Bivin @ Bibin Rajesh vs Gopalan & Ors.

The revision petitioner is the 1st respondent in A.S.No.7 of 2006. The 1st respondent herein/Gopalan filed the suit in O.S.No.274 of 2004 on the file of the District Munsif, Kuzhithurai, against the revision petitioner and one Bhaskaran for declaration and consequential injunction. The suit was dismissed by judgment and decree dated 28.09.2005. Aggrieved by the dismissal of the suit, the plaintiff filed A.S.No.7 of 2006. Pending appeal, the appellant filed I.A.No.179 of 2008 to implead the proposed parties who are respondents 2 to 7 herein and legal representatives of the deceased 2nd respondent in Appeal Suit namely, Bhaskaran and also filed I.A.No.180 of 2008 to record his name as one of the legal representatives of the deceased 2nd respondent in the Appeal Suit. Both the applications were allowed, against which, the present revision petitions have been filed.

Brief facts of the case are that Baskaran Nadar had three brothers namely, Thankappan Nadar, Thankan Nadar and Gopalan Nadar. Baskaran Nadar was a bachelor adopted his brother''s son namely, the revision petitioner S/o. Thanka Nadar on 10.06.1994 and a gift deed was executed by Baskaran Nadar in favour of the revision petitioner on 06.07.1994, through which, the title of the suit property passed to the petitioner and there was mutation of revenue records in his name. Since Gopalan Nadar disturbed the enjoyment of the revision petitioner in the suit property, the revision petitioner filed O.S.No.9 of 2001 against Gopalan who is the 1st respondent herein for declaration of title and recovery of possession of the suit property. The said suit was later re-numbered as O.S.No.272 of 2004 and both the suits namely, O.S.Nos.272/2004 and 274/2004 were tried jointly. The Trial Court decreed 272/2004 and dismissed 274/2004 by common judgment and decree dated 28.09.2005, against which, appeals in A.S.Nos.6 and 7 of 2006 were filed. Pending appeals, Baskaran Nadar died on 04.05.2008. Thereafter, the 1st respondent/Gopalan filed I.A.No. 177/2008 in A.S.No.6/2006 to implead the children of brother''s of Baskaran Nadar as respondents 4 to 9 stating that they are legal representatives of Baskaran Nadar and also filed I.A.No.178/2008 in A.S.No.6/2006 to record his name as legal representatives of Baskaran Nadar. Both the applications were dismissed. Subsequently, the 1st respondent has filed the present interlocutory applications for the same prayer that have been allowed, against which, present revisions have been filed.

Learned counsel for the petitioner made submissions on twofold. Firstly, he contended that in both A.S.Nos.6 and 7 of 2006, parties and issues are one and the same and therefore, when I.A.Nos.177 and 178/2008 in A.S.No.6/2006 filed claiming the same relief were dismissed, the 1st respondent herein is estopped from raising the same plea through I.A.Nos.179 and 180 in A.S.No.7 of 2006. Secondly, it is contended that the revision petitioner is the absolute title holder of the suit property soon after the gift deed executed by Baskaran Nadar in his favour on 06.07.1994 and his title over the suit property was duly recognised by the Trial Court and by the appellate Court in I.A.Nos.177 and 178 of 2008 in A.S.No.6 of 2006, but the claim of the respondent is based on a forged sale deed which was proved as a forged one in the criminal proceedings which went upto the Hon''ble Supreme Court. Therefore, the question of impleading the other legal heirs of Baskaran Nadar does not arise.

In support of the contentions, learned counsel for the petitioner relied on the judgments of the Hon''ble Supreme Court in Chiranjilal Shrilal Goenka vs. Jasjit Singh and others reported in (1993) 2 SCC 507, K.Naina Mohamed vs. A.M.Vasudevan Chettiar reported in (2011) 3 MLJ 379 (SC) and Ram Prakash vs. Smt.Charan Kaur and another reported in AIR 1997 SC 3760.

Learned counsel for the 1st respondent would submit that during the pendency of the Appeal Suits, the 2nd respondent in both the appeals namely, Baskaran Nadar died on 04.05.2008. He was survived by the 1st respondent and his elder brother Thankappan and five other sisters. Hence, the 1st respondent filed I.A.Nos.177 and 178/2008 in A.S.No.6/2006 seeking for impleadment of the proposed parties as legal representatives of the deceased 2nd respondent and to record his name as legal heir of the deceased 2nd respondent. It is further contended that both the applications were dismissed on 31.07.2009 on the ground that the decree passed by the Trial Court was only in favour of the revision petitioner/plaintiff and not in favour of the 2nd respondent. But subsequently, when the 1st respondent filed the impleading petitions, the appellate Court, after perusing the records and considering the fact that the 1st respondent herein filed the suit against the revision petitioner/plaintiff and also the deceased 2nd respondent and therefore, the legal heirs of 2nd respondent ought to be impleaded, has rightly allowed the applications, which does not call for interference by this Court.

