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Synopsis

The Supreme Court last week held that an application seeking substitution as legal representative of a deceased cannot be dismissed only because the applicant was not the only legal heir of the deceased; and that the deceased had another son and daughter, without impleading whom, the applicant was not entitled to proceed further.

Noting that the applicant was admittedly the son of the deceased party to a suit, Court said,

"...his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiff 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."

A division bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose added that if any inquiry was required to be made, the Trial Court could have adopted the course envisaged by Rule 5 of Order XXII of the Code of Civil Procedure, 1908 but, in any case, the application for substitution could not have been dismissed altogether.

In the case before the top court, one R Krsna Murtii was 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, RR Jagadesan.

Murtii was prosecuting as the power agent of his mother. Later his mother expired on January 10, 2020.

Accordingly, an application seeking his substitution as legal representative of the deceased plaintiff was moved with the assertion that the plaintiff, his mother, had executed a Will dated June 13, 2016 in his favour with respect to all her estate and the said Will was registered with the Sub-Registrar Office, Perambalur.

Relying on the factum of existence of other legal heirs of the deceased plaintiff, the Trial Judge straightway came to the conclusion that the application for substitution was required to be dismissed.

High Court also dismissed Murtii's revision petition on the consideration that he ought to have taken steps for impleading the other legal heirs of his mother either as co-plaintiffs or as defendants to enforce his right over the property in question.

Top Court held that it was unable to approve the said orders and went on to set aside the orders impugned and restore the said application for re-consideration by the Trial Court in accordance with law.

Case Title: R. KRSNA MURTII vs. R. R. JAGADESAN