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Judgment
Ratnam, J.—The legal representatives of one Muniappa Nadar (1st appellant) who figured as the plaintiff in O.S. 226 of 1975, District
Munsif''s Court, Madurai Taluk, are appellants 2 to 6 in this second appeal. In that suit, Muniappa Nadar prayed for the relief of declaration of his
exclusive title to the properties set out in the plaint therein and for an injunction restraining the respondents in this second appeal from interfering
with his possession and enjoyment of the suit properties.
The second respondent in this second appeal, Mayakaruppa Nadar, was the father of Muniappa (1st appellant), while the 1st respondent was
related to him as aunt''s son, being the son of one Thenammal, a sister of Mayakaruppa. According to the case of Muniappa, his father,
Mayakaruppa and himself constituted members of a joint Hindu family, which owned the properties scheduled in O.S. 226 of 1975 as well as
others. Mayakaruppa allowed Muniappa to be in possession and enjoyment of all the properties in O.S. 226 of 1975, as he became old and
weak. While so, according to Muniappa, Mayakaruppa executed on 8th April, 1973 a document styled as a settlement deed, in his favour out of
love'' and affection relinquishing his interest in the suit properties, as a result of which, Muniappa claimed that he became exclusively entitled to the
suit properties as full owner. It was also the further case of Muniappa that the first respondent herein induced Mayakaruppa to execute a
settlement deed on 5th February, 1976 in his favour with reference to one item of family properties, which was characterised by Muniappa as a
fraudulent document. With reference to this settlement deed, Muniappa issued a notice on 24th February, 1975, to which the 2nd respondent sent
a reply containing false allegations. The further case of Muniappa was that the 1st respondent was attempting to unlawfully interfere with his
possession and enjoyment of the suit properties on the strength of the settlement deed executed by Mayakaruppa in favour of the 1st respondent.
Claiming that he had raised ragi crops that a police complaint preferred, against the 1st respondent herein for attempted interference with the
possession and enjoyment of the properties was of no avail, and stating that the first respondent was an influential Government servant and was
attempting to trespass into the suit properties in denial of the title of Muniappa, the suit in O.S. 226 of 1975 was instituted by Muniappa praying for
the reliefs set out earlier.
In the written statement filed by the respondents herein, they disputed the claim of Muniappa, that Mayakaruppa and Muniappa constituted
members of an undivided Hindu family. According to them, in December, 1973, there was an oral petition between Mayakaruppa and his son
Muniappa, in which Muniappa was allotted a half share in the family properties, including the properties in O.S. 226 of 1975, and the other half
was allotted to the share of Mayakaruppa. The relinquishment of the interest of Mayakaruppa on 8th April, 1973 in favour of Muniappa was
denied. That document was characterised as forged, fabricated and concocted one having been brought into existence utilising certain blank papers
containing the signature of Mayakaruppa obtained on the pretext of securing agricultural loan. That document was also stated to be void,
inoperative and invalid. The further case of the respondents was that sometime in December, 1973, the relationship between Muniappa and
Mayakaruppa was not cordial and this led to the partition and subsequently, Mayakaruppa was obliged to leave his son Muniappa and settle with
the first respondent herein, who was none other than his sister''s son and that till such time, Muniappa was looking after Mayakaruppa''s properties
as well and Mayakaruppa received the income therefrom. Stating that Muniappa did not have exclusive right to the suit properties, the respondents
pleaded that Mayakaruppa was attached to his sister, Thenammmal and had been entertaining a desire to settle his properties in her favour; but as
she died, on 5th February, 1975, Mayakaruppa executed a settlement deed in favour of the 1st respondent herein with reference to the properties
obtained by him in the partition in December 1973 as well as the other properties. That settlement by Mayakaruppa in favour of the first
respondent herein was claimed to be a voluntary and genuine transaction and that on account of this, Muniappa attempted to interfere with the
properties settled on the first respondent by Mayakaruppa, which led to the lodging of a police complaint by the 1st respondent herein. The
attempted interference with the possession and enjoyment of the properties by the first respondent was denied. The exclusive title put forth by
Muniappa to the suit properties was also disputed. Claiming that the settlement deed executed by Mayakaruppa in favour of the 1st respondent
herein could not be questioned by Muniappa, the respondent contended that Muniappa was not entitled to any of the reliefs prayed for in the suit.
