the deceased plaintiff, filed IA 1380 of 1978 for adding themselves as legal representatives of the deceased sole plaintiff on the basis of the Will said to have been executed in their favour by the deceased plaintiff. The said petition was allowed on 29-9-1978 and they were brought on record as second and third plaintiffs in the suit. Some evidence was let in on their behalf during the trial of the suit and it consisted of Ihe evidence of PWs. 1 to 7 and Exs. A1 to A31. During the pendency of the trial of the suit, the daughter of the deceased plaintiff by name Vedavathi filed IA 512 of 1980 for adding herself as legal representative of the deceased sole plaintiff and for striking off the names of 2nd and 3rd plaintiffs, who were already added as per the orders in IA No.1380 of 1978. The said petition was allowed on 2-8-1985. Some of the contesting defendants questioned the said orders by filing CRP 2605 of 1985, which was, however, dismissed by this Court. Thereupon, she was added as second plaintiff in the suit by deleting the names of T. Sankaraiah and D. Venkata Swami who were earlier added as second the third plaintiffs. Subsequently Vedavathi also died in 1986 and her husband, who is the present revision petitioner, filed IA 1617 of 1986 for adding himself as the legal representative of the deceased Vedavathi who was already brought on record as second plaintiff in the suit. The said petition was allowed and he was added as third plaintiff in the suit as legal representative of the deceased second plaintiff, who was his wife. Further trial was conducted and the newly added third plaintiff was examined as PW8 and Exs.A32 to A46 were marked by way of further evidence. The trial of the suit was completed in 1994 and it was posted for arguments. At that stage, the defendants 22,25 and 26 filed IA 39 of 1995 requesting the Court to strike off the evidence of PWs. I to 7 and Exs. A1 to A31 from the record on the ground that such evidence was let in on behalf of the plaintiffs in the suit during the period when T. Sankaraiah and D. Venkata Swami were figuring as second and third plaintiffs as legal representatives of the deceased sole plaintiff; that subsequently their names were struck off and the daughter of the original sole plaintiff was brought on record as second plaintiff; that such evidence adduced on behalf of the above two persons is not legal evidence inasmuch as they had no locus standi and as their names were subsequently struck off and the daughter of the original plaintiff came on record as second plaintiff, and that, therefore, such evidence cannot be taken advantage of by the newly added legal representative of the deceased sole plaintiff. The lower Court agreed with such contention of the defendants and allowed IA 39 of 1995 by the impugned orders dated 20-2-1995. Questioning the said orders, the present revision is filed by the third plaintiff in the suit.

Both the Counsel are heard.

It is seen from the facts of this case that the evidence of PWs. 1 to 7 was let in and Exs. A1 to A31 were marked on behalf of the plaintiffs when T. Sankaraiah and D. Venkata Swami were figuring as second and third plaintiffs respectively in the suit as per the orders in IA 1380 of 1978. It is also true that their names were subsequently struck off from the plaint and the daughter of the original sole plaintiff was added as legal representative of the deceased sole plaintiff and shown as second plaintiff in the suit. But it is to be seen that the evidence which was let in on behalf of the plaintiffs during the period when Ihe daughter of the original plaintiff was not on record, is not being disputed by her, who subsequently came on record, on the ground that such evidence is not binding upon her. It is, however, the defendants that are disputing the validity of such evidence adduced in the suit when T. Sankaraiah and D. Venkata Swami, whose names were subsequently struck off, were on record as legal representatives of the deceased plaintiff It is further to be seen that even though the names of the said two persons were subsequently struck off from the plaint on the ground that the true legal representative of the deceased sole plaintiff is his daughter Vedavathi, those two persons were actually representing the estate of the deceased plaintiff till their names were struck off from the plaint and whatever evidence was adduced during that period when they were figuring as second and third plaintiffs was only on behalf of the estate of the deceased sole plaintiff who alone had filed the suit against the defendants questioning some alienations. The orders in IA 1380 of 1978, as per which the said T. Sankaraiah and D. Venkata Swami were added as legal representatives of the deceased sole plaintiff, were not even disputed by any of the defendants contending that they are not the legal representatives of the deceased sole plaintiff on the basis of the Will. Under those circumstances, even if the names of those two persons were subsequently removed from the plaint on the ground that they are not the legal representatives of the deceased and that the daughter of the deceased alone is his legal representative, it cannot be said that those two persons were not bona fide representing the estate of the deceased during the period when their names were found as plaintiffs 2 and 3 in the suit. Under those circumstances, the evidence adduced on behalf of the plaintiff during the period when those two persons were on record as plaintiffs 2 and 3 and which evidence was let in only on behalf of the estate of the deceased sole plaintiff, cannot become illegal and inadmissible when once the true legal representative is subsequently added as one of the plaintiffs by deleting the names of the earlier two plaintiffs who were first added as the legal representatives of the deceased sole plaintiff. Therefore, the lower Court is not justified in striking off the evidence of PWs. 1 to 7 and Exs. A1 to A31 on the sole ground that such evidence was let in during the period when T. Sankaraiah and D. Venkata Swami were on record as legal representatives of the deceased sole plaintiff and whose names were subsequently struck off from the plaint as per the orders in IA 512 of 1980.

