KALLIANI AMMA Vs. MADHAVI AMMA
HIGH COURT OF KERALA
Referred Judgements :-
KONDUVETTY THAKKIYAKKAL SHAIK ANTAB SHAHA VALIYA THANGAL V. MOYAN
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(1.)The first plaintiff instituted the suit, O. S. 151 of 1954 out of which this appeal arises, for setting aside the kanam document Ext. A 1 dated the 4th May, 1954, as not binding on him. Pending the suit he died and his children were impleaded as legal representatives and as additional plaintiffs 2 & 3. The legatees under a registered Will Ext. B24 left by him were also impleaded as his legal representatives and as defendants 2 to 9. In their written statement, they reiterated the case of the first plaintiff and prayed that a decree setting aside the kanam may be granted to them and not to plaintiffs 2 and 3 whose right to represent the estate was contested by them. Afterwards an additional issue was raised as to the genuineness and validity of Ext. B24 relied on by defendants 2 to 9.
(2.)The suit was tried jointly with O. S. 105 of 1954, which was instituted by the kanam tenant against the first plaintiff to recover possession of the properties. In that suit too, on the death of the plaintiff in O. S. 151 of 1954 who was the first defendant therein, the two sets of legal representatives were impleaded as additional defendants, and a similar issue concerning Ext. B24 was raised. The two suits were tried and disposed of by a common judgment by the court of first instance. In O. S. 151 of 1954 with which alone this second appeal is concerned, the kanam was held to be valid and as not liable to attack; that court also found Ext. B24 to be true and valid. In the result it gave a decree in the following terms:
"That the suit be and hereby is dismissed. That defendants 2 to 9 do bear their own costs. And that defendants 2 to 9, as legatees of deceased 1st plaintiff from out of the assets of deceased 1st plaintiff in their hands and plaintiffs 2 and 3, do pay 1st defendant a sum of Rs. 26-0-0 being the costs of suit with interest thereon at the rate of 5 1/2 per cent per annum from this date till payment."
Plaintiffs 2 and 3 preferred an appeal, which was heard and disposed of by the Subordinate Judge. The question for consideration in the appeal was formulated thus:
''Whether the Will executed by the 1st plaintiff in favour of defendants 2 to 9 is valid and whether defendants 2 to 9 can claim any right as legatees under the abovesaid Will."
This was the only question considered and decided in the appeal. Apparently the decree dismissing the suit to set aside the kanam was not challenged. The appeal was allowed by setting aside Ext. B24 and by declaring plaintiffs 2 and 3 to be the heirs of the first plaintiff.
(3.)In second appeal by defendants 2 to 9, it was contended that the appeal before the Subordinate Judge by plaintiffs 2 and 3, that they are the only legal representatives of the first plaintiff was incompetent. The Rule in the Civil Procedure Code applicable in such cases is O.22 R.5 which enacts that:
"Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court."
Cases have held, that such a question must be decided when it is raised and before proceeding further with the suit. Kunchikavu v. Kesavan Nayar ( 1959 KLT 659 ) is one of such cases. The procedure adopted by the first court in postponing the decision of the dispute till the decision of the suit was not in strict accord with the Rule; yet for that reason, it cannot be said that it is no order under O.22 R.5. In my view, so long as the decision of this dispute was not part of the decree in this case, it can be deemed to be only an order under O.22 R.5 or a finding in the final judgment. It was contended, that viewed as an order under O.22 R.5, its correctness could be canvassed under S.105 CPC. in the appeal from the decree in the suit. There does appear no doubt, almost at the fag end of the appeal memorandum, a ground that the decree refusing to set aside the kanam was erroneous. Technically speaking, the appeal may have to be treated as one against the decree dismissing the suit against the kanam tenant though the object in preferring the appeal was patently to set aside the finding as regards Ext. B24. Though plaintiffs 2 & 3 succeeded in setting aside Ext. B24 they were unconcerned about the kanam. Treating the appeal as aforesaid, still the decision as to the right to represent the estate is one which cannot affect "the decision of the case" within the meaning of S.105 CPC. The dispute between the rival representatives is but an interlude, which does not affect the merits of the case against the defendant against whom relief is sought. The preponderance of authority is in favour of this view; it has been so held in Maivarajan Bibi v. Abdul Shek (AIR 1933 Calcutta 498) and Balabai v. Ganesh Shankar Pandit (ILR 27 Bombay 162). In the Madras High Court also the decision in C. Subramania Iyer v. Muthu Vaithilinga Mudaliar ( AIR 1919 Mad. 971 ) is in point, though the earlier decision of that court in Konduvetty Thakkiyakkal Shaik Antab Shaha Valiya Thangal v. Moyan ( AIR 1918 Mad. 1055 ) may seem to strike a different note. Phillips, J. was a party to both. The earlier Madras case was an appeal against the order of remand by the appellate court for a decision as to who was the legal representative; that question had not been decided by the court of first instance and may have been necessary to be decided to pass a decree in the suit. Viewed as an order under O.22 R.5, its propriety was not open to challenge in the appeal from the decree.
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