KONERIDOSS Vs. N. SUBBIAH NAIDU

JUDGEMENT

(1.) THIS revision petition is against the order in I. A. No. 282 of 1973 in O.S. No 36, of 1963, on the file of the District Munsif, Periyakulam, which is an application under Order 22, Rule 5, Civil P. C. One Seethammal filed the above suit for partition. There was a preliminary decree and a second appeal (S. A. No. 935 of 1969) against the preliminary decree was pending in this Court. The said Seethammal died, Koneridoss, the present revision petitioner who is the husband's sister's son of the abovesaid Seethammal first got himself impleaded as the legal representative of Seethammal in the second appeal (S. A. 935 of 1969). He had been so impleaded as the 7th respondent in that second appeal. At a later stage, Subbiah Naidu the contesting respondent herein filed a petition before this Court in the above second appeal for getting himself impleaded as the legal representative of Seethammal on the ground that Seethammal had left a registered will under which he (Subbiah Naidu) is the sole legatee and that therefore he is the only legal representative of Seethammal. The above said petition C. M. P. No. 14623 of 1970 in S. A. 935 of 1969 was disposed of by Ramanujam, J. The learned Judge did not decide who among the two rival claimants is the real legal representative of Seethammal but allowed both of them to be parties to the second appeal. Subbiah Naidu (hereinafter reffered to as the respondent) was added as the 8th respondent in the above said second appeal, while Koneridoss (hereinafter referred to as the revision petitioner) had already been added as the 7th respondent in the second appeal. The learned Judge in that order observed that as there is rival claim as to who is the legal representative of deceased Seethammal both of them would be treated as legal representatives for the purpose of the second appeal and that such order is without prejudice to the contentions of either of the parties. The learned Judge also directed that the question regarding the genuineness of the will set up by the respondent herein is a matter to be agitated in separate proceedings.

(2.) AFTER the disposal of the second appeal I. A. 115 of 1968 in O.S. 36 of 1963 come to be filed for passing a final decree. Then the respondent herein filed I. A. 282 of 1973, out of which the present revision petition arises, contending that by virtue of the will left by Seethammal, he is the real legal representative entitled to continue the proceedings and that therefore he should be impleaded as the legal representative of Seethammal. This application is under Order 22, Rule 5, Civil P. C. The learned District Munsif on a consideration of the evidence placed before him held that the will propounded by the respondent is valid and that therefore he is the only legal representative of Seethammal and that the revision petitioner herein who claims to be the heir of Seethammal (husband's sister's son) is not the legal representative of Seethammal. It is this order that is questioned in the present revision petition.

(3.) THE learned counsel for the revision petitioner contends that the separate proceedings contemplated by the learned Judge in his order in C. M. P. No. 14623 of 1970 is a separate suit and not a proceeding as the present one. The contention is that even in the final decree proceedings, both the revision petitioner and the respondent should be allowed to be parties as legal representatives of Seethammal and they ought to have been referred to a separate suit to resolve the dispute between them. Though the contention of the learned counsel appears to be plausible, on a careful consideration I am of the view that the observation of the learned Judge in the abovesaid C. M. P. is not to be construed in the way in which the learned counsel for the revision petitioner wants to construe. The learned Judge could not have contemplated that in the final decree proceedings in the present suit both the rival claimants should be allowed to be on record without the Court deciding as to who among the two can properly represent the estate of Seethammal. If both of them are allowed to be on record it would lead to a strange situation. In the final decree, the Court has to decide as to whom the share of Seethammal is to be allotted. That apart, with regard to the division of the suit properties by metes and bounds, the question would arise as to who among the two rival claimants should have a way. If both the rival claimants are allowed to be on record one may contend that the division of the property should be in a particular way and the other may take a different view in the matter. It would certainly create good deal of confusion. Under these circumstances, when the learned Judge while disposing of C. M. P. 14623 of 1970 in S. A. 935 of 1969. left the dispute between the parties open, to be decided in separate proceedings, he could not have meant that the Court below is not expected to go into the question as to who among the two can properly represent the estate of Seethammal, Therefore the Court below is not wrong in entertaining I. A. 282 of 1973 under Order 22, Rule 5, Civil P. C. and holding that the respondent is the legal representative of Seethammal. The revision petition, therefore, should fail.