It is necessary at this stage to refer to the institution of another suit in O.S. 91 of 1976 District Munsif''s Court, Madurai taluk, by Mayakaruppa
and the 1st respondent herein. That suit related to one item of property of an extent of 2 acres and 12 cents in S. No. 147/2 in Thenur village. On
the basis of the settlement deed executed by Mayakaruppa in favour of the 1st respondent herein on 5th February, 1975, the respondents sought a
declaration that that property belonged to the second respondent or to the 1st respondent herein and for recovery of possession from Muniappa
and another Irulappa, to whom Muniappa sold the property on 4th July, 1973. That sale was also attacked as a fraudulent one and not for
purposes of necessity. Muniappa and the alienee from him, who figured as defendants in O.S. 91 of 1976, resisted that suit contending that owing
to pressure of creditors, it was decided that that property should be sold for payment of debts and Mayakaruppa agreed to receive 12 bags of
paddy per year for his maintenance and further agreed for the sale of the property and pursuant to that, Muniappa executed a sale in favour of
Irulappa, the 2nd defendant in O.S.91 of 1976 and, therefore, the sale could not be challenged by Mayakaruppa and the 1st respondent herein.
Besides, the settlement deed dated 5th February, 1975 under which the first respondent herein claimed title, was staled-lo be vitiated by undue
influence, coercion and fraud. The oral partition stated to have taken place between Mayakaruppa and Muniappa in December 1973, was also
disputed.
By orders passed in I.A.309 of 1977 the suits O.S. 226 of 1975 and 91 of 1978 were tried together as common questions of fact that arose for
decision in the suits. On a consideration of the oral as well as the documentary evidence, by judgment dated 29th April, 1977 the learned District
Munsif of Madurai taluk, found that the settlement deed dated 8th April, 1973 under which Muniappa claimed exclusive title to the properties in
O.S.226 of 1975 was not true, valid and binding, that there was an oral partition between Mayakaruppan and Muniappa, that the settlement deed
executed by Mayakaruppa in favour of his sister''s son, the first respondent herein, is true valid and binding, that the sale deed executed by
Muniappa in favour of Irulappa is not valid and therefore, Muniappa was not entitled to the relief of declaration and injunction prayed for by him;
but that the first respondent herein is entitled to recover possession of one item of property forming the subject matter of O.S. 91 of 1976, from
Muniappa and Irulappa Pillai. On these conclusions O.S. 226 of 1975 was dismissed, while O.S. 91 of 1976 was decreed. Aggrieved by this,
Muniappa preferred A.S. 443 of 1977 against the dismissal of his suit in O.S. 226 of 1975 and A.S. 375 of 1977 against the decree granted in
O.S. 91 of 1976. By a common judgment, dated 13th December, 1978 the learned Subordinate Judge, Madurai, on a consideration of the
evidence, found that the oral partition between Mayakaruppa and Muniappa was not true and therefore, Mayakaruppa could not have validly
executed the settlement deed on 5th February, 1975 with reference to one item of property in favour of the 1st respondent herein, that the
settlement deed dated 8th April, 1973 stated to have been executed by Mayakaruppa in favour of Muniappa was an invalid and inoperative
document and would not convey any title to the properties dealt with thereunder in favour of Muniappa, that the arrangement with the creditors for
the sale of the property was not true and that therefore Irulappa did not derive any interest to the suit property sold to him under Ex. A1 sale deed.
