LAW FOR ALL

Legal Representatives - determinaed by courts pending the suit/EP etc., on the death of party - is only for limited purpose and not operate as resjudicate in full fledged disputes like Probate etc., proceedings. Umadevi filed a suit for partition claiming half share in the suit property against Manicka Naicker. This suit was decreed on 7th April, 1989 and such decree had attained finality. It was in 1999 that Umadevi sought execution of the decree passed but she died on 22nd July, 1999. The appellant who is the son of Umadevi’s younger sister filed an application to execute the decree as her legal representative on the basis of a Will dated 16th July, 1999 (Ex.P/1). The said application was allowed by the Executing Court on 29th March, 2004. The appellant filed an application under Order XXI Rule 35 of the Code for eviction of the respondent and to deliver vacant possession of the premises. In response to such petition, the respondent asserted that the Will is forged and that the son of a sister is not a legal heir as per Section 15 of the Hindu Succession Act, 1956. The learned Executing Court decided the application on 19th September, 2005. It found that the Will was attested by PW-2 Ayeeyappa who had signed it as one of the attesting witnesses and PW-3 Mohan had scribed the Will. The respondent examined Senthilnathan as RW-1 and Krishnan as RW-2. The learned Executing Court held that the appellant as legal representative of the deceased Umadevi is entitled to execute the decree. The Executing Court held as under: “11. …Further in OS No. 30 of 1982 a judgment and decree was granted in favour of Umadevi on 7.4.1989. Either the deceased Munusamy or his son the said Senthilnathan had not filed any appeal as against the decree. But the said Umadevi had filed an Execution petition duly signed by her. Further, the said Umadevi, before her death, i.e. 6 days earlier to her death, she had executed the Ex.P-1 Will. This court finds that her actions in filing the execution petition and the Will are accepted to be correct, even by the respondents. Further this court finds that since the said Munusamy, who is the son of the first wife of her husband, did not give her food, cloth and shelter and did not take care on her, the deceased Umadevi had gone to the house of her younger sister and stayed along with her and since her health condition got deteriorated, she had executed a Will in favour of the son of her younger sister namely Varadarajan and these facts are found to be true. Apex court held that who is the legal representative under Order XXII Rule 5 of the Code is for the limited purpose of representation of the estate of the deceased and for adjudication of that case. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased.” It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings.