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Judgment
R.S. Ramanathan, J.—Heard both sides
O.S. No. 3 of 2005, on the file of the Principal District Munsif, Madurai was filed by the first respondent herein, for injunction restraining the defendants from in anyway alienating or encumbering the suit property in favour of C. Swaminatha Mudaliar Sons & Co., and for directing the defendants to render a true and proper accounts of the income and expenses for the suit properties.
It is stated in the plaint that the ancestors of the defendants and plaintiff executed a Dharma Inam deed, dated 20.10.1913 and endowed the suit property to the said Dharma Sannithi and the defendants have no right to sell the suit properties and therefore, they must be restrained from selling the suit property to Swaminatha Mudaliar Sons & Co., In the suit, the plaintiff impleaded the 4th defendant, who was also a trustee of the trust. During the pendency of the suit, the 4th defendant died and the 5th defendant was impleaded as his legal heir and the 5th defendant also died and therefore, the 6th defendant was impleaded as his legal heir. After trial, the learned District Munsif dismissed the suit. Aggrieved by the same, the plaintiff filed the appeal in A.S. No. 228 of 2006, on the file of the Principal Sub Court, Madurai and during the pendency of the said appeal, the 3rd respondent in that appeal viz., the 3rd defendant, T.N. Kuppusamy died and therefore, he filed application under Order 22 Rule 4 and 11 CPC to implead the proposed parties, 5th and 6th respondents in the appeal A.S. No. 228 of 2006 as legal heirs of the deceased 3rd respondent stating that the 3rd respondent in A.S. No. 228 of 2006 died issue-less and therefore, his brothers viz., T.N. Ramamurthi and T.N. Krishnamurthi, who are the proposed parties to be added as the legal heirs of the deceased 3rd respondent as the respondents 5 and 6 in the aforesaid appeal. That application was allowed and aggrieved by the same, this civil revision is filed by the defendants 1 and 2 and one of the proposed party T.N. Ramamurthi.
Mr. T.R. Subramanian, the learned Counsel appearing for the revision petitioners submitted that the parties are governed by the terms of the trust and as per the trust deed only the eldest member in the family of the said original trustee are entitled to succeed to the post of trustees and during the pendency of the suit when the 4th defendant died, his son was the eldest member in the line and he was impleaded as 5th defendant and after the death of the 5th defendant, the 6th defendant, T.K. Venkatamurthi, who is the 2nd respondent herein was impleaded as he happened to be the eldest male member in the family of T.R. Ramamurthi, the original 4th defendant in the suit and therefore, as per the trust deed, only the 3rd petitioner, T.N. Ramamurthi alone can be impleaded as trustee and the T.N. Krishnamurthy, the 3rd respondent herein cannot be impleaded.
On the other hand, Mr. J. Bharathan, the learned Counsel appearing for the respondents submitted that while impleading the legal heirs, during the pendency of the proceedings, the court was not deciding their right finally and the proceedings to implead the legal heirs is only summary in nature and the legal heirs of the deceased are impleaded only for the purpose of prosecuting the proceedings and that will not confer any right to parties, who were implied and hence, the order cannot be challenged.
He also relied upon the judgment reported in 1999(2) MLJ 514 in the case of Vasantha Ammal and Ors. v. Narasimha Naidu and (99) LW 839, in the case of Muniappa Nadar (died) and Ors. v. K.V. Doraipandi Nadar and Anr. in support of his contention. He also relied upon the judgment of the Honourable Supreme Court reported in JT 1991 (5) SC 212 in the case of Nawal Kishore Patel v. Indrpati Devi wherein the Honourable the Supreme Court held that the scope of Order 22 Rule 4 and 5 CPC is very narrow and Order 22 Rule 5, provides the procedure for determination the question and that question is limited to find out who represents the estate of the deceased party and the learned Counsel, therefore, contended there is nothing wrong in impleading both parties, who are the legal heirs of the deceased 4th respondent in the suit and in the appeal, and the order of the lower Court does not call for any interference.
I have given my anxious consideration to the submissions made by both the counsels.
No doubt, it is true that while dealing with the application under Order 22 Rule 5 and 7, the Court need not indulge in conducting roving enquiry and when the party, who sought to be impleaded can represent the estate of the deceased, he can be allowed to represent and as laid down by the Honourable Supreme Court it will not confer any right on the party to claim any right in the suit property. However, in this case, admittedly the trust deed provides that only eldest male member is entitled to succeed to the post of trustee and during the pendency of the suit also, only the eldest male members were allowed to be impleaded in the place of the deceased defendants. Though, it was stated that the 4th respondent in the appeal had a wife and children, it was not proved. But it is admitted that the 3rd petitioner in this revision and the 3rd respondent in the revision petition are brothers and in the absence of any children borne to the deceased party in the appeal, the eldest of the two brothers of the deceased alone is entitled to succeed to the post of trustee. Admittedly, the 3rd defendant viz., T.N. Ramamurthi, is the elder person and therefore, as per trust deed he alone is entitled to be impleaded as party representing the estate of the deceased and the 3rd respondent in this revision viz., T.N. Krishnamurthi cannot succeed to the post of trustee, during the life time of T.N. Ramamurthi. The trial Court without appreciating this aspect, proceeded on the basis that both of them are legal representatives of the deceased and therefore, they are entitled to be impleaded and only during trial, it can be decided who is entitled to the trustee post. According to me, when materials are available before the court about entitlement of a person to succeed to any post, the Court has to decide that issue, while determining the issue of legal representatives who is entitled to succeed to that post. Hence, the lower Court has committed an error in allowing the application and permitted the 3rd respondent herein also to be impleaded as legal heir of the deceased 4th respondent in the appeal.
As stated supra, only T.N. Ramamurthi, the 3rd petitioner herein, who is the elder member in the family is entitled to succeed and he alone can be impleaded. Therefore, the order of the lower Court in permitting both the brothers of the deceased 4th respondent in the appal viz., T.N. Ramamurthi and 3rd respondent T.N. Krishnamurthi is modified and the 3rd respondent, T.N. Ramamurthi alone is entitled to succeed to be impleaded as legal heir of the deceased 4th respondent.
In the result, this civil revision petition is allowed. Consequently, Connected Miscellaneous Petition is closed. No costs.