In view of these conclusions the learned Subordinate Judge dismissed A.S. 443 of 1977 and allowed A.S. 375 of 1977. In so far as the dismissal
of the suit O.S. 91 of 1976 is concerned, that he had become final, as no second appeal had been preferred either by Mayakaruppa of by the first
respondent herein. It is the correctness of the judgment in A.S. 443 of 1977 that is questioned in this second appeal.
During the pendency of the second appeal, Mayakaruppa died and Muniappa as well as the 1st respondent herein put forth rival claims to be
recorded as the legal representative of deceased Mayakaruppa. Muniappa filed C.M.P. 2277 of 1980 for recording him as the legal representative
of the deceased Mayakaruppa, while the 1st respondent herein filed C.M.P. No. 5983 of 1980 praying that he should be recorded as the legal
representative of the deceased Mayakaruppa on the strength of the Will dated 10th January, 1979 stated to have been executed by Mayakaruppa
in his favour. By order dated 19th September 1980, the learned District Munsif, Madurai taluk, was directed to enquire into the rival claims so
made and submit a report. Accordingly, an enquiry was held, during which certain documents were marked as Exs. B10 to B14 and some
witnesses were also examined. By order dated 10th November, 1980 the learned District Munsif concluded that the 1st respondent would be the
legal representative of the deceased Mayakaruppa. Accepting this report, for the purposes of the further proceedings in the second appeal, on 1st
December, 1980 the 1st respondent herein was recorded as the legal representative of Mayakaruppa, and C.M.P. 2277 of 1980 filed by
Muniappa was dismissed, while C.M.P. 5983 of 1980 filed by the first respondent was ordered.
While matters stood thus, Muniappa, himself died and by order dated 126th August, 1986 in C.M.P. 11875 of 1985, appellants 2 to 6 were
brought on record as his legal representatives.
It Is necessary at this stage to refer to the institution of O.S. 369 of 1979, Sub Court, Madurai, by Mayakaruppa on 22nd March, 1979, a
plaint copy in which has been marked as Ex. B13. In that plaint, Mayakaruppa accepted the findings and the adjudication in A.S. 443 of 1977 and
A.S. 375 of 1977 and, prayed for partition and separate possession of half share in the properties detailed in the schedule thereunder which
included the properties forming the subject matter of this second appeal as well as A.S. 375 of 1977 and some other properties. To this suit
Mayar karuppa impleaded his son Muiiappa and the alienees Irulappa Pillai and Ganapathia Pillai as defendants 1 to 3. The plaint, after referring to
the proceedings in O.S. 226 of 1975 and O.S. 91 of 1976 as well as A.S. 443 and 375 of 1977 respectively proceeded to refer to a Will dated
10th January, 1979 executed by Mayakaruppa in favour of the first respondent herein in respect of a half share in the suit properties and stated
that Mayakaruppa was entitled to a half share in the suit properties, as the alienations in favour of defendants 2 and 3 in that suit were not for legal
necessity or for the discharge of family debts. After the death of Mayakaruppa, the 1st respondent herein got himself impleaded as the second
plaintiff in that suit. Similarly, after the death of Muniappa, his legal representatives were brought on record as supplemental defendants in that suit.
Finally, on 3rd August, 1983 that suit was dismissed for default and the 1st respondent herein applied in I.A. 607 of 1983 for a restoration of that
suit and that application was also dismissed on 6th August, 1986. This is clear from the certified copy of the order in I.A. 607 of 1983 in O.S.369
of 1979 produced by the Learned Counsel for the appellants.
In support of this second appeal Learned Counsel for the appellants first contended that in the events that have happened and on the findings of
the Courts below, the appellant would be entitled to the reliefs of declaration and injunction with reference to the properties involved in O.S. 226
of 1975. Referring to the order passed in C.M.P. 5983 of 1980 by which the first respondent herein came to be recorded as the legal
representative of deceased Mayakaruppa, Learned Counsel pointed out that that Cannot clothe the first respondent with any right in the properties
as such, as the adjudication was a summary and limited one for the purpose of carrying on the suit and cannot have the effect of conferring right to
the properties on the first respondent. Reliance in this connection was placed by the Learned Counsel upon the decisions in Daulatram V. Mt.
