Ashok Chand and Others vs B.S. Venkatesh and Others

B.S. Patil, J—Sole plaintiff in O.S. No. 26/2009 having died, an application was filed by one B.S. Venkatesh under Order XXII Rule 10 of CPC to come on record as legal representative of deceased plaintiff in view of the registered Will dated 09.07.2009 executed by the plaintiff. This application was contested by defendants 1, 3 and 4 by filing objections. The Trial Court by a non-speaking order dated 16.08.2014 allowed the application by passing the following order:

"Heard & perused IA 27 filed under Order XXII Rule 10 CPC satisfied. Hence, IA 27 allowed. No cost. Permitted to come on record as LR of deceased plaintiff. For amendment of plaint by 6/9."

This order was challenged by the revision petitioners by filing M.A. No. 22/2014 before the II Additional District & Sessions Judge, Chikballapur. By order dated 03.07.2015, the appeal came to be dismissed confirming the order passed by the Trial Court. In the circumstances, aggrieved by the orders passed by the Courts below, the present revision petition is filed.

I have heard the learned counsel for both parties.

Plaintiff M. Susheelamma, who was aged about 82 years instituted O.S. No. 26/2009 against her only daughter and 4 others on 12.06.2009 for a decree of partition of her half share in the suit schedule items 1 to 17 of the properties by declaring that plaintiff and 1st defendant were joint owners of the suit properties. A consequential relief of perpetual injunction against defendants 2 to 4 restraining them from dispossessing the plaintiff from the suit schedule properties was also sought.

Plaint averments, in brief, are that 1st defendant -Smt. Rajeshwari is the daughter of the plaintiff; she used to obtain signatures of the plaintiff on some typed papers and blank papers representing that such signatures were required for defending the claim in respect of suit properties in some litigation pending in the High Court; taking advantage of such signatures, 1st defendant created and forged a Power of Attorney in the name of 2nd defendant and by virtue of such Power of Attorney, defendant No. 2 created Sale Deed in favour of defendant No. 3 in respect of items 1 to 8 of the suit schedule properties by executing a registered Sale Deed dated 22.05.2009; another Sale Deed was executed on the same day in favour of defendant No. 4 in respect of items 9 to 17, thus, defendant No. 1 played fraud against the plaintiff and had forged the Power of Attorney in respect of suit properties colluding with defendants 2 to 4 and had created the Sale Deeds.

Defendant No. 1 filed written statement on 03.10.2009 denying the allegations that there was any collusion between defendants 1 to 4 or that the Power of Attorney was created or forged. It was specifically contended by her in paragraph 13(k) of the written statement that before filing the suit, the entire suit schedule properties were sold by the plaintiff as well as defendant No. 1 for valid consideration through their General Power of Attorney holder and pursuant to the registered Sale Deed, defendants 3 & 4/purchasers were put in actual possession of the property, but very strangely without seeking for setting aside the Sale Deeds dated 22.05.2009 and without paying Court fee on the market value of the properties, plaintiff had instituted the suit for partition and permanent injunction.

Plaintiff died on 14.05.2013. Applicant who filed the application to come on record as legatee of the deceased under the registered Will dated 09.07.2009 has stated in the affidavit filed in support of the application that during her life time, plaintiff had executed registered Will on 09.07.2009 in his favour in respect of suit schedule properties. He was in physical possession of the suit properties. Hence, he claimed that he was a necessary and proper party to be brought on record as a legatee under the Will. Therefore, asserting that as he had got interest in and possession of the suit subject matter, he was entitled to come on record.

This application was objected by defendants 1, 3 & 4 by filing common objections contending inter alia that the General Power of Attorney was executed on 26.03.2008 by the plaintiff and the 1st defendant; suit properties were sold by registered Sale Deeds dated 22.05.2009 and the alleged Will under which the applicant claimed rights was executed on 09.07.2009 i.e., after the sale of properties during May, 2009. It is, therefore, contended by the defendants that as the Will was executed after the properties were sold plaintiff did not have any substituting right over the suit properties to make a request; plaintiff has not sought for cancellation of the said Sale Deeds during her life time; she had lost her right to challenge the same, as no steps had been taken by her within three years from the date of written statement filed by defendant No. 1 to challenge the Sale Deeds; in the said circumstances, the applicant could not be considered to be a person in whose favour there was any assignment, creation, or devolution of interest.

