RAMESH Vs. PRADEEP VASANT DESAI

JUDGEMENT

(1.) This writ petition arises from an Order dated 11.10.2012 allowing I.A. No. 8, passed in O.S. No. 17/2006 by the Senior Civil Judge, Chikkodi.

(2.) One Vasant Rajaram Desai, the propositus, died on 08.12.1994, leaving behind his wife Smt. Ushadevi, two sons namely Ramesh Vasanth Desai and Pradeep Vasanth Desai and a daughter Surekha. Pradeep Vasanth Desai, alongwith his mother - Smt. Ushadevi, filed on 31.01.2006, O.S. No. 17/2006, in the Court of Civil Judge (Sr. Dn.), Chikkodi, against Ramesh Vasanth Desai, his son Raj Ramesh Desai and Smt. Surekha wife of Shripal Kittur (defendants 1 to 3 respectively), to pass a decree for partition and separate possession claiming 2/3rd share in the plaint schedule properties. Defendant No. 1 and his son, filed separate written statements. Based on the pleadings, the Trial Court raised the issues. Smt. Ushadevi died on 23.09.2011. I.A. No. 8 was filed on 18.10.2011 by the plaintiff No. 1 and his son Mahaveer Pradeep Desai, under Order 22 Rule 3 r/w Section 151 of C.P.C., to permit them to come on record as legal representatives of deceased plaintiff No. 2 - Smt. Ushadevi, on the ground that during her lifetime, she executed her last Will and testament on 25.10.2010, bequeathing her right, title and interest in the suit properties in their favour and that the same is a registered document. I.A. No. 8 was contested by the defendant No. 1. He denied the allegation that the deceased plaintiff No. 2 Ushadevi having executed a Will and contended that Mahaveer Pradeep Desai being neither legal heir nor legal representative of Ushadevi, is not entitled to be added as a party, as the legal representative of deceased plaintiff No. 2. It was further stated that the legal representatives of deceased i.e., plaintiff No. 2 - Smt. Ushadevi, being already on record as plaintiff No. 1, defendant Nos. 1 and 3, the application is not maintainable. Alternatively, it was stated that unless and until the alleged Will is proved, Mahaveer Pradeep Desai, cannot be termed as legal representative of deceased Smt. Ushadevi and cannot be permitted to come on record.

(3.) After considering the record and the rival contentions, Trial Court has held that the suit has not abated, as the natural heirs of the deceased plaintiff No. 2 i.e., plaintiff No. 1, defendants Nos. 1 and 3 are already on record and the claim of plaintiff No. 1 to come on record as legal representative of deceased plaintiff No. 1 is not acceptable, since, himself and defendant Nos. 1 and 3 are the natural heirs of deceased plaintiff No. 2 and hence, he cannot be arraigned as plaintiff No. 2(b), as alleged legatee under the Will alleged to have been executed by deceased plaintiff No. 2. However, it observed that the plaintiff No. 1 can claim in the suit that he is the natural heir of deceased plaintiff No. 2 and also alleged legatee under the Will alleged to have been executed by deceased plaintiff No. 2, in dual capacity. It has held that Mahaveer Pradeep Desai, can only be impleaded as alleged legatee under the Will and that he will have to prove the said Will in separate proceedings. Mahaveer Pradeep Desai was permitted to come on record as plaintiff No. 2(a) on the ground that the cause of action to sue survives along with plaintiff No. 1, on the strength of the alleged Will executed by plaintiff No. 2. I.A. No. 8 was allowed accordingly. Assailing the said order, this writ petition has been filed by the defendant No. 1.