Meera AIR 1941 Lah. 142, Krishnakumar, minor, represented by mother and guardian Rani Ammal Vs. N. Govardhana Naidu and Another, ,
Sura] Mani v. Kishorilal AIR 1978 H.P. 74, Mohinder Kaur and Another Vs. Piara Singh and Others, . On the other hand, Learned Counsel for
the first respondent submitted that on the recording of the first respondent as the legal representative of the deceased 2nd respondent by order
passed in C.M.P. 5983 of 1980, the 1st respondent became a co-owner with the deceased Muniappa and therefore his legal representative
cannot be heard to seek, relief of declaration or injunction against a co-owner like the 1st respondent.
In order to appreciate the contentions so raised it would be necessary to briefly advert to the effect of the findings recorded by the lower
appellate Court. The division stated to have taken place between Mayakaruppa and Muniappa in December, 1973 was not accepted. That would
mean that Muniappa and his father Mayakaruppa continued to remain as members of a joint Hindu family. Indeed, this was also the stand taken by
Mayakaruppa himself in the course of the suit in O.S. 369 of 1979, Sub Court, Madurai, referred to already. The settlement deeds under which
Muniappa as well as the 1st respondent herein claimed title to the properties dealt with thereunder had been declared to be of no effect. Therefore,
neither Muniappa nor the 1st respondent could claim any right to the properties, on the strength of Ex. A1 dated 8th April, 1979 or Ex. B8 dated
5th February, 1975. Muniappa admittedly was in possession of the suit properties in O.S. 226 of 1975. Likewise, he was also in possession of the
properties forming the subject matter of the suit O.S. 91 of 1976, in which the relief of recovery OJ possession of the property was prayed or as
against Muniappa. That Muniappa was in possession of the properties v was also not seriously disputed by the counsel for the 1st respondent.
While Muniappa was in possession of the properties as a member of the family, the 1st respondent cannot lay any such claim. The settlement deed
in favour of the 1st respondent under Ex. B8 having been held not to clothe him with any right to the properties dealt with thereunder, his right, if
any could only be on the basis of the Will, Ex. B12, stated to have been executed by Mayakaruppa in his favour on 10th January, 1979. No
doubt, with reference to that Will, there was an enquiry directed by this Court to ascertain who among the rival claimants could be recorded as the
legal representative of deceased Mayakaruppa. However, that enquiry, and adjudication was under Order 22, Rule 5, C.P.C., and was only for
the limited purpose of enabling the legal representative to carry on the suit so that the adjudication may be binding on the estate ana1 cannot have
the effect of conferring rights on the properties in favour of the legatee under the Will and in terms of the Will. The enquiry under Order 22, Rule 5,
C.P.C., though held after examination of the witnesses, is nevertheless summary in character and is not an appealable order. Further, the question
whether a person can be permitted to be brought on record as the legal representative of a deceased person for the purpose of continuing the
proceedings already begun, is a matter collateral to the suit and any adjudication arrived at in the course of such an enquiry cannot operate as res
judicata. In S. Eranhi Pakkran Vs. M.K. Pathumma and Others, , it has been held that the question Whether a person should be admitted as the
legal representative of the plaintiff to continue a suit cannot be regarded as a question arising in the suit itself being only a matter-collateral to the
suit and any decision arrived at cannot operate as res judicata, when a question arises in some other suit as to succession to the deceased. In Ram
Kalap Vs. Banshi Dhar and Others, , the same view has been taken. Daulatram v. Mt. Meera AIR 1941 Lah. 142, points out that an order passed
under Order 22; Rule 5, C.P.C., not being open to an appeal, if it were to be treated as finally determining the rights of any of the claimants to the
property in suit, would adversely affect the interest of a disappointed claimant and therefore, it should be limited to the purpose of carrying on the
suit and cannot have the effect of conferring any right to heirship or to property. Natarajan, J., in Krishnakumar, minor, represented by mother and
guardian Rani Ammal Vs. N. Govardhana Naidu and Another, , examining the nature and scope of the enquiry under Order 22, Rule 5, C.P.C.,
