- The Karnataka High Court has held that a trial court cannot reject an application made by legal representatives that are seeking to come on record following the death of the singular plaintiff to a suit, without considering whether the 'right to sue' survives on the legal representatives.
- Justice R. Devdas thus set aside the order by which the trial court dismissed the application filed by Shobh and other daughters of deceased Yallappa B.Patil seeking permission to be brought on record as legal representatives.
- The primary plaintiff had filed a suit for being declared as the absolute owner of suit property, on account of a registered Will dated 04.09.2018 executed by his daughter Sumithra. It was contended that Sumithra who had executed the registered Will, transferring her rights of the land in question, in favour of her father had died subsequent to the execution of the Will. However, during the course of the suit, the sole plaintiff Sri Yallappa passed away.
- The trial court rejected the application of the petitioners on the ground that Sumithra had acquired the property for her maintenance, under the alleged Will. Sumithra had also died without proving the Will and therefore it was held that the legal representatives of late Yallappa B.Patil have no locus standi to prosecute the suit.
- The petitioner's counsel argued that the Code of Civil Procedure distinctly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, shall be determined by the Court. Also, Order 22 Rule 5 does not specifically provide that determination of a legal representative should precede the hearing of the appeal on merits, nevertheless, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.
- The bench noted that Rule 1 of Order 22 of CPC provides that the death of either parties shall not cause a suit to abate if the right to sue survives. Hence, the trial court was required to consider whether the right to sue survives on the legal representatives of the deceased lone plaintiff.
- Referring to the Supreme Court's judgement in Prabhakara Adiga v. Gowri &Ors. The Court took note that it is clear that the Trial Court could not have rejected the application filed by the legal representatives of the sole deceased plaintiff.
- In the case law mentioned, the Top Court had established that when the right litigated upon is heritable, the decree would not ordinarily abate and can be enforced by legal representatives of decree-holder. It would be against the public policy to ask the decree-holder to litigate over again against the legal representatives of the judgement-debtor when the cause and injunction survives.
- In this light, the High Court held that the plaintiff would get all the rights to enjoy the property. However, whether Sumithra herself had been given only the right to maintenance or not is a different matter. If so, she could not have further transferred the said right in favour of Sri YallappaB.Patil. These are issues that are required to be considered by the Trial Court in a proper trial.
- Accordingly, the court moved to restore the suit and remanded the matter back to the trial court for considering the application filed by the petitioners.
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