Sivagurunathan and Another vs Balasubramanian

The revision arises out of a suit for partition. Suffice to state that one Swaminatha Pillai, who continued the suit at the relevant point of time and

whose share was countenanced as 2/5th of the estate died after the preliminary decree. The petitioners-defendants 3 and 4 are two of the sons of

the said Swaminatha Pillai. The respondent herein, who is the second defendant is the third son of Swaminatha Pillai. The respondent put forth a

registered will said to have been executed by Swaminatha Pillai on 26-11-1983 to annex to his share the 2/5th share of Swaminatha Pillai and to

be recorded as his legal representative. In contrast, the petitioners would rely upon an unregistered will dated 31-12-1983, said to have been

executed by Swaminatha Pillai to have that share also for themselves. The Court below has disposed of the application taken out by the

respondent to bring himself on record as the legal representative of Swaminatha Pillai countenancing the claims of the respondent. This revision is

directed against the order passed by the court below. Mr. U. Thiagarajan, learned counsel for the petitioners would submit that the court below

did not eschew the signatures found in the will put forward by the petitioners as not genuine but without adverting to the oral evidence placed

through R.Ws. 2 to 4, has come to the conclusion that Swaminatha Pillai would not have executed the said will voluntarily. Learned counsel took

me through the relevant discussion and I find that the court below has not at all adverted to the evidence of R.Ws. 2 to 4. However, Mr. B.

Kumar, learned counsel for the respondent would submit that an enquiry into the question as to who should be brought on record as the legal

representative of a deceased party to the litigation is of a summary nature and an order thereon decides only a matter which is collateral and

incidental to the decision of the suit and such a decision would not operate as res judicata as between the parties and the aggrieved party can seek

independent proceedings to establish his rights. I am unable to accept this line of thinking by the learned counsel for the respondent on the facts of

this case for the simple reason, here the claimants are sharers to the estate and the suit is one for partition and the question as to who is entitled to

what share must be decided giving a quietus to the controversy in this suit itself and it is not possible to relegate the controversy for a full-fledged

decision to some other proceeding as the learned counsel for the respondent would suggest. It is true that the mere admission of a person as a legal

representative of a deceased party for the purposes of further prosecution of the suit will not conclusively establish his right as such if that legal and

factual question is one of the main or vital issues in the suit itself and the decision in the application to bring on record the legal representatives is

only collateral to the decision in the suit. In such a case, the controversy has got to be kept open for a decision in the suit itself. The Court itself can

make it clear that there is no conclusiveness about the order bringing on record the legal representative and relegating the controversy for a

decision in the main suit itself. Here, as stated above, the suit is one for partition. The question as to who should be the legal representative of a

sharer and what share the parties would be entitled to are all main and vital issues in the suit itself. The preliminary decree has been passed. The

stage for passing the final decree has come. It is not possible to keep alive and relegate the controversy to a later stage or to an independent

proceeding. The controversy has got to be solved in the present application only and that has got to be done conclusively and finally and not

collaterally and incidentally. Hence, the decision on the question is of vital and prime importance and must be decided with care and caution,

assessing all the materials exposed in this case. Here we find that the court below has not discussed the evidence placed by the petitioners on the

question through R.Ws. 2 to 4. What would be the result of such a discussion, there is no need to dwell upon the same at this juncture. The court

below is only bound to advert to, assess the said evidence and then decide the points concerned. Hence, I have to hold that the court below failed

to exercise the jurisdiction vested in it and there is every warrant for interference in revision. Accordingly, this revision is allowed and the matter is

remitted to the file of the Court below for fresh consideration and decision, after adverting to the evidence placed by the parties on all the

questions. I make no order as to costs. The suit of the year 1974 and certainly, there is no warrant to keep the matter lying over unduly. Hence,

the court below is directed to take up and dispose of the matter within period of three months from the date of receipt of a copy of this order.