pointed out that though under Order 22, Rule 5, C.P.C., a duty is cast on the Court to determine who the legal representative of a deceased party
is, there need not be a comprehensive and exhaustive enquiry, for the simple reason that the decision has its inherent limitations and the recognition
of a rival contender as the legal? representative of the deceased party is only for facilitating the early disposal of the action and'' the recognition of
such a right in a party to a proceeding with not confer right on the recognised representative in the estate or property of the deceased nor will such
a finding operate as res judicata in a subsequent proceeding. The absence of the provision of an appeal from an order passed under Order 22,
Rule 5, C.P.C., was also relied upon to support the conclusion that the order cannot be characterised as one finally decided by a Court. To the
similar effect is the decision in Koneridoss Vs. N. Subbiah Naidu and Others, . In Suraj Mani and Another Vs. Kishori Lal, , the order bringing on
record a person on the strength of a will was challenged on the ground that a trespasser had been brought on record. While considering this
objection, R.S. Pathak, C.J., pointed out that the substitution of a deceased person by his legal representative does not make such legal
representative heir to the property of the deceased and a finding given only for the purpose of further prosecution of the suit cannot be construed
as a decision on merits which can operate as res judicata. Full Bench of the High Court of Punjab and Haryana has laid down in Mohinder Kaur
and Another Vs. Piara Singh and Others, , that a decision under Order 22, Rule 5, C.P.C., is intended only to facilitate the orderly conduct of a
proceeding, and to avoid delay in the final decision till persons claiming to be representatives of the deceased party get the question of succession
settled through a different suit and such a decision does not put an end to the litigation, nor would it determine any of the issues in controversy. It
was also further pointed out that the proceedings are of a very summary nature and the grant of an opportunity to lead some sort of evidence
would not in any manner change the nature of the proceedings. Viewed in the light of the aforesaid principle, A follows that the recording of the 1st
respondent as the legal representative of the deceased Mayakaruppa, the 2nd respondent in the second appeal, was only for the purpose of
enabling the further conduct of the second appeal representing the estate of deceased Mayakaruppa and that cannot however be construed as
conferring any right to property on the 1st respondent, as what was considered and decided in the course of the enquiry under Order 22, Rule
P.C., was only the representative capacity of the 1st respondent and not his rights to the property. It is thus clear that the adjudication on the basis
of which C.M.P. 983 of 1980 was ordered, cannot be pressed into service by the 1st respondent to contend that he is a co-owner along with the
appellants and therefore, no declaration or injunction can be granted in favour of the appellants. As pointed out earlier, deceased Muniappa was in
possession of the suit properties not only as the owner of an undivided family half share in the suit properties, but also as a member of the family to
which the properties belonged. The 1st respondent herein was a stranger to the family, though he was related to Mayakaruppa as his sister''s son.
Nevertheless, the 1st respondent cannot claim to be a co-owner of, the properties in question till such time as he establishes his rights under law
independently. The contention of the Learned Counsel for the appellants that on the findings, the relief of declaration and injunction should have
been granted, is well founded and has to be accepted.
Learned Counsel for the appellants next contended by reason of the decision in A.S. 375 of 1977 having become final, in so far as the 1st
respondent is concerned, he is precluded from putting forth any right whatever to the suit properties by the principle of res judicata. Reference in
this connection was made to certain decisions as well. On the other hand, Learned Counsel for the 1st respondent submitted that the two suits
related to different items of properties dealt with under two different documents and therefore, there is no question of the applicability of the
principle of res judicata at all.
