R. KRSNA MURTIIversusR. R. JAGADESAN

490                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 490                [2022] 7 S.C.R.


A                             R. KRSNA MURTII
                                         v.
                              R. R. JAGADESAN
                                    JULY 21, 2022
B                        (Civil Appeal No. 4832 of 2022)
        [DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
            Code of Civil Procedure, 1908 – Legal representative –
      Substitution of – Appellant was the power of attorney holder of his
C     mother who filed a suit – Suit was being prosecuted by the appellant
      as the power agent – Appellant’s mother (plaintiff) expired –
      Appellant sought his substitution in the suit as a legal representative
      – The said application was dismissed by the trial Court after taking
      into consideration that there were other legal heirs of the deceased
      and without impleading them, the appellant was not entitled to
D
      proceed further – High Court dismissed the revision petition filed
      against the order of trial Court – On appeal, held: The appellant is
      admittedly the son of the deceased plaintiff, thus his entitlement,
      whether by way of testamentary succession or non-testamentary
      succession, as being legal heir to deceased cannot be denied – If
E     any inquiry was required to be made, it could have been made
      u/Or.XXII, r.5 of CPC by the trial Court, but the application made
      by the appellant could not have been dismissed altogether –
      Impugned orders set aside and application restored for
      reconsideration by the trial Court.
F           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4832
      of 2022.
            From the Judgment and Order dated 26.05.2021 of the High Court
      of Judicature at Madras in CRP (PD) No. 1158 of 2021.
G           Petitioner-in-person.
            G. Balaji, Adv. for the Respondent.



H
                                        490
              R. KRSNA MURTII v. R. R. JAGADESAN                                    491


       The Order of the Court was passed by                                         A
       DINESH MAHESHWARI, J.
       1. Leave granted.
      2. We have heard the appellant appearing in person and the learned
counsel appearing for the sole respondent.                                          B
       3. Shorn of unnecessary details, the relevant aspects of the present
matter are that the appellant herein had been the power of attorney
holder of his mother, who had filed the subject suit for declaration and
perpetual injunction and alternatively, for declaration and recovery of
possession against the respondent. The suit was being prosecuted by                 C
the appellant as the power agent of the plaintiff. The said plaintiff, mother
of the appellant, expired on 10.01.2020. Thereafter, the appellant moved
an application, being I.A. No. 1 of 2020, seeking his substitution as
legal representative of the deceased plaintiff with the assertion that the
plaintiff, his mother, had executed a Will dated 13.06.2016 in his favour
                                                                                    D
with respect to all her estate and the said Will was registered with the
Sub-Registrar Office, Perambalur.
       4. This application was considered by the learned Sub-ordinate
Judge, Perambalur in the order dated 29.03.2021, wherein the submissions
on behalf of the defendant-respondent were taken into consideration
                                                                                    E
that the appellant was not the only legal heir of the deceased plaintiff;
and that the deceased had another son and one daughter and without
impleading them, the appellant was not entitled to proceed further. The
learned Trial Judge was of the view that from the Will itself, existence of
other son and daughter of the deceased plaintiff was evident; and that
the execution and attestation were not the questions to be decided at the           F
given stage.
       5. Having regard to the factum of existence of other legal heirs of
the deceased plaintiff, the learned Trial Judge straightway came to the
conclusion that the application I.A. No. 1 of 2020 moved by the appellant
for substitution was required to be dismissed and ordered accordingly.              G
       6. The appellant preferred a revision petition before the High Court
against the order aforesaid. The High Court proceeded to dismiss the
said revision petition on the consideration that the petitioner i.e., the present
appellant, ought to have taken steps for impleading the other legal heirs
                                                                                    H
492              SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A     of the late plaintiff either as co-plaintiffs or as defendants to enforce his
      right over the property in question.
             7. The order aforesaid has been questioned by the appellant before
      us, inter alia, with the submission that the Trial Court and High Court
      were not justified in rejecting the prayer made by the appellant for his
B     own substitution as the legal representative of deceased plaintiff and in
      any case, the application could not have been rejected on the grounds
      taken and on the reasons assigned by the learned Trial Judge and
      approved by the High Court.
              8. Learned counsel for the respondent has attempted his best to
C     support the orders impugned, again and essentially with the submissions
      that at the given stage and in view of the factual aspects involved, other
      legal heirs of the deceased plaintiff could not have been left out from
      being impleaded as her legal representatives in the subject suit.
             9. Having examined the matter in its totality and having given
      thoughtful consideration to the rival submissions, we are unable to approve
D
      the orders impugned.
             10. Leaving aside any other aspect of the matter, it is but apparent
      that the appellant is admittedly the son of the deceased plaintiff. Thus,
      his entitlement, whether by way of testamentary succession or non-
      testamentary succession, as being the legal heir of the deceased plaintiff
E     cannot be denied. That being the position, the application made by him
      for substituting himself as the legal representative of the deceased plaintiff
      could not have been declined by the Trial Court.
            11. In this regard too, it would be relevant to point out that if any
      inquiry was required to be made, the Trial Court could have adopted
F     the course envisaged by Rule 5 of Order XXII of the Code of Civil
      Procedure, 1908 but, in any case, the application made by the appellant
      could not have been dismissed altogether.
             12. That being the position, we set aside the orders impugned and
      restore the said application for re-consideration by the Trial Court in
G     accordance with law.
               13. The appeal is allowed in the above terms. No order as to
      costs.

      Ankit Gyan                                                     Appeal allowed.
H     (Assisted by : Aarsh Choudhary, LCRA)