2023 (12) TMI 470 - HC - Indian Laws

Daughters allowed as legal representatives under Order XXII Rule 9 CPC to continue deceased father's settlement deed challenge

The HC dismissed civil revision petitions challenging a trial court order allowing daughters to be impleaded as legal representatives of their deceased ... Order XXII Rule 9 C.P.C. - setting aside abatement or dismissal by legal representative - legal representative (Section 2(11) C.P.C.) - right to step into shoes of deceased plaintiff - survival of cause of action - effect of death of plaintiff on continuance of suit - Order XXII Rule 5 C.P.C. - determination of question as to legal representative - maintenance of application to implead subsequent beneficiaries under alleged WillOrder XXII Rule 9 C.P.C. - setting aside abatement or dismissal by legal representative - legal representative (Section 2(11) C.P.C.) - right to step into shoes of deceased plaintiff - Respondents 1 and 2 (daughters) entitled to apply under Order XXII Rule 9 C.P.C. as persons claiming to be legal representatives of the deceased plaintiff and to be impleaded in his place. - HELD THAT: - The Court examined the distinction between 'legal heirs' and 'legal representative' and held that Order XXII deals with legal representatives as defined in Section 2(11) C.P.C. A person claiming to be a legal representative may apply under Order XXII Rule 9(2) to set aside abatement or dismissal by showing sufficient cause for being prevented from continuing the suit. The daughters, admittedly the children of the deceased plaintiff, claimed to be legal representatives entitled to the estate and sought substitution to prosecute the suit. The Court held that the procedure does not require prior proof of the Will at the stage of the application; correctness or genuineness of the Will can be contested and determined in trial, and Order XXII Rule 5 provides a mechanism to determine whether a person is a legal representative. The Court further observed that Order XXII Rule 9(1) bars fresh suit on the same cause of action, favouring substitution to avoid multiplicity of litigation, and that the defendants' technical objections would not defeat substantive justice. [Paras 16, 17, 18, 19]Applications by the daughters under Order XXII Rule 9 C.P.C. were maintainable and they could be impleaded as plaintiffs in place of the deceased.Survival of cause of action - effect of death of plaintiff on continuance of suit - maintenance of application to implead subsequent beneficiaries under alleged Will - Death of the original plaintiff did not extinguish the cause of action so as to bar the daughters from stepping into his shoes and prosecuting the suit challenging the settlement deed. - HELD THAT: - The Court considered authorities and the factual matrix: the suit challenged a settlement deed said to have been effected by fraud based on a Will that had not taken effect during the plaintiff's lifetime. The daughters sought substitution after the plaintiff executed a subsequent Will in their favour and after his death. The Court distinguished cases where the right sued upon is strictly personal to the deceased and does not survive; here the suit seeks to challenge the settlement deed affecting the property, and the daughters, as claimed legal representatives, seek to continue the same cause of action. The Court found that allowing substitution would avoid multiplicity of proceedings and that objections to the genuineness of the Will or to the entitlement can be raised and adjudicated in trial; therefore the cause of action survives for the purpose of continuation by legal representatives. [Paras 15, 18, 19, 20, 21]The cause of action survives such that the daughters could be substituted and continue the suit; the trial Court did not err in allowing the applications.Final Conclusion: The trial Court's order allowing I.A.Nos.894 and 895 of 2015 to implead the daughters as plaintiffs was upheld; both civil revision petitions are dismissed. The trial Court is directed to dispose of the suit expeditiously, by 30.04.2024; no order as to costs. Issues Involved:1. Whether the daughters of the deceased plaintiff can be impleaded as plaintiffs in the suit.2. Whether the cause of action survives the death of the original plaintiff.3. The validity of the Will executed by the deceased plaintiff.4. Whether the applications filed by the daughters to set aside the abatement and restore the suit are maintainable.Summary:Issue 1: Impleading Daughters as PlaintiffsThe core issue is whether the daughters of the deceased plaintiff can be impleaded as plaintiffs in the suit. The trial court allowed the applications filed by the daughters under Order XXII Rule 3 read with Section 151 C.P.C. The respondents argued that as legatees under the Will dated 20.11.2012, they are entitled to be substituted as plaintiffs. The court held that the daughters, as legal representatives, are entitled to step into the shoes of the deceased plaintiff and continue the suit.Issue 2: Survival of Cause of ActionThe petitioners contended that the cause of action did not survive the death of the plaintiff and that the daughters cannot prosecute the suit. The court found that the cause of action, which revolves around the challenge to the settlement deed executed by the first defendant in favor of the second defendant, survives. The daughters, as legal representatives, can continue the suit to challenge the settlement deed.Issue 3: Validity of the WillThe petitioners argued that the genuineness of the Will executed by the deceased plaintiff cannot be gone into in the present suit. The court held that the daughters are claiming under the Will and are entitled to maintain the application under Order XXII Rule 9 C.P.C. The genuineness of the Will can be challenged during the trial.Issue 4: Maintainability of ApplicationsThe petitioners contended that the applications filed by the daughters were not maintainable as the suit was dismissed for default and not as abated. The court clarified that the daughters, as legal representatives, are entitled to apply for an order to set aside the abatement or dismissal of the suit under Order XXII Rule 9 C.P.C. The court emphasized that procedural rules should aid in the delivery of justice and not defeat it.Conclusion:The court dismissed the civil revision petitions, finding no infirmity in the trial court's order allowing the applications to implead the daughters as plaintiffs and set aside the abatement. The court directed the trial court to dispose of the suit expeditiously by 30.04.2024.