P RAMA NAIDU (DEACEASED) Vs. RANGAYYA NAIDU

JUDGEMENT

(1.) One Rama Naidu applied in the Lower Court for probate of the will of the deceased. Certain persons entered a caveat and the proceeding became a contentious one. The Lower Court, holding that the will has not been proved to be genuine, refused probate and Rama Naidu filed the present appeal and died before the hearing. His sons have been brought on the record and an objection has been taken as to their legal competence to prosecute the appeal, and that is the first question we have to decide.

(2.) Rama Naidu besides being the executor is also the residuary legatee. We cannot as a Court of probate decide questions of construction; but it is not disputed that, in any view, Rama Naidu's sons would be beneficiaries. If the estate taken by the deceased was an absolute one, his sons, on his death, become entitled to the legacy as his heirs; if, on the other hand, the bequest is to be construed as conferring on him only a life estate, the sons, by reason of the words " his male descendants," would take the legacy in their own right. In either case, the sons of Rama Naidu are persons entitled to a benefit under the will.

(3.) The decision on the point raised depends upon the view the Court takes of the true nature of the sons application. Is that to be regarded as an application under Order 22, Civil Procedure Code? Is it necessary for the sons to make out that the right to sue in such a proceeding survives and that they are their father's legal representatives? An applicant under Order. 22, Rule 3, must establish these two positions first, that the right to sue survives, secondly, that he is the plaintiff's legal representative. If the original plaintiff in filing the petition in his character as executor represented the estate of the deceased testator, then, on his death, his right may fairly be said to have devolved upon his sons. This follows from the construction which the Judicial Committee was disposed to place in Venkata-narayana Pillai v. Subbammal (1915) L.R. 42 I.A. 15 : I.L.R. 38 Mad. 406 : 28 M.L.J. 535 (P.C.) upon the expression "legal representative" when a contingent reversioner applied to be substituted in appeal in the place of the deceased presumptive reversioner. But, in my opinion, this is an inquiry which need not be pursued, for the applicant's right stands independent of Order 22, and this position, if realised, will clear the way of much irrelevant discussion.