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Judgment
K.L. Manjunath, J.—The petitioner is questioning the legality and correctness of the order passed by the City Civil Judge, Bangalore in O.S. No. 2060/2008 on LA. filed under Order 22 Rule 3 CPC dt. 16.11.2011. The suit was instituted by one Nagarathnamma challenging the Gift deed said to have been executed by her in favour of Smt. Nirmala who is defendant-1. During her life time, 6th defendant Venkatachala was transposed as plaintiff No. 2. Venkatachala claims to be an adopted son of plaintiff- Nagarathnamma. The plaintiff-Nagarathnamma died. After her death, the present petitioner made an application to come on record as her LR based on the will said to have been executed by her on 21.4.1999. The said application was registered by the co-plaintiff Venkatachala and defendant-5 Shymala. Evidence was let in on the said application. The application came to be rejected. Challenging the legality and correctness of the same, the present petition is filed.
I have heard Mr. Sreevastha, learned senior counsel appearing for the petitioner and Mr. Shivaprakash, who is appearing for the respondent-1 and Mr. Ganesh, who is representing respondent-3.
The main ground of attack by the learned senior counsel for the petitioner is the Trial court while considering the application under Order 22 Rule 3 has given a finding on Ex. P4, a registered will executed by Nagarathnamma, which according to him is bad in law. According to him, when Nagarathnamma has executed a registered will bequeathing the plaint schedule property in his favour, he is entitled to come on record as LR as a legatee under the will and what was required to be considered while considering an application under order 22 Rule 3 CPC is whether cause of action survives on the petitioner to come on record as LR of deceased Nagarathnamma.
Mr. Shivaprakash, learned counsel appearing for the 1st respondent submits the petitioner is none other than the son of Nirmala against whom Nagarathnamma had filed a suit. According to him, petitioner could not have been come on record as a legatee because respondent-1 is the adopted son of Nagarathnamma who is already on record. He further submits that the petitioner was required to establish the will in order to claim the property by filing separate suit and if the petitioner is allowed to come on record to contest the case which is filed against his mother, at any moment he may withdraw the suit or he may request the court to dismiss the suit, in which event the 1st respondent''s right as adopted son of Nagarathnamma can be affected.
Sri. Sreevastha, the learned senior counsel for the petitioner by way of reply contends that in view of the categorical finding of the Trial Court holding that Ex. P4 - will is not proved by the petitioner, the rights of the petitioner is closed once for all. Therefore, he requests the court to allow the petition.
Having heard the counsel for the parties, this court is of the opinion whenever an application is filed under Order 22 Rule 3 CPC, the Trial Court was required to consider the case of the parties on the question whether an application filed by the applicant to come on record is required to be considered for the purpose of disposal of the suit. The Trial Court was not justified in giving a finding on the validity of the will because the finding on the question of will has to be considered by considering the pleadings of both the parties and framing of issues and which is beyond the scope and provision of Order 22 Rule 3 CPC.
As rightly pointed out by Mr. Shivaprakash that if the petitioner is having any claim, he being the profounder of the will, he has to establish his case by filing a separate suit. But as rightly pointed out by Mr. Sreevastha, the learned senior counsel for the petitioner, the findings of the Trial Court while passing the order under Rule 22 Rule 3 CPC could come in the way of the petitioner to file a separate suit as a legatee.
In the circumstances, this court is of the opinion the order of the Trial Court has to be modified holding that the petitioner cannot be permitted to come on record as LR of Nagarathnamma and if at all the plaintiff is having any right, he has to file a separate suit to establish the will or prove the will and claim the property. Granting such liberty, the petition is dismissed. It is made clear any observation made by the Trial Court while considering the application under Order 22 Rule 3 CPC touching the merits of the Will has to be eschewed and the same shall not come in the way of the petitioner to file a separate suit.