In the decision of the Supreme Court reported in N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Others, , it is observed by Their Lordships that where on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the person''s impleaded as heirs binds the estate, even though oilier persons interested in the estate are not brought on record. The decision of the Madras High Court reported in Chaturbujadoss Kushaldoss and Sons v. Rajamanicka Mudali, AIR 1930 Mad. 930, and the decision of the Orissa High Court reported in Sarat Chandra Deb and Others Vs. Bichitrananda Sahu and Others, , which also laid down the same principle, were referred to and approved by the Supreme Court in the said decision. The said principle enunciated by the Supreme Court can be said to be clearly applicable to the present case also even though the present case relates to the question whether the evidence adduced on behalf of some plaintiffs who were bona fide prosecuting the suit as legal representatives of the deceased plaintiff representing his estate and who were subsequently removed from the suit and another person was brought on record as she was found to be the true legal representative of the deceased plaintiff, can be struck off from the record on the ground that such evidence was let in during the period when the true heir was not on record.

In the decision of the Madras High Court reported in Subbanagulu v. Balanagamaya AIR 1939 Mad 148, it is observed:

"Whether a person is a legal representative of the deceased is very often a question of some nicety and not free from difficulty. It is quite possible to conceive of cases where a person may be held to be one by the Court in which the application was made in the first instance, but a different view may prevail on appeal. If such happens to be the case, can it be said that the suit should be held to have abated, as soon as a decision is arrived at by an appellate Court that the person who made the application was not the real legal representative? The only limitations in my opinion which have to be placed in construing this section are that the application must be a bona fide application and that the applicant must have claimed an interest in the suit, in which an application is made under this rule in good faith."

In another decision of the Rajasthan High Court reported in Ram Charanlal and Others Vs. State of Rajasthan and Others, , it is observed:

"Thus a person who purports to be a legal representative of the deceased plaintiff or appellant may file an application for bringing on record the legal representatives of the deceased plaintiff or appellant, although ultimately it may be found that the person who had submitted the application was not the real legal representatives of the deceased plaintiff, and even then the names of the real legal representatives of the deceased plaintiff may be brought on the record if their names have been brought to the notice of the Court. Therefore, an application made by a person who is ultimately found not be a legal representative of the deceased plaintiff or appellant, would constitute sufficient compliance with the requirement of the provisions of Order 22 Rule 3 CPC if such an application is made bona fide and the same shall enure for the benefits of the true legal representatives of the deceased plaintiff or appellant."

It is clear from such observations that whatever was done during the course of the prosecution of the suit by some persons purporting to be representing the estate of the deceased will enure for the benefit of the true legal representatives of the deceased as and when they come on record to represent the estate of the deceased on the ground that they are the true legal representatives of the deceased and not the persons who had earlier filed the application for adding themselves as legal representatives. When such is the case, the evidence adduced on behalf ofthe plaintiffs during the period when some persons who were bona fide representing the estate of the deceased, cannot be struck off from the record on the ground that those persons were subsequently not found to be the legal representatives and that some other persons are the legal representatives and their names are added in the suit as plaintiffs. Therefore, under these circumstances, the orders of the lower Court cannot be sustained and the evidence of PWs.1 to 7 and Exs. A1 to A31 cannot be struck off from the record as opined by the lower Court.

In the result, the revision is allowed and the orders of the lower Court are set aside and IA 39 of 1995 is dismissed. As the suit is of the year 1972, the lower Court is directed to take up the trial of the suit and dispose of the same expeditiously.