LEGAL HEIR v. LEGAL REPRESENTATIVES

The expressions ‘legal heirs and legal representatives’ are used very loosely and interchangeably without knowing their importance relevance and consequences.  The Civil Procedure Code does not define the expression ‘legal heir’.  Section 2(11) of the Civil Procedure Code (‘Code’ for short) defines the expression ‘legal representative’ as a person who in law represents the estate of a deceased and includes a person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party or suing or sued.

Order XXII  of Code, which deals with death, marriage and insolvency or parties refers    only to legal representatives and not legal heirs.  The term ‘legal heir’ is ordinarily used or referable only when it relates to the law of succession. 

In SANTHA SATHIYANESAN AND D.I. SATHIYANESAN VERSUS R.C. SATHIYANESAN (DIED) , BEULA MOHAN, GHEENA RAVI AND SUB REGISTRAR, MADURAI DISTRICT - 2023 (12) TMI 470 - MADRAS HIGH COURT, the distinction between the two expressions ‘legal heir and legal representative’ have certain bearing on the facts of the case.  Let us see the facts of the case.

Shri Sathiyanesan purchased the suit property on 17.08.1983.  He executed a will in favor of his wife on 11.09.1997.  He left home.  Since he did not return to home even after the lapse of 7 years it was presumed that he was dead.  In view of the said development his wife executed a settlement deed in favor of her son.  In the meantime Sathiyanesan returned home.  He came to know of the settlement deed executed by his wife he cancelled the will on 04.05.2011.  Then he filed a suit before the District Munsiff Court, Madurai challenging the settlement deed.  The wife and son were arrayed as defendants in this suit.  He also executed a fresh will bequeathing the suit property to his two daughters.  Pending the suit the Sathiyanesan expired and the suit was dismissed as abated. 

On coming to know of the litigation, the daughters of the plaintiff, Sathiyanesan, filed two applications seeking to set aside the abatement order and bring themselves on record as the legal representatives of the plaintiffs.  The trial court allowed the applications of the daughters of the deceased. 

Being aggrieved against the orders of District Munsif the revision petitions were filed before Madurai Bench of Madras High Court.  The revision petitioners submitted the following before the High Court-

• The daughters are seeking to implead themselves claiming under the will of their father and therefore, the original cause of action in the suit cannot survive to the benefit of the daughters and they cannot be permitted to be impleaded in the suit.
• Order XXII Rule 9 CPC would not be available to the daughters since the wife and sons of the deceased plaintiff were already parties to the suit.  Therefore there was no question of abatement.
• Even if the cause of action survives, then the defendants would be legal heirs of the plaintiff and the suit cannot be proceeded on the original cause of action on which the suit was filed by the plaintiff.
• The suit was dismissed for default and not as abated and therefore the IAs filed by the daughters was not maintainable.
• The daughters also filed an IA seeking amendment of the plaint and such conduct would clearly demonstrate that the daughters were not in a position to prosecute the suit on the basis of the original cause of action and only to get over the same, they have chosen to take out an amendment application.
• Though they are legal heirs of the deceased, they did  not file the applications on the basis of being legal heirs but chose to approach the court only based on the  alleged will executed by their father, the plaintiff.  In such circumstances the trial court committee serious error in entertaining both the applications of the daughters, the respondents in this case.

The respondents submitted the following before the High Court-

• The wife and son of the deceased played fraud on the plaintiff by approaching the revenue authorities and obtaining a death certificate of the plaintiff knowing full well that he was alive and living with them and if he was not heard of for more than 7 years.
• They brought about the settlement deed drawing from the strength of the Will executed by the plaintiff in favor of his wife.
• The petitioner cannot get any iota of right, title in the subject property, that too, claiming under the Will executed by the plaintiff. 
• The petitioners tried to knock away the property during the life time of the plaintiff.
• The plaintiff came to know the said fact only when he tried to mortgage the said property.
• Therefore the plaintiff, immediately he approached the Court for cancellation of the Will.
• The relationship of the respondents and plaintiff has not been disputed by the petitioners.
• They have filed the revision petition only to prolong the litigation.
• Applications by a legal heir, who is not a party is well maintainable under Order IX Rule  9 of the Code.

The High Court considered the submissions of the parties to the revision petitions.  The only contention of the petitioners is that the original cause of action did not survive with the death of the father, and at any rate Order XXII Rule 9 of the Code could not apply since the wife and son were already and record as parties.  It is further contended that the daughters claimed under the second will executed by their father the validity of which could not be made an issue in this suit.  The only alternative was for the daughters to file a fresh suit on the basis of second will.  The High Court dismissed the revision petitions and affirming the orders of the trial court.

The High Court held-

• On a  conjoint reading  of Section 2(11) and Order XXII Rule 3 of the Code it is clear that the persons claiming to be legal representatives of the deceased plaintiff are also entitled to make an application under Order XXII Rule 9 of the Code.  Here the daughters are claiming only as legal representatives having become entitled to the estate of their father,
• The language employed in Order XXII Rule 9 of the Code entitles even a person claiming to be a legal representative of the deceased, to apply for an order to set aside the abatement of dismissal of the suit and the only requirement was to show sufficient cause as to how the said legal representative was prevented from continuing the suit.
• It cannot be said that the cause of action available for the plaintiff and the cause of action available for respondents 1 and 2 is entirely different when the respondents only stepped into the shoes the suit their father and they are well within their rights to challenge the settlement deed executed by the mother in favor of the brother.  If the revision petitioners challenge the settlement deed executed by the mother in favor of the brother.  If the revision petitioners challenge the truth and genuineness of the Will under which the respondents claim to the legal representatives, it is always open to them to attach the genuineness of the Will in the course of the trial.