The Trial Court, as already adverted to above, did not pass any reasoned order. It did not apply its mind either to the contents of the application or to the objections raised by the defendants, for allowing the application. The lower Appellate Court has allowed the application stating that though the Trial Court had not assigned any reason to allow the application and although it had not passed any speaking order, the same did not deserve any interference.

The lower Appellate Court has confirmed the order of the Trial Court stating that if the application filed by the applicant was not allowed, the proceedings of the original suit itself would come to an end without adjudication of the rights of the plaintiff. It has further stated that suit schedule properties being the self acquired properties of the husband of plaintiff and father of defendant No. 1 who had died intestate, plaintiff and defendant No. 1 had succeeded to the same and therefore, when the plaintiff denied the execution of General Power of Attorney, the questions raised between the parties were required to be adjudicated by the Trial Court.

Learned counsel for the revision petitioners -defendants submits that no interest or right has devolved upon the applicant to come on record to prosecute the suit inasmuch as admittedly the Will was executed after the suit properties were sold by the plaintiff and defendant No. 1. It is his next contention that in the absence of any challenge to the Power of Attorney or the Sale Deeds duly executed and registered in favour of defendants 3 & 4, no right survives for anybody, muchless the applicant to prosecute the suit. He refers to the plaint averments, the relief sought and the written statement filed by defendant No. 1 to contend that question of the applicant coming on record to seek partition of the properties does not arise when the said properties are not available to the family. It is his submission that if the grievance of the plaintiff or his successors in interest is with regard to the misrepresentation in securing the Power of Attorney from the plaintiff and in executing the registered Sale Deeds based on such power of Attorney, then the contracts/agreements entered into in that regard resulting in execution of the Power of Attorney and the Sale Deeds were voidable in terms of the provisions contained under Sections 14 to 19 of the Indian Contract Act, 1872 and therefore, the only remedy available was to file the suit under Section 31 of the Specific Relief Act seeking cancellation of the said agreements. As plaintiff had failed to seek any such relief, there was no subsisting interest in the plaintiff and consequently, there was no interest that could have devolved in favour of the applicant to prosecute the suit by coming on record. He takes me through the provisions contained under Order XXII Rule 10 CPC and submits that only in cases of assignment, creation or devolution of any interest during the pendency of the suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has devolved, whereas, in the instant case, no such interest could have been assigned, created or devolved in favour of the applicant because plaintiff did not have any subsisting interest and therefore, question of the Court granting leave to the applicant to continue to prosecute the suit did not arise. Thus, it is urged that the Courts below have committed serious illegality in passing the impugned orders. Reliance is placed by him on the decision in the case of Shri Rajeshwari Prasad Singh Vs. Shashi Bhushan Prasad Singh and others, AIR 1996 SC 181 : AIR 1995 SC 181 in this regard.

Learned counsel for the respondent has supported the orders passed by the Courts below. He has mainly contended that plaintiff has not executed any General Power of Attorney, nor has she sold the property in favour of anybody; documents set up by defendant No. 1 and other defendants were void documents, therefore, such void documents need not be cancelled or challenged; a police complaint had been lodged by the plaintiff during her life time against defendant No. 1, hence question whether plaintiff had any subsisting right in the subject matter to prosecute the suit cannot be considered at the stage of consideration of interim application; registered Sale Deeds had been already produced and marked in the proceedings. He urges that Order XXII Rule 10 CPC contemplates satisfaction of the Court regarding devolution of rights and for this purpose, no detailed enquiry is necessary. In this regard, he has placed reliance on the judgment of the Apex Court in the case of Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, AIR 2005 SC 2209 : (2005) 4 CTC 47 : (2005) 5 JT 20 : (2005) 141 PLR 201 : (2005) 11 SCC 403 : (2005) 3 SCR 509 . He has also contended that there was no need for the plaintiff to challenge the alienations made by a Hindu coparcener and mere suit for partition was maintainable. Reliance in this regard has been placed by him on the judgment in the case of Ganapati Santaram Bhosale and Another Vs. Ramachandra Subbarao Kulkarni and Others, AIR 1985 Kar 143 : (1985) ILR (Kar) 1115 : (1985) 2 KarLJ 104 .

Upon hearing the learned counsel for both parties, the only point that arises for consideration in this case is -

"Whether the application filed by the applicant to come on record as legal representative of the deceased plaintiff on the basis of the registered Will dated 09.07.2009 deserved to be allowed. In other words whether the applicant has shown to the satisfaction of the Court that there was creation or devolution of any interest in his favour in terms of the provisions contained under Rule 10 of Order XXII and whether Courts below have acted illegally in allowing the said application?"

