DAYA K PANICKER Vs. PRABHAKARA PANICKER

JUDGEMENT

(1.) RESPONDENT No.6 in R.F.A.No.53 of 2004 of the court of learned Additional District Judge, Kollam is the petitioner before me. She is aggrieved by Ext.P7, order allowing I.A.Nos.123, 124 and 125 of 2010 as per which abatement of appeal has been set aside condoning the delay and respondent has been impleaded as legal representative of deceased sole appellant. According to the learned counsel for petitioner on the death of sole appellant appeal abated and respondent, husband of deceased appellant had no right to represent estate of deceased under Section 17 of the Hindu Succession Act. It is also contended that the Will set up by the respondent has not been properly proved as required under Section 68 of the Indian Evidence Act. According to the learned counsel impugned order cannot be sustained. Learned counsel for respondent contended that there is no challenge to the genuineness of the Will by the respondent on the strength of which he has been allowed to get impleaded as additional appellant in the RFA.

(2.) ORDER XXII Rule 5 of the Code Civil Procedure (for short, "the Code") states that where a question is raised as to whether any person is or not of the legal representative of deceased plaintiff or a deceased defendant such question shall be determined by the court. In this proceeding though not in so many words petitioner has raised a contention that respondent is not the legal representative of the deceased appellant. It is not disputed that respondent is claiming to succeed to the estate of deceased sole appellant on the strength of registered Will No.52 dated 12.9.1974. On going through the objection filed by petitioner I do not find any admission regarding execution and attestation of the Will. In such a situation it is necessary that appellate court conducted an enquiry into the question whether respondent is a legal representative as required under ORDER XXII Rule 5 of the Code. It is seen that no such enquiry was conducted and instead on the strength of the Will which is not proved respondent has been allowed to come on record as legal representative. Appellate court has to conduct an enquiry as to who is the legal representative of the deceased sole appellant. Since that enquiry has not been conducted Ext.P7, order cannot be sustained and is liable to be set aside. Resultantly Writ Petition is allowed. Ext.P7, order allowing I.A. Nos.123, 124 and 125 of 2010 is set aside and those applications are remitted to the appellate court for fresh determination of the question as provided under ORDER XXII Rule 5 of the Code.