Margabandhu Chettiar vs Pattammal and another

Mohan, J.—The short facts relating to the appeal and the Civil Revision Petition are as follows:

One Swarnalinga Chettiar died on 9th February, 1958 leaving behind two widows, Rukmani and Pattammal Rukmani filed O.S 47 of 1960 on the

file of the court of the Subordinate Judge of Chingleput for recovery of certain sums due from Pattammal, the junior widow and the adopted son by

name Ranganathan. Pattammal filed O.S. No. 86 of 1960 on the file of the court of the Subordinate Judge, Chingleput, (originally filed before the

District Munsif Court, Conjeevaram, but later on transferred), for partition of her 1/4th share in the properties left by her husband. This suit was

directed against the adopted son and the senior widow Rukmani. Both these matters were jointly tried and ultimately O.S. 47 of 1960 was

dismissed and thereafter it was not further prosecuted. Therefore, it had become final. O.S. 86 of 1960 ended in a decree and an appeal preferred

against the same also suffered a similar fate. Thereupon S.A. No. 1449 of 1963 was preferred to this court, and Ramanujam, J. allowed the

appeal and remanded the second appeal for fresh disposal to the lower appellate court. Rukmani died when the matter was pending before the

District Court, Chingleput. This being so, an execution petition was taken out for recovery of costs in O.S. No. 47 of 1960 wherein 1/4th share of

Rukmani was attached in E.P. 37 of 1965, and E.A. 523 of 1965, was filed by the present appellant in the second appeal who claimed to be the

legal representative by virtue of a settlement executed by Rukmani in his favour as early as on 12th January, 1959. In that application he prayed for

the relief of attachment. This E.A. was dismissed by an order of the learned Judge on 15th March, 1966. Thereupon, after remand, inasmuch as

Rukmani died as noted above, he filed I.A. 515 of 1970 under O 22, Rr.3 and 11, C.P.C. to implead himself as the legal representative of

Rukmani Ammal and seeking to bring himself on record as the second appellant. The learned District Judge held that there was absolutely lack of

bona fides on the part of the present appellant, that he did not even choose to mention even the existence of a settlement deed executed by

Rukmani Ammal in the earlier stages, that the appellant not merely did stand by to watch Rukmani Ammal fight out both the cases, but had actively

supported her and got into the witness box to swear in support of her case. The learned Judge held that in these circumstances the settlement deed

in favour of Margabandhu Chettiar had been created with some ulterior motive and dismissed the application. The appeal itself was dismissed

observing as follows:

L.R. application dismissed. Appeal abates. The second appeal is directed against the dismissal of the appeal A.S. 290 of 1964 and the civil

revision petition is directed against the dismissal of I.A. 515 of 1970.

Mr. S.A. Seshadri Aiyangar, learned counsel for the appellant strenuously contends before me that the reasoning of the lower appellate court is

thoroughly wrong and could not be sustained, since it is imperative on the part of the court to have taken evidence to decide whether the appellant

herein was the legal representative or not, and the application and the appeal ought not to have been dismissed in this summary fashion. In support

of his contention, he relied on the decision in Nagappa v. Karuppiah 1975 Mad. 456, Mr. V. Krishnan, learned counsel for the respondents states

that having regard to the conduct of the appellant he should not be allowed to get impleaded as the legal representative at this belated stage. On a

careful consideration of the respective submissions of the counsel, I am of the view that the appellant is entitled to succeed since there was no

necessity at all at any stage for the appellant to get himself impleaded as the legal representative, nor can it be said that merely because he stood by

and watched the proceedings or even actively supported Rukmani Ammal, the settlor, his right to be added as the legal representative would in any

way be defeated. Certainly, the first respondent in the second appeal, Pattammal, took a risk in impleading only Rukmani Ammal. Ultimately, if the

present appellant had not chosen to get himself impleaded, it would have been easy for him to contend that the judgment is not binding on him. But

on the contrary, here is a person who is willing and eager to come forward and get himself impleaded as a legal representative on the strength of

the settlement deed which makes the work of the first respondent easy. From this point of view, the motive with regard to the execution of the

settlement is wholly irrelevant. In addition to this, I find that the reliance placed on the decision in Nagappa v. Karuppiah 1975 Mad. 456 it fully

justified wherein it has been held as follows�

Under Order 22, rule 5 where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased

defendant, such question shall be determined by the court, and for that purpose, the court must take evidence and then decide for itself, who has

got the better claim, if the court fails to follow this procedure, the High Court will interfere in revision.

Consequently, I direct that the appellant be impleaded as legal representative of the deceased Rukmani Ammal and he be brought on record as

such. The second appeal is allowed and the matter is remanded for fresh hearing on merits by the learned District Judge of Chingleput. In view of

the above, the civil revision petition is also allowed. In view of the fact that the matter is pending for a long time, I direct the District Judge of

Chingleput to dispose of Appeal No. 290 of 1964 on or before 30th April 1975. There will be no order as to costs either in the second appeal or

in the civil revision petition. The court fee paid by the appellant on the memorandum of grounds in the second appeal will be refunded to him. No

leave.