Relief sought, in sum and substance in the suit, is for partition and separate possession of half share of the suit schedule properties. It is not in dispute that defendant No. 1 is the only daughter of deceased plaintiff and the applicant is the son of defendant No. 1. As contended by the plaintiff herself, her daughter had set up a General Power of Attorney said to have been executed by herself and plaintiff in favour of defendant No. 2 and based on the same, registered Sale Deeds alienating the suit schedule properties had been executed in favour of defendants 3 & 4 on 22.05.2009. The registered Will is dated 09.07.2009. Admittedly, the Will is after the execution of the Sale Deeds. Even assuming that the plaintiffs allegation that her signatures for executing the General Power of Attorney had been taken by way of misrepresentation or by committing fraud are accepted on their face value and her allegation that the registered Sale Deeds executed were the result of such misrepresentation, the fact remains that no relief has been sought in the suit seeking cancellation of the documents particularly the registered Sale Deeds, nor is there any declaration sought to the effect that these documents particularly the Sale Deeds were not binding on the plaintiff.

There are no other properties of the family other than what has been sold under these registered Sale Deeds that are the subject matter of the suit for partition. Therefore, as the Will is dated 09.07.2009 and prior to execution of the Will, Sale Deeds have been executed and no reliefs are sought in respect of the said Sale Deeds, there was no subsisting interest which the applicant could have derived upon the death of the plaintiff to prosecute the suit. The Will cannot clothe the applicant with non-existing right to prosecute the suit. Both the Courts below have lost sight of this important aspect of the matter in this case.

A person to be entitled to come on record to continue the legal proceeding has to establish, at least prima facie, that any interest or right in the subject matter of the suit has devolved upon him and therefore, he is entitled to continue the proceedings. In the instant case, as rightly contended by the defendants, applicant has not secured any such right under the Will to continue the proceedings. In the absence of any challenge to the alienations made under the registered Sale Deeds which have been executed prior to the Will, there was no right for the applicant to come on record to continue the suit. In such circumstances, I am of the clear view that the orders passed by both the Courts below are unsustainable. The Courts below have committed serious error in passing the impugned orders.

Reliance placed by the learned counsel for the applicant - respondent herein on the judgment of the Apex Court in the case of Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, AIR 2005 SC 2209 : (2005) 4 CTC 47 : (2005) 5 JT 20 : (2005) 141 PLR 201 : (2005) 11 SCC 403 : (2005) 3 SCR 509 is not apposite to the facts of the present case. It is borne out from the documents placed on record that on the date when the Will was executed the properties were not with the family and they had been alienated in favour of defendants 3 & 4. Therefore, the nature of the relief sought in the suit seeking partition cannot be pursued and prosecuted by the applicant, nor can he come on record stating that any right has been devolved upon him based on the said Will. Therefore, there is no need to hold any enquiry in this case to find out whether any right has been devolved upon the applicant. It is not necessary to examine the validity of the Will nor is it necessary to examine the nature of the right under the Will that the applicant has derived.

Similarly, decision in the case of Ganapati Santaram Bhosale and Another Vs. Ramachandra Subbarao Kulkarni and Others, AIR 1985 Kar 143 : (1985) ILR (Kar) 1115 : (1985) 2 KarLJ 104 will have no application to the facts of the present case because in the plaint plaintiff has not even sought the relief of declaration that plaintiff was not bound by any alienation or interest created in favour of defendants 3 & 4. The relief sought is simply for partition and for declaration that plaintiff and defendants were joint owners of the properties. Admittedly the suit properties have been sold before the execution of Will. Hence, the appellant does not get any right to prosecute the suit for the above mentioned reliefs. As adverted to above, no other properties are available for partition except the ones which have been sold in favour of defendants 3 & 4. It is also necessary to notice here that the subject matter of the dispute involved in Ganapati Santaram Bhosale and Another Vs. Ramachandra Subbarao Kulkarni and Others, AIR 1985 Kar 143 : (1985) ILR (Kar) 1115 : (1985) 2 KarLJ 104 was coparcenary properties, where some of the properties were alienated by the coparceners. In such circumstances, in the face of the relief sought seeking declaration that such sales were not binding on the other coparceners, this Court has held that it was not necessary to lay a challenge for the Sale Deeds executed or alienations made. The facts of the said case, therefore, are not applicable to the facts of the present case.

Hence, the Revision Petition is allowed. Impugned orders passed by the Courts below are set aside.