Heard the learned counsel for the parties and perused the materials available on record.

The only issue to be decided is whether the learned Judge was right in allowing I.A.Nos.179 and 180 of 2008 in A.S.No.7 of 2006.

Perusal of Records shows that admittedly, plaint schedule property belongs to Baskaran Nadar who is a bachelor and he executed a will in favour of the male children of his three brothers namely, Thankappan Nadar, Thankan Nadar and Gopalan Nadar and when Baskaran Nadar came to know a fraudulent sale deed was executed by his own brother Gopalan Nadar, criminal proceedings were initiated by Baskaran Nadar and Gopalan Nadar was convicted and the matter was taken up to Supreme Court where the conviction was confirmed and he is confined in Central Prison, Palayamkottai. The will which was executed on 19.04.1993 has been revoked on 03.05.1994. Baskaran Nadar adopted his brother Thankan Nadar''s son namely, the present revision petitioner and a gift deed has been executed in favour of him by Baskaran Nadar on 06.07.1994 and as per the gift deed, the revenue records also mutated in his name. Since Gopalan Nadar created disturbance, a suit has been filed for declaration and recovery of possession by Baskaran Nadar and his adopted son, the revision petitioner. Gopalan Nadar, the respondent herein filed a suit for declaration and title and permanent injunction, based on the alleged sale deed which is admittedly proved to be forged and Gopalan Nadar is undergoing imprisonment. The gift deed is not challenged till date. In both the Appeal Suits, the appellants are one and the same.

The issue is whether the title of the properties vests with Bivin @ Bibin Rajesh or Gopalan Nadar. Gopalan Nadar claims title by virtue of sale deed which is proved to be fraudulent and as against the dismissal of the applications in I.A.Nos.177 and 178 of 2008, no appeal has been filed and in the absence of the appeal, the same order is applicable in the present interlocutory applications also. The gift deed has given title to the petitioner as admittedly, the gift deed has not been challenged. The other legal heirs of the brother Thankan Nadar have not filed any application.

The respondents are independently claiming right based on the sale deed by denying title and the filing the present impleading petitions is only to protract the proceedings. Admittedly there is an adoption deed by which the petitioner has become the adopted son and the adoption deed is executed by the deceased Baskaran Nadar himself. The adoption deed is not disputed. The gift deed executed by Baskaran Nadar is also not disputed. The sale deed has been confirmed to be forged and the 1st respondent is undergoing imprisonment.

In my considered opinion, the present petitioner is the absolute title holder of the property as per the gift deed and also he is the adoptive son of the deceased Baskaran Nadar which is also not disputed and he is the legal heir of the properties of Baskaran Nadar. Soon after the gift deed executed by Baskaran Nadar, the revision petitioner derived title over the schedule properties.

As per Section 2(11) of the Civil Procedure Code, "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 is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

So, as an adopted son, the petitioner is the legal heir of the deceased Baskaran Nadar as he alone is the legal representative as held in Chiranjilal Shrilal Goenka vs. Jasjit Singh and others reported in (1993) 2 SCC 507 and K.Naina Mohamed vs. A.M.Vasudevan Chettiar reported in (2011) 3 MLJ 379 (SC) reaffirming the above proposition.

In connected proceedings in A.S.No.6 of 2006, the interlocutory applications with the same prayer were dismissed which has become final and the same plea cannot be raised in A.S.No.7 of 2009 as held in Ram Prakash vs. Smt.Charan Kaur and another reported in AIR 1997 SC 3760 and therefore, from any angle, this Civil Revision Petitions have to be allowed. Hence, I am inclined to interfere with the order passed the learned Judge.

Accordingly, this Civil Revision Petitions are allowed and the impugned orders passed in I.A.Nos.179 and 180 of 2008 in A.S.No.7 of 2006 dated 31.07.2009 on the file of the Subordinate Judge, Kuzhithurai, are set aside. No costs. Consequently, connected miscellaneous petition is closed.