The 1st respondent claimed title to the only item of property forming the subject matter of O.S. 91 of 1976 on the basis of a prior oral partition
in the family between Mayakaruppa and Muniappa and allotment to Mayakaruppa, and the settlement of that property by Mayakaruppa in his
favour under Ex. B8 dated 5th February 1975. While considering such a claim, the Court below concluded that the case of partition set up had not
been made out. It would mean that the properties continued to belong to the undivided family of Mayakaruppa and his son Muniappa. The effect
of that finding is that Mayakaruppa and Muniappa continued to be members of a joint family, which owned the properties forming the subject
matter of O.S. 226 of 1975 and O.S. 91 of 1976. To that extent, the 1st respondent would be precluded by the principle1 of res judicata from
contending that there was no joint family consisting of Mayakaruppa and his son Muniappa or that the joint family did not own the properties
forming the subject matter of O.S. 226 of 1975 and O.S. 91 of 1976.
Lastly, the Learned Counsel for the appellants submitted that the 1st respondent is a stranger to the family of Mayakaruppa, though he may be
related as the sister''s son of Mayakaruppa and, that his remedy to work out his rights, if any, would only by way of a suit for partition on the
strength of the will Ex. B12 dated 10th January, 1979, stated to have been exhausted to Mayakaruppa in his favour. Reference in this connection
was made to decided cases, where the remedies available to the purchaser of an undivided share of the family properties have been indicated.
Though Learned Counsel for the 1st respondent made an attempt to dispute this, the position in law appears to be well settled. As matters stand
now, even Mayakaruppa had accepted that he was entitled only to an undivided half share in the properties forming the subject matter of O.S. 226
of 1975 in his plaint in O.S. 369 of 1979 Sub Court, Madurai, Ex. B13. No doubt, even in that plaint Ex. B13 he had referred to the execution of
a will dated 10th January, 1979 in favour of the 1st respondent herein. However, on the strength of that will stated to have been executed by
Mayakaruppa in favour of the 1st respondent herein, he cannot now claim or assert right to the half share in the properties stated to have been
bequeathed under the terms of the Will. Despite the adjudication for the purpose of Order 22, R.5, C.P.C., on the basis of the will, Ex. B12, the
1st respondent has to work out his rights. Presumably, with a view to do so, the 1st respondent had also come on record as the 2nd plaintiff in
O.S. 369 of 1977, Sub Court, Madurai, though that suit was subsequently allowed to be dismissed for default and the application for restoration
of that suit was also dismissed. In the situation, the 1st respondent cannot merely on the strength of the will Ex. B12 claim that he is entitled to any
of the properties forming the subject matter of O.S. 226 of 1975, and attempt to interfere with the admitted possession and enjoyment of those
properties by Muniappa and after his death, by his heirs. There is no dispute that the appellants would be entitled to a half share in the properties
forming the subject matter of the suit. That this is so had been accepted even by Munikaruppa and the 1st respondent cannot in any manner
dispute this. If at all, the 1st respondent can raise some dispute only regarding the other half share of Mayakaruppa with reference to which he had
impleaded himself as the second plaintiff in O.S. 369 of 1979, Sub Court, Madurai, which was also later dismissed for default. Therefore, the
position as it obtains today is that the appellants are entitled to the suit properties and are in possession of the entirety of the suit properties. Their
possession and enjoyment of the same cannot be interfered with by the 1st respondent till such time, as he establishes his rights, if any, to the suit
properties on the basis of the, will dated 10th January, 1979, stated to have been executed by Mayakaruppa in his favour. As pointed out already,
even that attempt had failed by the dismissal of O.S. 369 of 1979, Sub-Court, Madurai, on 3rd August, 1983 and the dismissal of I.A. 607 of
1983 for restoration of the suit on 6th August, 1983. Under those circumstances, the appellants would be entitled to a declaration of their right to
the suit properties as well as an injunction restraining the 1st respondent from interfering with their possession and enjoyment of the same, subject
to the 1st respondent establishing his rights, if any to one half of the suit properties. Consequently, the judgment and decree of the Court below are
set aside and the second appeal is allowed and there will be a decree in O.S. 226 of 1975 for declaration and injunction with costs throughout on
the lines indicated earlier.